The Two Halves of the Occident:
‘Continental Model’ and ‘Oceanic Model’
Limiting oneself to general questions of identity, of the conflict of values, of language and technology is not sufficient to provide a reliable descriptive framework of the present global era and its problems. It is necessary to descend to a lower level of abstraction to see the more properly philosophical and political aspects influencing the destiny of states, political subjects, institutions and rights in a time marked by the rapid and overwhelming transformation of Western democratic societies.
This problematic will be confronted on the basis of a specific interpretative hypothesis contained in the title to this chapter: the twilight of sovereignty. It is important, however, to make an initial clarification so as to dissipate any ambiguity that may arise. The term ‘twilight’ is not intended in the commonly accepted form of ‘declining phase’ or ‘sunset’, which – it is worth noting – took root at the time of the first performance of Wagner’s Götterdämmerung on 17 August 1876 in Bayreuth. The term is not used so as to flirt with the recurrent literature on the ‘End’ or on ‘Decadence’, which is once again widespread. It is adopted, rather, in its original meaning, i.e., the ‘diffuse glare’ occurring before dawn and after sunset. This semantic ambiguity suggests a structural analogy between the ‘before’ and ‘after’, between a genetic-constructive phase and a critical-deconstructive phase of the – characteristically modern – paradigm of ‘sovereignty’.
We will attempt to approach this subject in the most rigorous manner, which will not always coincide with the literal interpretations that are commonly in use. In fact, the trinomial provided in the subtitle to this chapter alludes to open questions rather than to available solutions. It alludes to a chain of metamorphoses (some of which have, in part, occurred and others which are, in part, under way) and not to already constituted or actually crystallised entities. With the reference to the plurality of subjects, as well as of rights, it implies a progressive weakening of the classical dichotomy, or, if you prefer, a less prejudicial axiological formulation, a mingling of the traditional borderlines between the countries of the Civil Law and those of the Common Law. Refusing the rigorous demarcation between those systems organised in accordance with Roman law, where the doctrine and praxis of state sovereignty understood in monopolistic terms was formed – first on theological-political bases, then on nature-law foundations and, finally, on rationalistic grounds perfected by legal positivism – and those systems issuing from the common Germanic root, where the production of law is not the exclusive prerogative of a person-state, of a central authority formally invested with power but, rather, the result of the autonomies and dynamic interweavings between diverse ‘associations’.
The clouding of the distinction between these great models of order that constitute the two halves of the Occident – for brevity’s sake we will call one the ‘Continental model’, characteristic of the European and Latin American states’ formalistic–imperative tradition of legal positivism, and the second the ‘oceanic model’ typifying the Anglophone states’ (Great Britain, the United States, Australia) customary-constitutional tradition of common law – poses a series of delicate problems not only for legal theory in the narrow sense but for democratic theory itself.
We shall, therefore, set out from the classical binomial of the ‘state’ and ‘sovereignty’ of the Continental model, to questions concerning the present and future problems of democracy, the nature of ‘subjects’ and the quality of ‘fundamental rights’. In this respect, we will need to make a methodological distinction between two tendencies or, rather, two research trajectories (although they are – in fact – interdependent). The first trajectory (A), which privileges the ‘internal’ aspect of the problem, asserts the definitive conventionalisation of the concept of sovereignty understood as the natural point of arrival of a process – at once unitary and two-sided – of secularisation and absolutisation: moving away from religious authority and towards the foundation of ‘intra-worldly’ rational-legalistic and technico-juridical procedures for the legitimating of state power.
The second trajectory (B), essentially (but not exclusively) privileges the ‘external’ face of the problem. It proposes to deconstruct this same concept by reversing through its constitutive stages. The implicit wager is that the current key to the crisis of the state can be traced back to the logic that has historically presided over its edification, if not to the basic elements, to the ‘bricks’ with which modern rationalism (in its metaphysical guise even more importantly than in its juridical and political ones) has erected the structure of the ‘great Leviathan’ over the last four centuries.
For some time, as we have hinted already, we have been convinced that the two trajectories, by traversing or touching upon crucial questions of contemporary politics, end up intersecting or even converging in a number of points. For this reason we struggle to understand the cause of the delay in making them interact on the theoretical plane. This appears much less inscrutable if one thinks of the prescriptive obsession that still permeates a large part of political philosophy. This obsession has, to this day, prevented the comprehension or the turning to account, on the specifically philosophical terrain, the revolution in the twin notions of the state and sovereignty produced over the last five decades by historical research – not only juridical, political and constitutional history but also history of religion, anthropological history, social history and the history of ideas.
We shall now examine in turn the problematic core of the two trajectories, so as to then attempt to situate the terms of their possible interaction within the framework of a renewed democratic theory, one that is able to ‘temper’ prescription and comprehension – beyond any simple antithesis of analytic and hermeneutic, theoretical approach and historico-critical approach. In other words, we shall attempt to delineate a normative plane anchored to the material and symbolic presuppositions that are woven into the dynamics of ‘really existing’ polyarchies (and their complex play of exclusions and inclusions, distinctions and mixtures, interweavings and superimpositions between ‘interests’ and ‘values’, society and institutions).
Our investigation will make implicit use of the principal foreign contributions on this question (particularly German and Anglophone), without ignoring some important Italian contributions, including those of Paolo Grossi and his school – in particular the work of Maurizio Fioravanti and Pietro Costa on the ‘model of juridical sovereignty’; those of Paolo Prodi on the ‘sovereign pontiff’ and on the ‘sacrament of power’ – which is to say, on that knot of canon law and public law that lies at the foundation of the attribution of plenitude potestatis to the secular state; and Pierangelo Schiera’s investigations into the Verfassung and the forms of ‘discipline’ constitutive of the modern state – investigations that were inspired by the methods and results of the ‘constitutional and social history’ of Hintze, Brunner and Böckenförde. Aside from the significance of these relatively recent studies, we must not lose sight of what is all too often overlooked (at least in the last two decades) by the majority of political philosophers: that the Italian tradition, beginning with Santi Romano, occupies a central place in the landscape of juridical science of the 1900s.
We will seek to identify the nodal points emerging from the two trajectories against this backdrop.
Juridical Experience and the Imaginary of Statehood
The Power of Fiction: the state/sovereignty binomial
A decisive result springs from ‘trajectory A’, one that sheds light on the formal value of the state/sovereignty binomial and on the fiction of the person-state. That is to say, the conventionalisation of the summa potestas is nothing other than the inevitable upshot of its progressive identification with the law, with the juridical-normative order as a whole. This upshot, as we shall see, reverberates against each of the terms of the binomial.
One of the merits of this tendency is that of having relieved the notion of the state of the misty indeterminacy of many traditional theoretical and historiographic approaches that treated it as a sort of ubiquitous indicator, as universal as it was vague, as indefinite as it was omnipotent and imperious. Such approaches meant that the word ‘state’ could be applied to the Greek polis and the Roman civitas, to the respublica Christiana and regna of the territorial monarchies of the early Middle Ages. This unfounded semantic extension of the term has led us to lose sight of the fact that the state as we understand it, i.e., as a political association founded, in Weberian terms, on the monopoly of legitimate physical force or violence, which turns on a dual and simultaneous process of expropriation-monopolisation and legitimation of ‘power’, is not only a Western event but a specifically modern one. Its structural identity depends – both in its actual genesis and in its current decline – on historical circumstances that are as determinate as they are specific.
In the modern acceptation the word ‘State’ is a new word, found in the various European languages only in a period relatively near our own. Its acceptance was linked with certain factual circumstances, with the fact above all that it referred to a new state of affairs, one that differed in many respects from that which was visible to the eyes and imagination of the political writers of antiquity and of the Middle Ages.1
The author of the work quoted above Alexander Passerin d’Entrèves, one of the few Italian thinkers able to bring together, in a comparative perspective, the two great political-juridical traditions of the Occident. It was the comparative method that emphasised the diachronic as well as the synchronic peculiarities of the new term. Whereas, historically – beginning with Machiavelli, who is the first to use the term as a noun by means of an abstraction of the status reipublicae – it introduces a discontinuity with respect to the past, from the synchronic standpoint it marks the persistence of a break from the ‘other side’ of Western civilisation represented by the common law. Although the neologism ‘the state’ had already been introduced into English in the Elizabethan era; although Hobbes, in the introduction to Leviathan, had clearly stated the equation between the commonwealth (which was an etymologically precise translation of the latin term ‘respublica’) and civitas and state; although – additionally – even before Hobbes, Pufendorf and his translator Barbeyrac consecrated its use in political theory – nevertheless, the term ‘État’ had, for some time already, been adopted in the language of international relations. Despite all this, ‘the word “State” does not seem to have fared as well in England and in English-speaking countries as it did on the Continent’.2 There are complex reasons for this cold reception. They relate back to the division between the two great paths [indirizzi] of Western culture, which depend – in the final analysis – on that bifurcation within the development of the juridical concept of ‘public person’ or ‘personality of the state’ that had been so admirably delineated by Maitland in The Crown as Corporation.
Passerin d’Entrèves’ Notion of the State was valued more highly in the philosophical sphere outside Italy.3 This book called itself an introduction to ‘political theory’ (in the subtitle to the 1967 English edition), or to the ‘doctrine of the State’ (as in the subtitle to the previous, and less detailed [elaborate] Italian edition). However, it would not be difficult to find similar statements – i.e., ones marked by an analogous demand to critically circumscribe the conceptual terms of ‘state’, ‘sovereignty’, ‘norm’, ‘legality’ and ‘legitimacy’ to the modern political and juridical world – in the work of other Italian thinkers (perhaps ones with a different cultural or ideal orientation). For example, in the studies of Paolo Grossi, who, over a number of decades, has advanced the notion of the specificity of ‘medieval juridical experience’,4 rooted in the plurivocal and multiform fabric of a society without a state. Or in the investigations of his student Pietro Costa into the question of the iurisdictio, that is, into the semantics of political power in medieval public law. Each of these enquiries is also decisive for the subject of this chapter, inasmuch as we extract from them – e contrario – the (anything but ‘natural’) peculiarity of the modern juridical experience, which binds the production of law to the organs of the state, turning the law into a purely formal reality.
In an equally precise manner, the results of this line of thought reverberate against the second term of the binomial, embracing in a single destiny – that, for some, constitutes a mortal embrace – ‘state’ and ‘sovereignty’. The modern concept of sovereignty, beyond the doctrinal antithesis between ‘decisionism’ and ‘normativism’, finds its ‘natural’ presupposition in the ‘fiction’ of the person-state, that is, in that ‘nominalism’ that – on the back of traditional study of Roman law and Western canon law – conceives political association as a persona ficta. In this presupposition one can find inscribed, from its very beginnings, the inexorable destiny of the progressive conventionalisation of the state. Once the path of the state’s metaphysical substantialisation is rejected, a path taken by the various organicist ideologies which emerge as counterpoints to the various phases of modernity, the state as ‘person’ appears as nothing but an artifice and a legal abstraction. Its ‘existence’ is, purely and simply, a creation of the law: the personification of a system of norms, imputed to the ‘state’. Therefore, ‘taken seriously’, the Project of modernity sets out – on the basis of social contract theory – from a cardinal thesis: the ‘life’ of the state is an ‘artificial’ life. One can only speak metaphorically of the ‘political body’ or the state as ‘organism’. And, for Hobbes, it is not only the body that is artificial but also the soul of the Leviathan, which he locates in sovereignty.
It is impossible to underestimate the debt contracted by modern public law with canon law in its elaboration of the ‘conceptual fiction’ of the person-state (as documented by Paolo Prodi’s investigations). The coining of the concept of ‘legal person’ is drawn from classical canon law. This circumstance alone should suggest just how much modern theorisations are permeated by theological elements. It is thanks to the work of the great Italian canonist Sinibaldo dei Fieschi (the future Pope Innocent IV) that one designates with the expression persona ficta an ‘artificial subject’ that exists only in the construction of law but that, in this construction, has a perfect autonomy and an independent existence (as we have been reminded by Grossi in the wake of Francesco Ruffini’s works at the end of the 1800s). At the same time, one must resist the temptation of the continuum, by distinguishing the original meaning of the term from the conventional acceptation that it assumed in its later, secular guise. At the beginning, the adjective ‘ficta’ possessed a complex valence, which – in conformity with Latin etymology – indicated both artifice but also the creative dimension of an intellectual design. Subsequently, it became rooted in a rigidly monist conception based upon the iron principle of the hierarchy of sources, that is, on the presumption of a single legitimate source of law and of a single valid order which was identified with the state.5
The theoretical regime that presides over this identification has a precise and incontrovertible name: formalism. In this respect, the opposition to which we alluded earlier, between ‘decision’ and ‘norm’, which since the celebrated controversy between Schmitt and Kelsen has held the attention of at least three generations of European political philosophers (and recently American ones too), loses all meaning. Although it was comprehensible in terms of ideological-polemical polarities in the particular atmosphere in which it arose – that climate of divisions and contrasts that marked the tragic destinies of Weimar Germany and of the first Austrian republic, today the antithesis of decisionism and normativism appears theoretically unjustifiable. The simple but crucial reason for this is that decision and norm, independently of the ‘politics of law’ that subtend them, are two sides of the same coin: the imperative-formalist coin of legal positivism. No consistent ‘decisionist’ can today deny that a decision, insofar as it is ‘constitutive’, is a function of a legal order to which it must necessarily give rise. Otherwise, as Schmitt himself underlined in his polemic with ‘political romanticism’, one would fall back into the arbitrary occasionalism of an art pour l’art.6 Conversely, no consistent ‘normativist’ can fail to recognise that the system of norms, inasmuch as it is a valid legal system, ‘exists’ only because it has been constituted, that is, positively and formally instituted, by an act of decision. Otherwise, as Kelsen himself never tired of repeating, one would remain stranded in the metaphysics of natural-right theory.
The current matter of contention is no longer that of the (presumed) dilemma of decision or norm but invests the very stability of the Leviathan model, that is, of a model that is formal and imperative, and founded upon the reduction of all law to state law. However, whereas from the historical-political standpoint one may accept the descriptively anodyne formula of the ‘crisis’ or ‘entropy’ of the Leviathan, from the theoretical perspective these general expressions are no longer sufficient. We must acknowledge that – at the level of ‘doctrine’ – the signs of the crisis, of that entropic tendency, can already be found prefigured in terms of the dissolution of the concept of the state. This dissolution is effected through two distinct analytical paths, which we can only outline here: 1) through the definitive conventionalisation of sovereignty into a merely formal axiom of opening/closure of the Order. Kelsen’s notion of Grundnorm absolves this task. Inasmuch as it is contentless, insofar as it is a pure imperative of observance of all other norms of the system, the ‘fundamental norm’ indicates – as Georg Henrik von Wright has observed7 – the decisionistic and ‘nihilistic’ absence of foundation on which the Leviathan model supports itself. In this respect, Kelsen – and not Schmitt – constitutes the logical end point of the ius publicum europæum; 2) through the reduction of sovereignty to cipher for a system of functions or a set of institutions. These functionalist or systemic theorisations, in sociology as in political science, reduce the state to a merely self-referential diagram of functionally differentiated roles or to a hetero-referential parallelogram of social forces.
In this way, two different theoretical paths converge in the dissolution of the state-sovereignty binomial. And in this respect, it is of little consequence that the ‘emptiness’ of path A), which culminates in the aporia of the relation validity-effectiveness, is matched by the ‘fullness’ of path B), which issues in a socio-political realism that resolves the question of legitimacy in the technicity of the procedure or in the factuality of the relations of power. The crucial aspect is that the result of both paths coincides with the certification of the death of the magnus homo, of that mega-machine, or that great artificial organism on which modern rationalism has conferred the name of ‘state’ through a process of reification that has no counterpart in empirical reality.
But what if the historical and structural reality of the modern Leviathan were something other than its doctrinal, philosophico-political and public law stylisation? What if the notion of sovereignty were only a mask, a symbolic device whose task is to ‘sublimate’ a whole operational group of concrete interwoven disciplinary practices? What consequences should we draw concerning the genesis and destiny of the ‘state’, were these hypotheses to be on target? Roughly, this was the tenor of the premises of Michel Foucault’s investigations. Their aim was to remove the realist foundation of the juridical model of sovereignty, thereby relegating – in a preliminary way – the model to the status of apologetic function of ‘self-representation’ of the modern state. The shortcomings of Foucault’s analysis of power stem directly from his conception of law as a purely negative and repressive dispositif. We have already discussed this in Dopo il Leviatano and thus will not do so again here. It is important to underline, however, how – despite this limit and this reductive conception – Foucault’s investigations converged with demands that, fifty years ago, were made by a number of jurists. We are referring, specifically, to those German jurists (but now no longer only German) who, beginning in the 1930s, inaugurated that important course of research called ‘constitutional and social history’.
In this way we arrive at the second theoretical trajectory that we wanted to consider: ‘trajectory B’.
The Force of Tradition: the return of the
‘potestates indirectae’ and the multiverse of autonomies
Within ‘trajectory B’ we discover an indubitably potent and suggestive interpretative key: the destructuring of the Leviathan state would restore the modalities and factors of its birth and constitution, according to a reversed logical and historical order (somewhat like a film played backwards). We have just affirmed that, in terms of logic, in terms of ‘pure theory’, it is Kelsen and not Schmitt who represents the conclusion of the ‘Continental model’ structured in accordance with the centralising and hierarchical rationality of public law. Therefore, recent attempts to rediscover or ‘overturn’ decisionism as a reanimation therapy for a state organism debilitated by procedural, administrative and normative routine are not only anachronistic but sterile, for the simple but fundamental reason that its ‘weakness’ is nothing but the inexorable result of the imperative (and ‘decisionist’) principle upon which the entire ‘rational-legal’ edifice of the modern state is founded. We would be mistaken, however, were we to think we could rid ourselves of the whole of Schmitt’s analysis, in particular of that side that – synthesised in Der Nomos der Erde8 – looks well beyond the horizon of ‘sovereign decision’ and contextualises the very history of the Leviathan in the framework of the various orders that the organisation of power has assumed in the history of the Occident.
At this point we shall advance a thesis that may, at first sight, appear paradoxical or deliberately provocative. Schmitt’s thought (the stages of which we shall discuss more fully in the following chapter) is more useful for history than for philosophy. The moment the axis of his thought assumes the perspective of the longue durée on European political and constitutional history, his thought becomes more fertile in relation to trajectory B, i.e., to the second axis of investigation into sovereignty. One could sum up his perspective as follows. In the twilight of the modern state the potestates indirectae, those autonomous economic, religious, socio-institutional ‘powers’, the multipolarity of conflict that the absolute sovereignty of the state had ‘neutralised’, bringing to an end with the Peace of Westphalia (1648) the long and bloody chapter of the civil wars of religion, return to the stage.
We will merely touch upon the problematic implication that this ‘long wave’ of reflection has on the theoretical intentions of Schmitt’s ‘decisionism’. In the final reckoning, the decider state is revealed to be a neutralising state, for the sovereign decision is de facto equated with the suspension of internal conflict between ‘subjects’ that, in the previous legal orders, made up the body of political association. The decisive aspect of Schmitt’s thesis is given, however, by the fact that the neutralisation, of which the ‘mortal god’s’ birth consists, is exercised over the action of historically specific groupings which aim to model the political order on ultimate values that are identified with what they consider to be the only true religious principles, i.e., their own. It was not a case of an asymmetrical conflict between absolutists and relativists, between those who considered themselves to be right and those who stopped at the ‘penultimate values’. It was a case, rather, of a symmetrical conflict between factions who were united in their belief that they each had a monopoly on the true religion. From this perspective, there is absolutely no difference between Catholic and Protestant, between Papists and the variety of ‘reformed’ sects and tendencies. And so it follows a fortiori that the intra-worldly sovereignty of the new form of association that will assume the name of ‘state’ can be called absolute inasmuch as it introduces a dissymmetry that suspends the horizontality of conflict through a form of neutralisation that is itself new. This form, insofar as it revokes the theological element of the conflict, takes the name of secularisation. Not for nothing does Schmitt detect the starting point of the process that leads to the construction of the artifice of the state, the ‘jewel’ of the ius publicum europæum, in Alberico Gentili’s injunction to the theologians to stay silent: Silete, theologi, in munere alieno! Not for nothing does he characterise the current epoch of the decline of the state in terms of the compulsive coexistence of two tendencies: a tendency towards the global technicisation of the political sphere, which turns into a new injunction to stay silent, this time issued by the technocrats to the iurisconsulti; the other tendency marked by a return to the world-wide [mondiale] sphere of that horizontal conflict that turns on ‘absolute enmity’ (that is, on value/non-value), which the modern state had managed to ‘suspend’ at the moment of its constitution.
One crucial circumstance problematises the diagnostic framework. Since history never repeats itself, the ‘return’ of indirect powers is not tantamount to a pure and simple reproposition of the wars of religion. There are other subjects, not only confessional ones. There are other forms of symbolic self-identification, not only theological ones. But there is a recurrent criterion that presides over their aggregation and disaggregation: the criterion of a hostility that appeals to ‘ultimate truths’. Only in this sense can contemporary identity conflicts be made – by analogy – to recall ancient wars of religion. Evoking those wars, the elderly Voltaire declared that Europeans had already experienced ‘their own Hell on earth’,9 when they did not hesitate to exterminate ‘one another for a parcel of words’.10
Beginning with the classic works of Otto Hintze and Otto Brunner,11 and continuing up to the recent contributions of Gerhard Oestreich and Ernst-Wolfgang Böckenförde, constitutional and social history has deconstructed the public law notion of the state. It has gone on to place the concrete historico-structural dynamics that characterised the course of the Verfassung in the European continent at the heart of its enquiry. By visualising the interactive role played by the different socio-institutional components in the transition from the medieval to the modern legal orders, this operation has enabled the decomposition of the phases of the process of selection and combination through which the traits of the new state structure were extracted. It is precisely thanks to this work of decomposition that it is now possible to identify precisely the ‘destructuring’ factors to which the state’s claim to centrality and monopoly is subjected. These factors affect the ‘Constitutional State’ as much as the ‘Social State’.12 Of these various factors we shall recall those of which we are most acutely aware of today: the regional demands for autonomy, which are structured in an entirely non-state form, put in question the ius territorii that formed the starting point for the process of transition from the medieval lordship system to the unitary power of the state; the demand for differential social and legal treatment on behalf of interest groups, ethnic and religious communities, and diverse group identities (with the consequent question of the repeal of the legal formula, typical of the modern state, of equality before the law); and the intensification of the conflict of competences (and the multiplication of superimpositions) between the different institutional powers or – according to an expression dear to one of Italy’s principal postwar jurists, Massimo Severo Giannini – between the different ‘sovereign powers’ of the state.13
Against this backdrop, the most recent reflections on the relations between sovereignty, subjects and rights have inserted in the debate a conspicuous dose of descriptive and evaluative elements of the current phase. For at least two decades, the debate on divided or – in a celebrated phrase of Norberto Bobbio’s – ‘diminished sovereignty’ [sovranità dimidiata] 14 has presented itself with ever greater insistence. Jurists like Stefano Rodotà have spoken for some time of the ‘fragmentation of the sovereign’15 in an epoch marked by new bioethical and biopolitical problems generated by the exponential growth of technological innovations that increasingly invest the private and corporeal spheres. More generally, in recent years the conviction has grown that the fall of the Berlin Wall not only marked the end of the Soviet empire and of the bipolar system but has also brought to an end the epoch of the nation state that began with the French Revolution.
The emphasis is placed on what appears to be a paradoxical phenomenon: the simultaneity and belonging together of global and local, the process of globalisation [mondializzazione] and drives for autonomy and for decentring. On the one hand, the homologation of the planet under the ‘unitary model’ of the world market is said to multiply, in a geometric progression, the phenomena of migration. For this reason, it is said that the mobility of human beings, capital, commodities and information is irrevocably eroding the territorial logic on which our societies are founded. On the other hand, the end of the system of nation states is thought to trigger the compensatory phenomenon of the search for security and anchoring in an identity within homogeneous regional legal orders. For the new theorists of the ‘end of democracy’ (we are thinking specifically of a homonymous work by Jean-Marie Guéhenno),16 the current crisis can be linked with the decline of the great institutional constructions of modernity. We are told that the contemporary world is heading towards the diffusion and pulverisation of the powers that – disaggregating all coagulations of sovereignty, and with that the very idea of Western democracy – is leading us towards an ‘imperial’ world, that is, a multiverse of tendentially centrifugal communities, cemented by ‘technopolitics’. From here stem the crucial questions concerning this end-of-century transition. In such a scenario, where the ‘manager’ takes the place of the ‘sovereign’, where ‘rules’ supplant ‘values’ and ‘principles’, what future is being prepared for human communities? In what way will individuals be able to construct their identities and affirm their rights? What rules of the game and what spaces of freedom will emerge in a world suspended between the alternatives of technocracy, populism and Bonapartism?
In comparison to these extremely disenchanted and (anything but baselessly) pessimistic scenarios, the line of investigation indicated by ‘trajectory B’ has the advantage of offering an Ariadne’s thread enabling us to orientate ourselves in the intricate labyrinth of corridors and bifurcations, twists and turns, that characterise the current political multiverse. As we have indicated, this thread is constituted by deploying the perspective of the longue durée that alone enables us to track those constitutive conditions of sovereignty and of modern law whose disarticulation lies at the bottom of the confusion and the discomfort in which we find ourselves today.
But how can we reformulate the crucial political questions of our time, making them converge – in accordance with the demand we posed at the start of this chapter – with the nodal points that emerged from the two trajectories? With this question we have at last arrived at the final section of this chapter.
Common Law and Civil Law: Diaspora and Contamination
The question of rights
In order to radically redefine the problems confronted so far, the convergence of the perspectives must essentially concern two levels: a) the methodological level and b) the theoretical-comparative level.
a) On the methodological level: it is a case of grasping the effective depth of field of the crisis of the state by making the two trajectories outlined above, that is to say, the results internal to the doctrine (i.e., to strictly legal and political philosophy) and the results acquired by historical investigation, interact.
b) On the theoretical-comparative level: it is a case of visualising the latitude and complexity of the problems that assail the contemporary ‘polyarchies’ as a whole, comparing the ‘Continental model’ and the ‘oceanic model’, the experience of countries with a codified legal regime (civil law) and that of the anglophone countries with common law.
Both these operations are now unavoidable, if we are to effect a qualitative leap in our discussion and institute a not-subaltern confrontation with the great theoretical elaborations from abroad, which appears to us to be entirely obvious. It is certainly no accident that in international investigations (not only German, but also Anglo-American), in recent years, the prevalent concern has been with the process of transition and formation of sovereignty rather than with strictly doctrinal questions. It is enough to mention the renewed attention to the pioneering enquiries by William Maitland and John Neville Figgis, to the return to the great themes of ‘twin-born majesty’ or the ‘two bodies of the king’ tackled by Ernst Kantorowicz in a work that has since become a classic, or even to the revival of the institutionalism of Santi Romano and of Gierke’s Genossenschaftsrecht. All these are motifs that, by accentuating the aspect of originality and independence of the law from the state, solicit supplementary investigations of some of the ‘self-evident truths’ of the Continental doctrine and a closer comparison between legal and political traditions in which the Occident has ‘bifurcated’ in the thorny transitional phase from the Middle Ages to modernity. In view of current concerns, such a comparison appears unavoidable. This is all the more the case because – beginning in the 1920s and increasingly since the end of the Second World War – the boundaries between the two models have begun to fade and intermingle. We will limit ourselves to a schematic confrontation of the two models, considering, first, the question of fundamental rights, and second, that of subjects.
The dual movement of diaspora and contamination between the two great legal and political frameworks of the Occident is particularly instructive in relation to the question of the nature of fundamental rights. The crucial question is: what is the nature of fundamental rights? Is it a case of natural human rights, of customary rights or of positive rights? For example, if we take the Habeas Corpus Bill of 1679 or the Bill of Rights of 1689, which consecrates the Glorious Revolution of 1688, we must reply that the rights are not natural rights but, rather, traditional rights based upon common law. In fact, in neither bill do we find universal or abstract proclamations. To see these customary rights transformed into ‘natural’ rights, we must wait for the Bill of Rights of the American colonies, which rise up against English domination. In this respect – we must add – there is no substantial difference between the Déclaration (the Declaration of the rights of man and the citizen) voted by the French National Assembly in 1789 and the American Declaration of Independence. Both speak of natural rights that pre-date the pactum societatis that the state must recognise as ‘inalienable’ (in the American formulation) or ‘imprescriptible’ (in the French formulation). These differences of definition, which are important for the qualification of rights, are entirely indifferent with respect to the relationships between right and power. In fact, in both cases, rights (founded upon custom, as in the English bills, or on nature, as in the American Revolution) form/configure a pre-existing limit to political sovereignty.
The distance of the Anglo-Saxon from the Continental conception of law can be measured here in its entirety. In the tradition of legal positivism, fundamental rights are subjective rights conceded to individuals (or groups or communities) by the state. Thus, it is not an external limit of power, rather – to take up an expression adopted by Georg Jellinek in the System der subjektiven öffentlichen Rechte – of a ‘self-limitation’ of sovereignty. Furthermore, it is significant, even if only as a counterpoint, that the Grundgesetz, the Fundamental Law of the Federal Republic of Germany, does not provide for any constitutional revision for citizens’ rights. In this way, it overturns the entire German public law tradition founded on the theory of the ‘self-obligation’ of the state.
However, an essential difference between the two traditions also remains in relation to the institutional mechanisms for the protection of rights. In the countries in which civil law is present, such protection is assured by the division of powers and the ‘inclusive’ extension of the institutions of participation. In the countries of common law it is guaranteed by the constitutional limits approved by the legislature, thus, centrally, on the formula of ‘government of law’ or ‘rule of law’. In contrast, in the Continental model the formula of Rechtstaat, coined by German jurists in the nineteenth century, has ended up, under the influence of positivism, emptying the law from all evaluative content, flattening the crucial question of legitimacy in the determination of ‘effectiveness’, that is, on the factual existence of the law itself. Therefore, any really existing positive legal order is, by definition, a state-of-law.
We thus come to the final theme: subjects. We shall not be concerned with the merits of the debates on the rights of nations, that is to say, of the ‘subjective’ insurgencies on the international stage. The question, which for some time has been the object of important investigations, has been taken up – in Italian philosophy of law – by Luigi Ferrajoli with regard to the relations between ‘internal’ sovereignty and ‘external’ sovereignty.17 In strong agreement with some of the studies we have examined above, Ferrajoli makes the concept of ‘sovereignty’ coincide with the ‘course of that specific juridical-political formation that goes by the name of the state, which was born in Europe a little over four centuries ago and that has been exported across the whole of the planet in this century and that is today in decline’.18 From this premise, Ferrajoli develops three working hypotheses concerning the ‘aporias of the doctrine of sovereignty’. 1) An aporia internal to the theoretical constitution of sovereignty: the ‘construction of a natural law framework that served as the basis for the legal positivist conception of the state and of the paradigm of modern international law’.19 Therefore, at the origin of juridical modernity and in conflict with it, there lies a ‘premodern relic’. 2) An aporia concerning the history of sovereignty, that bifurcates in ‘two parallel and divergent paths’: whereas the course of internal sovereignty coincides with its ‘progressive limitation and dissolution’ through the constitutional and democratic state of law, the course of external sovereignty results, in its ‘progressive absolutisation’, in a system of international relations structured by the politics of power and by the ‘permanent threat of war and destruction for the future of humanity’. 3) An aporia inherent to the conceptual legitimacy of sovereignty, conditioned at root by the ‘irreducible antinomy between sovereignty and law’.20
Some problematic knots emerge from this dazzling reframing of the historico-theoretical problem of sovereignty, which we shall indicate in summary terms. First, to what extent is it possible to distinguish the legal positivist construction of the state and the consequent conventionalisation of sovereignty from the theological-juridical one? Second, to what point is it legitimate to interpret the history of sovereignty as an opposition between progressive internal limitation (on the plane of state law) and progressive external absolutisation (on the plane of international law) without rehabilitating natural law theory? Ferrajoli appears to be aware of these difficulties, since he affirms that the two processes constitutive of the modern state – secularisation and absolutisation – ‘invest both dimensions of sovereignty, the external and the internal, and are at one with the formation of the modern idea of the state as artificial person, as the exclusive source of law and, at the same time, as free from law’.21 Recourse to the tradition of natural right thus appears inescapable once it is a case of delineating an alternative to this model and to its aporetic implications. At the time of the ‘twilight’ of the statu nascenti, the alternative can be found in the idea of a world order hinging on the ‘natural rights of peoples’ developed, ‘well before the notions of internal sovereignty of Bodin and Hobbes’,22 by Francisco de Vitoria in the Relectiones at the University of Salamanca in the 1520s and 1530s.
Ferrajoli’s approach to the themes of sovereignty, subjects and rights involves very significant theoretical consequences for the present; consequences which it is not possible to investigate further here. To conclude, we will limit ourselves to a marginal gloss on a terminological question. We have the impression that the course of Ferrajoli’s argument has the paradoxical effect of rehabilitating – from a radically democratic angle – the German term Völkerrecht in contrast to that of ‘international law’. Indeed, taken literally, the expression ‘inter-national law’ signals a law between legitimate state-based and sovereign nations. That is, it implicitly presupposes the state system as given. In contrast, the German term Völkerrecht, which is a literal translation of the locution ius gentium, poses a problem – both ancient and new – that emerged in the (still pre-state-based) phase of transition to modernity: the problem of a law that was not only between states but also of peoples. We propose to reinterpret the judgement on the ‘extraordinary modernity’ of Francisco de Vitoria from the standpoint of the longue durée, which we have already tried to delineate by isolating the crepuscular elements of the ‘before’ and ‘after’, of the dawns and sunsets of the Leviathan. Ironically, this thinker’s proto-modern framework is fertile for us today, precisely because we are situated in a hypermodern (and post-Hobbesian) climate.
We are now at the crucial point. The question of subjects is, today, strictly interrelated with a new phenomenon in which the course of the two Western juridical and political traditions tend to converge: the pluralisation of sovereignty. This motif, familiar to the anglophone world since the nineteenth century has, since the 1920s, been at the heart of extremely important reflections on the European continent as well. We have already gestured towards the importance of institutional theory in Italy and France. We are convinced, however, that the very theme of ‘corporatist pluralism’ – which was in vogue in the United States around the 1970s23 – is largely anticipated (as was observed by a historian of the standing of Charles S. Maier) in the interwar debate in Germany and Austria.24 In our judgement, one of the high points of this debate is to be found in the concept of ‘collective democracy’ (Kollektive Demokratie) developed by Ernst Fraenkel,25 where the attention to the associative dynamic erupts into the ‘Continental model’ which possessed analogous exigencies to those that, in those very years, were being advanced by American social sciences.
Today, however, we are faced with phenomena of pluralisation that are far more intricate and complex. Whereas corporate pluralism – in the half century between the 1920s and the 1970s – referred to interest groups, the present-day phenomena of differentiation and pluralisation are produced by aggregates not only of interests but above all of values. For this reason the scene of pluralism – as its principal twentieth-century theorist, Isaiah Berlin, has indicated – appears to have substantially mutated due to the surging up of the culturally differentiated subjects, for whom culture is the identifying value par excellence. Thus, we are living in an epoch whose guiding star is Herder rather than Kant or Hegel. The demands advanced by these subjects – which in Europe manifest themselves in the form of ethno-politics and in America in the communitarian and populist critiques of liberal democracy – are not easily confronted by a political theory and praxis that is not prepared to put in question the ‘monist’ assumptions of its operations. For Berlin, such monist presuppositions do not only belong to the Continental European tradition but equally to the Anglo-Saxon tradition, which is so accustomed to ‘dealing with’ and governing conflicts of interests but not conflicts of identity. Not for nothing the battle cry of the various neo-communitarian positions is, in the United States, heard in the critiques of the universalising and homologating pretences of procedural liberalism (whose unmentioned metaphysical basis is said to be that of atomistic individualism). To the ‘rational kernel’, which this critique doubtless contains, answers the ‘mystical shell’ of the ‘ethics of authenticity’,26 for which cultural difference is something that – by definition – excludes any form of normativity. Berlin is an intellectual who is much more aware than the American communitarians. But for him cultural differences tend – following Herder – to present themselves as natural as well. That is to say, human nature has the faculty to differentiate itself culturally. Human nature supposedly involves a sort of ‘generative grammar’ of cultures, with the consequence that the distinction between ius naturae and ius gentium is suppressed.
Setting out from an objection, which in many respects is legitimate, to the philosophical presuppositions of the atomising individualism and of the political instruments of ‘procedural universalism’, the communitarian and ‘multicultural’ challenges issue in the affirmation of the community as ‘factual a priori’ 27 and as the only authentic, trans-individual subject of rights. The logical political translation of these premises can be nothing other than the constitution of ‘armour-plated’ differences, operating within the instrumental schema of iustitia commutativa that is resolved in a simple redistribution of ‘quotas’. Despite the proclaimed politics of difference, communitarianism ends up reproducing – as the American feminist Jean Cohen has correctly noted – all the risks of the politics of identity.
With these final comments we have reached the threshold of a yet more delicate and crucial question: that of the reconstruction of a democratic theory fit to confront the challenges of the present. The objective should be that of the reconstruction of a concept of ‘deliberative democracy’ that is distinct from the communitarian and from the procedural one; a concept, therefore, which is able to produce an effective interaction between universalism and difference, not merely a rhetorical one.
The work to be done is vast. As we have attempted to show, it requires not only a rethinking of the metamorphoses of the ‘political’ from the standpoint of a ‘historical sociology’. More important, it demands a drawing together of different theoretical traditions and styles of analysis. Above all, it demands an innovative effort that is capable of projecting juridical and political reflection beyond the theoretical and practical confines of the modern state. That is to say, beyond the horizon of the Leviathan.
But we must question whether the problem before us is so far away from the needs expressed by Michel de l’Hôpital in 1562 on the eve of the Huguenot wars: ‘How it is possible to live together is what matters, not what the true religion is.’
1Alexander Passerin d’Entrèves, The Notion of the State, p. 29.
2Ibid., p. 33.
3For confirmation of its success outside Italy, see Ulrich Matz, ‘Staat’.
4Paolo Grossi, L’ordine giuridico medievale.
5See Giacomo Marramao, Dopo il Leviatano. Individuo e comunità, pp. 326 ff.
6Carl Schmitt, Political Romanticism.
7Translator’s note: See Georg Henrik von Wright, Practical Reason; in particular the essay ‘Norms, Truth, and Logic’.
8Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europæum.
9Voltaire, Treatise on Tolerance and Other Writings, p. 48.
10Ibid., p. 28.
11Otto Hintze, ‘Wesen und Wandlung des modernen Staats’; Otto Brunner, Land und Herrschaft.
12Translator’s note: This distinction, between the Rights State (Stato-di-diritto) and the Social State (Stato sociale), roughly translates as the Liberal state and the Keynesian state.
13See Marramao, Dopo il Leviatano, pp. 327–28.
14Norberto Bobbio, Which Socialism?, p. 82.
15Stefano Rodotà, Tecnopolitica.
16Translator’s note: In English this has been translated as The End of the Nation-State rather than as, more literally, The End of Democracy (La fin de la démocratie).
17Luigi Ferrajoli, La sovranità nel mondo moderno.
18Ibid., p. 8.
19Ibid.
20Ibid., pp. 8–9.
21Ibid., p. 20.
22Ibid., p. 11.
23Schmitter, Lehmbruch and Berger, to mention just some of the most important thinkers in this respect.
24Charles S. Maier, Recasting Bourgeois Europe.
25Translator’s note: See Ernst Frankel, ‘Kollective Demokratie’.
26Charles Taylor, The Ethics of Authenticity.
27Karl Otto Apel, The Transformation of Philosophy.