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did)125 “ invites urgent enquiry into the concepts behind those norms and laws
which have created and legitimated such mass dehumanisation and carnage.
Global counter-e¬orts aspire to entrench peace through new normative ideolo-
gies and interrelationships after the collapse of the ideologies of communism
and fascism.126 The preambles to the major international treaties of our age,
characteristic of globalisation and law, are over¬‚owing with moral exhortations
to improve on what has been the most humanly destructive century ever, as we
shall see in chapter 10. Like the blood sacri¬ces associated with the biblical
covenants, the sacri¬ce of the soldiers and civilians of the twentieth-century
World Revolution must give sanctity and memory to the important new
transnational agreements, re¬‚ective of the survivors and their ultimate realities
and meanings upon which the legal initiatives were founded.
A jurisprudence which seeks, ¬rst, to understand the impact of globalisation
on the legal order,127 and, secondly, to provoke attitudes to norms and law which
might make di¬cult a repeat of the carnage of the World Revolution, will need
to appreciate the construction of authority in terms of social space and histor-
ical time. In later chapters, that authority will be evaluated in di¬erent periods

123
See Berman, Law and Revolution, pp. 25“8.
124
Ernst Kantorowicz, The King™s Two Bodies: A Study in Medieval Political Theology (New Jersey:
125
Princeton University Press, 1957), p. 274. Davies, Europe, p. 897.
126
For a view of the disaster of twentieth century Europe as an ideological product (and for
polemical critique of current developments), see Robert Conquest, Re¬‚ections on a Ravaged
Century (New York: Norton, 2000).
127
On this necessity, see Walker, ˜Constitutional Pluralism™, 334“6.
51 Globalisation and the World Revolution


of history to understand Western patterns of law and authority. Law, in the
West, has never come only from one place. Never has it rested upon static beliefs
about what constitutes ˜law™, nor has there been enduring, widespread accep-
tance that territorial boundaries must enclose a centrally declared legal system.
As we shall see in the next chapter, law in the West requires deep-order legiti-
macy. It obtains that legitimacy, dynamically, from within the cultural, private
societies of peoples and not just the public, external, political constitution of
the state. These societies, with their diverse views of history and the future, are
proliferating at all levels in association with globalisation, rendering apprecia-
tion of the construction of legal legitimacy and responsibility vital to a general,
globalist jurisprudence.
3

Law and authority in space and time




At least so far as law is concerned, reality wears a mask in the shape of ˜the here
and the now™. Space (not just ˜the here™) and time (not just ˜the now™) must be
explored to understand law and authority properly. In furtherance of the his-
torical and normative general jurisprudence with which to evaluate patterns of
law and authority relevant to globalisation, this chapter proposes a theory
which contemplates the space and time dimensions of law and authority. I call
this ˜the Space“Time Matrix™, drawing on writings of Eugen Rosenstock-
Huessy. If there is a third dimension of human being, then it would be the spir-
itual or metaphysical dimension. That too is explored, under the heading of
˜ultimate reality and meaning™. This dimension can only ever be revealed to
humans at some spatial location in society (for example, to a loner on a moun-
tain or in a room full of people) and at points in time. This is contemplated by
the Space“Time Matrix.
Frequent references will be made to this model in the balance of this book. It
grounds the way I attempt to make sense of law and authority, historically and
normatively. Assertions in this chapter need not all be accepted, though, for the
purpose of the historical jurisprudence proposed and the historical discussion
which occupies the balance of the Parts of this book. It will su¬ce if the present
chapter conveys law and authority as morally, culturally and politically con-
structed (that is, spatially on the ˜Space Axis™) by reference to experiences and
expectations of the future (that is, temporally, on the ˜Time Axis™). This chapter
may, however, prove helpful, in and of itself, for developing a normative
jurisprudence (that is, a principled approach to the consideration and deploy-
ment of law) in the face of the challenges of globalisation.


3.1 Normative foundations of a historical jurisprudence
Our observations in connection with globalisation forbid con¬nement to
the state of a legal consideration of authority. Rather, resort must be had to the
ultimate reality and meaning which underlies social authority and conceptions
of right and wrong. With an appreciation of fundamental authority then in
hand, we can move to a normative jurisprudence. This will pro¬er individ-
ual self-consciousness, expressed as an ˜autobiographical attitude™ (not to be
53 Law and authority in space and time


mistaken for individualism), to be an essential ingredient to successful con-
stitutionalism.


3.1.1 Ultimate reality and meaning
Ignorance of the constitution of society by individuals and the reciprocal social
construction of the individual may have resulted in law being distant and, for the
most part, morally irrelevant to individuals in modern social history. That may be
one factor contributing to the World Revolution: a number of centuries of increas-
ingly national, individualistic philosophy. Individual responsibility was alienated
from the domestic legal order. Individual responsibility and international law did
not go together because international law related to states, not individuals. Laws
were technical rules to be exploited. Generally, laws were not a part of one™s moral
existence “ they came only from the distant state. They had grown unrelated to the
individual™s sense of ultimate reality and meaning. Human disenchantment with
the social world was re¬‚ected in Nietzsche™s famous aphorism towards the end of
the nineteenth century, ˜God is dead™.1 In fact, Western perceptions of ultimate
reality and meaning were generally changing. Ultimate reality, or God, was gener-
ally not perceived to be connected to the nature of law at that time.
Some justi¬cation is required before asserting that God, gods or religions
change and resurface in societies where, and times when, reference to such
deities or ultimate reality and meaning is not commonly made. It is really a
matter, from the Western Judeo-Christian perspective, of equating ˜God™ with
˜ultimate reality and meaning™ and then noticing that every conscious person in
every culture has some sense of what the meaning of life is all about. The con-
scious person can therefore be said to acknowledge some sense of ultimate
reality and meaning. ˜Ultimate Reality and Meaning™ is actually a term of art
used by interdisciplinary and cross-cultural scholars interested in collectively
pursuing the idea in their studies. As such, ˜URAM™ has been described as ˜that
to which the human mind reduces and relates everything: that which man
does not reduce to anything else™.2 This notion is compatible with the Judeo-
Christian God. The Tetragammaton, the Hebrew ˜YHWH™ pronounced
˜Yahweh™, translates to such a notion, although personi¬ed.3 It means ˜I am who

111
Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for None and All, trans. Walter Kaufman
(Harmondsworth: Penguin Books, 1978), p. 259. Nietzsche™s philosophy suggests that God
was never alive. Cf. ˜death of God™ theology since the 1960s which has emphasised the
hiddenness and mysteriousness of God: see Daniel J. Peterson, ˜Speaking of God after the
Death of God™ (2005) 44 Dialog: A Journal of Theology 207“26.
112
Ronald Glasberg, ˜The Evolution of the URAM Concept in the Journal: An Analytic Survey of
Key Articles™ (1996) 19 Ultimate Reality and Meaning 69“77, 70 citing Tibor Horvath in the
¬rst issue of the journal. My use of such deconstructed conceptualism is not intended to
eschew the richness of accounts of the personhood of God.
113
See Exodus 3: 14“15: ˜And God said to Moses, “I AM WHO I AM . . . Thus you shall say to the
children of Israel: ˜The LORD God of your fathers, the God of Abraham, the God of Isaac,
and the God of Jacob, has sent you. This is My name forever, and this is My memorial to all
generations . . .™ ” ™ [original italics, NKJV].
54 Towards a Globalist Jurisprudence


I will be™ or ˜I will be who I am™ or ˜I will be who I will be™.4 As such, this is a
Being whose essence is its existence, given that it is de¬ned by reference only to
its complete self “ a perfect Be-ing. As St Thomas Aquinas wrote in the middle
ages following from St Anselm, by the name God ˜is signi¬ed that thing than
which nothing greater can be conceived™.5 As such, a notion of God or ultimate
reality and meaning is a type of cultural default answer to questions which may
be too hard to answer using conventional human logic: ˜Because that™s how God
created the world™. Even with all of his science, in the seventeenth century when
Newton had calculated the orbit of planets around the sun, he could not explain
why the solar system was stable. His answer was to say ˜God keeps watch over
the system.™6 Such phenomena are reducible no further, just as the ¬nal irre-
ducible answer which could be given by the adult to our inquisitive child in
chapter 1 was that law is obeyed to enable people to earn money to feed chil-
dren,7 implicitly perpetuating an economics- or Mammon-driven world as its
functional equivalent of God. In earlier times, the answer might have been
˜because God requires it™.
Any person who engages in activity aspiring to ultimate reality and meaning
is being theological or philosophical. ˜The power which makes the atheist ¬ght
for atheism is his God.™8 As theologian Karl Barth has expressed the issue:
For this reason, there are many kinds of theologies. There is no man who does not
have his own god or gods as the object of his highest desire and trust, or as the
basis of his deepest loyalty and commitment. There is no one who is not to this
extent also a theologian. . . . There is no philosophy that is not to some extent also
theology. Not only does this fact apply to philosophers who desire to a¬rm “ or
who, at least, are ready to admit “ that divinity, in a positive sense, is the essence
of truth and power of some kind of highest principle; but the same truth is valid
even for thinkers denying such a divinity, for such a denial would in practice
merely consist in transferring an identical dignity and function to another object.
Such an alternative object might be ˜nature™, creativity or an unconscious and
amorphous will to life. It might also be ˜reason™, progress, or even a redeeming
nothingness into which man would be destined to disappear. Even such appar-
ently ˜godless™ ideologies are theologies.9


114
Karl Barth, ˜The Place of Theology™ reprinted in Ray S. Anderson (ed.), Theological
Foundations for Ministry: Selected Readings for a Theology of the Church in Ministry
(Edinburgh: T.&T. Clark Ltd, 1979), p. 33. In Taoism: ˜Man takes his law from the Earth; the
Earth takes its law from Heaven; Heaven takes its law from the Tâo. The law of the Tâo is its
being what it is.™ Tâo T©h King, cited in Philip Allott, Eunomia: New Order for a New World
(Oxford: Oxford University Press, 1990), part 1 cover page.
115
St Thomas Aquinas, Summa Theologica, in Anton C. Pegis (ed.), Introduction to St Thomas
Aquinas (New York: The Modern Library, 1948), p. 21. See too generally Questions II (˜The
Existence of God™) & III (˜On the Simplicity of God™), pp. 21“33.
116
Moshe Kaveh, ˜Faith and Science in the Third Millennium™ in Eshkolot: Essays in Memory of
Rabbi Ronald Lubofsky (Melbourne: Hybrid Publishers, 2002), p. 313.
117
See ch. 1, p. 2 above.
118
Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938] (Oxford:
9
Berg, 1993), p. 725. Barth, ˜Place of Theology™, pp. 22“3.
55 Law and authority in space and time


Whilst such thinking might be too essentialist for some who may take semantic
objection to the employment and imposition of the nouns ˜God™, ˜theology™ or
˜philosophy™ on all humanity, it does not actually impose a belief or set down a
single lifestyle for the pursuer of insight. That is, no single ontology is being
imposed; rather, the inevitability of adopting an ontology is acknowledged. The
way I am using such terms here is merely to suggest that concern with ultimate
reality and meaning is a universal human tendency, upon which authority will
be grounded and explained.
A constitution can be thought about as a manifestation of ideas formed by a
society about the relationship of its social order to divine order, sovereignty of
law, natural cosmic order and/or natural social order,10 all of which are concepts
which presuppose ultimate reality. It is from an individual™s culturally devel-
oped conception of God, or ultimate reality and meaning, that notions of
reality, justice, right and wrong will originate. God and functional equivalents
have featured representations of speci¬c human social ideals and characteris-
tics, like the Thracian red-haired, blue-eyed God; the black, snub-nosed gods of
the Ethiopians;11 and drawings of a European-looking Jesus with long hair.12
The history of Western Christianity, with its reformations, tells the story
of changing perceptions of God and justice, with evolving human ideals.
Authority changes in line with the evolution of notions of ultimate reality and
meaning.
Thus written, this chapter and indeed this book will employ a general notion
of God and ultimate reality and meaning in discussions about authority and
allegiance, even in the context of secular societies in more recent times
(arguably orientated towards a new god, being that of economic progress or
Mammon). As Niklas Luhmann noted, law requires principles which give
meaning to the ˜right answers™ which law produces: for example, this may take
the form of ˜the will of God™ or ˜the maximisation of welfare™.13 With the notion
of God and ultimate reality and meaning in place, we can now begin to analyse
the way authority is constructed and might be improved in legal systems.
Authority and allegiance are moral notions located in the socially constructed
individual. Law is dependent upon tapping into ultimate reality and meaning
as the moral, metaphysical grundnorm or foundation, if law is to be more than

110
Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge: Cambridge
University Press, 2002), [12.30].
111
Xenophanes, quoted in Robin Horton, Patterns of Thought in Africa and the West: Essays on
Magic, Religion and Science (Cambridge: Cambridge University Press, 1995), p. 424.
Xenophanes observed that ˜if an ox could paint a picture, its god would look like an ox™:
Allott, Health of Nations, [12.49] n. 49, citing Dodds, The Greeks and the Irrational.
112
Jesus was of course Jewish and was likely to have been swarthy in the manner at that time of
the inhabitants of the Holy Land, almost certainly with the ˜well trimmed™ hair required by
Ezekiel 45: 20. On the anthropomorphic projection of the Christian God from human ideals,
see Ludwig Feuerbach, The Essence of Christianity, trans. George Eliot [1851] (Amherst:
Prometheus Books, 1989).
113
Niklas Luhmann, Law as a Social System, trans. K. A. Ziegert (Oxford: Oxford University
Press, 2004), p. 429.
56 Towards a Globalist Jurisprudence


just the untrammelled exercise of power. The social construction of the indi-
vidual is therefore vital to the enterprise of understanding law. As will be shown,
the individual™s activity in, or contemplation of, her or his social location in this
world of norms is crucial to advancing law meaningfully.


3.1.2 Social activity as autobiography
It is the beginning of the World Revolution. Picture a German law professor
¬ghting in the trenches of Verdun in 1917. Shells explode loudly and painfully.
Corpses litter the landscape. European air is thick with the su¬ering of tens of
millions of people. Eugen Rosenstock-Huessy is the name of this law professor.
After World War I he confessed that he had to try to understand this episode in
what he termed ˜the Suicide of Europe™. Like a seed germinated by a bush¬re,
Rosenstock-Huessy could not stare at history as a spectator “ not as a law pro-
fessor at Breslau, then a lecturer in German art and culture at Harvard, nor as
a teacher of social philosophy at Dartmouth College. The history of Europe was
a short story “ not more than twenty-seven generations when Rosenstock-
Huessy wrote in the 1920s and 1930s.14 When history and social life are thought
about as a generational project “ of our children, parents and grandparents and
their parents and societies, the sub-title of Rosenstock-Huessy™s work on
European history, Autobiography of Western Man, makes sense. He felt com-
pelled as a human being to try to work out his own role, and individuals™ roles,
as members of the warring societies, to attempt in the future to avoid the mass
horror of war. This required conscious thought and examination of the histor-
ical construction of the authority and social norms which had failed European
societies so badly.
We are all autobiographers.15 We are all writing accounts of the lives we lead,
whether or not we do so consciously. We all inadvertently present our stories to
the world and invite judgement upon ourselves every time we, in the West, leave
the front door. Speech and writing are implicated in this struggle for survival
and signi¬cance, which is observed, biographically, and responded to by society.
Our only references are the words of fellow humans in the present and words
recorded from the past. Music, art and the performing arts contribute to this
signi¬cance, but they are inarticulate unless they are lyrical “ that is, unless they
contain words with objective-orientated meaning. In her analysis of the alien-
ation of social activity from human thought, Hannah Arendt observed that
˜Men in the plural . . . can experience meaningfulness only because they can talk

114
Rosenstock-Huessy, Out of Revolution, pp. 6“12.
115
See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), p. 97:
˜The chief characteristic of this speci¬cally human life, whose appearance and disappearance
constitute worldly events, is that it is itself always full of events which ultimately can be told as
a story, establish a biography . . . For action and speech . . . are indeed the two activities whose
end result will always be a story with enough coherence to be told, no matter how accidental or
haphazard the single events and their causation may appear to be.™
57 Law and authority in space and time


with and make sense to each other and to themselves.™16 At once speech and lit-
eracy become the only media for the conscious, articulate participation in sig-
ni¬cance. The unit of signi¬cance is the word, carried in speech.
Philip Allott emphasises the signi¬cance of words and speech uniquely
amongst legal philosophers. ˜We live and die for words; we create and kill for
words; we build and destroy for words; wars and revolutions are made for words.
Sovereignty, the people, the faith, the law, the fatherland, self-determination,
nationality, independence, security, land, freedom . . .™17 ˜Everything in the
world “ the physical world and the world-of-consciousness “ has, within moral
reality, its own moral signi¬cance. Nothing is without moral signi¬cance “ no
word, no idea, no theory, no value, no willing, no acting.™ Indeed, the printed
page releases energy.18 As we all crave signi¬cance, although by varied means,
signi¬cance as a concept emerges as a focus for enquiry. In attempting such a
study, investigation must be carried out into how right and wrong, good and
bad, mean something through words and their use.
Of what relevance is this to law? Law is composed of norms in word form.
Additionally, as soldiers are responsible for ¬ghting wars, lawyers and their
writings contribute to the starting of wars (that is, by theorising whether a state
of a¬airs is illegitimate if not illegal) and to the ending of wars (that is, by facil-
itating settlement on normative terms). Similarly, lawyers are responsible in this
fashion for starting and ending litigation or conveyances of property. That is
not to say that lawyers are the cause of wars, or the authors of their conclusion,
any more than soldiers keep them going. Politicians, governments and their
constituencies bear that responsibility, just as clients cause litigation and
conveyances. Lawyers, though, as the only social group expertly trained in
authoritative norms, bear a responsibility for advancing the rules of con¬‚ict as
a technology. Such special norms (which we recognise as ˜laws™) should make
more di¬cult the waging of war and easier the possibility for creating peace,
encouraging the pursuit of virtue independent of coercion.
Not just lawyers but everyone requires an autobiographical awakening and
realisation of the moral power of personal action. Lawyers, especially, must be
alert to the rules they work with. As Allott writes, ˜[t]he universe is altered for
all time by the existence and acting of every human individual™.19 Everyone is
responsible for society through everything he or she says, does and thinks. This
statement is as true for communism as it is for liberalism, given that the unit of

116
Arendt, Human Condition, pp. 4, 50; see too Frank G. Kirkpatrick, A Moral Ontology for a
Theistic Ethic: Gathering the Nations in Love and Justice (Aldershot: Ashgate, 2003), ch. 5.
117
Allott, Eunomia, [1.10]; see too his Health of Nations, p. x and [3.17].
118
Allott, Eunomia, [6.56], [8.21].
119
Allott, Eunomia, [3.7]. Allott also writes of the possibility that there is no frontier between
personal psychology and the social psychology of the nation: Allott, Health of Nations, [4.82],
[5.3]. On the self-critical, autobiographical attitude required for these times, see Abdullahi A.
An-Na™im, ˜Globalization and Jurisprudence: An Islamic Law Perspective™ (2005) 54 Emory
Law Journal 25“51, 41; and, more popularly, Michelle P. Brown and Richard J. Kelly (eds.),
You™re History: How People Make the Di¬erence (London: Continuum Press, 2006).
58 Towards a Globalist Jurisprudence


all human social order is the individual. Spraying deodorant with CFCs in New
York may contribute to skin cancer deaths in Chile; driving a car may lead to
lethal ¬‚oods in Bangladesh through ozone layer depletion.20 The need for the
self-conscious exercise of individual responsibility for the world has never been
more apparent than now in the increasingly interconnected world represented
by globalisation. Especially is this so, if one accepts the frequent criticism that
globalisation provides an excuse for state governments to abrogate economic
management to treaty-based formulas which tend to reward free trade at the
cost of other values.
Two propositions emerge, if law is to work meaningfully and e¬ectively. First,
law must appeal to the individual. Second, the individual must think outside
individual interests. A normative jurisprudence must cultivate these proposi-
tions, now pursued.


3.2 The Space“Time Matrix
Conventional positivist jurisprudence assumes that law proceeds as an instru-
ment which can be wielded with varying degrees of success to accomplish social
goals. Law, on that understanding, comprises rules sancti¬ed by bureaucracy
which are legislated, judicially considered, enforced by the executive and/or
applied by lawyers. Law is a tool of the arms of government, these being legis-
lature, executive and judiciary (including lawyers who are o¬cers of the court).
Law in this scheme is assumed to have ˜objective™ qualities, beyond the in¬‚uence
of individuals other than through the democratic processes of government. Yet
this is only one appearance of the reality of law, ignoring arbitration, voluntary
codes, religious laws, employer policies, university regulations, indigenous laws
and myriad other normative systems which radiate authority for constituents
of those societies.
A project for understanding law more accurately, in such socially constructed
terms with the individual as the basic unit, can borrow for its foundation the
criticism of the claims to objectivity of modern science made by mathematician-
turned-philosopher Edmund Husserl. Theory which attempts to go beyond
mere technical mastery or use of a discipline such as law must admit and account
for the multiplicity of subjective appearances of reality. As Husserl observed, this
is most di¬cult for the mathematician or the natural scientist who is usually ˜at
best a highly brilliant technician of the method™, totally immersed in the objec-
tivity of the venture. The same may apply to the lawyer. The scientist of the world
must, however, develop ˜the ability to inquire back into the original meaning of

120
Peter Singer, One World: The Ethics of Globalisation (Melbourne: Text Publishing, 2nd edn
2004), p. 22. On the challenges to the legal concept of proximity and negligence posed by
globalisation, see William Twining, ˜Globalization and Legal Theory: Some Local
Implications™ (1996) 49 Current Legal Problems 1“42, 32, 34; M. Galanter, ˜Law™s Elusive
Promise: Learning from Bhopal™ in Michael Likosky (ed.), Transnational Legal Processes
(London: Butterworths, 2002).
59 Law and authority in space and time


all his meaning-structures and methods, i.e., into the historical meaning of their
primal establishment, and especially into the meaning of all the inherited mean-
ings taken over unnoticed in this primal establishment, as well as those taken
over later on™ “ and this must not simply be rejected as ˜metaphysical™21 [original
italics]. This is termed by Husserl ˜a return to the naïvet© of life “ but in a re¬‚ec-
tion which rises above this naïvet© . . . to overcome the “scienti¬c” character of
traditional objectivistic philosophy™.22 This returns us to our ˜how?™ enquiry: that
is, how is meaning bestowed in science,23 or law.
Applying this scienti¬c technique to law, the data for investigation are com-
munications. Rosenstock-Huessy™s ˜grammatical method™ or ˜cross of reality™
provides a key to understanding the human constitution of society and the
society™s constitution of the human. Essentially, humans are socially deter-
mined and society-determining creatures through their communications,
which can be mapped according to four orientations on two axes. They are:
close social relations (interior) versus distant social relations (exterior) on the
Space Axis; and history versus the future on the Time Axis.24
Diagrammatically, these normative in¬‚uences by which the individual is
located in society can be expressed on the Space“Time Matrix; see ¬gure 3.1.
Each axis will be elaborated below in some detail, beyond the suggestive
model o¬ered by Rosenstock-Huessy, to attempt to understand the bestowal of
authority. In summary, the individual is caught between, on the Space Axis,
extremes ranging from, at the interior end, an insane ability to relate only to
oneself which is otherwise acceptable only in earliest childhood, moving along
the axis to relating to one™s parents, broader family, neighbourhood, moving
outward to the exterior social realms such as, in the West, local community,
school, bureaucracies, government and, possibly at the outmost exterior
extreme, jail, where (assuming a just conviction) legal norms of su¬cient
gravity have failed to receive obedience from the individual. This is the interior
construction of personal morality versus the exterior construction of politics.25

121
Edmund Husserl, The Crisis of European Sciences and Transcendental Phenomenology, trans.
David Carr (Evanston: Northwestern University Press, 1970), pp. 56“7.
122
Husserl, Crisis, p. 59.
123
Ibid., pp. 146“7: ˜In opposition to all previously designed objective sciences, which are sciences
on the ground of the world, this would be a science of the universal how of the pregivenness of
the world, i.e., of what makes it a universal ground for any sort of objectivity. And included in
this is the creation of a science of the ultimate grounds [Gründe] which supply the true force of
all objective grounding, the force arising from its ultimate bestowal of meaning.™
1
See too chapter 1, pp. 2“3 above.
124
See Eugen Rosenstock-Huessy, Speech and Reality (Norwich: Argo Books Inc., 1970), pp. 18,
52; and his The Christian Future; or, The Modern Mind Outrun (New York: Harper Torch,
1966), ch. 7.
125
See generally Immanuel Kant, ˜Perpetual Peace: A Philosophical Sketch “ Appendix 1: On the
Disagreement Between Morals and Politics in Relation to Perpetual Peace™ in Hans Reiss (ed.),
Kant: Political Writings, trans. N. B. Nisbet (Cambridge: Cambridge University Press, 1970,
2nd edn 1991), pp. 116“25; Jerome Hall, Foundations of Jurisprudence (Indianapolis: Bobbs-
Merrill Co., 1973), p. 117. See too Bikhu Parekh and R. N. Berki (eds.), The Morality of Politics
(London: George Allen & Unwin Ltd, 1972).
60 Towards a Globalist Jurisprudence


(politics-based)
EXTERIOR




space HISTORY FUTURE
individual
(conservative) (radical)



INTERIOR
(personal morality-based)



time
Fig. 3.1 The Space“Time Matrix.


This type of social conditioning process is arguably universal, concerned as it is,
like Philip Allott™s Eunomia, with emphasising ˜the internal points of reference
of each developing human mind™, not the ˜external points of reference of any
particular culture™.26 That is, the individual awakens to the society (the society
does not awaken to the individual) in a universal social process. On the Time
Axis, individuals can only measure or calculate activity by reference to norms
derived from the past or hoped for in the future. The extreme conservative will
look only to the past for norms, whilst the extreme radical will only look for
norms in a vision of the future.
Social con¬‚ict and alienation from norms or laws occur when there is an
imbalance in the orientation of norms on this matrix for the individual “ for
example, the norms break too radically from the past and do not have interior
moral appeal. For widespread allegiance to norms and respect of authority,
there must be widespread appeal to the individual in all four orientations. That
will not necessarily make all law good, but it will make law more meaningful.
We have already noted Einstein™s theory of the relativity of time and space as
a symbol which may have helped to account for the emerging consciousness of
globalisation as a concept.27 Anthony Giddens has observed that globalisation
is characterised by the radical transformation of space and time. Time and space
have become ˜disembedded™28 from the social world. Time is now signi¬cantly
abstracted from the life cycle as seasons and daylight matter increasingly less to

126
Allott, Eunomia, p. xxii. See generally his ch. 8 (˜The Dimensions of Reality™) for an exposition
of time and space as providing the basic normative orientation for consciousness.
127
See ch. 2, section 2.1.1, p. 26 above.
128
Anthony Giddens, The Consequences of Modernity (Stanford: Polity Press, 1990), pp. 17“21.
61 Law and authority in space and time


human activity; and in the age of jet travel and virtual video meetings, space has
become abstracted from place. Communications technology has allowed inter-
course to be quickened to the pace of spontaneous urgency, no matter the time
or where one is in the world “ at work, privately engaged, at home or abroad “
from which there may once have been the solace of surface or even air mail
delivery, and more patient social expectations. To understand the authority of
any time, in any place, it is necessary to appreciate the constitution of that
authority as a matter of its societal (space) dimension and its historical (time)
dimension, including the actual attitude to, and utilisation of, time in the
present.
It is perhaps a poetic coincidence that a focus on ˜space and time™ as a matter
of jurisprudence just so happens to be relevant to globalisation in a way which
is becoming established in the scholarly discourse on globalisation. This
jurisprudential technique will be used in future chapters to attempt to under-
stand normative authority in the past millennium, and, most importantly, now.


3.2.1 The Space Axis: personal morality versus politics
Enquiry into authority begins even earlier than with our inquisitive child in
chapter 1. It begins with the baby. If Rousseau was correct to say ˜the ¬rst tears
of children are prayers™, it was because babies have complete reliance on a power
beyond themselves for their very survival.29 Human babies are spectacularly
underdeveloped compared with the babies of other higher mammals, both
physiologically (a great deal of physical development occurs outside the womb
compared with other mammals) and in terms of drives and instincts.30 Many
babies need to be taught to fall asleep! A distinctive attribute of being human is
that conditioning and education are required by our very nature. The human
condition cannot be separated from human conditioning. Crucially, that social
conditioning begins with being called a name.
Naming is the fundamental normative act. It is in the act of naming a human
that it ¬rst becomes a someone with a sense of identity and a consciousness of
her or his own being.31 Early on, ideally, the infant is made to feel secure in the
world and is addressed by parents with the second person singular pronoun
˜you™ together with the name, in the imperative.32 Ben, show us how you walk;
You wave goodbye to Aunty Jane; or, Don™t pick your nose! Parents, or perhaps

129
Jean-Jacques Rousseau, Émile; or, Treatise on Education [1762], trans. William H. Payne
(Amherst: Prometheus Books, 2003), p. 30.
130
Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the
Sociology of Knowledge (Harmondsworth: Penguin, 1966), p. 66. ˜We are born weak; we have
need of strength: we are born destitute of everything; we have need of assistance: we are born
stupid; we have need of judgment™: Rousseau, Émile, p. 2.
131
This is recognised in Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the
European Commonwealth (Oxford: Oxford University Press, 1999), p. 163.
132
See Eugen Rosenstock-Huessy, Practical Knowledge of the Soul, trans. Mark Huessy and Freya
von Moltke (Norwich: Argo Books, 1988), p. 16; and his Christian Future, p. 37.
62 Towards a Globalist Jurisprudence


extended families, depending upon the culture, are God (in the sense of ˜ulti-
mate reality and meaning™) to the infants, de¬ning as they do the expectations
of, and possibilities for, the normative world of the infant.33 That is, there is
nothing capable of greater conceptual reduction for the child than the parents:
the world begins and stops with them. The ¬rst people and things we learn to
name are the most intimate, and the order of naming and hearing names gen-
erally coincides with the unfolding of the parameters of our social space on the
Space Axis. Infants begin by responding to their own names (as do some of the
more intelligent animals), then they learn to name their parents and family and
household, as well as some things like milk and food. In the construction of this
normative world, infants are addressed by ¬gures naturally authoritative, being
parents. Parents™ imperative commands earn allegiance for the fact, ideally, of
their capacity to nurture. The parents are absolute sovereigns in the household
sphere of containable disruption (although that ˜sovereignty™ is lost only too
soon, as most parents will vouch).
The origin of our humanity, in speech and the development of norms, is
therefore in the interior space. St Augustine elaborated this theme from an
(imaginatively extrapolated) account of his own childhood:
For when I tried to express my meaning by crying out and making various sounds
and movements, so that my wishes should be obeyed, I found that I could not
convey all that I meant or make myself understood by everyone whom I wished
to understand me. . . . I noticed that people would name some object and then
turn towards whatever it was that they had named. I watched them and under-
stood the sound they made . . . [s]o, by hearing words arranged in various
phrases and constantly repeated, I gradually pieced together what they stood for.
. . . I took a further step into the stormy life of human society34

Gradually we become conscious of a more exterior world outside the family
household, stepping beyond the neighbourhood, to shops, and beyond shops
to schools and bureaucracies which unfold at the exterior end of social space.
Classical Roman law, ¬nalised in the sixth century CE and so in¬‚uential on
the Western legal tradition, appears to have evolved in the manner suggested by
the Space“Time Matrix. Roman law re¬‚ected the blossoming of the human
consciousness from Greek thought into the concept of self and other. The pro-
gressive recognition by Roman law of persons, things and then actions corres-
ponds to the movement from the more intimate to the less intimate (or, as we
saw with the help of St Augustine, the progressive recognition by the child of
the surrounding world). This tripartite Roman scheme represents the progres-
sive evolution from persons to things and then to actions, which corresponds to


133
This is a variation upon what Goethe wrote in Pandora (˜A father is always a god™), according
to Rosenstock-Huessy, Practical Knowledge, p. 16. Furthermore, God™s relationship with his
people is portrayed in this way, in Isaiah: 43: 1 (NKJV): ˜Fear not, for I have redeemed you;
I have called you by your name; You are Mine.™
134
Saint Augustine, Confessions, trans. R. S. Pine-Co¬n (Harmondsworth: Penguin, 1961), p. 29.
63 Law and authority in space and time


the linguistic evolution from subject (person), object (thing) and verb (facili-
tating relations between person and thing “ subject and object).35 Possibly this
reveals something of the structure of Christian theology too.36
The fundamental naming process and learning of speech occurs intimately
in a moral world and within the reach of family and teachers. Often there will
be a deep sense of moral commitment to that world, if only because the child is
still ˜innocent™. Under the gaze of the parent power-holder, that commitment
will probably arise out of a sense of guilt at doing wrong37 or pleasure at doing
right.38 Notwithstanding, an authentic existence requires orientation to norms,
if only because there would otherwise ensue the individual™s developmental
dysfunction and ultimate rejection from society. Ideally, there is education into
a critical, meaningful relationship with those norms. Far from lacking any legal
quality, the norms which arise from this household and associational life are
vital to the very substance of law.
Moving along the Space Axis to societal relationships, there is an inner order
or ˜living law™, shaped by the ˜living law of economics™39 which creates mech-
anisms of human social survival “ possession, private contracts, inheritance,
corporate articles of association and family.40 Meaning for that living law is still
able to be generated by religion, education, art, science, social life and enter-
tainment41 “ it is not simply economic. In the West, more external sources of
law, chie¬‚y from the state, do however come to supplant the economic, house-
hold normative foundations of law (in the Ancient Greek etymological sense of


135
See Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1990), pp. 9, 52, 255“7.
136
Kelley, Human Measure, pp. 118“19. Contra J. Witte, ˜From Homer to Hegel: Ideas of Law and
Culture in the West™ (1991) 89 Michigan Law Review 1618“36, 1634. Cf. Harold J. Berman,
˜Law and Logos™ (1994) 44 DePaul Law Review 143“65, 150“3.
137
See Sigmund Freud, Civilization and its Discontents, trans. James Strachey (New York: W. W.
Norton & Co., Inc., 1961), pp. 70“86. ˜Civilization, therefore, obtains its mastery over the
individual™s dangerous desire for aggression by weakening and disarming it and by setting up
an agency within him to watch over it, like a garrison in a conquered city™ (pp. 70“1).
138
Foucault has deconstructed power into something not only repressive but possibly
pleasurable, reproduced in all human interactions (e.g., schools or medical profession and not
just law): Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings
(1972“1977), ed. and trans. Colin Gordon et al. (New York: Pantheon, 1980), p. 119.
139
Eugen Ehrlich, Fundamental Principles of the Sociology of Law, trans. Walter L. Moll [1913]
(Cambridge, MA: Harvard University Press, 1936), p. 98. Ehrlich™s classic notion of the ˜living
law™ is the law to be found in the documents and practices attested by witnesses (p. 397).
140
Ehrlich, Fundamental Principles, p. 46. On more recently published aspects of English
uno¬cial sources of law in history, see J. H. Baker, The Law™s Two Bodies: Some Evidential
Problems in English Legal History (Oxford: Oxford University Press, 2003), Lecture Three;
˜Why the History of English Law Has Not Been Finished™ (2000) 59 Cambridge Law Journal
62“84, 78.
141
See Ehrlich, Fundamental Principles, pp. 114“15. For example, the social forces at play in
creating a duty to make a last will and testament were consideration for the family, church,
institutions of public welfare and reverence for the dead. A similar sense of duty and
reprehensibility at intestacy prevailed in ancient Roman society: Barry Nicholas, An
Introduction to Roman Law (Oxford: Clarendon Press, 1991), p. 251.
64 Towards a Globalist Jurisprudence


economics as oikos nomos “ norms of the household). The law court, as an asso-
ciation of persons not party to a legal controversy, marks the movement out-
wards on the Space Axis. Exterior principle42 is imposed on more interior,
personal, dutiful relationships, overtaking norms which feature less authorita-
tively in the hierarchy such as morals, religion, ethical custom, decorum, tact,
etiquette and fashion.43 This exterior space is the hub of the positivists™ concept
of the legal.44
Alienation and anomie45 tend to occur as exposure increases to the world of
bureaucracy and the state, and cold, hard facts and things, with estranged rela-
tionships based upon production and consumption, and formal, o¬cial letters
addressed to surnames often as an adjunct of a ¬le number. In the normal
course, this is associated with the process of losing innocence, as the youngster
becomes alienated from household normativity, to some extent, by political and
bureaucratic matters which do not touch the heart of the youngster because
they are outside his or her history, culture and realm of experience. Little
wonder may it be that the state, exemplifying the ˜depersonalisation of power
relations™46 [original italics] and for Nietzsche ˜the coldest of all cold mon-
sters™,47 can produce law which the individual re¬‚exively tries to ˜keep on the
right side of ™ or not get caught breaking.48 That is the peril of bureaucratic law
which does not engage the conscience,49 exempli¬ed in extreme form in totali-
tarian communist and fascist regimes of the twentieth century.50
Authority without coercion can only be achieved in a situation of respect.
This begins for the individual with being addressed personally by name and
being touched by communication within the normative system. It is di¬cult for
the state to do this. In past times and situations it was easier. The Old and New
Testaments are replete with names containing signi¬cance, and with people


142
Ehrlich, Fundamental Principles, p. 122; Edward Jenks, Law and Politics in the Middle Ages
43
(London: John Murray, 1898), p. 297. See Ehrlich, Fundamental Principles, p. 169.
144
The introduction into the social equation of judges and legislators, in e¬ect, to supervise
social rules of duty, marks the step ˜from the pre-legal into the legal world™: H. L. A. Hart, The
Concept of Law (Oxford: Clarendon Press, 2nd edn 1994), p. 42.
145
The extreme of the notion of anomie derives from a categorisation of suicide in which limits
are everywhere found without any value, resulting in a dissociation from the wider
community: Emile Durkheim, Suicide: A Study in Sociology, trans. John A. Spaulding and
George Simpson (London: Routledge & Kegan Paul, 1970), pp. 258, 285“9.
146
Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford: Stanford
47
University Press, 1990), p. 18. Nietzsche, Zarathustra, p. 48.
148
This sounds like Oliver Wendell Holmes™s ˜Bad Man™ who only cares for what courts do in
response to his own acts which might come before the court: see William Twining,
Globalisation and Legal Theory (London: Butterworths, 2000), pp. 108“35.
149
Perceptions of fairness will a¬ect behaviour towards law: see e.g. Tom R. Tyler, Why People
Obey the Law (Princeton: Princeton University Press, reprinted 2006).
150
Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), pp. 204, 375. See too Ehrlich, Fundamental Principles, p. 59, for his prescient
remarks about how socialist societies would impose an ˜omnipotent board of superhuman
stature™ over the ˜law acting automatically and with such simple instrumentalities as the family
order, possession, contract, and the law and right of inheritance™.
65 Law and authority in space and time


being renamed to mark new relationships.51 A monk, until the late eighteenth
century, formally renounced his birth name in a ceremony and received his
monastic name upon entering into the new community.52 Vestiges of impor-
tance being a¬orded to names can still be found in the conferment of titles, for
example the creation of a life peerage in the House of Lords or knighthood.
Along with other sirs and recipients of state honours, Sir Gerard Brennan, cited
below, may since his award have felt a more personal relationship with the
Commonwealth of Australia. Similarly, knighthood may also have some asso-
ciation with the softening anarchism of some ageing English pop stars. Such
titles create something approaching a state“individual relationship which is
richer than the modern state simply addressing a form to a tax ¬le number con-
nected to ˜Ms J. Citizen™ “ a Jane Citizen who is likely to have only her immedi-
ate family and friends as a normative peer group. Alternatively, recipients of
state awards have been known to reject them, signifying the alienation felt by
some from the state. An individual (at least in common law countries)53 may
even change his or her birth name to express disa¬ection for the normative
world of the state or the more general world.54 On a more profound plane of
this naming phenomenon are to be found various marginalised groups alien-
ated from state institutions of norm generation and norm maintenance. In
these situations, the state is challenged to be able to speak directly to such people
in meaningful language by calling those people by a name to which they relate.55
Unfortunately, so often when the state intervenes in society, the state demon-
strates the political, impersonal, objective aspect of speech. Characterised by
imperative commands, such speech su¬ers from poor authority because there
is only a weak allegiance between the individual and the political body. The
individual is addressed in the third person plural with all the other third
persons “ for example, ˜passengers will not stick their hands out of the train
window™. The state and large corporate groups have di¬culty addressing the
individual personally because such entities cannot relate more intimately to the
individual as may family, friends, teachers and religious or community leaders.

151
E.g., Abram “ Abraham (Genesis 17: 5); Sarai “ Sarah (Genesis 17: 15); Jacob “ Israel (Genesis
32: 28); Saul “ Paul (Acts 9 cf. Acts 13).
152
Harold Stahmer, ˜Introduction™ in Rosenstock-Huessy, Christian Future, p. xliii.
153
Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (Oxford:
Oxford University Press, 1999), p. 155. Many civil law countries are less liberal.
154
On 10 June 1998, the Anti-Discrimination Tribunal heard an application by a man to change
his name to Mr ˜Prime Minister John Piss the Family Court and Legal Aid™, according to his
representative, Mr ˜Justice Nevil Abolish Child Support and Family Court™: Australian Current
Law News (11 June 1998).
155
See e.g. James Baldwin, Nobody Knows My Name: More Notes of a Native Son (New York:
Vintage International, 1961 reprinted 1993), esp. pp. 75“7; Milner S. Ball, The Word and the
Law (Chicago: University of Chicago Press, 1993), p. 86. Names have in times past
occasionally been imposed by bureaucracies on ancient communities without any honour:
e.g., the Gaels of Scotland and the Jews of Poland in the late eighteenth century (see Norman
Davies, Europe: A History (London: Pimlico, 1997), p. 169) and the Jews in Nazi Germany
being forced to assume Old Testament ¬rst names (Franck, The Empowered Self, p. 39).
66 Towards a Globalist Jurisprudence


The challenge is to move away from unquestioned imperatives “ that is, from
orders and rules which have lost their context.56 An autobiographical approach
to social activity stands the chance of recovering that context by critical and
moral engagement with the norms “ that is, through the forging of some sort
of meaningful relationship with those norms, even if those norms are ultimately
rejected. The meaningful engagement with norms requires, where possible,
keeping political, exterior controls out of the moral, private realm of functional
family and civic relationships,57 where moral attitudes have greater potential to
develop. Fortunately this principle is recognised, at least in theory, by the
emerging European Union (if not global) doctrine of ˜subsidiarity™. By this
richly historical, constitutional principle, di¬erent levels of normative organ-
isation are held to be appropriate for di¬erent types of social relationships.58
The exterior dimension is still relevant, nonetheless. Private, individualistic
inklings of morality have contributed to the ˜troublous storms™ which have
shaken the public world throughout history.59 There must be some social mech-
anism for overcoming the whim of the individual “ that is, exterior, objective
standards are needed by which to reconcile subjective con¬‚icts, particularly in
multicultural societies. In fact, one of the virtues of legal systems is their objec-
tivity. It is the history of Western legal systems that they have replaced magic and
arbitrariness by the so-called ˜rule of law™, although this exterior orientation can
sometimes be too extreme. Just as politics will work better when there is moral
allegiance to the government, objectivity will work best when it is capable of sub-
jective allegiance “ for example, where the principles comprising the legal system
are based upon community acceptance and practice. Religion has traditionally
achieved this balance better than the legal system: that is, exterior bodies like the
church can successfully advance their norms within their communities because
there is an interior allegiance in the form of a moral attachment to the principles
of the church as expressed in sacred writings such as the Bible.


3.2.2 The Time Axis: past versus future
Time is a deeply normative concept.60 It is, in Niklas Luhmann™s phrase, ˜the
unit of di¬erence between the past and the future™, when choices must be
made.61 ˜Halfway between the ape that it was and the being that it could become,

156
See Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Duckworth, 2nd edn
1996), p. 60. We are all ˜contextual individuals™: MacCormick, Questioning Sovereignty, p. 186.
157
See Sir Gerard Brennan, ˜Principle and Independence: The Guardians of Freedom™ (2000) 74
58
Australian Law Journal 749“59, 751. See ch. 11, section 11.2.5, pp. 263“4 below.
159
See Edmund Burke, Re¬‚ections on the Revolution in France [1790] (Oxford: Oxford University
Press, 1993), p. 141.
160
A court in 1188 could not ascertain the time of day without ˜discussion and enquiry™: Marc
Bloch, Feudal Society, trans. L. A. Manyon (London: Routlege & Kegan Paul, 1942), p. 74. See
too Jacques Le Go¬, Time Work & Culture in the Middle Ages (Chicago: University of Chicago
Press, 1980); Rebecca R. French, ˜Time in the Law™ (2001) 72 University of Colorado Law
61
Review 663“748. Luhmann, Law as a Social System, pp. 198, 283.
67 Law and authority in space and time


the human must each day choose its future.™62 ˜To live means to look backward
as well as forward, and to decide, in every moment, between continuity and
change.™63
Competing ideas of how the past should constitute the future have been at
the heart of all of the major revolutions.64 The Time Axis is the social ¬eld for
attempting to resolve the relationship between the exterior and the interior
dimensions of society “ between individual and state, according to beliefs about
history and the future. The Time Axis is a dimension for choosing between
Utopia and more of the same, a¬ecting the very functioning of society. Stability
requires some degree of acceptance of what has come before in order to be able
to move on.65 This requires historical norms being maintained and invested
with new content,66 or, otherwise expressed, the past being reinterpreted to
meet present and future challenges.67 There is, then, an aspect to law of the dead
ruling the living.68
Anyone who undertakes social activity is acting on personal experience or
interpretation of other individuals™ pasts, and acting to project an anticipated
future. This involves wrestling with tradition: at extremes, the faithful seek to
perpetuate cultural information and opponents seek to overcome it, with
degrees of commitment in between.69 Even those unconscious of their trad-
itions may be motivated by an often mythical ˜good old days™ notion which they
would like to see return in the future. Human history in any tradition, having
been produced by humans, will contain much to be disappointed with, judged
from the standpoint of the present. (No doubt there are things we accept
today which will be regarded as cruel by generations in the future.) As such, the
Western tradition contains more than its fair share of disappointments.
Colonialism, ecological destruction, cultural, gender and religious arrogance,
and regular internecine wars which have featured the worst feats of cruelty

162 63
Allott, Eunomia, [19.1]. Rosenstock-Huessy, Speech and Reality, p. 18.
164
See Berman, Law and Revolution, pp. 15“18 and his Law and Revolution, II: The Impact of the
Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard University
Press, 2003), pp. 3“4. In the twentieth-century Russian Revolution, the Bolsheviks sought the
classless society preceding the advent of property. In the eighteenth century, in the American
Revolution, classical democracy was an aspiration of independence through a deistic
ontology; and classical Greek and Roman liberty through philosophy was similarly an
aspiration of the French Revolution. Government and ancient liberties under law were an
aspiration of the English Glorious Revolution pursuant to a biblical vision, in the seventeenth
century. In the German Revolution of the sixteenth century, Luther sought early Christianity
untainted by the papacy. A return to scriptural authority was the aspiration of the Cluniacs of
the Papal Revolution of the late eleventh century.
165 66
See Allott, Eunomia, [5.16]“[5.17]. See Ehrlich, Fundamental Principles, pp. 134“5.
167
Berman, Law and Revolution, p. 9. This is a characteristic of the Western legal tradition.
168
See Ehrlich, Fundamental Principles, p. 401, referring to Goethe. See too Ronald Dworkin,
˜The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve™ (1997) 65 Fordham
Law Review 1249“68, 1252; and Re Wakim: Ex parte McNally (1999) 163 ALR 270 per
McHugh J at 283“6.
169
See H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford:
Oxford University Press, 2nd edn 2004), p. 20.
68 Towards a Globalist Jurisprudence


imaginable, are but a few examples “ all, strangely enough, re¬‚ecting partial
human visions of ultimate reality and meaning or God. Satisfaction with a trad-
ition requires, at the same time, regret.70 History gives a sense of achievement
and wrongdoing.71 Rather than treating history as either a ¬eld of rotting
corpses to be buried in the attempt to become truly modern and enlightened,
or seeing in history a beautiful garden being poisoned by the decadence of the
present, history should be considered in all of its normative complexity on the
Space“Time Matrix.
Traditions or communities of history and destiny, no matter how large, par-
ticipate in the constitution of the individual™s morality and normative con-
sciousness.72 Allegiance without coercion is dependent upon tapping into that
sense of morality. This is di¬cult in a plural society and requires a commit-
ment to communication. Attempting to appreciate normative motivations con-
structed historically with these past“future references is a signi¬cant step
towards understanding law and authority as it has operated in the past and may
be improved upon in the future.
Indeed, law is, in Robert Cover™s words, ˜the projection of an imagined future
upon reality™.73 Law is not, contrary to the archetypal natural law analysis, con-
¬ned to what the present law of the state should or ought be in comparison to
what the law actually is. Law, on Cover™s view, embodies that tension at all times
and by its very nature seeks a future di¬erent from the present, born of the
debates and histories (˜narratives™) of a community which seeks to live accord-
ing to a legal order. For example, when the Parliament of the Commonwealth
of Australia enacted the ˜misleading or deceptive conduct™ provision of the
Trade Practices Act in 1974, it was because Parliament imagined a world where
misleading conduct would be minimised. Similarly, anti-discrimination law has
been enacted because a world has been imagined where undesirable forms of
discrimination will decrease. Law, no matter how black-letter, is someone™s
vision of a better world, even if it just means increasing government revenue
through stamp duty.
Of course law can be changed, perhaps to what it ought be; although if it con-
tains a moral aspiration, law will still probably never ful¬l that aspiration all the
time. (Unlike a vaccine being withdrawn upon eradication of the target disease,
legislation is seldom, if ever, repealed for success.) Law, then, moderates the
tension between visions from the imagination and the foundations of the
old world. For this reason, Cover used the symbolism of the bridge to describe

170
See Jeremy Webber, ˜Beyond Regret: Mabo™s Implications for Australian Constitutionalism™ in
Duncan Ivison et al. (eds.), Political Theory and the Rights of Indigenous Peoples (Cambridge:
Cambridge University Press, 2000), p. 79, and the sources cited therein.
171
Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin,
2003), p. 332.
172
See Anthony D. Smith, ˜Towards a Global Culture?™ in Mike Featherstone (ed.), Global
Culture: Nationalism, Globalization and Modernity (London: Sage, 1990 reprinted 1996),
p. 179.
173
Robert M. Cover, ˜Violence and the Word™ (1986) 95 Yale Law Journal 1601“29, 1604.
69 Law and authority in space and time


law “ a bridge to the future. He regarded all human e¬orts and understandings
as being situated within two worlds: namely between memory and desire “ or
earth (˜what is™) and heaven (taken not necessarily as a supernatural place but
simply a better place, chie¬‚y ˜what could be™).74 This idea of law as a bridge is
compatible with the concluding view taken by Ronald Dworkin in Law™s Empire,
namely that law aims ˜to show the best route to a better future, keeping the right
faith with the past™.75
In addition to highlighting the imaginative nature of law, a critical awareness
of time will also reveal the contingency of many norms and laws. Law is a craft
concerned with what is not law. What is law may be considered to be the prob-
lematical and sometimes temporary triumph over what is not law.76 Frequent
overruling of trial courts by appellate courts, and even appellate courts being
overruled by higher appeal courts, attest to this, not to mention the menagerie
of dissenting judgments which do not make it into legal textbooks. Of the US
Supreme Court, Joseph Vining has observed:
Even a Supreme Court opinion on a matter is not the law. It is one more state-
ment of law, and often one which some justices bringing the vote on it to a major-
ity have signed all the while full of troubled reservations, and to which dissenting
justices deny any lasting validity beyond settling the immediacies of the immedi-
ate case.77

A precedent is only a precedent because its principle was once in dispute,78
sometimes fuelled by opposing senior counsel with judicial acumen who
believed they could win the case for their clients. Well-funded clients may even
run test cases “ which they half-expect to lose “ in the hope of advancing legal
reasoning which might one day tip the scales of justice in their favour. Far from
being disparaging, these examples of the contingency of law highlight the value-
laden nature of law and the fact that beliefs and intellects are being brought to
bear on scenarios which involve choices within the framework of a social
science. ˜At a given moment in time, law does not exist except as a possibility
from the past, a possibility for the future™,79 albeit a possibility to be realised
through a discourse with its own grammar and rules.

174
Ronald R. Garet, ˜Meaning and Ending™ (1987) 96 Yale Law Journal 1801“24, 1808.
175
Ronald Dworkin, Law™s Empire [1986] (Oxford: Hart Publishing, 1998), p. 413, and ch. 7 on
the idea of law as a chain novel. See too Allott, Health of Nations, [3.30], [5.7], [8.50] and
[11.1].
176
See e.g. David B. Goldman, ˜Canon Law Origins of Common Law Defamation, the Hunne
Whodunit and Western Legal Science: An Historical Challenge for Modern Lawyers™ (1996) 2
Australian Journal of Legal History 79“94, 79, 92“3.
177
Joseph Vining, From Newton™s Sleep (Princeton: Princeton University Press, 1995), p. 112. See
too Allott, Health of Nations, [2.16(4)].
178
Stanley Fish, cited in Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge,
1992), p. 208.
179
Allott, Eunomia, [6.70]; see too John Finnis, Natural Law and Natural Rights (Oxford:
Clarendon Press, 1980 reprinted 1992), p. 269; A. W. B. Simpson, Legal Theory and Legal
History: Essays on the Common Law (London: The Hambledon Press, 1987), pp. 370“3.
70 Towards a Globalist Jurisprudence


In this way, Western law may be understood as a Zenonic paradox of
motion.80 Zeno of Elea, a contemporary of Plato and Aristotle, posited amongst
other dialectical paradoxes of motion the paradox of the airborne arrow which
appears, at a given moment “ that is, in the snapshot of the present “ to be still.
Yet it cannot be still if it is in ¬‚ight. Law does not exist in the present yet it is
made in the present which no sooner comes than it is past. Husserl wrote that
˜[h]istorical past is a continuity of pasts which proceed one from another, each,
as a past present, being a tradition producing tradition out of itself ™.81 Law is
always past and it is always imagining its future from its tradition. ˜Its many
movements™, applying to law what Aristotle wrote about motion, ˜are incom-
plete and di¬erent in kind, since the whence and whither give them their
form.™82
Law is therefore a normative practice dependent upon time.


3.3 Law as culture (nomos) and reason (logos)
For maximum allegiance, a programme of norms or law must seek to appeal to
all orientations of the human on the Space“Time Matrix. That is, on the Time
Axis, a proposition for the future must be located in a cultural history, and that
culture™s vision for the future. This history and this future will always be con-
tested. Dialogue is suited to this contest. Dialogue works best if presuppositions,
particularly about history, are not taken for granted. The best chance for a
proposition to be received with allegiance on the Space Axis is for the propo-
nents of the proposition to relate it to the individual at a personal moral level,
to encourage the individual to recognise or at least grapple with the exterior
legitimacy espoused by the proposition-maker or law-giver (typically govern-
ment). According to ˜the one indisputable principle of what may be called sub-
stantive natural law™, formulated by Lon Fuller: ˜Open up, maintain and
preserve the integrity of the channels of communication by which men convey
to one another what they perceive, feel, and desire.™83
Constitutional authority will usually appeal to some but not all four orienta-
tions (past, future, conservative, radical) of the human in society. Social and
legal history can be analysed in these terms. Before doing so in the remainder
of this book, a further, helpful distinction is necessary to ¬t the Space“Time
Matrix into a historical evaluation of law and globalisation: nomos and logos.
Put simply, these concepts can be thought about respectively as a matter of what
one does and the reason one does it.
180
Eric Voegelin, ˜The Nature of the Law™ in R. Pascal et al. (eds.), The Collected Works of Eric
Voegelin, 34 vols. (Columbia: University of Missouri Press, 1991), vol. XXVII, pp. 16“20.
181
Husserl, Crisis, ˜Appendix 6: The Origin of Geometry™, p. 374.
182
Aristotle, The Nicomachean Ethics, trans. David Ross (Oxford: Oxford University Press, 1925
reprinted 1980) X.4, p. 255. Allott refers to law ˜as a sort of probability-wave, transient but
undetachable from the total reality™: Allott, Health of Nations, [2.23].
183
Lon Fuller, The Morality of Law, quoted in J. M. Kelly, A Short History of Western Legal Theory
(Oxford University Press, 1992), pp. 421“2.
71 Law and authority in space and time


3.3.1 Nomos as cultural law
The moral world of right and wrong, good and bad, was law in the Ancient
Greek sense of nomos. The word nomos connoted ˜a normative way of life, as a
proper way of conduct, or as a norm of sacri¬ce . . . as part of how the universe
is constructed™;84 a human law ˜compounded of custom and the exigencies of
physical, psychological, political and social conditions™.85 It was an idea of
custom observed in practice, which was ˜law™ in the sense of binding society to
an order.86 Nomos is what comes as ˜second nature™, as opposed to physis, which
is, at least in law, the pretence to natural, divine or rational authority. Nomos
˜was the living force of human laws, customs, and cultural achievements™.87 It is
the connotation of this rich universe of norms which characterises Robert
Cover™s idea of law as a bridge from past to future. For Cover, a ˜nomos is a
present world constituted by a system of tension between reality and vision™.88
It can accommodate both reverence for history and messianic goals. Nomos is a
lived law, entwined with ultimate reality and meaning, subject though to dis-
course and learning. As such, it tends to create a moral allegiance through dia-
logue with those open to it.
Herodotus well illustrated the value of nomos, reporting on a Persian War
battle between the Persian king, Xerxes, and the exiled Spartan leader,
Demaratus, in 480 BCE. Xerxes, who had despotically led his massive army across
the Hellespont to Europe, ridiculed the reliance Demaratus said his weaker
Greek forces placed upon courage and virtue which came of being a free people,
although conditioned to obeying a law which required them to stay in the ranks
and either win or die. Xerxes, on the other hand, relied upon despotic coercion.
Xerxes™ coerced forces were defeated by the free Greeks. The word which
Herodotus used to describe the phenomenon which the Greeks obeyed willingly
and courageously as a matter of law was nomos. It was stronger than the
command of a despot like Xerxes. Nomos was both ˜social and political™ to the
ancient Greeks. Such social or lived law works because it is believed in.89
The word nomos is readily translatable into language which will facilitate a
journey through legal history to illuminate the present challenges of globalisation.
184
That is, prior to the reign in the ¬fth century BCE of Cleisthenes, who used the word nomos
to mean statute: see Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law:
Law, Society and Politics in Fifth-Century Athens (Berkeley: University of California Press,
1986), p. 88.
185
Julius Stone, Human Law and Human Justice (Sydney: Maitland Publications Pty Ltd, 1965),
p. 15.
186
See Kelly, Western Legal Theory, pp. 8“9. Originally, it seems, nomos meant ˜dwelling place™,
later signifying a province within which de¬ned powers could be exercised; it was linked to
nemo, meaning to apportion. See too Arendt, Human Condition, p. 63; Brian Z. Tamanaha,
A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001), pp. 5“6.
187
Kelley, Human Measure, pp. 12“26.
188
Robert M. Cover, ˜The Supreme Court 1982 Term”Foreword: Nomos and Narrative™ (1983)
97 Harvard Law Review 4“68, 9.
189
See David Gress, From Plato to NATO: The Idea of the West and its Opponents (New York: The
Free Press, 1998), pp. 52“4.
72 Towards a Globalist Jurisprudence


To avoid the jargon of nomos, the words ˜culture™ and ˜custom™ can be used.
Although not quite capturing the complex relationship between the past and
future in Cover™s sense, cultural practice and custom do suggest an interior, moral
connection to norms and law, manifesting allegiance from the mainstream indi-
viduals in the culture (although such norms can tend to be conservatively
grounded in the past).


3.3.2 Logos as rational law
If nomos can be thought about as ˜second nature™, what of ¬rst nature, physis?
Logos comprehends physis, as to a certain extent does nomos. Perceptions of
nature (physis) will always be mediated by the rational (logos) and customary
(nomos) context of nature as it is perceived by humans. Yet logos is distinguish-
able from nomos, and this (at times slightly overlapping) duality will feature in
the historical approach to authority adopted in this book.
Relevantly, the Greek word logos has been de¬ned as ˜the rational, intelligible
principle, structure, or order which pervades something™90 and ˜the universal
methodical norms by which any knowledge of the world existing “in itself,
objectively” must be bound™.91 In Ancient Greece, the ˜divine law, logos, is made
by reason and expresses reason and not mere inscrutable fate™.92 Logos is logic
or method of reasoning, from which derives the su¬x ˜-logy™ found at the end
of words such as psychology, biology, theology and sociology.93 It also translates
as ˜the Word™, as in the famous opening line of the Gospel according to John.
˜In the beginning was the Word, and the Word was with God, and the Word was
God . . .™, dwelling in the world thereafter (through Christ) by which the Jewish
scriptures would, in e¬ect, make logical sense (through ˜grace and truth™).94
From these de¬nitions and the biblical example of logos comes the strong sense
of logos as the continual advance of reason or knowledge in the world.95
To give the idea of logos a more contemporary feel in the context of legal
theory, logos may be thought about as a more objective force of reason, as a basis
for reforming, politically, what has emanated as a matter of culture and custom.
Legislation is the typical manifestation of this concept. The danger is that it is
imposed on the world, newly, but its virtue is that it can change what (at least
in someone™s view) needs to be changed.
190
Nicholas Dent, ˜Logos™ in Ted Honderich (ed.), The Oxford Companion to Philosophy (Oxford:
91
Oxford University Press, 1995), p. 511. Husserl, Crisis, p. 139.
192
Stone, Human Law, p. 15.
See Berman, ˜Law and Logos™, 145. Cf. Rosenstock-Huessy, Out of Revolution, pp. 743 ¬, who
193

argues that studies which are not helped by the subject“object dualism should actually employ
the su¬x ˜-nomy™ (as in ˜economy™) rather than ˜-logy™, because the ending ˜-logy™ connotes
the Newtonian, Cartesian conceptual world of the division of physics and metaphysics, object
and subject. That is to appreciate the cultural location of these disciplines (˜-nomy™ being
from nomos).
194
See John 1: 1“18 (NKJV). The Old Testament Hebrew term for ˜word™ is dabar, meaning
˜e¬ective power™, which di¬ers from the New Testament Ancient Greek logos, meaning ˜correct
95
reasoning™: Ball, Word and the Law, pp. 119“20. Finnis, Natural Law, p. 376.
73 Law and authority in space and time


3.3.3 Reconciling cultural and rational laws
Robert Cover has suggested, with speci¬c illustrations from Judaism, that
nomos can be subject to thoroughgoing intellectual enquiry and that it is future
orientated96 (˜law as a bridge to the future™). So nomos or custom is not simply
irrational and conservative. The sense of nomos as culture is maintained by the
universe of meaning in which the norms reside. That is, everything makes sense
by reference to authoritative texts, teachings and upbringing within the culture,
which cultivates its own rationality. That meaning can be contested, but the uni-
verse makes sense, fundamentally, through the cultural way of examining the
world. In the process of contesting this meaning, rationality plays a part.
To this extent, nomos and logos, culture (including moral sensibilities) and
logic, can overlap, perhaps akin to the way in which emotion can be guided by
logos, according to Aristotle.97 Similarly, Plato could regard the nomos or decreed
laws of the Ancient Greek polis as containing the rationality of logismos.98 There
are cultural, normative aspects to logic and also logical bounds for the unfold-
ing of culture and norms. Generally, logic is elevated to objectivity, as with
modern science, and culture is associated with more subjective relations and
associations such as a religious or minority standpoint. Yet what is ˜scienti¬c™ can
be received into culture, such as economic rationalism or Darwinism; and, vice
versa, what is cultural for some people can be received into objective legitimacy,
such as state laws or the common law rights of Englishmen being received, on
Blackstone™s observation, into natural rights. Authority is conceivable in this
double helix of logic and culture which exists interdependently with society. It is
suggestive of the somewhat obscure word ˜nomology™ “ the science of law.
A problem arises when cultural practices have become outmoded with
respect to the rest of society and there needs to be change. Human attributes
which create and maintain social norms such as ˜physical strength, power,
experience, personal prestige, age . . . wealth, birth, personal relations™99 are, of
course, problematic. Reason will from time to time dictate that such attributes
should not determine aspects of social order. This may cause resentment among
those with power in the association (characteristically they will be conserva-
tive). Legislation typically appears. Whilst legislation can be subject to interior
allegiance (and it can also attempt to impose one person™s interior allegiance
or natural law on someone else),100 legislation tends to be conceived by some-
one else™s intellect, imposed from the exterior political dimension of the
Space“Time Matrix, and orientated to the future. Reason is not something in

196
See generally Cover, ˜Nomos and Narrative™.
197
Aristotle, Nicomachean Ethics, I.13, p. 27; Martha C. Nussbaum, Upheavals of Thought: The
Intelligence of Emotions (Cambridge: Cambridge University Press, 2001).
198 99
See Finnis, Natural Law, p. 407. Ehrlich, Fundamental Principles, p. 86.
100
Tamanaha, General Jurisprudence, pp. 5“6, and more extremely, his observation of Shari™a law
in his ˜The Contemporary Relevance of Legal Positivism™ (2007) 32 Australian Journal of Legal
Philosophy 1“38.
74 Towards a Globalist Jurisprudence


the world, but something which tends to be imposed on the world.101 Such
juridical reason therefore warrants scrutiny.
Another di¬culty associated with interior, cultural norms can occur when
some cultural practices may be incompatible or requiring of modi¬cation
in a multicultural society, such as tribal punishments and forced marriages.
Typically, the exterior norms of courts will be imposed and consideration may
be given to mitigating sentences passed on o¬enders.102 Dialogue between
opposing groups on the Space Axis of the Space“Time Matrix will be desirable.
Notwithstanding some earlier correspondence noted between nomos and
logos, religious and customary-based laws (nomos) will typically appeal to the
moral and conservative orientations of the individual. Legislation and the
secular laws of the state (logos) can be alienating or ignorant of the individual™s
allegiance, because they are external to the individual™s personal existence and
too future orientated with inadequate historical references; they are perceived
to be political. Even the process of distilling state law from customs and pre-
vailing attitudes can be di¬cult: cultural attitudes lose something when they are
dressed in the legal vocabulary of the state.103 The solution perhaps lies in
encouraging attachments to norms which, although possessing speci¬cally
exterior-legal qualities, can demonstrate living, interactive interior-norm qual-
ities. At the same time, a measure of learning to love and respect the outside,
and to look for rational, universal principles, will also assist.104 To this end, sug-
gestions will be pro¬ered in chapter 10, arising from the normative successes
and failures discernible in the legal history to which attention will turn in the
intervening chapters.


3.4 Law as autobiography in a global world
Moral allegiance is a style of allegiance which may be particular to one individ-
ual but not necessarily another. Political allegiance is of a kind which may not
catch the scruples of all individuals, but which may be coerced as a matter of law
by the state contrary to the individual™s liking. Accepting the central theme of
Rosenstock-Huessy™s work “ that everyone bears a moral responsibility for
living meaningful and orderly existences at the risk of catastrophic conse-
quences “ this imperative must be related to law. The conclusion which will have
emerged by the end of this book is that exterior political imperatives (signi¬ed
by logos) and private moral allegiances (signi¬ed by nomos) have been in con-
¬‚ict for the millennium of the Western legal tradition. It culminated in the

101
Christine Korsgaard, ˜Prologue: Excellence and Obligation: A Very Concise History of Western
Metaphysics 387 BC to 1887 AD™ in Christine Korsgaard (ed.), The Sources of Normativity
(Cambridge: Cambridge University Press, 1996), p. 5, referring to Kant.
102
See Roger Cotterrell, ˜Law in Culture™ (2004) 17 Ratio Juris 1“14, 9“11.
103
See Ball, Word and the Law, pp. 55“6.
104
See Joseph Raz, Value, Respect and Attachment (Cambridge: Cambridge University Press,
2001), p. 14.
75 Law and authority in space and time


World Revolution, which has delivered globalisation as we popularly recognise
it. That con¬‚ict must be recognised, and resolution pursued, through insights
gained from the historical constitution of laws across societies. Essentially this
requires reconciling law with individual moral allegiances.
Globalisation studies highlight the contingency of the authority of the state
from the late twentieth century onwards, in the face of competing authorities
both within the state (for example, indigenous communities, religious groups)
and outside the state in the international and world societies. Repudiation of
ideas of singular legal authority is then possible in the context of the norms and
enforcement measures which exist independently of the state. As Max Weber
observed, coercion in legal orders can exist outside political authority, ˜wher-
ever coercive means, of a physical or psychological kind, are available™.105
Furthermore, Ehrlich, it could be said, discovered for the bene¬t of legal studies
the ˜numberless™ associations in society which have legal e¬ect without relying
upon the state, obtaining cohesion from reciprocal rights and obligations which
follow from membership.106 Some of these culturally based constitutions will be
considered as they occurred and continue to occur in the Western legal trad-
ition, in contradistinction to politically imposed law characterised by modern
legislation from the exterior of the Space Axis.
As such, the standard treatments of legal authority fall somewhat outside this
analysis because they do not appreciate the complete social picture of law con-
ceptually described by the Space“Time Matrix. They are generally premissed
upon a monolithic state legal order (which is historically problematic) and the
cold ˜institutional™, as opposed to community, aspect of law. For example,
Joseph Raz, in his theory of law, does not admit the reciprocal relationship
between law and individual. He assumes the irreconcilable character of law and
individual by earlier assuming that ˜law™, properly so-called, issues only from
the political, external extreme of the Space Axis. Even if there are moral reasons
(such as reliance of impressionable people on one™s community example) or
prudential reasons (such as sanctions) to obey law, even ˜good law™ does not
have to be obeyed, for law™s sake, because obedience would not issue from the
legal system™s own standards, according to Raz. He does, though, acknowledge
the need to assess each case on its own merits, conceding that it may be possi-
ble to have a ˜ “practical” respect for the law™, ˜in all but iniquitous societies™.107
No authority is ever justi¬ed in and of itself. Both the norm-giver and the
norm-receiver owe an existential responsibility to each other to reconcile,
through dialogue, competing expectations of each other. That is, the norm-
giver must seek to avoid thinking about authority as ˜the right to command, and

105
Max Weber, On Law in Economy and Society, trans. Max Rheinstein and Edward Shils [1925]
(New York: Simon & Schuster, 1954), p. 17. See too Jacques Derrida, ˜Force of Law: The
“Mystical Foundations of Authority” ™ (1990) 11 Cardozo Law Review 921“1045, 925, 927.
106
Ehrlich, Fundamental Principles, p. 63.
107
See Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press,
1979), pp. 237“44, 258, 260.
76 Towards a Globalist Jurisprudence


correlatively, the right to be obeyed™, and the norm-receiver must transcend the
view that allegiance to law is ˜purely sentimental and has no objective moral
basis™.108 All of the constitutional troubles in Western history arise from ignor-
ance of this proposition. Such dialogue, however, is all very well in theory. In
practice, a party subject to an adverse judicial decision may not feel consoled by
the opportunity to examine the decision and search for ways to achieve recon-
ciliation “ particularly, for example, if false evidence has been accepted at trial
or the party feels misunderstood by the judge. At that point, though, there may
be the opportunity to campaign against or at least agitate the legal norms in
various political and law-reform arenas “ or to accept, regrettably, that no
human social system will get things right every time.
Globalisation is adding to the sources of norms from within and without the
state, provoking new laws and norms. With them comes the possibility of
appealing to the individual at a moral level, often because of the common exis-
tential experience of the World Revolution and an emerging world society
amongst other societies. Being able to tap into the history of such moral
achievements and aspirations for the future will be crucial to the e¬ectiveness
of the new laws which appear to embody some of these moral aspirations.
The tensions on the Space“Time Matrix today between conservative/radical,
moral/cultural and political/rational dimensions of authority can now be
explored historically in the balance of this book, to illuminate the recurring pat-
terns of Western law and authority in the second millennium. Those insights
might then assist with a more e¬ective reformulation of the idea of, and
prospects for, law in an interconnected globe, as part of the proposed general,
globalist jurisprudence. If law is to achieve its potential, all four dimensions of
human social nature (past, future, interior, exterior) will need to be conceptu-
ally integrated, requiring cultivation of moral and political allegiance.
Universalism will need to be reconciled with diversity. In that way, our norma-
tive jurisprudence will help law to appeal to the individual, and also help the
individual to think outside individual interests. Coercive authority may then be
minimised for societies of this most peculiar of creatures, the human, whose
species makes and navigates rules like spiders with their webs.

108
See Robert Paul Wol¬, In Defence of Anarchism (New York: Harper, 1976), ch. 1. The two
somewhat simplistic propositions quoted, that authority is the right to command and be
obeyed (p. 4), and that allegiance to law is purely sentimental (p. 19), ground Wolªs
advocacy of ˜philosophical anarchism™.
Part 2
A Holy Roman Empire
4

The original European community




In this great intermingling at the time of Europe™s birth, a salient feature, right
from the start, was the dialectic between unity and diversity, Christendom and
nations, which even today is still one of the fundamental characteristics of Europe.
Jacques Le Go¬1

As unjust as it might seem for a historical discussion of European society to dis-
pense with Greek and Roman antiquity, unjust we must be for present purposes.
(Reference will be made in later chapters, though, to reincarnations of Greek
philosophy and Roman law.) With the nightfall of the inaptly named ˜dark ages™
heralded by raiding Germanic tribes, the ˜high™ classical culture and Roman
Empire receded in the ¬fth and sixth centuries, in the face of fragmented,
indigenous diversity. This was tempered by the emerging universalistic, moral
and political tentacles of the Roman Catholic Church. It was that style of diver-
sity, after the fall of the Roman Empire, which was the original Europe. To the
extent there was then a medieval European union, membership depended not
upon the ful¬lment of economic criteria required today, but the conversion of
people to Christianity.2
Just as the challenges faced by the European Union (EU) today are endemic
of many of the challenges of globalisation and law, so may the original European
community assist our enquiry. Especially will this aid the formulation of a nor-
mative jurisprudence concerned to take questions of allegiance and authority
seriously. The diversity of Europe in the time preceding and including the foun-

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