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The eucharist is a church sacrament which celebrates the last supper of Christ. There, Christ
had broken the bread, saying ˜Take, eat; this is My body™; and, taking the cup, said ˜Drink from
it, all of you. For this is My blood of the new covenant, which is shed for many for the
remission of sins.™ See Matthew 26: 26“28 (NKJV).
162 State Formation and Reformation


blessing of the bread and wine to result in a real presence which amounted to the
˜substance™ of the body and blood through grace and faith coexisting in and with
the bread and wine. This was the ˜consubstantiation™ position. The distinction
was subtle but politically signi¬cant. Consubstantiation regarded the earthly
objects of the bread and wine as having received the divine addition of the body
and blood; transubstantiation considered a complete, elemental transformation
of the bread and wine into body and blood with only the outward appearance of
bread and wine. Some, such as Zwingli, denied a transformation altogether,
regarding the ritual as purely symbolic.82 How was this politically signi¬cant?
Religious cosmologies make for powerful political statements.83 Oddly
perhaps, from today™s perspective, the mysterious ritual of communion was a
central symbol of power. Sacraments in general had tremendous authority and
signi¬cance, prompting some individuals even to eat the vomit of others.84 The
ritual of the eucharist was about getting as close to Christ as was possible in
earthly life and seeing divinity manifested on earth. The sacrament was, for
Christians:
both a conduit of power and a representation of the manner in which divine
power operated within their world of experience . . . In the late Middle Ages, both
theological de¬nitions and popular religious practices placed the eucharist at the
very center of religious life and underlined its status as the preeminent locus of
divine power within the Christian™s world of experience.85

The Protestant theology of the eucharist provided a new way of symbolising
power. Divine power could not be located in a visible object or institution. This
in¬‚uenced the way ordinary people understood and related to authority. New
beliefs about the eucharist operated to undo the intimate, organic ties of ritual
and authority which had been so easy for the individual to relate to because they
captured personal, moral allegiance. God was understood by the Protestants to
be too transcendent to reside in earthly objects and also institutions.86
Criticism became more acceptable and the complexity of authority became
apparent. Liberty crept further into popular consciousness, not least because
the printing press made accessible not only the Bible but also theology in ver-
nacular languages. Personal interpretation and judgement assumed greater

182
See G. R. Elton, Reformation Europe 1517“1559 (London: Fontana, 1963), pp. 71“3.
183
Gerald Strauss, ˜The Idea of Order in the German Reformation™ in Enacting the Reformation in
Germany: Essays on Institution and Reception (Aldershot: Variorum, 1993), XIV, p. 10. Strauss
continues: ˜The extent to which their assertions about God™s universe are true, or even
believed to be true, matters much less than does their utility as legitimizing phrases and
enabling clauses for the accomplishment of particular political aims.™
184
Some medieval priests felt inspired to eat the vomit of a dying man who had just received the
sacrament of Last Rites, on the basis that the vomit had been transformed into the body of
Christ: see Robert A. Hinde, Why Gods Persist: A Scienti¬c Approach to Religion (London,
Routledge, 1999), p. 46.
185
Christopher Elwood, The Body Broken: The Calvinist Doctrine of the Eucharist and the
Symbolization of Power in Sixteenth-century France (New York: Oxford University Press,
86
1999), p. 4. See Elwood, Body Broken, ch. 2.
163 The reformation of state authority


legitimacy.87 God did not intervene directly in earthly rituals by inhering in
objects such as bread and wine. Nor could divine authority be thought, con-
vincingly, to inhere in the institutions of human government. The hand of God
could not be claimed, without debate, to buttress human institutions.


7.6.2 Incoming Mammon in the spirit of capitalism
Something pivotal to the evolution of modern globalist authority happened
around this time too, in addition to the new signi¬cance of the state as the single
sword of sovereignty. Theological attitudes towards money and industry were
changing. The authority underlying our rhetorical holy Roman empire was
ceding to a new, secular authority. This is not to suggest that the change in the-
ology caused the increased development of capitalism, which is not of present
concern. It is to suggest that the justi¬cations for such activity changed in
response to the times, explaining how emerging norms and law could become
authoritative.
The trend is well illustrated by starting with the medieval Catholic approach
to the charging of interest, and comparing it to the emerging Protestant
views. Usury provides a salient example of the reach of ideas of the invisible
God into visible money and trade. The Old Testament prohibition against usury
provided:
Thou shalt not lend upon usury to thy brother; usury of money, usury of vict-
uals, usury of any thing that is lent upon usury: unto a stranger thou mayest lend
upon usury: but unto thy brother thou shalt not lend upon usury: that the LORD
thy God may bless thee in all that thou settest thine hand to in the land whither
thou goest to possess it.88

For the Jews, this stipulation prohibited the charging of interest on money lent
to fellow Jews. It allowed, however, the charging of interest to ˜a stranger™, so
long as it was not ˜unto thy [Jewish] brother™. Consequently the Jews lent money
outside their religion, to ˜others™ rather than ˜brothers™. Medieval Christianity
rejected as obnoxious and anachronistic this discrimination against the other,
in the universalistic quest to treat the ˜other™ as the ˜brother™.89 Christianity pur-
ported to be a universal religion, transcending the tribalism of Judaism. For
Christianity, logically there could be no usury amongst the many di¬erent sorts
of people who were called as brothers and sisters to follow Christ regardless of
race. When members of heathen religions, including Jews, were chosen for loan
contracts featuring interest, the usual prohibition of usury did not apply. The
heathen had apparently chosen not to be part of the universal family.
There were other theological reasons for the prohibition of usury in addition
to the divine, biblical proscription. A merchant was not permitted to demand a

187 88
See Elwood, Body Broken, pp. 4“5, ch. 4. Deuteronomy 23: 19“20 (KJV).
189
See Benjamin N. Nelson, The Idea of Usury: From Tribal Brotherhood to Universal Otherhood
(Princeton: Princeton University Press, 1949), pp. xv“xxi.
164 State Formation and Reformation


greater payment from a person who could not pay the account on time. To do
so, the merchant would be trying to sell what he did not own. Time did not
belong to the merchant; time belonged to God.90 Furthermore, pro¬t itself was
not endorsed early on: merchants were poorly regarded if they traded for gain
as opposed to what was just reward for their e¬orts,91 and the canon law con-
demned ˜ “shameful” pro¬t (turpe lucrum, “¬lthy lucre”)™.92 Of course, a uni-
versal stipulation appears never to be universally obeyed as a matter of factual
observation. Exceptions to the law of usury were available. For example, just as
self-defence, insanity or provocation do not undermine the universal law
against murder, exceptions to usury might occur were a loss to be incurred
through lending, or an agreement provided for a ¬nancial penalty if the loan
was not returned at the agreed time, allowing the lender to receive compensa-
tion. A lender holding a pledge could deduct from it expenses for caring for it.
The church could lend money for church purposes, such as crusades.93
Although usury had been losing its taint since the thirteenth century, it was
not until the Lutheran Reformation that usury achieved acceptance, when the
Mosaic law was pronounced dead and not binding on the conscience.94 Spurred
on by Reformation doctrines, usury was to become almost thoroughly accept-
able within Christian states by the seventeenth century. This was accomplished
hand-in-hand with the dramatic spiritualisation of productive labour and
greed for gain, or Mammon.95 The Protestant Reformations boldly dispensed
with Mosaic law and made more acceptable the unlimited lust for gain preva-
lent in all societies.96 The developing rationalistic economic society was struc-
tured not so much on custom or tradition but on the attainment of economic

190
Jacques Le Go¬, ˜Merchant™s Time and Church Time in the Middle Ages™ in Time, Work, &
Culture in the Middle Ages, trans. Arthur Goldhammer (Chicago: University of Chicago Press,
1980), p. 29. Similarly, university teachers were not supposed to charge money for selling
knowledge, which only God owned: Jacques Le Go¬, The Birth of Europe, trans. Janet Lloyd
(Oxford: Blackwell Publishing, 2005), p. 121.
191
Raymond de Roover, ˜The Scholastic Attitude Towards Trade and Entrepreneurship™ in
Business, Banking and Economic Thought in Late Medieval and Early Modern Europe (Chicago:
University of Chicago Press, 1974), pp. 339“41.
192
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1983), pp. 248, 337“8. The canon law is well
covered in John Gilchrist, The Church and Economic Activity in the Middle Ages (London:
Macmillan, 1969).
193
Malcolm Barber, The Two Cities: Medieval Europe 1050“1320 (London: Routledge, 1992),
p. 76.
194
Nelson, Idea of Usury, p. xix. In Islamic law, the prohibition against usury persists, a loan for
purchase of property being disguised as, in e¬ect, a licence to use the property which is owned
by the lender.
195
Scriptural references were used to support this idea. Some examples are: Christ™s parable of
the talents, where those who gained the greatest return on a money gift were rewarded
(Matthew 25: 14“30); Proverbs 22: 29 “ ˜Do you see a man who excels in his work? He will
stand before kings; He will not stand before unknown men™ (NKJV); and St Paul™s ˜If anyone
will not work, neither shall he eat™ (2 Thessalonians 3: 10 (NKJV)).
196
See Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons
(London: Unwin University Books, 1930 reprinted 1971), pp. 17, 19.
165 The reformation of state authority


pro¬t97 “ with an associated natural law and underlying economic logic.
Capitalism has been de¬ned by Max Weber as a ˜philosophy of avarice™, ˜an idea
of a duty of the individual toward the increase of his capital, which is assumed
as an end in itself ™.98 Seedlings of the spirit of capitalism were to grow and
choke the universalistic, traditional societies of the middle ages, in which all
aspects of life had been made to ¬t together naturally in harmony with the
universalistic teachings of Catholic Christendom. The calling, or the vocation,
of the medieval time, had been thought to come from heaven; but to the
Calvinists of the Reformation, the calling became a choice and strenuous
pursuit by the individual, according to individual drives.99 Everyday worldly
activity came to assume a religious signi¬cance.100 Individualism was eroding
universalist moral and ethical normativity (characterised by the outgoing
Catholic church law).
It would be arti¬cial to attribute modern capitalism to Protestant doctrines
in a cause-and-e¬ect manner. There had been signi¬cant capitalist activity from
the tenth century onwards, boosted by the new facilities for commerce provided
by Western legal science after the eleventh century. Max Weber™s famous thesis
that modern capitalism was prompted by Protestant theology has been widely
criticised, even though Weber quali¬ed his ¬ndings by noting that parallel
developments in commerce, ¬nance and industry are relevant.101 The critiques
of Weber do not detract from the value of his argument for our purposes.102
That there may have been Catholic support for some of the Protestant doctrines
about this time (sixteenth and seventeenth centuries), for example by the
Jesuits,103 may simply show that authority in Catholic countries was being jus-
ti¬ed in similar terms.104 What is of moment is the doctrine itself, not its
extoller “ hence my choice of the word ˜religion™, not ˜Protestantism™, in this
section heading. R. H. Tawney™s criticism that religious change was more due to
the economic changes, rather than vice versa,105 simply con¬rms the important
association of social theory with social order and the reaction of both capital-
ism and Protestantism to the old order. Similarly, the criticism should not
concern us that business people may have allied themselves with Puritans

197
See R. H. Tawney, ˜Foreword™ in Weber, Protestant Ethic, p. I(e).
198 99
Weber, Protestant Ethic, p. 51. Tawney, ˜Foreword™, p. 2; Weber, Protestant Ethic, p. 160.
100 101
Weber, Protestant Ethic, p. 80. See Tawney, ˜Foreword™, p. 6.
102
See e.g. Elton, Reformation Europe, pp. 312“18, although acknowledging the mass of
pamphlets and sermons of the seventeenth century, together with ˜so much sympathy™ which
˜stern Protestantism™ had for the ˜enterprising and independent mind™ (p. 316).
103
See generally H. R. Robertson, Aspects of the Rise of Economic Individualism: A Criticism of
Max Weber and his School (Cambridge: Cambridge University Press, 1933).
104
Catholic countries do not appear to have developed to quite the same extent, for they
were not as autonomous from government: see S. N. Eisenstadt, ˜The Protestant Ethic
Thesis in Analytical and Comparative Context™, reprinted in Roland Robertson (ed.),
The Sociology of Religion: Selected Readings (Harmondsworth: Penguin, 1969 reprinted
1972), pp. 309“11.
105
See R. H. Tawney, Religion and the Rise of Capitalism: A Historical Study (Harmondsworth:
Penguin, 1938).
166 State Formation and Reformation


because both groups sought freedom from external controls.106 Justi¬cation for
social action and authority in terms of the new theology was still sought.107
Upon this justi¬cation, law depended.
Weber™s thesis has strong explanatory power from our perspective. Rather
than explaining Protestantism as a cause of the Mammon-orientated society,
Weber™s thesis does very well to elucidate the underlying justi¬cations for state
and territorial authorities and the individualism which were taking hold. In this
sense, it provides an ample pivot for showing how authority was transformed,
over succeeding centuries, from God to Mammon as ultimate reality and
meaning. So what were some of those doctrines which were so crucial to the
transformation in legal authority?
The theological doctrine of predestination (˜supralapsarianism™), espoused
by John Calvin, a Frenchman who lived in Geneva, encouraged private indus-
try in a novel fashion. That industry supported the emergence of liberalism,
utilitarianism and the individualism of the later Enlightenment and nineteenth
century “ and the economics of the division of labour and specialisation which
coincides with globalisation nowadays. The individual fell upon a personal and
isolated quest. Satisfaction for an individual that she or he was one of those who
had been elected by God at the beginning of time to be saved was a matter of
personal self-convincing. An ˜implicit trust in Christ™ had to be relied upon,
together with good works as a sign of election to the saved.108 Faith had to be
proved in worldly activity, and emotional spiritualism was redirected into
mundane occupations,109 or callings (chosen by humans and usually very prac-
tical as opposed to, say, the older Catholic calling of the priesthood or the con-
templative life). Outward appearances were of heightened social relevance.
Salvation was signi¬ed (although not demonstrated or earned) by the appear-
ance of economic productivity. Sacraments were relegated to the realm of per-
sonal faith.
Economically, the division of labour and specialisation increased. Capitalism
received a boon. Production could increase by being undertaken where most
e¬cient,110 inspired by the perception of a vocation. Conversely, in matters of
philosophy and personal determination, there was to be a decrease in special-
isation with the passing of time. Humans became more autonomous and

106
See Kurt Samuelsson, Religion and Economic Action: The Protestant Ethic, the Rise of
Capitalism, and the Abuses of Scholarship, trans. E. Geo¬rey French [1957] (Toronto:
University of Toronto Press, 1993). Current ˜Protestant ethic™ literature appears in Lutz
Kaelber, Book Review (Protestantism and Capitalism by Jere Cohen) (2003) 28 Canadian
Journal of Sociology 575“81. More polemically, see Rodney Stark, The Victory of Reason: How
Christianity Led to Freedom, Capitalism, and Western Success (New York: Random House,
2005).
107
Non-Western cultures have been buttressed by helpful religions to encourage economic
success too: Francis Fukuyama, The End of History and the Last Man (New York: Simon &
108 109
Schuster, 1992), pp. 227“9. Weber, Protestant Ethic, pp. 110“13. Ibid., p. 121.
110
See Peter F. Beyer, ˜Privatization and the Public In¬‚uence of Religion in Global Society™ in
Mike Featherstone (ed.), Global Culture: Nationalism, Globalization and Modernity (London:
Sage, 1990 reprinted 1996), p. 380, discussing Luhmann.
167 The reformation of state authority


morally sovereign, and con¬dent of their own abilities to determine personal
norms. Every person became a priest unto herself or himself, and a philosopher.
Bene¬cially, by sanctifying the everyday aspects of economic production, the
worth was recognised of the masses of previously ignored and mostly oppressed
classes outside the royalty, nobility and clergy. In that respect, a new style of self-
propelled moral allegiance was possible. A ˜new emphasis on public spirit and
civic virtue™ accompanied parliamentary and judicial rule in England,111 which
suggests that Weber was inaccurate to focus only on the materialistic implica-
tions of Protestantism.112 These institutions, however, tended towards norma-
tive absolutism as they sought to monopolise the creation and interpretation of
law, discarding the multiplex medieval sources of law.113 Unfortunately, law, as
the guidelines for the exercise of social authority, was destined under this model
to be less capable of obtaining personal allegiance and moral authority. Rather,
law could become more a device for political coercion at the exterior end of the
Space Axis of the Space“Time Matrix “ a tool for getting things done. Time was
somewhat neglected: life could become more present-minded and disen-
chanted, although the authority for the new theology came from reinterpreting
historical scriptures.
Above all, this was a secularising and rationalising force, ˜one of the roots of
that disillusioned and pessimistically inclined individualism™.114 Unmediated
personal relationships with God, without community or, at best, with localised
communities of the faithful, tended to personalise behaviour in con¬‚uence
with self-administered judgement.115 Catholic countries secularised their legal
processes too, and their governments were open to legislating in areas once
within the competence of the ecclesiastical courts.


7.7 Demystification and globalist jurisprudence
The Protestant Reformations were, according to John Witte, ˜the second great
human rights movement of the West™ following the Papal Revolution. The
Protestant doctrine of equality before God and neighbour rendered every
person a ˜prophet, priest, and king™ with corresponding rights in the commu-
nity. With these rights there were, however, obligations or duties. The sinful-
ness of humanity meant that law and the protection of the state were required
to keep these newly endowed individuals within the natural constraints of
family, church and political community.116 Basic rule of law principles were


111
Harold J. Berman, ˜The Origins of Historical Jurisprudence: Coke, Selden, Hale™ (1994) 103
112
Yale Law Journal 1651“738, 1722. See Berman, Law and Revolution II, pp. 24“8.
113
See Strauss, ˜Idea of Order™, esp. pp. 11“12. The multiple sources of law and normativity of
old came to be associated with disorder. Such perceived chaos was thought to contradict
St Paul™s instruction in 1 Corinthians 14: 40 (NKJV): ˜Let all things be done decently and in
114 115
order.™ Weber, Protestant Ethic, pp. 103“5. Ibid., pp. 106, 222“3.
116
John Witte Jr, ˜Law, Religion, and Human Rights™ (1996) 28 Columbia Human Rights Review
1“31, 22“4.
168 State Formation and Reformation


encouraged too. Tyranny, at least in the German experience, was constrained by
the need for published laws applicable also to the ruler; justice was of increased
concern to the perfection of the earthly world; and civil disobedience was per-
mitted in certain circumstances.117 Other conditional rights to welfare, freedom
of marriage, rights to vote, fair trial, self-preservation, religious freedom, pro-
portionality in punishment and privacy can also be identi¬ed.118 Compared to
today, Sir John Baker has written that many but certainly not all of today™s
human rights were recognised and breached no more frequently in renaissance
England. Signi¬cantly, those rights were embodied in the common law and
developed through the people, through precedent, without the uncertainty of
modern human rights and the politicisation of the judiciary which tend to
undermine the rule of law.119 Justi¬cations for human or natural rights which
existed back then were much less grounded in individualism than they are
today.
Amidst the concentration of political and lawmaking authority in territorial
slabs, based upon relatively common Western secular innovations, new univer-
salist ideas of authority were emerging. Interior faith popularly became trans-
formed into behaviour to exhibit outwardly towards the exterior end of the
Space Axis in obvious worldly activity. Productivity became a new measure of
blessedness. It is true to pronounce a secularisation of the spiritual and a spir-
itualisation of the secular, as Harold Berman does of the Reformations.120 It is
also true to observe the abandonment of a dedicated spiritual power, universally
projected. The Two Swords (universalist) spiritual and (particular) secular con-
stitutionalism of the church and the kingdoms was melded into the one double-
edged sword of the territorial ruler whose reach was limited by the territorial
sphere of containable disruption. The early tendencies of parliamentary legit-
imacy demonstrated by Henry VIII™s embodiment of the ˜legislative mentality™
entailed, more or less, the vacation of an interior commitment to the role of law
as more than a tool for achieving political goals. With this decrease in interior
allegiance and the demysti¬cation of political institutions, one must welcome
the increase in consent and (what we would now regard as) democratic legit-
imacy. Many non-Western and even Western religious cultures struggle,
though, to accept the disenchantment and ¬‚uidity of norms generated by the
legislative mentality. So may be observed the West™s Faustian bargain of
increased consent for increased disenchantment.
Yet the Protestant reformers did not choose and could not, of course, have
known their role in taking steps towards the modern Western legislative

117
Witte, Law and Protestantism, pp. 13, 295“303.
118
R. H. Helmholz, ˜Natural Human Rights: The Perspective of the Ius Commune™ (2003) 52
Catholic University Law Review 301“25.
119
Sir John Baker, ˜Human Rights and the Rule of Law in Renaissance England™ (2004) 2
Northwestern University Journal of International Human Rights 3“23, 23. Cf. R. H. Helmholz,
˜Natural Law and Human Rights in English Law: From Bracton to Blackstone™ (2005) 3 Ave
120
Maria Law Review 1“22. See Berman, Law and Revolution II, pp. 64, 187.
169 The reformation of state authority


mentality which projects itself globally today. Despite Luther™s initial, vocifer-
ous disparagement of law and lawyers,121 law for the Protestants was married to
ultimate reality and meaning. Heaven on earth was the pursuit of Calvinists and
featured in the jurist Eisermann™s Lutheran thought.122 Amidst all of Luther™s
political ambitions, law was not conceived in his more mature framework to be
simply a tool for pursuing social policies, and law was not just made by gov-
ernments. Law had a transcendent quality. As Luther™s jurist, Oldendorp, wrote,
˜the study of law is the most important pursuit after God™s Word™.123
With the demysti¬cation of law and political institutions assisted by the
Reformations, law™s essential potential for achieving a better world has faded
from focus. A signi¬cant Protestant bequest to legal thought is that there are leg-
islative panaceas for all manner of social ailment, which can be e¬ected through
more and more mounds of legislation. Whilst the bene¬ts of legislation and
representative democracy are self-evident, a general, globalist jurisprudence
must wrestle with the surface rubric of ˜universal rights™ (which embody per-
ceived timeless aspirations) and ˜state sovereignty™ (which seeks to administer
the needs of the present). Tentative resolutions are explored in chapters 10“13.
Alas, two further chapters™ worth of excavations must be continued in the
interim, before resurfacing in today™s terrain.

121
See n. 44 above.
122
See Witte, Law and Protestantism, pp. 12, 150, 172; and Wieacker, Private Law, p. 209.
123
Witte, Law and Protestantism, p. 156.
Part 4
A Wholly Mammon Empire?
8

The constricted universalism of the
nation-state



A constitutional legacy of the Protestant reformers was the increasingly abso-
lutist, territorial state, aided by the innovative legislative mentality. The univer-
salist legal pluralism of Christendom fractured into states and territories claiming
legal monopolies. Generally these monopolies were grounded in the natural
rights of people living together in a territorial compact to protect themselves from
both within and without. As late as the eighteenth century in France, the divine
right of kings to govern still served this function. Out of that repression burst the
French Revolution and codi¬ed rights universal in aim but national in applica-
tion. Conventional legal and political theory locates the sovereign authority of the
state in the social thought of the English and French Revolutions. International
law at those times was universal to the extent that it tended to re¬‚ect a system of
norms of the lowest common denominator in a schoolyard of states administered
by bullies. Theorists continued to explore universal international and territorial
authority, constricted by the relativism inherent in competing nation-states
determined, like their constituents, to pursue their own economic and political
aspirations. Thus the inquisitive child of our Introduction1 can be told by the
adult today that law is obeyed because it comes from the state and it is justi¬ed
because it brings order to the pursuit of economic needs.
In this chapter, we shall see how the aspirations of the nation-state ascended
as a strategy for central authority, and how the ˜codi¬cation mentality™ assisted
that purpose. Despite formidable codi¬ers preceding him “ for example, God
(via Moses) and Emperor Justinian “ Napoleon was to ¬nd his people no more
adept at accepting his law without expansion, reform, clari¬cation and debate.


8.1 Universalism in a different guise
In the dusk of the Holy Roman Empire and the Christian commonwealth
(respublica Christiana) purportedly re¬‚ected in it, as early as 1598 the duc de
Sully had planned a universalistic European League of Princes to override the
ideological pretensions of the Holy Roman Empire, and to divide Europe along
territorial lines into ¬fteen equal states with attributes of modern sovereignty.

111
See ch. 1, pp. 1“2 above.
174 A Wholly Mammon Empire?


This prototypical League of Nations or European Union, meeting once a year
in alternative cities from a list of ¬fteen, was to be united against ˜the Turk,
laying down international law, settling disputes, preserving the peace, and pun-
ishing transgressors™.2 In its second edition, over one hundred years after the
author™s death, it was republished for maximum European e¬ect. It was predi-
cated on establishing an equilibrium of strength and an acknowledgement that
˜peace is a function of power™, with free trade, pooled sovereignty and joint
enforcement being contemplated.3 The imagined imperial function of a
European union can foggily be discerned: common security and conceptions of
transgression; and a common ideological or spiritual enemy, then the Ottoman
Turk (perhaps parallel to the illiberal nation-state of our times).
The universalist order envisaged in such projects was slow in the coming. It
would face increasing gravity from the nation-state and di¬culty projecting
itself beyond the totalising self-conception of nation-state sovereignty. The
international order was to become more orientated to the self-direction of par-
ticular states™ sovereign wishes before more universalist aims could be pursued
in earnest. The system of particular nation-states was projected as a new uni-
versalism. The previous Western universalism of our rhetorical holy Roman
empire had obtained allegiance through common, moral, religious bonds and
faith and the common Latin language, within the universalist political author-
ity of Two Swords legal pluralism. That was the Christian commonwealth. What
was, however, emerging was something di¬erent “ the European public law
system (ius publicum Europaeum). European public law conceived authority
more juridically and politically in equally sovereign European states. Rather
than the just cause (iusta causa) to unite the Christian empire against the
in¬del prince or empire, under the emerging European public law a state could
be a legitimate enemy (iustus hostis) of another state in what might be thought
of as a situation of European civil war.4 Obviously in the days of medieval
Christendom, princes fought one another; and the Catholic church would often
side with one prince against another. The conception in the seventeenth century
was di¬erent. Just wars were being justi¬ed according to the particular, self-
determining will of the emerging nation-state.
In the emerging era of the nation-state under European public law, the sov-
ereign nation-state was its own justi¬cation unto itself. As will be seen in
coming pages, the underlying authority was to evolve through a complicated,
secularising, territorially bound process. Morality was consciously removed
from the market in pursuit of free trade, and profound human rights were the-
oretically developed for economically productive people within the territory.

112
Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), p. 84.
113
Norman Davies, Europe: A History (London: Pimlico, 1997), pp. 662“3.
114
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870“1960 (Cambridge: Cambridge University Press, 2001), pp. 413“37, summarising Carl
Schmitt™s conceptualisation.
175 The constricted universalism of the nation-state


8.2 The secularisation of international law: European public law
In the de-universalising process of the emerging sovereign nation-state, Baron
Christian von Wol¬ (1679“1754) contributed to the humanisation of the natur-
alistic, idealistic rationalisations of international law, with his concept of ˜vol-
untary law™. He envisaged a supreme world-state, sovereign over individual
nations. This he considered a natural order. Such a natural order could be
enforced as a matter of Realpolitik by the majority of the civilised (Western)
nations, which was deemed to re¬‚ect the natural law, in a conservative justi¬-
cation of the status quo: ˜[t]hus, under the disguise of natural law, positive law
triumphs over it™. Law “ that is, positive law “ was dependent upon states or
nations for its moving force. Authority was moving from naturalistic reason to
a more earthly, pragmatic positivism: Wol¬™s work ˜can be considered as the ¬rst
private codi¬cation of positive international law, which had the e¬ect of spread-
ing its acceptance and consolidating its rules™.5 Although representing a shift
away from the Christian metaphysical rationality of the natural law tradition,
an earthly type of scienti¬c rationality underpinned the ensuing Enlightenment
transformation. The latter was a rationality which esteemed the normative
power of the individual and the state to govern themselves through a socially
contracted will. The universalism of the aspirations of the Enlightenment lay in
the very relativism sought to be encouraged. Recognising the political import-
ance of religion in an essentially Christian intellectual and social world, religion
was relevant only as a matter of national policy.6 As Christianity became the
province of particular nations, the universalist legal appeal of Christianity had
to fail, as the Christian commonwealth ceded to the model of European public
law.
Emerich de Vattel (1714“76) recognised the emerging particularity and rela-
tivity of claims to legality made by di¬erent nations. He acknowledged the posi-
tivism, divorced from a universalist rationality or natural law, which could seek
to justify international norms. That is, states could assert their wills independ-
ently of a higher, unifying universal wisdom or social logic. It was this particu-
lar and relative authority of the individual state, supreme though within its own
territory, which was ideally to be supervised by an international law which
recognised and attempted to reproduce state legal norms at an international
level. This represented something of an apology for the status quo. Vattel wrote
that ˜A dwarf is as much a man as a giant is; a small Republic is no less a sover-
eign State than the most powerful Kingdom.™7 Indeed, Article 2 paragraph 1 of

115
See Alfred Verdross and Heribert Franz Koeck, ˜Natural Law: The Tradition of Universal
Reason and Authority™ in R. St J. Macdonald and Douglas M. Johnston (eds.), The Structure
and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (The Hague:
Martinus Nijho¬ Publishers, 1983), pp. 36“7.
116
See Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter
de Gruyter, 2000), p. 288.
117
E. de Vattel, The Law of Nations (Philadelphia: T. & J. W. Johnson & Co., 1849), §18, p. 7.
176 A Wholly Mammon Empire?


the United Nations Charter (˜The Organization is based on the principle of the
sovereign equality of all its Members™) recognises Vattel™s doctrinal in¬‚uence.8
Vattel™s ideas re¬‚ected a Hobbesian idea of nature: rather than nature being
idealised, nature was the actual state ˜of men in their presocial isolation, each
self-dependent for survival and as yet uninhibited by the bonds of sociality™.
Independent states were to obey the laws of nature which were akin to the
natural laws of the Hobbesian presocial man in the war of all against all.9 This
idea of nature was heavily imbued with the philosophy of positivism: nature is
what exists, as a matter of practice or fact. Vattel developed the view of diplo-
macy and war as the total social process in international society. State govern-
ments represented their own abstract entities in international law and not the
individual humans who made up the society, leading to the ˜enforced alienation™
of the people from international law.10
Wholesale international legal positivism was ushered in by Johann Jacob
Moser (1701“85), who somewhat immodestly claimed to advance the only real-
istic approach, recognising only ˜treaties and custom as sources of international
law™.11 In his view there was no longer a strong need to ground authority in
reason, metaphysics and morality: politics and the cold, hard facts arising from
international relations were the alleged source of international law. Yet there
had still to be some ideological framework, which no human social system can
deny of itself. That framework was fraught with the Enlightenment paradox of
universal truth through individual perceptions of it within a territorially
de¬ned, economically productive, polity. Perceptions of ultimate reality and
meaning were changing, amidst this emergence in the European public law
period of what today is known as ˜international law™. Indeed, the term ˜public
international law™ was invented shortly after this time by Jeremy Bentham,
whom we shall encounter later in this chapter.


8.3 The secularisation of the economy
The gospel opposition between God and Mammon assists the understanding,
in stark symbolic terms, of the transformation in legal authority which took
place in much of Western Europe around the time of the French Revolution and
amongst Enlightenment philosophers. Initially I chose the word ˜Mammon™ in
the phrase ˜Wholly Mammon Empire™ as a matter of poetic licence when seeking
to compare the modern age with the Christendom of the loosely designated
Holy Roman Empire. ˜Mammon™, being the ˜devil of covetousness™ or ˜wealth
as an idol™12 is nonetheless an appropriate term to represent the theoretical

118
Verdross and Koeck, ˜Natural Law™, p. 38.
119
See Julius Stone, Visions of World Order: Between State Power and Human Justice (Baltimore:
The Johns Hopkins University Press, 1984), p. 81.
110
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
11
[13.105]. Verdross and Koeck, ˜Natural Law™, p. 39.
112
Shorter Oxford English Dictionary (Oxford: Oxford University Press, 5th edn 2002).
177 The constricted universalism of the nation-state


opposite of the authority of Christendom. Christ taught that Mammon was
opposed to God.13 Adopting the insight of Karl Barth,14 Mammon in the the-
oretical extreme, or the liberal ideology of freedom of markets, may well be a
belief in one type of God or theology as opposed to another type. All belief, for
Barth, acknowledges some theology featuring its own god or gods as the object
of highest desire and trust. Liberalism is a belief-system “ something of a reli-
gion. It emerged from Christianity.15
Karl Polanyi has famously referred to the ˜Great Transformation™ of the eight-
eenth century, concentrating upon England and France.16 In the outgoing eco-
nomic system of mercantilism, land had not been a commodity. Rather, it had
been part of social organisation, namely a basis for representation and partici-
pation in public life, in politics, law and the military. Similarly, labour was part
of the general organisation of society, deeply imbued with custom and regulated
by guilds. The state intervened to a great extent in the economies of these soci-
eties. To ˜deregulate™ both labour and land would have been to subordinate
society itself to the laws of the market. Unthinkable as it was prior to this time,
it was to happen. Land and labour were ¬ctitiously ascribed signi¬cance as com-
modities “ as being subject to unencumbered purchase and sale.
Social historians have termed this eighteenth-century phenomenon a move-
ment from a moral economy to political economy. In the moral economy,
for example, customary noblesse oblige had dictated that grain markets were
to be regulated so that peasants had access before the larger buyers purchased
the grain to resell at a pro¬t.17 This was a welfare principle preventing, for
example, a bulk purchaser from buying more cheaply than a small purchaser, it
being against religion and humanity to allow such a thing.18 Reading his reli-
gion and humanity di¬erently, parliamentarian Edmund Burke, despite being
famously conservative, sermonised the case of the free market which would
triumph.
The moment that government appears at market, all the principles of market will
be subverted . . . We, the people, ought to be made sensible, that it is not in break-
ing the laws of commerce, which are the laws of nature, and consequently the laws
of God, that we are to place our hope of softening the Divine displeasure to
remove any calamity under which we su¬er . . .19 [italics added]


113 14
Matthew 6: 24; Luke 16: 13. See ch. 3, section 3.1, p. 54 above.
115
It has been argued that liberalism lacks positive ideals (instead, its ideals are expressed in
negative terms such as ˜freedom from . . .™) because it has been severed from Christianity: see
Edward Skidelsky, ˜A Liberal Tragedy™, Prospect (January 2002), 14“15.
116
See Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1944).
117
See E. P. Thompson, Customs in Common: Studies in Popular Culture (New York: The New
Press, 1993), chs. 4“5.
118
See C. J. Kenyon in R v Rusby, Peake Add. Cas. 189; (1800) 170 ER 241 at [192], also wishing
that Adam Smith had been present to consider the evidence, at [193].
119
Edmund Burke, cited in Douglas Hay, ˜Moral Economy, Political Economy and Law™ in Adrian
Randall and Andrew Charlesworth (eds.), Moral Economy and Popular Unrest: Crowds,
Con¬‚ict and Authority (Hampshire: Macmillan Press Ltd, 2000), p. 103.
178 A Wholly Mammon Empire?


God was not now in the nobility which oversaw welfare initiatives; God had
become manifest in Adam Smith™s ˜invisible hand™ which solved the economic
problem by matching supply with demand in the liberalising market. The laws
of commerce were the laws of nature which were the laws of God. The consequent
de-moralisation of the economy represented the institutional separation of pol-
itics from the economy, and the objecti¬cation of the market. A telling case of
this new paradigm in England was Steel v Houghton.20 The majority opinion
held that no person had a right at common law to glean or take scraps from the
master™s ¬eld. Although precedent and learned writing (including from William
Blackstone) suggested that the poor did have a right to glean under the Jewish
law of Leviticus 23: 22, those references were found unconvincing given that
such a custom ˜would be injurious to the poor themselves™21 by the new logic.
The liberal economic transformation was a movement from interior to pur-
portedly more objective exterior references on the Space Axis of the Space“Time
Matrix. Under the mercantilist and medieval precedents, government had acted
in markets for moral (and not so moral) purposes in the economy. Under laissez-
faire liberalism, the economy was left, where possible, to its own devices. In this
Western European transformation led by England, the growth of credit and
speculation required a transformed view of the future, on the Time Axis. People
had to feel comfortable about their collective capacity to pay and perform their
obligations in the future. The new ˜image of a secular and historical future™
appeared, according to which future generations too would be willing to repay
debts including the collective ˜National Debt™.22 This ideology was universalist
and imperial “ ˜the agent of a new world order, a new empire, which would be
based not upon power and plunder, but upon reciprocity™.23 An evaluation of the
underlying transformation in authority can be conducted by reference to the
French Declaration of the Rights of Man and Citizen and then the Civil Code. The
French juristic vision facilitates an appreciation of the revolutionary legal dimen-
sions of liberalism (not so obviously expressed in the earlier liberalised England).


8.4 The French juristic vision
The French Revolution gave the Western world a profound set of norms.24 A
sophisticated concept of rights inspired a codi¬cation movement and juristic

120 21
1 H.B.L. 51; (1788) 126 ER 32. Per Lord Loughborough at [53].
122
J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chie¬‚y
in the Eighteenth Century (Cambridge: Cambridge University Press, 1985), pp. 98“9.
123
Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France
c.1500“c.1800 (New Haven: Yale University Press, 1995), p. 180.
124
The reasons for choosing the French over the American experience are fourfold: geographical
location; the French Declaration was the product of an indigenous political history as
opposed to a colonial reaction; France had the paradigmatic codi¬cation experience; and
space constraints. This risks unfairness given the Anglo-American in¬‚uences on the French:
see Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London:
Penguin, 2003), p. 585, referring to Jellinek™s research.
179 The constricted universalism of the nation-state


discourse, linking law to a modi¬ed ultimate reality and meaning of life, popu-
larly perceived. The ensuing Declaration of the Rights of Man and Citizen (the
˜French Declaration™) relegated God to the position of deistic creator who had
set in train the physical laws of nature but who had withdrawn to leave humans
in this world with their own laws.25 Authority was even more demysti¬ed and
secularised. The signi¬cance of the French Declaration is still being felt in the
constitutional principles of the twentieth-century universal declarations, as will
be seen in chapter 10.


8.4.1 Declaration of the Rights of Man and Citizen
The Enlightenment aim of ˜libert©, egalit© et fraternit©™ was the motto of the revo-
lutionaries in a time of crippling royal taxes, political oppression, and corpor-
atism (privileges were based upon status, not contract). On 26 August 1789, the
Declaration of the Rights of Man and Citizen, with its remarkable although not
strictly legal authority, was accepted by the representatives of the French people,
constituted as a National Assembly. The secular equivalent of All Souls™ Day26 had
arrived in France. All were equal in the eyes of God and now the market. Notably,
the feminine was not embraced by the text,27 although there was a drafting ambi-
guity, for example, in separate articles referring to ˜man™, ˜person™, ˜citizens™ and
˜society™. The outmoded privileges of the ancien r©gime, together with the divine
right of the monarch, were decapitated, in principle, at the execution of King
Louis XVI in 1793. At his trial, the leading political actors had been called upon
to justify their stances as a matter of political philosophy, in a forum akin to a
modern Western constitutional convention, albeit one with deadly intellect. The
revolutionaries were bene¬ciaries of the legislative mentality “ ˜the exaltation of
positive law and the weakening of all moral restraints on legislative authority™.28
Humans took responsibility for the text of the Declaration, which set out
the rights of man and citizen in France. It was created ˜under the auspices of the
Supreme Being™, not God by the old name. Individualism was paramount “ the
fortune of a nation, no less, depended upon its recognition of the ˜natural,
inalienable and sacred rights of man™, according to the Preamble. Although
aspiring to universality, these were not the principles of a universe of meaning
with an interconnected, preordained plan for everything in it. Rather, they were
principles which universalised the ˜disconnectedness™ of humans from society
and nature.29 The main principles to emerge from the Declaration, which laid

125
See John Toland, ˜Christianity Not Mysterious™, in Peter Gay (ed.), Deism: An Anthology
(Princeton: D. van Nostrand Company, Inc., 1968) and that anthology generally.
126
See ch. 5, section 5.2.2, p. 101 above.
127
See generally Sara E. Melzer and Leslie W. Rabine (eds.), Rebel Daughters: Women and the
French Revolution (New York: Oxford University Press, 1992).
128
See Michael Walzer, Regicide and Revolution: Speeches at the Trial of Louis XVI (New York:
Columbia University Press, 1992), p. 42.
129
See generally Thomas D. Barton, ˜Troublesome Connections: The Law and Post-
Enlightenment Culture™ (1998) 47 Emory Law Journal 163“236.
180 A Wholly Mammon Empire?


the foundation for the twentieth century emergence of human rights, may be
summarised.30
Equality ˜Men are born and remain free and equal in rights. Social distinc-
tions may only be founded on public utility™ (article I). Along this line,
public taxation ˜should be apportioned equally among all citizens accord-
ing to their capacity to pay™ (article XIII). Equality is therefore linked with
utility. Utilitarianism as a philosophy is oriented towards exploiting
means to obtain ends. A chief measure of utility is in terms of economic
productivity.
Property ˜The aim of all political association is to preserve the natural and
imprescriptible rights of man™, being ˜liberty, property, and security and
resistance to oppression™ (article II). ˜All citizens . . . have the right™
to approve the purposes, levels and extent of taxation™ (article XIV).
˜Property being an inviolable and sacred right, no one may be deprived of
it except for an obvious requirement of public necessity, certi¬ed by law,
and then on condition of a just compensation in advance™ (article XVII).
The goal of politics is directed ¬rmly to earthly purposes of individuals,
and not salvation. Property no longer represents a quali¬cation for polit-
ical representation.
Sovereignty ˜The principle of all sovereignty rests essentially in the nation™
and ˜no body and no individual may exercise authority which does not
emanate from the nation expressly™ (article III). ˜Law is the expression of
the general will . . . the same for all, whether it protects or penalizes™
(article VI). Whatever universalist, non-territorial constitutional princi-
ples may have existed under the church“state combination, those princi-
ples were now to be politically limited to the nation as the natural social
unit.
Liberal Freedom ˜Liberty consists in the ability to do whatever does not
harm another™ (article IV). ˜Law may rightfully prohibit only those actions
which are injurious to society™ (article V). ˜No one may be disturbed for
his opinions, even in religion, provided that manifestation does not
trouble public order™ (article X). ˜Free communication of thought and
opinion is one of the most precious rights of man™ allowing ˜[e]very citizen™
to ˜speak, write, and print freely, on his own responsibility for abuse of this
liberty in cases determined by law™ (article XI). Law serves no articulated
purpose other than to prevent injury, rather than to guide to virtue or
salvation.
Rule of Law ˜Every man [is] presumed innocent until judged guilty™ (article
IX). ˜No man may be indicted, arrested or detained except in cases deter-
mined by law and according to the forms which it has prescribed™ (article
VII). ˜Only strictly necessary punishments may be established by law . . .™

130
See The Declaration of the Rights of Man and Citizen, reprinted in Georges Lefebvre, The
Coming of the French Revolution (Princeton: Princeton University Press, 1967), p. 221.
181 The constricted universalism of the nation-state


and then not by retrospective legislation (article VIII). ˜Society has the
right to hold accountable every public agent of administration™ (article
XV). These rule of law notions have a lineage traceable to the English
experience of Magna Carta in the thirteenth century and the 1689 Bill of
Rights, although in the French Declaration they are clearly articulated in a
modern, populist document.
As with a good deal of law, there is hypocrisy and idealism when the reality
of the social order is compared with the aspirations of a legal text such as the
Declaration of the Rights of Man and Citizen. Advance had nonetheless been
made by codifying the chief political ideals of the Enlightenment philosophers.
Seeds of logic were scattered across transnational social soils “ rocky, weedy and
fertile “ which could take hold and germinate, in time, as norms which were to
prove authoritative in theory, even if often not in practice. Increasing conver-
gence between these basic human rights ideals and social practice was to follow
in the succeeding centuries in the West, re¬‚ected in both the statutes and case
law reasoning which followed in the essentially constitutional areas of property
law, freedom of speech and association, sovereignty and rule of law.
What was the nature of this new constitutional authority?


8.4.2 The rational, contracting, productive individual
The French Declaration was born into a time which was, in a new way, future
orientated on the Time Axis of the Space“Time Matrix. In implementing their
new humanist vision, the French ˜philosophes™ of the Enlightenment displayed
an obvious learning in the classics, although hostile to most of the achievements
of Christian philosophers and theologians. The Jacobins urgently sought to
achieve the French future even if by resort to terror in the last decade of
eighteenth-century France. The future was to represent a complete break from
the past. Time was being abstracted from custom into rationalised, intellectu-
ally conceived impositions, re¬‚ected in the new calendar, which was deci-
malised into weeks of ten days.31 Similarly, the view of spatial relationships was
radical: old local di¬erences and customs would be obliterated by new jurisdic-
tions for ˜the uniformly correct application of law throughout the nation, sub-
ordinating local prejudice, hierarchy and oppression to nationally guaranteed
ideals™, detracting from the sacredness and personality of everyday society.32
This universality was, though, quali¬ed. The ambition of this projection of uni-
versality was limited to the territorial boundaries of the French nation. This was
later unleashed further a¬eld by Napoleon, at the same time as he militarily

131
See Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938]
(Providence and Oxford: Berg, 1993), p. 213; Alfred Cobban, A History of Modern France,
3 vols. (Harmondsworth: Penguin, 1963), vol. I, p. 225.
132
Richard T. Ford, ˜Law™s Territory (A History of Jurisdiction)™ (1999) 97 Michigan Law Review
843“930, 876“7.
182 A Wholly Mammon Empire?


defeated the Holy Roman Empire in 1806 and thereby terminated its Christian
universalism. Yet despite containing a universalist moral vision, the French
Declaration was more concerned with state and citizen relations.33
In this way, the French nation-state projected what might be termed a ˜con-
stricted universalism™. Esteem of the nation and the state was the hallmark of
the Declaration™s authority, legitimating the general will as opposed to the
diverse associations of moral and cultural allegiance which had comprised
society. Herein a tension is exposed: the tendency towards con¬‚icting associ-
ations of tight interior allegiance embodied in the pre-revolutionary estate
system of clergy, nobility and the mainly bourgeois Third Estate remainder;
versus the tendency towards a political super-association, created afresh with
fewer lived references to the past and without strong moral and cultural bonds
forged through time, upon which to build a new vision for the future. The polit-
ical and economic starvation which had historically been su¬ered by the Third
Estate could not be endured by the masses, inspiring a later tendency of root-
less futurism. The ideal of this undi¬erentiated super-collective of function-
alised economic beings was ˜the complete nation™ for the purpose of authority,
in the words of the contemporary pamphleteer Abb© Sièyes.34
Abolishing privilege and increasing political participation must be a good
thing. An associated loss of identity and meaning should also be balanced,
though, with such a change to the structure of the normative universe.
Technological progress, in the form of the increased division of labour (alien-
ating skill and pride through the repetition of meaningless but consuming
tasks) and increased trade, undermined custom and social rank, creating an
undi¬erentiated state.35 Human associations lose meaning in the face of the
increased functionalisation of social life, as humans expose only particular
interests to the particular interest groups which comprise their social lives.36
Economic specialisation also has a counterpart social specialisation. The
modern Western human wears many di¬erent hats “ work, home, hobby,
family, church and more “ in di¬erent, particular, uncommitted social worlds
which crash and collide in cosmological confusion in a universe without per-
ceived meaning. This is the antithesis of the universe of meaning in which
existed the medieval society following the Papal Revolution.37
The ˜General Will™ as the source of the sovereignty of the nation was, above all,
presented as natural,38 as was the individual™s right to pursue self-interest. The

133
See Joy Gordon, ˜The Concept of Human Rights: The History and Meaning of its
Politicization™ (1998) 23 Brooklyn Journal of International Law 689“791, 729“35.
134
See Abb© Sièyes, ˜What is the Third Estate?™ in J. H. Stewart (ed.), A Documentary Survey of the
French Revolution (New York: MacMillan, 1951).
135
See James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge
University Press, 1995), pp. 67, 81“9.
136
See Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory
37
(New York: The Free Press, 1976), p. 168. See ch. 5, section 5.4, pp. 106“11 above.
138
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
[13.33].
183 The constricted universalism of the nation-state


aristocratic structure could no longer be justi¬ed logically.39 The logic of equal-
ity (in principle) had to overtake the custom and culture of privilege. The French
Declaration comprised rational, logical, visionary statements of principle,
directed to human government abstracted from human custom. Power was
depersonalised. Legal formality increased to give the appearance of neutrality
and predictability, as humans pursued their capitalist interests. The ˜bugbear of
the Enlightenment™ “ arbitrary governmental action40 “ required the deperson-
alisation of political power. Government was further objecti¬ed, at the exterior
end of the Space Axis.
The means for this abstraction of government from individual morality and
input was the ¬ction of the ˜social contract™. Natural freedom was limited by the
allegedly freely willed renunciation of personal freedom from smaller-scale
associations to the state. That renunciation, above all, was a renunciation of life
in a more thoroughgoing culture or nomos “ that is, the rejection of a value-
¬lled, moral universe where virtue and legality were connected in principle and,
at least, pretence (which is not to be underestimated for its power to inspire
a culture of compliance with norms). The state centredness of this logical
although uncustomary enterprise was, however, to retard the development of a
truly universal normative enterprise. In the process of depersonalising power, a
normative commitment to being unconcerned with normative commitment
was set in train.
The French Revolution launched an especially economic form of nationalism
or statehood, which proceeded, to use de Tocqueville™s words, with similarities
to ˜a religious revolution™.41 The French Revolution bequeathed the legacy that
political and economic allegiances can be greater than more cultural, interior
allegiances. A Jew could be a French citizen if accepting the requirement to
work. ˜Useful work™ quali¬ed one for membership of the nation. The French
nation no longer included the unproductive classes of ancien r©gime clergy and
nobility, which were akin, as Sièyes wrote, to ˜a malignant a¬„iction™ which ˜saps
and torments™ the body of a sick man.42
Reliance upon production and economic value re¬‚ected a di¬erent kind of
underlying constitutional authority. It was a legitimacy which transcended the
post-Reformation parochialism of religion and culture and those interior
though powerful moral allegiances. The attitude of the day was contractual and
political. Above all, it was tolerant of cultural di¬erence provided that proper
tribute was paid to the universalist ethical goal of being a productive member
of society. The market-led normativity of Mammon (which, at least where


139
See Niklas Luhmann, Law as a Social System, trans. K. A. Ziegert (Oxford: Oxford University
Press, 2004), pp. 434“40.
140
Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford: Stanford
University Press, 1990), p. 75.
141
Quoted in Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
42
Cambridge University Press, 2002), p. 387. Sièyes, ˜Third Estate™, p. 56.
184 A Wholly Mammon Empire?


consumers are concerned is extremely exterior on the Space Axis)43 was becom-
ing the logical good or index of goodness. Historical, Christian-led persecutions
of spiritual dissent, with attendant normative con¬‚ict and complexity,
were condemned by Enlightenment thought, particularly in France. Voltaire
(1694“1778) advocated an antique toleration which resembled Ancient Roman
logic and procedure.44 Veneration of the classics was a veneration of Greek phil-
osophy and its conquest of myth by reason. So too did the Enlightenment
philosophes believe their own projects to be advancing secularisation away from
Christian myth.45 The Enlightenment built and idolised the modern scienti¬c
attitude from foundations in Ren© Descartes™s proof of existence. His simple yet
profound cogito ergo sum (I think therefore I am) motif located reality in per-
sonal re¬‚ection, overcoming all other conceivable doubts about the reality of
existence.46 This attitude, it was hoped, ˜would become the prelude, and even
the servant, of moral and political improvement™.47 As Peter Gay has written, to
speak of this is ˜to speak of a subtle shift of attention: religious institutions, and
religious explanations of events were slowly being displaced from the center of
life to its periphery™.48
The perception of ultimate reality and meaning, and the human relationship
to that transcendence, of course changes over time.49 In the Enlightenment, and
embodied in the French Declaration, the ensuing contractarian and economic
approach to norms and authority ˜pretti¬ed the image of God™: no longer was
God an absolute monarch, but now a ˜constitutional ruler bound to save those
Christians who had ful¬lled their contractual obligations™.50 With such an
altered notion of God, there had to be a change in the nature of law. Law became
more than ever an instrument applied by political will to achieve social goals
“ ˜custom and convention became its antithesis™.51 Although the French
Revolution did not follow the instruction manuals of the philosophes, the
ensuing legal reforms implemented by Napoleon were a lesson from the proud
Enlightenment intellectual climate (although at the personal, psychological
level, Napoleon perceived himself to be ful¬lling biblical prophecy).52 The legal
reforms were characterised by the phenomenon of codes. They possess a
Western signi¬cance.

143
The market is ˜the most impersonal relationship of practical life into which humans can enter
with one another because of “its matter-of-factness, its orientation to the commodity and
only that”; and on that account it knows nothing about caring™. See Poggi, The State, p. 126.
144
See Peter Gay, The Enlightenment: An Interpretation/The Rise of Modern Paganism (New York:
45
W. W. Norton & Company, 1966, reprinted 1977), p. 51. Ibid., p. 81.
146
See Ren© Descartes, A Discourse on Method, Meditations on the First Philosophy, Principles of
Philosophy, trans. John Veitch (London: Everyman, 1997), pp. 25“6, 79“80.
147 48 49
Gay, The Enlightenment, p. 82. Ibid., p. 338. See pp. 8“10, 53“6 above.
150
Gay, The Enlightenment, p. 354.
151
Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University
Press, 2001), p. 91.
152
Napoleon took it upon himself to reconvene, in Paris, the Grand Sanhedrin of Jews (which
last sat in 68“70 CE) with the brief to reconcile Jewish law to French law: David S. Katz and
Richard H. Popkin, Messianic Revolution: Radical Religious Politics to the End of the Second
185 The constricted universalism of the nation-state


8.4.3 The codification mentality
A code, or not a code “ that is the question!
Whether ™tis better in the law to su¬er
The ¬‚aws and defects of numerous practiques,
Or to take arms against a sea of troubles,
And, by revising, end them! “ To Prune “ to change “
No more! And by a code to say we end
Abuses, and the thousand natural pests
That law is heir to: ™tis a consummation
Devoutly to be wished . . .53

This 1830 rendition of Hamlet™s soliloquy introduces the problematic of codi¬-
cation: to su¬er the complicated nature of law as it had become known through
practical cases and decisions, or supposedly to terminate those complications by
codifying them. Codi¬cation embodied, with practical e¬ect, the theological
paradigm shift of the Enlightenment. Deistic thought disclaimed revelation.54
The human in society ˜was free and able to go to perfection by the sovereign
power of reason, and reason had found its “natural apotheosis” in the fully ratio-
nal and therefore legitimately sovereign state™.55 Reference was made to God as
˜the Eternal legislator, Who has endowed the universe with unalterable laws™.56
Discourse or revelation in the form of case law surrounding these laws was
devalued. The public law was made subject to a written constitution. Ultimate
power was placed in a representative legislative assembly. Legislative rationality
overtook historical, cultural customs. Private law in non-uni¬ed states was sub-
jected to codi¬cation at a national level, overriding cultural di¬erences,57 in a
futurist vision purportedly freed from the past. An all-encompassing logic
sought to reduce the administrative ine¬ciency of cultural di¬erences by
codifying all of the norms in one convenient, expedient place, or by relying
upon the natural logic of new, invented laws in purportedly comprehensive
codes.58 Codi¬cation of laws in major and minor European states, and the


Millennium (New York: Hill & Wang, 1998), pp. 134“7. He had prepared to proclaim an
independent Jewish state in Palestine: Franz Kobler, Napoleon and the Jews (New York:
Schoken Press, 1976), pp. 55“7.
153
˜Codi¬cation™ reprinted from United States Law Intelligencer and Review (1830) in Charles M.
Cook, The American Codi¬cation Movement: A Study of Antebellum Legal Reform (Westport:
Greenwood Press, 1981), p. 111. Written by an American lawyer contemplating codi¬cation in
its topical period in the US from 1815 to the mid century, it neatly captures the contemporary
54
European issues. Gay, The Enlightenment, p. 376.
155
Henry E. Strakosch, State Absolutism and the Rule of Law: The Struggle for the Codi¬cation of
Civil Law in Austria 1753“1811 (Sydney: Sydney University Press, 1967), p. 121.
156
Gay, The Enlightenment, p. 384.
157
See Berman, Faith and Order, p. 133, regarding north and south France; Csaba Varga,
Codi¬cation as a Socio-Historical Phenomenon, trans. Sándor Eszenyi et al. (Budapest:
Akad©miai Kiadó, 1991), p. 14.
158
O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London:
Butterworths, 1994), [15.5.8].
186 A Wholly Mammon Empire?


overall in¬‚uence of this mentality of collecting, revising and positing them in
one place, facilitated the transition from the corporate government of the old
nobility regimes to centralised state governments.59


8.4.4 Enlightenment legal science
From the sixteenth century, codi¬cation ideas were percolating in England and
from the seventeenth century on the Continent.60 The Enlightenment and
ensuing French Revolution contributed a newer, although related, mentality to
that of the legislative mentality,61 which I shall term the ˜codi¬cation mentality™.
The mindset received expression in the philosophical revolution of Descartes in
the early seventeenth century. He located human reality in a mode of personal
re¬‚ection heavily dependent upon logic and intellect.62 Jurisprudentially:
A ˜good™ law in Cartesian thinking is a law which can be logically deduced from
a ¬rst principle; its ˜goodness™ is immanent . . . Cartesianism invested every posi-
tive law with the absoluteness of law as such. The relative validity of positive law
within a moral order of absolute validity had been transformed into the postu-
late of the absolute validity of every positive law.63

Reductionist and hyper-rational, this mentality purported to reduce case law
into simpler codes, by the e¬cient use of words and concepts. As such, much
doctrine in the French Civil Code was not new. It was subject to conservative
input, re¬‚ected in its content.64 What was radical was the application of the leg-
islative mentality (new rules can be made for society) to customary sources of
norms, where those norms were not necessarily inappropriate for society, but
were believed to be open to clearer expression in codes. Custom, history and
culture were submitted to the pride of mathematical logic, within an ideology
that used science for economic production.65 The aspiration was for rationally
deductive codes which would completely cover all interpersonal relations in
civil society, universally and not just in Europe.66
The Enlightenment favoured ˜abstracted rationality over information
supplied by the senses™;67 law had to be rationalised rather than just gathered
159
See Strakosch, State Absolutism, pp. 9, 14. On Continental experiences generally, see Thomas
Glyn Watkin, An Historical Introduction to Modern Civil Law (Aldershot: Ashgate, 1999), ch. 7.
160
See generally Gunther A. Weiss, ˜The Enchantment of Codi¬cation in the Common-Law
World™ (2000) 25 Yale Journal of International Law 435“532, 471“3 (England) and 451“2
61
(Continent). See ch. 7, section 7.5, pp. 157“61 above.
162 63
See e.g. Descartes, Discourse, p. 87. Strakosch, State Absolutism, p. 116.
164
See R. C. van Caenegem, European Law in the Past and the Future: Unity and Diversity over
Two Millennia (Cambridge: Cambridge University Press, 2002), pp. 65“8, discussing the
in¬‚uence of Portalis in J.-L. Halperin, L™Impossible Code Civil; Jean Louis Bergel, ˜Principal
Features and Methods of Codi¬cation™ (1988) 48 Louisiana Law Review 1073“97, 1081.
165
See Varga, Codi¬cation, pp. 94“5.
166
See H. Patrick Glenn, ˜The Grounding of Codi¬cation™ (1998) 31 U.C. Davis Law Review
765“82 at 766; van Caenegem, European Law, p. 40.
167
Barton, ˜Troublesome Connections™, 177. See too Peter G. Stein, ˜Roman Law, Common Law,
and Civil Law™ (1992) 66 Tulane Law Review 1591“604, 1595. On codi¬cation generally, see
187 The constricted universalism of the nation-state


factually and followed. There are two ways to do this. A deductive theory of law
proceeds by drawing a conclusion from a general proposition (as from a provi-
sion in code) applied to a particular circumstance (the case to be decided). An
inductive theory, on the other hand, proceeds in the case law fashion by drawing
a conclusion from the particularistic instances of the law, and applying the con-
clusion to a particular case by analogy. The inductive approach does not permit
of one truth, because ˜new extensions to existing rules can be revealed at any
time by the courts™.68 The scholastic method, in which the science of the Western
legal tradition originated, was though neither singularly deductive nor singu-
larly inductive: the whole was not derived from the parts (induction) nor were
the parts derived from the whole (deduction). The whole was in the parts inter-
acting with each other.69
The deductive mindset is characteristic of the operation of civil law codes.
The method of classical Roman law was far from such civilian code systems
which developed from the eighteenth century. Roman law, being inductive,
actually has more in common with English common law, given their inductive
emphases on case law, although the common law is more scienti¬cally coher-
ent.70 The old Roman ˜formal™ or ˜quantitative codi¬cation™ of Justinian and the
medieval initiatives which sought to express complex law in one place must be
distinguished from the ˜substantive™ or ˜qualitative codi¬cation™ sought to be
imposed by the codi¬cation mentality of the French Revolution. The latter
deductive ˜illusion of certainty™,71 self-deceptively pretended by modern civil
law, proceeds by way of a deductive logic which was not present in Roman law
or medieval codes.72
In its extreme eighteenth-century ideological form, the codi¬cation mental-
ity was a natural law battle against feudal history. Voltaire, for example, saw no
baby in the bathwater he sought to throw out. The only way to have good laws
was to ˜burn the existing ones and make new ones instead™, just as London, in his
view, had to be incinerated in the Great Fire to make way for wider and straighter
streets.73 French codi¬cation aims became more moderate and less naturalistic
around 1796, in draft laws which sought to link codi¬cation ideals to the
national legacy of the past.74 Yet there was still a general, European decline for

R. C. van Caenegem, An Historical Introduction to Private Law, trans. D. E. L. Johnston
(Cambridge: Cambridge University Press, 1988), ch. 4 and his Judges, Legislators and
Professors: Chapters in European Legal History (Cambridge: Cambridge University Press,
68
1987), pp. 39“53, 152“5. Stein, ˜Roman Law™, 1596.
169
See Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge,
MA: Harvard University Press, 1983), p. 142.
170
Justinian™s Institutes contain the famous tripartite division of law into persons, things and
actions, although this work comprises a small fraction of the whole Corpus, which is for the
most part a morass of case discussions.
171
The belief in ˜one right answer to any legal problem™ explains why civil law judges now tend
not to give dissenting opinions: Stein, ˜Roman Law™, 1596.
172
See Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1991), p. 43;
Bergel, ˜Features and Methods™, generally; and ch. 6, section 6.2.3, p. 127 above.
173 74
See Varga, Codi¬cation, p. 128. Ibid., p. 99.
188 A Wholly Mammon Empire?


almost two centuries of a historical, culturally based constitutional order.
Vanquished by political authority, the new order fostered a new type of individ-
ualistic morality, the legislative dictates of which struggled to achieve widespread
personal allegiance. Positivism, being the statement of law in writing by the rel-
evant political authority, was bolstered by the legislative power of the sovereign
nation-state. French revolutionaries such as Sièyes sought to impose on society
novel e¬ects from gathering and doing away with custom, with the associated
aspiration of law being freed from lawyers. The connection of lawyers to pre-rev-
olutionary legal science and the nobility motivated the revolutionaries to ˜laicise™
law (much as communist Eastern European countries initially sought to do away
with lawyers on account of their bourgeois normativity).75
Montesquieu, famous as an Enlightenment ¬gure seeking universal values
and for his praise of the English separation of powers principle (independent
legislature, executive and judiciary), at once appreciated the problems of par-
ticularity and diversity.76 Local and national characteristics of a people needed
to be taken into account in framing law. He justi¬ed his opposition to legisla-
tive reform and universal codes on a natural science of variations of senses in
hot and cold climates.77 His recognition of the virtue of the customary, histor-
ical nature of a people™s laws foreshadowed the stance adopted by ˜the Historical
School™ in Germany.


8.4.5 Rebellion from the Historical School
To understand how un-Roman and un-customary the codi¬cation movement
was, one of the greatest ˜modern™ Romanist thinkers, Friedrich Carl von Savigny,
assists with the ˜Historical School™ he founded.78 With the fall of the Holy
Roman Empire in 1806, the Napoleonic wars and oppression and the German
liberation and revenge had not dislodged the popular French codes in the Rhine

175
See Csaba Varga, ˜Utopias of Rationality in the Development of the Idea of Codi¬cation™ in
F. C. Hutley et al. (eds.), Law and the Future of Society (Wiesbaden: Franz Steiner Verlag
GMBH, 1979), pp. 22, 27“8, 35“6. Cf. Catherine Valcke, ˜Comparative History and the
Internal View of French, German, and English Private Law™ (2006) 19 Canadian Journal of
Law and Jurisprudence 133“60, 136“44.
176
See Montesquieu, Persian Letters, trans. C. J. Betts [1721] (London: Penguin, 1973 reprinted
1993).
177
See Montesquieu, The Spirit of the Laws, trans. A. Cohler, B. Miller and H. Stone [1750]
(Cambridge: Cambridge University Press, 1989).
178
See generally Hermann Kantorowicz, ˜Savigny and the Historical School™ (1937) 53 Law
Quarterly Review 326“43, 342; Peter Stein, Roman Law in European History (Cambridge:
Cambridge University Press, 1999), pp. 116“18. On Savigny and the Historical School in
general, see Franz Wieacker, A History of Private Law in Europe, With Particular Reference to
Germany, trans. Tony Weir (Oxford: Oxford University Press, 1995), chs. 20“2; Reinhard
Zimmermann, ˜Savigny™s Legacy: Legal History, Comparative Law, and the Emergence of a
European Legal Science™ (1996) 112 Law Quarterly Review 576“605; Joshua Getzler, ˜Law,
History, and the Social Sciences: Intellectual Traditions of Late Ninteteenth- and Early
Twentieth-century Europe™ (2003) 6 Current Legal Issues 215“63, 227“32; Valcke,
˜Comparative History™, 144“51.
189 The constricted universalism of the nation-state


valley, which remained for Savigny as a ˜Schandfrieden™ “ a peace of disgrace. For
many Germans, the codes represented ˜an expression of the modern era of eco-
nomic individualism™ and the basis for the codi¬cation of German law and the
uni¬cation of the Reich.79 For Savigny, though a proud German, the French
in¬‚uence and method became an object of odium (notwithstanding German
principles being contained in the code).80 In opposing A. F. J. Thibaut™s call for
a German Civil Code, Savigny did not mindlessly adhere to Romanist jurispru-
dence. By Savigny™s own de¬nition of his ˜rigorous historical method of
jurisprudence™:
Its character does not consist, as some recent opponents have strangely main-
tained, in an exclusive admiration of its Roman law; nor in desiring the unqual-
i¬ed preservation of any one established system, to which, indeed, it is directly
opposed . . . On the contrary, its object is to trace every established system to its
root, and thus discover an organic principle, whereby that which still has life may
be separated from that which is lifeless and only belongs to history.81

There was a place for legislation in Savigny™s scheme “ it was just not a total-
ising place. Law could not be separated from its history by legislating a
codi¬ed legal system, in Savigny™s opinion, because the law arises from unin-
tentional developments in that history which re¬‚ect the Volksgeist, or the spirit
of the people. That spirit was not necessarily metaphysical, but rather a
˜deposit, or residue, of local behaviour™.82 Not to be confused with a biological
concept, the Volksgeist was a cultural tradition, ˜almost identical with the
country™s judges and scholars™.83 The root of this system, or the organic prin-
ciple, was Roman jurisprudence. Therefore this was not pure folk law, but the
implanted Roman law.84 The ultimate source of the law had been in the schol-
arly interpretation and systematisation of the German ius commune, which
had developed over the centuries out of Justinian™s Corpus and the canon law
of the church.
Eugen Ehrlich™s sociology of law, an intensely analytical legal history, aptly
exposes the degree to which law, particularly in German territories, had been
organic, originating in the interior dimension of the Space Axis. For example,
consideration for the family, church, institutions of public welfare and rever-
ence for the dead were non-legislated social forces which gave rise to the duty
to make a last will and testament.85 Employment contracts, agreements with


179 80
Kantorowicz, ˜Savigny™, 336. See van Caenegem, European Law, p. 64.
181
Friedrich Carl von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, trans.
Abraham Hayward [1831] (New York: Arno Press, 1975), p. 137.
182
Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1990), p. 245; see too Tamanaha, General
83
Jurisprudence, p. 30. Wieacker, Private Law, pp. 305“6, 310.
184
H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford
University Press, 2nd edn 2004), p. 135.
185
Eugen Ehrlich, Fundamental Principles of the Sociology of Law, trans. Walter L. Moll [1913]
(Cambridge, MA: Harvard University Press, 1936), p. 115.
190 A Wholly Mammon Empire?


banks, corporate articles of association, contracts of supply and credit con-
tracts “ all of these ˜bring about the inner order of the group of human beings
that has its being within these economic associations™.86 These are examples of
Ehrlich™s famous notion of ˜the living law™. To attempt to codify and legislate
those living laws is to encase them in exterior authority on the Space Axis and
to separate them from a moral, cultural discourse and allegiance.
The failure of the conservative action spearheaded by Savigny had broader
European implications. Ultimate authority now conclusively hailed from
the sovereignty of legislation, a normative facility which had the power to cull
centuries of custom and legal growth in one fell enactment. Law had become
a means to social ends, a tool for getting things done, as Savigny™s later oppon-
ent, Rudolf von Jhering, believed it ought. Jeremy Bentham has become
famous for his ˜utilitarian™ philosophy which embodied that instrumentalist
view of law.


8.4.6 Bentham and the codification mentality
Bentham declared, with some success in France, Spain and the Spanish
Americas, that parliament should ˜codify™ all of the laws to escape the arbitrari-
ness of the judiciary and the lawyers who constantly o¬er new explanations of
law. Credited with inventing the very word ˜codi¬cation™, the French Revolution
saw this Englishman distinguished with honorary French citizenship in 1792.87
His high exuberance for, and self-propulsion in, this scienti¬c art were matched
only by his total lack of practical experience in the same.88 Calling for short sen-
tences and commonly understandable language in law, Bentham™s own legal
writings bore no obvious witness to his cause.89 His singular indi¬erence to
the political regimes and history, language and cultural aspects of his clients
illustrates his ¬‚awed understanding of the social nature of law.90 His oppos-
ition to rights such as those of the French Declaration was based upon his crit-
icism that such rights simply were not everywhere protected,91 demonstrating
further lack of insight into the futurist, aspiratory dimension of law on the Time
Axis.

186
Ehrlich, Fundamental Principles, p. 46.
187
Philip Scho¬eld, ˜Jeremy Bentham: Legislator of the World™ (1998) 51 Current Legal Problems
115“47, 118. See too Jeremy Bentham, Legislator of the World: Writings on Codi¬cation, Law,
and Education (Oxford: Oxford University Press, 1998).
188
Scho¬eld, ˜Jeremy Bentham™, 144; Varga, ˜Utopias of Rationality™, p. 30.
189
See John Dinwiddy, Bentham (Oxford: Oxford University Press, 1989), p. 61.
190
William Twining, Globalisation and Legal Theory (London: Butterworths, 2000), p. 101;
Dinwiddy, Bentham, pp. 69“71; cf. Jeremy Bentham, ˜Of the In¬‚uence of Time and Place in
Matters of Legislation™ in John Bowring (ed.), The Works of Jeremy Bentham (Edinburgh:
William Tait, 1843), vol. I.
191
See Jeremy Bentham, ˜Nonsense upon Stilts, or Pandora™s Box Opened, or the French
Declaration of Rights Pre¬xed to the Constitution of 1791 Laid Open and Exposed™ in Philip
Scho¬eld et al. (eds.), Rights, Representation, and Reform: Nonsense upon Stilts and Other
Writings on the French Revolution (Oxford: Oxford University Press, 2002).
191 The constricted universalism of the nation-state


Jeremy Waldron declares, attempting to refute Savigny and with reliance on
Bentham, that the Savignian defenders of historical jurisprudence absurdly
associated the codi¬cation mentality with natural law and reason.92 Such a con-
demnation appears to overlook the fact that the very thing being done through
codi¬cation was to impose law from the intellect or the logic of an assembled
parliament. Old positive law with an historical, cultural discourse was being
replaced by a new type of positive law imposed by the state, preoccupied with
the new natural law of political rationality.
For Bentham, it was precisely the lack of logic and design behind compli-
cated customs and judge-made common law that provoked his interest in cre-
ating certainty through rationally articulated laws in code form. After all,
in Bentham™s view there was only as much ˜genuine reason™ in a ˜volume of
Common Law™ as there was ˜in a dunghill here and there a grain of corn™.93 This
imposition of Benthamite logic and rationality ignored the organic order
which, in Savigny™s view, lay behind the volumes of customary and juristic law.
Being overlooked by the codi¬ers, in Savigny™s view, was the tangled complex-
ity of doctrines which the Continental jurist (not speci¬cally Savigny™s contem-
porary judges whom he did not respect)94 sought to reconcile within a tradition,
giving rise to normative and legal richness. A similar pride could be taken in the
English common law with its discourse rich in references to the past which
maintained stability whilst accommodating change. Bentham embraced a
concept of law which could only acknowledge law as being properly so called if
it came from top-down sovereign command, in pursuit of the utilitarian prin-

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