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ciple of the greatest happiness of the greatest number. The very naturalism of
his logical as opposed to customary framework was disguised by his irre-
deemable positivism.95
Although Bentham contemplated reducing custom to neat rules, any attempt
to reduce custom to rules is to change the customs through the interpretation
of new words.96 Inducing general rules from cases to codes leads to a process of
sifting and discarding material including complexities belonging to a discourse;
whilst using that code and deducing the applicable rule from the resultant code
creates an added distorting п¬Ѓlter. Problems of interpretation and misinterpre-
tation ensue in a situation where вЂ˜true meaning’ is presumptuously thought to
exist on paper in black and white. In fact, many of the legal doctrines arising
from the French Revolution such as freedom of contract and property have
actually been said to originate not so much in the text of the French Civil Code
(that is, the Napoleonic Code) but in the meanings ascribed to those words by

192
See Jeremy Waldron, вЂ˜Custom Redeemed by Statute’ (1998) 51 Current Legal Problems 93–114,
93
94–5. Cited from Schoп¬Ѓeld, вЂ˜Jeremy Bentham’, 126.
194
See Kelley, Human Measure, p. 244.
195
See David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-
century Britain (Cambridge: Cambridge University Press, 1989), pp. 224–32.
196
Ehrlich, Fundamental Principles, ch. 18; Niklas Luhmann, Law as a Social System,
pp. 241–3.
192 A Wholly Mammon Empire?


the nineteenth-century French treatise writers.97 This represents a type of
вЂ˜decodiп¬Ѓcation’.98
Defeated perhaps by the English affinity for customary law as opposed to
abstract sources, such as ancient Roman law,99 Bentham was unable to achieve
acceptance of Roman law in England. He did, however, help to secure the pos-
ition of the state legislature as the supreme law generating institution in the
Western rule of law world. Well within the function of the legislature was the
power to obliterate, corrupt and re-declare law which had been established
organically over centuries. In this sense there is something of the codification
mentality in English law, demonstrated, for example, by the legislative activism
in creating вЂ˜partial’ or вЂ˜quasi-codiп¬Ѓcations’100 of company, commercial and
criminal laws. Similarly, there was, in England, Bentham’s constitutional pre-
occupation with the strong, centralised, sovereign state, entrenched until rela-
tively recently in English legal discourse by the likes of Austin and Dicey.
Perhaps the most benign form of codification was that which originated at
this time in the п¬Ѓeld of public international law. Bentham had tried to graft his
strong opinions about codification onto international law. In the tradition of
the developing universalistic hope for centralised forms of state co-operation,
Bentham detailed international institutions and relations similar in form to the
twentieth-century institutions of public international law, although his pro-
posed code was irretrievably idealistic in its quest to be unambiguous, logical
and without need of commentary.101
The very cosmopolitanism of Bentham, demonstrated by his generous inter-
est in various states of the world and his desire to assist them by offering his ser-
vices as a codifier to them, make him a significant jurist in the legal history of
globalisation. Bentham thought he was addressing the entire п¬Ѓeld of law as he
sought to construct вЂ˜the п¬Ѓrst authentic system of “universal jurisprudence” ’.102
To this extent, codification is perhaps imperial and dangerous, although on
another view, when drafted loosely, the exercise of undertaking codification is
an activity conducive to the sharing of norms and the reconciliation of complex
human behaviour patterns. (This idea will be explored in the case study of inter-
national commercial law in chapter 12.)


197
See James Gordley, вЂ˜Myths of the French Civil Code’ (1994) 42 American Journal of
Comparative Law 459–505.
198
See Maria Luisa Murillo, вЂ˜The Evolution of Codiп¬Ѓcation in the Civil Law Legal Systems:
Towards Decodification and Recodification’ (2001) 11 Journal of Transnational Law and Policy
163–82, 172–5.
199
Alan Watson, The Evolution of Western Private Law (Baltimore: The Johns Hopkins University
Press, expanded edn 2001), p. 258.
100
R. C. van Caenegem, Judges, Legislators and Professors: Chapters in European Legal History
(Cambridge: Cambridge University Press, 1987 reprinted 1996), p. 43; see too Varga,
Codification, pp. 148–9. Common law codifications are formal or quantitative as opposed to
the substantive or qualitative civil law codifications: see p. 187 above.
101
See R. P. Dhokalia, The Codification of Public International Law (Manchester: University of
102
Manchester Press, 1970), pp. 38–40. See Lieberman, Province of Legislation, p. 221.
193 The constricted universalism of the nation-state


8.5 The struggle for European community
Although Enlightenment ideals and legal science were universal in their aspir-
ations (as was Napoleon), those which we have so far seen were limited in their
political expression to territories defined in economic terms. These nation-
states were assumed as natural units for Western, if not world, order. Yet there
were ideas and initiatives aspiring to a more universal political significance at
the level of Europe, in the quest for the world society.
Transcending the nation-state at the more universal level, the Enlightenment
influence rendered вЂ˜Europe’ a term more desirable than вЂ˜Christendom’.
Publicists of the time appealed for such things as a European parliament, a
European confederation and orchestrated initiatives to settle disputes. The
Treaty of Utrecht of 1713 provided the last reference to the вЂ˜Christian com-
monwealth’, although common norms would continue to subsist. From the
1714 Hispano-Dutch Peace Treaty of Utrecht, вЂ˜Europe’ had been increasingly
appearing in place of вЂ˜Christendom’.103 In 1751, Voltaire noted the common
European public law and political principles, and similar religious foundations,
whilst in 1796, Edmund Burke wrote that вЂ˜[n]o European can be a complete
exile in any part of Europe’.104
The Age of Enlightenment and the French Revolution brought forth, in add-
ition to strong French nationalism, utopian visions of a single European society.
Those visions were grounded in the benchmark liberal logic that all men are free
and equal and that a realisation of this fact would solve all social ills by allow-
ing men to compete with one another for their betterment. Such thinking also
gave way to thoughts of a universal republic governed by French hegemony.105
These proposals now concentrated upon the nation-state as the desirable polity,
featuring amongst other things a prototypical League of Nations and inter-
national arbitration as opposed to international government. Transcendent
authority was relocated from the traditional God of the heavens to the political
compact of the economically defined peoples of the nation-states.
A prototypical European economic community was coercively attempted by
Napoleon, in the Milan Decree of 1807: French-occupied countries, and those
seeking Napoleon’s co-operation such as Russia, Sweden and Denmark, were
forbidden from trading with the British.106 Although the 1815 Declaration
against the Trade of Negroes contained historical references to вЂ˜the Holy and
Indivisible Trinity’ and вЂ˜all Powers of Christendom’, a secular standard now also
appeared which was to replace references to Christendom: the вЂ˜community of
civilised nations’.107
The Concert of Europe (the so-called Vienna Congress), born in 1818 of the
Napoleonic Wars, provided for consultation amongst Great Britain, Austria,
103 104
Grew, Epochs of International Law, p. 292. Davies, Europe, pp. 7–8.
105
See Hans A. Schmitt, The Path to European Union (Baton Rouge: Louisiana State University
106
Press, 1962), p. 6. Davies, Europe, p. 712.
107
Grewe, Epochs of International Law, p. 289.
194 A Wholly Mammon Empire?


Prussia, Russia and France on mutual problems. It also had the ideological
purpose of suppressing the extremes of Jacobin-espoused liberty, notably in
Germany through the Carlsbad Decrees of 1819 which restricted freedom of
expression. The flexibility of the consultative process, which, together with the
statesmanship of Metternich achieved a somewhat exaggerated вЂ˜century of
peace’ compared by some to the pax Romana, was not ultimately to fall until the
outbreak of World War I. The German Customs Union disposed of the eco-
nomic barriers between the thirty-eight German states, achieving union at
about the same time as Italy around 1870, largely driven by nationalism. Despite
the Franco-Prussian War of 1870 (which helped to achieve both the Italian and
German unions), the League for the Union of Europe, founded in 1869, sur-
vived this war and maintained вЂ˜a high-minded tenacity that refused to let
Europe die in the minds of men’, although it was вЂ˜far removed from the main
stage of political life’.108


8.6 Globalist jurisprudence and the Enlightenment
Standing on the platform of the Reformation legislative mentality, the
Enlightenment codification mentality boosted to higher levels of disembodied
reason the fallacy that law comes from one just one place, the state. In the nine-
teenth century, not only had codification occurred in the European countries of
France, Austria, the Netherlands, Serbia, Italy, Romania, Portugal and Spain,
but Latin American countries, Turkey, Egypt and Japan felt its impetus too.109
Codification thinking, as an adjunct of the nation-state, therefore had some
вЂ˜global’ and not just Western signiп¬Ѓcance.
Reaction to the state centralism of the nineteenth century shares similarities
with some of today’s anti-globalisation platforms. Norms from one place which
are sampled, siphoned, п¬Ѓltered and imposed somewhere else upset interior,
regional, cultural affinities, customs and histories. That imperial process
also upsets local, cultural visions for the meaning and purpose of life. On the
Space–Time Matrix, such a legislative approach to law inhabits the exterior end
of the Space Axis and the future, progress-hungry dimension of the Time Axis.
References were few to the interior and past dimensions of the Matrix, neces-
sary for a flourishing society with laws believed in rather than just coerced.
Codification eschews custom, diversity, regional norms and the historical nar-
ratives of peoples which give meaning to law and social life. (In England at that
time, custom was also eschewed to some extent by the advent of stare decisis –
the doctrine of precedent – which enshrined only such custom as was accepted
to be law by a judicial hierarchy.)110 The European experience demonstrates that


108
Schmitt, Path to European Union, p. 7.
109
RenГ© Cassin, вЂ˜Codiп¬Ѓcation and National Unity’ in Bernard Schwartz (ed.), The Code Napoleon
and the Common-Law World (New York: New York University Press, 1956), pp. 49–50.
110
H. Patrick Glenn, On Common Laws (Oxford: Oxford University Press, 2005), p. 44.
195 The constricted universalism of the nation-state


even culturally similar peoples have legitimate objections to being homogenised
by the mathematical wisdom of centralised lawmakers. How much more sensi-
tive, then, must regional and purportedly global normative initiatives be to local
circumstances.
Internationally, future visions of peace on earth were glimpsed through
imagined institutions and new tables of rights – the French Declaration of the
Rights of Man and Citizen and the US Bill of Rights – which would ground
developments in the twentieth century. God was disappearing from treaty
references and as the source of domestic legal authority. In this respect,
Napoleon’s code вЂ˜fell from heaven’ like a вЂ˜holy book’ to safeguard the new bour-
geois, free-market order, to be protected from contamination by custom, canon
law, natural law and Roman law. All other French civil law was purportedly
repealed,111 removing, on the Time Axis, the allegiance possible from a
common history. Napoleon tried to bind the future to the market and his per-
sonal will by positive laws.112
For all of these exterior, coercive tendencies of law, separated from interior
moral allegiance and the allegiance which comes of cultural customs, the
Enlightenment contributed an ironic commitment to being uncommitted. That
is, one should be committed to a life of questioning and debunking social struc-
tures. One could be committed to general вЂ˜motherhood’ statements of princi-
ple, but not unhesitatingly to specific content. In an interconnected world
where state boundaries, rivers, seas and oceans provide little insulation or buffer
from what is done on the other side, commitment to norms and processes will
be essential. Just what norms and processes deserve that commitment are moot.
Some suggestions are offered in chapters 9 and 10. In chapter 9, to which we
turn, investigation of the nation-state concept will also assist understanding the
constricted ability of nation-states to project universalist norms successfully.

111
See van Caenegem, European Law, pp. 68–70.
112
See Bergel, вЂ˜Features and Methods’, 1079; Ehrlich, Fundamental Principles, p. 433.
9

The incomplete authority of the
nation-state



Humans at an individual level are the logical starting place for a social philoso-
phy concerned with the significance of norms and the social conditions for
human flourishing. Norms, if they are to be successful, should appeal to the
interior dimension of the human on the Space Axis of the Space–Time Matrix;
not just decreed from the exterior dimension by state legislation. Interior alle-
giance requires appealing, amongst other things, to shared culture, language
and history – to those instincts and institutions which motivate humans in their
collective endeavours. Concerning the political implementation of these
instincts and institutions, there can be little doubt, at least for the foreseeable
future, that the nation-state is, and is likely to remain, the basic unit of inter-
national order, and legally paramount with respect to local societies. To speak
of the вЂ˜nation-state’ then begs a question, if we are to understand the basics of
contemporary human ordering: what is the nature of the nation-state, and, by
implication, the separate natures of both the nation and the state? Having con-
sidered the immediate Western consequences of the French Revolution, it is at
this point of our excavation into Western law and authority that the moral and
political attachments of greatest socio-legal significance for today can now be
traced.


9.1 The cultural foundation of the nation
The вЂ˜nation’ as a concept has been around for thousands of years. For example,
the Fourth Book of Moses, Numbers, contains a prophetic reference to Israel
amongst the nations.1 As will become apparent, that idea of the nation is very
simple compared with the complexity of nationalism as it erupted in the twen-
tieth century.2 Rather than applying to an extended tribe, modern nationalism
with its fictitious ideas of a scientific racial commonality has been a tendency
generated by the industrialisation and then fragmentation of society. Primarily

11
Numbers 23: 9: вЂ˜For from the top of the rocks I see him, And from the hills I behold him:
There! A people dwelling alone, Not reckoning itself among the nations’ (NKJV).
12
Cf. Aviel Roshwald, The Endurance of Nationalism: Ancient Roots and Modern Dilemmas (New
York: Cambridge University Press, 2006), asserting a continuity, although acknowledging a
distinction, between pre-modern and modern nationalisms (p. 12).
197 The incomplete authority of the nation-state


a negative concept, Isaiah Berlin once defined national movements as responses
to wounds inflicted on peoples, moving as a twig springs back and whips the
face of the person touching the twig.3


9.1.1 Language and nation
About the turn of the eighth and ninth centuries, the Venerable Bede had
referred to the gens Anglorum (English nation).4 From the ninth to eleventh cen-
turies, there was a history of antagonism between the multiple, parcellised sov-
ereignties of Europe, particularly in Germany, as we saw prior to the Papal
Revolution.5 There was difficulty in giving names to the two Frankish states
which comprised what are now France and Germany. Both were вЂ˜Frances’,
carved out of the regnum Francorum. The labels вЂ˜East’ and вЂ˜West’ did not at the
outset evoke national consciousness. Perhaps the greatest contrast between
them was in the language: in the West the language was Romance; and in the
East, the language was diutisc, from which derived the modern German deutsch,
meaning вЂ˜germane or alike’. As Marc Bloch concluded:
The use of the same language draws men closer together; it brings out the
common factors in their mental traditions and creates new ones. But a difference
of language makes an even greater impact on untutored minds; it produces a
sense of separation which is a source of antagonism in itself. . . . Nothing is more
absurd than to confuse language with nationality; but it would be no less foolish
to deny its rГґle in the crystallization of national consciousness.6

An early inkling of English nationalism was noted by a hagiographer, describ-
ing the marriage of Henry I (the Norman William the Conqueror’s son) to a
princess of the ancient dynasty of Wessex.7 Other than these references, nation-
alism at that time, as we now consider it, did not exist. What origins there were
appear mainly as linguistic commonalities. From the end of the twelfth century,
some universities organised вЂ˜nations’ of students from geographically proxi-
mate areas (with some ethnic-based exceptions).8 In the fourteenth and п¬Ѓf-
teenth centuries, вЂ˜patriotic spirit’ was more present than вЂ˜nationalism’ as such.
Certainly there was no such thing as an exclusive national homeland. That
concept is a вЂ˜modern fantasy’.9
Benedict Anderson, in his book Imagined Communities, further empha-
sises the importance of language and its consolidation through print in the

13
See David Miller, вЂ˜Crooked Timber or Bent Twig? Isaiah Berlin’s Nationalism’ (2005) 53
Political Studies 100–23, 101; see too Roshwald, Nationalism, ch. 3.
14
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
Cambridge University Press, 1995), p. 13.
15
Marc Bloch, Feudal Society, trans. L. A. Manyon (London: Routlege & Kegan Paul, 1942),
6
p. 433. See too ch. 5, section 5.1, p. 96 above. Bloch, Feudal Society, pp. 434–6.
17
Ibid., p. 432.
18
Jacques Le Goff, The Birth of Europe, trans. Janet Lloyd (Oxford: Blackwell Publishing, 2005),
9
pp. 175–6. See Norman Davies, Europe: A History (London: Pimlico, 1997), p. 217.
198 A Wholly Mammon Empire?


constitution of national identity. What he termed the вЂ˜imagined community’ of
Christianity was maintained to a significant degree by the common language of
Latin, which facilitated supranational communication. Print created the possi-
bility for shared simultaneity. Common issues and events could be experienced
through a medium of dissemination not confined by parochial languages
and word of mouth, enabling reports of emerging common interest to traverse
distances in book or pamphlet form. Latin had been a language of bilinguals.
New markets also appeared for books in local languages in addition to the
universal Latin language. The Protestant Reformations contributed to the
undermining of the Latin language and its supranational community of
Christendom. Administrative vernaculars became popular in the sixteenth
century, consolidating moves towards the decentralisation of universalist high
Latin and Roman church culture into parochial, nationalising communities.
вЂ˜These fellow readers, to whom they were connected through print, formed, in
their secular, particular, visible community, the embryo of the nationally imag-
ined community.’10
The interior, cultural consciousness of ancient times is a weak form of
nationalism. On the Space Axis, nationalism is dependent upon groups becom-
ing aware of other groups exterior to them, and a sense of progress and history
is required on the Time Axis of our Space–Time Matrix. Nationalism becomes
stronger when peoples, aware of cultural diversity, become more aware of cul-
tural change, inspiring comparisons to other cultures.11 Allegiance to a national
identity is, therefore, a social construct, drawing on mental traditions.
Nationality exists in the mind. That accounts for its power, fluidity and at times
lethality. вЂ˜[W]here people deп¬Ѓne situations as real, they are real in their conse-
quences.’12 Psychology is arguably the most useful discipline via which to
enquire into the concept of the nation.13


9.1.2 Industrialisation and nation
Traditionally, as we saw,14 Western society was in essence status based. People
were characteristically born into their social position and rarely ventured
beyond their inherited status, subordinated as they were to the hierarchical
webs of dependence and reciprocal rights and duties enmeshing kings, lords,
knights, serfs, villeins and clergy. There was little scope to вЂ˜climb the social

10
See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (London: Verso, 1991), pp. 37–44.
11
See John Plamenatz, вЂ˜Two Types of Nationalism’ in Eugene Kamenka (ed.), Nationalism: The
Nature and Evolution of an Idea (Canberra: Australian National University Press, 1973),
pp. 22–36.
12
Ray Pahl, вЂ˜Are all Communities Communities in the Mind?’ (2005) The Sociological Review
621–40, 637.
13
Renier, cited in Davies, Europe, p. 381. See too Neil MacCormick, Questioning Sovereignty:
Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press,
14
1999), p. 172. See ch. 4, section 4.5, p. 88 above.
199 The incomplete authority of the nation-state


ladder’, so to speak. The movement from status to contract can be associ-
ated with emerging social contractarian thought and eventually with the
Enlightenment ideology of autonomy, equality and universal brotherhood in
reason. This segued with the liberalism of the Industrial Revolution, which spilt
through the Western social and ecological landscape in the late eighteenth, early
nineteenth centuries.
According to Ernest Gellner, the status-bound relationships of the previous
agrarian economy dissipated into вЂ˜anonymity, mobility, atomisation . . . [and]
the semantic nature of work’. (Semantic work replaced the agrarian reliance
upon brawn, and is based upon some degree of literacy and sophistication,
typically involving machinery.) Homogeneity (rather than status-dictated
differences) became the political bond, leading to acceptance in the high culture –
the culture used by the bureaucracy. Difference conjured subservient status.15 To
some extent this was borne out by the new British nationalism which, from the
1707 Union, and by means of the promotion of loyal servants, was superimposed
upon the prior nationalisms of the English, Welsh, Scots and Irish.16
Reactionary nationalism from underclasses may be вЂ˜a reaction of peoples
who feel culturally at a disadvantage’ or inadequate.17 That disadvantage may be
very real and may give rise to the prejudice of a type of вЂ˜explanatory national-
ism’,18 by which allegedly inherent propensities, for example, to poverty, illness,
corruption and laziness, are used by the advantaged to explain the condition of
the disadvantaged. The choice of language of the dominating bureaucracy
limits social diversity; and competition for power becomes competition also
between kinds of person.19 Competition becomes п¬Ѓercer, and if a culture cannot
be imitated to advantage, then those at a disadvantage become even more com-
petitive and demand different criteria of success.20 Consequently, there can be
вЂ˜uniп¬Ѓcatory nationalism’, for example, of a nineteenth-century German or
Italian type; or вЂ˜diaspora nationalism’, of the Jewish type.21 By these means, to
adopt a modern term for an old process, вЂ˜ethnic cleansing’ can occur by gradual
attrition and evolution over a thousand years as in France; or quickly and with
bloodshed, the Balkans being a modern example.22 Sometimes there may be no
real competition at all, for the disadvantage may be so crippling to a nationally
conceived group, even if comprising the majority of a population.23

15
Ernest Gellner, Nationalism (London: Phoenix, 1998), pp. 28–30.
16 17
See Davies, Europe, p. 813. See Plamenatz, вЂ˜Two Types of Nationalism’, pp. 27–9.
18
The term is used in Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan
Responsibilities and Reforms (Malden: Polity Press, 2002), pp. 139–44, in the context of
developed states deflecting blame from their responsibility for conditions in Third World
countries (e.g., by paying military dictatorships who alienate their people’s resources).
19 20
Gellner, Nationalism, pp. 40–2. Plamenatz, вЂ˜Two Types of Nationalism’, pp. 32–3.
21
See Johann P. Arnason, вЂ˜Nationalism, Globalization and Modernity’ in Mike Featherstone
(ed.), Global Culture: Nationalism, Globalization and Modernity (London: Sage, 1990 reprinted
1996), pp. 214–15, referring to Gellner, Nations and Nationalism.
22
Gellner, Nationalism, pp. 46–7.
23
For examples, see Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds
Ethnic Hatred and Global Instability (New York: Anchor Books, 2004).
200 A Wholly Mammon Empire?


Religion (a salvationist religion helps more),24 ethnicity, culture and race are
amongst the usual shared attributes which define a nation,25 in addition to, or
perhaps as a corollary of, common language. As opposed to being chosen, these
are things which are mostly inherited if not inherent. Potent status complexes
are entwined in nationalism as a response to industrialisation. Fears of being
socially marginal can lead to nationalistic violence and terrorism.26


9.1.3 Race and nation
Racism was not a hallmark of European medievalism. Of course, discrimin-
ation on the basis of religious faith in the bold terms of Christian, Jew and
heathen had previously been endemic. That discrimination, though, was not
racial. It was based less upon physical characteristics and more on habits of
worship and social self-ordering. Not until the colonialism of the sixteenth
century, spearheaded by the novelty of the Spanish colonial experiences, were
racially separatist laws invented to govern churches, schools and guilds.27 In the
nineteenth century, Eurocentric views about the Darwinian, evolutionary
nature of civilisation and international law became endemic.28
The idea that race was a legitimate basis for community developed primarily
in nineteenth-century Europe and the United States, in the natural science of
the day. It is most commonly associated with Nazi Germany. The wider West,
however, had shared the laboratory of a flawed science issuing from ideology
highly convenient to the then contemporary ruling classes. Modern biology
suggests that racial similarities at a genetic level are miniscule if not non-
existent, debunking the biological evidence of race.29 St Paul, when he wrote
that вЂ˜God made from one blood every nation’,30 might also have referred to a
common gene pool too. What surface differences exist and have evolved
between peoples are perhaps more readily explained by geography.31 Previous
references in this chapter to the mobile European tribalism of medieval Europe
undermine the notion of separate, untainted bloodlines. What group cohesion
or kinship does exist under such rubric appears to be reducible, again, to

24
Arnason, вЂ˜Nationalism, Globalization and Modernity’, p. 217.
25
Lea Brilmayer, вЂ˜The Moral Signiп¬Ѓcance of Nationalism’ (1995) 71 Notre Dame Law Review
7–33, 10.
26
See Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence
(Berkeley: University of California Press, 2003), pp. 190–218.
27
See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), pp. 300–1.
28
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 76–8. On the social
construction of race, see too Ivan Hannaford, Race: The History of an Idea (Washington: The
Johns Hopkins University Press, 1996).
29
See e.g. Joseph L. Graves Jr, The Emperor’s New Clothes: Biological Theories of Race at the
30
Millennium (New Brunswick: Rutgers University Press, 2001). Acts 17: 26 (NKJV).
31
See Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies (New York: W. W.
Norton & Company, 1999).
201 The incomplete authority of the nation-state


psychology. This is not, however, to deny the social reality of race and, of course,
racism, and the socially unequal resource distributions across different peoples.


9.1.4 Retrospection and nation
According to Lea Brilmayer, вЂ˜[n]ationalism means simply that one identiп¬Ѓes
with the claims of one’s nations and one’s conationals, and takes them as one’s
own’. Typically, these claims are legitimated by reference to such justifications
as restoration of land because of wrongful annexation, claims that вЂ˜God
intended us to have it’, or reparations for which land is considered to be the only
compensation.32 Right to territory is the typical claim by nations. The nature of
the claim makes it difficult to enter into dialogue with other nations because it
is often an absolute claim based upon an absolute moral authority, namely the
authority of the national collective and its sacralised history. Such a manifesta-
tion of nationalism is primarily cultural and moral, limited in conceptual
resources for entering into more logical, political dialogues. Hence nationalism
can be regarded as containing, in general, a particularistic moral appeal as
opposed to a more general, exterior, political appeal.
These aspects of nationalism can be expressed more strongly. Nations tend to
be associated with historical considerations: for example, вЂ˜common myths, past
glories or defeats, injustices suffered or overcome, grievances nourished and
burnished’ which, through вЂ˜[c]ommon language, culture, genealogy and reli-
gion project the romanticised past onto the future’. Individuals defining them-
selves as such are вЂ˜likely to want to live among others of the same ethnie’,
enjoying the same food, music and rhythms of the ancestors.33 The invention of
that tradition, and the investment of national status in a вЂ˜tailored discourse’
such as вЂ˜national history’, is not to be ignored.34 As Eric Hobsbawm has
observed, the national movements of the late twentieth century tended to be
negative,35 attempting to shield ethnically self-defined groups from the realities
of modern political organisation and responsibility being generated, in dia-
logue, at a supranational level.
Etymologically, the very word nation is rooted in nature and the idea of being
born (nasci, in Latin).36 This suggests a concept of authority which is grounded
more in an intuitive cultural heritage or history rather than in an articulated

32
Brilmayer, вЂ˜Moral Signiп¬Ѓcance’, 8.
33
Thomas M. Franck, вЂ˜Clan and Superclan: Loyalty, Identity and Community in Law and
Practice’ (1996) 90 American Journal of International Law 359–83, 363.
34
Eric Hobsbawm, вЂ˜Introduction: Inventing Traditions’ in Eric Hobsbawm and Terence Ranger
(eds.), The Invention of Tradition (Cambridge: Cambridge University Press, 1983), p. 14; see
too Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
Cambridge University Press, 2002), [4.42].
35
See Eric Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality
(Cambridge: Cambridge University Press, 1990), ch. 6.
36
Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford: Stanford
University Press, 1990), p. 26.
202 A Wholly Mammon Empire?


sense of reason or political compact for the future. In the increasingly intercon-
nected, diverse world, such cultural formations had to be open to logical dia-
logue. Invariably, political autonomy was sought through the vehicle of the state.


9.2 Logical aspects of the modern state
In sharp contrast to the shared myths, language and genealogy of the nation or
tribe, the state can be something quite different from the nation. As Thomas
Franck puts it, вЂ˜the multicultural state reflects quite diп¬Ђerent social values: a civil
society sharing a preference for the civic virtues of liberty and material well-
being, as well as a desire to associate for protection and security’. The nation-
state is something of an oxymoron: вЂ˜there are very few states that consist of a
single nation or ethnie’. Values of the state characteristically do not reflect the
same retrospection as those of the nation. Instead, states substitute for that his-
torical consciousness вЂ˜diverse citizens’ futurist aspirations’. A state is more likely
self-conceived вЂ˜as an invented civil society of persons bound together by ideals,
a constitution and a common enterprise’.37
On this view, the state is therefore not the nation. вЂ˜While consciousness of
nationality is a comparatively recent development, the structure of the state was
derived from centuries of monarchy and enlightened despotism.’38 That is not
to say, however, that the states in existence today are of such ancient lineage.
Historical continuity of the states in existence today, as we have seen,39 has been
surprisingly limited. Most of the older, populous states cannot count their cen-
turies on more than one hand.40
The state is a political construct which is more in the nature of a posited,
invented, contracted collectivity rather than being an emanation from the cul-
tural subconscious. It is a rational, logical entity. It is at once more political and
external to the individual’s immediate moral references. It is public. Rather than
relying upon the cultural status quo, the state tends to rely upon rationally for-
mulated legislation to maintain order, excluding information (and tradition)
perceived to be irrational.41 The nation, on the other hand, is more of an organic
outgrowth, inspired by affinities such as appearances, religion and culture
including language (although the authenticity of that national exclusiveness –
the inventedness of the traditions – is open to critical psychological enquiry).
On the Space Axis of the Space–Time Matrix, the nation tends to be closer and
more interior to the individual than is the state (although a variant, вЂ˜civic
nationalism’, places nationalism closer to the state).42

37
Franck, вЂ˜Clan and Superclan’, 361–3.
38
Hannah Arendt, The Origins of Totalitarianism (San Diego: Harcourt Brace & Co., 1948
39
reprinted 1976), p. 230. See ch. 6, section 6.4.2, pp. 141–2 above.
40
See Davies, Europe, p. 456.
41
See H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford:
Oxford University Press, 2nd edn 2004), p. 53.
42
On civic nationalism, see MacCormick, Questioning Sovereignty, pp. 170–7.
203 The incomplete authority of the nation-state


This space aspect is important and helps to explain the coercion required by
the state to enforce its laws. The state is more abstracted from an individual’s
sense of normative life. To the extent that emotional affinities are not usually
inspired by the state, laws of the state cannot be expected to flourish as a moral
adjunct of the people. State legislation is triply abstracted and thus distant from
the individual. Legislation suffers from the problem that state norms are often
posited in compromises (the п¬Ѓrst abstraction) by delegates who may represent
some constituents on some policies but not other policies (the second abstrac-
tion), rarely in response to direct legislative mandates from the electoral con-
stituency (a third abstraction). Legislation is therefore not always conducive to
framing norms for a people, particularly when the norms are complicated and
reliant upon wisdom and sensitivity (as opposed to majoritarian reaction) for
their interpretation and implementation. This triple abstraction explains the
alienation of state government from the people, on the Space Axis. Individuals
are allowed to go about their concerns in the economy, disconnected from their
own governance.
Notably, the state’s claim to normative authority is based upon its over-
whelmingly permeating territorial power. In effect, the state is a corporation
without peer in a given territory. It characteristically possesses much greater
authority than any other organisation within the territory, arising from its cen-
tralised strength and co-ordinated bureaucratic departments. The state’s sphere
of containable disruption trumps that of all other bodies, being, as it is, vast and
as widely dispersed as any sphere of control could be.


9.3 The problematic hyphenation of the nation-state
The moral allegiance felt by some to the nation may assist state authority. A
nation-state is a nation governed by the state or a state which seeks to draw upon
nationalism to govern. As expressed by Philip Allott, a вЂ˜nation organized as a
state is thus a nation in which a government conducts the social willing and
acting of the society with the authority of the whole of society . . . in which the
members of society have taken on a second existence as citizens.’43
With the aid of nationalism, although not always, the state, in Weber’s terms,
monopolises legitimate violence and, it may be added, legitimate education.44
The state can even be defined by the nation, as with Nazi Germany. Indeed,
the Pan-German distinction between Staatsfremde (aliens of the state) and
Volksfremde (aliens of the nation) was incorporated into Nazi legislation.45 In this
sense it is true that the relationship between the state and the nation is likely to
be constitutionally regulated such that states are used to formulate the national
will,46 in the attempt by the state to capitalise on the moral, subconscious,

43
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
44
[12.61]. Arnason, вЂ˜Nationalism, Globalization and Modernity’, p. 213.
45 46
Arendt, Totalitarianism, p. 231. See Allott, Eunomia, [13.68].
204 A Wholly Mammon Empire?


normative allegiances inspired by the nation. Similarly, nationalism can be
entwined with the state in symbiosis: Anthony Giddens has defined nationalism
as вЂ˜the cultural sensibility of sovereignty, the concomitant of the co-ordination
of administrative power within the bounded nation-state’.47
On the Time Axis of the Space–Time Axis, the state tends to be more future
oriented.48 For example, federal states such as the United States, Australia and
Canada have reacted with vision against conservative English heritages. They
sought a new future. By way of contrast, a more nationally dominated state such
as twentieth-century apartheid South Africa, according to Thomas Franck, was
more retrospective: there, Afrikaners, Boers and other white settlers imposed a
constitutional dictatorship which sought to reserve a narrow notion of a white
homeland.49 Revolution has forced South Africa into more of a state mode.
States such as the United States, Australia and Canada have become multi-
cultural, or multi-national, given their racial and religious variety. Citizenship
is less exclusive than the status of being вЂ˜a national’. For all intents and purposes,
the French nationalism of the 1789 Revolution is perhaps better considered a
form of futurist state movement, accepting as it was of other peoples such as
Jews into its aspirations for statehood under the rubric of universal equality.
Otherwise, post-revolutionary France can be understood as a national move-
ment which has recognised the requirement for political constitution.50
To attempt to comprehend its problematic hyphenation, the theory of the
nation-state can be divided into two broad schools.


9.3.1 The Historical-National School
G. W. F. Hegel (1770–1831) rested his philosophy of history upon an attempted
synchronisation of the nation and the state. The nation is the biological, organic
cement of the state. Hegel’s writing on the topic embodied the nationalist view
of state political identity. To him, вЂ˜the blood tie dictates all personal identity and
must determine the contours of communities organized as states, “the absolute
power on earth” that demands of persons “absolute obedience, renunciation of
personal opinions and reasoning, in fact, complete absence of mind” ’.51 The
nation lures people into state allegiance. The state can capitalise on the moral
power over the individual in community who searches for identity and norms
through nationalism, which the state can dictate or at least influence politically.
Perceived blood ties (better thought about in this context as shared cultural


47
Anthony Giddens, The Nation-State and Violence (Cambridge: Polity Press, 1985), p. 219.
48
See Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London:
49
Penguin, 2003), p. 11. See Franck, вЂ˜Clan and Superclan’, 362.
50
According to Eugene Kamenka, вЂ˜nationalism’ was a new word in 1798, used in connection with
the aim of overthrowing legitimate governments: Eugene Kamenka, вЂ˜Political Nationalism –
the Evolution of the Idea’ in Eugene Kamenka (ed.), Nationalism: The Nature and Evolution of
an Idea, p. 8, and generally pp. 2–20.
51
Franck, вЂ˜Clan and Superclan’, 364, quoting Hegel’s Philosophy of Right.
205 The incomplete authority of the nation-state


characteristics and family) are a moral source of allegiance. On the Space Axis,
an exterior, political significance can be imposed more upon the national, inte-
rior, collective will, subverting, if it does not inspire, individual determination.
Thus Hegel could write that вЂ˜the true actuality’ of subjectivity is вЂ˜the subjectiv-
ity which constitutes the concept of the power of the crown and which, as the
ideality of the whole state, has not up to this point attained its right or its exis-
tence’.52 For Hegel, the subjectivity of the nation gave rise to a morality perfectly
suited to the state and its objective, political social order which was in the
process of being realised. High ethical content was required of Hegel’s ideal
state. It was not just a Hobbesian instrument for imposing positivist law and
order – it was вЂ˜like the echo of God’s footsteps on earth’, comprising вЂ˜strong
private institutions’53 in a harmonious blend of moral allegiance to the politics
of the state, outside the insignificance of the individual taken alone.
This Hegelian model might be termed the Historical-National School of
social organisation. Here, there is morality and an interior space orientation in
the attraction of nationalism which speaks the language of a selective commu-
nal intuition, in the manner of being attracted to a mate. In its racist form, it
can be illustrated by the moral allegiance to the cold politics of a dictatorship,
for example, that of the Nazi regime. Yet perhaps one can take heart in Hegel’s
vision from what appears to be a meta-historical reflection on the end or telos
of the national spirit. He proposes one fulfilled national spirit merging with
another national spirit, вЂ˜so that we can observe a progression, growth and suc-
cession from one national principle to another’.54 To discover the continuity of
this movement of merging nationalisms and the cross-fertilisation of ideas and
culture over an extended time scale appears to be the task of his philosophical
world history.
Viewed in this way, the nation-state is not an end in itself but a means for the
flourishing of humans. The Historical-National School is, then, highly norma-
tive in that it idealises the state as a natural culmination of the nation. The value
of this model lies in its moral and political dimensions – the interior and exte-
rior authority it attempts to forge with the individual – and the shared his-
torical narratives and visions of the future which cater to the individual’s
psychological need for meaning and purpose. In Hegel’s vision, at least, there is
room for interaction amongst nations. Realistically, it is doubtful whether
national social ties so strongly conceived can tolerate the idealistic interaction
he proposes. The popular modern advocate of Hegel, Francis Fukuyama, touts
liberal democracy as the highest stage of human development. Bringing us to
the вЂ˜end of history’, he confesses though that liberal democracy has not yet

52
Georg Wilhelm Friedrich Hegel, The Philosophy of Right, trans. T. M. Knox (Chicago:
Encyclopaedia Britannica Inc., 1952 reprinted 1986), [320].
53
van Creveld, Rise and Decline, pp. 195–6, 203.
54
See Georg Wilhelm Friedrich Hegel, Lectures on the Philosophy of World History, trans.
H. B. Nesbit (New York: Cambridge University Press, 1975), pp. 80–3; see too his Philosophy
of Right, [341]–[360].
206 A Wholly Mammon Empire?


become universal because of вЂ˜the incomplete correspondence between peoples
[that is, nations] and states’.55 In other words, the nation-state is not a theoret-
ically complete concept.


9.3.2 The Contractarian School
For present purposes, the other main theory of the nation-state is the contrac-
tarian view. Diverse protagonists of this theory, such as Locke and Aristotle, on
Franck’s interpretation, separate the state from the nation of Hegel’s analysis.
The state is a voluntary association for the pursuit of virtue, or the common
good, according to Aristotle. People come together in a state structure, the polis,
to pursue вЂ˜the good’ which is the end or telos of the polis and public life: вЂ˜[a]
state is an association of similar persons whose aim is the best life possible’.56
For John Locke (1632–1704), people come together in the state to protect life,
liberty and goods.57 Locke’s predecessor Thomas Hobbes (1588–1679) may also
be included in this voluntarist school, although for Hobbes the state was a
natural imperative to stave off civil war.58 This theory suggests an interior if not
moral foundation for the laws of the state, different from that offered by the
Historical-National School, because the moral capacity for free choice has been
exercised. Also, that moral allegiance may arise because the state is uniquely
placed to protect property.59
This view of allegiance may, however, be too simplistic, because the delega-
tion or sacrifice of individual choice to the state can alienate moral choice on
that topic for the future, generating the future imposition of political norms in
the form of legislation and executive control, abstracted from the individual’s
moral sphere. We have encountered this in the concept of the вЂ˜legislative men-
tality’60 and the triple abstraction it creates between personal, interior norms
and exterior government on the Space Axis.61


9.3.3 Moral and political implications
Can these two models of social allegiance be reconciled or confidently synthe-
sised? From the hyphenated murkiness of the nation-state concept settles the
symbiotic relationship between the nation and the state as forces which exert
both moral and political pulls of social allegiance. The nation seeks the state,
as subconscious ties objectify into a bureaucratic, rational social machine,

55
Francis Fukuyama, The End of History and the Last Man (New York: Simon & Schuster, 1992),
p. 212.
56
See Aristotle, The Politics, trans. T. A. Sinclair (Harmondsworth: Penguin, reprinted 1992),
VII.9, p. 413.
57
See John Locke, Two Treatises of Government [1689] (London: Everyman, 1993 reprinted
1998), ch. 2, p. 117.
58
See Thomas Hobbes, Leviathan (Harmondsworth: Penguin, 1985).
59 60
See Allott, Eunomia, [16.65]–[16.66]. See ch. 7, section 7.5, pp. 157–61 above.
61
See section 9.2, p. 203 above.
207 The incomplete authority of the nation-state


allowing enemies to be neutralised into mere strangers.62 Seizures of white-
owned land in Zimbabwe under President Mugabe and the unsuccessful Fijian
coup of George Speight in 2000 illustrate the failure of nationalism without a
principled state. Inversely, the state seeks the nation to authorise and moralise
the rational, purposive machinery of the state into a primeval commonality.
The failure of civic (as opposed to national or ethnic) ideas of citizenship in
colonial Portuguese Angola and Somalia indicates the difficulty of the state
project without national authority. The hyphenation of nation and state is
therefore a necessary moderating tendency which the words вЂ˜nation’ and вЂ˜state’
offer to each other.
At a practical level, as remarked at the outset of this chapter, authority whether
conceived nationally or more politically (as the state) will be the basic concep-
tualisation for social legitimacy in the years to come, despite the challenges glob-
alisation poses. National cultural affinities and the state social contract both rely
upon п¬Ѓctions. The very psychological determination of these allegiances sug-
gests that they could be expressed and understood more clearly by alternative
means. This might also make their significance more transportable in time, par-
ticularly in the face of globalisation. A promising model may draw from Kant’s
idea for perpetual peace, and Aristotle’s idea of friendship.


9.4 Friendship and self-interest as sources of global allegiance

9.4.1 Nation and state as aspects of friendship
In early medieval times, with ancient precedents, вЂ˜friendship treaties’ created
legally enforceable associations amongst rulers and peoples based upon varying
degrees of вЂ˜kinship, comradeship and lordship’.63 Aristotle, in The Nicomachean
Ethics, discussed friendship in profound terms which may be extended to rela-
tions across societies today.
Although Aristotle’s political theory was said above to correspond to the con-
tractarian, voluntarist, associational choice model of the state, a reconfigured
constitutionalism can be drawn from Aristotle’s ethics discourse. Consider
ideas of nation and state in terms of kinship and comradeship, respectively.
Aristotle characterised friendship in these terms: every friendship involves asso-
ciation based upon kindred and comrade models.64 The nation is a kindred
organisation based upon shared commonalities of appearance and culture.
The state is a comrade organisation based on politics or choice. Aristotle
acknowledged the kindred relationship in the genetic terms that вЂ˜parents love

62
Zygmunt Bauman, вЂ˜Modernity and Ambivalence’ in Featherstone (ed.), Global Culture, p. 153.
63
See Gerd Althoп¬Ђ, вЂ˜Amicitiae [Friendships] as Relationships Between States and Peoples’ in
Lester K. Little and Barbara H. Rosenwein (eds.), Debating the Middle Ages: Issues and Readings
(Malden: Blackwell Publishers, 1998).
64
Aristotle, The Nicomachean Ethics, trans. David Ross (Oxford: Oxford University Press, 1925
reprinted 1980), VIII.12, p. 212.
208 A Wholly Mammon Empire?


their children as being a part of themselves, and children their parents as having
themselves originated from them’. Whilst acknowledging elements of pleasure
and utility in the kindred friendship between man and wife, Aristotle tended
to equate pleasure and utility more with comrades. Marriage, however, can
combine kinship and comradeship – the two theoretical allegiances exerted by
the nation and the state – into an institutional loyalty. Children are the culmi-
nation of the good purpose. In the context of husband and wife, children are
the bond of union: вЂ˜for children are a good common to both and what is
common holds them together’.65 Kinship and comradeship, the nation and the
state, the Historical-National School and the Contractarian School, are then
capable of reconciliation. The key is to arrive at вЂ˜the common good’.
Applied to society at all levels from tribe to globe, what can be вЂ˜the common
good’ in inter-associational relationships which are both kindred and comrade
based? It would be fruitless to attempt direct subversion of the self-directing (or
вЂ˜autopoietic’) workings of the nation and the state as the two most potent nor-
mative tendencies on the globe. How can they be reconciled to produce friend-
ship in a globalised world? How can they be consolidated to minimise the
destruction they wrought in the twentieth century? The common good must be
common projects similar in the manner of children to Aristotle’s husband and
wife – projects which do not undermine allegiances which are personal and mean-
ingful, but rather channel these allegiances into greater things. A new approach to
education at all levels and communication orientated to an interconnected, world
society, including sub-societies, is an appropriate international common project.
A state, or an international or global polity of whatever constitution, cannot
be made out of any and every collection of people, as Aristotle would suggest.66
A vision for global or regional authority must still contain jurisdictional bound-
aries which cannot stray too far from their natural spheres of containable dis-
ruption, which will shift in the ordinary course and as interconnection increases.
Education and communication may hold the keys to increasing solidarity as the
social face of a love which is beyond the completely personal and self-absorbed
sphere of intimacy.67 The ability to accommodate debate and change (not just a
commitment to вЂ˜ethnicity or language or some catalogue of shared values’)
through time is not just the core of any democratic community,68 it is also at the
core of any tradition on its own.69 Such an approach involving education and
dialogue must enhance the potential growth of constitutional structures which
would permit multiple allegiances to coexist and flourish.70


65 66
Ibid., VIII.3, VIII.12–13, pp. 195, 214–15. Aristotle, Politics, V.3, p. 304.
67
On this notion of solidarity, see Roberto Mangabeira Unger, Law in Modern Society: Toward a
Criticism of Social Theory (New York: The Free Press, 1976), p. 207.
68
See Jeremy Webber, Reimagining Canada: Language, Culture, Community, and the Canadian
Constitution (Kingston and Montreal: McGill-Queen’s University Press, 1994), p. 223.
69
See ch. 1, section 1.1.3, pp. 6–7 above.
70
See Brian Slattery, вЂ˜The Paradoxes of National Self-Determination’ (1994) 32 Osgoode Hall Law
Journal 703–33.
209 The incomplete authority of the nation-state


9.4.2 The shared self-interest of trade
There remains a prospect less normative than both a commitment to debate and
education, for engendering accommodation across traditions. It derives its
authority from the utility it brings in a comradeship, social choice setting. The
prospect is none other than international free trade. Its international constitu-
tional significance has been explored by Immanuel Kant (1724–1804).
The similarity between nation-states in the international sphere and the indi-
vidual who stands in the state of nature – in the Hobbesian war of all against all –
was noted by Kant in the late eighteenth century. He did not believe that
European nation-states had external laws sufficient to maintain order. There had
to be some other way of making international law more responsible. His solu-
tion was to conceive nation-states in a federation, the only way he could see to
invest a common external constraint with legal force. Kant’s negativity towards
the grand п¬Ѓgures of international law such as Grotius, Pufendorf and Vattel was
a consequence of their writings being used by states to justify military aggres-
sion.71 It is probably as well that Kant did have such a rigid view of law as requir-
ing common external constraint, impervious to the rhetorical and diplomatic
power of the writings of the grand п¬Ѓgures. It compelled Kant to devise a federal
model with some practical compulsion. Underlying it is a comrade-based
notion of friendship which generates utility through trade. As a happy incident
for our purposes, it is a pluralist conception of supranational order which sees
human diversity as a consequence of peace, not a natural cause of conflict.72
The model goes something like this. War is absolutely condemned by reason,
the highest moral legislative power. Because peace is dependent upon general
agreement between the nations, a league is required – a вЂ˜paciп¬Ѓc federation’. This
federation should go further than a peace treaty which is restricted only to
specified wars. The proposed federation is for all time. By a series of alliances,
this federation should spread, securing the peace and freedom of each new state,
one by one. As in the liberal, Hobbesian manner of men in the state of nature
renouncing вЂ˜their savage and lawless freedom’ for the protection of a com-
monwealth, an international state should develop out of the federation.
Unfortunately, вЂ˜this is not the will of nations’, and as a fallback, what can only
be hoped for is вЂ˜an enduring and gradually expanding federation likely to
prevent war’.73 International trade then makes its entrance as a concept with
potential for greater global peace. Kant observes:


71
Immanuel Kant, вЂ˜Perpetual Peace: A Philosophical Sketch’ in Hans Reiss (ed.), Kant: Political
Writings, trans. N. B. Nisbet (Cambridge: Cambridge University Press, 1970, 2nd edn 1991),
pp. 102–3.
72
James Bohman and Matthias Lutz-Bachmann, вЂ˜Introduction’ in James Bohman and Matthias
Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, MA:
The MIT Press, 1997), p. 6.
73
Kant, вЂ˜Perpetual Peace’, pp. 104–5. It can be criticised for impotence: Louis P. Pojman, вЂ˜Kant’s
Perpetual Peace and Cosmopolitanism’ (2005) 36 Journal of Social Philosophy 62–71, 67.
210 A Wholly Mammon Empire?


[N]ature also unites nations . . . and does so by means of their mutual self-
interest. For the spirit of commerce sooner or later takes hold of every people, and
it cannot exist side by side with war. And of all the powers (or means) at the dis-
posal of the power of the state, п¬Ѓnancial power can probably be relied on most.
Thus states п¬Ѓnd themselves compelled to promote the noble cause of peace,
though not exactly from motives of morality.74 [original italics]

Although Kant is cynical of the motive, the motive can be construed within a
species of morality. This is because the motive is justified by an inner convic-
tion which directs it, even if that inner conviction is self-interested and coin-
cidental to the broader good it produces. The вЂ˜spirit of commerce’ is not
coerced, and it is potentially of utilitarian benefit to a greater number in
society (although this is to apply a consequentialist logic distant from Kant’s
philosophy). As authority for law goes, it is desirable for its lack of coercion.
The difficulty is in maintaining that self-interest within bounds which respect
the environment and are not exploitative of humans. This is a tension dealt
with in chapter 10. The logical anticipation Kant had for developments in the
twentieth century was prophetic, as will become particularly apparent in
chapter 11.
A perpetual friendship through trade appears to be a worthwhile and some-
what achievable aim for diverse authorities in globally challenged times. The
nation-state, as already noted, will remain the basic authority in the conceivable
future. It is possible to reconfigure this apparent fact by reimagining the func-
tions of the nation-state in more helpful theoretical terms. Based upon
Aristotle’s ideas of the pursuit of common goals through friendship, an aspect
of which – comradeship – is orientated towards personal utility such as trade,
the Kantian idea of a perpetual peace appears within range of pursuit. There is
a popular wisdom which holds that no country with at least one McDonald’s
outlet goes to war with another country with a McDonald’s.75 It was true until
the NATO intervention in the Balkans. Wars between liberal trading democra-
cies, though, are not desired by their constituents.


9.5 On the way to authorities differently conceived
There is nothing вЂ˜natural’ about the nation or the state. Authorities and alle-
giances travel through time like ripples on the surface and currents in the

74
Kant, вЂ˜Perpetual Peace’, p. 114. See too, generally, Charles Covell, Kant and the Law of Peace:
A Study in the Philosophy of International Law and International Relations (London: Macmillan,
1998).
75
See Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization (London:
Harper Collins Publishers, 2000), pp. 195–8. Democracies have been known to attack each
other. Witness France occupying the Ruhr in 1923 and conflict between India and Pakistan:
Bobbitt, Shield of Achilles, pp. 266, 780. Huntington asserts that economic growth creates
political instability, although his authority is more suggestive of lesser tensions between
trading blocs: Samuel Huntington, The Clash of Civilizations and the Remaking of World Order
(New York: Simon & Schuster, 1996), pp. 218–24.
211 The incomplete authority of the nation-state


depths, visible and invisible, kind and unkind, forgotten, remembered and
adapted. Westerners strive to п¬Ѓnd meaning for themselves and for others in an
ocean of social constructions, by reference to historical experiences, visions,
moral convictions and forms of social organisation. Since Greek philosophy
(with Islamic input) met Roman law and the Bible in the twelfth century,
Westerners have wandered this Space–Time Matrix with little rest, consciously
and unconsciously. Westerners, and those in other cultures too,76 are not simply
defined by a sense of nation or statehood, but other associational forms too. In
the era of globalisation, never before have there been so many imperatives and
norms jostling for attention.77
The legal and normative nature of what commonly passes for вЂ˜globalisation’
remains to be analysed further in some detail. Chief examples include human
rights and free trade in the next chapter. In chapters 11 and 12, respectively, case
studies of European Union law and international commercial law are offered as
paradigmatic examples of legal systems which have responded historically to
patterns of interconnection and universalist authority, now recurring with
globalisation. The present chapter has been necessary to canvass the conven-
tional, contemporary normative allegiances which formed mainly in the eigh-
teenth and nineteenth centuries. National and state creeds have generated the
basic, premier bonds of allegiance which survive today. These larger collectives
or spheres have represented a historical movement on the Space Axis in the exte-
rior direction, when compared with the interior ties of allegiance which char-
acterised the Middle Ages and parcellised sovereignty. That is to say, institutions
of mainstream law at the hands of the nation-state have become more imper-
sonal and exterior. On the Time Axis, aided by industrialisation, the amalga-
mation of the nation-state has reduced the future, generally speaking, to a
lifetime, rather than inspiring norms programmed for the pursuit of a better
place on earth in accordance with a vision.
Globalisation, experienced as the cross-border immigration and emigration
of humans, challenges the nation-bond of the nation-state more profoundly
than ever before. For the п¬Ѓrst time in history, a large, industrialised, indigenous
population, the whites in Britain, faces the prospect of being an ethnic minor-
ity in London by the year 2010, and in England by the end of the twenty-п¬Ѓrst
century.78 In addition, the political state-bond is challenged more than ever by
a resurgence of competing jurisdictions and non-territorial governmental
bodies. Members of over 15,000 cultures demand recognition as states in the
world-system – an impossibility. An entrenched Western attitude posits that
вЂ˜every culture worthy of recognition is a nation, and every nation should be

76
See Amartya Sen, Identity and Violence: The Illusion of Destiny (New York: W. W. Norton &
Co., 2006).
77
This should not necessarily be of concern: see Thomas M. Franck, The Empowered Self: Law
and Society in the Age of Individualism (Oxford: Oxford University Press, 1999), ch. 5.
78
Simon Mann, вЂ˜Whites a Minority by End of Century’, Sydney Morning Herald, 4 September
2000.
212 A Wholly Mammon Empire?


recognised as an independent nation state’.79 Unfortunately that is to suggest
that the only defensible autonomous collective of humans is large and techno-
logically advanced enough to hold territory to the exclusion of вЂ˜others’. These
multifarious identities require reconciliation. They also require protection
within the state from the exercise of unfettered political power.80
Discourses inspired by globalisation have prompted the pursuit of frame-
works for building laws upon complex affinities and nationalities, avoiding the
cold formalism and impersonality of the state. In the context of European citi-
zenship, J. H. H. Weiler has suggested, in the face of increasing referents of iden-
tity, the concept of вЂ˜diп¬Ђerentity’, to unite the diп¬Ђerent and вЂ˜fragmented self of
individuals’ who comprise states.81 We have already explored possibilities for
peaceful, fruitful diversity, by reference to Aristotle’s ideas on friendship and
Kant’s prescription for perpetual peace through international trade. These pos-
sibilities appeal to the human in the interior dimension of the Space Axis of the
Space–Time Axis. Good law, authority and legitimacy derive from the respect
which is earned in the minds of those to whom the rules are directed. Ideally
that will come from more than just a nation-state differently conceived.
Required will be more than just a nation of political bonds and not just moral
bonds; and more than just a state of moral bonds and not just political bonds.
Territorial and national boundaries must not only be physically but also psy-
chologically perforated.
The increasing fragmentation of society, from the medieval universe to the
point today of competing worlds crashing and colliding in cosmological confu-
sion, is testament to the ties which bind humans, highly selectively and even
contingently, to one another. Although we are too early in our historical period
to know with greater surety, social units organised as nation-states, it appears,
are eventually to discover greater utility in co-operation rather than annihila-
tion. Perhaps like sleepy, heavy eye-lidded night-walkers absorbed in their own
dreams, slowly adapting to the light, the nationalistic state units of world-
society collide less frequently with the rise of the United Nations, the European
Union, the World Trade Organization and other institutions characteristic of
globalisation. To these mixed blessings we now turn.

79
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995), p. 8.
80
See Arendt, Totalitarianism, ch. 9.
81
J. H. H. Weiler, The Constitution of Europe: вЂ˜Do the New Clothes Have an Emperor?’ and Other
Essays on European Integration (Cambridge: Cambridge University Press, 1999), p. 329.
10

The return of universalist law: human
rights and free trade



One culture’s universal human rights can be another culture’s universal poison.
One person’s universal free trade can be another person’s unfair trade. One
nation-state’s tributes to human rights and free trade can be met with jeers of
hypocrisy from onlookers. Welcome back to the twentieth century. This chapter
considers the bequest of the World Revolution to the major discourses of
authority supporting the Western legal tradition today.
At the beginning of the Western legal tradition, the European feudal
economy was characterised by dispersed and local markets. Spirituality was for
the most part centralised and universalist, under the ultimate reality and
meaning extolled by the Catholic church. Today, this eleventh-century dynamic
has been inverted. A global economy exists above dispersed spiritual, religious
and belief communities.1 How those particular, dispersed communities and
other political units relate to the claims to ultimate reality and meaning extolled
by the universalist economy will probably be to future generations a large part
of the conventional history of globalisation and law.
Globalisation and law cannot be understood without reference to the entire
second millennium. The twentieth-century World Revolution constitutes at
once the capstone of an old way of looking at law (which had culminated in state
sovereignty) and the lodestar of a potentially globalist legal and ethical tradition
coexisting with other legal and ethical traditions. Recurring patterns of Western
law and authority are to be found in the pervasive historical tensions between
these universalistic and particularistic tendencies. The medieval papacy, we
have seen, engaged in almost round robin-like contests for jurisdiction with
royal, feudal, manorial, mercatorial and urban legal systems, by reference to
common Christian scripts. Reflecting this pattern, emerging universalist ethical
and philosophical principles of free trade and human rights now compete with
sub-state, state, supra-state and interstate communities. To introduce this latest
pattern, our historical chronology resumes in the nineteenth century with key
factual developments.


111
Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man (Oxford: Berg,
1993), pp. 495–6.
214 A Wholly Mammon Empire?


10.1 The quest for order in the World Revolution

10.1.1 Background interconnections
Economic and social interconnections began to multiply and increase in inten-
sity, in the nineteenth century. The world significance of civil society started to
become apparent, although under a shadow. States were approaching the height
of their strength, steering not only the Western world but the wider world
towards the twentieth-century cataclysm. Despite state power, the international
legal significance of civil society, so far as private economic links were con-
cerned, was well illustrated by the formation of the International Telegraph
Union in 1865. The communications triumph of the postage stamp arguably
overshadowed the victories of Napoleon.2 Free-trade ideas were advocated with
considerable practical effect.3 Absent government leadership in the later nine-
teenth century, other private initiatives sought a more public order beyond
states. The Institute of International Law was established in 1873. This scholarly
community of international lawyers sought to articulate the legal conscience of
the civilised world in a Savignian manner.4 They extolled a universalist but
Eurocentric, historical jurisprudence developed by lawyers which they claimed
represented the spirit of вЂ˜civilised’ people.5 The Inter-parliamentary Union was
formed in 1887, and the Nobel Committee too. An International Peace Bureau,
located in Berne, operated from 1891, with national branches. A number of
individuals made public pacifist comment, advocating the redundancy of war
in the face of the economic interests of states.6 The International Court of
Justice arrived in 1900.
More sinister developments were to have catastrophic effects. Outside
Europe, colonialism had sought justification in an internally inconsistent,
nationally fractured international law discourse. The more (at that time) altru-
istic but Eurocentric concern for the вЂ˜civilising mission’ did not stop inter-
national lawyers from вЂ˜supporting the controversial policies of their native
country’. Particularly in Africa, these policies were lethal and morally
appalling,7 not just by today’s standards. The competing foreign territorial
interests of France, the United Kingdom, Germany and Russia explain, in large
measure, the perniciousness of the resulting wars as a matter of economic self-
aggrandisement, protection and nationalistic pride. Every major participant
entered World War I to protect underlying imperial interests: Austria-Hungary


112
See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), pp. 382–3.
113
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 58–9; see ch. 2, section 2.1.2,
4
p. 28 above. See ch. 8, section 8.4.5, pp. 188–9 above.
115
See Koskenniemi, Gentle Civilizer, ch. 1.
116
See Norman Davies, Europe: A History (London: Pimlico, 1997), p. 874.
117
See Koskenniemi, Gentle Civilizer, pp. 155–78.
215 The return of universalist law


sought to protect itself against the Pan-Slavic movement; Russia sought to
prevent Austro-German dominance in the Balkans; France wished to prevent
German expansion; and the UK aimed to prevent Germany from dominating
Europe.


10.1.2 The World Wars
Amidst the World Revolution, following World War I, in 1919 the League of
Nations was created. The main purposes of the League found in its covenant
were the prevention of war, the organisation of peace, the discharge of special
duties arising from the peace treaties of 1919–20 and the promotion of inter-
national co-operation. Most importantly, article 10 introduced the right of
nations to territorial integrity and political independence as fundamental inter-
national norms. The United States never joined, and the easy withdrawal of
Germany, Japan and Italy, when it suited, reflected a loose association of proud
national sovereignties. None of these powers had yielded sovereignty. This, with
the lack of focus upon economic matters (aside perhaps from aid programmes
in Austria and Hungary) must in large part explain the unchecked, disastrous,
global depression of the 1930s. The international economy had malfunctioned
at the hands of вЂ˜protective tariп¬Ђs, unfair economic competition, restricted
access to raw materials, autarkic governmental policies’.8 The catastrophe of
World War II completed the failure of the League.
An Austrian aristocrat, Count Richard Coudenhove-Kalergi, had founded
the Pan-European Union, in 1923. He argued in one of his publications,
Paneuropa, for a European federation, attracting the support of several promi-
nent politicians. In addition to preventing war and maintaining peace, the
emphasis was not on protecting Europe from outsiders but on helping Europe
to compete more effectively in the world’s economic markets. The logic of
this economic and political innovation in the face of the prevailing culture
was present in the activity of the smaller Western European states. In 1922, the
Belux economic union was formed between Belgium and Luxembourg, with
limited practical success. The 1930 Oslo Convention to a limited extent
managed to peg tariffs among the Scandinavian states and the Low Countries.
The 1932 Ouchy Convention sought to build upon the efforts of the Oslo
Convention. The combined effect of these conventions was that the Low
Countries had decreased tariffs below the comfort level of the Scandinavian
countries, whilst the larger states remained disinterested or indeed vented active
hostility, as did the UK.9

118
Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Conflict
from 1500 to 2000 (London: Unwin Hyman, 1988), p. 359. See too Jim Chen, вЂ˜Pax Mercatoria:
Globalization as a Second Chance at “Peace for our Time” ’ (2000) 24 Fordham International
Law Journal 217–51, 226.
119
See David Urwin, The Community of Europe: A History of European Integration Since 1945
(London: Longman, 1991), p. 6.
216 A Wholly Mammon Empire?


Aristide Briand, the French foreign minister, in September 1929 presented
at Geneva a plan for a federal organisation of European states, however no
successful encroachments upon the sovereignty of the nation-state ensued.
Briand’s Memorandum, whilst vague, did make a novel suggestion for a per-
manent political committee and secretariat. Nonetheless, beyond a rational-
isation of customs barriers, no advance was made. Briand’s ideas perhaps
derived from a French desire to protect itself against Germany: he had been an
architect of the 1925 Locarno Pact, the signatories to which (Belgium, the UK,
France, Germany and Italy) had guaranteed existing state boundaries and
renounced war among themselves. French initiatives appeared to be an attempt
to perpetuate the Versailles peace settlement imposed upon Germany after
World War I.10 Lack of support from England and the emergence of the Nazi
Party in Germany relegated the Briand Memorandum to insignificance, as eco-
nomic depression set in and each rise in unemployment triggered new bouts of
protectionism.
Individual ideologues of their times had projected their ideas with zeal.
Trotsky, at the outbreak of World War I, was writing about вЂ˜the United States of
Europe’ in his socialist dream, The War and the International. Later, Mussolini
had proposed a pact amongst Britain, France, Germany and Italy.11 A civil
movement, known as the Pan-European movement, was well sponsored and
attracted support from important League members, including Mussolini. This
movement had exerted no real influence on governmental policy.12 In the
summer of 1940, Hitler’s Reichsbank had planned to make the Reichsmark
the common currency of an economic union in German-occupied Europe. The
Nazis published a journal called Nation Europa, appropriating the ideas of a the-
oretical Europe to an enlarged territory based upon an insanely п¬Ѓctitious racial
purity. Ephemeral victories of Nazi Germany were conceived to be in the service
of Europe.13 World War II was then inadvertently to sponsor the emergence of
the European Union and the United Nations.


10.1.3 The re-gathering of the European community
Europe had literally worn itself out by the end of World War II. In Washington,
a State Department Sub-Committee on European Organization, meeting
during 1943 and 1944, on the whole demonstrated a lack of enthusiasm for
European union. It was felt by several members of the Sub-Committee that
European union did not serve US interests. This was partly on the economic
basis that the removal of internal trade barriers amongst European nations
might be damaging to American trade. The other main ground for American
opposition was the experience of German control of Europe: any power strong

110 11
Ibid., p. 5. Davies, Europe, pp. 894, 951.
112
Hans A. Schmitt, The Path to European Union (Baton Rouge: Louisiana State University Press,
13
1962), p. 9. See Davies, Europe, pp. 1007, 1017; Schmitt, Path to European Union, p. 9.
217 The return of universalist law


enough to unite Europe was a threat to world peace per se, jeopardising a refur-
bished League of Nations (which was to be replaced by the United Nations).
Notwithstanding, at this time there was still American support for a European
union, on the ground that a united European economy offered attractive market
possibilities for the US to exploit, given the predictable increased income and
demand for American goods. Political reorganisation was also considered. In
particular, the imagined union was to be democratic and expressive of the vol-
untary wishes of citizens, yet with the retention of national diplomatic entities.
In 1944, representatives of many of the resistance movements met in Geneva,
issuing a declaration that regarded federation as the only means for European
survival, with a federal government responsible to peoples rather than to gov-
ernments of member states. This federal government was to be possessed of
powers similar to those reposed in the federal government of the USA, such as
interstate commerce and defence of the continent.14
In 1944, the exiled governments of Belgium, the Netherlands and
Luxembourg agreed to come together as the Benelux economic unit, although
no political arrangements were made. The project was to harmonise the three
domestic economies, through the abolition of internal customs duties and the
introduction of a joint external tariff on all imports. Complete free trade was
still far from being achieved, and by the time the Organization for European
Economic Co-operation (OEEC) was established in 1948, the Benelux pro-
gramme had been stagnant.15
In 1946, Winston Churchill, in a speech at Zurich University, announced the
prospect of a вЂ˜European family’ akin to a вЂ˜United States of Europe’. One of
Churchill’s concrete proposals was for this concept to grow around a Franco-
German partnership, without the UK.16 The 1948 Treaty of Brussels called for
вЂ˜collective self-defense and . . . economic, social and cultural collaboration’, the
implementation of which was entrusted to a Consultative Council of foreign
ministers, a secretariat and a number of committees. This was quickly super-
seded by the North Atlantic Treaty Organization (NATO). Germany was
divided into the communist East and capitalist West, with the need for Western
political consolidation becoming apparent. The Western union assumed the
mantle of a North Atlantic alliance in the form of NATO with American
involvement, pitched defensively against the Eastern countries organised in
1955 under the Warsaw Pact.
Not until America supported the idea could the project of European unity
progress. The вЂ˜Truman Doctrine’ of 1947 involved the US taking over from
Britain the provision of assistance to Greece and Turkey. It became apparent
that the world balance of power no longer remained in Europe. President


114
See Schmitt, Path to European Union, pp. 13–16. On the resistance movements, see Edelgard
Mahant, Birthmarks of Europe: The Origins of the European Community Reconsidered
15
(Aldershot: Ashgate, 2004), pp. 19–20. See Urwin, Community of Europe, p. 40.
116
See Schmitt, Path to European Union, p. 33.
218 A Wholly Mammon Empire?


Truman emphasised the interrelatedness of the democratic world and the
connection which the subjugation of European democracy had with the United
States: peace was necessary for American security. Protection of American
interests – its sphere of containable disruption – had expanded across the
Atlantic Ocean. There followed the American Marshall Plan, formally entitled
the вЂ˜European Recovery Programme’, which can be viewed as an early Cold War
reaction to the Soviet threat of worldwide communist revolution. Importantly,
the Marshall Plan did not deliver untied aid: the proviso was that the recipient
states were to co-ordinate economic activities to maximise the benefits from
the programme. The permanent organisation charged with administering this
mandate, the OEEC, was controlled by the member states, although a decision
could not be imposed on a dissenting state. A Council of Ministers comprised
one representative from each member state. An elaborate network of agencies
developed, liberalising trade with decreasing resort to national veto.17
A constitutional prototype had been created for the European Union, the
mature features of which are discussed later in chapter 11 as a case study of
public law principles relevant to a potential globalist jurisprudence.


10.2 The global hegemony of the USA
The USA was the only country which actually became richer because of World
War II, which gave rise to a period which continues to this time, known by some
as the pax Americana. It countered the fear that вЂ˜a postwar slump might follow
the decline in US government spending unless new overseas markets were
opened up to absorb the products of America’s enhanced economic productiv-
ity’. The address by the US of this economic problem has coincided with a re-
emergent Kantian belief in the Western world that the interests of peace are best
served by freedom of international trade. American control of, or access to,
crucial materials such as oil, rubber and metal ores demanded by the American
military-industrial complex has thereby been facilitated.18
As such, America bears вЂ˜a very heavy responsibility for the future of human-
ity – an imperial responsibility’ – parallel to that of Rome in the Roman Empire
and Greece in the time of Alexander the Great.19 The hegemonic status of the
US in European developments and the quest for order following the world wars
warrants some theoretical reflection. Globalisation, as it is commonly thought
about in terms of economic interconnections, begins to take its form in large
part from the idea of a harmonised Europe and its post-World War II relation-
ship with the US. Characteristic of the broader global landscape is the very great
politico-legal significance of the US and the universalist values which it spon-
sors (although does not always live up to).

117 18
See Urwin, Community of Europe, pp. 15, 22. See Kennedy, Rise and Fall, p. 359.

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