A Global History of Ideas in the Language of Law

Front matter

GUNNAR FOLKE SCHUPPERT

A Global History of Ideas in the Language of Law

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Chapter One: First and Foremost: The Abstraction and

A. Two examples of the abstraction functions of the language

II. The reception of Roman law as acquisition of a new language... 6... eee eee B. Two examples of the transformation functions of law and its language une nr Bgm I. Transformation of power into authority: the “invention” of public office... s Aen taaa eee eee II. Law as congealed politics: the transformation function of constitutional law .... 2.0... eee eee eee

Chapter Two: The Institutionalization Functions of Law: The Language of Law as the Language of Order and Conflict Resolution B. The language of law as a language of conflict resolution ... . Il. The need for a “modus vivendi” and “modus procedendi” for normative conflicts - formulated in the language of law A. What is resonance and what does the answer teach us about our TOPIC? sos recorrer Denen aa an B. Types of state and “their” law... 0... 6. ce eee eee I. The state of industrial society and the existential responsibility of the state as ordering idea of the modern administrative state... 2.6... ee ee eee II. The preventive state and “its” preventive security law... . C. From the private law of the constitution to the constitution of private law: the necessary correspondence between the conceptual models of jurisprudence and I. The necessary correspondence between law and social reality or why legal concepts can not only age II. From private law as constitution to the constitution Of privatë law's na. as D. The multiple life worlds of the law: the helpful perspective of legal pluralism... 0.0... eee eee eee

Part Three Legal Concepts and Legal Regimes in a Global History of Ideas... . Chapter One: Worldwide Enlightenment and Universal Natural Law I. Functional diversity of the typical Enlightenment institution university... 6. eee

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123 124 124 126

VII

VIII

II. The language of jurisprudence as increasingly important language of politics in the early modern principality... . D. The Enlightenment as legal history: the epochal importance of natural law... „ana: ees WON eee oo a ads ee I. What exactly is natural law? ... 2... onen II. The multifunctionality and two faces of natural law .... III. The language of natural law as a language of politics ... IV. Natural law as a phenomenon concomitant

Chapter Two: The Language of International Law as a Language of Politics .. 6... ee ee eee A. Some particularities of the language of international law... . I. The key role of language in a legal regime between idèas and. facts oe sie e 2... 2a en Il. The importance and function of “semantic shifts” in B. The language of international law as a language of justification. I. The history of international law as a history III. Two examples of justificatory narratives in international law IV. The struggle for command of the sea in the guise of competition between sectional justificatory narratives. . V. Dominion over justificatory narratives as truly hegemonic power .. 1.6... cee eee C. The history of international relations as a history of juridification I. Four stages in the juridification of international politics. . II. From war and peace to cooperation on questions of political order... 0... eee eee Chapter Three: The Language of Human Rights as a Language of Politics: . ur.» Js See ee an ne B. The idea of human rights at the interface between

C.

D.

I. The life of the human rights concept in overlapping

The idea and history of human rights reflected in three major narratives nekia ee eee eee I. The narrative of Paul Gordon Lauren:

the triad of visions, visionaries, and dramatic events .... II. The narrative of Lynn Hunt: reading novels and

declaring: rights ns nm an I a Sad a a III. The narrative of Samuel Moyn: a political history

The language of human rights as the language of politics at work. 2... 2.2 one eee II. Two notable contexts of application for the language

of human rights... 0... 0... eee ee ee eee

Chapter Four: The Language of the Rule of Law as an Integral A

mo

Legitimate authority: authority based on and limited bylaws et wee Rente I. The dialectical relationship between power and law:

II. The language of the rule-of-law constitution as

The state: the organized unity of decision-making and action. II. Organizational and procedural law as manifestations

of law relevant to the history of ideas: two examples... . Justice through the rule of law? The idea of institutional justice I. Buon governo e giustizia ... 6... eee eee eee

Rule of law promotion and rule of law control

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II. The new EU framework to strengthen the rule of law.. 220

Chapter One: State authority... 6... 6. eee eee 224

I. Jurists as strongly committed trustees of the concept of state 230 II. The meteoric career of the state concept in the guise of the “reason of state”... u.nan eee ee en 233 III. A remarkable semantic shift: from state to statehood.... 235 Chapter Two: Sovereignty... 6.6... eee ee 238 A. The triad of state, reason of state, and sovereignty E.. On:balance u... 40d 20 er ed oa ae oe 245 A. The constitution as an institution between the politicization D. The constitution as key element of a polity’s political culture... 250 E. Construction plan and key juristic elements Chapter Four: Contract... 0... cee eee ee eee 258 I. Contracts as a power problem: the double task of constitutional law ... 2.222 261 II. Contracts as a justice problem: the contract law literature III. Contract theories as proceduralist justification theories .. 265

B. Four more or less successful “triumphs” under the banner of law 270 I. The “triumph” of the constitutional idea and the stalling triumph of the idea of constitutional jurisdiction... 271 IV. The “triumph” of the idea of global validity for the rule: GF law's 2.064 PG Ged een 272 C. Three key concepts from the world of law intrinsic to the global history of ideas 2.6... eee ee eee 272 I- -Sovereignty anrop ea ee Nak Sos WES eS ragen 272 Ns ACOMtract ix, ern oa AE hed E Be ae Aa ce fe ce LUE Dac 273 III. Property: reri p22 eee area aaa tree 273 D. The language of law as the language of political authority... 274 Bibliögraphy.s sn: za Oe Lee oa Bk 277 About the Author... 2.2... ee cee ee ee 309

XI

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Introduction Why a Global History of Ideas in the Language of Law?

A. The history of ideas as a history of languages

Studies on what is referred to as universal history, world story, or, more and more frequently, global history are enjoying a heyday.’ This can also be said for the global history of ideas,” which can be considered a variety of global history.” Different methodological approaches can be adopted in a global history of ideas. Some authors, like David Armitage, concern themselves with the origins and spread of “big ideas”* This is not our chosen path;

with Martin Mulsow, we consider such a narrow concept of “idea” not very useful.” A second and particularly popular approach is to treat the history of ideas as a history of interaction® looking at “intermediaries, translations, and networks?” This is a tempting perspective,* and we shall be considering it in some detail at a later stage. At present, however, we will be looking at a

See Bayty (2006); Buppe et al. (eds.) (2006); Conran et. al. (eds.) (2007a); SACHSENMAIER (2011); Conran (2013).

On the global history of ideas see, above all, Moyn/Sarrort (eds.) (2013); OSTERHAMMEL (2015); MuLsow (2016); Mutsow (2015).

In the view of Conrap - which we share - global history is more a perspective than a subject. A vast range of subject matter can accordingly be examined from a global history perspective: “Basically, a global history perspective can be adopted by all historiographical approaches”, Conrap (2013) 13.

See ARMITAGE (2012).

Mutsow (2015) 19: “Ideas, theories, portions of theory, points of view in a broad sense are conveyed together with the concomitant informational elements, religious attitudes, physical carriers, and cultural practices. It cannot be helpful to subject the history of ideas to puristic reduction”

Why a Global History of Ideas in the Language of Law?

“third way,’ at writing a history of ideas as a history of languages: the languages used in public discourses on the common good and on the good and just order of things - the languages, for instance, of theology, philosophy,” law, and, increasingly, economics.

Centre stage in the history of ideas as a history of languages is John G. A. Pocock, who, along with Quentin Skinner, founded the reputation of the “Cambridge School of Intellectual History’! As the name suggests, it is really a style or school of thought,'’ whose influence is difficult to overestimate.

What this “Cambridge School” is about is perhaps best explained by John G. A. Pocock in his now classic 1962 essay “History of Political Thought?” Pocock names his point of departure already in the second paragraph: discussions in the higher spheres of politics are conducted in one or more languages that can be described as political language(s): “... a political scientist may ... be interested in the relations between the political activities, institutions and traditions of a society and the terms in which that political complex is from time to time expressed and commented on, and in the uses to which those terms are put; in short, in the functions within a political society of what may be called its language (or languages) of politics”

Quentin Skinner, too, posits that political thought is embedded in the context of the political life and action of a social community’ and that the language used by the people involved is also socially embedded: “The political thinker is a social being and his thoughts are social actions or events. The words and concepts he uses are part of a shared inheritance which severely constrain his liberty to conceptualize and theorize. It is shared inheritance, variously named traditions, universes of discourse, languages of legitimation,

Mutsow (2015) 9: “Decisive frameworks for ideas are often philosophical and philosophico-theological languages. They determine and influence the speech acts performed in them?

See the articles in: MurLsow/MAHLER (eds.) (2010); the outstanding introduction in Rosa (1994).

See Freck (1980).

See, above all, his key article: SkINNER (1988).

vocabularies, and paradigms, which must provide the context in which individual thinkers perform their social actions” '®

On closer inspection, the public discourse in a society uses not only one political language but several such languages: “Any stable and articulate society possesses concepts with which to discuss its political affairs, and associates these to form groups of languages. There is no reason to suppose that a society will have only one such language; we may rather expect to find several, differing in the departments of social activity from which they originate, the uses to which they are put and the modifications which they undergo?!”

Does the language of law have its place in this repertoire? Pocock believes so: “Some [of those political languages] originate in the technical vocabulary of one of society’s institutionalized modes of regulating public affairs. Western political thought has been conducted largely in the vocabulary of law, Confucian Chinese in that of ritual. Others originate in the vocabulary of some social process which has become relevant to politics: theology in an ecclesiastical society, land tenure in a feudal society, technology in an industrial society? "5

Quentin Skinner, too, not only testifies to the important role of the language of law in the political discourse but complains of the predominance of a “law-centric paradigm” ” that needs to be balanced by a humanistic-republican paradigm as a sort of counter ideology.”°

This brief review of the “Cambridge School” indicates that political languages are used in every society where policy design and political ideas are discussed: until the advent of modernity first and foremost the language of theology, in early modern times theological-philosophical language, and, in the present age, often the language of economics - reflecting the economization of almost all areas of life. Above all in early modernity, the language of law predominated among these political languages.

It is our impression that the language of law no longer plays a key, or even major role in the history of ideas. At an international conference “Towards a

SKINNER (1978).

Why a Global History of Ideas in the Language of Law?

Global History of Ideas” staged by the Max Weber College for Cultural and Social Science Studies at the University of Erfurt in July 2017, law was not mentioned. And in his paper on “elements of a globalized intellectual history of premodernity? Martin Mulsow”' failed to mention the language of the philosophy of law when discussing the globalization of philosophical languages.

The marginalization of the language of law to be observed in discourses on the global history of ideas and knowledge does not do justice to the undeniably prominent role it played in early modernity and fails to recognize the important potential of the language of law for a future history of ideas and knowledge.

This is the concern of this book: to explain the language of law as a language of politics in discourses on the good and just order of society. As the following five points convincingly show, it is well worth examining the potential of the language of law for a global history of ideas and knowledge.

B. The language of law as a language of politics relevant to the history of ideas: five functions in five contexts

I. The language of law as a language of discourses on the legitimacy of political authority

As Hartmut Rosa has clearly demonstrated for the Cambridge School, discourses conducted in political language are above all discourses about legitimacy, a function that comes to the fore principally when old and outdated orders are to be overcome. The success of such ventures can be substantially furthered if a new language with new concepts is available that is able to convey the new content. With reference to John G. A. Pocock, Hartmut Rosa writes: “Revolutions and changes in paradigm occur ... Where social or societal changes can no longer be adequately captured, legitimized, or explained in the prevailing vocabulary; where, to use Kuhn’s terminology, societal anomalies occur. As in Kuhn’s theory, anomalies in science impose adaptation of the prevailing paradigm, and, if this fails, produce ‘scientific revolutions.’ According to Pocock, a political community (in the shape of its political thinkers) seeks to adapt the existing lin-

22 23

24 25

26 27 guistic system to new situations or to replace it by a different ‘language.’ ... An example of such a process that Pocock cites are the upheavals in the English political system in the 1640s. In the first half of the seventeenth century, the political vocabulary in England was dominated by such ideas and concepts as tradition, convention, and custom. The key concepts were ‘ancient constitution’ and ‘common law.’ But this vocabulary could be applied only to situations characterized by continuity; it was completely unsuited for explaining, let alone justifying radical change?”

With Pocock’s remarks in mind, we turn to two examples of how the legitimacy of political authority is handled discursively i two sublanguages of the language of law. The first is the language of global constitutionalism with its two legal sublanguages, the language of human rights” and the language of the rule of law.”*

The language of global constitutionalism

In the debate about models of global order,” the concept of global constitutionalism”“ plays a prominent part, not in the sense of a utopian call for a world constitution, and not - as Anne Peters suggests?” — in the sense of “compensatory constitutionalism” to make up for national constitutions’ lack of reach, but as a “global legal script” in discourses on the justification of political authority wherever and in whatever guise. Mattias Kumm et al. have set out this claim to global validity in an editorial marking the third year of publication of the journal “Global Constitutionalism? They first address the “Trinitarian mantra of the constitutionalist faith” namely “human rights, democracy and the rule of law”:

“The publication record over the first couple of years also reflects the fact that

constitutive and fundamental norms that implicate questions of legitimate author-

ity generally include a commitment to human rights, democracy and the rule of law. The commitment to human rights, democracy and the rule of law - the Trinitarian mantra of the constitutionalist faith — is part of the deep grammar of the

On the concept of universal human rights as a “juridified revolution” see SCHUPPERT, G. F. (2015) 247 f.

On the globalization of rule of law principles as an applied case of discursive lawmaking, SCHUPPERT, G.F. (2015) 257.

Why a Global History of Ideas in the Language of Law?

28 29 30 31 32 modern constitutionalist tradition. It provides an abstract template of principles in the light of which concrete arrangements are negotiated and policies are forged in contemporary constitutionalist settings. Within this constitutionalist framework, wherever political and legal authority is constituted or exercised, it can be criticized or justified with reference to these concepts?”

On closer inspection, the core of the “global constitutionalism” concept consists — secondly - in a global language to be employed in discourses on the justification or limitation of political authority. On this claim to universality, the authors comment: “The ‘legitimatory trinity’ as a central feature of a modern constitutional discourse came into the world with the French and American Revolutions and was internally connected to ideas of individual and collective self-government at the time. It went through various challenges and permutations before it re-emerged after World War II to become a globally hegemonic discourse since the 1990s, both in and beyond the state. There is no liberal constitution enacted after 1990 that does not pledge allegiance to the trinity in some way. The European Union asserts that these are its foundational values, the Council of Europe has embraced it, the UN claims to be committed to it and various General Assembly Resolutions have endorsed it. In global public discourse this is the language most likely to be used and most likely to be effective when either contesting or resisting authority or using it to justify the imposition of restrictions on others???

The language of legal pluralism

The critical and emancipatory potential of the language of law is demonstrated by one of the most prominent representatives of legal pluralism, Boaventura de Sousa Santos (* 1940). His 1977 essay on “The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada”*° reveals the political thrust of his work: he opposes the state monopoly on law and wants to give, or return, a degree of autonomy to the normative order, especially in socially disadvantaged communities. In contrast to other well-known theoreticians of legal pluralism such as John Griffith?’ and Marc Galanter,”” “he does not look for legal pluralism in indigenous commun-

Kumm et al. (2014) 1.

Kum et al. (2014) 4.

DE Sousa SANTOS (1977).

GRIFFITH (1986).

GALANTER (1981).

33 34 35 36 ities. He looks for it in the precarious conditions on the fringes of urban centres of modernity: in the favelas of Rio de Janeiro. He has given the name

Pasargada to this urban time-space he studies?”

He wants to liberate the various social spheres existing in differentiated societies from the hegemony of state law and have their intrinsic normative value recognized. Innate to the “new legal common sense”** he propagates is a clear emancipatory tendency, which Ralf Seinecke outlines as follows:

“This demands not an instrumental but an emancipatory juridification of social affairs. His postmodern law gives back their intrinsic law to social spheres, frees them from the exclusive hegemony of state and formal law. This postmodern or plural law lends the various social spheres greater potential for reflection because it places their (autonomous) law, their (autonomous) power, and their (autonomous) knowledge in competition with the law, power, and knowledge of the state and of other structural spaces. This juridification of the social measures actual social structures by the normative standards of the law and puts it under greater pressure for legitimation. Law and rightness are more closely related than social authority, social power, and social justice?”

In the emancipation of non-state “normative spaces,’ Santos suggests that an important role could be played by the language of law, which imagines these social spaces and provides not only orientation like a map but can also generates its own reality.

“My argument is that there are many unresolved problems in the sociological study of the law that may be solved by comparing law with other ways of imagining the real. Maps are one such way. There are, in fact, striking similarities between the laws and maps — both concerning their structural features and their use patterns. Obviously, laws are maps only in the metaphorical sense. But, as rhetoric also teaches us, the repeated use of a metaphor over a long period of time may gradually transform the metaphorical description into a literal description. Today laws are maps in a

: RE 6 metaphorical sense. Tomorrow they may be maps in a literal sense”?

Closely related to the language of law as a language of discourses on the legitimacy of political authority is its application as a language of political change, which brings out its ability to convey new ideas particularly clearly.

For more detail see DE Sousa Santos (2002).

DE Sousa Santos (2002) 229.

DE Sousa SANTOS (1987) 286.

II. The language of law as a language of political change

As we have seen, using a language — whether that of theology, philosophy, or law - as a language of politics is not about the inconsequential instruction of the reader but about achieving something, about changing a social reality no longer considered acceptable. To quote John L. Austin, it is about “how to do things with words?’ Heinrich Heine, one of the most acute and sharptongued observers of political affairs in both Germany and France, had this to say about the incantations circulating in the political debate on the French Revolution: “... they are incantations mightier than gold and guns, words with which the dead are called out of their graves and the living sent to their death. Words that make giants out of dwarves and shatter giants, words that sever all your power like the guillotine a king’s neck?**

Some will find this too dramatic and will prefer to formulate the issue in linguistic terms, speaking of the performative use” of every language of politics. This also holds for the language of law in this capacity.

1. The language of law used in legal policy as “performative language”

In a recent article on “Law as the Subject of Jurisprudence and Law Production” Thilo Kuntz” complains of the self-imposed, narrow limitation of jurisprudence to the law “in force” He shows that not only classical lawmaking but also its realization and interpretation involve producing law in and through language. Kuntz calls this performative law production:*"

“Law is constituted linguistically whether it is written or unwritten law. The only medium available is the linguistic utterance. The type of legal source, law, or ruling, whether precedent or some other form is immaterial. There is a ‘fundamental ... dependence of legal rules and values (requirement, validity, normativity, and obligation) on a legal culture tied to language and its media.’*” The dependence of law on language is apparent on (at least) two levels: law is not only linguistically constituted, it is also produced in and through language. The production of law is based on speech acts by the competent authorities. It is an example of the possibility of not

On performativity see WIRTH (ed.) (2002); BACHMAnN-MEDICcK (2009) 104-143. Kuntz (2016).

43 44 45 only describing the world by means of speech act but also of changing it. In other words, the production of law is an example of a performative speech act: if someone with the relevant authority makes a linguistic utterance to the effect that certain conduct is liable to prosecution or that a certain option is available, for instance a company limited by shares, performance of these speech acts bring about criminal liability and creates the company limited by shares as a legal form. These are examples of “performance of an act in saying something”

If we apply these reflections of Thilo Kuntz on the performative production of law to the language of law concerned with political change - that is to say, as a language of politics - we can rightly speak of the language of law as performative language. This performative language of law can be used in two ways: first to defend the existing order — under such headings as tradition and acquired rights — and as a fanfare for revolution.“ The latter almost inevitably invites brief consideration of the French Revolution and its revolutionary (legal) language.

2. Revolutions and their revolutionary (legal) language: the example of the French Revolution

When it comes to discussing the French Revolution, it is only right to give the floor to a Frenchman. Particularly eloquent is Pierre Rosanvallon, who has this to say about the language of the French Revolution:

“From the beginning of the Revolution it was clear that a new vocabulary was needed to describe the motives and principles of the new political order that was being established. One no longer spoke of subjects, for example, but of citizens; not of a kingdom but of a nation; and so on. It was a time of extraordinary inventiveness in this connection, and a novel political language did in fact emerge. But not only was it a language in flux, it was liable to be corrupted as well. Some of the most bitter recriminations expressed during the Terror concerned just this point. Thus Sieyes, the father of the first French Constitution, scathingly denounced “the infamous prostitution of the words most dear to French hearts, Liberty, Equality, People? considering “the abuse of what once was a common language” to be by no means

Monography: MÜLLER-MALL (2012).

MULLER-MALL (2012) 8.

On the role of the lawyer, see Scumirt (2008) 491: “Of every revolutionary movement it can be said that the lawyer, the ‘theologian of the prevailing order’ is seen as its special enemy, while, vice versa, it is precisely the lawyers in particular who are on the side of the revolution and who lend it the pathos of oppressed and insulted law?

ROSANVALLON (2018) 228.

Why a Global History of Ideas in the Language of Law?

47 48 49 50 51 52 the least source of the misfortunes of the age, words having now lost their natural meaning and been made to “conspire with the enemies of our country.”

In view of the susceptibility of probably all political language to abuse, it is no surprise that in turbulent revolutionary times attempts were made to discipline the use of language; Rosanvallon reports:

“Condorcet’s purpose in founding the Journal d’instruction sociale, in 1793, was more pedagogical than punitive. Its objective was to ‘combat political charlatans’** by elucidating the key terms of an orthodox political lexicon and thereby limit variant and illegitimate interpretations. The journal’s motto was simply stated: ‘Reason is one, and has only one language.’ In the same spirit, Sieyes proposed that an attempt be made to ‘fix the language,’ giving it a stable and permanent form by means of conventions, and thus to provided politics with a ‘proper language’ uncontaminated by the imprecision of ‘natual language.’ Sieyès was seconded in this by Destutt de Tracy, author of five-volume Elements d’ideologie (1801-1815), who sought to create an ‘analytic language’ that would help modify and improve the practice of democracy.*° The utopian conception of linguistic purity as the condition of plain speaking came to nothing in either case, but there was no getting around the necessity of confronting fundamental questions arising from the indefinite character of political semantics. Democracy is, after all, a regime that unavoidably involves continual and perpetual debate over is basic concepts and terminology’

The plausible conclusion is that democracy is a form of political sociation whose task it is to permanently reflect on the type and quality of the performative language practised within it.

Finally, we take a look at the particularly interesting language of institutional legal thought under the National Socialist regime.

3. The institutional legal thinking of the Carl Schmitt School: an example of the susceptibility of the language of law to abuse

This is not the place to go into the interesting history of institutional legal thought” or to examine, let alone question, whether we are witnessing a

GuILHAumoU (2002) 31, as quoted by RosanvaLLon (2018) 228. Conporcer (1793), prospectus of this journal, 10.

Conporcer (1793), prospectus of this journal, 10-11.

See SCHLIEBEN-LANGE (1996).

See RUtHERS (1970); also MEINEL (2011).

renaissance of the institutional perspective? or its replacement by an individual basic rights perspective, such as Hans-Michael Heinig and Christian Walter propagate for public ecclesiastical law.°* Instead, we shall examine the concrete order thinking of Carl Schmitt, because this example can teach us a great deal about the susceptibility of the language of law to instrumentalization.

a) The concept and function of concrete order thinking

The concept of concrete order thinking goes back to the treatise Carl Schmitt published in 1934 under the title “On the Three Types of Juristic Thought”,** which introduces the notion of “concrete order and formation thinking” as follows: “every lawyer who consciously or unconsciously bases his work on the concept of ‘/aw’ understands this law either as a rule, or a decision, or as a concrete order and formation. This determines the three types of juristic thinking that are distinguished here? °° d Changes in the property regime

In 1935, Franz Wieacker, then teaching law at the University of Freiburg i. Br., author of the later “History of Private Law in Europe”” and professor at the University of Gottingen (where the present author attended his lectures on Digest exegesis), published a brief work under this heading.” It reflects what a circle of professors of law, young in 1933, understood and propagated by “national legal renewal” (“völkische Rechtserneuerung”).