THE HEALTH OF NATIONS Part 1 doc

over-The age-old problems ofsocial life – religious, philosophical, moral, political, legal, economic – must now be addressed at the level ofthe whole species, at the level where all cul

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T H E H E A L T H O F N A T I O N S

Society and Law beyond the State

The human world is changing Old social structures are being whelmed by forces of social transformation which are sweeping across political and cultural frontiers A social animal is becoming the social species The animal that lives in packs and herds (family, corporation, nation, state ) is becoming a member of a human society which is the society ofall human beings, the society ofall societies.

over-The age-old problems ofsocial life – religious, philosophical, moral, political, legal, economic – must now be addressed at the level ofthe whole species, at the level where all cultures and traditions meet and will contribute to an exhilarating and hazardous new form of human self-evolving.

In this book Philip Allott explores the social and legal implications and potentialities ofthese developments in the light ofthe general theory ofsociety and law which is proposed in his groundbreaking

Eunomia: New Order for a New World.

p h i l i p a l l o t t is Professor of International Public Law in the versity ofCambridge and a Fellow ofTrinity College, Cambridge He was formerly a Legal Counsellor in the British Foreign and Common- wealth Office.

Uni-T H E H E A L Uni-T H O F N A Uni-T I O N S

Society and Law beyond the State

P H I L I P A L L O T T

          The Pitt Building, Trumpington Street, Cambridge, United Kingdom

  

The Edinburgh Building, Cambridge CB2 2RU, UK

40 West 20th Street, New York, NY 10011-4211, USA

477 Williamstown Road, Port Melbourne, VIC 3207, Australia

Ruiz de Alarcón 13, 28014 Madrid, Spain

Dock House, The Waterfront, Cape Town 8001, South Africa

©

pathemata mathemata

for my dearest brother Roderick

(1936–1999)

speculum in speculo

Vain is the word of a philosopher which does not heal any suffering of man For just as there is no profit in medicine if it does not expel the disease of the body,so there is no profit in philosophy either,if it does not expel the suffering of the mind.

Epicurus (341–270 BCE), Fragment 54, in C Bailey, Epicurus The Extant Remains (Oxford, The Clarendon Press; 1926), p 133 Natural health is the just proportion,truth,and regular course of things

in a constitution ’Tis the inward beauty of the body.

Anthony Ashley Cooper, Earl ofShaftesbury (1671–1713),

Characteristics of Men,Manners,Opinions,Times (1711)

(ed J M Robertson; Indianapolis, Indiana University Press; 1964),

ii, pp 267–8

Truly,the earth shall yet become a house of healing.

Friedrich Nietzsche (1844–1900), Thus Spake Zarathustra

(tr R Hollingdale; Harmondsworth, Penguin; 1961),

pp 102–3

C O N T E N T S

Preface pageix

Acknowledgements xv

I Society and law

1 The will to know and the will to power Theory and moralresponsibility 3

2 The phenomenon oflaw 36

I Making sense ofthe law Lawyers and legal philosophy 37

II The emerging universal legal system The law ofall laws 56

III Deliver us from social evil International criminal law and

5 New Enlightenment The public mind ofall-humanity 132

II European society and its law

6 European governance and the re-branding

ofdemocracy 161

7 The crisis ofEuropean constitutionalism Reflections on

a half-revolution 182

vii

III International society and its law

10 The concept ofinternational law 289

11 International law and the idea ofhistory 316

12 Intergovernmental societies and the idea

P R E F A C E

The social species

The landscape ofthe human world is changing A social animal is coming a social species Human social consciousness is becoming the

be-social consciousness ofthe whole human species Among all the speciesofsocial animals, one species is becoming the social species

Biological history tells the story ofthe evolution ofthe human species

by natural processes Human history is the story ofthe self-evolving

ofthe human species through the work ofthe human mind The evolving ofthe human species is a by-product ofthe self-ordering ofhuman beings, within the private mind ofeach human being and withinthe public minds ofall human societies

self-The three co-ordinates ofour self-consciousness – as individual man beings, as intermediate societies, as the society ofall-humanity – arethe ordering structures ofthe ceaseless process ofour self-constituting

hu-as persons and hu-as societies As the human species re-creates itselfhu-as thesocial species, the human mind faces new challenges, new in kind andnew in scale, at every level ofhuman self-constituting, at every level ofhuman self-consciousness

Social pathology

We are excited by the new possibilities ofhuman self-constituting atthe level ofthe species Unused reserves ofhuman potentiality can bereleased and realised, bringing into fruitful collaboration new levels ofhuman energy, creativity, intelligence, to serve the highest aspirationsand the highest ideals ofall-humanity We know that we will be writing

a new page in the better story ofhuman self-evolving

We know also that there is another story within human history, thestory ofthe social effects ofevil The private minds ofhuman beings

ix

x preface

and the public minds ofhuman societies interact in the process oftheirmutual self-constituting It is a process which is wonderfully productiveand creative but which includes also a vicious cycle ofreciprocatingpathology, as every form of human evil is reproduced and magnified atthe social level

As a social animal becomes the social species, we are anxious about thenew possibilities ofsocial pathology, as social systems take power overevery aspect ofall human life everywhere, as they take power over ourminds, our wills, our hopes, our ideals, our species-nature, our species-consciousness, and as they take power, finally, over our idea ofwhat it is

to be human The globalising ofhuman society is also a globalising ofsocial evil

Each human society is an infinitely complex and dynamic structureofideas The health ofa society, its degree ofwell-being, is determined

by the ideas which take actual effect in the process of its day-to-dayself-constituting as a society To reform or redeem a society is to changethose determining ideas Our quality of life is a function of the qualityofour ideas

The unifying theme of the studies contained in the present volume is a

philosophy of social idealism, a beliefin the capacity ofthe human mind

to transcend itselfin thought, to take power over the human future, tochoose the human future, to make the human future conform to ourideals, to our best ideas ofwhat we are and what we might be

Practical theory

The ideas which take actual effect in the process of day-to-day social

self-constituting are, in the first place, what we may call practical theory.

Practical theory is a society’s way ofexplaining itselfto itself, explicitly

preface xi

or implicitly, in the course ofits everyday activity As a carpenter appliespractical theory to the making ofa table, so a society applies practicaltheory to the making ofits own social reality

Behind practical theory lies what we may call pure theory, a society’s

way ofexplaining its practical theory to itself A theocracy may explainitselfin terms ofa particular religion A democracy may explain itself

in terms ofa particular theory ofsocial contract A capitalist societymay explain itselfin terms ofa particular theory ofhuman behaviour Ageometer can explain the pure theory ofthe carpenter’s practical theory

Behind pure theory lies what we may call transcendental theory, a theory

oftheory, our way ofexplaining to ourselves the nature ofexplanation,the nature ofideas, the nature ofthe mind

In Eunomia New Order for a New World,1I have sought to provide, at

the levels of transcendental and pure theory, a philosophical basis for the

new international society, the society ofall human beings, the society ofall societies The essays in the present volume are intended to provide

the groundwork ofthe possible practical theory ofthe new international

society, that is, the practical theory ofthe social self-constituting ofhumanity at the level which lies beyond the self-constituting of statesand nations

Law

In the drama ofa society’s self-constituting, law plays the leading tural role It is for this reason that the future of international law iscrucial to the future ofinternational society The interaction ofsocial

struc-reality and society’s ideas produces law, so that law can act as the anatomy

and the physiology ofthe body politic within which social reality candevelop in co-operation with society’s ideas

Law creates an infinitely complex network oflegal relations linkingevery single member ofa society with all other members – relations of

a relatively settled character, conditioning human behaviour, ual and social, within relatively settled limits In this way, social realitydevelops, within relatively settled limits, in accordance with society’sideas as they are enacted in the law and as they are expressed throughits day-to-day interpretation and application

individ-1 Throughout the present volume, references to ‘Eunomia’ are to P Allott, Eunomia New Order

for a New World (Oxford, Oxford University Press; 1990/2001).

xii preface

In the European Union, an attempt has been made to transcend thesociety ofnation and state by constructing a complex legal system, en-acting and expressing certain political and economic ideas The graveproblems besetting the process ofEuropean integration prefigure theproblems which will beset the self-constituting of an international so-ciety which is self-consciously the society of all societies, transcendingall subordinate forms of society

The challenge ofcreating purposively a new European social realityformed by and forming a new kind of European public mind is mirroredand greatly magnified at the level ofinternational society The problemofcreating the theoretical basis for a true international law ofa trueinternational society, formed by and forming a new public mind of all-humanity, is as daunting as it is exhilarating

The other human future

Humanity cannot continue on its present self-destructive course, acourse determined and distorted by large-scale socio-pathologicalphenomena – scandalous social injustice, chronic instability and violencewithin and between societies, widespread and deep-rooted public-realmcorruption, the dehumanising ofthe human individual by morbid socialforces

Human self-perfecting through the unlimited potentiality of the ter forms of human self-socialising remains as a permanent challenge,

bet-in an everlastbet-ing struggle between public good and public evil ity’s capacity for such self-transcending depends on the ideas which itforms ofitselfand ofits possibilities, ofits reality and its ideals Thepresent volume seeks to assist in the making ofa better human future

Human-by contributing to that necessary process ofhuman self-imagining andself-creating

Method

This volume is radically syncretic in aspiration, drawing together ideasfrom many different fields A major purpose is to encourage youngerscholars and intellectuals, in particular, to have the courage to cross thearbitrary and artificial mental frontiers which have done so much harm

to the creative potentiality ofthe human mind Holistic diseases ofthe

Dare to think! Dare to know! Dare to speak! Dare to hope!

Trinity College, Cambridge

A C K N O W L E D G E M E N T S

The following chapters of the present volume are revised versions(in some cases, substantially revised versions) ofchapters or articlespublished elsewhere and published here with any necessary copyrightpermission

Chapter 1 ‘Kant or won’t? Theory and moral responsibility’: TheBritish International Studies Association Lecture 1995, revised version

in 23 Review of International Studies (1997) Chapter 2 ‘Making sense of the law Lawyers and legal philosophy’: in 108 Cambridge Review (1987).

‘L´ıbranos del mal social’ (Deliver us from Social Evil): in 221 Revista de Occidente (1999) (special Pinochet number) ‘The Emerging universal legal system’: in 3 International Law Association FORUM de l’Association

du Droit International (2001), 12 Chapter 3 ‘Globalization from above Actualizing the ideal through law’: in 26 Review of International Studies (2000) Chapter 4 ‘The nation as mind politic’: in 24 Journal of Inter- national Law and Politics (1992) Chapter 5 ‘Law and the re-making

of humanity’: in N Dorsen and P Gifford (eds.), Democracy and the Rule of Law (Washington, DC, CQ Press; 2001) Chapter 6 ‘European governance and the re-branding ofdemocracy’: in 27 European Law Review (2002) Chapter 7 ‘The crisis ofEuropean constitutionalism Reflections on the revolution in Europe’: in 34 Common Market Law Review (1997) Chapter 8 ‘The concept ofEuropean Union Imagin- ing the unimagined’: in 2 Cambridge Yearbook of European Legal Studies

(2000) Chapter 9 ‘The conversation that we are The seven lamps of

European Unity’: in H Cavanna (ed.), Governance,Globalization and the European Union (Dublin, Four Courts Press; 2002) Chapter 10 ‘The concept ofinternational law’: in 10 European Journal of International Law (1999); and in M Byers (ed.), The Role of Law in International Politics Essays in International Relations and International Law (Oxford, Oxford

University Press; 2000) Chapter 11 ‘International law and the idea

xv

xvi acknowledgements

ofhistory’: in 1 Journal of the History of International Law (1999), 1.

Chapter 12 ‘Intergovernmental societies and the idea

ofconstitution-alism’: in V Heiskanen and J.-M Coicaud (eds.), The Legitimacy of International Organizations (Tokyo, United Nations University Press; 2001) Chapter 13 ‘International law and the international Hofmafia.

Towards a sociology ofdiplomacy’: in W Benedek, H Isak and R Kicker(eds.), Development and Developing International and European Law(Frankfurt-am-Main, Peter Lang; 1999) Chapter 14 ‘International lawand international revolution Re-conceiving the world’: JosephineOnoh Memorial Lecture 1989 (Hull, Hull University Press; 1989; and

in D Freestone, S Subedi and S Davidson (eds.), Contemporary Issues

in International Law (The Hague, Kluwer Law International; 2002)).

P A R T I

Society and law

What is society? What is law?

1 The will to know and the will to power

Theory and moral responsibility

Theory and Istopia – Theory and society – Theory andthe university – Theory and the philosophers – Theory andimagination – Theory and pathology – Theory and Eutopia

Given the role that ideas play within the self-constituting of human beings and human societies,what is the social responsibility and what is the moral responsibility of those whose function in the social division of labour is to think,the social engineers of human consciousness?

They cannot claim that the supposed ideal of intellectual objectivity solves them from social and moral responsibility,if they claim that intellectual objectivity requires them to treat the actual – actual social and moral con- cepts,actual social and moral values,actual social and moral behaviour – as inevitable,rational and self-justifying.

ab-Thinking in a social context is necessarily moral action,because it is able to determine the lives of those whose consciousness is modified by that thinking,that is to say,by ideas acting as social forces Our general social and responsibility now includes a duty to re-imagine the human world and human reality in the light of new ideas and new ideals.

li-Theory and Istopia

1.1 The human world is humanity’s self-made habitat, a mind-worldcreated by the human mind from its own substance The reality of thehuman world is a species-specific reality made by human beings forhuman beings The history ofthe human world is the history ofthemaking of human reality, a self-consciousness of the self-creating activityofhuman consciousness, the mind’s mirror ofthe mind To say such athing is not merely to take a certain view ofthe metaphysics ofhistory or

3

4 society and law

ofthe epistemology ofhistoriography, aligning oneself, perhaps, with

a sect ofidealist historians.1 To say such a thing is itselfa significantevent within the history ofthe making ofhuman reality, an event whose

ironical power is centred in the word is To say what is is to change human

reality

1.2 The human world is constructed from the word is, an Istopia.

The master-builders ofIstopia are those whose task in the social division

oflabour is the fabrication ofis-sentences A special burden ofsocial

and moral responsibility rests on the shoulders ofthose ofus who arepaid to think in the public interest, the social engineers ofthe humanmind-world

1.3 To change human consciousness is to change human reality Tochange human reality is to change the course ofhuman history.2 It

1 Aligning oneself, perhaps, with R G Collingwood ‘All history is the history of thought.’

‘Historical knowledge is the knowledge ofwhat mind has done in the past, and at the same

time it is the redoing ofthis, the perpetuation ofpast acts into the present.’ The Idea of History (Oxford, Oxford University Press; 1946), pp 215, 218 In An Autobiography (Oxford, Oxford

University Press; 1939), Collingwood said: ‘My life’s work has been in the main an attempt

to bring about a rapprochement between philosophy and history’ (p 77) Collingwood was influenced by the Italian philosopher-historian Benedetto Croce (1866–1952), who had taken up from Vico and Hegel the idea of historiography as the history of the actualising ofconsciousness, inextricably linking ideas and events, the ideal and the real For further discussion ofthe history ofhistoriography, see ch 11 below.

Ernst Cassirer, another philosopher-historian, aligned himselfwith Voltaire in proposing

that ‘the true object ofhistory is the story ofthe mind’ E Cassirer, The Philosophy of the

Enlightenment (1932) (trs F Koelln and J Pettegrove; Princeton, Princeton University Press;

1951), p 217 Cassirer contrasts Voltaire with Montesquieu, for whom political events still occupy the centre ofthe historical world, and the spirit ofhistory coincides with the spirit ofthe laws: ‘In Voltaire, on the other hand, the concept ofmind has gained broader scope.

It comprises the entire process of inner life, the sum total of the transformations through which humanity must pass before it can arrive at knowledge and consciousness of itself The real purpose ofthe Essay on Manners is to reveal the gradual progress ofmankind toward

this goal and the obstacles which must be overcome before it can be reached.’ Voltaire’s Essai

sur les moeurs et l’esprit des nations (Essay on the manners and the spirit [mind] ofnations)

(1756) was published eight years after Montesquieu’s De l’esprit des lois (The Spirit ofthe

Laws).

2 ‘Every day I become more convinced that theoretical work achieves more than practical

work When the realm ofrepresentation [Vorstellung] is revolutionised, reality cannot hold out.’ G W F Hegel, letter to Niethammer (23.X.1808), in J Hoffmeister (ed.), Briefe von und

an Hegel (Hamburg, Meiner; 1962–81), i, pp 253–4 (present author’s translation) ‘Without

revolutionary theory there can be no revolutionary movement.’ V I Lenin, What is to be

Done? (1902) (Moscow, Progress Publishers; 1947), p 25 Lenin quotes F Engels: ‘Without

German philosophy, which preceded it, particularly that ofHegel, German scientific socialism – the only scientific socialism that has ever existed – would never have come into being’ (p 27).

the will to know and the will to power 5

follows that, if it is our purpose to make a new human reality, we mustfind a way to stimulate the self-consciousness, the sense of social respon-sibility, the moral awareness, and the intellectual creativity ofthe rulingclass ofIstopia and, especially, ofthose who hold responsible positions inthe mental service-industries – religion, politics, administration, com-merce, the law, mathematics and the natural sciences, literature and thefine arts, the media ofinformation and entertainment It is they whoseresponsibility is not merely to imagine a new human reality but also totransform the human world as it is into the human world as it will be.1.4 Thinking in the public interest is a social function which rests

on two far-reaching philosophical assumptions In the first place, wethinkers are saying that reality is not as it is but as we conceive it to be.Secondly, we are saying that reality as we conceive it to be is a possiblehuman world, a world we human beings can choose to inhabit

1.5 The assumptions underlying all public thinking are, for mostpeople and for most of the time, subliminal, but they are not unconsid-

ered and they are certainly not uncontroversial The history of phy in the particular tradition established in Greece by the end ofthe

philoso-fourth century BCE is the history of the self-contemplating of humanconsciousness, a history ofhuman consciousness considering the pos-sibility ofhuman consciousness It is, in particular, the history ofthework ofthose whose function in the social division oflabour is to think

about thinking, that is to say, of philosophers, ofthose who think about what thinking is.3

1.6 We may call it the Parmenides Moment, that moment

ofself-enlightenment when the self-examining human mind recognises the

problem ofwhat it is to say that anything is, whether we say it of a god

or gods, ofjustice, ofthe state, ofour own being, ofour own mind.And, for each human being, the Parmenides Moment is an ever-present

3 Hegel referred to philosophy as ‘the Thinking of Thinking’, in the Introduction to The

Philosophy of History (tr J Sibree; New York, Dover Publications; 1956), p 69 He took

the view that ‘history’, as opposed to historiography, is the march ofthe Universal Spirit towards Freedom.

Summarising his own philosophy ofhistory, Ernst Cassirer said: ‘Human culture taken

as a whole may be described as the process ofman’s progressive self-liberation Language, art, religion, science, are various phases in this process In all ofthem man discovers and proves a new power – the power to build up a world ofhis own, an “ideal” world Philosophy

cannot give up its search for a fundamental unity in this ideal world.’ An Essay on Man.

An Introduction to a Philosophy of Human Culture (New Haven, Yale University Press; 1944),

p 228.