The co-evolution of cosmopolitan and national statehood – Preliminary theoretical considerations on the historical evolution of constitutionalism

Introduction

It makes little sense to argue the question as to whether or not we should have a post-national and cosmopolitan order. It already exists, and we must take positions for or against the – by now – ubiquitous (and, in parts of the world, very powerful) existence of the state from within the cosmopolitan world order.

One of the legends discussed and disseminated by the schools of Eric Voegelin or Carl Schmitt was the thesis that the state was a modern invention stemming from the 16th or 17th century. However, the history of state formation and transformation stretches back to the very first societies with a kind of specialization regarding the use of coercive power (Tilly, 2011). The nation-state existed in the late 19th century in a small (but powerful) northwestern segment of the globe, originating roughly around the time of the Protestant Reformation but with deep roots in medieval history. The nation-state came to dominate Europe in the 19th century and became a truly global phenomenon in the second half of the 20th century.

Bodin’s and Hobbes’ philosophical construction of sovereignty was far beyond the European – and particularly the English – political and constitutional reality at any time. It merely constituted a highly influential political myth that fitted nicely with the self-description and self-representation of some ‘absolute’ princes, yet which was contested strongly not only by the still powerful old (‘feudal’) powers but also by the protestant revolutions, in particular when they were under Zwinglian or Calvinist influence. The winners of the English Revolution were not the party of the sovereign prince, James I, and his beheaded son, nor Hobbes’s famous dialogue between the philosopher and the student of common law. Instead, the victors of the English Revolution were the critics of absolute sovereignty, the common law lawyers: Sir Edward Coke, John Selden, Mathew Hale and their students (Berman, 2006: 202–204, 235–263, 274; Thornhill, 2011: 140 f.; Gray, 1980: 38). There was never a Leviathan capable of keeping legal peace as in Hobbes’s pure theory. Nor was there any internally uncontested sovereign power of peace-keeping or a power that was not under the law (at least under divine and natural law); and in some respects it was already a constitutionalized power (bound to a specific procedure of legislation, hearings of counsellors, etc.) relying on a certain separation of powers (e.g. between king, noblemen and clerics, king and parliament as the highest court, etc.). ¹ Furthermore, and this leads to one of the central theses of this article, there was not first and originally a pluriversum of Leviathans followed by a second-order problem of international law, as in the constructionist view of the contract theory of state-formation; instead, from the very beginning of the modern state there was a co-originality of an international or cosmopolitan legal order (with some aspects of universal statehood) and a legal order of particular states such as the later nation-state first resulting from the English Revolution.

From both historical ends, the paradigm of the nation-state (or even the myth of the homogeneous nation-state) is crumbling from the past and from the present. The contemporary world is not merely shaped by the effects of global problems; these problems are now perceived and defined as common problems of mankind, and this is possible only because world society is already a normatively integrated society.

To date, the new cosmopolitan order includes: (1) the permanently increasing juridification of world society; (2) the emergence of some kind of a hierarchy of norms; and (3) the structural coupling of the systems of world law and world politics. Thus, the present cosmopolitan order is already a constitutional order that is both cosmopolitan and includes strong elements of statehood on post-national levels (Albert and Stichweh, 2007; Chimni, 2004; Shaw, 2000). Here, the statehood of an international organization is distinguished from a mere inter-governmental organization by the following criterion: An international organization is a state-like organization if – and only if – it not only amends but also replaces a specific state function (Albert, 2005: 229). Good examples include the international courts system, the weakly institutionalized, mainly informal but regular and close cooperation of executive bodies (from Bretton Woods over G20 to the Basil Bank Committee and the Bologna Process), or, at the regional level of the EU, it is even democratic legitimization that is now relying on a complex ‘reciprocal entanglement of Member States and the EU’ (Ley, 2010: 170).

International organizations such as the UN, the ILO, the OAS, the AU and the EU ‘have (…) taken on functions previously performed by governments’ (De Búrca and Weiler, 2012; Halberstam, 2008). These are functions of government as opposed to the vague, so-called governance, precisely because international law-makers or judicial bodies are responsible actors with names and addresses, even if they often attempt to operate (like Mafia bosses) in the shadow outside public light. ² This cosmopolitan world order was designed and realized in its institutional core without success after World War I and successfully between 1941 and 1951. Since 1989, it has become the cosmopolitan order of the entire globe. But it is far from democratic. While it is constitutionalized, its constitution is poor, as we will see.

Considering both ends of the history of the modern state, this article argues for a paradigmatic shift regarding the theory of the modern state. The thesis presented in this article is that the nation-state is a borderline case of statehood, a very specific historical case that is by no means the perfect form of the state or the telos of 3000 years of state evolution.

The first section begins with the concept of ‘cosmopolitanism’ and suggests the thesis that cosmopolitanism is an evolutionary universal. In contrast to the Eurocentric view that cosmopolitanism dates back to Greek and Roman stoicism, this article demonstrates how cosmopolitanism was not an exclusively European invention, and that the ancient cosmopolitan ideals already included a number of formal elements which became important much later and were even constitutive for modern democratic self-organization. Section II, which discusses the Papal Revolution, justifies the thesis that modern society and modern statist cosmopolitanism are co-original. Section III develops the article’s central thesis of the co-evolution of cosmopolitan and nation-statehood. Then, in the final section (III), the return of legal and political cosmopolitanism in the 20th century is discussed. Here, the central thesis is that 20th-century cosmopolitanism (whether or not it is called so is immaterial) developed a new idea of freedom as expressed in the UN Charter and the Universal Declaration of 1948 that surpasses the ideas of 1789.

An evolutionary universal

Cosmopolitanism is an old project, and there is nothing specifically European about it aside from the combination of the cosmos with the polis; the universe with civil society. For early Greek stoic philosophers, the cosmos was a polis because it was a perfect, rational order; living in accordance with it was the telos of the political animal (zoon politicon). What is often overseen, however, is how cosmopolitanism was not developed by Greek and Roman philosophers alone. On the contrary, it was invented during the Axial Age ³ between 800 (or, as new research suggests, some time before) (Assmann, 1989; Breuer, 1994: 2; Dittmer, 2010) and 200 BCE more or less independently from one another in several different places. When the matter already existed, the term – be it cosmopolis, civitas maxima, res publica universalis, universal monarchy or ecclesia universalis – was first introduced in the 4th century BC by the Greeks and later repeatedly redefined and reinterpreted by Roman and Christian philosophers and the philosophers of the Enlightenment in their turn.

Throughout the hegemony of European imperialism and European educational ideology, non-European cosmopolitanism has been repressed as well as non-European and ‘archaic’ globalization, global history, politics and economy. Only recently have deconstructionist philosophers, postcolonial studies and – even more radical – historians of the blossoming branch of world history reconstructed the memory of the repressed (see Anghie, 2004; Conrad et al., 2007; Derrida, 1992; Osterhammel and Petersson, 2007). This is not accidental, but due to the emergence of world history as ready-to-hand reality and everyday experience for every single human being (ibid.: 64 ff.; Bright and Geyer, 2007: 43–44). Together with a dense network of global institutions, and enabled by the new global media of mass-traffic and mass-communication, the globalization of highly concentrated political power and autonomous political community, of positive law and highly organized market economy, of the human rights moral culture, of knowledge and experience, of science, formal education and protest movements, but also (and not least) of war and crisis has led to a total decentring of Eurocentrism, of occidental rationalism, and even of history, humanities and social sciences. If they were once European characteristics, they are no longer.

Long before the last phase of modern globalization ‘archaic globalization’ existed (Bayly, 2007). Cosmopolitanism was invented during the Axial Age at several different places which were more or less independent of one another. Because cosmopolitan ideas were developed independently from one another in different global regions from Sian in China to Rome in Italy and in very different religious and profane contexts, cosmopolitanism must be addressed as an evolutionary universal or an evolutionary advantage (Parsons, 1964; in Luhmannian terms, one could speak of an ‘evolutionary advance’: Luhmann, 1997: 505 ff.). As the eye, the brain, kinship, religious belief systems, social stratification, functional differentiation, empires, states, constitutions or (following Parsons) even democracy – cosmopolitanism is a multiple invention of the evolution. Sometimes these universal inventions are exported, sometimes copied, sometimes invented anew, and usually it is by a mix of all three means of dissemination.

Cosmopolitanism was originally closely linked with the emergence of comprehensive and highly rationalized religious and philosophical world-views and, at the same time, the emergence of imperialism, social class stratification and the differentiation of urban centre and rural periphery. Paradigmatic is the use of urbs in singular for the city of Rome in classical pagan times as well as in contemporary Catholicism and orbis for the rest of the world. Already the first ‘archaic’ ⁴ states, such as the Assyrian state formation 3000 years ago, understood themselves as the centre of the whole universe, hence were imperial and already contained the blueprint of a cosmopolitan ideology (Tilly, 1990: 4). From the very beginning, state formation evolves in a great variety of species, as there are city states, empires, rural kingdoms or federations of states such as the famous Greek federation of city states 400 BC, and there were highly decentred states as well as consolidated states with a central government and a unified administration of a whole empire such as Egypt 1500 BC or China 300 BC (Tilly, 1990). In all these regimes, the centre-periphery difference is constitutive of the emergence of a cosmopolitan and ‘onto-theological’ (Heidegger) world-view.

All versions of cosmopolitanism are defined by the same set of basic ideas. And all of them have been articulated by Buddhism, by Cynic and Stoic philosophy, by Confucianism, Judaism, Taoism, Zoroastrianism, Brahmanism and by Christianity, and later by Islam. They all rely on (1) the basic distinction between transcendence and immanence, (2) an institutionalization of the difference of immanence and transcendence in philosophical academies, religious churches and border-crossing, universal discourses within the intellectual class, and finally (3) a set of strategies to overcome the difference of transcendence and immanence (Eisenstadt, 1987: 21).

Classical cosmopolitanism therefore entails not only (1) the transcendental idea of a universal community committed to the one universal basic law of the Golden Rule (Berman, 2005: 78–79), but also its institutional embodiment in (2) a set of procedural rules for the formal institutional settlement of conflicts, and a kind of subjective right of the hearing and being heard for all parties in a given case, and ‘to present evidence to support their arguments pro and con’ (in Roman law: audi alteram partem). The universal basic laws, procedural rules and subjective entitlements (of hearing and giving reasons) constitute the institution of fair trial and impartial tribunal which could even be extended to foreigners, as in the Roman ius gentium (Hattenhauer, 1992: 66, 72; Höffe, 1999: 236; Seagle, 1941: 103). Furthermore, (3) universal principles, methods and entitlements implied strategic ideas to overcome the difference of transcendence and immanence: They were (a) applicable not only to judicial proceedings but also in legislative and administrative proceedings. Universal principles (b) were not restricted to official or public law but applicable in unofficial and informal ‘settlements of conflicts within and between associations of all kinds’ (families, neighborhoods, workplaces, professional associations, religious societies, ethnic groups, nations, cultures and civilizations which have been clashing since the Axial Age); finally, they were even used as the first medium of a fundamental and utopian criticism of the structural and outrageous injustice of hierarchically structured class societies, in particular in monotheistic contexts of a ‘theodicy of suffering’ (Weber, 1978 [1920]: 243–246). In the latter case, prophets and religious leaders also criticized the outrages of slavery, glorified slave revolts (such as that of the Jews in Egypt) and sometimes even came close to a criticism of slavery as an institution, but only in the negative prophetic criticism of injustice that is internal to all political and non-political domination, and in the projection of a transcendental realm of God, was slavery abolished, at least virtually – such as in Augustin’s City of God (Maddox, 1996).

Even in deeply non-egalitarian societies, these rules secured a minimum of equality provided that conflicts were solved by the use of legal means, which was not usually the case in the relations between the upper and lower classes of society. Roman law was civil law, meaning that it was used to coordinate and stabilize the internal relations of the ruling classes while the other classes were subject to simple coercive measures (Wesel, 1997: 156). Like all emperors, the Romans knew that ‘coercion works’ (Tilly, 1990: 70). Universal justice and cosmopolitanism therefore maintained ‘abstract ideas’ (Hegel) in ancient times. At least for the lower classes, they were mostly devoid of any real impact, useful – at best – for the good life of philosophers.

Even if cosmopolitan thinking was designed from the outset for institutional implementation and even if it had some important institutional consequences in the different ancient world regions – and in particular for the development of jurisdiction – early cosmopolitanism in ancient political societies and empires was only loosely linked with political power and legal consequences and effects. If we neglect some of the more politically intended Greek versions that were directed against the Platonic polis-parochialism, cosmopolitanism had three basic functions for Stoic philosophy in general:

Beyond that, classical cosmopolitanism had no direct legal and political meaning. And unlike the pretended anti-political habit of the Christians, most of the pagan cosmopolitan philosophers were in deep accordance with the basic structure of class domination within the already-existing political world of their own republics and empires. The Christians were different because their empire (1) was not from this world but from another world, and the other-worldly empire (2) was conceived in a totally egalitarian manner. In principle, this allowed them to develop the radical criticism of the existing political order. In the beginning, this was at best abstract utopianism; in the 11th century, however, it was transformed into an internal tension existing within the political and legal world order of the day.

The first cosmopolitan state and the freedom of corporation

The Papal Revolution was the first Christian revolution at the threshold of modern society. It unified the masses and mobilized them against the high clerics, high nobles and emperor under the slogan ‘Freedom of the Church’ (Libertas Ecclesiae). The intertwined class struggles – more or less at the same time struggles between clerics and nobles, between peasants and robber knights, between slaves and slave holders, between urban plebs, burghers, low clerics, low nobles and the Pope versus the high clerics, high nobles and the emperor (Berman, 1983; Bois, 1993; Le Goff, 1970; Moore, 2001) – ultimately led to a normative learning process and the invention and institutional embodiment of a new general idea of freedom that was the first modern concept of freedom: the freedom of corporations.

Social evolution consists – as we can learn in particular from the study of the great revolutions – not only in incremental processes of gradual adaption (that Marxists have addressed with the concept of ‘growth of productive forces’) but also in rapid change of evolutionary experimentalism that must be adapted but is far too rapid for gradually improving adaption (as in classical Darwinism). ⁸ In particular, great revolutions are a paradigm case of rapid change that consists – as Luhmann says – in experiments with ever more risky maladjustments. Revolutionary change is caused not by the growth of productive forces (as orthodox Marxism claims), but by class struggle that is the very communicative medium of normative learning of societies (Eder, 1983).

A political and legally meaningful cosmopolitan order was first developed after the Papal Revolution of the late 11th century in Western Europe. The reason for the legal and political turn of cosmopolitanism since the 12th century in Western Europe was already observed by Max Weber: It was the beginning of modern state building, and the first modern state that emerged during the First European Revolution (Robert I. Moore) was the universal state of the Church. Weber described the Church of the day as the ‘first rational bureaucracy’, a ‘modern’ ‘rational organization’, a ‘disciplined army of administrative power’, or in German: the first Anstaltsstaat (Weber, 1964: 432, 480, 549; 1981: 5 f., 7). To avoid any misunderstanding here; speaking about a cosmopolitan state of the Church, reference is made primarily to the self-description of the organization of the Church as a universal body that in the last resort is conceptualized as the universal body of Christ. Factually, this was only effective in the huge region of Western Europe, with some bloody effects in the east (in particular because of the crusades). But the self-description of an organization is an important part of its social reality, constituting it as a formal organization.

This state of the Church described itself in terms of a legally organized cosmopolitan order: as an internally differentiated continuum comprising civitas dei and civitas terrana as a kind of universal confederation. Political power, the religious sphere and the legal order formed a ‘juridified’ constitutional system enabling the reconciliation of lasting opposites (Berman, 1983; Fried, 1974; Tierney, 1982). The dialectical constitutional reconciliation of lasting social, political, legal and religious contradictions was repeated, reinvented, renewed and reorganized again and again in all of the great European revolutions.

The lasting opposites of the Papal Revolution were those of Sacerdotium and Imperium. The co-evolutionary contest of universal and particular statehood was constitutionalized since the Concordat of Worms (1122). The sacred cosmopolitan state of the Church was integrated with the secular state of the Empire, the kingdoms, the feudal orders, the city states and the whole variety of other corporations through a legal hierarchy. It was based on the priority of natural and divine law over positive law, and the principle of papal law supremacy with the papal decrees and the papal court of last appeal. In the European Union today, where the claim of European law supremacy is reconciled by a process of constitutionalization with the national member states’ claims for popular sovereignty, the claim of papal law supremacy was reconciled through law with the claims of emperors, kings and municipals for princely sovereignty. The arguments of the canon lawyers were no less complex than those of the European courts and lawyers today. ⁹

The constitutional system established by the First European Revolution was based on the freedom of corporations. It disclosed an evolutionary path to modernity that led to the coexistence for the first time in Europe of the already-existing legal, religious and political corporations of the Christian Church, the Christian Empire and Christian kingdoms which all claimed ‘sovereignty’ as well as to the blossoming of completely new and autonomous corporations such as universities, student corporations (nationes), guilds and the completely reorganized republican city-states. Therefore the usual attribution of universal monarchy to the dark Medieval Age and plural national republicanism to Renaissance and Enlightenment is simply wrong (see Deudney, 2007: 36–160).

The legal concept of a corporation (corpus, universitas, collegium) fits with nearly everything: with commercial associations, poorhouses, bishoprics, the Church as a whole, the totality of the Christian world, and the entire cosmic body of Christ. For the first time in history, the canon law of the corporation is no longer based on kinship and family bonds but instead on function, membership and formal organization. Founding a new corporation under canon law only required a minimum of three members. Canon law abolished the imperial privilege prescribed by old Roman law for the formation of a corporation, and canon law entitled all corporations with an autonomous jurisdiction (which was restricted to public corporations alone in Roman law). Canon Law developed the modern legal form of a joint personality of the association (Verbandspersönlichkeit) with joint estate and joint and several liability (Gesamthaftung). The former principle of the Roman civil law of heritage – that that which concerns everyone requires the consent of everyone (quod omnes similiter tangit, ab omnibus comprebetur) – was formalized and generalized to a legal rule of corporative organization and decision-making. There was no longer a personality of the group existing beyond the will of its individual members as was formerly the case with German and Roman law (Berman, 1991: 364, 366; Landau, 1996: 42; Maddox, 1996: 99; Struve, 2004: 14; Weber, 1964: 615). As Weber had already observed, the canon law of corporation was path-breaking in terms of turning political rule into a ‘moderne anstaltsmäßige Staatsverwaltung’ (Weber, 1964: 549, see 615 f.).

The idea of a universal Church or Ecclesia Universalis was more than mere ideology (Dictatus papae, c. 2, 8, 9; see Cantor, 1969: 228, 273 f.; Moore, 2001: 72, 189 f., 225; Schatz, 1990: 107, 103; Wieacker, 1967: 74 f.). This was what Hegel referred to as an existing idea, because the structural basis of the cosmopolitan legal state consisted of the full-fledged functional differentiation of law that no longer formed a legal order but for the first time a legal system with an internally differentiated organization of courts at its centre and an academically educated legal profession that secured the autonomy of the system (Berman, 1983: 24 f., 129, 145, 367; Brundage, 1995: 39 f., 55 f., 62 ff., 152, 164 ff.; 1994: 185–190; Luhmann, 1993: 25). The birth of modern law and the modern system of universities was co-original, meaning that the legal system could no longer be steered directly from outside of the system. It could be destroyed but no longer controlled simply due to its internal complexity.

The law of the canonists was no longer a mere cooperative law used for transactions between the members of the ruling classes of the Empire as was the case under old Roman law. Canon law was not only the basis of a Luhmanian autonomous social system designed as an immunity system of society functioning exclusively to stabilize reciprocal expectations; canon law was also a legal instrument designed to change and reform the world in the light of universal emancipation and salvation (Berman, 1983: 53 f., 259, 262, 286, 622, 791). In Canon Law, the reception of Roman law accompanies the cosmopolitan ethical discourse of early Christianity for the first time. But the system of juridified clerical power over the body and soul of the people worked much better and was much more effective than Roman rule by external coercion and superior administration alone (see Strayer, 1970; on the constitutive and unique role of the Western European parish system, see Moore, 2001: 268, 294).

The consequences are twofold: The cosmopolitan ethical discourse of universal brotherly love loses its abstract and utopian character because it is now embodied in a legal system and has legal consequences and effects (Rechtsfolgen) – for the good and for the bad: on the one hand, juridified torture, disciplinary rule, pastoral power, the efficient exploitation of rural population; on the other hand, Roman Law is no longer a mere instrument of imperial class rule, a law only of coordination and repression, but for the first time Dasein der Freiheit: ‘a system designed to realize freedom’ (Hegel); for example, not only was the rural population exploited more effectively than ever before, it was also, in terms of material conditions and legal rights, better off than ever before.

However, even if one can argue that this was a kind of progress in normative terms, as the author of this article believes, it gives no reason at all for any progressivist triumphalism. Only on the basis of a law that at once is repressive and emancipatory modern could ‘microphysics of power’ (Foucault) emerge. The best example is the way clerical power over Europe worked.

The canonists were ‘elite intellectuals in a vigorous creative society. Their work as teachers, prelates, administrators touched the life of their world at many points’ (Tierney, 1982: 13). They used Roman law but transformed it deeply. They universalized and individualized it in the light of the Bible, and they systematized it through the methodological instruments of scholastic dialectic and Aristotelian logic. This way they transformed Roman class law into universal law of freedom, emancipation and salvation. Law became the main instrument to change the world in the light of biblical egalitarian universalism. Nothing like that existed before the 12th century.

But, and here we are confronted with the dialectic of enlightenment, paradoxically, it was just the same law that contained all the progress in the consciousness of freedom that could be used to transform, improve and increase oppressive power, exploitation and class rule, and make it more effective than ever before.

Clerical hegemony had its basis in a new and unique microphysics of power. The clerics were present everywhere, in the cities, at the countryside, in the smallest village, in the darkest wood, and on the rough sea. Robert I. Moore gives a striking comparison between the European clerics and the Chinese mandarins. The system of parishes covered whole space of Western Europe, and everywhere in Western Europe it determined the daily rhythm and the rhythm of the year, the time of work and the time of pleasure, the performance of sexuality, the sins, confessions and buses. Compared with such a tremendous and comprehensive power which not only allowed for control of the external but also the internal weapons of its subjects, the darkest soul and the farthest province of Christendom, the mere coercive power of Roman proconsuls or Chinese mandarins was weak. ¹⁰ A mandarin who travelled from Sian or Beijing to the far provinces and back had absolute power as long as he was present. But ‘absolute power is weak’ (Luhmann). Therefore he could never break the violent rule of the provincial nobles substantially.

Why? – The mandarins never cared about tiny local issues, the ignoble, measly but heavy burdens of farmers, the inheritance disputes of shepherds, contests of all people, poor and rich over fishing rights, bridge tolls, water ditches, childcare, martial problems and so on. Therefore they could never gain lasting power over the province. But the clerici could, simply because for them nothing was too small and trivial, too ignoble and ugly to activate their concern. They were even concerned with the education of uneducated masses and the ‘uncivilized’ rural population. They followed the law of Christ to teach all nations. They knew that the essence of power was its microphysics, the disposition over fish ponds, lower education, the sexual use of the body, and rights of ways (Moore, 2001: 294). The Clerics were among the first ‘who offered the principal form of lower education, governed by general and local canon law rules’ (Witte, 2002: 290). They established a refined system of educational institutions on the level of Cathedrals, monasteries, chantries, ecclesiastical guilds, and large parishes where young students independent of class, were trained in the trivium, the quadrivium and other religious stuff, and ‘gifted Graduates were send to Church-licensed universities’, increasing social mobility against the structural constraints of the still stratified and hierarchical society (Witte, 2002: 290). But most importantly, the clerics had the means to care about the microphysics of power, and these means consisted in the system of canon law that shaped their professional and private life, their administrative competences and legal actions, and enabled them to implement, apply and enforce the same legal norms everywhere in Europe, in Rome as well as in Colonia, in Trondheim as well as in Catania, in Riga as well as in Capo di Finistere in furthest west of Spain. The secret of the pastoral power of the clerici was the legal proceduralization of domination and rule, the formalization of administration, and finally the ‘transformation of the soul into the prison of the body’ (Foucault) which Max Weber once called a ‘machtvolle, unbewußt raffinierte Veranstaltung zur Züchtung kapitalistischer Individuen’ (Weber, 1969: 358 f.). This is so not just since Protestantism. Already the medieval clerics strived for the rights of the poor and the disenfranchised, but at the same time they discovered that the exploitation of liberated labour was much more effective than the exploitation of slave labour (Mollat, 1984: 44; see Le Goff, 1970: 425 ff.). Modern capitalism has a long pre-history.

Co-evolution of universal and nation-statehood

In the 12th and 13th centuries, the old cosmopolitan ideas were embodied in a societal grand experiment – and with enormous historical effects – for the first time in history. The most important was that universal and plural statehood since the earliest beginnings of a modern society in Europe are emerging in co-evolution. This co-evolution was activated by the universal legal state of the church. Only a short time later, however, did the powerful European kingdoms start copying the path-breaking administrative and legal innovations of Canon Law (Schilling 1999: 387; Strayer, 1970: 22; see Hollister and Baldwin, 1978). The universal state of the Church, the new and renewed kingdoms, the Empire and the predominantly new republican city states are socially integrated by a kind of universal constitutional law. As opposed to the standard reading of the emergence of modern statehood through absolutism and Protestantism since the 16th century, on the basis of studies of Berman, Moore, Brundage, Strayer, Tierney, Fried and others attempted to develop an alternative thesis that modern statehood emerged from the co-originality of the cosmopolitan or universal state and the territorial state, which first became the modern nation state much later.

After the Protestant Revolution destroyed the cosmopolitan Church State and replaced it, the European territorial state system became essential to the modern nation-state in the course of the 17th and 18th centuries. The cosmopolitan order did not disappear completely; instead, it was reconstructed as a new kind of ius gentium that founded the European order of states by natural, divine and treaty law. It was this law – not national or state law – that (since the revolutionary peace treaties of Augsburg [1555] and Westphalia [1648]) guaranteed not only the equal sovereignty of all European monarchies and their right to choose between at least two Christian religions (cuius regio, eius religio) but also the new subjective right to exit, at least for a small number of male heads of families who had the privileged freedom to do so. The constitution and performance of the new European (and cosmopolitan) legal order was assisted by the now politically marginalized Papal Church and the remaining and legally important empire (Reichskammergericht).

But since the emergence of modern democratic constitutions in the post-Christian (and mostly deistic) great revolutions of the 18th century in France and America – and this is my second thesis – cosmopolitanism again changed deeply together with the emergence of the modern republican nation-state; and for the first time it was led by a democratic ideal concerning universal and individual rights. The new legal order of the revolutionary nation-state combined the cosmopolitan universal basic law with concrete procedural rules; subjective rights with judicial, legislative and administrative proceedings. From the very outset, such a law is designed as a dynamic order that transcends itself. It not only relies on a new order of international law based on the universal legal principle of individual and popular self-determination, it is also internally cosmopolitan. The very point of the American Declaration of Independence and the US Constitution is that they combine constitutional law of (federal and functional) checks and balances with the invocation of the equal freedom of all men and the universal right of all peoples to self-determination. From the beginning, these fundamental legal inventions unleashed democratic experimentalism and democratic expansionism (John Dewey) as well as a new form of bloody imperialism and ‘Empire’ (Hardt/Negri).

The same dynamic of the ‘reflexive structure of self-legislation’ (Schmalz-Bruns, 2009) can be observed in the history of French constitutional law since 1789. Many have observed how there was an immediate emancipation from oppressive and despotic regimes – the foundation of new republics in the countries bordering France, the Europeanization of the Code Civil as the ‘law of freedom’ (Hegel), the emancipation of slaves in the French colonies; at the same time, however, there was the re-introduction of slavery, bloody French imperialism, the Europeanization of the state of siege, which Marx ironically characterized as a ‘splendid invention (…) freeing civil society completely from the trouble of governing itself’ (Marx 1985: 112).

However, the dynamic and explosive mix of imperialism, cosmopolitan ideology, national democracy and a universal framework of legal norms of comprehensive self-determination transforms and maintains the co-evolution of universal and particular (‘national’) statehood.

A new idea of freedom: On the genealogy of equal human dignity (Article 1 Universal Declaration) and the turn from bourgeois to mass democracy

The cosmopolitanism of the 20th century is no longer the same as when Kant wrote his essay on ‘eternal peace’. There are strong continuities. The text of the American Constitution is still the same as it was 250 years ago, as it has only been amended a few times, but the constitution is no longer the same. The latest French constitution still contains the wording of the Declaration of 1789, but the new constitutional law has changed its meaning deeply. These discontinuities were caused by the social and political conflicts together with the wars, revolutions and catastrophes of the first half of the 20th century.

Since the end of World War II, we have experienced an astonishingly rapid and comprehensive process of global juridification and constitutionalization (Parsons, 1961: 120–129). What took place during the ten years between 1941 and 1951, between the Atlantic Charter and the foundation of the first European Community, was not merely the usual legal evolution, but rather massive revolutionary change.

The deep and massive societal change that peaked in the mid-20th century was preceded by more than one hundred years of the labour movement and other important social movements, particularly the women’s movement and the many different and strong peace movements. The latter emerged together with – and often closely related to – the labour movement and its powerful organizations. This change was preceded by countless insurgencies, the Great Russian Revolution and numerous smaller revolutions and civil wars, and – last, but certainly not least – the two World Wars. In the 50 years between 1892 and 1941, Tilly counts 65 revolutionary situations in Europe alone. Since 1691, this has only been trumped by the 50 years following the French Revolution (Tilly, 1996: 243). Instead of the traditional peace treaties, both World Wars ended no longer with a traditional peace treaty, but were concluded with the creation of new international law, massive constitutional reform in several national regimes and an ‘epochal remodelling of the system of states’ (Maul, 2010), and the foundation of global and regional confederations of states and peoples. Europe after the French Revolution was not so different: a completely new map (system of states), new national and international law, new constitutional regimes, new confederations, etc.

The Treaty of Versailles that ended World War I was historically unique. Here, for the first time in modern history, (1) the individualization of international law was established (Articles 227–230 Treaty), (2) the foundation of the League of Nations was stipulated, and its covenant enacted (Articles 1–26), and (3) the treaty formally constituted the law of the covenant as higher law (Fassbender, 2009) (Article 20). World War II ended without any peace treaty at all. Instead, it was concluded with the unconditional surrender of Japan and Germany and the dismantling of their authoritarian political regimes. Their unconditional surrender was immediately followed by the International Military Tribunals in Nuremberg and Tokyo, which profoundly changed international criminal law, opened the gates for further developments in international criminal justice, and shaped both later developments, the successive tribunals on Rwanda and the former Yugoslavia, and the establishment of the International Criminal Court (ICC), which even now find themselves with (still restricted) jurisdiction in cases of Art. 2 IV violations (the ‘threat or use of force against the territorial integrity or political independence of any state’). This and the latest Kadi cases of the two European courts from the same period offer good examples of further steps in the ongoing process of the evolutionary constitutionalization of the international community. ¹¹

As in all great revolutionary transformations of society, however, evolutionary and revolutionary constitutionalism are usually intertwined (Möllers, 2007). The one does not exist without the other. The American Revolution produced constitutional textbooks with an open range of meaning that was closed and changed repeatedly by a lengthy process of legislative and jurisdictional constitutionalization. The constitutions following the French Revolution were followed by a period of reluctant evolutionary constitutionalism throughout Europe, partly by a formal constitutionalization of existing (or newly established) monarchies, partly by processes of juridification and legal reforms (Sellin, 2001).

This was similar to the development in the wake of the massive constitutional and legal changes following World War II. As with all of the great revolutionary reforms throughout history, constitutionalism evolved in the wake of these dramatic turns and changes. These revolutionary changes are caused by the intertwinement of class struggles and collective learning processes. Class struggles in modern societies are usually capital-oriented, state-oriented or both (Tilly, 1996: 36). Furthermore, they are oriented in most cases to legal collisions and religious (and ‘ideological’) division. In revolutions, courses setting new ideas are the driving force of the practical manifestation of collective interests (Weber, 1978: 252).

Revolutionary constitutionalism and evolutionary constitutionalism can take different directions. The normative learning process that is paradigmatically institutionalized in revolutionary constitutions opens and discloses a great variety of possible new evolutionary developments and constrains or excludes other possible developmental tracks. However, it is only the subsequent evolutionary process of constitutionalization and concretization which is fought out in ongoing (but now constitutionally framed) class struggles that determine which of the newly disclosed tracks the evolution takes.

These tracks are often experienced by the respective peoples as the betrayal of the main promises of the revolution. For example, during the Papal Revolution, the Libertas Ecclesiae consistently implied the liberation of the peasants from their oppressors and slaveholders. After the revolution, however, the domination and exploitation of the peasants was more effective than ever before, and the revolutionary constitutional regime disclosed this evolutionary possibility that was enabled by the revolutionary advances in the rule of law. This evolutionary track could be taken because a historically contingent constellation of collective interests favoured it: All major ruling classes of the period – the new clerical class as well as the new class of artisans, burghers and magistrates of the blossoming cities, and the old but completely newly organized class of landed aristocracy – all had the same material interest in a high agricultural surplus product; hence, the peasants lost all of their possible allies after the revolution, and their exploitation and (now legal) oppression increased (Moore, 2001). As we know, however, this was not the only evolutionary path which the normative learning process of the revolution had disclosed, and new class constellations could ultimately change it by a further revolutionary learning process.

The evolutionary constitutionalization of world law and world politics that followed the revolutionary institutional changes of the 20th century consisted of, inter alia:

How the system works can be explained with an example. The ILO is not at all the most important International Organization but just a good example of the new and important functions of international organizations after 1945. Furthermore, it is in the middle of the most revolutionary development since 1945, and that was de-colonization.

One of the main sources and turning points in colonial politics was the ILO’s Declaration of Philadelphia (Annex to the ILO Constitution). Passed in 1944, for the first time in history, this declaration contributed to the development of the concept of the universal social rights of the individual (Annex II–III) in a legal document that declared these rights ‘fully applicable to all peoples everywhere’ (Annex V). States and International Organizations were committed to the universal establishment of welfare states (Annex II a, b; IV). In particular, the principle of the freedom of association (Preamble of the Constitution, Annex I b, III e) not only pre-dated the Freedom of Association and Protection of the Right to Organise Convention of 1948, but also laid the basis for a total break with the former colonial system of global apartheid, forced and compulsory labour (Annex I a, b; III b, c), and discriminatory law (Annex II a) which was constitutive for European colonialism and imperialism from 1494 until 1945. Until 1945, in particular, the infamous Article 35 of the Berlin Conference on the Future of Africa (1884–1885) was valid: ‘jurisdiction’ for the civilized nations of Europe, ‘authority’ for those in the heart of darkness (Koskenniemi, 2001: 126). This ‘revolutionary step’ of a de facto new foundation of the ILO upon the basis of the Philadelphia Declaration provided ‘the postwar anti-colonial movement with an effective tool for uncovering the contradictions inherent in the colonial powers’ claim to rule and for formulating its own demands for participation and emancipation’ (Maul, 2010). The ILO Declaration was committed not only to the development, but also to the ‘achievement’, of ‘self-government’ (Annex V).

The victory of the Allies (and in particular of the United States and the Soviet Union) over the two most aggressive imperial powers in the world, Japan and Germany, was one of the most important cornerstones in the ultimate success of the anti-colonial revolutionary movements over the old colonial powers of Britain, France and Belgium in the 1960s. Colonialism could no longer obtain any backing by international law after 1945. The post-World War II history of the ILO is paradigmatic. It was no longer the decaying colonial powers alone, but the industrialized world in its entirety, which were confronted for the first time with the opposition of the rest of the world community led by powerful voices from India. The industrialized states later lost their majority stronghold with the emergence of the new post-colonial states, which now became ILO member states (the same happened in the UN General Assembly). First, the new states took over the modernization theories of the Western (or Eastern) industrialized world, after which these theories came under attack.

The return of the Soviet Union to the ILO in 1954 following the death of Stalin was proof of the integrative power of the new constitutional framework of the ILO (and there is again a strong parallel development with the United Nations General Assembly). The conflict between the Soviet Union’s slim majority and the US leadership in the ILO did not destroy the ILO, but it did lead to several pragmatic compromises. Ultimately, it made it stronger. But what seems to be even more important is that this fight over the interpretation and application of the ILO basic standards kept the fight ‘within the international order’. Moreover, even if many new authoritarian regimes argued that they were in a temporary state of emergency, they now had to do so from within the constitutional framework of the ILO (Maul, 2010). The flexibility of the new global constitutional order was not only a source of fragmentation, further de-formalization and the emergence of new informal domination, but also a framework for a long-termed reconciliation of lasting contradictions, and this is not the worst achievement of the constitutionalization processes.

The American ‘New Dealers’ as well as the European socialists fought in World War II for both, for political and social rights as well as for their national and international implementation. Not only was the rhetoric of radical socialists thoroughly revolutionary, the rhetoric of the American New Dealers was also so. Indeed, for New Dealers such as Roosevelt adviser Charles Merriam, the idea of a ‘world bill of rights’ was ‘revolutionary in nature – far more revolutionary than any other world revolution’, and was thus to be the ‘basis’ of all actual and coming ‘revolutionary movements’ (Merriam, 1946: 11).

In order to strive for the realization of the equal dignity of all men, which was introduced by the Universal Declaration (Article 1) in 1948, the institutionalized cooperation of all nations is required. The latter was the new and binding constitutional principle of international law that was established by the UN Charter. As we have seen, the first article of the Charter replaced the old international law of coexistence, which had endured since the Peace of Augsburg in 1555, with a new international law of cooperation and friendly relationships (UN Art. 1, II–IV). ¹³ It was this very unity of international cooperation and human dignity that the New Dealers repeatedly emphasized.

The articulation of the sense of injustice (Barrington Moore) always precedes the sense of justice (Rawls). It is the moral source of all great revolutions, and all everyday class struggles (Moore, 1978; see Patterson, 1995). Yet, in particular, the historical new definition of the concept of human dignity is closely related to a kind of negative dialectical method, as in Piaget’s cognitive psychology, which developed in Europe at roughly the same time: the inclusive decentralization of egocentrism regularly begins with the negative ‘experience of injustice’ which enables the ‘conscience of the laws of equality’ (Brunkhorst, 1990: 163 ff.; Piaget, 1973: 311). This has now become how human dignity works in the context of global, regional and national human rights regimes. As Habermas has recently argued, it works not only as a trigger of legal compromise (because, without concretizing legislation, human dignity is almost meaningless, hence useful to get acceptance and applause from opposing parties), but also as a detector for the wrongs of marginalized and exploited social classes, the unequal treatment of men and women, the discrimination of aliens, sexes, races or cultural and/or ethical minorities, and so on (Habermas, 2009: 6 ff.).

The methodological negativity of dignity that generalizes the concept of dignity but abstracts from any concrete content fits precisely with Kant’s thesis that the ‘dignity of mankind consists’ in nothing else than man’s ‘ability to act as a general legislator’ in moral and legal matters alike (Kant, 1785). As Ingeborg Maus has shown in her path-breaking interpretation of Kant’s theory of popular sovereignty, this actually implies that dignity is internally bound to the notion of individual and collective self-determination (or self-legislation) (Maus, 1994). Hence, the negative notion of human dignity is only the ‘other’ – the socially and culturally inclusive (see below) side of a coin that calls for the ‘institutionalization of private autonomy and public democracy’ (Maus, 1990: 373). This does not mean that the notion of equal dignity implies any preference for any specific form of democracy, for example parliamentary democracy, or the American representational system. It only presupposes that the procedures of any constitutional and non-constitutional legislation are democratic. In turn, this means that these procedures can and must be accepted as democratic by the affected people themselves. Any specific substance of legislation and any concrete institutional arrangement is therefore due to the democratic will-formation of those who are the addressees of the law; and those alone (Maus, 1990: 350 f., 371 f.).

One of the original sources of the use of dignity in the Universal Declaration may have been a column from New Year’s Day 1936. The column had been written by Eleanor Roosevelt, who deeply influenced her husband’s 1941 speech on the four freedoms as well as his 1944 Second Bill of Rights speech (Goodwin, 1994: 201). Even though, at that time, affirmative action was white, it already contained the potential that could be used by the races, creeds or colours who were still excluded at the time (Katznelson, 2005). Twelve years later, Eleanor Roosevelt chaired the drafting committee of the Universal Declaration. In particular, the emphasis on human dignity was strongly supported by the French Delegation and Jacques Maritain, a conservative Catholic Thomist and the already famous advocate of the European ‘Third Way’ (Dritter Weg) between capitalism and socialism (McCrudden, 2008).

Yet the influence of the New Dealers on the Universal Declaration was immense. Roosevelt’s Second Bill of Rights is completely represented by the Universal Declaration (Articles 22–26). At least one of many causal chains of communicative events begins in the early days of the New Deal, which ends with the first sentence of the Universal Declaration: ‘All human beings are born free and equal in dignity and rights’ (Article 1, Universal Declaration in combination with Article 22 and Article 23 II).

What the concept of dignity expressed precisely – and this leads to a completely new interpretation of our rights – consisted of:

The Universal Declaration had enormous influence; however insufficient it may have been, most of its legal claims are now implemented in a wide range of binding legal documents and legal instruments of enforcement and supervision, reaching from the Council of Europe of 1949 to the Inter-American Court of Human Rights of 1979, from the European Convention on Human Rights to the International Human Rights Covenants of 1966, and from international constitutional law to a huge number of national constitutions, beginning with the German and Austrian Constitutions after World War I, and ending with nearly all of the new constitutions since the 1940s, and – even more importantly – the radical re-interpretation of all old democratic constitutions in the light of the UN Charter and the Universal Declaration, which even the U.S. Supreme Court now comes increasingly under the pressure of the new ‘standards of civilized nations’ (Declaration of Independence) created after World War II. Altogether, this indicates the existence of a firm global constitutional consensus consisting of the recognition of human dignity as the unalienable unity of political and social human rights, and of national and international law (Sunstein, 2004: 100 ff.). Under the cover of dignity, even the still non-binding social, economic and cultural rights of the second Covenant of 1966 are more than mere declarations.

The exclusion of inequalities, which was once the legal principle of the normative integration of the modern nation-state (Stichweh, 2000: 52), has now become the principle of the normative integration of world law or the constitutive principle of global constitutionalism. On the threshold of the 21st century, the global legal order consists of a rapidly growing number of international courts (and internationally acting national courts) at the centre of the global legal system; a functionally differentiated system of world politics with about 200 nation states and 250 global and regional international, transnational and supranational organizations with a rapidly emerging transnational administration at its centre (Fischer-Lescano, 2008; Kingsbury et al., 2008); a world public with its own permanent agenda of topics; an emerging world citizenship, which exists, at least, in its status negativus, and a civil society of free associations, including some 27,000 non-governmental organizations (Held, 1995).

Until 1989, however, the process of global juridification and the constitutionalization of both international politics and the global economy and all of the other functionally differentiated systems and specialized spheres of value had been kept inchoate. It was first after the fall of the Berlin Wall, the final victory of United States over the Soviet Union (not: Russia!), that the normatively integrated world society, already founded immediately after 1945, was finalized and established all over the globe. Yet, even if the United States was the winner of the so-called Cold War, the now more than ever decentred world society is no longer a Western society.

But after the now completed finalization of world society, it is essential to recognize that the construction of a democratic world society is still (at best) a work in progress – an unfinished project. The promise of 1945, renewed in 1989, was one of universal self-determination for individuals and peoples, and hence democracy; but what we received was universal capitalism in its stead. Until the 1979th, capitalism (then called late- capitalism) was a system of state-embedded markets that was a result of the social struggles and the global civil wars of the first half of the 20th century. But since the neo-liberal turn of the 1980s, state-embedded late-capitalism was abolished and replaced not (as the left has hoped) by socialism but by global turbo-capitalism that has transformed state-embedded markets into market-embedded states (Crouch, 2011; Streek, 2005, 2010). ¹⁴

As Slavoj Zizek rightly remarked in the New York Times of 9 November 2009, the image of the present world society comes ‘uncannily close to the most abused traditional leftist image of capitalism: a society in which formal democracy merely conceals the reign of a wealthy majority’. The open question is whether or not democracy will again be able to transform capitalism without a human face into capitalism with a human face, or what is just the same, into socialism with a human face; and this time on the level of national as well as cosmopolitan statehood. However that may be, cosmopolitanism in the age of the world society is still confronted with the abysmally negative dialectic of enlightenment, and the inherently catastrophic tendencies of modern capitalism that (as a major result of the social revolutions and reforms of the 20th century) could be kept under reasonably working democratic control only for the short time between 1950 and 1980, and only in a small and rich segment of the world. As it seems in a new time of (probably) great crisis, the revolution of the 20th century is not finished yet.