Legal Revolutions and the Sociology of Law

Social Evolution and the Sociology of Constitutions

At the center of Brunkhorst’s work is a sociological theory of constitutional law, which explains the role and standing of constitutions as documents that define normative preconditions for exercise of public authority, in part, on the basis of an evolutionary construction of society. This approach to constitutional law, in itself, has a distinctive status in sociological inquiry. Typically, normative analysis of constitutions has been the reserved domain of legal philosophy. In fact, sociologically motivated approaches to law have only rarely engaged with constitutional norms, and legal sociology has inherited a deep skepticism toward constitutional law. Notably, classical sociological accounts of legal evolution normally identified private law as a sphere of relatively informal legal practice, shaped by complex and spontaneous social interactions, and they selected private law as the eminent object of sociological inquiry. ⁴ In contrast to this, they commonly viewed constitutional law primarily as the outcome of formal norm-giving processes laying rather spurious claim to collectively binding validity. This view was of course expressed paradigmatically by Ehrlich (1989 [1913]: 311–330]), but similar principles also underlie Marx’s attitude to constitutional law. Marx famously argued (1956b [1844]) that the separation between private law and constitutional law was only sustainable through ideological fiction. Concern with private law has generally persisted as the dominant impulse in legal sociology; indeed, the focus on private law retains particular salience in legal sociology that addresses the hypercomplex realities of contemporary society. ⁵ For this reason, the constitutional emphasis of Brunkhorst’s work again means that his work stands between standard patterns of legal–philosophical and standard patterns of legal–sociological reflection. At one level, he accepts the classical philosophical construction of constitutional law that it forms a body of norms ‘derived from certain fixed principles of reason’ and ‘directed to certain fixed objects of public good’ (Tomkins, 2003: 5). At the same time, however, he attempts to explain the collectively directive quality of constitutional law as the result, not solely of rational conceptions of good order or discursively mediated agreements, but of socially embedded evolutionary trajectories. In other words, although he clearly accepts more standard philosophical definitions of constitutions as the normatively defining self-constructions of society, he seeks to offer a sociological account of the processes through which such norms come into existence and through which they obtain objective reality.

Brunkhorst’s sociological theory of constitutions revolves around the claim that the normative (i.e., constitutional) organization of state power is generally effected through a two-level or two-stage process. On one hand, he argues, the normative core of constitutional law is created through revolutionary or catalytic outbursts in society. That is, constitutional norms result from moments of radical and deeply emancipatory social upheaval, in which agents in society assert claims to rights of freedom and equality and attempt positively to translate these principles into generally binding (i.e., constitutional) laws. Constitutionalism thus always contains a founding revolutionary dimension, in which the normative essence of the most deep-lying transformative impulses in human society acquires expression. Indeed, the characteristic legal form of each period of social evolution is determined by constitutional revolutions. On the other hand, however, constitutions reflect a less explosive, evolutionary tendency in society, such that, in the wake of moments of revolutionary transformation, constitutions provide a residual normative structure for society, and they shape the more gradual, incremental processes of social adaption that follow revolutionary episodes, even where such processes fall visibly behind the normative demands originally expressed in constitutional revolutions.

Brunkhorst elaborates this two-stage theory of constitutional normatively through the concept of ‘normative constraints’. He asserts that, in its entirety, the evolution of human society occurs within a body of constraints which define society’s capacity for adaptation at any moment. In the initial stages of human social development, he claims, organic constraints formed the primary parameters for societal evolution. In modern society, however, such constraints lose importance as factors that determine social development, and their functions are superseded by normative constraints, which shape, give direction to, and act as conditions of possibility for, the wider underlying evolutionary form of society as a whole. The normative constraints that define the course of modern social evolution are generated through the catalytic revolutionary outbursts described above. Revolutions formulate normative principles, which impact constitutively upon, and dictate the limits of, all subsequent processes of social transformation. Naturally, Brunkhorst elucidates, this does not preclude the possibility that prevailing conditions in postrevolutionary society will negate even the most fundamental normative demands of revolutionary praxis – indeed, it is almost inevitable that, under some conditions, this will be the case. He explains this in the following terms: ‘The egalitarian euphoria of every revolution is followed by a terrible adaptive Katzenjammer [Hangover].’ In the hangover that follows revolution: ‘New revolutionary ideas, constitutional and legal principles regularly are betrayed, distorted, reversed, forgotten, made subservient to new class rule and exploitation […] and the incremental evolutionary process of sober assimilation (= functional adaptation)’. An example of such apparent postrevolutionary reversal might be observed, for example, in the fact that the great Protestant Revolutions in and after the Reformation articulated a series of radical rights claims: they gave legal expression to singular rights such as relative freedom of conscience and relative freedom of scientific inquiry, and they insisted on far-reaching principles of equity, natural equality, and equal procedural standing as elements of legal order (Oldendorp, 1529: 20). Indeed, in its most radical expressions, the Protestant revolutions insisted on absolute rights of political equality, arguing that all people are equally inspirited by God and God’s law of equality must be applied in all parts of secular life (Zwingli, 1905–1958: 463). However, these egalitarian principles were almost immediately suppressed, and they were quickly obscured beneath the rising administrative order of the neotheocratic princely state, which quickly exploited the willingness of its court theologians to serve as apologists for the imposition of its unbridled territorial authority (see J Stephani, 1612: 16, 51–52; M Stephani 1611: 240). A further example of this might be perceived in the fact that the classical revolutions in the late 18th century promulgated Bills of Rights, to be applied equally to all citizens, and they proclaimed the exercise of constituent power as a basis for early democratic representation. Yet these institutions were soon (at least partly) supplanted. In France, this occurred through Bonapartistic elite rule, flanked by the institutions of an early capitalist civil–legal order. In the United States, this occurred through court-led patterns of inclusion, shaped, and defined by the primacy of property rights and the civil–political exclusion of minority groups. ⁶ Despite such almost inevitable lapses, however, on Brunkhorst’s account, revolutions generate norms which, once established, can never be conclusively eradicated from the form of society. In particular, he argues that ‘normative constraints in modern societies’ take the primary form of legal, or, particular, constitutional legal, constraints. These constraints are expressed, most prominently, in ‘constitutional law (written or unwritten, material, or formal)’. Such laws are ‘the direction givers’ of social evolution, ⁷ and they engender a social horizon in which ideas of freedom, dramatically articulated in revolution, retain pervasive – although often precarious – influence on social practice through longer, more incremental patterns of transformation. He expands on this claim to state that, ‘The normative constraints of evolutionary adaptation’ are always embodied in the ‘new constitutional and legal order of society,’ which results originally from moments of shared revolutionary praxis.

In Brunkhorst’s theory, in consequence, constitutions always contain both a revolutionary and an evolutionary dimension. ⁸ Constitutions are points of crystallization for society as a whole, in all its dimensions; they articulate both the founding normative vision and the stabilizing normative structure of a society at a given historical juncture. Beneath this account of constitutionalism lies a Marx-inspired, although emphatically revisionist, theory of social conflict. In this scheme, Marx’s account of revolutionary transformation as shaped by material antagonisms between productive forces and relations of productions is transposed onto a normative plane, and revolutionary change is observed, not solely or even primarily as a material process but as a normative process, which obtains greatest importance in the degree to which it instills claims for rights of equal freedom into the basic normative form and the basic constitutional order of society. The normative or constitutional character of society, created in revolutionary fashion, is then likely to persist, even through sequences of apparent regression, until such a time as normative pressures evolve in society, which render society’s existing normative structure redundant and provoke its further transformation.

Revolutions as Revolutions in Law

For legal sociologists, a further point of great significance and distinction of Brunkhorst’s theory is that, as indicated, it accounts for punctuated revolutionary bursts of social transformation as events that occur most particularly in the law. It is in law more than in any other social register or medium that, for Brunkhorst, both the constitutive normative ideals and the adaptive normative constraints of any social epoque are consolidated. On one hand, as discussed, law is explained through an evolutionary model of social formation. On the other hand, however, the law cements the shared rational expectations of society as a whole, and it articulates a present and persistent memory of society’s founding freedoms and perpetual demands for emancipation and moral legitimacy. The key implication underlying this theory is that the formation of modern society has been determined by a series of legal revolutions, each of which has given rise to a distinct order of public legal or constitutional norms. Each revolution expresses and conducts a collective/revolutionary learning process, and this process is ultimately objectivized in law – constitutional law. Naturally, most theorists of revolution have been prepared to admit that revolution impacts on law; this was the case even for Marx, although he was only rarely prepared to account for the law as anything more than a bearer of given objective material relations. ⁹ However, Brunkhorst’s primary claim is that law is the privileged medium and the privileged expression of revolutionary transformation, and it is in the enactment of a new constitutional form for society that the greatest revolutionary accomplishments (both at an objective/material and at a cognitive/normative level) can be observed. While Marx viewed revolution as caused by material conflict, Brunkhorst, to some degree following Habermas (1973: 153), argues that revolutions are impelled by legitimation crises in the normative dimension of society (here, law), that is, by an uncontrollable normative diremption between the existing form of the law and the collective normative expectations addressed toward the law. Such crises then trigger accelerated ‘normative learning processes’ in society, and, in extreme cases, these learning processes culminate in ‘revolutionary change’. These crises, then, find resolution – albeit only partially and temporarily – in the normative constraints established through constitution making.

The great legal or constitutional revolutions that have most deeply shaped the normative form of modern society are the Papal Revolution of the 11th century, the Protestant Revolutions induced by the Reformation, the classical constitutional revolutions of the late Enlightenment, and the constitutionally formative rise of international law in the middle of the 20th century, gaining especial momentum after World War II. Each of these revolutions, for Brunkhorst, instilled a new legal/normative dimension within society as a whole, and each revolution instituted universal legal norms behind which the subsequent evolutionary form of society could not easily or enduringly regress. Each of these revolutions cemented a binding and unprecedented body of constraints, which formalized a social learning process and enunciated an in increasingly universal grammar to determine all subsequent social interactions. The last of these stages, notably, is defined by the formation of cosmopolitan law – that is, by the ‘emergence of inter, trans, and supranational human rights regimes’ – as a result of which ‘all national states came under growing pressure of human rights compliance’.

In this respect, Brunkhorst’s work stands as an important legal–sociological corrective to alternative theories of social conflict and revolution, and it places the law squarely at the core of all social and historical transformation. In addition, more distinctively, it stands as one of the most important interventions in an emerging subdiscipline of legal sociology, that is, the sociology of constitutions. At one level, as mentioned, Brunkhorst’s outlook forms part of a wider sociotheoretical endeavor to understand constitutions, in distinction from more strictly normative inquiry, as centers of normative stabilization for society, which have highly embedded social foundations, and which cannot be explained as expressions of simple agreements or normatively validated contracts. Yet, at the same time, his outlook differs from more typical sociological research on law because it ascribes both absolutely central status and absolutely normative importance to constitutional law, and he shares with more normatively inclined theorists the view that constitutional norms clearly distil the founding principles of all socio-political organization. In both respects, Brunkhorst captures the spirit of constitutional sociology, and he at once dismisses the simplified normativism of classical constitutional theory and rejects the relativistic depreciation of constitutional law typical of more conventional sociological inquiry (Marx, 1956b[1844]); Dean, 1999: 122; Rose, 1999: 17). He thus arrives at a conception of constitutionalism which observes constitutional norms as socially generated but normatively essential principles. That is to say, in the spirit of classical sociological theory, he claims that norms need to be perceived as objective moral facts, which are produced through inner societal processes (see Durkheim, 1960 [1893]: 28, 31; Meštrović and Brown, 1985: 94–95). But he also shares the claim with more classical normative theory that certain legal norms have emphatically nonderogable status, and they have vital standing both for the political organization of society and for the formative freedoms of human life.

National and Cosmopolitan Statehood

A theory running through Brunkhorst’s work, and closely correlated with the analysis of constitutional revolution, is an account of the simultaneity or the necessary co-evolution of national and cosmopolitan law and of national and cosmopolitan statehood. Fundamental to this theory is the claim, discussed above, that each legal revolution imposed on society a radically new legal-normative order. In the Papal Revolution, this legal form became visible in the universal church, flanked by the canon law and basic concepts of legal personality; in the Protestant Revolution, it was expressed in the increasingly representative state, based in rudimentary constitutional norms; in the revolutions of the late Enlightenment, it appeared in the classical constitutional state; lastly, it took the shape of the state partly subject, both internally and externally, to international law, which became a gradually dominant political model after 1945. At each stage in the construction of temporal order, crucially, Brunkhorst point outs that the legal organizational structure of state power always contains a universal cosmopolitan dimension, and the institution of legal order in national state settings has at all times been sustained by norms whose validity and applicability are not circumscribed by national boundaries. This is the case for two reasons. First, he claims, the intersection of national and cosmopolitan legal order results from the fact that the rise of state-like institutions was always factually enclosed within a normative order possessing an international structure. In consequence, Brunkhorst argues that, ‘from the very beginning of the modern state,’ there existed, ‘a co-originality of an international or cosmopolitan legal order (always with some aspects of universal statehood) and a legal order of particular states.’ In addition, second, this nexus between national and cosmopolitan statehood is the result of the fact that the constraints which are created by constitutional revolutions, and which define the resultant order of statehood, reflect normative universals. These universals connect and shape all evolutionary processes in differentiated societies, they are generalizable beyond particular national–constitutional settings, and they articulate geographically overarching or even generically species-defining learning processes. On both counts, the formation of normatively enshrined legal or political institutions invariably contains a normative excess or surplus, which extends beyond confined historical horizons, and each revolutionary act that transforms the national public legal order is, whatever its regional specificity, additionally shaped by, and part of, a process of universal revolutionary transformation and emancipation. Each revolution, thus, creates a legal–political system that gives expression to ‘a respectively new formation of the co-evolution of cosmopolitan and national statehood’.

In my opinion, this argument stands as one of the most important insights into the contemporary sociology of law, and it has far-reaching explanatory value for our approach to a number of very different legal–sociological questions. On one hand, the historical utility of this claim is beyond doubt. It allows us to understand the deep correlation between national–constitutional and internationalist reflection at all decisive junctures in the revolutionary construction of modern society and its legal order. ¹⁰ In addition, however, in dispelling the notion that there might exist an invariable antinomy between national and cosmopolitan (international or transnational) forms of governance, Brunkhorst’s perspective enables us to explain some of the defining, yet intrinsically paradoxical, developments which characterize contemporary society and its legal institutions. In particular, this creates a perspective in which we can comprehend how post-1945 society has been structurally determined by two ostensibly contradictory formative patterns. That is, allows us to explain why, since the rise of the international legal domain after World War II, the external/universal checks on the power of national states have been intensified, while, at the same time, the factual strength of national states has increased beyond all historical precedent. This has meant, that after 1945 the increasing force of international law, often seen as placing constitutional limits on the unbridled exercise of national state sovereignty, ¹¹ formed part of a process in which the phenomenon of statehood (previously barely more than the exclusive province of Northern Europe and North Atlantic European colonies) became, for the first time, the most widespread mode of national sociopolitical organization. Brunkhorst’s discussion of the constitutive interpenetration between national and transnational/universal norms makes the foundations of this complex and paradoxical international conjuncture transparent, and it offers a vital corrective to theories (with different emphases) that examine the rise of global or transnational law as a process that strictly diminishes the power of national state institutions. ¹² This principle is extended by Brunkhorst in his argument that democracy itself was not commonly or reliably established before 1945. His analyses in this respect allow us to see how national democracies evolved successfully at this time precisely because they were able to presuppose a transnational normative basis in order to stabilize and gain legitimacy for democratic norms and stable political institutions more widely.

Overall, Brunkhorst’s theory of the mutual interdependence of national and cosmopolitan statehood proves deeply illuminating both for inquiry into the theoretical structure of revolutions and for the historical formation and contemporary design of statehood. One key implication of his reflections on these questions is that the national state was neither a fully freestanding nor a conclusively dominant center of political agency and social control. From its first inception, the nation-state expressed, and was also subject to constraint by, ideas of legal order and legitimacy which could neither be contained nor realized within one national setting. As a result, each moment of punctuation in the formation of modern law and modern statehood generated ideas of legitimacy which spilled over beyond the state and were ultimately practically reflected and realized in transnational institutions.

If read as a series of literal reflections on public law, constitutions, and statehood, therefore, Brunkhorst’s work surely stands as one of the most significant contributions to the contemporary sociology of law. In its account of legal revolution, in its legal-normative reconstruction of Marxist conflict theory, in its contribution to constitutional sociology, and in its close dissection of the dialectic between national and global law, this theory succeeds both in generating a macrosociological framework in which we can position public law in relation to the formative processes underlying modern society at large and in providing a simultaneously normative and empirical lens for addressing contemporary patterns of legal institution-building. Methodologically, moreover, the theory offers a perspective that is able to examine processes of sociolegal formation in a manner that is equally attentive both to the social foundations and to the normatively obligatory force of legal norms.

Legal Functions and Legal Norms: A Square Circle?

As discussed, Brunkhorst’s account of constitutional legitimacy is shaped by the claim that constitutions have a revolutionary (normative) and an evolutionary (adaptive) dimension. In fact, we might extract from this argument the more implicit claim that constitutions possess one revolutionary dimension and two distinct evolutionary dimensions. In their revolutionary dimension, clearly, constitutions are originally produced through collective–rational norm-founding acts of revolutionary transformation. As such, they project the defining normative order for a society as a whole at a particular stage in its historical formation. At the same time, as considered, in their evolutionary dimension, constitutions impose normative constraints on ensuing, postrevolutionary processes of more incremental, often intermittently retrograde and ideologically stabilizing social evolution. In addition, however, in both these respects at the same time, constitutions give expression to universal patterns of evolution, which impact on all aspects of society, across dividing lines between national states. As such, they can be construed as articulations of an encompassing evolutionary orientation toward general freedom – or, as the trace of reason in history (see Groh, 1986), which equally incorporates phases of punctuated revolution and phases of incremental adaptation.

On each of these points, Brunkhorst attempts to explain legal norm formation as an eminently sociological function, and he is clearly intent on showing how law is generated through society’s adaptation to objectively discernible causes. Underlying this theory of constitutions, however, it is always possible to detect a recourse to what we might define as critical idealist patterns of thinking, which sit somewhat uneasily with the broader evolutionary content of Brunkhorst’s constitutional theory. For example, in accounting for the origins of the punctuated bursts of norm production associated with revolutionary praxis, Brunkhorst argues that the ‘sequence of great revolutionary transformations’ represents ‘a kind of progress in the consciousness of freedom.’ Each revolutionary juncture, thus, objectivizes a new idea of freedom, and, to whatever degree subsequent conditions might fail to live up to its demands, each idea of freedom remains foundational for a particular span of history. Proceeding from this principle, each revolution can be seen as an event that legally objectivizes otherwise unformed and inchoate ideas of human freedom, and the freedoms expressed in this way represent freedoms that are common to all members of society (species freedoms), implanted originally in or in some way innate to human nature – or at least to human social formation. In these respects, the positive/functional aspects of Brunkhorst’s theory always co-exist with an implicit essentialism, which understands society in its entirety as remotely shaped by primary human emphases.

To be expressly clear, this observation is not intended to accuse Brunkhorst of rather naive post-Hegelian (i.e., Feuerbachian) anthropologism. There are numerous points in his work at which he describes how norm generation is driven by systemic causes in society at large, and he evidently does not understand legal norm construction as an immediate distillation of some original human essence. For example, he expressly explains legitimation crises and resultant patterns of legal-normative learning as induced by complexly differentiated material/sociological processes, which generate multiple and diffusely located social conflicts (e.g. between economic and political motives or between religious and legal commitments), which in turn produce inner societal demands for legitimacy, expressed and resolved through law. He thus asserts that ‘the struggle for public law’ has its origins in the complex mass of conflicts, residing at various systemic points in a modern differentiated society. It is vital to this element of his theory that he sees legitimation crises (normative learning processes) as having a multioriginal and multifocal form in contemporary society, so that problems in the normative self-construction of society are categorically not expressions of mono-original or essential anthropological demands for ideal self-realization. For Brunkhorst, conflicts regarding legitimization can result from the education system; they can result from the legal system; they can result from the political system; they can result from the economic system; and, presumably, they can also result from the religious system. In each such case, primary conflicts might have the tendency to migrate into the law and to assume legal expression, but law’s origin remains functionally dispersed through society. Overall, therefore, Brunkhorst’s theory aims to offer a strictly inner societal and causally differentiated – that is, avowedly and irreducibly sociological – explanation for the production of law.

Despite this, however, to the extent that he accentuates the ideational and cognitive basis for legitimacy crises (normative learning processes) and that he emphasizes how such crises are resolved primarily (however temporarily) in the sphere of legal norms, there are moments in the construction of Brunkhorst’s theory in which the functional dimensions of his explanatory system are suspended. Indeed, in his account of legal revolution, revolutions appear as catalytic occurrences, in which society as a whole, although otherwise functionally differentiated and bound in its various parts to separate evolutionary logics, converges around, and becomes unmistakably transparent to, a set of normative demands resulting immediately from an (implied) unitary ideal human substrate. That is to say, in periods of revolution, all society gravitates around an always existing foundation of norm-rational human agency, which is primarily disposed toward the realization of equal freedom. Revolutions, in consequence, are moments that allow society to give expression to its highest, most deeply ingrained, and most universally binding ideas of freedom. Indeed, revolutions are characterized by the fact that they give accelerated momentum to the emphasis toward shared liberty which inheres in all social evolution.

This seems to me to touch at the center of one of the core aporia of Brunkhorst’s theory. In particular, this raises the question: What is the origin of the ideas of freedom that are realized through human evolution? The answer to this question seems to be that the human substrate of society is always capable, under certain objective conjunctures, of proposing itself as a unified source of reflexive norm-rational agency, which, under certain circumstances, demands freedom, and which in fact demands freedom with relatively predictable contents (likely to entail a close correlation between freedom and equality). On this basis, the more functionalist sequences in Brunkhorst’s account of social transformation appear like the figures in Hegelian phenomenology (1970 [1807]: 356–358), in which the idea of freedom, glimpsed in revolution, is falsely positivized, alienated, or subject to inner diremption, such that this idea returns within itself, and ultimately appears again, in altered form, dialectically invigorated. In fact, the proximity of these arguments to Hegel’s early theory of positivity (1969 [1907]), which later re-surfaced, in revised form, in Lukács’s concept of social and epistemological positivization is very marked. What this appears to indicate, at the deepest level, is that, however implicitly, the normative dimension of Brunkhorst’s theory is sustained by a conceptual act, which imputes stable norm-generative resources as the most essential human substructure of society. The underlying capacity of society for producing universalizable norms of freedom may at times be obscured by functional processes. The origin of emancipatory norms, however, is always to some degree external to the functional fabric of society, and norms are engendered by patterns of agency, constructed either anthropologically or idealistically, which are always already ascribed to society, as its innermost residual substance. A functional explanation of the origin of norms is not conclusively provided, and the actual theoretical account of the way in which legal norms are formed is sustained through a suspension of society’s otherwise manifest functional structure.

As a result of this, the relation between functionalism and normative theory is always carefully balanced in Brunkhorst’s work, but the antinomies between these approaches are never fully resolved. ¹³ The theory of constitutional norm formation exists in a tension between a functional–pluralist construction of society, which emphasizes the relative autonomy of society’s differentiated components, and a series of more unitary, quasi-anthropological preconditions, which impute to society a constitutive capacity to bring all parts of its functional whole into convergence around processes of collectively binding public–legal norm production. In this tension, the revolutionary dimension is always supported by a semi-hypostatic notion of rational human agency, whereas the evolutionary dimension possesses a secondary position. To this extent, the theory moves rather uncertainly between a theoretical construction of society as shaped – lastly – by evolution, and a theoretical construction of society as shaped – lastly – by normative teleology. The question regarding the origin of society’s norms is left implicitly to revolve around a rather tautological claim, which runs through all idealist reflection from Rousseau to Habermas, namely, that society produces norms of freedom because society, in the final analysis, comprises people who, at their most constitutive level, are naturally oriented toward freedom.

A Revolution of Society or a Revolution of Society’s Law?

In connection with the above, a further legal–sociological question which might be addressed to Brunkhorst’s theory is why does law, and, in particular, constitutional law, assume normative centrality in society? Why are revolutions registered specifically in the medium of law?

As discussed above, it is a specific advance of Brunkhorst’s theory that it refuses to downplay the legal dimension of social transformation, even where this takes revolutionary form, and it distinctively construes the law as a primary medium of societal change. This creates a foundation for a transepochal theory of societal development, and, in accentuating the status of law as a social system that plays the leading role in the process of social evolution, it enables us to decipher overarching dynamics of conflict and change reaching back to the first origins of societal modernity. Moreover, this creates a framework in which we can comprehend societal change, empirically, as occurring at two quite distinct levels, both normative and material, but as steered primarily by normatively articulated learning processes. Despite the great benefits brought by this theory, however, certain foundational questions again remain unanswered.

Most pressingly, Brunkhorst’s theory implies, or at least in some respects quietly presupposes, that constitutional law is the medium in which society conducts its learning processes because law is a medium that overarches and has rational primacy among all societal interactions and the medial forms into which these are abstracted. Attached to this is in fact the claim – or at least the implied sense – that law is a privileged bearer of human freedoms, and, as such, it is uniquely able to transcribe diverse human freedoms into an emancipatory grammar, which can be applied across, and made constitutive for, all parts of society. In this respect, as suggested, the law is allowed to represent and enact natural freedoms or human species freedoms (progress in the idea of freedom), and it is proposed as a semantic form in which constitutive principles of rationality and legitimacy for all society are articulated and contested at the highest level of distillation. This view of course has a distinguished history, and some version of this claim underpins all classical political philosophy, from Aristotle to Fichte. However, in the setting of a legal–sociological approach, some rather more expansive justification for these implicit claims might reasonably be required. In particular, as Brunkhorst constructs his theory against an evolutionary theoretical background of functional differentiation, we might expect a stricter account of the reasons why the law implicitly conducts learning processes, and resolves antinomies within these processes, for all society, that is, why law can express ideas of human freedom, not only in and for law, but in and for all spheres of human exchange. More pointedly, we might expect a more substantiated discussion of the reasons why revolutionary processes, driven by universally formative ideas of freedom, find their primary expression in law. As stated, it is a specific advantage of Brunkhorst’s theory that he appreciates the status of law as a central part of a revolutionary diction. Yet this theory – it appears – is at times left to rest on the (again quasi-anthropological) notion that the law has primacy in the normative apparatus of society because it is the societal medium that is best equipped to generalize human essence and human species life. Clearly, Brunkhorst understands revolutions as events that act transformatively, across the lines of functional differentiation, on all spheres of human society. But the exact functional reasons why complex societies in processes of revolution converge around law are not spelled out.

As a parallel rejoinder to Brunkhorst’s theory, it would, for example, be plausible to argue legal revolutions are exactly that: revolutions, not in all society but merely in law. Indeed, if we examine the revolutionary epoques which assume founding status in Brunkhorst’s theory of modern societal formation, we can equally conclude that these epoques comprise, not socially convergent moments of progress in the (legal) idea of freedom but in fact rather diffuse bundles of related revolutions, which occurred in parallel fashion, yet which are located in, and acquire varying resonance for, different realms of social exchange. For instance, the Papal Revolution might be viewed as a series of quite diverse revolutions. At least arguably, the legal aspect of this revolution was flanked by a revolution in education and in science (reflected in the re-emergence of University teaching, the re-establishment of Latin as an academic lingua franca, the rediscovery of Justinian, and the fragments of Canon Law as the basis for legal teaching); it could not easily be distinguished from a revolution in politics (the separation of city states from the Holy Roman Empire, the use of Roman lex regia as a basis for governance, the weakening of feudal obligations as the focus of political loyalty, and the resultant creation of vertical structures of authority; see Haverkamp, 1971: 160); it was reflexively linked to a revolution in religion (the establishment of the Peace of God, the promulgation of the order of sacraments, the weakening of Eigenkirchentum, the widening of legatine supervision of national churches, the promotion of monastic orders). In fact, the Papal Revolution clearly had aesthetic and economic dimensions too. As a result, the revolution in law at this time – expressed in the positivization of law through use of the Digesta, transposition of ecclesiastical law onto temporal order, professionalization of legal expertise, storing of law in written records, rationalization of feudal law through use of Roman civil law, proto-constitutional organization of urban statutes – cannot without reservation be accorded privileged status. Although all these revolutionary processes were connected, it is difficult to see exactly why law should be accorded primacy in the fundamental transformation of society that occurred in the 11th and 12th centuries. The revolution of society that took place at this time expressed itself in many different ways, and law had obvious utility in each of these. But the suggestion that law promoted freedoms that were constantly co-implied or generally meaningful in all spheres of social practice requires (at least) some further justification. Similar points can then be made about the Protestant Revolutions in and after the Reformation. These events were accompanied by revolutions in education through mass distribution of printed matter, secularization of University curricula, and they were accompanied by revolutions in science, art, and – self-evidently – religion. Most obviously, analogous claims can easily be made about the Atlantic revolutions in the late 18th century and about the revolutions of international law after 1945. These events also (here Brunkhorst is undoubtedly correct) involved a revolutionary transformation in all parts of society. Yet, in these events, revolutionary alterations to education, science, media, politics, military force, medicine, sport, and religion all played a constitutive role that was at least equivalent to that played by law, and whose implications were not exhaustively captured in law.

To understand the role of law as an expression of socially encompassing norms, therefore, we need a more discriminating account of ways in which revolutionary freedoms articulated in different social spheres transpose themselves into a unifying legal vocabulary. Moreover, we need a more concrete analysis of ways in which freedoms generally translated into the register of law then become materially effective in other spheres of society, in which experiences of freedom might be very different from those imaginable in legal categories. My suspicion is that the question about law’s primacy, although surely implicit in Brunkhorst’s work, is slightly obscured by his tendency, in remotely critical-idealist fashion, to comprehend freedoms as species freedoms, which makes their transcription into the generalized medium of law a relatively straightforward process of universal self-legislation. In fact, contra Brunkhorst’s analysis, those essential elements of freedom produced in legal revolutions – for instance, basic rights, equality under law, equity, personal autonomy, and individual dignity – which Brunkhorst sees as generally and progressively implicating all society, can equally be seen, not as revolutionary expressions of socially universal freedoms but simply as revolutionary expressions of learning processes that occur within the law and the law alone. We might observe that through such forms of abstraction, the legal system of society constructed a normative reality, in which the law was able progressively to learn about itself and so to heighten its functions of inclusion and normative stabilization, in clear demarcation from other functions. If we accept this idea of legal revolution as an innerlegal occurrence, albeit one intersecting with other differentiated revolutionary dynamics, this would then allow us to account for the formation of general legal norms within society from a perspective that does not rely on generalized quasi-anthropological constriction of the social origin of norms; it would permit us to observe and explain general legal norms as produced through society’s specific responses to its own inner functional exigencies and so to avoid the unresolved antinomy between normative and functionalist thinking outlined above. At the very least, the exact manner in which law’s learning, even where this is undoubtedly revolutionary, is correlated with society’s learning is a problem that requires further explication.

National and Cosmopolitan Statehood: A Functionalist Alternative

The suspicion that Brunkhorst’s method struggles conclusively to account for acts of universal norm production is also at the heart of a third query which I wish to raise. This relates to the theory of the co-emergence of national and cosmopolitian statehood addressed above.

As discussed, this theory constitutes a theoretical intervention which, in my opinion, has the highest importance for our comprehension of legal history, the history of legal and political theory, and contemporary international politics. However, this theory too might be seen, in some respects, to rest – lastly – on evidential claims that are based in privileged, idealistic constructions of human norm production. Here too, it is at least arguable that the theory is guided by a hypostatic model of norm formation, and, to this degree, it loses sight of the ways in which norms, even the universal norms of cosmopolitan statehood, might be explicable in more strictly sociological terms.

The material evidence in support of Brunkhorst’s theory regarding the simultaneity of national and cosmopolitan statehood is compelling. As discussed, this nexus can be observed at very early historical junctures, when statehood was still at an incipient level. ⁹ Most obviously, though, this can be seen in the historical period after 1945, when the rise of an international or cosmopolitan legal domain was deeply interwoven with processes of political institution building and systemic reinforcement that occurred in different national societies. Throughout post-1945 history, as mentioned, the growth of inter- or transnationally effective norms has provided a foundation sine qua non for the stabilization of national statehood, and ultimately for the wider consolidation of national political democracies. In all but a small number of settings, the establishment of a cosmopolitan legal order was the main precondition for the consolidation of democratic national states, and, in fact, for the establishment of national states tout court. ¹⁴ This is evident in the way, first, in which, in the postauthoritarian societies that emerged in Europe after World War II, statehood was profoundly shaped both by the normative force of international law and organizations with powers of international jurisdiction and by the fact that these states created judicial institutions that were able to implement international legal norms in domestic law in order to solidify inner societal democratic procedures. Both these factors were vital for the establishment of stable state institutions, able to avoid the fateful hemorrhaging of public power that was characteristic of much interwar statehood. ¹⁵ This is evident, second, in the way that in subsequent democratic transitions, in Portugal, Spain, Latin America, Eastern Europe, and Sub-Saharan Africa, international organizations, international law, and national judiciaries sustained by international law played an ongoing vital role in consolidating democracy and in developing national state capacity. ¹⁶ More generally, third, this is evident in the fact that the growth in the force of international law since 1945, and especially since the 1970s, has gradually created a conjuncture, in which statehood, even democratic statehood, has become an almost universal mode of sociopolitical organization. In these respects, the profound intersection between cosmopolitan and national statehood is clear for all to see, and the common suggestion that there exists an antinomy between national and transnational statehood is at least (perplexing) (see above, p. 9). In these respects, however, Brunkhorst’s attempt to explain the formative interaction between national and cosmopolitan legal order through reference to underlying ideas of human freedom might be seen as obscuring the factual dynamics shaping the correlated evolution of the national and the cosmopolitan political system.

To illustrate this, I would like to propose a functionalist counter-thesis to Brunkhorst’s argument. In particular, I wish to suggest an alternative construction of the close nexus between national and cosmopolitan statehood by identifying this nexus as determined, not primarily by the essential universality of constitutional normativity, but rather by the fact that the nation-state first evolved as a system of legal and political inclusion whose capacities were not (and could never be) equal to the functions of inclusion allotted to it. As a result, the nation-state necessarily displaced its functions into the transnational domain, and it was only as national states became parts of an inter- or transnational legal/constitutional order that they were able effectively to function as national states.

Historically, this counter-thesis has three separate elements. This thesis argues that, as the nation-state progressively included more and more spheres of national society within its legal/political system, ultimately giving rise to an evolved constitutional commitment to mass democracy, the national state encountered three distinct forms of systemic, legitimatory, and inclusionary contradiction, each with a different character, which, on its own, it could not, or at least could only very rarely, resolve. As a result, states began to interact with, and in fact to produce, international law as an instrument for overcoming their inner structural contradictions, for generating compensatory reserves of legitimacy, and – ultimately – for performing their basic inclusionary functions.

Most obviously, first, as nation-states were transformed into constitutional democracies in the early 20th century, they were expected to internalize and resolve a series of material and distributional conflicts, and they defined their legitimacy as arising from their capacity for reconciling class divisions and polarized societal interests and for generally including naturally hostile social groups in conciliatory fashion. In Europe, these expectations of inclusion became particularly acute in the period 1918–1945, when highly intensified social antagonisms were directed toward the state via a series of different channels; that is, through newly established mass franchises, through rapidly empowered parliaments, through corporate welfare obligations, and through highly integrated trade unions. In almost every case, however, early mass democratic states lacked the institutional strength and the legitimatory autonomy required to resolve the conflicts which they internalized (especially, but not solely, conflicts between classes), and very few states were structurally robust enough to preserve public legitimacy in face of society’s trans-sectoral and escalating inclusionary expectations. During the period between 1918 and 1939, in consequence, most European states were brought to some kind of deep systemic or inclusionary crisis by the fact that they explained their legitimacy (as constitutional democracies) as the result of their ability to fulfill inflationary expectations regarding industrial arbitration, uniform material satisfaction, and pacification of class-based hostilities. A similar process occurred somewhat later in South America and later still in Southern Africa. Yet in each region, the problem of overinclusivity (structural mediation of class conflict) proved highly unsettling for state institutions. Ultimately, states only acquired the ability to preserve legitimacy in face of the conflicts that their rising inclusivity entailed as they learned to base authority for acts of legislation, at least in part, on abstracted norms derived from the domain of international law – especially from human rights law. This occurred after 1945 in Western Europe, and then, outside Western Europe, it occurred in the waves of democratization in the 1970s, 1980s, and beyond. ¹⁷ Owing to the growing link between national states and international legal norms, the post-1945 era was the first moment in modern history in which democratic national states could presume a source of legitimacy for their functions that was not founded to a large degree in the pacificatory inclusion of external organizations representing diverse class interests. This switch in legitimatory emphasis from social inclusion to rights as the source of law’s validity typically led to a (relative) depoliticization of class conflict around state institutions, and it stabilized the positional autonomy of states in relation to powerful forces and organizations in society. Arguably, it was only by virtue of the process in which human rights, derived after 1945 from increasingly powerful documents of international law, became a salient part of the grammar of state legitimacy that national states were able autonomously to solidify their institutional structure in their basic domestic functions.

In addition, second, most national states, as they became organized as national democracies, often struggled to generate the volume of law required by their increasingly differentiated societies and the multiple, conflictual constituencies, which they contained, and which demanded inclusion. In most instances, as states incorporated more and more exchanges in national society in their regulatory purview, the mass of legislation necessitated by society for its functions of inclusion could only be produced by prerogative means – typically leading to an expansion of executive competence and a deep erosion of the democratic structure of national statehood. ¹⁸ National democracies that relied on formal democratic dynamics of inclusion, representation, legitimization and mobilization, in other words, were usually insufficiently adaptive in their procedures for the production of laws, and this too triggered deep experiences of systemic and inclusionary crisis. It was only when national states were integrated in a transnational or cosmopolitan legal system, in which national and international norms were not strictly separable, that states were able to react proportionately to the hypertrophic requirement for more law and new law, which accompanies the emergence of a society marked by high levels of differentiation and fluctuating demands for complex inclusion. At one level, this can be seen in processes of primary legislation. In most societies that have undergone democratic transition, international law has been inserted into constitutions to simplify the production and legitimization of new law, and it has been used as a sweeping basis for the expansion and ongoing reproduction of evenly constructed laws across society. This was evident in the earliest post-1945 transitions. ¹⁹ But it can also be seen in more recent processes of state formation in Sub-Saharan Africa (traditionally afflicted by very depleted legislative capacity and generally reduced state density), where international law is often assimilated in national lawmaking processes to accelerate the production of legitimacy and to simplify the generation of socially acceptable law (see Dickson, 1997: 566). However, the use of international law to augment the lawmaking capacities of a society is also evident in the fact that incorporation of international law usually elevates society’s confidence in judicial institutions, it heightens the willingness of members of society to seek legal remedies, and it thus enables the courts to play a key role in extending law across society. ²⁰ In both respects, the absorption of international law has typically served, quite simply, to increase the extent to which national societies can rely on, and in turn promote immediate collective inclusion in, the legal system.

Finally, third, most national states, with very few exceptions, constructed themselves as such by imposing a centralized political apparatus on highly diffuse, often regionally factionalized, multiethnic communities, and, in particular, by obliterating the independent power of peripheral elites. This process was of course marked by sharp variations, and it reached most extreme and problematic proportions in processes of postcolonial state building (see Okafor, 2000: 526). However, it is difficult to think of a single state-building trajectory that did not, to some degree, reflect this dynamic. Subsequently, in virtually all cases of national state-building, different groups within these communities pulled obdurately against unitary, or even uniform, processes of national formation. Regional/peripheral centrifugalism, almost as much as class conflict, imposed a powerful block on the construction of national states, and it exposed the inclusionary functions of national states to great strain. Many states, simply, have not been able to withstand the counter-centric pull of regional power. ²¹ In most cases, however, this contradiction was overcome – albeit incompletely – through a process in which national states borrowed entrenched rights norms from the international legal system, and the fact that states learned to refer to international rights conventions as the final source of their legitimacy meant that they could perform flexible multilevel patterns of inclusion and legitimization, which reduced the obstructive power of regional affiliations. In the wave of democratization in Europe after 1945, the use of international human rights law, transformed into domestic law by national constitutional courts, greatly facilitated the even extension of national law across traditionally highly regionalized societies. ²² However, the link between international rights norms, multilevel nation building, and flexible social inclusion is most striking in recent and still ongoing processes of state consolidation and democratization in Africa and South America, in which internationally constructed rights norms now provide media of legitimization able flexibly to integrate complexly structured communities, and even to permit parallel expressions of sovereignty, within nationally inclusive, although locally calibrated, legal systems. ²³

In these respects, we can see that, during the course of its construction, the modern democratic constitutional state was faced with three core, closely overlapping, problems of inclusivity and legitimization: class integration, legal integration, and peripheral (often ethnic) integration. Typically, as long as national states were independently required to legitimize their functions through their capacity to address these challenges, they were afflicted by insoluble structural crises, and few national states were able to achieve stability as fully freestanding aggregates of public institutions. Against this background, the growth of a cosmopolitan legal order after 1945, based primarily in the jurisdiction of international courts and international human rights conventions, brought the deeply beneficial outcome for national statehood that states could alleviate themselves of responsibility for producing all the legitimacy that they were forced to expend, and it created a legal system which meant that states were no longer forced specifically to manufacture legitimacy for each and every act of law. By borrowing legitimacy from pre-agreed rights norms, states were able a priori to presuppose at least some part of their legitimacy, they were able to store legitimacy in systemically internal and easily reproducible form, and they were not required ceaselessly to incorporate deeply factionalized constituencies in order to muster legitimacy for particular acts of legislation. In these functional matters, cosmopolitan and national constitutional structures were indeed deeply interdependent. As Brunkhorst argues, national states emerged as parts of a cosmopolitan political system, and they were both structurally and normatively inseparable from inter- or transnational institutions.

While agreeing with Brunkhorst about the factual interpenetration of national and cosmopolitan statehood, therefore, we might propose a sympathetic counter-model to Brunkhorst’s theory. We might conclude that the simultaneity of national and cosmopolitan statehood was caused, ultimately, by the fact that nation-states were unable to meet expectations in respect of societal demands for legitimate legislation and social inclusion. In the first instance, this induced systemic-inclusionary crisis in most states. Second, then, this led to the emergence of a transnational legal/political system, in which state institutions could sidestep the need for the endless inclusionary production of legitimacy – in particular, this led to the promulgation of international rights conventions, through reference to which national states were able to authorize their laws through reference to fixed and socially abstracted norms and so to soften their exposure to pressures for concrete societal inclusion. This allowed states to insulate themselves against demands for inclusion which had previously proved deeply unsettling for their functional stability. As Brunkhorst argues, the pressure on nation-states to derive international authority for their legal functions was surely, from the outset, inherent in national statehood. Yet the correlation between national and transnational statehood was not the result of a process driven either by universal norms or general demands for freedom or by the essential universalism of constitutional normativity, it was, at least arguably, propelled by a functional process within the legal and political system, through which the state’s inclusionary functions were necessarily displaced onto the transnational legal arena, and it was only through this displacement that these functions could be effectively secured.

We agree with Brunkhorst, in short, that national society is finally circumscribed by transnational society. However, we wish to ascribe this to a logic of inclusionary/functional overspill within the systemic/inclusionary apparatus of national societies. The implications of this process for democratic politics might – self-evidently – give rather less grounds for optimism about the future of universal democracy than Brunkhorst’s alternative explanatory model.