Abstract: The roots of the current ‘rule of law’ debate are ancient. Its political, social and religious expressions are bound up in Bracton’s notions of gubernaculum and jurisdictio, which together define the character, scope and authority of coercive systems of governance. Debates about the meaning of both went hand in hand with the almost simultaneous construction of modern democratic constitutional states, as well as the most authoritarian states of the twentieth century. Gubernaculum and jurisdictio serve as the basis for reifying law and the nature of its ‘rule’ as the world moves toward systems of coercive global law, understood either as common law binding on states, or as the precursor to global governance institutions (e.g. an International Criminal Court). But, its jurisprudential expression, especially since the mania for positivism in the construction of political ‘constitutional’ societies took hold in the 19th century, produced a certain amnesia of sorts of the ancient, and often violent, contests over the nature of law. That contest, in jurisprudential form, invoked religion, political theory and philosophy to determine the relationship between governance and authority. The paper interrogates that discourse in modern terms. Using the gubernaculum and jurisdictio distinction in Bracton, it focuses on Francis Bacon’s defense of James I/VI’s instrumentalist view of law (separated from the normative system it expresses) and Edward Coke’s organic view of law as the embodiment of the normative values of the political community that serves to bind and limit its government. These opposing visions of law are then explored in the context of the jurisprudential oppositions of 19th and 20th century political theory (e.g. Hobbes, Locke, Rousseau, Savigny, Marx, Mussolini, Schmitt). Then, more broadly, the paper examines the Bacon-Coke opposition in post-modern (e.g. Foucault, Lyotard) and global (Teubner) terms. The constitutional deadlock of seventeenth century England, now broadened and freed of the artificial boundaries between public and private law, reproduces itself on a global level in the 21st century. On one side are those who would resist invasion of ancient or traditional rights by increasingly powerful and aggressive institutional bodies—government, religion, corporation, and society. The source of resistance is the sure belief in the power of an autonomous reified complex of law. On the other hand, institutions, conceiving themselves representatives of the whole or complete parts of the power of those they represent, and convinced of the perfection of the authority derived from such representation, resist the imposition of checks and restraints applied in new and more restrictive ways. The source of this resistance is the sure knowledge that law is separately constituted but is passive and instrumental, to be used by legitimate authority in the construction and articulation of normative standards that exists apart from law and subordinate to the genius of the political community. And perhaps, both the struggle and its inevitable frustration, more than anything else, illuminates the autonomy, the distinct personalities, of law reified, as the great insight for the 21st century.
In the West, the relationship of law and human organization, or law and the individual, has been turbulent. At various times since the 17th century, law has been an object separate from the state and its apparatus (usually a government). In this aspect, law has been understood as embodying all of the common relationships of the people amongst themselves—it is in this sense the manifestation of the people themselves as an aggregate body. Sometimes those relationships also included the political, social and economic relations of the social order. Sometimes it did not. Sometimes, this separate organism called law was considered superior to the state, or at least to the political organs of state power. Sometimes it was viewed as on a par with those organs. Sometimes law has served as the instrument of the state. In those cases, law was viewed as either process or language. Sometimes it was considered a means of ordering a manifestation of power, sometimes of cloaking that manifestation in process. Sometimes law was thought to encompass the whole of the rulemaking power of any society. Sometimes law was viewed as substantially less complete—that is as a partial manifestation of power over behavior. Sometimes law was seen as proceeding from the community, sometimes it was understood to proceed from God. Sometimes law is God. Sometimes law is God’s inverse—chaos or worse. And sometimes, in Marxist lands after 1917 and thereafter in the West, especially since the 1990s, law is deemed irrelevant.
When law is said to rule in the West, then, it is meant to cover a large terrain of complex and inconsistent meaning. Thus law itself serves as a veil over its own nature. However conceived, law remains important to the discourse of power. That people have embraced the idea that law is a thing is beyond dispute. What that “thing” is exactly is quite another story. Yet the “thingness” of law is critically important for the ordering of power relationships among people, institutions and communities. I am little interested in the “true” meaning of law as an abstract proposition, or even as a question of fact. I am not sure the question is particularly relevant, except perhaps as a means of gaining advantage in the never ending cultural wars for control of perceptions of meaning. It is what people believe, it is the choice of beliefs to be privileged in constructing a community, rather than any abstract truth of those beliefs, that drives human behavior.
For this essay I look briefly to the way in which law is reified—made into something solid as a thing, process, aspect or character—and then suggest the ways in which law has been recreating itself in the post-Soviet globalized world. I will look to the ways that law is now said to rule and suggest that in ways reminiscent of the 17th century in England, law has become again amorphous, capable of simultaneous multiple meanings and an important object for capture among those whose systems of power require an object around which to legitimate compulsion, behavior and the management of conduct at every level of human organization.
In the 17th century in England and the American colonies law was reified as the great bulwark against personal and institutional power. It was a thing that stood outside of the state and its apparatus, but also within it. Law was the reification of the people and their customs, which no single person could undo, but which mediated the relations between the estates of the realm. Law, and especially the Common Law, as a whole, could not be undone by either Crown or Parliament, but reflected them as well. Only the High Court of Parliament could serve as a law making body (Corwin 1955, 51). In this sense law making could be understood as exceptional, requiring the invocation of an institution representative of all of the constituents of Common Law. The state and its apparatus and the law were thus two quite different things (Grossi 2004).
This understanding, had ancient roots. Aristotle clearly distinguished the state from law. Though it was clear that there was a relationship between them, that relationship was not vertical. Law was not merely an instrument of state power. At the same time, the state was not merely the expression of law. Aristotle, for example, noted, “all laws are, and ought to be, framed agreeable to the state that is to be governed by them, and not the state to the laws” (Aristotle 350 B.C., Bk. IV, ch. I). But at the same time he cautioned that “the laws are different from what regulates and expresses the form of the constitution; it is in their office to direct the magistrate in the execution of his office and the punishment of offenders” (Id.). Aristotle’s works had been recovered in Western Europe by the 12th century (Hogue 1966, 90). The founders of the American republic were well aware of Aristotle’s work, including the Politics, which formed the basis of classical education for the American ruling classes at the time of the founding. Echoes can be found in Madison’s Federalist No. 10 (The Federalist 1789, No. 10; Ketcham 1957, 21), and in Hamilton as well (Chan 2006; The Federalist 1789, No. 18).
Its most important roots, however, were both enormous medieval roots (Grossi 2004). For our purposes Bracton provides the most important late medieval foundational source. As Charles McIlwain (rev. ed. 1947) well put it, for English constitutionalists at the end of the medieval period, there was “a separation far sharper than we make in our modern times between government and law, between gubernaculum and jurisdictio” (McIlwain rev. ed. 1947, 77). Within the sphere of gubernaculum, the power of those who hold authority to act is absolute. That power could be expressed by action—the enforcement action of the state—and also by enactment of law, narrowly conceived. The narrowness of the conception is grounded in the fundamental distinction between enactments of an administrative character, and the power to define a legal right. Thus, to Bracton, “leges (in the narrow sense of the word), constitutions, and assisae are nothing more than administrative orders, and therefore part of ‘government’—something which ‘pertains to the administration of the realm (pertinet ad regni gubernaculum)—and as such are properly within the king’s exclusive control” (McIlwain rev. ed. 1947, 82-83).
Within the authority of government, more narrowly defined, law is essentially instrumentalist in character. It serves as an expression of the king’s (and thereafter the parliamentary) will. It is fundamentally administrative in character (understood in the modern French or German sense), though it is expressed in the forms of statute. It corresponds roughly to the measures whose transformation into law was so derided by Carl Schmitt (1932) in his attacks on Weimar constitutionalism (Schmitt 1932, 68-74, 97-98). There is a residue of this notion still in the differentiation within French constitutional law, between the idea of lois, the province of the nation expressed through its Assembly, and reglement, which under Article 37 of the French Constitution are within the power of the Administration.
But the sphere of gubernaculum is broad but not unlimited. The absolute authority of gubernaculum, absolute within its sphere, was limited by jurisdictio, understood as a ‘higher’ or constitutional law. This higher law described rights, whose breach was beyond the power of government. These rights were not inherently instrumental, that is proceeding from a conscious act of government. They were positive, organic and limiting principles.
Definitions of ‘right,’ . . . share the character of the immemorial custom they define, and these, Bracton says, ‘since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whom counsel and consent they have been promulgated’? (McIlwain rev. ed. 1947, 83).Government, within its sphere, had the absolute power to act, through administrative orders (in statutory or other form). But the rights of the political community, expressed in its organic privileges and customs, bound those actions. “When King John substituted his will for the law, in proceeding against vassals whose wrong had not been judicially proved, civil war and the Great Charter were the result” (McIlwain 1947, 86). Gubernaculum had no power over jurisdictio, but was required to act within its normative limits—limits expressed through the courts. Law, in this sense, is not instrumental, but is “positive and coercive, and a royal act beyond those bounds is ultra vires” (McIlwain rev. ed. 1947, 85).
This understanding of the separation of law from government, of the state from the system of rules that bind the apparatus of the state, was popularized within the English elites through Sir John Fortescue’s treatise on the Governance of England (Corwin 1955, 35-38; McIlwain rev. ed. 1947, 87-88). Fortescue carried forward Bracton’s notions of a law existing as a limiting power beyond the government’s, “formed by the rights of his subjects which the king has sworn to maintain, and which he cannot lawfully change or blemish or arbitrarily transfer from one to another” (McIlwain rev. ed. 1947, 88). These traditional notions of law reified as jurisdictio found its most influential modern expression in England during the reigns of the early Stuarts. In Sir Edward Coke’s writings, it also served as a great basis for American constitutionalism. Coke’s work, especially on property, though expensive, was often a prized part of personal law libraries (Bilder 1999, 88).
One of the most influential expressions of this idea was found in Coke’s report of Dr. Bonham’s Case (1610), a case relating to the power of the College of Physicians to regulate the medical trade in London. With respect to the extent of Parliament’s power to grant a concession against Common Law, Coke reported: “And it appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and sometimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void” (Bonham’s Case 1610 275). To a great degree, law was meant to protect against the inclusions of power by setting up another power, beyond the reach of an individual, even the holder of governmental authority. It fractured power and set its mechanisms beyond the reach of the sovereign.
Law stood as the thing through which a system of opposing power—managed through a large class of well-socialized acolytes (the bar)—could resist the power of the state to coerce behavior. As Mary Sarah Bilder suggests: Although during the seventeenth century, Coke and then Hale would develop increasingly elaborate understandings of the common law, the common law remained a system in which pleas to the judiciary required addressing "reason"--"the faculty acquired by training that extracted some workable rules from a formless body of immemorial knowledge"--not appealing for what any ordinary person could claim was justice, equity, or mercy” (Bilder 1997, 925-925) to a monarch standing over law.
Corwin well recounts this idea in action in the famous confrontation between Coke and James I at Hampton Court on November 10, 1608, in which the judges of the Realm sought to resist the notion that James, as King, had authority to decide cases at Common Law in his own person (Corwin 1955, 38-39). Responding to the idea that reason alone was sufficient to apply the law, Coke responded that “causes which concern the life, or inheritance or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of the law which law is an act which requires long study and experience before a man can attain to the cognizance of it” (Corwin 1955, 38-39). James well understood the implication—the King himself was under law. This, James thought, “should be treason to affirm (Corwin 1955, 39)”, to which Coke responded with Bracton’s words: “Quod Rex non debet esse sub homine, sed sub Deo et lege” (Corwin 1955, 39) (“The King ought not to be subject to man, but subject to God and to the law”). Of course, Coke meant to twist the meaning of Bracton, who wrote at a time in which the law proceeded from God through His Church. For Bracton, all authority may have derived from law, but law derived from God as Logos. With this conflation, it was an easy matter, and no treason, to place King under law, that is, under God. A King acting solely on the basis of the authority of his own will acted as a mere man, like any other. Critically for Coke, the Divine connection was not relevant to make the statement true. Now it was Common Law as jus, not proceeding from the divine, that served the purpose of differentiating between lex and homine.
As is now well known, this understanding of law contributed eventually to the production of a doctrine of Parliamentary supremacy under law. Law was understood to exist, to some extent, beyond the State, though capable of modification (in part) through it (Corwin 1955, 57). Law was both the expression of power (in terms of ordering behavior), and also opposed to power (in terms of resisting assertions by individuals or institutions to order behavior ultra vires). Under this conception of law, government (and the state) is viewed as fiduciary in nature. Its power is derivative and limited. It is thus a partial rather than a total power to order behavior. Government (first King, then King in Parliament, then Parliament alone) might ultimately express law as a conscious and positive act. But Government can never be law, nor reduce law to an instrument of governmental will. In this sense law remains an “other” to government, that is, a thing in a very real sense. It may not be delegated (Locke 1690, c. 11, 183 et seq.), nor may it be reduced to an instrumental character. The “community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject” (Locke 1690, c. 19, 224). Law, like God, remains outside the reach of individuals, or the people, but moves with them, and serves to protect them from themselves in a complicated conversation (Corwin 1955 68-69).
But law also constituted its own point of resistance. There are “no relations of power without resistances; the latter are all the more real and effective because they are formed right at the point where relations of power are exercised” (Foucault 1980, 142). Law here retains its composition as thing, but now it is a thing whose purpose is to serve as instrument of the very power it appeared to resist, and managed for this purpose by the same large class of well-socialized acolytes. Thus, Francis Bacon reminds us in oft quoted language that: “Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law and not to make law, or give law; else it would be like the authority claimed by the Church of Rome, which, under pretext of exposition of Scripture, doth not stick to add and alter, and to pronounce that which they do not find, and, by show of antiquity, to introduce novelty” (Bacon 1612, No. 56, 225). Judges, like law, assume an instrumental character. “Let judges also remember that Solomon’s throne was supported by lions on both sides; let them be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty” (Bacon, 1612, No. 56, 230).
This also found an odd reflection in the American colonies. Mary Sarah Bilder reminds us of the strong colonial embrace of equity, founded in part on an appeal to authority beyond the narrowness of law, bound up in the development of appeal (Bilder 1997). “The system that the colonists adopted and adapted contained a substantive theory of justice that differed from the rule of law. Their belief in the importance of equity from an accepted hierarchical political authority led them to create a new culture of appeal. The new culture ironically was based on a procedural device that was linked to institutions they despised (Rome, the Pope, ecclesiastical courts, the king), but with a set of meanings that held forth a promise of justice nonexistent in England” (Bilder 1997, 967). Bacon and Coke represented the jurisprudential opposing poles of what would eventually require violent resolution in the English Civil War, a civil war with extremely important significance for the development of American legal culture. As Kevin Philips explains in a remarkable study of the socio-religious and cultural connections between the English Civil War, the American Revolutionary War and the American Civil War, the “English Civil War is the necessary starting point . . . where the events and alignments leading up to the American Revolution began. The latter was really a second English-speaking civil war, drawing many of its issues, antagonisms, and divisions from the seventeenth- and eighteenth century British Isles” (Philips 1999, xx). Philips argues that the pattern of rebellion and loyalty in those conflicts “leads to religion” (Id., xxi). And the road from theology to law and politics is broad and direct, especially before the 19th century (Id., 516-522).
This idea reconstitutes itself in Hobbes, and the beginning of a “positivist” school of jurisprudence in which government is conceived as the monopoly holder of legitimate power. All other forms of its expression are marginalized and subordinated. “For though they that speak of this subject, use to confound jus, and lex, right and law: yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear: whereas LAW, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.” (Hobbes 1651, 84). This, of course, is one of the bases not of 18th century, but of 20th century American notions of law and its relationship to the state. In the early 19th century, Justice Marshall famously explained American political theory as grounded in a division of governmental authority in which the whole of the legislative power was vested in the Congress (Marbury v. Madison 1803). However Justice Marshall did not suggest that law was merely the instrument through which this whole of the legislative power was exercised, that is that law was mere servant of legislator who otherwise acted unbounded. By the end of that century, though, Americans had come to believe, as Thomas Paine (1792, Part II) has suggested at the time of the founding of the Republic, that the extent of the law was co-extensive and the power to legislate, and that indeed, that law did not exist except as a concession of the legislator, or more generally the people constituted as a legislative body.
Thus, the 19th century witnessed a great reconstitution of the relationship between gubernaculum and jurisdictio. By century’s end, jurisdictio had become Constitutionalism, conceptually less organic than medieval notions of constitutional custom (consuetudo) and more directly bound up within sovereign positivism (the right of the people to reconstitute themselves through acts of political will). These are notions indirectly expressed in English constitutionalism (Dicey 8th ed., 1915, 3-35) and more directly expressed in American constitutionalism. In the Weimar Constitution and the French constitutions, of course, the positivist notion completely overcomes consuetude: the people, constituted in a national assembly become the living embodiment of right. And, in modern constitutionalism, gubernaculum becomes the sole space within which jurisdictio can be asserted (Austin 1832; Austin 1879).
In Common Law jurisdictions, the relationship between law and power, or more precisely, between law and the state, become increasingly conflated from the 19th century. And in the conflation, the relationship between them becomes multiple and inverted. The absolutism embedded in the administrative gubernaculum is extended to jurisdictio, and jurisdictio becomes an instrument of gubernaculum. The template is set in the 17th century in the debate between Coke and Bacon. As McIlwain nicely summarizes it: “In the seventeenth century, the royalists, citing the undoubted precedents for absolutism in government alone, extended those without warrant into the sphere of mere jurisdiction; while the parliamentarians, seeing the limits of the medieval jurisdictio, with equal lack of justification, applied these to acts of government as well as to the definitions of right” (McIlwain rev ed. 1947, 86). From the 18th to the end of the 19th century everywhere, though to the greatest extent in France, “Law was an effective instrument for the constitution of monarchical forms of power in Europe, and political thought was ordered for centuries around the problem of Sovereignty and its rights. Moreover, law . . . was a weapon of the struggle against monarchical power which had initially made use of it to impose itself. Finally, law was the principle mode of representation of power” (Foucault 1980, 140-141).
The scientism of law, especially as articulated in the 19th century by English thinkers uncomfortable with the protean ambiguity of custom, paralleled the rationalization of all human relations that was perhaps the greatest legacy of the Enlightenment. “For Bentham and Austin, the law was, indeed, capable of being a rational science” (Alcott 2002, 47). Rationalization of the Common Law had been in the air among elites since the end of the Napoleonic Wars with Bentham’s suggestions to that effect (Bentham 1822). As Alcott nicely summarizes:
What came to be called Austinian legal positivism was thus the means by which the general cultural phenomenon of positivism was allowed vestigially to affect the minds of lawyers. Law could be explained without reference to the extra-legal, mysterious, the ideal or the moral. The Austinian orthodoxy was also prophetic, as the partly reformed parliament (after 1832) became, or came to seem to be, the engine for revolutionary transformation of British society” (Alcott 2002, 47).
In the United States, this march toward scientism affected everything in law. For example, legal education was rationalized in the 19th century, joining other academic disciplines in the University where its disciples have worked for over a century to make a science of the law (LaPiana 1994, 29-38, 122-132). This scientism has affected the way in which the law is used to rationalize and model human behavior as well, especially in American criminal law (Backer 2005). Contemporary Americans were no less willing to abandon the unruliness of Coke and custom for Bacon and rationality. Codification of the Common Law had been in the air since at least the time of Justice Joseph Story (Story 1852, 702; LaPiana 1986, 775-776). That works continues in the bar, through the century of legal rationalization of the Common Law (Gahan 1923).
Entities like the American Law Institute continue the work of conversion of the Common Law into something like an Imperial Roman Codex. The American Law Institute, building on the “Bractonian and Blackstonian treatises, declaring the common law on the empirical foundations of judicial decisions” (American Law Institute 2005, vii), fearing the “chaos in a legal world of 48 states” (id.) but afraid to undertake legislative codification, invented the form of the Restatement. Restatements constituted a synthesis of sorts, “analytical, critical and constructive” (id., 5) seeking to reduce to a single systematic form the underlying principles that gave a legal field coherence “and thus restore the coherence of the common law as properly apprehended” (id., 5). They serve as once to synthesize and to innovate (id.). Though not binding, ALI Restatements have proven to be authoritative in many American courts.
French constitutionalism from the time of their 18th century revolution expressed well this new relationship of law to state. Law was a function of will expressed by the nation, and it was the nation, rather than law, that was reified, in the French case, in the form of the National Assembly. This constituted as the nation, it could express its will as law. The Code Napoleon thus proceeded from the nation as an act of wholly contained sovereign will. Here one encounters a sort of reification inverted. The objectification is not systemic—there is no intangible but compelling body of law independent of the state apparatus, there are only intangible instruments of the national will whose physical expression is written rule proceeding from the lawgiver. It did not exist outside the state; its objectification was instrumental and dependant on government. This is law as technique, assuming a form generalized as the disciplines by Foucault almost two centuries later (Foucault 1978). And it fit nicely into developing European notions that conflated ethnos, demos, state and government. Thus, for example, Savigny, in a way that was no longer remarkable by the 19th century, could articulate a systemic theoretics grounded in the idea that every people constitutes a state. “By transcending the distinction between people and state, Savigny makes it possible to think of private law as the emanation of the people’s spirit (Volksgeist), and still conceptualize private international law as a system of conflicts between state laws” (Michaels 2005, 12). For these theorists, of whom Savigny serves as a great early example, it became an object of faith that “just as the people only attain reality through the state, so the people’s (private) law becomes law only through the state” (Michaels 11).
The reification of ethnos through law as opposed to the reification of law through demos continues to drive important areas of continental law making. It has proven important in the development of European constitutional theory in the context of the construction of that great supra-national entity, the European Union. This conceptualization of law as an expression of ethno-reification through state formation was nicely expressed, for example, by the German Federal Constitutional Court in considering the character of the European Union within German constitutionalism (Brunner 1993).
Democracy, if it is not to remain a merely formal principle of accountability, is dependent on the presence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals also become clarified and change course [FN21] and out of which comes a public opinion which forms the beginnings of political intentions. That also entails that the decision-making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that the citizen entitled to vote can communicate in his own language with the sovereign authority to which he is subject. . . . Such factual conditions, in so far as they do not yet exist, can develop in the course of time within the institutional framework of the European Union (Brunner 1993, ¶¶ 41-42).
State and government nicely reify people (as ethnos) through the mechanics of law that serves the ultimate purpose of preserving the autonomy of every ethnos. “Each of the peoples of the individual States is the starting point for a state power relating to that people (Brunner 1993, ¶ 44). The state then serves as source and limit of law. “The States need sufficiently important spheres of activity of their own in which the people of each can develop and articulate itself in a process of political will-formation which it legitimates and controls” (id., ¶44) through an instrumentalist law, “in order thus to give legal expression to what binds the people together (to a greater or lesser degree of homogeneity) spiritually, socially and politically” (id.).
Napoleon, and his successors (especially though by no means limited to the great 19th century Germany theorists) marked the end of a long period of development of customary and positive law not centered on the state (Grossi 2004). Roman law, for example, even as a sort of set of general principles, became formally fractured and incorporated within the ethnic genius of the law codes of European tribes now organized as fully formed Westphalian states. But even on the Continent, the medieval notions of custom and constitutions guaranteed to political subdivisions (the “ancient rights”) survived in some form. They remain a potent force to this day in places like Catalunya, whose 21st century struggle for autonomy is based on a political program to vindicate its 14th century rights derived from, and confirmed by, the Crown.
Carl Schmitt, captures well the Continental suspicion of approaches to law whose legitimacy and content was to some extent beyond the control of government. Marginalized as mere “custom” “its actual polemical-political significance was determined through the opposition against the legislative right of the absolutist Monarchs. . . . [T]he recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other state organs, especially, of course, the judiciary” (Schmitt 1932, 17-18). This strongly echoes Coke and places a modern, state centered gloss on law as the reified “other,” separate from the state and its apparatus. Of course, this was the worst of all worlds for theorists like Schmitt as well as for the great legal system builders of the 19th century in Europe, from those who crafted the Code Napoleon, to 19th century German law theorists busy creating a normative foundation for the construction of the Reich and the expression of its genius in law, the great Bürgerliches Gesetzbuch, the German civil code (Savigny 1814; Whitman 1990). For the great state builders of the 19th century, from Hamilton and Thomas Paine in the United States, to the state builders all across Europe, and ultimately the builders of totalitarian state regimes in Europe in the early 20th century, “the images of legal science and legal practice were (and still certainly are) mastered by a series of simple equivalences. Law = statute; statute = the state regulation that comes about with the participation of the representative assembly. Practically speaking, that is what is meant by law when one demanded the ‘rule of law’ and the ‘principle of the legality of all state action’ as the defining characteristic of the Rechtsstaat” (Schmitt 1932, 18). The positivist basic norm posits the “congruence of law and statute. The state is law in statutory form; law in statutory form is the state. . . . There is only legality, not authority or commands from above” (Schmitt 1932, 18).
In the 20th century, the spirit of Francis Bacon, now rationalized as a “social science,” was strongly felt, but within an altered landscape of law and government. By mid century, among many influential circles of the Western elite, law was displaced by politics; the focus on the formal elements of systems was displaced by the substantive analysis of power. In the United States, the so-called pragmatists and even more ironically misnamed ‘legal realists’ sought to reduce common law notions to a caricature of its system despised by civil lawyers. Justice Scalia was the most astute advocate of positivist instrumentalism of the late 20th and early 21st centuries. For Scalia an autonomous reified law disappeared at the same time that the common law was replaced in the United States by notions of democratic constitutionalism. Scalia boldest pronouncement in this regard could not be clearer and is worth quoting. Referring to autonomous systems of law based on a common law framework whose autonomy was protected by an independent judiciary, Scalia writes: that such a legal system in the United States “is now barely extant, the system that Holmes wrote about: the common law. That was a system in which there was little legislation, and in which judges created the law of crimes, of torts, of agency, of contracts, of property, of family and inheritance” (Scalia 2005). Sounding very much like a legal realist, with strong Nietzschean roots (Backer 2003), he inverts cause and effect to construct an explanation for this. “And just as theories such as the Divine Right of Kings were necessary to justify the power of monarchs to make law through edicts, some theory was necessary to justify the power of judges (as agents of the King) to make law through common-law adjudication. That theory was the “brooding omnipresence” of an unwritten law that the judges merely ‘discovered’” (Id.).
But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges—and most especially by unelected judges. ((Id.)For Scalia, democratic theory occupies the same place as the Stuart royal will occupied for Francis Bacon. In both cases, a view of law as existing outside the power of gubernaculum was inconceivable. In both cases, jurisdictio outside gubernaculums was viewed as subterfuge—the necessary post hoc theorizing of a group seeking to retain power for itself under a system in which such power grabs was inconsistent with the theory of gubernaculum, and therefore inconsistent with its jurisdictio. We are as far away from our founding roots as we can get—and according to Justice Scalia all is necessary in the name of our founding roots. Scalia thus carries forward, in a very illuminating way, the extremist rhetorical style of the eve of the English civil war, and he takes up the cause of the initial loser in that battle.
In the Soviet Union (and its satellites) and later in the People’s Republic of China, realism of a different sort prevailed, that of the Marxist-Leninist insight of the conflation of state-law-power and Party. Theorists in Europe, and then the United States, refined and combined the insights of legal realism and Marxism, in a number of politico-theoretical movements usefully understood as post modernism. For our purposes, all of these movements had one important characteristic in common—they all sought to embrace, in one form or another the reduction of law to little more than a means by which power is authoritatively communicated. There is only authority and commands from above. Law is their instrument or the veil through which power is imposed. The only important question for law, then, was its utility in expressing political ideology (Backer 2006a).
But the reification of law as instrument, a commonplace by the end of the 20th century, in turn produced its own sources of resistance (Smith 2005; Tamanaha 2005). One source was reactionary—a return to reification of law through religious normative systems, the same basis of law that Bracton would have understood. In the United States, this reactionary turn has its own instrumentalist turn, much of its progress has been won through a revivified Religion Clause jurisprudence. Another source is post modern, seeking universal norms within a global human common law edifice created either through emerging international institutions (human rights universalism) or in private law (Backer 2007) or in combinations of both (Backer 2006). Both are discussed below.
Another inversion of sorts occurs by the end of the century. Substituted for a system based on the centrality of “Law and Sovereign” (Foucault 1978, 97), is one of force relations through which the mechanism of power can be more usefully examined (Id.). But this power was essentially instrumental as well—a tool without a master, and without a purpose except as expressed in the aggregate by the consequences of its use. “The omnipresence of power: not because it has the privilege of consolidating everything under its invincible unity, but because it is produced from one moment to the next, at every point, or rather in every relation from one point to another” (Foucault 1978, 93). Power, thus understood, is exercised and not possessed. It is immanent in all relationships, whatever the formal methodologies of expression of those relationships. It comes from below. It is rational and intentional (“the rationality of power is characterized by tactics that are often quite explicit at the restricted level where they are inscribed” (Foucault 1978, 95)). And it engenders its own resistance (Foucault 1978, 94-95). To use more traditional language, systems of power express the common practices of the people; “major dominations are the hegemonic effects that are sustained by all these confrontations” of force relations (Foucault 1978, 94).
Ironically, there is strong echo of Coke’s understanding of Common Law in Foucault’s characterization of power. Just as Coke proposed the Common Law, a passive bottom up aggregating force, against the conscious law-as-state-instrumentalism of James I, so Foucault posits a similarly constituted concept—“power”—against the positivist instrumentalism of consciously created top down control systems. What can be more Coke like than an assertion that “by power, I do not mean “Power” as a group of institutions and mechanisms that ensure the subservience of the citizens of a given state (Foucault 1978, 92)? Except that for Foucault, power has no master—no systems of acolytes charged with its preservation and interpretation. Foucault offers us power/law as an uncontrollable pantheism to Coke’s institutionalist model.
The study of law as politics, and politics as power, tends to focus on Marxist Leninist regimes. And indeed, Marxist Leninist regimes, through the end of the 20th century inverted the relationship of law and politics, and centered all power on the state (or more precisely on the Communist Party and the vanguard of the new order) (Backer 2004). But it cannot be forgotten that modern fascism shares a similar view of the relationship of law to power. Mussolini suggested that “the nation is created by the State, which gives the people, conscious of their own moral unity, the will, and thereby an effective existence. The right of a nation to its independence is derived not from a literary and ideal consciousness of its own existence, much less from a de facto situation more or less inert and unconscious, but from an active consciousness, from an active political will disposed to demonstrate in its right; that is to say, a kind of State already in its pride (in fieri). The State, in fact, as a universal ethical will, is the creator of right” (Mussolini 2004, ¶ 10 “The Conception of the State”). One of his theorists, Alfredo Rocco, suggested a concession theory of law and right, reflecting the institutionalist and corporatist mentality of fascism, and its obsession with reification.
Our concept of liberty is that the individual must be allowed to develop his personality on behalf of the state, for these ephemeral and infinitesimal elements of the complex and permanent life of society determine by their normal growth the development of the state. . . . Freedom therefore is due to the citizen and to classes on condition that they exercise it in the interest of society as a whole and within the limits set by social exigencies, liberty being, like any other individual right, a concession of the state. What I say concerning civil liberties applies to economic freedom as well (Rocco 2004, “The Problems of Liberty, of Government, and of Social Justice in the Political Doctrine of Fascism”).
Even current systems of globalization, in their national and trans-border organization, appear to substitute power, and power relations, to law. The only difference, perhaps, is the substitution of an institutionalized “system” for state, and “rule” for “law” (Lyotard 1997). “It has no others. It arouses disparities, it solicits divergences, multiculturalism is agreeable to it but under the condition of an agreement concerning the rules of disagreement. . . . These rules determine the elements that are allowed and the operations that are permitted for every domain. The object of the game is always to win. Within the framework of these rules, freedom of strategy is left entirely open. It is forbidden to kill one’s enemy” (Lyotard 1997, 199-200).
Yet there are similarities with more traditional approaches. It found expression in the 18th century in the work of Jean Jacques Rousseau: “Were there a people of gods, their government would be democratic. So perfect a government is not for men.” (Rousseau 1762). Law for Rousseau was also essentially instrumental and partial. It serves increasing as the conceptual framework from which both totalitarian and democratic governance in the West are grounded. Law becomes more and more the codification of power. It need not have a particular character. There are echoes of this in pre Second World War German notions of Rechtsstaadt (Rosenfeld 2001), and its transmogrification in the theories of Carl Schmitt (1932). But it also bears fruit in that most liberal of all Twentieth Century Republics, the United States, especially in the post Second World War American ideas of process constitutionalism (Ely 1980, 88-103). Indeed, the so-called “countermajoritarian difficulty” that has enthralled several generations of American legal and academic elites (Bickel 1962), and that has served as the basis for a campaign to scare the electorate about the power of the judiciary (Bork 1990), reduces itself to a twentieth century version of the perhaps more elegantly proffered argument of Francis Bacon. Bickel and his disciples, like Francis Bacon, argue that lawyers and the courts ought to exercise their authority under the authority of the sovereign. For Bacon, that sovereign took the form of the King, for Bickel, that sovereign was the “people” through their elected representatives to which popular authority had been transferred.
Like its 18th and 19th century counterparts, the newer approaches tend to view law as instrumental, though instrumental in a different sense. That difference, in part, reflects the possibilities for the assertion of newer techniques of power made possible by advances in the technologies of control. The centrality of law—and the state—is substantially weakened once one eliminates the ideas that the state is the supreme repository of power with a monopoly over the institution of power as law, and that law proceeds in specific form solely from the acts of political communities. Consequently, it has been fashionable to speak of law as an instrument of power, as its mask (Foucault 1980, 140). “Law is neither the truth of power nor its alibi. It is an instrument of power which is at once complex and partial” (Foucault 1980, 141). In its 20th century mode, “power is tolerable only on condition that it mask a substantial part of itself. Its success is proportional to its ability to hide its own mechanisms” (Foucault1978, 86). And so it appeared to function effectively in this way in both the democratic West and the totalitarian East. For both societies, law served as the veil behind which the panoptic state could be constructed—providing a regularity and formal legitimacy to many of its techniques, while deflecting the extent of their insinuation in the social order. And Western scholars have devoted substantial energy to unmasking law in the service of this or that system of subordination or more generally of its intensification of force relations of any kind.
Foucault did not live long enough to understand the way in which he both served to describe an epoch about to end and to point the way to that epoch’s reconstitution. We have come to live in an age in which the forms of “law with its effects of prohibition needs to be resituated among a number of other, non-juridical mechanisms” (Foucault 1980, 141). We are in a position now to better understand Foucault’s assertion that “if it is true that the juridical system was useful for representing, albeit in an exhaustive way, a power that was centered primarily around deduction (prélèvement) and death, it is utterly incongruous with the new methods of power whose operation is not ensured by right but by technique, not by law but by normalization, not by punishment but by control, methods that are employed on all levels and in forms that go beyond the state and its apparatus” (Foucault 1978, 89).
Today, power applied, systems of force relations, have taken up a thread of Foucault’s discourse of law/power. I want to explore the great shift from the post modern—with its obsession with power and its techniques, with subordination and its abolition—to an age in which the techniques of power have been deployed in the service of management. We live in Foucault’s asylum: “to effect moral syntheses, assuring an ethical continuity between the world of madness and the world of reason, but by practicing a social segregation that would guarantee bourgeois morality a universality of fact and permit it to be imposed as a law upon all forms of insanity” (Foucault 1965, 259). We live in the age of true disciplinary power, power “exercised through its invisibility; at the same time it imposes on those whom it subjects a principle of compulsory visibility” (Foucault 1977, 187). The only marker of these disciplines in law, now put to another use—a post monarchical use, in which we are all subject to the disciplinary machines. Thus, we live in a world, not of a singular hierarchy of disciplinary machines (Foucault 1965, 177), but one in which there are multiple simultaneously functioning and imperfectly horizontally integrated pyramidal organizations producing power and distributing individuals (and other organizations) ”in this permanent and continuous field” (Foucault 1965, 177).
What are the characteristics of law in this new age of management? What are the techniques of its power/knowledge? To what extent are the techniques of this new age explained through law? I will attempt to extract some answers through an examination of law as technique among transnational actors and God as law within emerging modern traditions of state based constitutionalism. In this extraction I remain aware that “Institutional legal history abounds with crooked and confused paths forced unnaturally straight by previous generations of scholars whose vested interest in preserving the rule of law extended to rewriting the past. Accepting an illogicality about institutional development, we might follow a few paths to their cultural complexity” (Bilder 1997, 968).
Law as Technique: The Management Networks of Power at the International Global Level and the Reconstitution of Legal Reification in Global Common Law.
To speak in terms of disciplinary power—to speak in terms of techniques of control—is to look to rising systems of behavior management that increasingly characterize the organization of social and economic communities operating autonomously on a global scale. We move from the state to systems, to networks of power relationships (Teubner 2004). It is only in the early 21st century that power, as Foucault understood the term, has unmasked itself. But in a world of force relations, of techniques of control and management, has law become a marginal element? Rather than recede, what we find is that law was redefined itself to suit the needs of a new set of power relationships. Thus naturalized, it survives in a new world order.
This construction of a global system of private law making is spearheaded by an important group of large multinational corporations. It is rising in the shadow of, and parallel with, less successful attempts by national and international bodies to develop a system of public law rules to govern multinational behavior. It is now readily apparent in the construction of webs of contractual relationships between multinational corporations and their global networks of suppliers, usually factories located in the developing world and retail operations worldwide. This modern global law making relies on the participation of key elements of civil society to help determine the content of these provisions and to act as monitors of supplier conduct. It also relies on the participation of media, both to publicize breaches of conduct norms by suppliers and the efforts of multinationals to correct these breaches. This global system of supplier agreements evidences how large multinational corporations, elements of civil society and the media increasingly perform powerful quasi governmental roles, roles encouraged by the human rights establishment in Geneva and loathed by most Western states, at least as official policy (Backer 2006).
The characteristics of this emerging system are substantially different from the traditional public law based system derived from the activities of political communities. The system is based on private law making. The principle actors are (i) corporations and other enterprises; (ii) NGOs; (iii) Media; and (iv) Customers/Investment Community/Financial Markets. These actors have interests, fundamentally adverse interests, yet are dependent on each other. That adverse interest dependency is deepened in a system that increases the authority and legitimacy of each of the actors through their regularized interactions. Together, these actors produce a complete systems of regulation, from legislation to enforcement that are focused and limited in scope, but dynamic and effective within its limits and growing. Within these systems, grounded in the relationships in individual TNCs with NGO, media, customer and investor communities, the role of the state and other public bodies becomes secondary rather than primary, and it becomes difficult to determine, at the international level, whether law is being sourced from consensus in private behavior or legal norms developed through the deliberative political process (Backer 2007).
A recent story reported by the BBC on its web site (BBC 2006) provides context. The story explained how a human rights NGO working in China discovered allegations of sub standard working conditions for Chinese workers at one of Apple’s iPod factory in China. These allegations were reported in English newspapers and the story was eventually picked up by the BBC. In response, Apple immediately affirmed its obligation to ensure appropriate working conditions for workers in its supplier’s factories in China and that it would investigate the allegations and correct deficiencies in the factory (BBC 2006). Eventually, Apple released a report of its investigation and remedial measures (Apple 2006).
There are several points to this story that make it interesting from the perspective of law and power. First, Apple had adopted a code of conduct that essentially exports a set of behaviour norms on to its suppliers (Apple 2005). Apple targets communication of this information to its investor community (http://www.apple.com/investor/) where it explains that “Apple is committed to ensuring that working conditions in Apple's supply chain are safe, that workers are treated with respect and dignity, and that manufacturing processes are environmentally responsible.” The Supplier Code itself is also available (id). The code itself is interesting. It is based on a model code prepared by the relevant industry group (this comes as no surprise), but it also incorporates certain international human rights and labor norms.
Apple’s Supplier Code of Conduct is modelled on and contains language from the Electronic Industry Code of Conduct. Recognized standards such as International Labour Organization Standards (ILO), Universal Declaration of Human Rights (UDHR), Social Accountability International (SAI), and the Ethical Trading Initiative (ETI) were used as references in preparing this Code and may be useful sources of additional information. A complete list of references is provided at the end of the Code. (Apple 2005).Second, Apple’s reaction to reports of the story of sub-standard wages was positive. It did not deny the allegations, it did not lash out at the monitors who brought the story to the press. Instead, it reaffirmed its commitment to its behaviour norms as set forth in its voluntary code, and promised an investigation of the allegations. Third, Apple worked diligently to investigate and produce a report that was broadly distributed to its consumers and the investment community (Apple 2006). Fourth, elements of civil society played a key role in monitoring Apple’s Supplier Code of Conduct. It was a Chinese human rights organization that did the work to uncover and report allegations of substandard conditions—that is of conditions that violated the Apple Supplier Agreement. Fifth, the media played a critical role in conveying information in a way that legitimated it. Sixth, the state played little if any role in this event. Apple stands at the center of a network of relations that produce behavior norms that acquire an existence separate and apart from the state (Teubner) 2004. This is a coercion aimed to manage behavior.
But where is law as traditionally understood, within these networks of relations? Law assumes a more traditional role, not as positive pronouncement but as framework principles applied as the situation demands. Law resides at the margins of this system. Power is diffuse and pervasive. It is now a function of relationships and norms set forth in contract. But contracts are rarely the subject of litigation under this system. Instead, contracts form the basis through which relations (and behavior) is managed. For example, when Wal-Mart learned that its suppliers in Jordan might be violating both Jordanian labor law and international human rights norms, they sent auditors to the company, they reviewed behavior, they met with the factory managers, they withheld payment pending changes in behavior tied to the set of contractually based norms that guided the relationship between Wal-Mart and the supplier, and then Wal-Mart recertified a supplier whose behavior now better conformed to norms systems acceptable to Wal-Mart. There was no litigation; there was no appeal to state authorities. There was an interaction between multinational, supplier, the NGO community and the media (Backer 2007).
Law here exists apart from its objects. It has been stripped of the juridical patina that Foucault thought was its most marked characteristic. It is also law that again exists outside the usual abode of power, traditionally understood as political power. But power is no longer expressed as politics. It speaks the language of economics; Marxist Leninists should see the irony. Private lawmaking networks at the trans-border level appear to revive Coke’s notions of the separation of Common Law form government, yet also in a dynamic relation with it (Teubner 2004).
Foucault was right to broaden our understanding of law/power. The system of corporate private law making is the essence of the force relations of power he describes: “a network of power relations. . . forming a dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 96). But he missed the essential nature of authority in the mix. And for authority some form of legal reification remains essential. Lyotard perhaps had it right when he described the authority/law matrix: “In the modern system, and even more so in the postmodern one, authority is a matter for argument. It is never attributed, or conceded, so to speak, to an individual or a group, which may occupy the location of authority only for a limited time. That location is, in principle, empty. Authority is designated by a contract, even if it is the final word in which the Law itself speaks” (Lyotard 1997, 77).
Thus, in this global system is evidenced a new law/power relationship. But the law/power relationship being constructed outside of the formal structures of traditional public law shares a certain similarity to law in its pre-Enlightenment forms. It harkens more to Coke than to Bacon, more to Locke than to Schmitt. The new law/power matrix is custom and practice backed by social and economic power. The example of Apple related above evidences the way in which the disciplines, as understood by Foucault (Foucault 1978), have become dynamic forces in the reconstruction of systems of law/power (Foucault ). But it also demonstrates that even the most dynamic and subterranean of forces cannot resist reification. It might surprise Foucault to see that even the disciplines can serve as a “common law” to be deployed against state and individual actors seeking to impose their will against normative principles the disciplines further.
God as Law; Humanity as Law: Divergence in the Management of State Power in Modern Constitutionalism.
Yet even as power is increasingly exercised as technique beyond the traditional understanding of law as “thing,” traditional uses of law as instrument of asserting the power supremacy of the state continue to flourish in modern form. Foucault surely rejects this constitutionalism as an act of delusion—for him law cannot but be partial and legal discourse misdirected. It is to the techniques, to the disciplines, the underground structure of behavioral compulsions that he looks. And yet law can reconstitute itself, and in the reconstitution, attempt to broaden its purported reach to the limits of human understanding. Bombast? No, rather a sign of law folding back on itself as an expressive device—as the Logos, the manifestation of an aspect of the universality of humankind or God. Law thus becomes the tip of an iceberg—a tool of ideology, or more generally, an expression of the disciplines through which human norms become action. But even the tip of the iceberg he rejects has a point. And in the 21st century the point has been sharpened, taking three primary forms:
Traditional self-contained systems of legal hierarchies: Modern constructions of the American, French and English constitutions are the best examples. These are constitutions that by their terms represent the highest possible legitimate law making power, but which themselves remain subordinate to the active will of the sovereign power (usually, but not always, the people). Constitutions in this sense are law deeply embedded within the framework of the state and its own conception of itself. This is law as Francis Bacon and Thomas Hobbes (along with Tom Paine) understood it—law as essentially instrumental and bounded by the will of the legislator. It is the legitimate language of political power by those with the authority to wield it. Its only borders are those embraced by the lawgiver. And these borders may be changed at any time. Just as the United States abandoned slavery in the 19th century, it could again impose the practice in the 21st. Just as France emancipated her Jews in the 19th century, it might undo that emancipation in the 21st, by rejecting all prior acts as inconsistent with the current will of the lawmaker. This is a legal theory that, in its pure form, democrats and Marxist Leninists might applaud—but in defense of very different conceptual frameworks.
In the United States, expression of an instrumentalist reification of law has provided the essential framework for the great debates of American constitutional theory. Bickel’s majoritarian difficulty (Bickel 1962) and Weschler’s neutral principles (Weschler 1959) are natural expressions of the idea that even foundational law is an object of positivist manipulation. Each works to justify a judicial role in a normative system of legal instrumentalism (Friedman 2002). This justification assumed critical importance especially as it related to a judicial system designed to operate under a normative conception of law as autonomous rather than instrumental. Weschler and Bickel express the efforts, in the American context, to reconstitute the American judiciary on the Stuart model, as “lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty” (Bacon, 1612, No. 56, 230). Bacon, of course, would understand the conceptual difficulties of judicial review of legislative or executive action; Coke would not. Where law is reified as autonomous and systemic, rather than instrumental and consequential, the difficulties of judicial review, even within democratic theory, tend to fall away.
Likewise, the American Presidents’ repeated attempts at early Stuart type rule—President Truman with the steel mill seizures (Youngstown Sheet & Tube Co. v. Sawyer 1952) and President George W. Bush with the detention of American citizens during combat operations (Hamdi v. Rumsfeld 2004)—show the power of this sort of instrumentalism in action. In both cases there was a clash of legal culture. On the one hand, the idea of law as the servant of state power and on the other the idea of law as an autonomous set of normative limits of state power. Ironically, in both cases, the judiciary tended to push very little beyond a core instrumentalism tied to a positivist conception of the American Constitution.
These limitations were nicely illustrated in the various opinions in Hamdan v. Rumsfeld (2006) on the president’s power to establish military commissions. The opinion provided an opportunity to refine the great debate between constitutional structuralists, political constitutionalists and ideological supremacists. These three great schools of normative constitutionalism in the United States reflect the tensions in American legal thought between law as conceived by Coke and as articulated by Bacon.
Constitutional structuralism is based on the view that the Constitution itself provides a set of limits to actions by government actors, and that the Supreme Court must enforce these limits. This is the view adopted by the Hamdan majority. Political constitutionalists believe that the Constitution provided a flexible set of formulas for governance that ought to be molded by political necessity, and agreement by political actors rather than by judicial interference, except perhaps in the most extreme circumstances. This is the view adopted at least in the dissent of Justice Alito. Ideological supremacists believe that the Constitution was written to serve higher moral, ethical or ideological purposes, though there is little agreement among groups of ideological supremacists over which set of ideologies the Constitution serves. For them, the Constitution must be bent in the service of these higher causes by the Courts or by any other institution necessary for that purpose. This is the view that most clearly comes out in Justice Thomas’ dissent, and much more subtly in the dissent of Justice Scalia (Backer 2006b).The first two views are substantially instrumentalist, based on the idea of positively managed structural limits on governmental power. The last suggests legal autonomy, but of a kind that might implicate a different sort of instrumentalism—a religious or moral one, discussed in the next section.
It is against the limitlessness of this instrumentalist rule of law that Brian Tamanaha centers his critique (Tamanaha 2005) from a secular perspective. Tamanaha points to the importance of autonomy Steven Smith, following a similar path but from a religious perspective, also is uncomfortable with an instrumentalist reification of law (Smith 2005). Smith, in particular, is sensitive to the tensions in modern American jurisprudence—a jurisprudence in which both Coke’s autonomous law and Bacon’s instrumentalist law exists simultaneously. Smith argues that “Since at least the time of Holmes, lawyers and legal thinkers have scoffed at the notion that “the law” exists in any substantial sense or that it is not reducible into our discourse and practices. Law is not a “brooding omnipresence in the sky” (Smith 2006, --). Smith argues that the rejection of the ancient notion of an organic and autonomous law (including a binding ‘higher law’) arises from what he describes as a correct perception “that our ontological inventories (or at least those that prevail in most public and academic settings) could not provide any intelligible account of . . . this “preexisting thing called ‘The Law’” (Id.). However, Smith argues that though our heads may tell us that law is at best an instrumental reification, our hearts still belong to the more ancient English conception. “At the same time, . . . [there is] cogent evidence suggesting that we still do believe in “the law.” . . . Our actual practices seem pervasively to presuppose some such law: our practices at least potentially might make sense on the assumption that such a law exists, and they look puzzling or awkward or embarrassing without the assumption” (Id.). And perversely, these criticisms mirror, in some respects the criticisms of Western law through the critical legal studies movement and its various offshoots.
Legal hierarchies limited by the great principles of international behavior norms. The creation of ‘higher law’ restraints on government finds parallel development in the efforts to create a higher law of nations after 1945. These efforts bore fruit in the great exercises in constitution making after the Second World War, from the German and Japanese post war constitutions to South Africa’s post apartheid constitution at the close of the 20th century. These constitutions still adhere to the hierarchies of the traditional constitutions. Each acknowledges that there are some choices that the state cannot write into law. And some provide that certain restraints may not be erased from the domestic constitutional order (Grundgesetz art. 79). But these restraints are derived from a different normative legal order. This set of boundaries beyond the law making power of the state are not found in some law that is separate from but at the same level as the state law of constitutions. Instead, the boundaries are impermeable because they derive from consensus at a level higher than the state—as part of a consensus among the community of nations (South Africa Constitution, art 39; Constitution of Japan, Preamble).
These global higher law restraints emerge, in the first instance, from the communal traditions of the community of state’s themselves. These traditions become authoritative when expressed in their ideal form—as an expression of their highest communal aspirational views of themselves, as civilized, advanced, and normatively perfect states. These traditions point to a set of moral and ethical behavior rules thought generally to apply to all civilized states. These rules then serve as the basis for a global framework of higher law. These norms become law when deliberately adopted as binding international norms by the collective family of nations through their global institutions. The U.N., in particular, has served as the great source of the communal civilizer of states through international law now limiting constitutions (cf., Koskenniemi 2001). For the most part, global consensus, among the community of nations has focused since 1945 on what is commonly referred to as “human rights universalism” (Koh 2006, 70). Thus, because the international community has arrived at a consensus, expressed in positive international law through binding conventions, that slavery violates all acceptable behavioral norms, slavery may not be adopted even by a political community a majority of whose members are otherwise willing.
Law in this context appears reified in two perhaps surprising ways. First, law again assumes a character as a thing separate from the state—a body of consensus among the community of states—a common law of humanity. The irony here is that this traditional form of reification, now centered at a level above the state, exists in a system in which the governments on which this form of human rights universalism is imposed embrace, as a matter of national law, the notion of the identity of law and government. Coke’s notion has moved beyond the state to a global stage. At this level, higher law, as global consensus, can exist without challenge from states. But this is a more deliberative law system than that conceived by Coke. As Jill Frank nicely expressed in her consideration of Aristotle on constitutionalism, “[d]eliberative democrats tend to treat the constitution as a rule of right reason and to reify and freeze it by locating it out of time, in an invariable realm that transcends human affairs” (Frank 2006, 49).
But this reification of law as autonomous, is itself a positivist exercise. In this context, law is reified in a different sense, as an instrument—serving to provide the framework within which political communities may authoritatively act through law while permitting states to retain a monopoly of legislative power within their territories. Thus, law retains its positivist and instrumental character within a state, even as it loses that character in the construction and interpretation of the “higher law” of the state—its constitution. With respect to this higher law, law understood in its global context as a common higher law, stands separate from and beyond the authority of any state legislature and even the sovereign authority of the people. Thus, the limiting framework was external to any individual state constitutional system. It was secular. It could be changed but only by the consensus of the community of nations.
That separateness is not guarded by a cohort of common law lawyers, as on Coke’s world, but by a group of what Peter Fitzpatrick calls “deific substitutes” (Fitzpatrick 2006, 178) who reify global constitution limits “by treating it as a “dead” rule for the future, a fact of social acceptance” (Frank 2006, 49). Thus global common law that acquires form only through positive acts expressing a deliberate consensus among the community of states that collectively self immanent and thus authoritative (Fitzpatrick 2006, 179).
Legal hierarchies subordinate to a higher law represented by the pronouncements of one or another organized religion: These are the great theocratic states, from Iran to Iraq and Afghanistan. Law stands apart from the state, but is merely the instrumental form of higher law. It takes a middle place between human power and divine command. Law is reified, to be sure. But it is both thing (a reflection of the substance of the Divine voice in human affairs) and instrument (the means through which obedience to this voice may be compelled). Thus, for example, all human rights recognized by the international community and internally by the political community of the state are to be respected—but only to the extent permitted under the overarching religious strictures. Doctors of the law must consult their superiors, the doctors of the church (Iraqi Constitution 2005, art 1). Law is that which proceeds from the mouth of God, is God. People who have the ear of God hold the key to the transmission of law to his servants in government. Nietzsche, though highly critical, perhaps understood it best: “in Paul the priest wanted power once again—he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds. What was the one thing that Mohammed later borrowed from Christianity? Paul’s invention, his means to priestly tyranny, to herd formation: the faith in immortality—that is, the doctrine of the ‘judgment’” (Nietzsche 1888, ¶ 42).
Using the law systems language of the present we come back to a time before Coke. We can take Kant literally now in this context when he suggested the connection between the genius of human striving for perfection and a higher law “so holy (inviolable) that it is already a crime even to call it in doubt [which must be thought] as if it must have arisen not from human beings but from some highest, flawless lawgiver; and that is what the saying “All authority is from God” means” (Kant 1797, 6:319). Kant meant to celebrate the divine essence of collective humanity. But in place of a perfectible Enlightenment humanity we return have here returned literally to God, understood as Logos. Law is reified as an emanation of the divine presence in human affairs. The separation of human gubernaculum and jurisdictio is a necessary requirement in a world in which God and law are one which is served by humanity through its governance apparatus.
In the West, this form of legal reification takes a distinctly Christological form—as Logos and Church. And in this sense law is again reified, as against the state, in the sense Bracton understood that reification, not as Coke and Locke later understood it. In Islam, the reification follows a different path—through the Qu’ran and the ummah (Stewart 2006). In either case, Law is reified as both lying outside of people and their social organizations (Law is God, or God is Law), and lying within humanity (Logos as reason (Benedict XVI 2006); and the ‘ummah as Law in Islam (de Seife 1994, 34).
These systems appear as assertions of complete power through legal ordering, expressed in a written constitution. And indeed, they can be considered complete within their spheres of authority (Sand 2004). But those spheres are themselves severely limited by territory or the community of believers. State power loses legitimacy and authority beyond the borders of a state. Where power is based on a relationship to a divinity as lawgiver, God’s power loses force beyond the community of believers. The Muslim ‘ummah has little authority over the community of Shinto. Yet, like “the voice heard long ago by Abraham and Mohammed, the voice of the muezzin echoes through the cities and the deserts to remind all that there is no authority in human affairs other than the Law proclaimed by that voice” (Lyotard1997, 77).
And so we arrive where we started. Or better put, we have moved from Foucault’s unifying matrixes of power/disciplines underlying juridical law to Lyotard’s “system” of postmodern politics (Lyotard 1997, 199-216). “Postmodern politics are managerial strategies, its wars, police actions. . . . As for the legitimacy of the system, it consists in its ability to self-construct” (Lyotard 1997, 200). And thus law is reified again, both as a thing apart from the authoritative institutional repositories of power, and as an instrument of that institutional power repository. But Law now includes the disciplines; it has moved beyond the confines of government. The state, and the positive law it purports to produce, is subset of a broader understanding of law as power/discipline—as the trivia of managing individuals, entities, religions, and ultimately, the state. And law serves those communities against which it is deployed. Law continues to construct itself, to suit the situation, or the tastes around which consensus on the nature of its reification are developed, sustained, modified and abandoned in favor of another. Law is particularly suited to management in the postmodern. Law is both system and discipline/technique of power in the current order.
Law remains as indeterminate a force in the 21st century as it was in the 17th century in England and the United States. Whatever the ultimate truth of the nature of law, its reality among communities of believers has been both mutable and unstable. Law constitutes both subject and verb, a thing and a tool. It constitutes the state and it remains something apart from the state. What four hundred years of debate seems to confirm is only this: law is a powerful totem for belief systems. Control of the meaning of law is among the greatest techniques of power. Ironically, while Foucault is immeasurably important in helping understand the dynamics of this relationship, Foucault himself was too much in the contest for control. As a consequence, his analysis may suffer from the same partial quality as the law systems he critiques. But his insights are sound.
Foucault is right to assert that power is both partial and fractured among all actors among whom power is deployed. Power can be reified as law, or can use law as an instrument of naturalizing power. The partial nature of power is reflected in law to the extent that law itself is connected with power. But law itself can exist in all areas in which power is deployed. It is independent of the state, at least in the sense that as the state cannot contain power, even within its borders, neither can it contain law. And the nature of law, like the nature of power, is bounded. But the bindings are constructed. They reflect the willingness of actors affected within networks of power, to believe in the limits of power/law, and to act within those limits. We thus end where modernity began—with faith as the basic ordering principle of power. The fundamental relationship of power comes around again to a balancing of faith and law—or perhaps more ironically put, between faith and reason (Benedict XVI 2006) or in its antique forms, between jurisdictio and gubernaculum. In its more secular form, the reification of law, as corpus or instrument, as outside or as within the state and its apparatus, continues as the great battleground of “politics now as it has been in all past ages. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits of arbitrary power and a complete political responsibility of government to the governed” (McIlwain rev. ed. 1947, 146). The expression of law, the sources of power and its arbitrary exercise, changes. The methodologies of power relations move between political and other power communities. Law can break the boundaries of its traditional confines as the technologies and expressions of political organization change. We move from Logos, to custom to state, to non-state communities, to humanity as Logos expressed as global custom, a reinvention of jus gentium, or Logos over humanity expressed as reason or command.
The constitutional deadlock of seventeenth century England, now broadened and freed of the artificial boundaries between public and private law, reproduces itself on a global level in the 21st century. On the one side are those who would resist invasion of ancient or traditional rights by increasingly powerful and aggressive institutional bodies—government, religion, corporation, and society. The source of resistance is the sure belief in the power of an autonomous reified complex of law. On the other hand, institutions, conceiving themselves representatives of the whole or complete parts of the power of those they represent, and convinced of the perfection of the authority derived from such representation, resist the imposition of checks and restraints applied in new and more restrictive ways. The source of this resistance is the sure knowledge that law is separately constituted but is passive and instrumental, to be used by legitimate authority in the construction and articulation of normative standards that exists apart from law and subordinate to the genius of the political community.
Struggles for control of Law as a normative construct will be the great battleground for theory and practice in this century. None will win. All will attempt to work within networks of private and public power that emerges as institutions and political communities come to terms with the fracturing of power, that is with the diminution of political communities to assert anything approaching a monopoly power over the control of behavior. How that happens will set the course for the coming era. And perhaps, both the struggle and its inevitable frustration, more than anything else, illuminate the autonomy, the distinct personality, of law. The permanence of the resulting constitutional deadlock, derived from great differences in the characterization of law reified, is the great insight for the 21st century.
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