The constricted universalism of the nation-state

8
The constricted universalism of the
nation-state
A constitutional legacy of the Protestant reformers was the increasingly abso-
lutist, territorial state, aided by the innovative legislative mentality. The univer-
salist legal pluralism of Christendom fractured into states and territories claiming
legal monopolies. Generally these monopolies were grounded in the natural
rights of people living together in a territorial compact to protect themselves from
both within and without. As late as the eighteenth century in France, the divine
right of kings to govern still served this function. Out of that repression burst the
French Revolution and codified rights universal in aim but national in applica-
tion. Conventional legal and political theory locates the sovereign authority of the
state in the social thought of the English and French Revolutions. International
law at those times was universal to the extent that it tended to reflect a system of
norms of the lowest common denominator in a schoolyard of states administered
by bullies. Theorists continued to explore universal international and territorial
authority, constricted by the relativism inherent in competing nation-states
determined, like their constituents, to pursue their own economic and political
aspirations. Thus the inquisitive child of our Introduction
1
can be told by the
adult today that law is obeyed because it comes from the state and it is justified
because it brings order to the pursuit of economic needs.
In this chapter, we shall see how the aspirations of the nation-state ascended
as a strategy for central authority, and how the ‘codification mentality’ assisted
that purpose. Despite formidable codifiers preceding him – for example, God
(via Moses) and Emperor Justinian – Napoleon was to find his people no more
adept at accepting his law without expansion, reform, clarification and debate.
8.1 Universalism in a different guise
In the dusk of the Holy Roman Empire and the Christian commonwealth
(respublica Christiana) purportedly reflected in it, as early as 1598 the duc de

Sully had planned a universalistic European League of Princes to override the
ideological pretensions of the Holy Roman Empire, and to divide Europe along
territorial lines into fifteen equal states with attributes of modern sovereignty.
111
See ch. 1, pp. 1–2 above.
This prototypical League of Nations or European Union, meeting once a year
in alternative cities from a list of fifteen, was to be united against ‘the Turk,
laying down international law, settling disputes, preserving the peace, and pun-
ishing transgressors’.
2
In its second edition, over one hundred years after the
author’s death, it was republished for maximum European effect. It was predi-
cated on establishing an equilibrium of strength and an acknowledgement that
‘peace is a function of power’, with free trade, pooled sovereignty and joint
enforcement being contemplated.
3
The imagined imperial function of a
European union can foggily be discerned: common security and conceptions of
transgression; and a common ideological or spiritual enemy, then the Ottoman
Turk (perhaps parallel to the illiberal nation-state of our times).
The universalist order envisaged in such projects was slow in the coming. It
would face increasing gravity from the nation-state and difficulty projecting
itself beyond the totalising self-conception of nation-state sovereignty. The
international order was to become more orientated to the self-direction of par-
ticular states’ sovereign wishes before more universalist aims could be pursued
in earnest. The system of particular nation-states was projected as a new uni-
versalism. The previous Western universalism of our rhetorical holy Roman
empire had obtained allegiance through common, moral, religious bonds and
faith and the common Latin language, within the universalist political author-
ity of Two Swords legal pluralism. That was the Christian commonwealth. What

was, however, emerging was something different – the European public law
system (ius publicum Europaeum). European public law conceived authority
more juridically and politically in equally sovereign European states. Rather
than the just cause (iusta causa) to unite the Christian empire against the
infidel prince or empire, under the emerging European public law a state could
be a legitimate enemy (iustus hostis) of another state in what might be thought
of as a situation of European civil war.
4
Obviously in the days of medieval
Christendom, princes fought one another; and the Catholic church would often
side with one prince against another. The conception in the seventeenth century
was different. Just wars were being justified according to the particular, self-
determining will of the emerging nation-state.
In the emerging era of the nation-state under European public law, the sov-
ereign nation-state was its own justification unto itself. As will be seen in
coming pages, the underlying authority was to evolve through a complicated,
secularising, territorially bound process. Morality was consciously removed
from the market in pursuit of free trade, and profound human rights were the-
oretically developed for economically productive people within the territory.
174 A Wholly Mammon Empire?
112
Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), p. 84.
113
Norman Davies, Europe: A History (London: Pimlico, 1997), pp. 662–3.
114
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 413–37, summarising Carl
Schmitt’s conceptualisation.
8.2 The secularisation of international law: European public law

In the de-universalising process of the emerging sovereign nation-state, Baron
Christian von Wolff (1679–1754) contributed to the humanisation of the natur-
alistic, idealistic rationalisations of international law, with his concept of ‘vol-
untary law’. He envisaged a supreme world-state, sovereign over individual
nations. This he considered a natural order. Such a natural order could be
enforced as a matter of Realpolitik by the majority of the civilised (Western)
nations, which was deemed to reflect the natural law, in a conservative justifi-
cation of the status quo: ‘[t]hus, under the disguise of natural law, positive law
triumphs over it’. Law – that is, positive law – was dependent upon states or
nations for its moving force. Authority was moving from naturalistic reason to
a more earthly, pragmatic positivism: Wolff’s work ‘can be considered as the first
private codification of positive international law, which had the effect of spread-
ing its acceptance and consolidating its rules’.
5
Although representing a shift
away from the Christian metaphysical rationality of the natural law tradition,
an earthly type of scientific rationality underpinned the ensuing Enlightenment
transformation. The latter was a rationality which esteemed the normative
power of the individual and the state to govern themselves through a socially
contracted will. The universalism of the aspirations of the Enlightenment lay in
the very relativism sought to be encouraged. Recognising the political import-
ance of religion in an essentially Christian intellectual and social world, religion
was relevant only as a matter of national policy.
6
As Christianity became the
province of particular nations, the universalist legal appeal of Christianity had
to fail, as the Christian commonwealth ceded to the model of European public
law.
Emerich de Vattel (1714–76) recognised the emerging particularity and rela-
tivity of claims to legality made by different nations. He acknowledged the posi-

tivism, divorced from a universalist rationality or natural law, which could seek
to justify international norms. That is, states could assert their wills independ-
ently of a higher, unifying universal wisdom or social logic. It was this particu-
lar and relative authority of the individual state, supreme though within its own
territory, which was ideally to be supervised by an international law which
recognised and attempted to reproduce state legal norms at an international
level. This represented something of an apology for the status quo. Vattel wrote
that ‘A dwarf is as much a man as a giant is; a small Republic is no less a sover-
eign State than the most powerful Kingdom.’
7
Indeed, Article 2 paragraph 1 of
175 The constricted universalism of the nation-state
115
See Alfred Verdross and Heribert Franz Koeck, ‘Natural Law: The Tradition of Universal
Reason and Authority’ in R. St J. Macdonald and Douglas M. Johnston (eds.), The Structure
and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (The Hague:
Martinus Nijhoff Publishers, 1983), pp. 36–7.
116
See Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter
de Gruyter, 2000), p. 288.
117
E. de Vattel, The Law of Nations (Philadelphia: T. & J. W. Johnson & Co., 1849), §18, p. 7.
the United Nations Charter (‘The Organization is based on the principle of the
sovereign equality of all its Members’) recognises Vattel’s doctrinal influence.
8
Vattel’s ideas reflected a Hobbesian idea of nature: rather than nature being
idealised, nature was the actual state ‘of men in their presocial isolation, each
self-dependent for survival and as yet uninhibited by the bonds of sociality’.
Independent states were to obey the laws of nature which were akin to the
natural laws of the Hobbesian presocial man in the war of all against all.

9
This
idea of nature was heavily imbued with the philosophy of positivism: nature is
what exists, as a matter of practice or fact. Vattel developed the view of diplo-
macy and war as the total social process in international society. State govern-
ments represented their own abstract entities in international law and not the
individual humans who made up the society, leading to the ‘enforced alienation’
of the people from international law.
10
Wholesale international legal positivism was ushered in by Johann Jacob
Moser (1701–85), who somewhat immodestly claimed to advance the only real-
istic approach, recognising only ‘treaties and custom as sources of international
law’.
11
In his view there was no longer a strong need to ground authority in
reason, metaphysics and morality: politics and the cold, hard facts arising from
international relations were the alleged source of international law. Yet there
had still to be some ideological framework, which no human social system can
deny of itself. That framework was fraught with the Enlightenment paradox of
universal truth through individual perceptions of it within a territorially
defined, economically productive, polity. Perceptions of ultimate reality and
meaning were changing, amidst this emergence in the European public law
period of what today is known as ‘international law’. Indeed, the term ‘public
international law’ was invented shortly after this time by Jeremy Bentham,
whom we shall encounter later in this chapter.
8.3 The secularisation of the economy
The gospel opposition between God and Mammon assists the understanding,
in stark symbolic terms, of the transformation in legal authority which took
place in much of Western Europe around the time of the French Revolution and
amongst Enlightenment philosophers. Initially I chose the word ‘Mammon’ in

the phrase ‘Wholly Mammon Empire’ as a matter of poetic licence when seeking
to compare the modern age with the Christendom of the loosely designated
Holy Roman Empire. ‘Mammon’, being the ‘devil of covetousness’ or ‘wealth
as an idol’
12
is nonetheless an appropriate term to represent the theoretical
176 A Wholly Mammon Empire?
118
Verdross and Koeck, ‘Natural Law’, p. 38.
119
See Julius Stone, Visions of World Order: Between State Power and Human Justice (Baltimore:
The Johns Hopkins University Press, 1984), p. 81.
110
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
[13.105].
11
Verdross and Koeck, ‘Natural Law’, p. 39.
112
Shorter Oxford English Dictionary (Oxford: Oxford University Press, 5th edn 2002).
opposite of the authority of Christendom. Christ taught that Mammon was
opposed to God.
13
Adopting the insight of Karl Barth,
14
Mammon in the the-
oretical extreme, or the liberal ideology of freedom of markets, may well be a
belief in one type of God or theology as opposed to another type. All belief, for
Barth, acknowledges some theology featuring its own god or gods as the object
of highest desire and trust. Liberalism is a belief-system – something of a reli-
gion. It emerged from Christianity.

15
Karl Polanyi has famously referred to the ‘Great Transformation’ of the eight-
eenth century, concentrating upon England and France.
16
In the outgoing eco-
nomic system of mercantilism, land had not been a commodity. Rather, it had
been part of social organisation, namely a basis for representation and partici-
pation in public life, in politics, law and the military. Similarly, labour was part
of the general organisation of society, deeply imbued with custom and regulated
by guilds. The state intervened to a great extent in the economies of these soci-
eties. To ‘deregulate’ both labour and land would have been to subordinate
society itself to the laws of the market. Unthinkable as it was prior to this time,
it was to happen. Land and labour were fictitiously ascribed significance as com-
modities – as being subject to unencumbered purchase and sale.
Social historians have termed this eighteenth-century phenomenon a move-
ment from a moral economy to political economy. In the moral economy,
for example, customary noblesse oblige had dictated that grain markets were
to be regulated so that peasants had access before the larger buyers purchased
the grain to resell at a profit.
17
This was a welfare principle preventing, for
example, a bulk purchaser from buying more cheaply than a small purchaser, it
being against religion and humanity to allow such a thing.
18
Reading his reli-
gion and humanity differently, parliamentarian Edmund Burke, despite being
famously conservative, sermonised the case of the free market which would
triumph.
The moment that government appears at market, all the principles of market will
be subverted . . . We, the people, ought to be made sensible, that it is not in break-

ing the laws of commerce, which are the laws of nature, and consequently the laws
of God, that we are to place our hope of softening the Divine displeasure to
remove any calamity under which we suffer ...
19
[italics added]
177 The constricted universalism of the nation-state
113
Matthew 6: 24; Luke 16: 13.
14
See ch. 3, section 3.1, p. 54 above.
115
It has been argued that liberalism lacks positive ideals (instead, its ideals are expressed in
negative terms such as ‘freedom from . . .’) because it has been severed from Christianity: see
Edward Skidelsky, ‘A Liberal Tragedy’, Prospect (January 2002), 14–15.
116
See Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1944).
117
See E. P. Thompson, Customs in Common: Studies in Popular Culture (New York: The New
Press, 1993), chs. 4–5.
118
See C. J. Kenyon in R v Rusby, Peake Add. Cas. 189; (1800) 170 ER 241 at [192], also wishing
that Adam Smith had been present to consider the evidence, at [193].
119
Edmund Burke, cited in Douglas Hay, ‘Moral Economy, Political Economy and Law’ in Adrian
Randall and Andrew Charlesworth (eds.), Moral Economy and Popular Unrest: Crowds,
Conflict and Authority (Hampshire: Macmillan Press Ltd, 2000), p. 103.
God was not now in the nobility which oversaw welfare initiatives; God had
become manifest in Adam Smith’s ‘invisible hand’ which solved the economic
problem by matching supply with demand in the liberalising market. The laws
of commerce were the laws of nature which were the laws of God. The consequent

de-moralisation of the economy represented the institutional separation of pol-
itics from the economy, and the objectification of the market. A telling case of
this new paradigm in England was Steel v Houghton.
20
The majority opinion
held that no person had a right at common law to glean or take scraps from the
master’s field. Although precedent and learned writing (including from William
Blackstone) suggested that the poor did have a right to glean under the Jewish
law of Leviticus 23: 22, those references were found unconvincing given that
such a custom ‘would be injurious to the poor themselves’
21
by the new logic.
The liberal economic transformation was a movement from interior to pur-
portedly more objective exterior references on the Space Axis of the Space–Time
Matrix. Under the mercantilist and medieval precedents, government had acted
in markets for moral (and not so moral) purposes in the economy. Under laissez-
faire liberalism, the economy was left, where possible, to its own devices. In this
Western European transformation led by England, the growth of credit and
speculation required a transformed view of the future, on the Time Axis. People
had to feel comfortable about their collective capacity to pay and perform their
obligations in the future. The new ‘image of a secular and historical future’
appeared, according to which future generations too would be willing to repay
debts including the collective ‘National Debt’.
22
This ideology was universalist
and imperial – ‘the agent of a new world order, a new empire, which would be
based not upon power and plunder, but upon reciprocity’.
23
An evaluation of the
underlying transformation in authority can be conducted by reference to the

French Declaration of the Rights of Man and Citizen and then the Civil Code. The
French juristic vision facilitates an appreciation of the revolutionary legal dimen-
sions of liberalism (not so obviously expressed in the earlier liberalised England).
8.4 The French juristic vision
The French Revolution gave the Western world a profound set of norms.
24
A
sophisticated concept of rights inspired a codification movement and juristic
178 A Wholly Mammon Empire?
120
1 H.B.L. 51; (1788) 126 ER 32.
21
Per Lord Loughborough at [53].
122
J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly
in the Eighteenth Century (Cambridge: Cambridge University Press, 1985), pp. 98–9.
123
Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France
c.1500–c.1800 (New Haven: Yale University Press, 1995), p. 180.
124
The reasons for choosing the French over the American experience are fourfold: geographical
location; the French Declaration was the product of an indigenous political history as
opposed to a colonial reaction; France had the paradigmatic codification experience; and
space constraints. This risks unfairness given the Anglo-American influences on the French:
see Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London:
Penguin, 2003), p. 585, referring to Jellinek’s research.
discourse, linking law to a modified ultimate reality and meaning of life, popu-
larly perceived. The ensuing Declaration of the Rights of Man and Citizen (the
‘French Declaration’) relegated God to the position of deistic creator who had
set in train the physical laws of nature but who had withdrawn to leave humans

in this world with their own laws.
25
Authority was even more demystified and
secularised. The significance of the French Declaration is still being felt in the
constitutional principles of the twentieth-century universal declarations, as will
be seen in chapter 10.
8.4.1 Declaration of the Rights of Man and Citizen
The Enlightenment aim of ‘liberté, egalité et fraternité’ was the motto of the revo-
lutionaries in a time of crippling royal taxes, political oppression, and corpor-
atism (privileges were based upon status, not contract). On 26 August 1789, the
Declaration of the Rights of Man and Citizen, with its remarkable although not
strictly legal authority, was accepted by the representatives of the French people,
constituted as a National Assembly. The secular equivalent of All Souls’ Day
26
had
arrived in France. All were equal in the eyes of God and now the market. Notably,
the feminine was not embraced by the text,
27
although there was a drafting ambi-
guity, for example, in separate articles referring to ‘man’, ‘person’, ‘citizens’ and
‘society’. The outmoded privileges of the ancien régime, together with the divine
right of the monarch, were decapitated, in principle, at the execution of King
Louis XVI in 1793. At his trial, the leading political actors had been called upon
to justify their stances as a matter of political philosophy, in a forum akin to a
modern Western constitutional convention, albeit one with deadly intellect. The
revolutionaries were beneficiaries of the legislative mentality – ‘the exaltation of
positive law and the weakening of all moral restraints on legislative authority’.
28
Humans took responsibility for the text of the Declaration, which set out
the rights of man and citizen in France. It was created ‘under the auspices of the

Supreme Being’, not God by the old name. Individualism was paramount – the
fortune of a nation, no less, depended upon its recognition of the ‘natural,
inalienable and sacred rights of man’, according to the Preamble. Although
aspiring to universality, these were not the principles of a universe of meaning
with an interconnected, preordained plan for everything in it. Rather, they were
principles which universalised the ‘disconnectedness’ of humans from society
and nature.
29
The main principles to emerge from the Declaration, which laid
179 The constricted universalism of the nation-state
125
See John Toland, ‘Christianity Not Mysterious’, in Peter Gay (ed.), Deism: An Anthology
(Princeton: D. van Nostrand Company, Inc., 1968) and that anthology generally.
126
See ch. 5, section 5.2.2, p. 101 above.
127
See generally Sara E. Melzer and Leslie W. Rabine (eds.), Rebel Daughters: Women and the
French Revolution (New York: Oxford University Press, 1992).
128
See Michael Walzer, Regicide and Revolution: Speeches at the Trial of Louis XVI (New York:
Columbia University Press, 1992), p. 42.
129
See generally Thomas D. Barton, ‘Troublesome Connections: The Law and Post-
Enlightenment Culture’ (1998) 47 Emory Law Journal 163–236.
the foundation for the twentieth century emergence of human rights, may be
summarised.
30
Equality ‘Men are born and remain free and equal in rights. Social distinc-
tions may only be founded on public utility’ (article I). Along this line,
public taxation ‘should be apportioned equally among all citizens accord-

ing to their capacity to pay’ (article XIII). Equality is therefore linked with
utility. Utilitarianism as a philosophy is oriented towards exploiting
means to obtain ends. A chief measure of utility is in terms of economic
productivity.
Property ‘The aim of all political association is to preserve the natural and
imprescriptible rights of man’, being ‘liberty, property, and security and
resistance to oppression’ (article II). ‘All citizens . . . have the right’
to approve the purposes, levels and extent of taxation’ (article XIV).
‘Property being an inviolable and sacred right, no one may be deprived of
it except for an obvious requirement of public necessity, certified by law,
and then on condition of a just compensation in advance’ (article XVII).
The goal of politics is directed firmly to earthly purposes of individuals,
and not salvation. Property no longer represents a qualification for polit-
ical representation.
Sovereignty ‘The principle of all sovereignty rests essentially in the nation’
and ‘no body and no individual may exercise authority which does not
emanate from the nation expressly’ (article III). ‘Law is the expression of
the general will . . . the same for all, whether it protects or penalizes’
(article VI). Whatever universalist, non-territorial constitutional princi-
ples may have existed under the church–state combination, those princi-
ples were now to be politically limited to the nation as the natural social
unit.
Liberal Freedom ‘Liberty consists in the ability to do whatever does not
harm another’ (article IV). ‘Law may rightfully prohibit only those actions
which are injurious to society’ (article V). ‘No one may be disturbed for
his opinions, even in religion, provided that manifestation does not
trouble public order’ (article X). ‘Free communication of thought and
opinion is one of the most precious rights of man’ allowing ‘[e]very citizen’
to ‘speak, write, and print freely, on his own responsibility for abuse of this
liberty in cases determined by law’ (article XI). Law serves no articulated

purpose other than to prevent injury, rather than to guide to virtue or
salvation.
Rule of Law ‘Every man [is] presumed innocent until judged guilty’ (article
IX). ‘No man may be indicted, arrested or detained except in cases deter-
mined by law and according to the forms which it has prescribed’ (article
VII). ‘Only strictly necessary punishments may be established by law . . .’
180 A Wholly Mammon Empire?
130
See The Declaration of the Rights of Man and Citizen, reprinted in Georges Lefebvre, The
Coming of the French Revolution (Princeton: Princeton University Press, 1967), p. 221.
and then not by retrospective legislation (article VIII). ‘Society has the
right to hold accountable every public agent of administration’ (article
XV). These rule of law notions have a lineage traceable to the English
experience of Magna Carta in the thirteenth century and the 1689 Bill of
Rights, although in the French Declaration they are clearly articulated in a
modern, populist document.
As with a good deal of law, there is hypocrisy and idealism when the reality
of the social order is compared with the aspirations of a legal text such as the
Declaration of the Rights of Man and Citizen. Advance had nonetheless been
made by codifying the chief political ideals of the Enlightenment philosophers.
Seeds of logic were scattered across transnational social soils – rocky, weedy and
fertile – which could take hold and germinate, in time, as norms which were to
prove authoritative in theory, even if often not in practice. Increasing conver-
gence between these basic human rights ideals and social practice was to follow
in the succeeding centuries in the West, reflected in both the statutes and case
law reasoning which followed in the essentially constitutional areas of property
law, freedom of speech and association, sovereignty and rule of law.
What was the nature of this new constitutional authority?
8.4.2 The rational, contracting, productive individual
The French Declaration was born into a time which was, in a new way, future

orientated on the Time Axis of the Space–Time Matrix. In implementing their
new humanist vision, the French ‘philosophes’ofthe Enlightenment displayed
an obvious learning in the classics, although hostile to most of the achievements
of Christian philosophers and theologians. The Jacobins urgently sought to
achieve the French future even if by resort to terror in the last decade of
eighteenth-century France. The future was to represent a complete break from
the past. Time was being abstracted from custom into rationalised, intellectu-
ally conceived impositions, reflected in the new calendar, which was deci-
malised into weeks of ten days.
31
Similarly, the view of spatial relationships was
radical: old local differences and customs would be obliterated by new jurisdic-
tions for ‘the uniformly correct application of law throughout the nation, sub-
ordinating local prejudice, hierarchy and oppression to nationally guaranteed
ideals’, detracting from the sacredness and personality of everyday society.
32
This universality was, though, qualified. The ambition of this projection of uni-
versality was limited to the territorial boundaries of the French nation. This was
later unleashed further afield by Napoleon, at the same time as he militarily
181 The constricted universalism of the nation-state
131
See Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938]
(Providence and Oxford: Berg, 1993), p. 213; Alfred Cobban, A History of Modern France,
3vols. (Harmondsworth: Penguin, 1963), vol. I, p. 225.
132
Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’ (1999) 97 Michigan Law Review
843–930, 876–7.