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What we need is a metaphysics of Europe's self-constituting. What we do not need is a rationalization of ‘European integration’. Still less should we act as apologists of the current incoherent state of the public realms of Europe, a state of affairs which is an unwilled and irrational outcome of countless coordinated and uncoordinated acts and events – a leviathan of shreds and patches. ‘European Union’ is an Ungeheuer which is an Unganze.
There was Europe – as place, as subjectivity, as potentiality – before there were the social systems (‘states’) which the usual conception of ‘European integration’ presupposes. The true self-constituting of the people and the peoples of Europe requires a new concept (Begriff) of their perennial unity, not merely an explanation of a particular negating of their recent disunity.
Europe – as place, as subjectivity, as potentiality – is not the natural product of organic processes. It is a product of, and in, consciousness. Societies constitute themselves ideally by imagining collectively their identity, their unity and their purpose. The ideal self-constituting of a society is a process of collective thinking, embracing every kind of thinking, theoretical and practical, disinterested and subjective, rational and irrational.
The idea of constitutionalism is the idea that all public power is subject to the law, that all public power is delegated by the law, that the exercise of public power is accountable before the law. The revolutionary transformation of international society includes the insertion of the idea of constitutionalism into its theoretical structure, into the pure and practical theories of international society.
The idea of constitutionalism is a golden thread running through the better history of the human race, a perennial and universal possibility in humanity's social self-constituting, a meta-cultural and meta-temporal theoretical potentiality. It is an idea which has had intimate and essential connections with the perennial and universal phenomenon of religion, allowing us to see religion as a spiritual constitutionalism. It is an idea which has had intimate and essential connections with the idea of social self-constituting, with the intrinsic hegemony of that which, in a society, transcends the self-constituting of individual society-members. It is an idea which has had an intimate and necessary connection with the most abstract conception of law as a metaphysical and meta-personal and meta-social phenomenon.
As the fabric of international society becomes ever more dense and complex, as the cross-frontier socialising of human beings develops in dynamic intensity, the idea of constitutionalism is emerging as a necessary and natural control on the ever-increasing accumulation of communal governmental power, which is gradually reproducing at the global-level phenomena of public power, which are closely analogous to those which have developed over recent centuries at the national level and to which national systems have had to respond with ever more sophisticated systems of social and legal control.
The peculiar human self-consciousness associated with the idea of a new century and the idea of a new millennium encourages us to make judgements about the past and to think about new possibilities.
At the beginning of the twenty-first century, we are exceptionally conscious of the remarkable development of human society through the last ten centuries of frenzied social experience. We are conscious of the power of social systems which have emerged from that experience, especially the systems known as democracy and capitalism. We are conscious also of the paradoxes of our social experience, all the good and all the evil done by and through the social systems which we have made.
We are conscious of our inherent freedom to reconceive and reform the social systems which we have made, and yet we seem also to be the slaves of the systems we have made. Two aspects of our experience offer us the hope of regaining and reusing our freedom – the role of law as the means of ideal-governed social self-constituting and the power of the mind to transcend itself in what we have experienced from time to time as ‘enlightenment’.
Humanity has the need and the possibility of a New Enlightenment. The author's Eunomian project (reconceiving society and law) and his Eutopian project (reconceiving the human mind) are New Enlightenment projects.
The mind's freedom
A new century. A new millennium. A time to look back – and a time to look forward.
The new usage of the words ‘governance’ and ‘civil society’ reflects a new trend in the theory and practice of liberal democracy. It is a trend which is reflected also in the use of the expression ‘corporate governance’ in the theory and practice of capitalism. It is a development which is presented as if it were benign and progressive. It may also be seen as sinister and reactionary.
In a White Paper on European Governance the European Commission has fallen in with such an approach. It is not likely to be useful in resolving the problem of the legitimacy of the institutions of the European Union. The Union's constitutional problem requires a fundamental reconceiving of the nature of the Union as a society and of the Union's relationship to the societies and constitutional systems of the member states.
European Union is a new kind of society with a new kind of constitution which is contained within but transcends the societies and the constitutions of its member states.
As the idea of democracy decays, the ideas of governance and civil society flourish. They are the superficially benign symptoms of a wasting disease which is affecting thinking about democracy at every level. It is a disease which is affecting the self-conceiving of traditional democratic societies and the reconceiving of societies recovering from Soviet-style communism and other morbid forms of absolutism.
It was a tragic day in the history of humanity when the subtle and complex concept of law was crudely split into two – national law and the law between nations. In earlier times, there had been complex and subtle conceptions of the relationship among various forms of law and even of a common essence of all law. But the brutal managers of the new European polities, monarchies and republics of every degree of conservatism and reformism, chose to see their co-existence as intrinsically unsocial and hence governed by rules of more or less enlightened prudence and pragmatism. And the European worldview was made the worldview of all the world through the world-wide expansion of European power and influence.
In the latter part of the twentieth century, the contradiction between an intensely dynamic development of social relations across national frontiers and the archaic forms and rules of intergovernmental international unsociety became absurd and unbearable.
There could have been another concept of international law. There could be another concept of international law. There can be a conception of law which transcends the frontiers between national legal systems, which sees all legal systems as participating in an international legal system, and which allows international law, as so reconceived, to play the wonderfully creative functions of law in the self-constituting of all forms of society from the society of the family to the society of the whole human race, serving the common interest of all-humanity.
Given the role that ideas play within the self-constituting of human beings and human societies, what is the social responsibility and what is the moral responsibility of those whose function in the social division of labour is to think, the social engineers of human consciousness?
They cannot claim that the supposed ideal of intellectual objectivity absolves them from social and moral responsibility, if they claim that intellectual objectivity requires them to treat the actual – actual social and moral concepts, actual social and moral values, actual social and moral behaviour – as inevitable, rational and self-justifying.
Thinking in a social context is necessarily moral action, because it is liable to determine the lives of those whose consciousness is modified by that thinking, that is to say, by ideas acting as social forces. Our general social and responsibility now includes a duty to re-imagine the human world and human reality in the light of new ideas and new ideals.
Theory and Istopia
The human world is humanity's self-made habitat, a mind-world created by the human mind from its own substance. The reality of the human world is a species-specific reality made by human beings for human beings. The history of the human world is the history of the making of human reality, a self-consciousness of the self-creating activity of human consciousness, the mind's mirror of the mind.
The European Union lacks an idea of itself. It is an unimagined community. In seeking to transcend a set of national societies, its potential development and even its survival are threatened if it cannot generate a self-consciousness within the public minds of its constituent societies and in the private minds of the human beings whose social self-constituting it determines.
The process of European integration has been dominated by two of the paradigmatic forms of social self-constituting. It has been the dialectical product of real-world struggles conducted, in particular, by the national governments and by the controllers of the national economies. It has been the product of obsessive traditions of state-centred law and administration. It has been weakly determined by values, purposes and ideals, the forms of a society's ideal self-constituting.
Above all, the European Union has still not been able to resolve and transcend the contradictory categories of democracy and diplomacy by installing an idea of the common interest of all-Europe within and beyond all conceptions of national interest. The value, the purpose and the ideal of common interest is a necessary part of the forming of the idea of a common identity and a common destiny.
We, human beings and human societies, become what we think we are. If we have conflicting ideas of what we are, we become a puzzle to ourselves and to others. If we have no clear idea of what we are, we become what circumstances make us.
The present state of international society is a product of its past states. But who was responsible for making the past of international society? It was a clique of cliques, a conspiracy of one small part of the governing classes of those national societies which used diplomacy and war as the continuation of crude politics by other means.
The externalising of their internal social power somehow managed to override the profound differences of their national social systems, their profoundly different forms and degrees of social development, so that absolutist monarchies and republican city-states, and all intervening social forms, could interact in a game in which they were also the masters of the rules of the game (the so-called law of nations). They even purported to recognise rules about war (the mass murder of human beings and the mass destruction of property).
Still more mysteriously, the game of externalised social power somehow managed to survive revolutionary transformations within some of the national societies, so that an international governmental absolutism continued, unabated and unabashed, while very new social theory and social practice transformed every other aspect of the holding and exercise of public power.
The idea of human society as shared subjectivity is probably older than the idea of human society as political organisation. The nation presumably pre-existed the state. Society as mind politic probably pre-existed society as body politic.
The subjectivity of the nation means that there is a permanent flow of consciousness between individual consciousness and social consciousness, as the private mind of the individual finds an essential part of its identity in participation in the identity of society, and the public mind of society borrows the powerful idea of selfhood to establish its unique collective identity. The individual self of the citizen is mirrored in the selfhood of society, and the self of society is mirrored in the identity of the citizen.
The mutual self-constituting of the individual and society means that individual psychology and social psychology flow into each other. And where there is psychology there is the possibility of pathology, the social manifestation of individual psychopathology and the internalising in the individual of social psychopathology. Symptoms may go as far as the self-destruction of society, as it pursues the defence of its self against other selves, and the self-destruction of the individual, carried to self-sacrifice by loyalty to the greater self.
Humanism and naturalism
Hegel called it ‘a glorious mental dawn’. ‘Never since the sun stood in the firmament and the planets revolved around him had it been perceived that man's existence centres in his head, i.e. in Thought, inspired by which he builds up his world of reality.’
The people and the peoples of the world must find a way to communicate to the holders of public power – the international Hofmafia – their moral outrage at the present state of the human world. It is an outrage made almost unbearable by the complacency of those who operate the international system and the conniving of those who rationalise it, as commentators in public discussion or analysts in an academic context.
Social evil on a national scale is routinely legitimated and enforced through social theory and social practice, including the legal system, of each national society. National systems contrive to make us see social injustice, and socially caused human suffering of every kind, as incidental and pragmatic effects, however much they may violate our most fundamental values and ideals.
For 250 years, a perverted, anti-social, anti-human worldview has allowed the holders of public power to treat social injustice and human suffering on a global scale as if it were beyond human responsibility and beyond the judgement of our most fundamental values and ideals, and the holders of public power have imagined an international legal system which enacts and enforces such a worldview. And the people and the peoples of the world have simply had to acquiesce in and to live with the consequences of this disgraceful perversion of theory and practice.
It would be possible, and it is necessary and urgent, to destroy the old international unsociety and to create the theory and the practice of a true international society, the society of all societies and the society of all human beings, enacting and enforcing a true international law, the legal system of all legal systems, for the survival and prospering of allhumanity.[…]
Making sense of the law. Lawyers and legal philosophy
It is surprising that social philosophers and sociologists feel able to offer explanations of society which do not assign a central place to law. It is surprising that legal philosophers and lawyers can speak about law as if legal phenomena were self-contained and capable of being isolated from social phenomena in general.
Law seems to have a special status among social phenomena by reason of its forms, its rituals, its specialised language, its special rationality even, and its specific social effects. But, on the other hand, law is clearly embedded in the totality of the social process which is its cause, and on which it has a substantial determinative effect, not least in providing the continuing structure of society, its hardware programme.
Legal philosophy is law's own self-philosophising, another closed world, familiar to some lawyers, more or less unknown to general philosophers and social scientists.
The emerging universal legal system. The law of all laws
Law is a universal social phenomenon – or, rather, legal systems seem to be, and to have been, a characteristic feature of social organisation. The ancient debate about whether law is a single generic phenomenon with countless local specific forms has never been resolved. That debate is now being overtaken by new real-world developments.
National legal systems are beginning to merge as a result of forces acting from two directions. On the one hand, there is a dramatic increase in international legislation and collective government, including socially sensitive law (international human rights law), socially transformatory law (international economic law and administration), and socially structural law (international public order law).[…]