State as a Giant with Feet of Clay

← 8 | 9 → Jan Kysela

Outline of the field of research

The image of a giant with feet of clay seems to be an apt metaphor for contemporary states, and even more so for European states. Such states tend to be greater in terms of the scope of government and its work, rather than necessarily in terms of their area or population. Since they are great, they are also costly, however often not very strong, and hence limited in various respects. Clay feet are susceptible to excessive humidity on the one hand and excessive aridity on the other – that is to say, they may often prove to provide insufficient support for the body of the giant. A recumbent giant without the ability to move is a powerless giant. And a powerless state is a useless state. One alternative to a weak giant or failed state - a phenomenon more often found in Africa - is the effective state-giant of T. Hobbes, a bloated version of which was exemplified by the totalitarian systems of the 20th century. An alternative of another kind is the liberal state, also effective, however small or lean; and possibly also the dreamt up state of the conservatives, based on the principle of subsidiarity, acting only as a complement to civil society.

Our fundamental thesis is that the states in which we live are great, however weak. This is not necessarily a very original idea. We will, nevertheless, attempt to summarise the causes and symptoms.

I.Contemporary scepticism about modern state

The 2013 volume of the prestigious Czech legal journal “Právník” opened with a study by P. Holländer, a leading legal philosopher and constitutionalist, and at that time also vice president of the Constitutional Court of the Czech Republic. The study was significantly titled “Soumrak moderního státu” [The twilight of the modern state] and relied primarily on German literature.¹ During 2013 a ← 9 | 10 → number of younger authors responded to this study, either sharing the diagnosis of a “twilight,” but, unlike Holländer (who recently reached his sixties) welcoming the diagnosis, or else rejecting the image portrayed of the modern state as something that never existed. The authors referred primarily to articles in English and French that concerned government rather than the state, with government often being prefaced by adjectives such as “post-sovereign” or “post-national.” The state is associated with repression (by power), and the divide between “us” and “them.” In contrast, preference is given to a somewhat indefinite process involving everybody (inclusiveness) and hearing everybody out (responsiveness). The procedural concept is close to deliberative theory, which has far-reaching political as well as legal implications.

Can we draw any conclusions on that basis? Is there a generational gap (“the good times are gone” versus “joyful jurisprudence in a post-national society” - which was the subtitle of one of the related articles2)? Does German literature contemplate the importance of the state differently? Should there be an attempt to differentiate between descriptive writing (something is happening) and normative writing (it is good / bad that something is happening)? Such an attempt only makes sense however if we don’t believe that a description is also a kind of construction of reality. And when it comes to the end of a period having perceptible substance, the subsequent period is then defined by those of its features that differ from those of the past period (various “post”).

It is not unusual for those raising doubts about the contemporary state to refer back to the Middle Ages, when it was possible to observe many features that are occurring once more. This applies to the personality of law (among other things, multiculturalism), overlapping of jurisdictions (constitutional pluralism), weakening of the state as only one of many social bonds as opposed to the state as hegemonic leader of the domain of the political (pluralistic perspective), and so on.3

N. MacCormick sees a similarity between “then” and “now” when comparing contentions between the jurisdiction of the pope and the emperor, and the ← 10 | 11 → European Communities and their Member States, respectively. Conflicts between particular co-existing orders provoke the question which of the orders will prevail; and that question is relevant from the point of view of those subject to the rules.4 Similarly, in view of the European reality, with supranational structures and various mediators of power, influence and interests, W. Reinhard feels that the modern state has ended and that it will survive only as one of a number of competing entities. He speaks literally of the “new Middle Ages,” which differ from the real Middle Ages in terms of an absence of common concepts of value, but not by plurality of mediating instances.⁵ H. Huber focuses more on intra-state similarities with medieval corporativism in the contemporary polyarchy (the rule of many) created by pluralism.6

By contrast, D. Grimm emphasises differences between the present and the Middle Ages: in the Middle Ages there was a single system of public authority claiming divine consecration, whereas contemporary states are like a sea with islands of “international public authority.” Grimm is of the opinion that analogies with the Middle Ages have nothing to offer to understanding of the present.⁷ However, at the end of another work of his he also agrees to the use of a medieval analogy, in relation to the international community which Grimm views as a number of independent holders of scattered authority.8

It is not important to discuss to what extent the loosening of state is similar to the Middle Ages, or whether it is a novelty. The importance of thinking about the Middle Ages consists primarily in the fact that this reminds us of the period before modern state emerged. This demonstrates that the modern state is just one type of political organisation of society. Before the modern state there was polis, empire, or a personalised organisation of public authority prevailing during most of the Middle Ages. Certainly, something new may also emerge to follow ← 11 | 12 → the modern state. On that note, the above-mentioned study by P. Holländer started with an extensive quotation from the “The Concept of the Political” by C. Schmitt, focusing on the end of the time of states. This may be understood both as an adumbration of the idea of “Grossraum” (a large space) developed by C. Schmitt from the end of the 1930s, and a vision of European integration transcending nation states.9

Schmitt’s perception of a “departure” from states was not wholly unique. In 1920, A. D. Lindsay stated: “The first thing to be said about this doctrine of the independent sovereign state is that political facts have obviously outrun it.”¹⁰ He meant that the development of the international community brought into question the (post-Westphalian) sovereignty of states, both through a series of conferences resulting in the Hague Conventions on the laws of war before the First World War, and the creation of a Permanent Court of International Justice within the League of Nations. Even two decades before Lindsay, G. Jellinek pointed out differences between the sovereign states of the 16th to 18th century which assumed only short-term obligations and a rather long-term limitation of laws and administration in his times. However, because Jellinek was aware of the fact that absolutely unlimited state authority is incompatible with historical experience, he did not assume that the limitation of the state by treaties results in the reduction of state sovereignty.11

← 12 | 13 → The continuing importance of the state is stressed in the contemporary Czech writing of V. Belling, another author with extensive knowledge of German literature.12 Such importance is due to thinking of the legitimacy of public authority as being related to the existence of a political nation with a certain level of homogeneity. In such an entity it is possible to conceive of a general will, general reason or general interest - categories that are associated with T. Hobbes, J.-J. Rousseau and
E. Burke, but also C. Schmitt and H. Heller. Reference to generality indicates the inclusion of the interests of minorities and individuals who were not in favour of a specific decision, who however form part of “us.” In the absence of homogeneity, a feeling of cohesion, equality or uniformity, reaching a majority decision seems difficult in terms of capacity to require dissenters to be loyal and to submit to the decision. This is the point of comments that cite the absence of a European “demos” as a limit on majority decision-making by the bodies of the European Union.

This does not mean that “the people” or “the nation” must necessarily be a natural entity, or an entity defined by blood. It is accepted that nations are social constructs, products of imagination (B. Anderson).¹³ Imagination in this case does not indicate a mere fabrication, but rather it means self-awareness associated with symbols, myths, and fate. This therefore does not exclude the existence of a European “demos” as a modular concept, that is a concept of non-exclusive (telescopic) identity involving the local – regional – national – European identity. It is assumed, however, that, in terms of self-identification among the majority of citizens of the European Union states, the European identity is not very strong, and differs in individual states. If we do not necessarily require in advance a feeling of solidarity, we may of course construct the people through law, or by constitution. This is how the difference between political unity and pre-political multitude (multitudo) is viewed by some political philosophers.¹⁴ It reflects, to a certain extent, development in the United States (US), where American identity as a dominant identity grew gradually once the institutional framework was created. In the 1860s, Lord Chancellor Northington perceived the people as being construed by law,¹⁵ and Aristotle also referred to the artificiality of the people.

← 13 | 14 → Opinions based on the homogeneity of the people may be compared with H. Kelsen and his sceptical attitude toward homogeneity of the people as well as toward the general will: they are only fictions; there is only the multitude (multitudo). Kelsen explains the legitimacy of majority rule through the easiest changes: it is sufficient to reach the agreement of one half plus one member of the decision-making body.16 This assumes, however, a positive attitude toward the change, rather than toward preservation of the status quo.

We are of the opinion that the state is not a necessary arrangement, but that it quite clearly dominates the contemporary world as a form of political organisation of people. After all, there are still nations or national groups that seek to form their own state as a means of realising their needs and interests. Clearly they do not consider the state to be something abandoned on the scrap yard of history. However, not all states are the same. Differences among states show how the modern state changes.¹⁷ The metaphor of networks both in the international environment and within states plays a role in this process.

II.Networks, legal polycentrism, constitutional pluralism

In relation to law, the concept of networks appears in theories of legal polycentrism and constitutional pluralism. It is an attempt to depict a shift in perception of the structure of legal order where either the focal point is lost (basic norm), or the concept of this focal point changes. The focal point is no longer the top of the pyramid (even though this also has always been only a simplified analogy for reality) from which all the lower levels of legal order derive their basis. Significant components of the legal order no longer originate on the territory of the state, therefore their existence (validity) is not derived from this focal point. On the other hand, we could speak about maintaining the focal point of the legal order when we associate with the focal point the effect, rather than the creation, of legal rules formed outside the territory of the state (incorporation of international treaties, integrative authorisation for accession to the European Union, or possibly provisions dealing with the effects of European law). Law ← 14 | 15 → could in such a case be “a command of the sovereign,” even though the sovereign creates this law only to a limited extent. The sovereign however determines what the law is, irrespective of its origin.