Recht, Gerechtigkeit und der Staat: Studien zu Gerechtigkeit Demokratie, Nationalität, nationalen Staaten und supranationalen Staaten aus der Perspektive der Rechtstheorie, der Sozialphilosophie und der Sozialwissenschaften / Law, Justice, and the State. Studies in Justice, Democracy, Natio [1 ed.] 9783428477920, 9783428077922

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Recht, Gerechtigkeit und der Staat Studien zu Gerechtigkeit, Demokratie, Nationalität, nationalen Staaten und supranationalen Staaten aus der Perspektive der Rechtstheorie, der Sozialphilosophie und der Sozialwissenschaften

Law, Justice, and the State Studies in Justice. Democracy, Nationality, National States, and Supra-national States from the Standpoints of Legal Theory, Social Philosophy, and Social Science

IVR

16. Weltkongreß /16th World Congress Reykjavik 1993 Verhandlungen I Proceedings Beirat der Herausgeber I Editorial Board Mitsukuni Yasaki (Japan), Erster Vorsitzender Werner Krawietz (Bundesrepublik Deutchland), Zweiter Vorsitzender Aulis Aarnio (Finnland) I Hideo Aoi (Japan) I Junichi Aomi (Japan) I Thomas D. Campbell (Großbritannien) I Eugene E. Dais (Kanada) I Stig J0rgensen (Dänemark) I Eugene Kamenka (Australien) I Jose Llompart (Japan) I Antonio A. Martino (Italien) I Yoshiharu Matsuura (Japan) I Robert C. L. Moffat (Vereinigte Staaten von Amerika) I Ryuichi Nagao (Japan) I Hiroshi Noguchi (Japan) I Peter G. Sack (Australien) I Setsuko Sato (Japan) I Shigeaki Tanaka (Japan) I Alice Erh-Soon Tay (Australien) I Csaba Varga (Ungarn) IOta Weinherger (Österreich) I Carl P . WeHman (Vereinigte Staaten von Amerika) I Kenneth I. Winston (Vereinigte Staaten von Amerika)

RECHTSTHEORIE Zeitschrift für Logik, Methodenlehre, Kybernetik und Soziologie des Rechts

Beiheft 15

Recht, Gerechtigkeit und der Staat Studien zu Gerechtigkeit, Demokratie, Nationalität, nationalen Staaten und supranationalen Staaten aus der Perspektive der Rechtstheorie, der Sozialphilosophie und der Sozialwissenschaften

Law, J ustice, and the State Studies in Justice, Democracy, Nationality, National States, and Supra-national States from the Standpoints of Legal Theory, Social Philosophy, and Social Science

Herausgegeben von I Edited by Mikael M. Karlsson I Ölafur Pali Jonsson I Eyja Margret Brynjarsdottir Vorwort von I Preface by Mikael M. Karlsson

Duncker & Humblot · Berlin

Die Deutsche Bibliothek- CIP-Einheitsaufnahme Recht, Gerechtigkeit und der Staat : Studien zu Gerechtigkeit, Demokratie, Nationalität, nationalen Staaten und supranationalen Staaten aus der Perspektive der Rechtstheorie, der Sozialphilosophie und der Sozialwissenschaften ; [Reykjavik 1993 ; Verhandlungen) = Law, justice, and the state I hrsg. von Mikael M. Karlsson .. . Vorw. von Mikael M. Karlsson.- Berlin : Duncker und Humblot, 1993 (... Weltkongress I IVR ; 16) (Rechtstheorie : Beiheft ; 15) ISBN 3-428-07792-X NE: Mikael M. Karlsson [Hrsg.]; Karlsson, Mikael M.; PT; International Association for the Philosophy of Law and Social Philosophy: ... Weltkongress; Rechtstheorie 1 Beiheft

This volume has been published with the help of a grant from The Central Bank of leeland and with financial and technical support from the Institute of Philosophy of the University of Iceland. Setting was carried out by the University Press of the University of Iceland. The first 400 copies were printed in leeland by Steind6rsprent-Gutenberg, 105 Reykjavik, by special arrangement with Duncker & Humblot GmbH. Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 1993 Duncker & Humblot GmbH, Berlin Druck: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0720-6933 ISBN 3-428-07792-X

Preface

We live in exciting times - perhaps too exciting. At the focus of the excitement is the national state (a misnomer: I mean here, the modern statestates like Spain, France, Germany, and Italy- which arenot really national states at all; but I shall continue to refer here to these large, heterogeneaus entities as national states). In Europe, the national state, which has been the principallocus of social organization and politicallife since the late Middle Ages, is disintegrating in two directions. On the one hand, it is (perhaps) diffusing into the larger, supra-national assemblage which is optimistically styled the European Community. What form this inchoate union may ultimately take, and what form it would be desirable for it to take, are moot questions. On the other hand, the national state is condensing internally into smaller, nationalistic elements, some of which are ernerging unexpectedly after a long hibernation, like bears in the spring. A somewhat dramatized account of the situation (with which many would disagree) might go like this: The European Community is a vision, which belongs to what I will call the New World. This world is international and futuristic, an entity created by long-distance travel, by television, by mobile capital and an ever-expanding network of world commerce. It is rootless, and on the move, its mother tongue is English as a Second Language, the successful version of Esperanto. It understands people first and foremost as individuals, all inherently similar, secondarily as national citizens (this being primarily a matter of legal and organizational convenience), and lastly as representatives of a tribe or ethnic tradition. Consequently, it conceives of justice as fairness and equality, especially equality of opportunity, and its sentiments in this direction are expressed in terms of universal human rights. The New World is largely a creature of the law, an artifact; indeed, a legal fiction - an agenda which is partially realized in a collection of treaties, laws, regulations, courts, commissions, and organizations. Ontologically, it is suspicious. Ideologically, is a symbol of hope, of future peace, of human rights, the brotherhood of mankind - one world.

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Nationalism belongs to the Old World, as I will call it. This world is ethnic, traditional and quarrelsome. It is a product of social evolution. It stays at home, teils old stories, wears funny clothes and speaks its own languages, some of which you may never even have heard of. It understands people first and foremost as representatives of clans and tribes (and thus as fundamentally dissimilar), secondarily as individuals, and thirdly as national citizens (this being primarily the historical result of the loss of tribal power to some central authority). Consequently, it conceives of justice as helping your friends and harming your enemies, and its sentiments in this direction are expressed in terms of getting what you deserve.

The Old World is a firmly entrenched natural phenomenon. We did not make it, and we cannot wish it away. Ontologically, it is tenacious - almost unbelievably so. Ideologically, it is a symbol of culture, which may be assigned a greater worth than peace or life itself. Culture is taken here tobe an expression or reflection of ethnicity; on this view, the idea of "international culture" is oxymoronic. Despite the fact that the Old World and the New World are in many respects antithetical, Old World nationalists are generally supportive, at least for the time being, of New World agendas - those of the European Community and the United Nations, for example - because the immediate objective of these agendas is the weakening of the national state. In most of Europe, so-called national states were created through the conquest and repression of smaller, more tribal entities, which have continued to be repressed- culturally, linguistically and, in many cases, economically- to the present day. To the frustrated tribes of Europe, the Community may look like a welcome chance to escape the clutches of the state. New World visionaries are not correspondingly tolerant of Old World nationalism. Indeed, insofar as they think of themselves as opponents of the national state (a much less heated issue for them than for nationalists), their opposition is based precisely upon its nationalistic aspects, which are inward-looking and self-interested: potential sources of irrationality, uncooperativeness, and war, of which Europe has surely had enough. But the European Community has so far utterly failed to come to grips with nationalism. It rather seems to live in the pathetic hope that nationalism will simply melt away in the light of increased commerce, job- and educational mobility, multi-lingualism, and the time-conswning pursuit of Paretoimprovement. For example, in the ideology of the Erasmus Scheme- one of the most resoundingly successful efforts of the European Community thus far - there exists the concept of the "European Dimension" . This buzz-word betokens the bizarre idea that if a European university student spends half a

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year or a year studying in another European country, he or she will suddenly stop thinking like a Greek or a Spaniard (not to mention like a Macedonian or a Catalonian) and assume the personality of a European. This is to ignore not only the mundane lesson that may be taught by any leisurely tour araund Italy or France, but the bloody and dramatic lesson of Yugoslavia, where Serbs, Croats, and Bosnians lived in close proximity for two generations, only to go for each other's throats as soon as the occasion offered. It does not matter in the least whether one is for or against nationalism: It will not go away. And a Community that fails to come to grips with the fact, and to find explicit and constructive ways to accommodate it, is dooming itself to failure or destruction. But how can a Community of weakened national states accommodate Old World nationalism? Here is a job for social philosophy, social science and legal theory. For it is a simple fact that we do not understand nationalism very well, either sociologically, anthropologically or psychologically, and have only the vaguest idea how to build a legal or political framework araund it. In general, it has either run rampant or has been brutally repressed, witness the before and after picture presented by the Soviet Union. Presumably, the New Europe is not meant to follow either of thesetime-warn paths. A funda mental question concerns the value-structure of Old World nationalism. Are we convinced of the value of ethnic culture and identity? This is what the Old World nationalist is ready to fight for: the values that can trump material welfare and such abstract values as universal human rights (values which the nationalist of course also recognizes). Is there perhaps a fundamental conflict of value priorities between the Old World and the New World? Or is there actually no such conflict, but a way in which both nationalism and pan-nationalism can be harmoniously reconciled? Even if some generally satisfactory value structure could be arrived at, how is it tobe realized? The law, including constitutionallaw, establishes the basic framework within which common, or commonly recognized, values are tobe pursued. What models do we have for a constitutional structure for the European Community? The first model we have is that of the national state, one form of which is the federal republic and, doubtless, many people assume that if the European Community should ever go sofaras to weld itself into a real political union, the structure ofthat union would be very much like that of present European federal republics- the United States of Europe, as some have called i t with the present Member States as the individual federated states. Here, however, there is room for a lot of careful thought. In the first place, the present Member States are culturally and linguistically diverse to a much

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greater degree than the federated states of Germany, for example, or the North American states and provinces. If we look at North America, in fact, there is one exception, and it is a sobering one: the Province of Quebec, which has not been successfully incorporated into the Canadian union despite more than one hundred years of effort and considerable creativity- so much so that the union is in danger of foundering. The national state, even in the form of a federal republic with partially autonomaus member states, has not proved able to deal with the problern of Old World nationalism. Added to this, the Member States of the European Community have diverse political and legal traditions which have been in place for centuries. The idea that a successful federal union can be formed from these units is not very credible. Even if we imagine away the cultural, political, and historical diversity of the Member States of the Community, a United States of Europe on the model of the United States of America does not appear very plausible, because of the different position of culture as such in European and American society. To the European, the United States is a culture-less nation; or rather, culture is present, but as a kind of imported museum piece. Another way of putting the point would be to say that culture, in the European sense, is not an element of daily life (here, I will be quick to admit, I am depending upon personal experience and not scientific research). To imagine Europeon the social model of the United States is to imagine Europe undergoing a kind of culture death. It is not only Old World nationalists who would rebel at this - for them it would be anathema - but Europeans generally. Europe wants the culture for which the Old World stands, and is therefore probably unable to dispense with nationality, irrational, stubborn and self-centred asthat may be. Well, but perhaps this has little to do with law and politics. Perhaps Europe could mould itself into an American legal framework without taking up daily life, American style. For my part, I doubt it. European political and legal systems incorporate, I believe, a different perspective toward national culture than the American legal system, and the differences make a difference. That is to say, what makes the American system work, after its fashion, in America would not produce a satisfactory framework for political and social life in Europe. At least, there is a serious question to be asked here. Finally, we have another sobering model - a European one - for transnational union: the late, unlamented Soviet Union, which began just as idealistically as the European Community, as a state dedicated to universal justice and the brotherhood of man. From the very beginning, the Soviet Union proved unable to deal with Old World nationalism by any means other than brutality and repression, the traditional tool kit of the national state. Small

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wonder that nationalism ran amok almost from the moment the repression ended. We must guard against building up another Soviet Union in the West - some people think that there is a tendency for Europe to move precisely in that direction, since its main political and legal model is the national state. Others think that free-market economics are proof against another nightmare version of the national state writ large (George Orwell was not one of them). Perhaps there are other models to be considered, such as Swiss federalism: diluted central government with intensely localized control of a wide range of political, social and organizational matters. Switzerland has managed to harmonize two religions and four languages, a remarkable accomplishment which is no doubt due in large part to its unusual constitutional and legal system. But reconstructing Europe on the Swiss model would mean the micro-dissection of the existing Member States, which is presently not on the agenda. And there is also the question whether Swiss-style federalism could be made to work on a scale as large as that of Europe in its entirety Switzerland as a super-power- or whether the actual Switzerland functions as well as it does partly because of its small size. The Swiss have actually studied this, by the way, thereby setting an example to be followed by anyone who pretends to be serious about the future of Europe. Lurking in the background here is a much wider problem: the problern of the minority voice. Who speaks for those who by reason of economic, social or political disadvantage have difficulty in getting their problems and their values recognized by powerful decision-making bodies? Who speaks for children, for prisoners, for racial minorities, for women? How will the Icelandic nation- a nation of only 250,000 souls- be able to make its special needs understood, if it should ever join the European Community? The Danes got the ear of the Community, for a few months at least, by voting "no" on the Maastricht Treaty. But what of those who are never even asked to say "yes" or "no"? The problern of the minority voice is an old problem, but one that has not been adequately dealt with. Democracy, in the forms in which it has been institutionalized, has not insured humane prison conditions, equality of the sexes, satisfactory child protection, adequate legal representation, or minority rights; indeed, democracy is often advanced as an excuse for ignoring these issues. The problern of getting a fair and effective hearing for the small, the weak, the poor, and the disadvantaged stilllies before us. Suchare some of the questions of law, justice and the state toward which the studies in this volume were meant to be directed. They are among the vital questions of our time, and not only in Europe. For too many decades, now, discussions in legal and political theory- insofar as they have tried to deal with actual, rather than historical issues - have been wrapped up in

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questions of East and West, and this is strongly reflected in the discussions which have gone on within the International Association for Philosophy of Law and Social Philosophy (IVR). It is time to change our emphasis indeed, it is pressing that we do so. Wehave to intensify the re-examination the concepts of justice and democracy and the ideas about law and politics, economy and the state, which have taken on the cast of slogans in the rhetorical atmosphere of the post-war period. We need to forge new ideologies, for the present as weil as for the future, and for the West as weil as for the East. It will hardly do any more to go on playing off Adam Smith against Karl Marx, unless we want to keep on living in the fitful dream-world of the nineteenth century. As may be seen from the present collection of studies (all papers delivered at the 16th IVR World Congress in Reykjavik) many legal theorists, social philosophers and social scientists are alive to this situation. Excellent work is being done on the topics of nationality and nationalism, the state, the evolution of democracy, competing conceptions of justice, and ideologies and strategies for the future. Despite this, there may still be detected a certain fascination with the shadows of the past. The recent past is, it must be admitted, something to be taken stock of; for few of us of any persuasion are anxious to slide backwards, and to avoid doing so, it is instructive to examine our mistakes. In addition to addressing issues pertaining especiaily to Europe, scholars and theorists must turn more seriously toward issues pertaining to other parts of the world, particularly the Third World. It is not only up to us- to organizations like the IVR- tobring Third World topics more forcefully into our repertoire. It is also up to us to help to develop theory and scholarship in the Third World itself. The IVR must make the same degree of effort tobring Third-World scholars to IVR Congresses that it has formerly made to bring scholars from Eastern Europe. In most cases, the studies published here deal with issues which are actual, pressing, and subject to rapid change. Therefore, this volume has a different character than many of the past volumes of IVR congress proceedings. Taken as a whole, it is, so to speak, somewhat more journalistic than many previous volumes, even if the journalism is of a rather different order than what one finds in the newspapers. Papers from the 1987 Kobe Congress appeared in a special number of Rechtstheorie in 1991, four years after the Congress. To do the same with many of the papers in this volume would be simply to be publishing old news. (Imagine, for comparison, a collection of papers written in August, 1989 on the theme of "The Future of Eastern Europe"- and published in 1993!) Therefore, the editors have pressed the authors and themselves to make it possible to produce this volume in time to

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deliver it to participants at the congress for which the papers were writtena tough programme for all concerned. This entails that the volume will have many shortcomings, despite all of our efforts; hopefully, thesewill be overweighed by the timeliness of the studies included herein.

Mikael M. Karlsson

I would like to thank my fellow editors, Ölafur Pall J6nsson and Eyja Margret Brynjarsd6ttir, for their exemplary efforts in helping me to produce this volume. In addition, the editors would like to thank Arni Finnsson, who did the page-setting, Barbara B. Nelson and Skia, who did most of the proofreading and gave editorial advice, Oddny Sverrisd6ttir, who proof-read material in German, and Einar Logi Vignisson and Armann Halld6rsson, who helped with the final preparation of the volume for the printers. We also thank those institutions which provided financial and technical assistance: the Central Bank of Iceland, the Institute of Philosophy of the University of Iceland, the University Press of the University of Iceland, and Duncker & Humblot, GmbH.

Contents

Studies on Law, Justice, and the State

Attracta Ingram The Empire Strikes Back: Liberal Solidarity in a Europe des Patries 0

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Maria Boruck-Arctowa Unity and Diversity: The Dilemma of the European Community and National Identity

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Ake Frändberg On the Relation Between Law and State

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Zenon Bankowski Don't Think About it: Legalism and Legality

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Roberto Vernengo Law and Morality: An Analysis of Their Possible Relations

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Anne deMoor Contract, Justice and Diversity in the Remaking of Europe Alexander Bröstl Troubles with Law, Justice and Nationalism Joxerramon Bengoetxea L'etat, c'est fini?

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Anita Allen Does a Child Have a Right to a Certain Identity? Letizia Gianformaggio Identity, Equality, Similarity and the Law

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K. Bo Agrawal

The Rule of Law and the Principles of the Welfare State

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Contents

Bong-Humm Paik The Rights of Aliens and Human Rights ................................................ 145 Jon Elster The Empirical Study of Justice .................................................... .......... 157 Pdll S. Ardal Revenge and Punishment: Common Morality and the Law Re-visited, with a Lesson from the Icelandic Sagas ............................. 169 I. Law and the State: Issues Conceming Democracy, Justice, and the State

Eerik Lagerspetz Democracy and Paradox ......................................................................... 181 Rex Martin Basic Rights .............................................................................................. 191 Tecla Mazzarese Judicial Implementation of Fundamental Rights: Three Sorts of Problem ............................................................................ 203 Jeffrie G. Murphy Human Decency and the Limitations of Kantianism .................... ....... 215 James Sterba Conceptions of Justice: A Practical Reconciliation ................... ........... 223 ß. Nationality, Law, and the State

Lars D. Eriksson The Disintegration of the Nation-State ................................................. 239 Denise Reaume Moraland Legal Responses to the Multi-cultural, Multi-ethnic State ...................................................................... .............. 251 Brian Slattery Transeending Community: Some Thoughts on Havel and Bergson .... 265 Michel Troper Some Thoughts on the Status of the General Theory of the State ...... 277

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111. Law, Justice, and the Re-making of Europe

Jes Bjarup If you Can't Join Them, Beat Them: Some Jurisprudential Comments on Denmark's Position on the Maastricht Treaty .... .......... 291 Helen Endre Post-structuralist Values in the Post-unification Era: Colonisation or Synthesis? ............ .................. ............................. ......... .. 303 Valentin Petev A New Concept of Law for Eastern Europe .... ...................................... 317 Marek Zirk-Sadowski The Instrumentalization of Law and Legal Culture in Eastern European Countries .................................................... ............... 327 IV. Law, Justice, and Disproportionalities

Wesley Cragg Philosophy of Punishment and the Problem of Disparities ................. 339

Y. R. Haragopal Reddy Prison Justice and the Rights of Prisoners ............................................ 351 Sandra Marshall Punishing Women: Equal or Different? .................................................. 365 UmaNarayan 'Standard Persons' and 'Non-standard' Vulnerabilities: The Legal Proteebon of Non-standard Interests .................................. 377 Yadlapalli Vishnupriya The Legal Rights of Children .................................................................. 387 SigriCiur Porgeirsd6ttir Freedom, Community and the Family: Feminist Critique, Communitarianism and Liberalism ............................................ ........... 399

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V. Social Philosophy and Social Sciences: Approaches to Law, Justice, and the State

J6hann Pall Arnason Images of Society and Visions of Democracy ........................................ 411 Magens Blegvad What is Social Philosophy? ................... .. ................................................ 421 Hubert Rottleuthner The Conformity oftheLegal Staff ......................................................... 441 Jan van Dunne Montesquieu Revisited: The Balance of Power of Legislature and Judiciary in aNational-International Context .............................. 451

Studies on Law, Justice, and the State

THE EMPIRE STRIKES BACK LIBERAL SOLIDARITY IN A EUROPE DES PATRIES Attracta Ingram, Dublin In this paper I consider an old problern about political jurisdiction which I shall dub Empire v. City. The Empire idea is used to identify cosmopolitan liberalism and the defence of trans-national or multi-cultural jurisdictions. Citystands for civic republicanism and the defence of local self-government and nationalism. The principle of Empire is individual fulfilment and mutual respect between persons. The City principle is community and solidarity with one's own.

Should political units aspire to be more like the City than the Empire? I discuss this question in the context of a tension in our thinking about European political union between the claims of Jocal, regional, and national identities and those that would inevitably accompany a new European political identity. There is no agreement on the basis for citizen identification with a federal union, and consequently no account of what would move people of different nationalities to undertake military and taxation burdens for the sake of members with different identities. Traditional justifications of imperial rule often claimed that it improved local justice and even liberty (Skinner 1978, p. 17). Whatever the historical truth of these claims, some version of them is central to the willingness of people to identify with empire values. Citizens of member states of the European Community (EC) frequently appeal to the European Court of Justice to settle questions of individual rights against their own national states. Such appeals to higher authority reveal a liberal cosmopolitanism with respect to issues of fundamental rights which acts as a critical check on the practices of national governments and forces like racism and sexism which often accompany cultural and national chauvinism. At the same time, the principle of subsidiarity is widely interpreted as conferring powers on regionalandnational communities to uphold distinctive communal mores and norms for the sake of their cultural particularity, their distinctive identities, their heritages, and their boundaries. For all that EC institutions of justice protect certain basic individualliberties it is as members of participating nations that citizens have standing in

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the EC. The nation-state as collective agent is the fundamental unit of recognition and national and regional communities have strong interests in preserving their own cultural identities. Moreover, these states come together recognizing that each as a fact of history has built internalloyalties to construct its communal solidarity. Thus established national particularities are part of the given out of which a federal political union must be built. Of course, national particularities are already shot through with Empire values. As signatories to the European Convention on Human Rights, andin most national constitutional arrangements, the nation-states of the EC subscribe to Empire values as part of their understanding of themselves as living sources of innovation and growth, criticism and reconstruction. So they appear to have some common basis for identification and integration into a European political community that is committed to both Empire and City principles. However, it is not clear how these apparently conflicting perspectives are to be reconciled. To the extent that the political community is enlarged and the nation state is de-centred as focus of allegiance the claims of localism are diminished in favour of more abstract ideals, such as representative democracy, the rule of law, freedom and equality, civility. It is widely thought that liberal cosmopolitanism is destructive of, or anyway not sufficiently sensitive to, the value of moraland cultural particularity, and that liberal insistence on the priority of individual rights over calls of social duty undermines political allegiance or solidarity and even democracy itself. These assumptions underlie at least some of the significant worries about movement to a political union of EC states, an Empire construct that seems doomed for lack of the common non-political cultural ties that sustain political allegiance on the City analysis. I shall criticize these assumptions.

My strategy in this paper is to outline the main features of the liberal account of political community and some important arguments from its communitarian critics. I argue that the communitarian demand that webe true to our traditions requires rather than counts against liberal politics. I also indicate how liberalism is compatible with the defence of cultural rights, one basis, in a federal union, for City jurisdiction. Finally, I argue that a justicebased liberal solidarity is an attractive and feasible vision of EC political union. I. Liberal Solidarity and lts Critics

When the coercive regulation of human conduct is defended by reasons of community- typically appeals to a community's tradition or history, or its linguistic, religious or ethnic identity- a characteristic liberal response is to

The Empire Strikes Back

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ask whether the reasons advanced embody just and desirable standards for the treatment of citizens as free and equal persons. This response is connected with liberal insistence that coercively backed social arrangements be intelligible and defensible to every last citizen. The liberallegal order is voluntary in the sense of requiring legal arrangements to conform to standards of acceptability to free and equal persons. Thesestandardsare given in its theory of justice which distributes rights, liberties, and opportunities, in the light of what all could agree as persans moved by interests in giving justice to others and identifying and pursuing their own conceptions of a worthwhile life. Thus for the liberal the continuity of individual and collective identity is assured through a matehing of the interest in justice of individuals as moral persans with the character of their society. John Rawls identifies this aspect of the liberal position: [I]n the well-ordered society of justice ... citizens share a common aim ... of political justice, that is the aim of ensuring that political and social institutions are just, and of giving justice to persons generally, as what citizens need for themselves and want for one another. It is not true, then, that on a liberal view citizens have no fundamental common aims. Nor is it true that the aim of political justice is not an important part of their identity (Rawls 1987, p. 10, n . 17).

Rawls is here stating an ideal of integration of individual personality and political society that flourishes within a distinctively liberal order. The crucial pointisthat identification isamatter of sharing a concern for justice to others no less than to oneself. This concern is shown in the way the basic social structure is organised and maintained by a society in its collective political acts. In 'Liberal Community' Ronald Dworkin has developed an account of what this means for the liberal. The collective life of a political community: includes its official political acts: legislation, adjudication, enforcement, and the other executive functions of government. An integrated citizen will count his community's success or failure in these formal political acts as resonating in his own life, as improving or diminishing it. On the liberal view nothing more should be added (Dworkin 1989, p. 500).

Although theseformal political acts exhaust the collective life of a political body Dworkin agrees with Rawls that their substantive point and justification is justice, that is, their success in treating everyone with equal concern (Ibid, p. 501). Several features of this approach are worth emphasizing. The first is that liberal solidarity is built on something that citizens share despite their many differences, namely, an overriding interest in belanging to a society that gives them all an equal place in its concern and respect. The second isthat the solidarity is not instrumental to individual interests. The justice of community so matters to individuals that they think of their own lives as diminished by social injustice, however well their own lives are going otherwise. Finally, the

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liberal approach is republican in a liberal mode. It distinguishes private interests, the interests of individuals in lives of their own choosing, from their public or political interest in maintaining just institutions. Privateinterests are subordinated to the demands of justice while being taken into account in the formulation of what justice requires. This approach has excited sharp criticism, mainly from writers associated with communitarianism. Michael Sandel has argued that the liberal political order, which he calls the procedural republic, undermines democracy and the social conditions on which it depends. [L]iberty in the procedural republic, is defined, in opposition to democracy, as an individual's guarantee agairrst what the majority might will. I am free insofar as I am the bearer of rights, where rights are trumps .... In so far as I have a right, whether to free speech or a minimum income, its provisions cannot be left to the vagaries of local preferences but must be assured at the most comprehensive level of political association.... As rights and entitlements expand, politics is therefore displaced from smaller forms of association and relocated at the mostuniversal form ... the na tion. And even as politics flows to the na tion, power shifts from the democratic institutions (such as legislatures and political parties) and towards institutions designed to be insulated from democratic pressures, and hence better equipped to dispense and defend individual rights (notably the judiciary and bureaucracy) (Sandell992, p. 27).

Charles Taylor, agreeing with Sandel's analysis, points to the problern of citizen identification and allegiance in the procedural republic. Taylor claims that the model of citizen capacity that belongs to the procedural r epublic focuses mainly on individual rights and equal treatment. To retrieve theseindividual aims most of us do not have to participate in politics at all, provided we can wield credible threats to those who are so engaged to bend them to our purposes. The trouble with this model of citizen agency isthat it undermines respect for institutions as a shared defence of dignity. "If I win my way by manipulating the common institutions, how can I see them as r eflecting a purpose common to me and those who participate in those institutions?" (Taylor 1991, p . 179). While Taylor sees patriotic identification as possible within a liberal society which is more participatory and less rights-based, other critics make no such concession. They claim that liberalism rests on a misconception with respect to its idea of assessing particular group identities against abstract standards of individual freedom, equality, and the like. There is no Arehirneclean point from which liberals can employ abstract principles to evaluate the concrete moral norms of a given society. Nor can a liberal society held tagether by abstract principles like the rule of law and democratic equality function as a patria. If these ideals were the basis of allegiance, their subscribers would be willing to serve them wherever they were found and to subordinate to them particular claims of kin and country.

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Alasdair Maclntyre argues for this in defending the claim that patriotism may sometimes be a moral virtue. In Maclntyre's view the patriot bears allegiance to his or her country, not because it ernborlies some independently desirable values and ideals, but because it is his or her country. [P]atriotism requires me to exhibit peculiar devotion to my nation and you t o yours.

It requires me to regard such contingent social facts as where I was born and what

government ruled over that place at that time, who my parents were, who my greatgreat-grandparents were and so on, as deciding forme the question of what virtuous action is - at least insofar as it is the virtue of patriotism which is in question (Maclntyre 1984, p. 5).

Maclntyre's point is that identification with one's own country is built into the inevitably situated character of our lives, something that the liberal regards as arbitrary from a moral point of view. Our identities and commitments are not the products of independent selves and choices. I am someone's sonor daughter, someone else's cousin or uncle; I am a citizen of this ortha t city, a member of this orthat guild or profession; I belong to this clan, that tribe, this nation .... As such, I inherit from the past of my family, my city, my tribe, my nation, a var iety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point. This is in part what gives my life its own moral particularity (Maclntyre 1981, p. 220).

According to this view, there is no purchase in human nature or other universalist notions such as autonomy for the abstract principles and institutions beloved by liberals. There is only the nature and interests of people as constituted by the concrete social settings in which they begin and continue their own life stories. Theseare just too particular to provide wide-ranging solidarities. Hence, political allegiance is a particular relationship between members of a narrow group with a common formation. Somewhat similar ideas animate Roger Scruton's rejection of the structural political unity offered by liberals as incapable of generating its own loyalty. The liberal state has no home,_and generates no loyalty towards generations which, beingeither dead or unborn, form no part of the contract . ... Fora liberal state tobe secure, the citizens must understand the national interest as something other than the interest of the state. Only the first can evoke in them the sacrificial spirit upon which the second depends (Scruton 1990, p. 75).

Scruton argues that politicalloyalty must be founded on historical attachments and prescriptive obligations, and governments in the empirical world of politics must concern themselves with the "messy particularities of the flesh" (Ibid, p. 84). As for the Empire interestin multi-cultural jurisdiction, Scruton warns that the lessons of history show that empires end in ruins because they cannot sustain the unifying nationalloyalty a state needs where other internal culturally bounded loyalties compete with it (Ibid, p. 81). These critics of liberalism are unimpressed by the more communitarian way of thinking that Dworkin and other liberals now think welfare liberalism

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requires. The critics arenot satisfied with abstract propositions that free and equal persans regard themselves as having certain rights and that their communal politicallife is recognized and exhausted in the formal political acts of a procedural republic. They argue that liberal community is too meagre to sustain citizen identification, and that it misunderstands the basis of allegiance in constitutive communities. They argue also that to take community seriously is to acknowledge that reasons of community have superior force to reasons of individual rights or liberties, that community is kept in being by the force of prescriptive obligations, ones that we never undertook, and that these obligations are evident in the particular claims on the allegiance of members a community makes. This is their basis for saying that non-political communal bonds are the basis of the unity of the state.

II. How We Think Around Here Social meanings and social prescription

I shall begin my consideration of this view that solidarity is a particular relationship between members of distinct cultures or nations by noting a crucial point of contact between most participants in the Empire v . City dispute. This is an anti-foundationalist stance to questions of the validity of beliefs and values. Validity is notamatter of correspondence with a pre-structured realm of meaning and value. Instead it is a matter of social agreement in beliefs continually renegotiated to deal with conflicts of experience and testimony, and disputes about interpretation. The social aspect of this thesis is that basic categories of thought, principles, standards and procedures, are culturally mediated and embedded in social practice. Liberals emphasize the 'constructivist' implications of anti-foundationalism in moraland political theory. In simple terms, just as we frame for purposes of science or common sense certain images of the world, so also we frame moral images of ourselves and our sociallife. These organize our moral experience and social relationships and motivate our pursuit of the lives we wish to have. While liberals are pluralists about the value of different ways of life, they rest liberal tolerance on a conception of individual autonomy which they think animates the picture of humans as culture-producing creatures whose creations deserve respect. City communitarians are generally hostile to liberal autonomy for its alleged incompatibility with the communal conditions of any individuality we can have. In their descriptions of our social situations they draw attention to the ways meanings are found by us as members of different historical communities or traditions. And they make much of the prescriptive character of

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those conventions, traditions, and expectations that a community develops in the course of its history. The prescriptive character is that feature of received understandings of how things are done whereby they arenormative for our conduct as members of a particular community without regard to our consent, or promises, or voluntary undertakings of any kind. Obligations to community are found and not made. Communal identification arises and is maintained by the way a community locks its members in by constituting their identities according to its own traditions. People who share a history and a culture are like each other, have similar sentiments and beliefs, and recognize each other as due the benefits and burdens of cultural membership. These recognitions and loyalties are bounded. This community is the object ofthisset of attachments. That community is the object of a different set of attachments, and so on. It follows that the idea of loyalty to Empire is impossible. Loyalties are just too particular to sustain political attachments wider than a nation state, at best. The question I want to explore is whether the particularity of communal attachments supports the claim to cultural or moral homogeneity that is the rationale for insisting on narrow political communities. I argue that it does not. Our attachments to political community go with a cultural practice of critical reflection on received understandings and obligations which inevitably yields communities in which change, diversity, and controversy are normal. Any political theory based on the particularity of our traditions must take account of that practice.

Reflection and individual respect

However well established a tradition, its distribution of burdens and benefits on members may always b e challenged. This possibility must be acknowledged in its attitude to how its communal norms are held. As standards for the assessment of conduct they must be possible objects of critical reflection and not merely the unthinking patterns of behaviour we describe as habits and prejudices. As H .L .A. Hart pointed out with respect to rules, something's being a standard for the regulation of society as a whole involves demands for conformity and social criticism of conduct which breaches the standard. Hart called this the internal aspect of rules. And he saw it as present when there is a critical reflective attitude to certain patterns of behaviour as a common standard in terms of which criticism and demands for conformity are acknowledged as justified (Hart 1961 , p. 56). The critical reflective attitude does not r est with identification of the norms of the day and the practices of justification they embody. If we take our tradition ser iously, justification of our beliefs and values is not confined to recitation of what we

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think around here but includes critical examination of prevailing beliefs and values in the attempt to formulate what is really right. The extension of the critical reflective attitude to conventional meanings is a characteristic of those differentiated cultures which, in the West at least, draw on a common intellectual tradition which is much more abstract than ethnocentric meanings and fundamental to the way our politics has developed. This is a tradition of debate about conventional views about justice, the good life, and much else. The fact that we find ourselves immersed in social traditions by virtue of the accidents of birth does not, for us, preclude the question of whether their values and institutional arrangements are the right ones. The practice of dispute is part of a wider practice of justification. For a particular community within the Western heritage cannot insist on certain standards without implicitly claiming that these are the best they can be for the community, that is, true or warranted. Such truth claims are contextually conditioned and fallible, but they are claims to unconditional truth. Sometimes those claims are shown in the way a community tries to hold on to certain norms as beyond serious question. We do not kill writers or social critics in our society. This is not even an issue we think worth debating. The relevant social understanding isthat we try to reconcile by reason rather than force. Thus we attack the argwnents of critics not their persons. The claim is also present in the way a community tries to make its system of beliefs and values cohere, so that the credibility of one supports and, in turn, is supported by, all the rest. This concern for overallfit and coherence is a manifestation of the critical reflective attitude operating on the norms themselves pressing for such revisions and abandoning as necessary for conformity with the system as a whole. The norms which the communitarian insists are distinctive of our society must have Hart's internal aspect as a matter of their logic. So they at least presuppose that there is a practice of justification, call it narrow justification, which gives reasons for assessing certain conduct as deviant and other as right, by appeal to the norm. But we also have a practice of wide justification in which norms themselves may be challenged in further acts of critical reflection. This is the basis for a distinctive feature of our culture, that different, perhaps incommensurable judgments of what is worthwhile in life may be the result of our debates about 'final' ends. Reconciliation by reason is not guaranteed because our practice of wide justification presupposes a certain view of individuals which leaves space for the disagreements about the good which in fact characterize modern democratic societies. The role of critical reflection in warranting and contesting reasons for social norms is tied to the capacities of critical agents to weigh up, revise,

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sort, criticize, judge, accept, reject, and act. Without these capacities there could be no practice of justification between us. We would be mere carriers of prevailing social and cultural meanings, change in which had to be explained in some other way. What is of signal importance hereisthat this notion of individual authoritative capacities to assess cultural forms leaves the final judgment to the individual. An important historical source for this is the idea, again a social understanding, first significant in religious belief, that belief about fundamental matters like religion and morality should have an inner connection with the free rational assent of the subject. Here there is a social meaning of religion and morality according to which it is something that should be lived from one's own conviction, not taken uncritically from others. The point I want to emphasize is that justification involves taking a certain social attitude to people as addressees of justification. This is an attitude of respect for them as dialogic partners in the practice of articulating, understanding, defending and criticizing community norms. Members are thus regarded as having a claim on their community that its inherited debts and traditionalloyalties be defensible to them. That is why communities should make space for a range of liberties connected with criticism and the possibility of irreconcilable differences. Any adequate account of our practices of criticism and justification has, then, to attend not only to the socially situated character of the activity of making claims about the rightness of social norms and offering defences of them but also to the background understanding of persons involved. While we have no standards of truth or rightness independent of particular languages and practices, our criticism of the standards we inherit and the possibility of our imagining things being different, is tied to the ability of individuals to assess received reasons, to reject them, and to live in accordance with their own reasonably held convictions. It is just this that fades from view in the communitarian emphasis on cultural particularity. If this is right, political solidarity within our tradition cannot have a basis in a shared ideal of the good life, for there are many different ideals. Instead, what can be shared is a vision of what is right, that is, a view of appropriate political r elationships between people who are able to think for themselves and conduct their own lives by their own lights.

We must be careful not to let this point occlude the situatedness in real historical communities of the social actors whose critical reflective powers are valorized in the liberal picture. It is as members of groups, nations, families, classes and many other social institutions and networks that we are in any positiontothink about shaping our individual and collective worlds. For many of us the context of already formed national identities is the site of any thought we can have about the character of a collective political self and our

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role in it. We believe we have historical national ties and we accept that we have special responsibilities to co-nationals. Can these special responsibilities be sustained under a liberal order? Specifically, does such an order sustain the identification with political society necessary for willing acceptance by citizens of the burdens of military service and redistribution in the name of justice? Taylor believes that liberal patriotism is empirically non-viable. Citizens whose experience of politics is mainly a matter of insisting on their rights through the courts, trying to pressurise decision-makers to take account of them, and generally manipulating the system find themselves in an 'alien political universe' and cannot be expected to identify with it (Taylor 1989, p. 179). By implication, such citizens will not reliably defend the community in time of war or contribute to the upkeep of the less well-off in the course of normal politics. Taylor's argwnent is that people will not respect the claims of their particular political community unless they share a politics of the common good. By this he means that citizens must regard a common form of life "as a supremely important good, so that its continuance and flourishing matters to the citizen for its own sake and not just instrumentally to their several individual goods or as the sum total of theseindividual goods" (Taylor 1986, p. 213). But we have seen above that Rawls and Dworkin also affirm that claim. Taylor's distinctive argument turns on a particular conception of the good life and hence of the common good. This is the civic humanist view of freedom as participation in self-rule. Participation is seen as essential to a life of dignity on the grounds that it is the privileged site of the best life for human beings. This outlook makes for a viable patriotism because participation gives people a ground of identification with their common historical institutions both as expressing their will, at least when they are successful in helping to form a ruling consensus, and as their common defence of citizen freedom and dignity (Taylor 1989, p . 179). By implication, citizens who may be called on to defend their political community in battle or who are required to provide welfare for other members are imbued with sufficient social solidarity to make the sacrifices demanded of them. Taylor thinks that proceduralliberalism, by marginalizing political participation, makes the survival of patriotic identification questionable. By way of response to Taylor's skepticism, it must be said, first, that the gap between liberal theory and practice does not show that the theory is nonviable, only that our current political practices, insofar as Taylor's description of them is accurate, need to be reformed. This may well require much more political participation than liberal politics currently displays. Liberal theory does not deny the need for participation in defence of the institutions of a just liberal order, nor does it view participation in a merely instrumental

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way as a cost that must be borne for the sake of the free pursuit of private goods. However, insofar as it advocates participation, its grounds are the need to strengthen and defend liberal justice rather than taking politics as the locus of all human flourishing. And it does not require everyone to participate except when the constitutional order is in crisis. Participation is not then a common good which holds people in solidarity. Instead, there is a more substantive notion at work- the common aim of justice. A society ordered by justice is not bereft of bases of patriotic identification. Fora start each citizen has a concern with justice which is both personal and political and has a moral motive for cherishing and sustaining the institutions that reflect that concern. Second, each citizen has the strongest possible reason to endorse her particular historical community, the 'we' who together developed, and now maintain, the principles and institutions necessary for a shared life that is just. Finally, the well-ordered liberal society is tested by the principle of public justifiability to all its members thus removing any reasonable grounds of disaffection for the polis. Viewed abstractly, this response is on all fours with Taylor's account in that it rests allegiance on subscription to a particular conception of political community. The crucial difference, for the question of empirical feasibility, is that the liberal view aims, as Taylor's view does not, to be faithful to ideas about moral heterogeneity and the nature of a politics of difference latent in the culture we have. We do not have a single view of the good life, nor can we have one, except by repeating the exclusions from citizenship that marked the attempts at a common good of earlier communities.

m. Community and Culture I have yet to address the aspect of communal particularity or difference which is also a feature of the political tradition I am defending. This aspect is given prominence in the claim of the old city states of Europe to self-government, in the later claim of nationalists of the right of peoples to self-determination, in the neo-republican claim that communities must be able to uphold their distinctive identities. I do not want to go into the many and varied reasons offered as support for self-rule as a community right- freedom from repression and exploitation, for the realization of greatness and wealth, for protection and development of a distinctive cultural identity, for communal identification and solidarity, have been commonly offered grounds. The point of interest is that a tradition which insists on respect for the critical reflective capacities of people as moral agents is committed to respecting their interest in joining with significant others to govern themselves and develop their own forms of culturallife. Many modern democratic societies

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have built their patriotisms on national cultures, often centred in a language or a combination of shared history, language, religion, and the like. So we are deeply committed to a principle entitling a community to pursue its own way of life. At the same time we think of this principle as having to combine, somehow, with the principle of respect for persans as rightly in charge of their own lives. The problern is, how do we reconcile these two principles? One answer tothat question isthat the community principle has priority when the existence or identity of a community is at stake. This was the answer given by Lord Patrick Devlin in the debate about homosexuallaw reform in Britain (Devlin 1965). It is the answer implicit in Taylor's discussion of the necessities that drive Quebec. A society like Quebec cannot but be dedicated to the defense and promotion of French culture and language, even if this involves some restrictions on individual freedoms. It cannot make cultural-linguistic orientation a matter of indifference. A government that could ignore this requirement would either not be responding to the majority will, or would reflect a society so deeply demoralized as to be close to dissolution as a viable pole of patriotic allegiance (Taylor 1989, p. 182). A similar claim might be made about various regional and national identities in Europe where the organization of societies araund national cultures is typical. For us, the principle that a community may uphold its distinctive linguistic-cultural environment seems crucial to recognition of the unique identity of each particular cultural group and the importance it has in providing satisfying lives for its members. So we may find ourselves in sympathy with Taylor's claim that Quebec cannot beindifferent to cultural-linguistic orientation. But I see no warrant for his supposition that upholding an identity justifies overriding individual freedoms. We arenot here talking about trivial pursuits, but of individual freedom to have the identity a person very much wants to have, something she cannot make a matter of indifference. Clearly, maintaining a cultural fabric is important to those whose inheritance it is. But it does not follow that maintaining that fabric at the expense of individual freedom is desirable, or that it is the only viable option. Even if individual freedom is not the good liberals say it is, Taylor must surely be concerned about the impact on political allegiance of a community principle that can be deployed to defend, for example, traditional male definitions of women's identities in the teeth of women's determination to define their own interests. Liberals can go a long way toward meeting the requirement of cultural maintenance without overriding individual freedoms. So they see no reason to give up their view that the principle of respect for individual autonomy

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always frames the community principle. Culture figures in the liberal ideal as the basic context for individual development and choice of how to lead our lives. Individual exploration of how best to live is, in the first instance, shaped by possibilities given in one's linguistic-cultural environment (Kymlicka 1989). However, liberals recognize, no less than others, that some national cultures, and many minority sub-cultures, cannot reliably provide this context for their members, especially in future generations, because of the negative impact on them of economic or political decisions of neighbouring cultures and/or internal demands for pluralism, bolstered by appeal to liberal rights as enjoyed by members of outside cultures. So what is to be done? In many cases where a cultural identity is under threat, the problern isthat people whose preference istolive and work within that culture cannot reliably do so because of economic and political decisions taken by their own, or neighbouring, cultures. They find themselves badly situated with respect to the means to sustain a meaningful life or the prospect of one for their children. Their problern is not addressed by majoritarian legislation forbidding them to equip themselves or their children with educational and linguistic pre-conditions of exit from the culture. A community concerned about the fate of its members can respect their rights to autonomous life while protecting the language and culture by looking at ways to reduce the inequalities of circumstance that give rise to much cultural erosion. Thus a community may undertake to ensure as far as possible that members are not disadvantaged by inequalities within the culture. It may also work to win compensation from neighbouring or surrounding cultures for their negative impact on its viability. Inequalities of circumstance between interacting cultures is addressed by systems of minority rights given substance by resource transfers from the encompassing culture. A liberal conception of cultural community endorses a community upholding its culture against encompassing significant communities (a federal state, for example) but not against its own members. The reason is simply that the case for mutual respect between different cultural communities has to do with a culture functioning as a shared intrinsic good for its members, a condition that puts different cultures on an equal footing from the point of view of respecting individual identities. That is the basis for trying to ensure at least rough equality of circumstances for members of the vulnerable culture. So the community principle cannot be deployed to prevent cultural change resulting from the choices members m ake about the kinds of persons they want tobe. If there is a significant majority in favour of maintaining a certain linguistic-cultural environment, the fact of minority difference is hardly like-

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ly to darnage majority interests. If the majority is not very large it is difficult to argue that the culture has a homogeneaus character. The community is already pluralist and no amount of citing of traditionwill yield the normative claim that traditional norms should be enforced on all. If the community foresees graduallinguistic-cultural erosion unless it does something to maintain its present character, the appropriate response is to look at ways of fastering cultural identification through democratic development of new social forms that attract the willing participation of members, especially the young. But in the end the survival of a particular community identity depends on its core values attracting the willing allegiance of members through the generations. Even then, a given identity will change in unpredictable ways in response to changing circumstances and problems. There is nothing that we can call the identity of a modern community that does not exhibit features of cultural change and the development of internal heterogeneous cultural forms. In free societies homogeneaus cultures are wishful thinking. IV. Solidarity and Empire in the EC

Liberal solidarity requires no more than that citizens sustain those political activities required by their common aim of justice. At the same time it requires no less than that citizens view the distribution of justice among them all as a matter of personal moral concern. I want to bring these thoughts to bear on the issue of Empire v. City in Europe. The member states of the EC have established national and regional identities built on linguistic and other cultural differences. They share a public commitment to liberal democratic values, though these may not be realized in their full purity anywhere. Why should citizens of theseparate states accept European political integration on the model of liberal solidarity? Why should Italian citizens regard the success of their lives as, in part, dependent on the delivery of justice by EC decisions to British, or Irish, or German citizens? There is no knock-down answer to these questions but there are a number of considerations that taken tagether make the liberal view worth working for. Consider first a model of European political union as a modus vivendi of separate states each of which treats the union as an instrument of its own self-defined interests. The basic objection to a modus vivendi modelisthat it subverts peace because it is inherently unstable. The terms of co-operation are subject to flux as shifts in the power, interests and circumstances of participating nations lead to shifts in their bargaining positions. While the prospect of changes in terms may be long-term, each participant is motivated to maintain and strengthen its current power position for fear of future disadvantage. And each knows that the others are similarly motivated. So

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anticipation of future changes in the terms of co-operation fuels current competition for power and the advancement of strategic national interests. This is a source of great danger especially for participants with weaker economies who sooner or later will see their cultures and independence destroyed. And there is no surety against disorderly secession by disgruntled members who are willing to fight their way out. A modus vivendi model cannot provide a stable peace, nor the justice between nations that would command allegiance (Pogge 1990, pp. 220-226). The idea of a union founded on liberal justice is more attractive and stable in the long term. A justice-based order, provided the interest in justice andin the goods it secures are matters of fundamental and shared conviction, is one that participants have powerful moral and prudential reasons for sustaining. Morally, it expresses and reinforces a fundamental aspect of their moral identity. Prudentially, as shared goal it generates a sense of mutuality and reciprocity that overrides national tendencies to maximise national interests regardless of the cost to others. It thus provides a ground of allegiance which founds a stable peace. National citizens have reason to favour such an order because their individual quests for worthwhile lives requires concern for the social structure as an enabling cultural and economic environment. Since their local environment is not closed, but part of an interactive wider system, they have an interest in forming collective purposes and institutions of a multi-national kind. The idea of a justice-based liberal solidarity seems difficult to embrace because it requires citizens of Europe to juggle two conflicting allegiances. The first dominates our lives as citizens of this orthat country, astatusthat European integration is not meant to undermine. As national citizens we think we have particular political responsibilities towards co-nationals members of particular historical communities into which we were born or which we chose to join. We acknowledge a primary political duty to work for their interests and direct available resources to them, and I do not doubt that we will continue tothink in this way for a very long time. We think that our politicians should do the best for us as national communities when negotiating with other EC partners, that someone who showed as much concern for the plight of the less well off in another state as our own would be failing us. Within this perspective our ideals of democracy, equality, civility, plurality and the rule of law are centred on the nation state. A second allegiance would dominate our lives as members of a European political union. We would have to think of ourselves as promoting policies that treat all members fairly. As members of a wider political community we would have a duty to support programmes that show no more concern for our nationals than for those of another state. This is what we now expect of com-

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missioners and officials generally whose responsibilities are to frame and implement policies for the community as a whole rather than the national interest of their state of origin. A well-ordered EC would reconcile these conflicting allegiances. They cannot be reconciled adequately as long as there are substantial imbalances between the circumstances in which citizens of different nationalities live their lives. Only if the resources of the EC were distributed fairly among the members could they identify with the wider community as the basis of their own fortune, peace, and the flourishing of their particular identity. If a just distribution were secured, then rough equality of circumstances between citizens of different nationalities would ensure that their special relationships with co-nationals did not compromise their concern with the fate of the members of the wider political community. V. Constructing 'us'

There is one final step to make in my argument. I accept the communitarian point that those towards whom we are normally willing to assume political obligations are, for now, at any rate, people with whom we have a special relationship, people who have shared a culture and history with usover generations, with whom we can debate the character of our politics because we have shared understandings, beliefs, values, criteria, and so on. A voluntary Empire political community must have this aspect of particularity no less than a nation state if it is to evoke a people with enough willingness to share a common fate. The European 'we' that shares resources and restricts claims that may be made on the basis of national self-interest to those that a shared justice sanctions, could not define itself without a wider cultural background of shared traditions of thought and feeling and valuation. While, historically, Europe has been a seat of difference rather than homogeneity, it has also been the site of a living together in which multiple cultural strands connected peoples of different regions, although no single strand ran through the lot, with the possible exception, for a time, of an undivided Christianity. We can plausibly construct ourselves, not merely as members of local cultures, but of a wider culture that has had three hundred years of contesting and sharing the building of religious toleration, limited government, and democratic practices. As this broader community 'we' also look back on over two millennia of contesting and sharing questions about knowledge, truth, justice, the good, the place of individuals in community, and so on. 'We' have fought with each other, engaged in rebellion, revolution, inquisition, colonialism, and oppression. And now we play footbaU together .

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'We' have suffered the Black Death, built empires and seen them wither away, lived through the Renaissance, the Reformation and CounterReformation, the Enlightenment, the development of science, the French and Industrial Revolutions, and two major wars in this century. 'We' have developed traditions of music and dance, of gardening and cooking, of art and architecture, of dress and literature, of law and commerce, and most of all, of taking each others, good ideas as the cultural property of all. 'We' originated civic republicanism in the humanist and liberal modes (though we abandoned its nurture as a tradition to our trans-atlantic cousins). None of this has led to homogeneous mores or a single ideal of the good life. But it has created a sense of common culture and civility, at least among the better educated, that makes a self-defining European 'us' possible. Our diversity notwithstanding, we can plausibly define ourselves as a political people because we share values, won painfully over centuries, that function as fixed points of public life within and between our current political units. Theseare the non-negotiable moral bases of political community as we are prepared to defend it to each other- that none may be slaves or left to starve to death, that none may impose their particular linguistic-cultural environment on others, that national governments or majorities may not violate or abrogate the human rights of individuals, that the basic terms of political cooperation may not be subject to unilateral suspension and replacement by those in power. Noneofthis may be enough to motivate us to take political union seriously. For the ties of civic friendship are, in the end, relations between people, not ideas. And we may think and feel that we do not have the moral energy for a political identification that places such great demands on us. But no political union, of whatever size, can be built without ideas either. If we want European political union for twelve or more states we already have a common world.

I am grateful to John Bakerand Ian Cornelius for invaluable comments on an earlier version of this paper.

Heferences

Devlin, P. (1965), The Enforcement of Morals, Oxford. Dworkin, R. (1989), Liberal Community, in: California Law Review. Vol. 77. Hart, H . L . A. (1961), The Concept of Law, Oxford. Kymlicka, W. (1989), Liberalism, Community, and Culture, Oxford.

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Maclntyre, A. (1981), After Virtue: A Study in Moral Theory, London. -

(1984), Is Patriotism a Virtue? The Lindley Lecture, Kansas, March 26.

Pogge, T. (1990), Realizing Rawls, Ithaca N.Y. Rawls, J. (1987), The Idea of an Overlapping Consensus, in: Oxford Journal of Legal Studies, Vol. 7, No. 1. Skinner, Q. (1978), The Foundations of Modern Political Thought: Vol. 1: The Renaissance. Sandel, M. (1992), The Procedural Republic and the Uneneurobered Self, in: S. Avineri I A. de-Shalit (eds.), Communitarianism and Individualism, Oxford (first published 1984). Scruton, R. (1990), In Defence of the Nation, in: J. C. D. Clark (ed.), Ideas and Politics in Modern Britain, BasingstokeiLondon. Taylor, C. (1986), Alternative Futures: Legitimacy, Identity and Alienation in Late Twentieth Century Canada, in: A. Cairns I C. Williams (eds.), Constitutionalism, Citizenship and Society in Canada, Toronto. (1989), Cross-Purposes: The Liberal-Communitarian Debate, in: N. Rosenblum (ed.), Liberalism and the Moral Life, Cambridge (Mass.).

UNITY AND DIVERSITY THE DILEMMA OF THE EUROPEAN COMMUNITY AND NATIONAL IDENTITY Maria Borucka-Arctowa, Cracow

I.

This paper's starting point is the view that history has a profound significance for the fates of defined theories and philosophical concepts (especially for social philosophy), and therefore for their development or demise. The changes in the world in which we live, which are carried out by people for people, would incline one to pose the question whether these theories and concepts can help us to meet the "challenge" which the "new world" , in it's "process of becoming", presents us with. This problern takes on special significance during this great breakthrough period, which has taken place in the countries of East-Central Europe, and their transition to a new social and political system. It also concerns countries in western Europe, and, on a world scale, one can perceive two tendencies: the first can be defined through the aid of such concepts as the "globalization process" and "one world" , whereas the other is distinguished by a growing tendency of separatism along national and ethnic lines. The title of this paper refers to the direction which further considerations have taken, revolving primarily araund two questions: The first question is based on the contemporary currents of research in social philosophy (and the social sciences); that is, of the concepts of "unity" and "diversity", and whether their opposition is inevitable or if it is possible to find a means of overcoming this opposition. The second question is whether these theoretical considerations can help us when we're dealing with problems related to the European Community. Will steps toward unification, takenon the normativeinstitutionallevel, lead to the integration of the member countries, and at the same time will they pose a threat to national identity? It is my intention that this paper be more descriptive than postulative.

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II.

The search for theoretical assumptions and multilevel approaches to new problems linked with the changes of the "social order itself" isareal challenge for social philosophy and the social sciences. The topic of the first part of my paper is the presentation of two contemporary currents, usually treated in opposition to one another: namely, the first one opting for unity of methods, universality of laws, uniformity of practice; and the second one voicing the primacy of diversity versus unity, placing emphasis on socio-centric products of "different worlds" (Archer 1990, p . 3). At the firstpole is found positivism and the schools linked with it, with all its epistemic and methodological consequences. Likewise, alongside are found quite different currents, critical of positivism and, therefore, of Marxism and neo-Marxism with their different concepts of the unity of methods and of the law of social development. The deep belief in the universality of the law of development was the basic premise of the current theories of modernity, closely linked with law and development studies, presenting successive stages through which the transfer of capital, technology- including knowledge and education- and information from the First World will inevitably generate worldwide uniformity. According to law and development scholars, the lack of a modern legal system was the reason for the lag of development efforts. That idea led to a search for the basic principles of a modern legal system, and to an interest in legal transplantation. But the "modernization theory" and "development studies" confronted with practical results evoked a critical reaction (Trubek 1972). This was due mostly to their unifactorial, ahistorical, and contextless argumentation, and the impossibility of explaining the inefficiency of the transferred model in m any countries and its success in others. In cantrast to the image of necessary stages of development, the critics asserted that societies with their own specific culture have many options open to them as they shape their national future. Schalars of this opinion believed that wide variations in cultural, social, political and economic arrangements are possible for all nations, and that approach was a large step towards the primacy of "diversity" . Despite this heavy criticism, other theories of development gravitated towards universal implications linked with the Post-Industrial Society and the Information Society, "presenting the autonomaus effect of information technology with determinate consequences for structure, culture, and agency alike" (Archer 1990, pp. 8-9). According to Toffler "the universal implications of informatics are bigger than the industrial revolution" (Toffler 1975, p. 21).

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m. The growing opposition to positivism as a philosophy of the social sciences, gave rise to critiques of theories of modernity and pointed out the difficulties or the lack of success in introducing into practice the idea of law and development, prepared the ground for voicing the viewpoint of diversity - or rather the primacy of diversity versus the primacy of unity- and paved the way for even some extreme ethnocentrism. Societies and cultures are supposed to constitute mutually impermeable worlds (Sztompka 1988, p. 210). Because of an untranslatability diverse "forms of life" could only be understood on their own terms. All understanding was contextual. The idea of the primacy of diversity is deeply rooted in the social anthropology which has to deal basically with traditional, primitive societies, geographically separated, and with minimal overlap of different social contexts (Ibid, p . 208). The growing interconnections between different societies brought with them the problern of how "alien" beliefs and practices had to be understood. One of the most important and interesting methodological questions of comparative studies is how to dissolve the incommensurability of concepts. The variety and heterogeneity of shared meanings, shared by members of any society, and in this sense produced, created, and constructed by them, are clearly expressed by Berger and Kellner: "every society can be seen as a precariously put together fabric of meanings by which human beings see to find guidance for their lives" (Berger I Kellner 1981, p . 74). Even the admission of intelligibility, which consists in the understanding of difference and divergence, doesn't mitigate the approach to diversity as the key problem. Is it worthwhile to initiate dialogue if societal discourse about such different matters will give different settings? In the frame of social anthropology, diversity "can be understood but not integrated conceptually: the anthropological order lacked sufficient common ground" (Archer 1990, p . 6). In our overview of the currents oriented to the "pole of diversity" we can't omit post-modernism, the most complex and diversified of all these trends. It's exactly these features, and the far from precise terminology which adherents of this concept use, which permit various interpretations of the suppositions of this current of thinking. Post-modernism means that a certain cultural state, as a whole cultural formation, is crystallizing in opposition to the fundamental values and convictions of the epoch of modernism. The point of departure of post-modernistic culture is not only a departure from the ideals of the Age of Enlightenment, but also the destruction of the ideas and ways of thinking which made the articulation of such ideas possible. Some of these concepts are Reason, Truth, Progress, Justice, and Modernity. Post-modernistic culture

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doesn't recognize the existence of universal values, rather it bases its criteria on the trodden road of "local discussions", which take place in certain specific communities. In Loytard's opinion, the ethical responsibility of those engaged in the process of interaction increases (Loytard 1979). It also rejects categories of the whole, in favor of fragments and open or partial structures. The result of this philosophy, in the social and cultural spheres, is a radical pluralism which accepts any kind of diversity, every kind of difference. Here minorities can find the possibility of maintaining their distinctiveness. The problern of the "dramatic choice" disappears, so that the acceptance of Contradietory values, roles and attitudes becomes commonplace" (Jawlowska 1991, pp. 138-142).

IV.

Can the presented polarity of social theories- unity versus diversityhelp us in constructing the theoretical assumptions, adequate to the "new social world", characterized mostly by the process of globalization, and growing interactions and linkages by individuals and other non-state actors? The key change over the last few decades has been Globalization: a multi-faceted process entailing a growing world-wide interconnectedness of structure, culture, and agency, and the de-differentiation of traditional boundaries (Archer 1990, p. 5).

Economic, political, and military globalization, as well asthat of environmental protection, means the emergence of comprehensive wholes as crucial: political and military blocks, economic areas and unions, sometimes of a horizontal structure, but more often of a vertical one, with clearly defined centers and gradations of peripheries or dependencies (Sztompka 1988, p . 211). Trans-national systems have always existed, but the term "Global Society" indicates a level of analysis that encompasses the numerous national, supra- and subnational entities "which interact in a multi-level pluralistic network as opposed to the concept of a state-centric interstate system" (Rohl1991, p. 7). Trans-border interactions of enterprises or individuals are more and more frequent. International private law and international unified law claim to resolve the regulatory tasks but with limited effects. More important for creating at least a minimum of stability are institutions which attempt to bridge the legal and cultural gap between actors, particularly international law firms, chambers of commerce, arbitrators, banks, and some state institutions which assist private citizens in matters which transcend borders. During the second half of our century, globalization became visible in everyday life, via the network of traffic lines, the mass media, and cable TV.

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What are the consequences for common people living in such a globalized world, especially for their meanings and concepts? For some of them, their actual experiences, ways of life, and social conditions are becoming more and more alike. For others they remain different, but even for them they are becoming more accessible through tourism, personal contacts, and the mass media. Even if they differ in their beliefs and interpretations, members of various societies are beginning to understand each other instead of talking about each other (Sztompka 1988, p. 212). What is stressed very often by contemporary scholars is that global processes constitute parts of the social reality which cannot be understood in strictly local terms, for its origins and impact are compared with what lies outside localized "forms of life". But when we consider concepts which claim tobe universal such as human rights or the rule of law, the structure of the global society will have to be taken into consideration and their implementation strictly linked with cultural conditioning.

V. What are the presented theoretical assumptions in response to the challenge with which social philosophy (and the social sciences in general) are confronted, in face of the changes of the "new world" and the process of globalization? What is the proposed solution to the dilemma of unity versus diversity? The effects of globalization can in no way be interpreted as a new universalism, regardless of the local contextual variation. The new sources of unity are grounded on the emergence of global structures and agents, and their interplay within the diversity of regional structures and agencies. The integration of diversity and the global-regional interplay are the basic conceptions. Local and regional varieties are presented as a combination of tendencies representing different ways and trajectories. The interaction of such trajectories will produce greater variety, rather than reducing it, over time (Archer 1990, pp. 6-14). Another assumption is more linked with the changes in comparative research methods - research which is inevitable and important for the presented problem. The globalization of the social world produced the complete reversal of the cognitive situation, which became baffling and interesting in an attempt to seek divergence, uniqueness among uniformity, the preservation of enclaves amid growing homogeneity, rather than uniformity among variety. The point is how to unravel the peculiarities of a given country, area, or region by contrasting it with others, to delimit a category of people

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exhibiting a certain motivation, possessing certain attitudes, ready to take certain actions, by contrasting them with other people. The additional heuristic value of such researchisthat it makes the scholar aware of the historical dimensions of the social world and evokes a historical perspective. The explanation of the divergences of meanings in an otherwise convergent, globalized and internationalized world is the history of past divergences, the varieties of historical tradition (Sztompka 1988, pp. 214-216).

VI.

Let's try to link the conclusions drawn until now with the problern in the second part of this paper's title. Can they help us in overcoming the dilemma which emerges in connection with institutions already established such as the European Community, relations with its actual and potential members in the breakthrough period, and the permanent changes of regional arrangements, group alliances, and antagonisms? Are we able to answer the question posed at the beginning of this paper as to whether the tendencies toward unification and integration, which are the very foundation of the European Community, willleadnot only to a significant legal unification, but also to the dissemination of European legal culture? Or will it also become a threat to the maintaining of "national identity" for the member countries, so closely united, with their respective cultural distinctness? Is an interplay really possible between the newly emergent "global" and the old established "regional" or "local"? Each of these viewpoints has its proponents and adversaries. European integration, just like globalization, is a multilevel process. Integration is already very far advanced, when considered in a legal-institutional light. It is expressed in the creation and functioning of such institutions as the Council of Europe, European Community, European Parliament, Commission of Human Rights, and through a broad framework of common European legal and judiciary activity. The law therefore plays a significant part in European Integration. The question nevertheless arises, what exactly is this part? Is there, alongside the laws of the European Community, the formation of other "ways" of trans-national and trans-border activities as a type of "lex mercatoria" network? Is the law following the technical and economic development with the usuallag, or, at least in some areas, is it a promoter of globalization? (Rohl1991, p. 2). Isthis law based on a distinct institutionallevel "above" the member states or is it an outcome of economic and social transactions and conflict settlements over international frontiers, based more on a lawless informality? Is the notion of the "European village", so often recently used, neutral, or is it intentionally used as a "village" with

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more attention focused on super-state customs and rules, and not only on the official, positive "state law"? The question arises as to whether or not, in this European process of integration, the law will always tend to do away with borders and barriers between states and regions; or does it, by presenting certain conditions which will have tobe fulfilled by its current and future members, create barriers? There is a very strong preponderance of regulations, linked with economic activity, as weil as with ways of achieving the European Internal Market. A difference of opinion exists as to whether such a strict and precise observance of these conditions create an incentive or challenge, in those countries aspiring to membership in the European Community, to a quick and complete implementation of economic reforms, or whether their being outside of the Common Market becomes a factor which is a handicap for reforms toward a free market economy, and, to some extent also, to the possibility of the full realization of human rights. In the countries of Central and Eastern Europe, where fundamental political and economic changes are taking place, one can detect a very profound tendency to try to enter the "European Horne" as soon as possible. European integration is considered from its limited territorial and regional viewpoints, which arouse fears of the existence of "two worlds" alongside each other, in spite of the great changes which have taken place on a European, and really, in essence, a worldwide scale. In our considerations on the role of law in European integration one can't perceive any kind of trans-national or global dissemination of legal concepts and knowledge pertaining to law on the local and nationallevel. But if we crosscut law making and law implementation, we have to look at an important variable - the factor of cultural diversity; and then comes the question: To what extent does European Community law harmonize member state laws by allowing for differentiation? Can we assume that the general process of cultural diffusion would ultimately lead to a unified world culture, differentiated only by regional accents? And herewefind a difference of views and expectations. Adherents of cultural convergence expect a mutual enrichment of the various cultures; opponents, however, perceive a threat to cultural identity, diversity and uniqueness. Underlying this isthebelief that an excessive communication of foreign cultural products can darnage or even destroy an indigenous culture. Problems of cultural identity are very closely linked with "national identity", but in no way can they be treated identically. The feeling of belonging to European culture does not necessarily mean a link with "Eurocracy", but usually means that a significant part of national culture has features in com-

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mon with European culture as a whole, and, in addition to this, certain elements are maintained which are characteristic and unique solely forthat specific national culture. The meaning of identity is usually defined as an individual self-concept and self-social identity. This includes values, beliefs, "feelings of belonging" and reasoning which define one's subjective sense of national identity. Pursuing these problems willlead to a better understanding of the complex ways that national identity and attitudes merge with, and reconstitute, ideas of self and society. National identity is shaped by history and very deeply rooted in tradition, including a historically determined attachment to specific values and institutions passed on from generation to generation. However, tradition is obviously changing. It is always a choice of certain values, norms and institutions from the past. The term "progressive tradition", often used and even abused in the former, socialist system, seems relative. Current research tends to pointout that tradition can be falsified to include some phenomena which never occurred. What is more, previously held views and norms are interpreted in such a specific way as to meet current requirements and support ideas and institutions which are being created or proposed (Hobsbawn 1983, pp. 1-14). Even history can be intentionally falsified and manipulated to evoke specific feelings and attitudes, which are typical sources of nationalism. Nationalism is based on the division of "ours" and "theirs" - or if you prefer, "we" and "they"- and the formation of social identity through the delineation of different interests, customs, and values, which divide one's national group from the others, rather than searching for that which could unite them. A division between "ours" and "theirs" aids the formation of an ethical dualism, which is based on the supposition that certain norms and principals are obligatory within one's own national group, and others in contacts with members of other groups. Nationalism is often linked with a conviction of the superiority of one's own nation, culture, recognized values and norms in relation to those of other nations- especially in relation to some- and it takes shape in the form of a belief in the nation's mission (messianism). A very characteristic phenomenon of our times is the growing tendency towards separatism in multinational states. They are growing with special vigor in countries of the former socialist bloc, but also in some Western European countries. Nevertheless, it is noteworthy that newly created states, upon achieving their freedom and independence, almost immediately petition for membership in the European Community: Isn't it so, that "ethnic and cultural fragmentation and modernist homogenization are not two arguments,

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two opposing views of what is happening in the world today, but two constitutive trends of global reality"? (Friedman 1990, p. 111) However, the question arises as to whether separatist tendencies inevitably lead to some form of nationalism - and if they do, are they compatible with the fundamental principles of the European Community as well as with the concept of the "global village"; or don't they exclude attitudes closer to "national identity"? When searching for the answer to this question, it's essential to call attention to the fact that the differences between nationalism and "national identity" are linked with two conflicting models: the first of these is referred to as fundamentalism, the second as the open model of democracy (Skapska 1992). Fundamentalism is defined as a return to the "pure", orthodox, and indisputable foundations of the social order. It may appear under the guise of a "rejection of foreign influence" or a "return to roots" , an exact definition of "fundamental" values, and therefore to basics, which don't demand any justification, and evoke that which is held in common, and is often said to be holy, and untouchable. Contemporary fundamentalistic tendencies are usually characterized by means of a reaction against rapid-paced development, and the ever-increasing contact between nations. To become subordinate to the group , to accept orders without discussion, produces a feeling of security, especially amongst those for whom participation in the rapid-paced development and contact with other countries is hindered (Ibid, pp. 166-171). The model of open democracy, as opposed tothat of fundamentalism, permits several different options in the way political decisions are made, as well as in the realization of one's own endeavors and goals. The principle characteristics of this model are an agreement to differ, the possibility of various interpretations of basic values and norms, the sounding of viewpoints through an exchange of arguments, and the undertaking of a social discourse. Allofthis is linked very closely with pluralism, which is often treated as an indispensable element of contemporary democracy. Generally by pluralism one understands not only the multitude of natural and social elements, but also their having equal rights, their existence alongside each other and, at times, agairrst each other. Today, this concept has attained social and political sense, which in turn link empirical and normative currents (Hoffe 1988). Pluralism is empirically under stood to contain a multitude of values, creeds, religions, social groups, and forces which shape the political phenomena. The course of historic events put into motion or accelerated the dis-

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tinct process which dismantled the homogeneaus and stable relations of the so-called "old European societies" and created open societies, composed of an ever-increasing number of self-interest groups, new convictions, and behavior modes. Normative pluralism means a recognition of respect for diversity and differentiation of various social groups, all of which have a right to develop freely. The concept of pluralism took on a special meaning in the modern theory of democracy, where political decisions result from the constant friction between interest groups which control each other and are constantly making compromises in order to obtain the approval of the majority. Normative considerations concerning the limits of pluralism lead to the rejection of absolute pluralism in favor of relative pluralism, which develops on a basis of that which is considered tobe, in principle, held in common. Its sense (raison d'etre)- the serving of freedom and justice- can never disappear from view (Ibid). Human rights have a special place here, and are therefore, that which every legal and national system (and also pluralistic democracy) should guarantee every citizen. Minorities are protected through human rights, a protection which they would otherwise lose in a pluralistic, competitive fight. The idea of pluralism is directed through its normative definition towards tolerance. Tolerance can assume a passive or an active role. The former is equivalent to a tolerance of, or respect for, diversity. The latter would mean an active, creative openness in relation to differences, which would result in the possibility of achieving compromise and consensus. On the internationallevel, does tolerance constitute only a respect for differences in culture, tradition, different legal systems, and is it therefore only passive tolerance; or is it also an answer for new problems and unification tendencies, and therefore an active tolerance, open to discourse and compromise? Are pluralism, and the diversity with which it is linked, values in themselves, or are they dependent on certain common values and goals contained in the model of open democracy and also linked to the fundamental principles of the European Community? The problern of "national identity", and the accompanying fear of losing this value in face of Eurocracy, can be considered in accordance with the proposals presented in the first part of this paper and formulated as the "mutual interaction between universal and individual, global and regional, leading to the "integration of diversity" and the mutual enrichment of global and local culture". The problern of "national identity", deeply rooted in history and tradition, leads to the expanded approach of comparative research by including in its frame of reference the search for and explanation of divergence, of unique-

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ness among uniformity, and the preservation of peculiarities of a given country or region by contrasting them with others. This paper has posed many questions and proposed some answers; but at times it was limited only to the asking of questions, which encourage the reader to reflection and further investigations. But isn't it true that, in scientific studies, questions and answers are equally important? One can come across the opinion, that the development of the particular problematics of a field of study is first of all determined by the ability to pose significant questions. Therefore, I think that the aims of this paper could be achieved, if we could (at least to some extent) eliminate some old questions and ask some new ones.

References

Archer, M. (1990), Sociology for One World: Unity and Diversity, Presidential Address at the 12th World Congress of Sociology of Law, Madrid. Berger, P. L./Kellner H. (1981), Sociology Reinterpreted, Garden City, Anchor. Friedman, J. (1990), Beingin the World: Globalization and localization, in: Featherstone (ed.), Global Culture: Nationalism, Globalization and Modernity: A Theory, Culture & Society issue. Hobsbawn, E. (1983), Inventory Tradition, in: E. Hobsbawn I T. Ranger (eds.), The Invention of Tradition, New York. Hoffe, 0. (1988), Pluralismus und Toleranz: zur Legitimation der Moderne, in: Den Staat braucht selbst ein Volk von Teufeln. Philosophische Versuche zur Rechts und Staatsethik, Stuttgart. Jawlowska, A. (1992), Tu i teraz w perspektywie kultury postmodernistycznej (Here and now in the Perspective of Modernistic Culture), in: A. Sulek I W. Weclawski (eds.), Przelom i Wyzwanie (Breakthrough and Challenge), WarszawaiTorun. Loytard, F . (1991), La condition postmoderne, Paris. Rohl, K. F. (1991), Globalization of Legal Phenomena, paper presented at the International Conference "Law and Society in the Global Village", organized by the Law and Society Association and Research Committee on the Sociology of Law of ISA, Amsterdam. Skapska, G. (1991), Consensus w spoleczenstwie pluralistycznym- Generalizacja Wartosci a Fundamentalizm (Consensus on Pluralistic Society Generalization of Values and Fundamentalism), in: A. Sulek I A. Weclawska (eds.), Przelom i Wyzwanie (Breakthrough and Challenge), Warszawal Torun.

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Sztompka, P. (1988), Conceptual Framework, in: Comparative Inquiry: Divergent or Convergent?, International Sociology, Val. 3, No. 3. Toffler, A. (1975), Future Schock, London. Trubek, D. (1972), Towards a Social Theory of Law: An Essay in the Study of Law and Development, in: The Yale Law Journal, Val. 82, No. 1.

ON THE RELATION BETWEEN LAW AND STATE Ake Frändberg, Uppsala I.

For the purpose of this study, I here take the term "law" to denote alllegal orders - now valid, previously but no langer valid, or solely irnagined. The concept "law" connotes the set of alllegal orders. Our task, then, will be to analyse the relationship between legal orders and states. Such an analysis can take place on two levels: (1) A conceptuallevelWhat is the conceptual (necessary) relation between "legal order" and "state"?; and (2) a theoretical level - Given a certain conceptual relation between "legal order" and "state", what kinds of ernpirical and normative theories about legal orders and states can be based upon it? In this paper, sorne rernarks will be rnade about the second level, but the ernphasis lies on the first. These days a lot of interest is devoted all over the world to problerns pertaining to the theory-level of the legal order-state cornplex- not only arnong legal and political scientists but also in the circles of editorial writers and politicians. (The therne of this world congress is forthat reason well chosen.) The causes of this aroused interest are, as I see it, rnainly the following three: (1) The ernerging of supranationallegal orders. (2) The actual or threatened dissolution of a nurnber existing states (e.g., the Soviet Union, Yugoslavia, Czechoslovakia and sorne "artificially constructed" African states), as well as, states with separatist rnovernents such as those of the Basques in Spain, the IRA rnovernent in Northern Ireland and the Quebec separatists in Canada - and, as a consequence of this, the ernerging of new, or revived, states (e.g. , the Baltic states, the Ukraine, Slovenia and Slovakia). (3) The eternal built-in conflict between the perpetual function of legal orders - to achieve peace and order- and state power. State power is, indeed, the rnost powerful, and hence safest, warrant of peace, order and individual integrity. But it is also the rnost powerful, and hence rnost dangerous, threat against peace, order and individual integrity (of which we have

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seen only too many consequences in recent times) . This conflict is inherent in the predicament of mankind and is, as such, truly tragic. All this no doubt calls for some conceptual groundwork. This study is a tentative effort in that direction. My paper is structured in the following manner. In section 2 we define the concepts "legal order" and "legal organization", andin section 3, the concept "state". The relationship between them is further illuminated in section 4. Finally, in section 5 we expose more clearly the Janus-face of the state suggested above.

II.

I regard any (well-developed) legal order, LO, as a relation, LO = between a set of norms (rules) , N, and an organization (or a system of organizations), 0, such that: (i) Norms of N constitute 0 . (ii) The function of 0 is (mainly) to handle norms of N. (I.e., the task of the functionaries of 0 is to handle norms of N). (iii) The function of N, in its totality, is to regulate sociallife in its fundamental partsandin a comprehensive way. (iv) Some part of 0 (i.e., some organization within the organization system 0) has the function to settle disputes among persans in accordance with normsinN and to take a standpoint on alleged non-compliance with obligations or prohibitions in N. (I.e., courts of law). A legal system is any such set, N, of norms. A legal norm is any member, n , of a legal system. I take the term "legal norm" to include not only obligatory and prohibitory legal norms, but also, permissions and principles- which entities Iregardas all having a normative character . A legal organization is any such organization (or system of organizations), 0. A legal order, then, isanordered pair, , where N isalegal system and 0 a legal organization. The nature of this relationship is roughly indicated by clauses i-iv. This definition has an ideal-typical character. There are social orders

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which justly might be called "legal" although not all four clauses are (altogether) fulfilled. We all regard, I think, the order of the U.N. as a legal order, although clause (iii) is not fulfilled with respect tothat order. The task of the U.N. order is more restricted. Also clauses (ii) and (iv) must be adjusted a bit. They are fully valid with respect to what I later in this paper call "legal orders in the stricter sense" but not to all organs within "a legal order in the wider sense". To these latter belong authorities and other legal creatures constituted by legal rules but not having as a primary function to handle legal rules, e.g., a state university. Something more specific must be said about legal organizations.The term "legal organization" can be conceived of in a wider and in a stricter sense. Since the state organization, in its totality, is constituted by, and as a whole regulated by, legal rules, the state organization, when such an organization exists, is identical with the legal organization in the wider sense ofthat term. Thus, for example, the Swedish Ministry of Defence, the Board of Education, the Municipality of Gothenburg and Uppsala University are all members of the Swedish legal organization (in the wider sense), since they are all constituted by and, in their fundamental features, regulated by Swedish legal rules - although their primary function is not administration of law. In exactly the samemanneras the relationship between a busband and wife, or a vendor and a vendee, can be seen as a set of (primitive) Hohfeldian jural relations, created deductively from legal rules. The authorities ofthelegal organization are sets of jural relations constituted, by deduction, from legal rules. Thus, for example, the Swedish Board of Education is a complicated set of jural relations between officials holding places in this network of jural relations, between such officials and officials belonging to other authorities and, most important, between the officials of that Board and the public. The difference between authorities belonging tothelegal organization (in the wider sense) and other products ofthelegal system, such as limited companies or marriages, lies in the fact that the former, but not the latter, are obligatory (shall exist) according to the legal system in question. The legal organization in the wider sense, then, is identical with the state. It is also justified, to use a concept "legal organization in a stricter sense", based upon some sociological criteria. This concept is conceptually independent of the concept "state". As a consequence, weshall have to allow for a concept "legal order", which, likewise, is conceptually independent of the state-concept. If we want to discuss the relationship between the legal order and the state in a more fruitful way, we must not postulate any necessary (conceptual) connection between them; hence, the introduction of the concept "legal orga-

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nization in the stricter sense". In fact, to make such a postulation is contrary to empirical evidence to the effect that legal orders (and, thus legal organizations) are older than states (in any reasonable meaning of the word "state")- and also to the; not improbable; thought that it might well happen that the law survives the state. Which, then, are the "sociological criteria" determining the concept "legal organization in the stricter sense"? Let us take a starting-point in what I earlier in this paper called "the perpetual function of legal orders", i.e., to achieve peace and order within society. Then we can say that the legal organization in the stricter sense consists of organs, directly or indirectly fulfilling that function. In primitive societies, whose members are mainly reduced to the use of self-help, we usually find some kind of rudimentary courts of law, habitually functioning also as a legislative, and, as a whole "political" body, e.g., the Thing in the ancient Germanie world. Later in history organs such as police, prosecution and executive systems develop, as weil, as organized professional advocates, and even later, organs controlling the legality of actions by other organs, such as courts exercising judicial review, parliamentary ombudsmen, etc. Due to the functional connection with courts of law, also such organs belong to the legal organization in the stricter sense. It is also justified to include in the legal organization in the stricter sense law faculties, law school and the like, since what is going on there is not only the study of the legal system from an external point of view but in fact also participation in the legal endeavour, which ultimately has the function of preserving peace and order. Of course, many of those organs can be established first when a state organization is established, but this is an empirical connection, which we are not at all obligated toregardas a conceptual one. In order to say something interesting about the relationship between law and state, it seems most fruitful to me to compare legal organizations with state organizations, or just states, since states, in my conception, are a kind of organization.

III.

We now turn to the concept "state". What is a state? To define "state" with reference to the many and various, actual or alleged, functions of states, analogically to what we did with respect to "legal organization in the stricter sense", does not seem practicable to me. The opinions on this matter are far too divergent to make such a definition anything else but a purely stipulative one, dependent, as such opinions are, on political

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ideologies. We content ourselves by saying that, whatever the purpose of the state might be, the state realizes that purpose by ruling over a certain class of human beings. (Or, in other words, the general function of the state is to rule.) A state is a certain kind of organization within a certain society. This extends over a certain geographic space, which we also call "a state" (or "state-territory"). The object of our analysis in this paper is, of course, the state in the former sense. As soon as there is astatein a given society, that state can be regarded as identical with the legal organization, in the wider sense of that word, of the society in question- or, in other words, the state is the totality of all organization (bodies, organs, authorities) which, according to the legal system of that society, are obligatory. But when is there a state in a given society? Let us - for the purpose of contrasting the legal organization and the state (organization)- define the concept "state" in the following way: Astateis (ideal-typically) an organization, S, such that S has a supreme, heteronomous and general competence to rule over a certain dass of human beings (the subjects, or citizens) within a certain geographic space (the state territory). (In addition to this, states usually have a limited, heteronomous competence to rule over non-citizens (aliens) within the state-territory and over citizens outside that territory, but we leave out that in our definition.) This definition may be made more precise, as follows: (1) That x, according to a legal system, L, has competence to rule over y means that, if x rules over y by some action a, performed by x, then a is legally valid according to L, unless x hirnself has limited his own competence with respect to a by restrictive rules in L. Thus, if such actions consist in normissuing, the norms issued shall, according to L , be followed by y . The fact that x has competence to rule over y according to L does not imply that x's competence is conferred to him by rules in L. States usually have an originally self-imposed competence, and if they have not, they have got their competence by some other state (or, theoretically, states in a genetic tradition) where the competence ofthat state (or the genetically first state) is originally self-imposed. (For instance, Jordan, a former British mandate, is a state that, as Winston Churchill put it, he invented on a Saturday afternoon in the spring.) When an original state is established, the power-holders create their own competence, but the rules created by the exercise of the competence become a legal system. In this respect, might genetically precedes right. (2) That a given organization has a general competence to rule means that its competence is unqualified, or open, in the respect that there is no sphere of human life which, from the conceptual point of view, is withdrawn from the

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competence of the state- i.e., no sphere such that, if the state intervenes in it, the organization in question is no Iongerastate- or, at least, not acting as a state when entering into that sphere (acting, as it does, ultra vires). This, of course, does not imply that the state has a moral right to do anything it wants. To include the clause "general" in the definition of "state" is, on the contrary, to recognize, and fully expose, the dearly-bought historical experience of mankind that states are capable (by use of the legal order, if they so choose) of the most outrageaus atrocities, unthinkable beforehand. The generality-clause rules out organizations such as organs constituted by public internationallaw. Their tasks are limited. It also rules out, for example, the organs of the European Community, but to a much smaller extent (I emphasize that the state-concept is defined ideal-typically: an organization can be a state to a greater or lesser degree), since the legislative competence of the Community over its members is much more extensive. The ideal-type approach provides support for the tendency in our time towards supranational organs, which draw competence from nation-states. The more this is the case, the more the nation-state diminishes in statehood and the more the supranational body becomes a state. (3) x has heteronomaus competence to rule over y when x's competence can be exercised without the consent of y .1 (4) That a given organization has supreme competence to rule means that there is (ideal-typically) no other organization, or any person, that has heteronomaus competence to rule over it. Also in this respect supranational organs nowadays hollow state-competence. IV. What follows from the definitions given above? Are they useful for the purpose of illuminating the relationship between law and state in a way that corresponds to social realities, and, if so, how? First it might deserve notice that "state" is not defined in terms of factual power. It is defined as a legal concept. This corresponds, as far as I can see, to reality. Even a society where private political parties, enterprises, churches, trade-unions, the mafia or the mob has the factual power, or which has made a total reduction of armaments or is in practice ruled by a stronger neighbour, can have a state (or be a state, as we say in a somewhat inappropriate manner), as long as there is a body in that society which has a supreme, heteronomaus and general competence (i.e., legal power) to rule. 1 Kelsen , H . (1945), General Theory of Law a nd State, New York. Cf. p . 204ff., for the principle of heteronomy, as opposed to the principle of autonomy.

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Four things follow from our definitions: (1) A legal organization in the stricter sense can exist without a state. States have emerged from rudimentarylegal organizations, too embryonie to be called "states". (When such an organization develops into a functioning state cannot, of course, be stated in a clear formula.) There are also legal organizations in the stricter sense which, not being states themselves, in one way or another are parasitic upon states, for example, the legal order of the International Court of Justice (ICJ).

(2) A state can exist without a legal organization in the stricter sense. In other words, there is no necessary connection between "state" and "legal organization sensu stricto". In order to find actual examples of such a "lawless" state (i.e., "pure ruling" unhampered by legal rules), we must turn to very primitive tyrannies: Pretty close to this come the regimes of Idi Amin in Uganda, Pol Pot in Cambodia and emperor Bokassa in the Central African Republic. (3) A legal organization in the wider sense can exist without a state. As examples can be mentioned modern supranational organizations, parasitic upon nation-states, such as the organizations of the U.N. and the European Community. (4) Astate cannot exist without a legal organization in the wider sense. A state belongs tothelegal order in the respect that it is constituted and regulated by the legal system and, hence, is a legal organization. To my mind, it seems odd not to regard such rules as having status as legal rules. On the contrary, rules constituting states are, as I see it, necessarily (conceptually) legal.

It follows from our definition of "legal order" that every legal order has some kind of court-function (clause iv). Hence also, legal orders in the wider sense have some kind of courts of law. Since every state isalegal order, it follows that every state has some kind of court-function.

This might seem too strong an assumption. It is at least logically possible that there is a state without any sort of dispute settling authority, for example, a state ruled in accordance with an extreme Marxism where the situation is conceived of as one where the law, but not yet the state, has withered away. Such a state can be regarded as a pure administrative state. If we want a state of that kind to be a legal organization, we must remove clause (iv) from our definition of "legal order", or at least weaken it. The close connection between the general competence of the state and clause (iii) in our definition of "legal order" is easily seen. The result of the analysis above is that, from a conceptual point of view, states arelegal creatures in a rather weak sense. There is no such close rela-

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tionship between law and state as is taught by Kelsen. Although the necessary relation is weak, there is nevertheless a strong empirical connection. However, this strong connection might, seen in a broad perspective of time, turn out to be merely a historical coincidence.

V. Right without might stands a poor chance. In ordertoperform its peacepreserving function there must be sword behind the scale of law. Few men have seen that clearer than Thomas Hobbes and John Locke. The state provides might. But states appear with a Janus-face, when it comes to peace and order. We all know that states are legal creatures which might become canceraus tumours in the body of a legal order. Notall power-holders have a humanistic conception of the state or embrace the idea that the purpose of the state is to enforce peace, order and individual integrity. Few men have seen that more clearly than John Locke. In order to fulfil the demands of a humanistic state-conception, three tasks seem to me to be urgent: (1) To strenghten the legal organization in the stricter sense within the state-organizations. (2) To subordinate the states to strict legal regulation (the Rule of Law), even with regard to the supreme state-powers (constitutionalism), and in other respects to adhere to the demands of the Rechtsstaat-ideology in legislation and administration of law. (3) To weaken the external sovereignty of nation-states (i.e., their immunity to heteronomaus competence) in their relationship to supranationallegal orders. Gangsters seizing state-power should not feel safe behind some holy principle of sovereignty. Urgently needed areinternational criminal courts as well as effective permanent military and police forces within the U.N. organization. Fanatic nationalistic sentiments or religious zeal must never be allowed to excuse barbaraus deeds by reference to sovereignty. Like alllegal or moral principles, the principle of sovereignty must be weighed against other such principles.

DON'T TRINK ABOUT IT LEGALISM AND LEGALITY Zenon Bankowski, Edinburgh Introduction

Charles Dickens writes about legalism in Bleak House. It is a bleak story he teils. Legalism is the pettifogging rule-bound attitude of the lawyer or bureauerat- "It's nothing to do with me, I don't make the rules" . How different if we change the last two letters! Now we have legality. That can be connected with liberty and democracy. That is something worth living for; something worth dying for. It seems so different from legalism, and yet both appear to have to do with law and lawyers, with the legal organisation of society. In what follows I willlook at how they are related. I will argue that it is the complex interaction of both these concepts that enables us fully to understand legality. It is only then that we can begin to see it as a mode of organisation appropriate to a free and democratic society. Shklar and the Meaning of Legalism

Judith Shklar (1986) describes the legalistic attitude well. It is a moral attitude that wants to insulate law from politics, preferences and the like. Though it is something that specifically originates in lawyers' thoughts about the world, it seeps through a wide spectrum of opinion and people. Legalism, as an ideology, can run across the institutions of morals and law. Thus some moralities can be highly legalistic while others are the exact opposite. As Shklar points out, the great philosophers of the western tradition have insisted on morality as something that can be deduced from prior rules, even if these are, as in Hobbes and Hume, based on the passions. It is Kant though, who might be seen as the acme of a rule based morality. What contrasts with such legalistic moralities? It is the abundance of irrationalist moralities, based on the heart and on feeling or 'the will to power'. Existentialism, and the 'flower power moralities' of the sixties also come into consideration. But we must be careful not to dismiss thesealternatives out of hand. 'All you need is love' , even when seen in the context of the heady days

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of dope smoking might not seem a satisfactory alternative to Kant. But what

it does point to is that social values can be legalistic or non-legalistic; that

saints and heroes are as important as rights and duties and that morality always aims towards supererogation. Here the question of what is 'owed' does not have pride of place. Religion also provides us with an example of this continuum. Christianity can be seen as a legalistic religion, especially in the Pauline tradition. But there has always been a strong sector in the church which has stressed the opposite. Christianity was a religion of love and what mattered was not so much following the law as being pure at heart. Jesus came to destroy the old law. It is weil illustrated by the Pharisee as he stands in the temple proud that he obeys the laws and is not like the sinners. Jesus damns that Pharisee. In the law all this is expressed, for Shklar, in what she calls formalism. It is in that way that the law gets the requisite degree of impartiality. It is viewed as a system of perfectly clear and consistent rules. These contain precise and 'scientifically' analysed terms, elaborated out of perfectly analysed and synthesised concepts, the concepts being unvaryingly used in the same sense throughout the whole body of law. Law is treated as a self contained and autogenerative system which needs to be kept distinct from politics in order to organise our Jives. Politics isadirty business and it is only through the pristine objectivity of pure law that we can have clean systems. This can also be seen in the 'World Peace through World Law' movements. Law, which is right, will replace politics, which is power even if hidden power. Thus law is cut off from being contaminated by politics and has a history of its own. Internationallaw is a 'primitive stagein the history of law'. Though law in general has 'clouds of history trailing behind it', the content of this is seldom speit out. It is as if law is its own history, prompted by its own internal mechanisms (Bankowski I Mungham 1976, pp. 32-38). Legalism is uncompromising because rules are, according to Shklar, binary. They either exist and apply or they do not. So legalism has nothing to say about relations between incompatible systems of rules except that one set must be binding. Shklar says: The urge to draw a clear line between law and non-law has led to the construction of ever more refined and rigid systems of formal definitions. This procedure has served to isolate law completely from the social context within which it exists. Law is endowed with its own discrete integral history, its own 'science' and its own values, which are all treated as a single 'block' sealed off from general social theory, from politics, and from morality. The habits of mind appropriate, within narrow limits, to the procedures of law courts in the most stable legal systems have been expanded to provide a legal theory and ideology with an entire system of thought and values. This procedure has served its own ends very well; it aims at preserving law from irrelevant considerations , but it has ended by fencing legal t hinking off from all contact with the rest of historical thought and experience (Shklar 1986, pp. 2-3).

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Though legalism's ideal of objectivity through formalism depends upon some sort of agreement, it is not the only thing involved. Legalism prescribes agreement through rule-following. Though the theory uses rules to create agreement, rules also presuppose that agreement. Thus we can see that naturallaw theory is not exempt from the ambit or ambitions of legalism. It is the rules that are important, not how they are arrived at. For legalism the power of natural law would lie in the rules that it generates and not in the nature, God or practical reason that might be said to produce them. The particular moral view that naturallaw has, becomes infected with the neutral ideology of legalism. Rules save the day and evade personal responsibility. This is not to say that laws do not encompass the values of the particular culture that they find themselves in. Legalistsand lawyers admit that. The claim here is rather that no matter where the rules come from, the effect of legalism is to make them appear objective and unchangeable. Legalism doesn't so much deny the connection between law and values as hide it and tuck it away from view. Since it concentrates on the rules to the exclusion of everything eise, the rules lose their sense of contingency. They dominate the entire moral universe. They are the islands of stability in a chaotic universe. This kind of view is something of the sort that I set up as a target of criticism in Images of Law, as do proponents of CLS. This concentration on law and the rules has made us forget that it is we who make the rules and we that can change them. We see ourselves instead as the technicians of rules that we do not and cannot challenge. The morality of law (or of legality) becomes one of legalism; of the technical rational manipulation of rules. The rules have a life of their own which cannot be challenged. They control us rather than we control them. What we concentrate on is the rules themselves; rather than looking at their instantiation in the social context. Fiat iustitia ruat caelum or as Kant would argue, one should act on one's universilizable maxim no matter what the consequences; never tell a lie, not even to save a life.

Legalism and Society

The implications of this train of thought might appear rather radical. Legalism and legality are linked much more closely than we originally thought appropriate. Legality, which we at first thought of as a good thing, turns out to be bad, because contaminated with legalism. Shklar herself expresses this confusion. At first she makes the distinction. Narrow legalism is nottobe conflated with the noble theory of legality. We can see this when she discusses Nuremberg. Her attack on Nurernberg is not that it happened but rather that it was seenasalegal process. The justification of the trials could only be, according to Shklar, political necessity. They could teach the

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German political elite what the loss of legality meant by conducting a trial which, though it could not be justified by legality, was absolutely fair and used incontrovertible evidence. The legalism of the solution worked because it brought back respect for legality among the Germanelite who then fashioned Germany into a Rechtsstaat. This could not work in Japan because the Japanese did not have a legalistic culture to appeal to. Most saw the war crimes trials as the work of conquerors acting as conquerors will always do. These arguments seem to approve of legalism as a policy which can, in certain cases, provide a way of showing respect for legality. The implication of this is however, that the two do have close connections. Moreover it is not clear from her arguments how the two do differ. She does, as we have seen, argue that legalism is not only to be connected with law but spreads across all forms of ordering as well, notably morality and politics. But her view of what it in fact is, is rather more difficult to detect. For her all examples cantrast nomian and antinomian systems in law and morality. Thus it looks as though it is rules that she singles out for attack. On this view it is no wonder that lawyers, as she says in the second edition of Legalism, looked at her work askance. For they saw her attack on rule-based solutions as approval of a more radical antinomian posture in law than that which she actually favours. The book is ambiguous in this respect. Legalism and the overtly radical Images of Law could, on one level, be read as saying much the same thing. It is arguable that a rule-based way of looking at things is closely tied to capitalism. Weber, for example, saw a close connection between the development of a highly rationalised form of legal administration and the development of large industrialised capitalist economies. Here, the predictability and order of the law helperl the capitalists in their decision making. At the same time, according to Weber, there occurred increasing use of bureaucracies as institutions for administering work. Here abstract rules are very important since it is they that enable there tobe accountability and adequate Supervision of the staff at the lower end of the pyramid. 'The red tape' of bureaucracy was there, in the first instance anyway, to protect rather than obfuscate. For Weber, this was all part of a movement which he called 'rationalisation'. Most attention is paid to maximising efficiency since the most pervasive value is control over the environment and prediction of the future . To further this, there is an increasing separation between means and ends and law is concerned with means questions.

Bureaucracies and legal institutions arenot committed to any particular set of values and can serve any political system. Thus these three factors, abstract formal rules, bureaucracies, and the division of means and ends, promote both efficiency and the values required for capitalism. We can thus see why legalism has such a strong hold in the sort of societies that Weber

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describes; why people can think that the rules ought to be obeyed, right or wrong, because they are the rules. Fuller (1969) indeed argues that notions of moraland legal responsibility reach their full height under capitalism. For Hayek and others this inextricable intertwining of law and market implies the freedom of the market and equality under the rule of law. For others it implies what Marx called the 'fetishisation of commodities'. It is not I who act but my commodities. In Marx's fine phrase: "It is not I who go to the theatre but my money." Law is the same. For we achieve equality before the law by standing before it as an abstract legal person not as a concrete individual with all our particular history. The legal person is this entity which acts in the law and not me. This legal person has the freedom to go to the Ritz but I do not. I stand on the outside looking in. This then is something like the criticism of the CLS when they say that law objectifies legal life and makes change appear impossible. Legality and legalism are the same thing. Shklar, we have seen, shows how many lawyers think this to be the case and think it to be no bad thing. But the opposite way out of this - a celebration, as by CLS, of the plasticity and infinite changeinhuman life- does not seem appropriate either. Iris Murdoch in her novel Under the Net effectively debunks the attempt to live life like that (Murdoch 1954). The middle ground says that we must not concentrate on rules too much. It is there that we can locate legalism - it is nomianism taken to excess. Love and Duty

What is 'too much' here? My inspiration here will be the distinction that Lon Fuller draws between the morality of aspiration and the morality of duty (Fuller 1969). The best way to explain this is to tell a story. Suppose someone asks how they can be a good husband and love their wife. My reply might be something to the effect that they have tobe gentle and kind. Butthis might not satisfy my legalistic interlocutor. He thinks this is too vague and wants some more specific rules that he can follow. I reply that he should give his wife flowers every week; go to a good restauraut once a fortnight; and agree to at least 75 % of her requests. This satisfies him and he goes off and duly follows these rules. When he comes to me some time later, aggrieved because his wife has left him, what do I say? He thinks he has done what is necessary - he followed the rules that I gave him. But his mistake would have been to think that was enough. More was necessary and he would only learned what that was if he had not ignored my fine but vague phrases. One might say that following my rules was the morality of duty - a sine qua non of being a good husband. But being a good husband demanded something more than that - he had to look to the morality of aspiration that the

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rules demanded. The parable of the Good Samaritan makes this clearer. The lesson of that parable is that one should love one's neighbour, a category which, as Jesus implies, is rather wide. But look what happens in the law. In the case of Donoghue v. Stevensan 1932 AC 599 Ld Diplock said: The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to me to be persons who are so closely and directly affected by my act tha t I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me tobe the doctrine in Heaven v. Fender as laid down by Lord Esher.

What the law lays down as one's duty is the sine qua non without which loving thy neighbour would be impossible. But this clearly does not exhaust the possibility of love nor does it mean that the person who merely does not injure his neighbour, so defined, is really loving his neighbour. For that, you need a morality of aspiration, which is given in the parable Jesus told. Loving your neighbour means more than following the duty of the law and you will not even understand what that duty is unless you look to the aspiration guided by the story. Legalism is to mistake the minimum duties of law for legality and the whole of law; to say that alllaws can be seen as merely the morality of duty without looking to the aspirational parts of it. An example from legal theory might also help. The practice theory of rules founds moral rules on social practices. It has been put forward, among others, by H . L. A. Hart. A problern with such a view is whether it can account for a critical morality. How can a lone vegetarian in a society of meat eaters criticise the social practice of meat eating? One answer would be that the social practices about meat-eating have been misdescribed and that we should restate them. On closer examination, we might see that this imaginary society had no social practice treating meateating as obligatory. Rather, it had a practice of condemning cruelty to animals, or indeed to allliving creatures. The difference between the vegetarian and the meat-eater could then be seen as a difference within a single moral practice. The meat-eater's cut-off point for drawing the line between unacceptable cruelty and acceptable treatment of animals would simply be lower than that of the vegetarian. The practice would be the same, that of avoiding cruelty to animals. They would both be participating in it. We thus circumvent the problern of making the lone moral critic's position intelligible. For we can look at the practice tobe criticised in a way which enables us to see the criticised and the criticisers' points of view as aspects of the samenormative practice. The difference being that along the continuum of that practice the one places the point of obligation somewhat lower than the other. That point is what we might call the morality of duty - beyond that is aspiration.

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What legalism does is to mistake the rule that expresses the duty as all there is to it. It forgets that it is merely a point on an aspirational scale. We mistake the actual rule as being all there is to it. Wehave to look at the rule of duty within the context of the practice of aspiration of which it is apart. Though we have duties for which one might say that legalism is appropriate, this does not mean that they are written in stone. For aspirationwill sometimes mean that the sine qua non of duty might have to be changed. At other times, duties that seem set in stone can be seen as an imprecise way of helping us to get to the aspiration which will also change those duties. An example of the former case can be seen when the duty is seen as more aspirational. It imposes too heavy a charge and breaking it would not be hypocritical as long as one held to the aspiration of which it is part. The latter case would be when the detailed rules enable one to come to an understanding of the aspiration for which they stand. This would enable one to break the rules, the better to follow the aspiration. Thus when the enlightened Christian moralist teils his perplexed student who finds it almost impossible to follow the church's complex and detailed moral teaching, 'All you need is love', he could mean both of these. He does not mean the love of the flower power days, rather that the rules are to some extent aspirational and should not be read as imposing impossible demands. That is why failing to follow the rules need not be hypocritical. To call it so would be tomistake aspiration for duty. And this is how legality differs from legalism in that sometimes the rules have to be changed for the higher aspiration. Aspiration and duty feed off each other . Authority and Autonomy

What I have clone is show how a determined and an ever changeable universefit together. How rules can be both hard and determining and infinitely plastic. But the fact that one can see it like that does not mean that one should see it like that. Herewe can see how CLS differs from the realists who were its precursors. For both thought of rules as things that were plastic. The Realists sought to give them some form of objectivity and stability that rested on a better foundation than what they saw as the sterile conceptualism of the age (Duxbury 1991). Exponents of CLS, on the other band, while sharing the cognitive position of the Realists, do not necessarily accept their normative stance. The more they are sucked into the post-modern maelstrom the more they see this variety and change as something tobe celebrated (Gellner 1992). How can we fit tagether the celebration of plasticity with a rule-bound view of things? This, in many ways, is the same as Wolff's (1976) problern of authority. Law always makes me act heteronomously because I do not make

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a decision as to what to do but let the law do so. Law, in this sense then, can be characterised as something we follow without thinking about it - the supreme sin for autonomaus man." Since I can only act on laws that I autonomously make my own, anarchism seems the only answer. But is this really the supreme sin? Are there not cases, without indulging in conservative notions of fitness to rule and social place, where not thinking about what to do is the right thing to do? This is important for the anarchist and, by implication, for the CLS theorist. If they attack heteronomy too much, they might find themselves caught in a paradox. For on Wolff's view of it, it is difficult to see how they could enter into any binding commitments at all. Even Wolff's best argument for obeying the law- that it has been unanimously agreed beforehand- will not work. Each time you are faced with obeying the law you have to reconsider your part in the unanimous agreement and decide again whether or not you are to follow the law. A promise would be surrendering autonomy because you would be following a rule and not thinking about the actual reasons for doing what you had promised. The paradox is this. An anarchist, in relying less and less on the authority of the state wants to rely more and more on voluntary agreements such as contracts, promising etc.- but thesearealso excluded by the argument on autonomy. One way of getting araund this argument is to use the notion of exclusionary reasons. The following is an example adapted from Raz (1975). Someone is phoned up late at night by a friend and affered the chance of a speculative but potentially highly lucrative investment. The only drawbackisthat they have to make up their mind immediately. Knowing he is a bit drunk and tired, and thus not trusting his judgement, what should he do? He could make the decisions on the balance of all the reasons pro and all the reasons contra including the reason that he is tired and a little drunk. He could, on the other hand say that he makes it a rule not to take investment decisions late at night. The former way of doing it would be to make the judgement on the balance of reasons. The latter would use the rule 'Don't take investment decisions late at night' as a reason for excluding consideration of the investment decision on the balance of reasons, even although that decision might be to make the investment. His decision would operate at a second order level in respect to the reasons of substance as to whether to take the investment decision or not. It would thus be an exclusionary reason or a content independent reason. We would have a reason for not thinking about the substance of the case because of this second order reason. Does this work? According to Detmold (1984), there is a distinction tobe made between the decision to not make the investment and the decision to use tiredness as a reason to exclude making the decision on the balance of reasons. The following problern then occurs. Why should you use that latter decision as a reason to exclude making the judgement on the balance of rea-

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sons? In the end, surely, that judgement has to be made on the balance of reasons. For if I am acting forthat reason then I must be able to weigh it against all the other reasons. Thus, it might be argued, because that judgement reaches down into the substantive particularity of the problem, one can always reconceptualise the system of exclusionary reasons as ones taken on the balance of reasons. The question is, more generally, does the exclusionary reason exclude itself? Sufficiently complex ones will, Detmold argues. Thus, if one of the main points of law is to produce a system of authority which will enable us to have a common way of settling things which might otherwise be continually disputed and thus harm the society, that is in itself also a reason not to ask questions about law itself. This generates a paradox. If law is excluded as a system of authority from being questioned, then it does not count in practical thought and we are left with the substantive reasons. But if, because of the Liar's Paradox, we say that we cannot exclude it, then it generates an infinite regress of third order, fourth order reasons etc. Now this is a very cogent analysis and it seems to imply that either we are locked into an abstract reasoning process or always taking particular decisions. But if we look to how this structure of reasoning might operate in the law, then perhaps these theoretical problems might be bypassed. There we can see that the second orderwill not necessary collapse into the first order or be lost in its own circularity. We can see there how we can both have autonomy in our daily lives (having regard to the substantive reasons a s they confront us) and also heteronomy (acting like automata) without at base undermining our autonomy. In other words, how heteronomy and autonomy are heldapart without collapsing into each other. We can both 'think about it' and 'not think about it'. Let us turn to the law then. Atiyah (1986) lays the argumentsout clearly in his article on Form and Substance in Legal Reasoning. For him formal reasoning is seen much as on the model of Raz's (1975) theory of exclusionary reasons. We treat the reason as conclusive because it is there, we do not need to inquire behind it and 'think about it'. Heuses the example of marriage to show the point behind formal reasoning. He confronts the argument proposed by certain legal scholars, that we do not need marriage as a formal status in the law, for everything that turns on it could be considered ad hoc in the context of a two person r elationship. We could then abolish marriage as a legal institution. We would solve the problems of what, for example, counts as cohabitation for various purposes such as inheritance or social security law, by looking at it case by case and making substantive moral decisions. But this would be ineffective and time consuming. We can see this in the difficulties courts have been having with such concepts as palimony. The introduction of the status of marriage insulates us from many of these problems and gives us clear definitions by tying co-habitation to marriage. But the question still

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remains; what is the guarantee that the decision made this way is morally acceptable? We seem tobe back where we started. Atiyah says that the reason we feel that our formal decision is right is, in the end, because we are satisfied and certain in our substantive decisions. The implication is that at some time the substantive problems were solved rationally and thus we can now afford to use formal reasoning. The institution comes about because gradually a practice grows up where, for example, we do something we say we will, not merely for the substantive reasons we had in saying we would do it, but also because of the reason that we said we would do it. At first that is one among all the reasons but gradually it excludes the others and so we might say the convention of promising grows up. We do it because we promised and the other reasons are excluded. Thus the institution grows up on the back of the substantive reasons since the reason that it is a promise can be seen as a universalization of the substantive reasons. This gives us both a democratic, autonomaus input and ma chine-like heteronomy.

Norms and Machines

This view of the law as an institution can be derived from the work of MacCormick and Weinherger (1986). It has the quality of channelling our actions in particular ways. Though they rest on the back of substantive decisions and thus do not detract from our autonomy, it is the institution that is the determiner for our actions. What I am trying to showisthat 'not thinking about it' and thus behaving like an autonomaton is in some situations appropriate and acceptable. I further illustrate this by looking at the use and possible use of computers in these situations. My first example is from the work of Sandra D ewitz. She has attempted to design a system for an electronic contracting network. The aim here is to automate the generation of bills of lading involved in the carriage of goods for import and export. What she proposed was that the system itself would generate the documents. The model she used was the MacCormick and Weinherger institutional model where, for example, a contract exists as an 'institutional' fact, generated and constituted by interpersonal dealings interpreted under certain rules. But the computation just transforms raw facts into institutional facts according to its program. It does not itself apply a rule. We see here the automatic quality of what happens when we enter the institutional rules of the system . Once there we don't think about it since the performative network, being the medium through which the acts are performed, can observe acts and communicate successfully witha legal data base. It makes things much more convenient to all parties because

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this reduces the risk of error and also makes disputes less likely since the institutive rules, as the 'umbrella contract', make things explicit. It pushes 'thinking about it' to the level of institutive rules. My second example is from the work of Andrew J ones and Marek Sergot (1992). Sergot has observed that for practical purposes one can see large parts of legislation as definitional in nature. Thus in their work on the British Nationality Act, Sergot et al (1986) claimed that the main point of the Act wastospell out the conditions under which an entity qualifies as a British citizen. What interests me here is the general point that, where legislative texts are taken to produce qualification norms, then for all practical purposes the deontic modalities can be ignored. I am not interested in the criticisms levelled at their work from a political and sociological point of view. If one is going to produce a system which will in fact classify entities in a way in which they ought tobe, then it is redundant to make it suchthat it could fail so to classify them when it should. Sergot's example of this is taken from a simplified model of the regulations for the use of Imperial College Library. Here are some simple library regulations: 1 A separate form must be completed by the borrower for each volume borrowed 2 Books should be returned by the due date 3 Borrowers must not exceed their allowance of books on loa n at any one time 4 No books will be issued to borrowers who have books overdue for return to the library Book allowances Undergraduate Postgraduate Academic Staff

6 10 20

We can consider many of these regulations as definitional in the sense above. We can further design a system that operates according to these specifications in such a way that we can, as Sergot and Jones say, 'force actuality and ideality to coincide'. How do we do this? Firstly we produce a database of who has borrowed what and when. Secondly the system for borrowing books is now automated in the following way. To borrow a book a library card is inserted and the machine sees, from the information in the card and its database, whether the person is in good standing in respect of the regulations. If not then the card is ejected and they are not let through. If things are acceptable, then an electronic version of the book is given for the appropriate amount of time after which it self destructs. We see here that regulations 1 and 4 become obsolete and 2, and 3, are merely statements of what is the case.

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What we see then, is how the normative has become descriptive. This gives us an example of rule following which has the machine-like quality of heteronomy: we 'don't think about it'. How do we know that the system follows the old normative rules? Because we can treat them as providing definitions, as qualifying the essence of a postgraduate, member of staff, etc. We see that is now the case. A postgraduate, for example, is someone who never has more than 10 books for a particular period. We can also see something like this working in payroll computers where tax is automatically deducted in accordance with a calculation of the employee's tax liability. Here again normative laws become descriptive because machines provide for what ought to be, always to be. There is however an override to slipback into the normative modality through the provision of a system of appeals etc.

Conclusion

What I have been arguing is that in our social organisations we need to be able to act both in a machine like way and in a spontaneaus manner. There are times when we need to 'think about it' and times when we do not and these should be complementary. Legality, properly understood, is this combination. Legalism is connected with legality, it is the rule bound attitude implicit in it as one of its parts. But the kind of legalism which Shklar attacks is where that attitude is taken for the whole of legality. It seems to me, that sociologically at least, it is beyond question that many lawyers and legal systems have that attitude and proudly call it legality. This is because 'not thinking about it', if left to its own devices, tends to take over the entire social world. The world becomes a place peopled by automata who act like automata. This can have drastic consequences. Think of what happened when the world stock markets crashed. One of the causes was automated systems of selling- sell orders being automatically triggered at certain prices. This had a re-inforcing effect and created a sort of amplification spiral which drove the price further down, which generated more sell orders and so on. This had its own inexorable logic and nothing could be clone short of destroying the whole system by pulling the plugs out. How can we prevent the above happening in the case of legality? What we need are overrides that prevent this happening without the destruction of the whole system. We need institutions which can link heteronomy and autonomy tagether without destroying one or the other. This will create a mode of organisation where both heteronomy and autonomy operate in a way that is complementary one to the other and which, in its total operation, can be called legality. I have no space to go into that here. Elsewhere (Bankowski

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1986) I have shown how lay institutions in the legal process perform this task. I have called these institutions bridging institutions. It is they that provide the override and tell us when the machine-like action of legalism should stop to enable us tothink anew about what to do without destroying the whole system. It is they that turn legalism into legality.

References

Atiyah, P. (1986), Form and Substance in Legal Reasoning, in: D. N . MacCormick I P. Birks (eds.), The Legal Mind, Oxford. Bankowski, Z . I Mungham, G. (1976), Images of Law, London. Bankowski, Z. K. (1989), The Rule of Law and Participatory Models of the Legal Process, in: H . Jung (ed.), Alternativen zur Strafjustiz und die Garantie individueller Rechte der Betroffenen , Godesberg. Detmold, M. (1984), The Unity of Law and Morality, London. Duxbury, N. (1991), Jerome Frank and the Legacy of Realism, in: Journal of Law and Society, Vol. 18, No. 2. Fuller, L . (1969), The Morality of Law, New Haven . Gellner, E. (1992), Postmodernism, Reason and Religion, London. Jones, J. I Sergot, M. (1992), Deontic Logic in the Representation of Law in Artificial Intelligence and Law, Vol. 1, No. 1. MacCormick, D. N. I Weinberger, 0. (1986), An Institutional Theory of Law, Dordrecht. Murdoch, I. (1954), Under the Net, London. Raz, J. (1975), Practical Reason and Norms, London. Sergot, M. I Sadri, F. I Kowalski, R. A. I Kriwacz ek, F. I Hammond, P. I Cory, H . T. (1986), The British Nationality Act as Logic Program, in: Communications of the ACM 29, 5. Shklar, J. (1986), Legalism, London. Wolff, R. P. (1976), In Defence of Anarchism, New York.

LAWAND MORALITY AN ANALYSIS OF THEIR POSSIDLE RELATIONS Roberto J. Vernengo, Buenos Aires I.

Many kinds of relationships are supposed to obtain between law a·nd morality. On the one hand, it is often claimed that the connection between law and morality is necessary, although the nature of this necessary connection remains unclear. On the other hand, many have insisted that moral rules and legal norms are only contingently related, a thesis constituting the very backhone of legal positivism. As a political slogan, or as an ethical principle, it is sensible to affirm that law ought to be in some sense, moral; the converse thesis - that morality should be legalistic - is nowadays not so well received, although it is abundantly represented in traditional moral codes and ways of thinking. Now, law is conceived of in many ways: in a very restricted way, law is defined as a distinctive set of norms. Within a larger conception, many other ingredients are acknowledged as belonging to it: principles, values, facts and so on. Morality is, in turn, envisaged as a rather complex set as well. For some thinkers, morality is defined by a normative code, even though its norms do differ somehow from legal rules. For others, morality embraces also principles, values and even events characterized as moral facts. Now, if a relation is assumed to exist between law and morality, some notice should be taken of the composition of the related domains, because the presumed relation between legal facts and moral facts cannot be of the same type as that obtaining between legal or moral rules or principles. Relations between facts differ from relations between words or concepts, as logical relations do not impinge on facts. To believe that no society can have legal institutions if it lacks moral convictions, for instance, is a sociological opinion that may be true or not, but one that needs previously the acceptance of some criteria for distinguishing legal codes from moral ones. The empirical relation is not the matter under consideration. The dependence of law on morality is, then, not a sociological contingency. Nor are the beliefsthat the members of a society can have about the moral connotations of their legal

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rules, the so-called internal point of view, a sufficient reason for ascribing an analytical necessity to the relations envisaged between their law and some morality. lt seems, hence, that to speak of a relation between moraland legal rules refers to something which concerns their content and not only to their conceivably common normative form. But, as in legal theory andin ethical doctrine, from Kant on, that formal aspect is an essential part of the conceptual definition of the fields of prescriptive morality and law, and it is proper to inquire into the nature of the relation postulated when law and morality are assumed tobe normative sets. Let us grant here, for argument's sake, that law and morals consist of sets of norms, of prescriptive sentences. We will not accept a priori Kelsen's thesis that, conceived as a set of norms, law is always moral: " ... die Behauptung das Recht sei seinem Wesen nach moralisch bedeutet nicht dass es einen bestimmten Inhalt habe, sondern dass es Norm ... sei. Dann ist, in diesem relativen Sinne, jedes Recht moralisch, konstituirt jedes Recht einen relativen moralischen Wert" (Kelsen 1960). We will presume only that the ontological presuppositions concerning what morality is and what law is can here be restricted to the weakest possible, taking into account only those assumptions that somehow channel the type of relationship allowed between the two domains. From a purely formal point of view, that is, as plain sets of prescriptions, there is no need to distinguish between law and morality. Same further material consideration has tobe taken into account as a basis for distinction, as, for instance, the ways that the subjects submitted to legal rules perceive them. It seems clear at once that, if law and morality are empirical data, the supposed relations between legal and moral facts have to be empirical also: temporal, causal or psychological, if law precedes, causes or motivates a moral phenomenon. Moreover, restricting our considerations to law and morals as sets of norms requires us to stress that, here too, many different classes of relations can be postulated. To say, for instance, that there is a necessary relation between legal rules and moral norms implies, in principle, that such norms are analytically or conceptually related, as happens when it is assumed as a dogmatic truth that law isasubaltern of morality. But, once a relation is thus defined, all of its logical consequences have tobe tallied as well.

II.

Our analysis shall start stressing a very simple viewpoint. From a normative point of view, the notion of duty- expressed by terms like "ought to", "sollen", etc. - is supposed to have a basic moral tinge. Thus, legal obligation derives, it is thought, from a deeper moral duty to obey the law. To define

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legal obligation solely by a legal ought would place us in a quandary. If the notion of duty is a moral one, because only by assuming it autonomously can a subject be under an obligation, morality, would be a presupposition of all meaningful legal discourse. However, moral duty, so to speak, is always thought of as subject related; hence, it makes no sense to speak of moral prescriptions not believed to be valid by the corresponding subject. That is certainly not the case with legal rules. Therefore, moral duty is always considered primordial with respect to legal obligations. On the other hand, to shrink legal obligations to mere moral duties would not provide a correct conceptual representation of what lawyers derive from the notion of legal duty. What would it then mean to say that law should be moral, if both morality and law are understood as necessarily related sets of norms? The idea implies that alllegal rules, i.e. their total set, must be included, at least as a proper part, in the set of moral norms: law, as the scholastics said, is thus subaltern to morality. Legal rules are thus a subset of the set of moral norms. For this conception, all law is moral, as the inclusion relation necessarily requires. Consequently, to admit immorallegal rules would be contradictory to the relation postulated between both sets: an immoral legal rule cannot exist, because there are no legal rules in the complement of the set of moral rules. So much for the traditional thesis concerning the invalidity of immoral legal rules. What would be possible and suitable instead is the existence of valid moral rules (norms, principles, values) that do not have a corresponding legal existence. Morality is precisely the field of theseautonomaus norms, standards or principles, that control preeminently human behaviour in a wider domain than law; law concerns only those rules determining external social conduct and is, therefore, only apart of morality. This thesis, which I tried to analyze elsewhere (Vernengo 1989), in fact moralizes all law and, from a political point of view, has the very important function of giving an appearance of legitimacy to alllegal enactments. This way of thinking, although spposed to be moralistic, to uphold the moralization of the law, in fact thwarts all possible moral or political criticism of legal enactments. If immorallegal rules are non-existaut by definition, there is no need to reject or destroy them for any reason whatever, and, hence, it makes no sense to condemn them from a moral point of view. Being valid legal norms makes them necessarily valid moral norms. Their moral validity is warranted a priori by the definition of the relations assumed to exist between the two domains. Nevertheless, it is clearly misleading to maintain that every legal rule is also a moral one, orthat every legal duty is backed by a corresponding moral one. Even the assumed equivalence or similarity between legal and moral

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norms is puzzling. In the first place, it is a fact that in ordinary legal discourse andin moral matters, there are no obligatory injunctions concerning the grammatical or logical form of their sentences. Therefore, to postulate some relation between those sentences that are taken as moral or legal norms, is to admit as decisive some very special relation between two sets of sentences. At the level of ordinary language, there are no objective- generally accepted- criteria for distinguishing moral statements from legal prescriptions. At the level taken as relevant by legal experts or in ethical speculation, the trouble remains that there is not an unique recognized canonic form distinguishing moral sentences from legal ones. To what, then, would amount the tenet that legal discourse is apart, a proper subset, of moral discourse, or, what amounts to the same, that alllaw is moral? Legal positivism has sustained, in its more discerning tendencies, the thesis that there may be contingent relations between the set of legal norms and the set of moral rules. That is: there are norms that are morally and legally valid or existent - those norms forming the intersection of both sets. Besides, there are moral rules without legal validity and, furthermore, legal rules lacking moral significance. Thus, it is at least analytically possible to differentiate pure moral principles from positive legal norms, even though reluctantly granting the existence of norms that claim both legal validity and untarnished moral value. The legal norms, morally valid or legitimate, are so according to their contents or subject matter, but their legal existence does not depend always on that concordance. Such legitimate or morally justified legal norms are perhaps convenient from an ethical point of view, but arenot indispensable from a legal point of view.

lß.

The analyticality of the relation between law and morality can derive also from some definitory quirk. Thus, if we define moral rules as beliefs nurtured by the members of human groups, or as the reasons summoned by them when making decisions; and, if on the other side, law is considered analogously as the rules they somehow obey, it is easy to claim inappropriately that morality and law do essentially match. If, furthermore, it is thought that moral reasons and beliefs display a general pretension of validity, as a universal code, it is not surprising if one is enticed to disregard mere positive law as not ontologically authentic: only those legal rules that are morally backed, i.e. that correspond to accepted universal moral principles, are reallaw, and not a feigned legal code or, as it has been said, incorrect or faulty legal rules. Another way to make the relation between law and morality analytical flows from the old doctrine concerning the nature of norms as expressions of

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acts of will, a doctrine having a theological background. Will or intention is traditionally the proper ethical object; nonns, as directives for action, are the linguistic surface structure of acts of will. The individual will, or the collective will, or- higher up on the metaphysical scale- the transeendental will, are thought of as the prime ethical material; it unfolds itself in every human action and in its linguistic expression, nonns. It would be inconceivable, therefore, that legal nonns, as expressions of the will, lack moral bearing. Consequently, it would be ontologically impossible to conceive of legal nonns as alien to morality. Hence legal rules or law in general are considered, in recent naturallaw doctrines, as necessarily moral, for strictly ontological reasons (Finnis 1980). That thesis sometimes leads to paradoxical conclusions, contrary, it would seem, to the aims expressed by their supporters, as when it is said that "one of the forms of moral obligation is legal obligation", or "legal rules, like promises, can generate moral obligations" (Ibid, pp. 318 and 320). However, I would like to show, once more (Vernengo 1992), that the definitional hoax referred to above is also present in some recent attempts to sustain the thesis of a necessary relation between law and morality. Thus, we find in some sponsors of the so-called procedural ethics or discourse ethics, the allegation that, at least partially, there is a necessary connection between law and a procedurally-determined morality. If law is a dynamic procedural system of rules, then for the members of the group affected, moral considerations (reasons, arguments, discoursive resources) are clearly necessary conditions for the validity of their law. That is, for the participants in a social system, their law must be created and enforced through correct procedures, being thus justified. Then, correctness, legitimacy or justifiability of the law is moral by definition; hence, law must partake of some of the ethical attributes that pertain essentially to morality, like the claims to equality, universality or generalizability of their nonns. Thus it is claimed that, "a necessary connection could be established between law and a universalistic morality, which is directly valid for modern legal systems" (Alexy 1989). Disregarding this restriction, it has tobe pointed out that the necessity of the connection or relation is thus defined ad hoc, making the truth of the thesis merely conventional. In effect, although the relation between law and morality is considered as a "conceptually necessary connection", the modality - necessity - is oddly defined: conceptual necessity is a "normative necessity" which, as Alexy takes the trouble to underline, is not equivalent to logical necessity. For him, "something being nonnatively necessary means no more than its being obligatory; ... thus it becomes obvious that nonnative necessity is only a necessity in a broader sense" . One would say, instead, that being obligatory does not imply conceptual necessity at all, while logical necessity nonnally implies obligation. To understand the necessary connection between law and morality in this

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sense, implies that law ought to be moral, whereas Habermas contends that morality ought tobe legal. Butthose rules or principles, or meta-norms, if you like, to which these authors refer, arenot material moral norms in any sense, asthat would imply circularity or a petitio principii. It seems therefore that the necessary relation or connection between law and morality can only be achieved taking into account the content of the norms belanging to both domains, and not merely of their purely formal aspects or of the procedures governing their creation and administration: the thesis of the necessary connection would amount accordingly to the quite reasonable desideratum that the material validity of the law be the result of a moral appraisal of the content of legal rules and of their empirical effects on the behaviour of men. No legal rule is itself intrinsically or necessarily valid. Their material validity or legitimacy derives from necessarily valid moral rules determining their correctness or justice, i.e. their positivemoral value.

A moral rule contingently valid seems an absurdity for the traditional ways ofenvisaging morality and for recent procedural ethics. That they are necessarily valid means that it is not possible to accept a contrary norm as a reason for acting. That difficulty does not appear in law, where normally every norm is thought of as contingently enacted: that is, in principle the possibility of a norm contrary to the one considered valid is not excluded. This assumption, which is essential for positivist tendencies, rises clearly in view with the doctrine that legal norms can regulate any possible content with any deontic modality whatsoever. The material contents of legal norms do not determine their normative modality or sense, while the contents of moral norms thwart that deontic indeterminacy. In this respect, it may be important to note that the commonly-advanced denunciation of positivism, according to which legal norms may accomodate any content whatsoever, does not (as affirmed by detractors of positivism) permit legislative licence or discretionality. It only means that, given the possible deontic modalities that a legal norm may adopt, the choice between those deontic alternatives is determined by the set of antecedent circumstances which legal norms define as sufficient conditions for the enforcement of the normative consequence. If, according to the classical notion of logical consequence, legal hypotheses are monotonic, then an extension of every conditional rule can be established with the desired or required spread, since the antecedents of a conditional expression can be expanded at will. Therefore it is not the contents of the normative consequent of a norm that determine its deontic character, but the set of antecedent circumstances which are, for pure logical reasons, monotonically extensible (Vernengo 1991). Be that as it may, once a determining relation is assumed between law and morality, every legal rule that does not agree with the corresponding moral

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norm or principle would have its legal validity called into question. For extreme naturallaw positions, that inconsistency amounts to the lack of legal validity of the apparent legal rule. In general, jurists are more cautious, agreeing that the incompatability of some legal norms with moral principles does not affect the general obligatory standards of a legal system. Where moral legitimacy is a strict condition for legal validity, as some legal systems establish, inconsistency between moral norms and legal rules allows the annulment of legal rules. This implies that some moral code has become part of the legal order, contrary to the traditional ideal of law as a subset of morality. IV. The above-mentioned discussions resemble an attenuated version of naturallaw theses. For an external observer, a legal order can be acknowledged as valid without taking into account the moral merit of its norms. This is not possible in the case of an internal view taken by a member of the social group. Hence, from an external position, the moral requirements on the law are only a political aspiration, which does not limit in any way the legality or formal validity of the law. As any norm whatsoever, including a legal norm, can be understood as an axiological preference-expression referring to any action or its omission - to mak e a duty out of an act is to establish a preference in favour of its performance and against its omission; to prohibit it is to agree that the omission is preferable to the performance of the act, and so on- the normative necessity mentioned above can be construed as the expression of a preference for those legalnormsthat agree with corresponding moral ones. Yet it happens frequently that the axiological preference that legal norms r epresent does not accord with current legal values. Often, acts morally forbidden are legally permitted, and not everything that is morally good is legally obligatory. If that is the case, the presupposed relations between law and morality become rather diffuse, and its logical properties very vague. The relation is thought of as a function, in the sense that the "ought" character of the moral norm is transmitted to its counterdomain, the corresponding legal norm. But the supposed function is taken as normatively modalized. Law is not only a part of the moral realm, but ought tobe morally worthy. That law ought tobe moral is not, moreover, the consequence of rules of the same level, a s there is no legal or moral prescription of the same level imposing a moral condition for the existence of valid legal norms, without incurring circularity. Law should be moral, rather, according to meta-ethical rules establishing the relations between both domains, but those rules are not part of a positive moral code nor of an ideal morality.

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Habermas states that law and morals are subject to internal relations that we can consider necessary or essential. Therefore when law lacks moral justification, when legal validity loses moral foundations, law itself disappears, or, as Habermas says, "the identity of law itself becomes diffuse" . But if the morality taken into account is autonomous, the question of its law-grounding function becomes problematic. Thus, "autonomous morality only has fallibilistic procedures for the foundation of norms, as the procedural rationality of (moral discourse) is imperfect". Hence law, that would attain its ontological identity as a consequence of an internal relation with morality, cannot attain it because of an intrinsic deficiency of morality. And since, according to Habermas, the internal relation postulated is never defined, law remains indeterminate in itself andin its moral foundations. As a result, in opposition to classical doctrines, where "law threatens to dissolve into morality: law is reduced to a deficient mode of morality", morality instead becomes dependent on law. Not only because "morality from the very outset of its theorization appears with a legalistic bias", but also because of a supposed "mutual intertwining of law and morality" where they become "reciprocally complementary", i.e. equivalent. In this way, "morality migrates insidepositive law, without exhausting itself in positive law". Thus the subalternation relation favoured by classical natural law doctrines is reversed: now morality is a proper part of legal systems (Habermas 1985). The relation of reciprocal complementarity is not defined precisely. Consequently, nothing very definite can be gathered about the nature of the influence of morality on law. Furthermore, the morality defended by Habermas is of a "pure procedural nature ... that has been freed from all determined normative content". How morality can control law, or vice versa, thus remains an enigma. Perhaps one could admit that law, as a set of procedural rules, and the proceduralized morality summoned, are only a part of what elsewhere is understood by law and morality, viz. the intersection-set of moraland legal procedural norms. The proper subset constituted by moral norms would be, nevertheless, "deprived of every specific normative content and sublimated to a foundation procedure for possible normative contents" (lbid). Current positivemoral codes, the so-called positive morality, and a fortiori, the set of rules of a postulated ideal morality, do not include such procedural norms. That is, morality is not, to adopt Kelsenian terminology, a dynamic system: traditional moral codes do not contain norms of the same level regulating the creation of moral norms. And if these moral procedural norms are the rules regulating moral argument or discourse, like the examples proposed by Alexy, for instance, it is clear that they are not moral norms in any sense. It is natural, then, tothinkthat this formal procedural morality, lacking material contents and reduced to foundation or argumentative

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procedures, consists of the set of meta-ethical rules that define the validity (criteria of identity) of material morality norms. Law, as the including set, enabling material moral norms tobe effective, is certainly a dynamic system. If it embodies the intersection-set defined above, it turns out that the alleged moral rules, morality, are, strictly speaking, legal prescriptions. Morality comes badly out of this interaction with law; hence, Habermas concludes that "to compensate for the weaknesses of an autonomaus morality", morals require a "legal institutionalization" for earning the necessary obligatory character that law has.

V.

The alleged necessary relation between law and morality depends, furthermore, on the logical attributes of the relation itself, and, naturally, on those required by the system of logic involved. Let us suppose that the most neutral and least ontologically compromised of the logical relations that might obtain between law and morality, as normative sets, is the one represented by inclusion or material implication. That was the relation taken into account when the scholastics spoke of the subalternation relation between law and morality. It may be interesting to pointout that recently various logical systems have been examined with the purpose of investigating more precisely the relations between law and morality, or, more specifically the implication relations between morals and legal sentences. Not only the possible implication relations between legal and moral norms, but also possible axioms expressing axiological preferences between moral and legal sentences have been examined. For instance, it can be established, on the one hand, that every legal obligation is morally permitted (as in classical naturallaw doctrines), and, on the other hand, that, given certain legal and moral duties, the moral obligation is stronger than the legal one; or, if so wished by a legalistic mind, that legal obligations shall prevail on moral ones, according to the axiological weight bestowed on morality over legality. What is interesting to emphasize here is that each set of postulates or axioms entails different consequences according to the logic wielded. As far as I know, no set of axioms has been entirely satisfactory, because they always allow counter-intuitive consequences. That is pre-eminently the case of the axiom sets intended to reconstruct the traditional ideas on the necessary connection or relation between law and morality, which give morality the role of an including set. In any case, it seems clear that the logics involved in the thesis should be explicit; the logical systems developed presuppose anyway that legal and moral norms are differentiated and that it is possible, without inconsistency, to assign them different preference values. In that

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respect, it is now clear that the classical principle that law must be subaltern to morality, orthat "positive law must acquiesce with moral principles" is not a necessary truth and that the relations between the two domains may be diverse. To choose one or another possible relation is notapuremoral issue, but is also a logical decision involving different sets of presupposed axioms or principles and different logical deductive tenets and consequences. Positive morality and ideal morality are not expedient for deciding those issues, because no one would accept that the logic admitted or presupposed is morally chosen. Thus, without going deeply into this controversial matter, to speak about necessary relations between law and morality, whatever they may be, seems somehow untimely or pretentious, when the previous rational questions concerning the nature of the relation itself and its logical consequences have yet tobe defined.

References

Alexy, R. (1989), On Necessary Relations Between Law and Morality, in: Ratio Juris, Vol. 2, No. 2. Broekman, J. M. (1985), La separaci6n entre derecho y moral, in: Boletin de la Asociaci6n Argentinade Filesofia del Derecho, no. 28, La Plata. Caracciolo, R. (1992), El argumento de la creencia moral, in: Actas Simposio sobre derecho, moral y l6gica, C6rdoba (Argentina). Da Costa, N. I Puga, L. I Vernengo, R. J. (1990), L6gica, moral y preferencias valorativas, in: Theoria V, No. 12-13, San Sebastüin. Da Costa, N . I Puga, L. I Vernengo, R. J. (1992), Normative Logics, Morality and Law, in: A. Martino (ed.), Expert Systems in Law, Holland. Da Costa, N . I Puga, L. I Vernengo, R. J. (1992), Sobre algunas l6gicas paraclasicas y el analisis del razonamiento juridico, MS. Dreier, R. (1988), Recht, Moral, Ideologie, Frankfurt am Main. Finnis, J. (1980), Natural Law and Natural Rights, Oxford. Habermas, J. (1987), Wie ist Legitimität durch Legalität möglich?, in: Kritische Justiz 20; cf. also Ratio Juris, Vol. 2, No. 2. Hart, H. L. (1983), Essays in Jurisprudence and Philosophy, Oxford. Hoerster, N . (1987), Recht und Moral: Texte zur Rechtsphilosophie, Stuttgart. Kelsen, H. (1960), Reine Rechtslehre, Wien.

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Vernengo, R. J. (1988), Moral y derecho: sus relaciones l6gicas, in: Anales de Ia Catedra Franciso Suarez, No. 28, Granada. (1989), Sobre algumas rela'orgeirsd6ttir, Berlin The common characteristic of the various arguments of the communitarian thinkers is their critical view of certain basic strands of contemporary liberal political theory. This critique of liberalism can nevertheless be also said tobe a self-critique of liberal thought and liberal society, since the authors in question are themselves part ofthisliberal tradition (Walzer 1990, p. 19). In turn, the debate between communitarians like Maclntyre, Sandel, Taylor and Walzer on the one hand, and liberals like Rawls and Dworkin on the other hand has come to dominate arguments within political philosophy in the U.S. and Canada. More recently, this internal critique of liberal society has also gained increased attention elsewhere, partly due to dwindling adherance to more utopian and radical forms of social critique in the wake of the political changes which have occured during the last few years. Focusing on the relationship between the individual and society, the communitarians deplore the individualistic tendencies of liberal society and the lossofasense of community. A restored sense of community, in their view, is a precondition for the constitution of common values and a conception of a common good. Thus the German philosopher Axel Honneth characterizes the challenge posed by this critique with the following question: "What kind of an encompassing context of values can endorse new forms of social solidarity that counteract the destructive tendencies of continuing individualism without undermining the radical pluralism of modern societies?" (Honneth 1992, p. 23. Translations of quotations from German texts are mine.). With regard to the idea of community, it seems that feminists and communitarians unite in their critique of liberalism. From the viewpoint of political theory, feminists stressthat partiewar communites are necessary in order to realize the ideas of caring and mutual responsibility and aim at drawing increased attention to the political significance of different kinds of communities, whether they be various interest groups or the family. Furthermore, like the communitarians, feminists emphasize the meaning of human rela-

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tionships and community for the development of individual identity. It follows that the liberal notion of the autonomaus individual as a bearer of abstract rights and universal principles is, according to feminist critique, a product of male value judgements, a conception of the individual which does not correspond to the particular character of human relationships. Communitarian and feminist approaches therefore agree that the liberal notion of the self, such as that depicted in Rawls's Theory of Justice, is deficient. It is a self that is disengaged from context, not embedded in the communal reality which is constitutive of its identity. Whereas Rawls, in the context of his ideas about the "original position", renders a Kantian notion of the self as given prior to the ends which are affirmed by it, the communitarians, in contrast, say that our deepest self-perceptions always include some motivations, showing that some ends are constitutive of the self. It must, of course, be kept in mind that not all feminist critique can be reduced to an approach that at first glance is close to aspects of the communitarian critique. The diversity offeminist theories, especially with regard to political strategies, does not allow that. I, therefore, focus on the feminist critique within moraland political philosophy, which was at the outset primarily influenced by the work of Carol Gilligan. Her ideas on morality, and the critical reception of them, entail some of the central aspects of feminist critique as it has developed in the last decade.

Gilligan's critique of Kohlberg's theory of moral development can be seen as an indirect critique of liberal morality, as Kohlberg's ideas about the highest stage of moral development, the so-called post-conventional stage, are very much in line with Rawls's conception of justice. Gilligan challenges the Kohlbergian idea of the autonomaus moral agent-an agent who makes judgements basedonuniversal principles- by claiming equal status for the more context-sensitive judgements based on attitudes of responsibility and caring that women are, in her view, more apt to make. She maintains that this ethic of caring, which need not be restricted to women only, is not to be interpreted as a mere conventional stage of morality, as the Kohlbergian scheme calls for, but as an ethic that is paramount to or even superior to an ethic of justice. Gilligan's ideas about the gendered structure of moral reasoning are problematic, and probably unacceptable as they stand (e.g. Walker 1984). There are also good reasons for not agreeing with the ontological ideas about gender difference which they imply. Nevertheless, Gilligan's ideas about a moral disposition, which she thinks is more typical of women than of men, reflect the experience of women as the ones who are primarily responsible for taking care of family and children, and as the ones who are largely responsible for caretaking work in the labor market. In that sense, Gilligan's ethic of caring

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also points to the moral and political significance of the private sphere (in so far as "social" and caring work in general can be seen as an extension of women's work in the private sphere as opposed to other work in the public sphere.) In addition, she pointsout dimensions of moral experience that are neglected by liberal thought. She shows that the contextual nature of moral judgement needs to be given more attention in moral theory. Moral judgements are always made by agents who are embedded in a certain context, as the communitarians also argue. Along with her ideas about an ethic of caring and responsibility, Gilligan raises the question of the priority of the morally good over the morally just. And this is yet another point in which feminist critique- in so far as it accepts the position of Gilligan- seems to converge with the communitarian critique of liberal theory. One of the basic assumptions of the communitarians is, as has already been said, that the common good, as the root for common identities and shared purposes, is the basis needed for a good and just society. Now, the question is whether the idea of the common good which is the point of departure for the communitarian critique of the liberal conception of individual freedom, is really in line with feminist demands. Or is the liberal notion of individual freedom, that is, the equal right to basic liberties, which is for Rawls the first principle of justice, perhaps a better basis of support for feminist demands? (Rawls 1971, p. 302). Given the fact that the feminist emancipatory struggle has manifested itself in women freeing themselves from traditional values and claiming for themselves rights and liberties, it seems to be right to assume that the liberal position is more supportive offeminist movements than the communitarian. I argue, therefore, that liberal theory is superior to communitarian theory in this regard, but I nevertheless maintain that both the feminist and the communitarian critiques point at aspects like mutual responsibility and caring that are necessary for any political theory, and thus, can uncover flaws in the liberal position that are in need of correction. The necessity of a liberal principle of individual freedom for feminist demands can show that the communitarian idea of community is, as I will argue, disadvantagous for women. It also reveals a certain one-sidedness in Gilligan's idea of an ethic of caring and thus calls for a revision of those ferninist theories which advance her ethic of caring in response to liberal principles of justice; at the very least, Gilligan's ethic of caring requires modification torender it acceptable. Whereas for Rawls justice is the most important virtue for the social system, and "the good" is implicitly or explicitly the goal of any moral theory, the communitarians argue that on the sociallevel the common good has priority over justice. Sandei and Macintyre use this assumption in their theories to the point where the good outweighs justice. According to this view, rights

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that are prior to the common good can undermine the constitutive quality of the values shared by the members of the community. Consequently, the very identity of the subjects within the community can be endangered by such rights. Inherent to the theories of Maclntyre and Sandelis also a sceptical attitude towards pluralism. The unity of values, which Maclntyre, for example, thinks of as rooted in an Aristotelian-Thomistic tradition, can be threatened by a plurality of values and goals. The mostevident objection to this unitary vision is the following: Either a society construed in accord with this model cannot be realized due to conflicting interpretations of the common good, or repressive mechanisms are needed to sustain unity. Sandel and Maclntyre would, however, argue that such objections can only be raised in a Situation marked by the decay of "Sittlichkeit" that results in individualism, alienation, fragmentation, and an anarchic state of values. In their view, shared ideas about the common good provide the remedy to this situation. Due to the fact that Sandel and Maclntyre emphasize value revival, rather than calling for institutional solutions, Benhabib has characterized their view as an "integrationist" response to modernity (Benhabib 1992, p. 77). She distinguishes this view from a "participatory" strain of communitarianism, represented by authors like Walzer and Taylor. This view, as opposed to the ideas held by Sandei and Macintyre, "sees the problems of modernity less in the lossofasense of belonging, oneness and solidarity but more in the sense of a loss of political agency and efficacy" (Ibid, p . 77). Walzer's answer to the challenge posed by this situation, and the pluralism that characterizes multi-ethnic modern industrial societies is an appeal to "shared understandings" of social goods (Walzer 1983, p. 26). Such a view is far more congenial to the feminist position than the "integrationist" view of Maclntyre and Sandel; and it does not suppress the plurality of values and goals, although it is still characterized by a tendency to prefer a particular orientation to a universal one. For that reason, thinkers like Rawls and Habermas, who see justice as the primary social virtue, would criticize the communitarian theories for a lack of general criteria that enable us to distinguish between morally acceptable and morally unacceptable norms and principles. The ideas of the power of shared values that Maclntyre and Sandei postulate can therefore violate the priority of liberty; and, in a community which is construed in accord with this model, the interests of women can easily be violated as the following example shows. Just over a year ago, the case of a fourteen year old girl in Ireland who had become pregnant after a rape became public in the media and caused widespread outrage. Since abortion is unconstitutional in Ireland, as everybody knows, the case had to be dealt with in court. In the first instance, the girl

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was not only legally forbidden to have an abortion; she was also not allowed to leave the country for England for the next nine months, as it was forseeable that she planned to have an abortion there. As the girl was then seen to be suicidal, she was in the second instance permitted to leave the country. This incident shows paradigmatically what kind of problems confront a state that gives the common good priority over justice or individual rights. The right of the girl to make any decisions concerning her body is understood tobe secondary to a substantive idea of the good, which is, in this case, a religiously grounded notion concerning the beginning of human life and the role of warnen in society. One can say that the Irish state used communitarian argumentation in this case. It did not act as a "neutral state", but rather as a state that favors a particular conception of values and a life for its members that corresponds tothat conception (Rössler 1992, p . 79). The communitarians, therefore, with their belief that an ideal community can only be sustained by a politic for the common good oppose the liberal idea of state neutrality, according to which autonomy is promoted when judgements about the good are taken out of the political realm and put into the hands of individuals themselves. Though the idea of the value of caring and mutual responsibility is of importance to feminist theories, this case shows that women can not do without the classical, liberal idea of autonomy . For only the priority of autonomaus choice over shared values, and the securing of that idea through a right that corrsponds to it, can guarantee that the interests of warnen are not sacrificed for the values of the community. It necessarily follows that Gilligan's idea of an ethic of caring, which claims universality in the same manner as a justice-based ethic, must be supplemented by the principles of justice and impartiality contained in the latter. A communitarian ethic along the lines of the theories of Sandel and Maclntyre would similarly have to contain reflections on how communites are constituted and what rights the members of the community should be entitled to. Void of that, the communitarian idea remains a mere "romanticized view" of a shared horizon of values that are to give the community its orientation (Kymlicka 1990, p . 225). Romanticized communitarianism fails to account for the possibility of a contradiction between the common good and the subjective reality of the individual, but this tension between autonomy and public justice is one of the basic problems that liberal theory precisely attempts to accomodate. Maclntyre's and Sandel's lack of sensitivity in this regard results in a deterministic conception of the constitution of identity that overlooks the possibility of r evising or re-creating identity, which, as was said before, has been and is one of the prime tasks of emancipatory endeavors.

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Liberal theory gives this need more weight by emphasizing that civil rights and just public institutions are supposed to secure the freedom of the individual, and to enable hirn/her to pursue his/her idea of the good life within the limits of public justice. From the point of view of the communitarian, the liberty of the members of a community consists in free cooperation with others on the basis of shared values. Self-realization is, therefore, seen in terms of the realization of a common good. This way of thinking may indeed reflect the self-understanding of any interest or marginalized group fighting for specific goals or the political dimension of the above-mentioned type of feminist theory. But if we take a closer look at the ideas of community that Sandei and Maclntyre postulate, it becomes clear that they run counter to one of the basic assumptions of feminist ciritque. This becomes most evident if we look at the description of the primal form of community, namely the family, which is also for Sandei the paradigm for an ideal community. In his critique of Rawls's idea about the primacy of justice, Sandei cites the family as a community which is not organized according to the principles of justice, and which is, as such, on a morally higher level. With reference to Hume's idea that justice cannot be the first virtue of social institutions (at least not in any categorial sense), Sandei maintains that individual rights and fair decision procedures are seldom invoked in the family because their appeal is pre-empted by a spirit of generosity and "mutual benevolence" (SandeZ1982, p. 169). For the majority of women, this picture of the harmoniously organized family hardly renders a realistic view of their situation. The organization of most families is still based on a clear-cut division of roles, work and leisure, which is of great significance formen and women. The form of mutual cooperation that is typical for most families mostly confines the women to the less dominating role and hinders them from freeing themselves from antecedently given expectations and values. Sandei fails to see this. Like Maclntyre, who speaks of the "roles" people "inherit" with their "rightful expectations and obligations" (Maclntyre 1981, p. 205), Sandei in fact endorses views that postulate the continuation of an unjust organization of the family. We do indeed find ourselves in various relationships, but we do not always like what we find. "No matter how deeply implicated we find ourselves in a social practice, we feel capable of questioning whether the practice is a valuable onea questioning which is not meaningful in Sandel's account" (Kymlicka 1990, p. 213). Sandei also overlooks the important fact that the family is a place where social goods like time, care and m oney are distributed in sofaras the family members need to be provided for, both financially and emotionally. "Precisely because such goods are distributed, the just distribution of these

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goods is also necessary in the family" (Rössler 1992a, p. 96). In most cases the woman is the one who is largely responsible for the organisation and the operation of the private sphere, more or less regardless of whether she also works outside the home as well. This is one of the major reasons that women are far behind men in claiming the rights and liberties to which they are entitled. Precisely because of that, families should be organized in accord with principles of justice "if they are not to continue functioning as institutions that sanction unequal socialliberties" (Ibid, p. 96; Okin 1987, p. 49). But, in so far as this traditional picture of the family and the roles of the members within it serves as a model for the political community, Sandel, in line with the communitarian critique, argues for the public making of private structures. This proposal has nothing in common with one of basic demands offeminist theory, known through the slogan "the private is the public." (The dichotomy "between the public and the private ... is," as Pateman notes, "ultimately, what the feminist movement is all about" (Patemann 1987, p. 103).) On the contrary, in their description of the private sphere depicted here, the "integrationist" communitarians not only misjudge and transfigure empirical facts about the family, but they also pay tribute to a distinction of the private and the public that feminists wish to challenge and undermine. Instead of aiming at organizing public institutions on the model of private ones, feminists aim at the "de-privatisation" of the private sphere (Rössler 1992b, p . 83). Even if the communitarians would cite a more egalitarian institution than the modern-day family as a normative idea for a good community, the danger of a shift into a non-egalitarian situation in a community can never be ruled out, and hence, the necessity for a right to equalliberty continues to exist. Examining the distinction between the private and the public in communitarian theories reveals implicit views of gender relations, and, thus, uncovers the "gender sub-text" of communitarian thought (Benhabib I Cornell1987, p. 7f.). But what kind of an idea of the private sphere and the family is there to be found in liberal thought? As I said before, I believe that liberal theory is better able to accomodate feminist concerns than communitarianism, in so far as it emphasizes the idea of autonomy and equal rights to liberty. These ideas can be endaugered in a society construed according to the communitarian conception because of a too tradition-oriented constitution of identity. But as I said before, the liberal notion of the individual, which Sandei terms as the "unencumbered" self, is challenged by both communitarian and feminist critique (Sandel 1984). Liberalism has to acknowledge the significance of the communities which constitute the identity of, and socialize, the individual. The family is certainly one of the primary institutions in this regard. Rawls does, in fact, not overlook this, insofar as he argues that the sense of justice grows out of the moral environment of the family (Rawls 1971, pp. 462-479).

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Therefore, he maintains that the family must be organized in accord with principles of justice. But when he talks about the family in his Theory of Justice, he never describes how it can be structured in a just manner (Kymlicka 1990, p. 266). In addition, he does not see that the present organization of most families tails to fulfill the requirements set by his principles of justice insofar as women, despite a formal guarantee of equal rights, are restricted in realizing different social options due to the roles to which they arestill generally confined. Needless to say, women arenot the only ones who are deprived because of this state of affairs. Male development is also blocked in this prevailing constellation, and children would be better off if they could get equal attention from both their mothers and their fathers. The picture of the family in the Rawlsian theory therefore needs tobe corrected by giving the question of gender difference due consideration. By looking at the gender difference, specific needs become obvious, and the delineation of certain rights that secure the fulfillment of these needs is one of the main requirements of recent feminist legal and political philosophy (MacKinnon 1987; Young 1990). Certainly not all conflicts in the private sphere can be dealt with in such a manner. One of the main goals of liberal philosophy is to point out the necessity of the right to privacy, which is rightfully seen as indispensable for individual freedom. In that sense there has to be differentiation between various interpretations of the distinction between the private and the public (Kymlicka 1990, p. 255f.; Okin 1989, p. 124ff.; Pateman 1987). Similarly, when we talk about the family, we have tobe more precise and refer to the distinction between the public and the domestic. Due to the lack of this distinction, the domestic sphere is treated as a sphere that needs to be protected merely in order to secure the right to privacy, in much of in liberal theory. The family, thus, becomes immune to the requirements of the principles of justice and equality. Liberal theory is therefore open to critiques that argue for the necessity of applying principles of justice to the family. Revealed facts such as domestic violence, women-battering, and the sexual abuse of children, have expanded public consciousness regarding this matter. Constructive measures to support the family should also be put into law. In Germany, for example, the right of every child to attend a day-care center is now being discussed on the governmentallevel. Political theories also have to react to changing family structures and other social transformations that affect the situation of the family (Honneth 1993). In Germany, 25 percent of all children are raised in single-parent families and, according to experts, soon up to 50 percent of all children will grow up in such families. This fact, to name one significant example, calls for supportive measures that fit the needs of this specific group. As long as theories of justice do not consider one of the basic organizational features of society, namely the gendered divison of work, they can not

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be sensitive enough to the situation of the family. They will also fail to understand how this gender system is disadvantageaus to women. Women, in general, live under unfair conditions in the private sphere; their workload is double, but they earn and own less than men. Despite growing consciousness of the situation of women, the welfare state has not stopped the increasing feminization of poverty. If the present trend continues, by far most of the people below the poverty line in America in the year 2000 will be women and children (Kymlicka 1990, p. 89). No political philosopher can deny this systematic devaluation of the status of women and the injustice it entails. The silence about this state of affairs in Rawls's theory of justice is, therefore, one of the most glaring omissions in his work. Because of this, liberal theory must recognize the force of the communitarian and feminist critiques of its neglect of aspects like care, contextuality, and particularity, and must take these issues much more seriously. To sum up, the feminist position is, as we have seen, situtated somewhere between liberalism and communitarianism. The idea of community is indispensable to it, and the idea of individual freedom equally so. The feminist idea of a just and good society would, therefore, contain individual freedom and community bothin the public and the private sphere. References

Benhabib, S. (1992), Situating the Self: Gender, Community and Postmodernism, in: Contemporary Ethics, Cambridge. Benhabib, S . I Cornell, D . (1987), Beyond the Politics of Gender, in: Benhabib, S. I Cornell, D . (eds.), Feminism as Critique, Minneapolis. Fraser, N . (1992), Was ist kritisch an der kritischen Theorie? Habermas und die Geschlechterfrage, in: Ostner, I. I Lichtblau, K. (ed.), Feministische Vernunftkritik, Frankfurt. Gilligan, C. (1982), In a different Voice: Psychological Theory and Women's Development, Cambridge. Greschner, D . (1989), Feminist Concerns with the New Communitarians: We don't Need Another Hero, in: A. C. Hutschinson I L. J . M. Green (eds), Law and the Community. The End of Individualism?, Toronto. Honneth, A. (1991), Grenzen des Liberalismus: Zur politisch-ethischen Diskussion um den Kommunitariismus, in: Philosophische Rundschau, Vol. 38. -

(1992), Individualisierung und Gemeinsschaft, in: Zahlmann, C. (ed.), Kommunitarismus in der Diskussion, Berlin.

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Kittay, E. F. I Meyers, D. T. (eds.) (1987), Women and Moral Theory, New York. Kymlicka, W. (1990), Contemporary Political Philosophy, Oxford. Maclntyre, A. (1981), After Virtue: A Study in Moral Theory, London/Notre Dame. MacKinnon, C. (1987), Feminism Unmodified: Discourses on Life and Law, Cambridge (Mass.). Okin, S. M. (1989), Justice, Gender and the Family, New York. Pateman, C. (1987), Feminist Critiques of the PubliefPrivate Dichotomy, in: A. Philips (ed.), Feminism and Equality, Oxford. Rawls, J. (1971), A Theory of Justice, Oxford. - (1988), The Priority of Right and Ideas of the Good, in: Philosophy and Public Affairs, Vol. 17.

Rössler, B. (1992a), Der ungleiche Wert der Freiheit: Aspekte feministischer Kritik am Liberalismus und Kommunitarismus, in: Analyse und Kritik 1. - (1992b), Gemeinschaft und Freiheit: Zum problematischen Verhältnis von Feminismus und Kommunitarismus, in: Zahlmann, C. (ed.), Kommunitarismus in der Diskussion, Berlin.

Sandel, M. (1982), Liberalism and the Limits of Justice, Cambridge. - (1984), The Procedural Republic and the Unencumbered Self, in: Political Theory, Vol. 12.

Taylor, C. (1985), Philosophical Papers I & II, Cambridge. Walker, L. (1984), Sex differences in the development of moral reasoning, in: Child Development, Vol. 55 . Walzer, M. (1990), The Communitarian Critique of Liberalism, in: Political Theory, Vol. 18. - (1983) Spheres of Justice, New York.

Young, I. M. (1990), Justice and the Politics of Difference, Princeton/N.J.

V. Social Philosophy, and Social Sciences: Approaches to Law, Justice, and the State

IMAGES OF SOCIETY AND VISIONS OF DEMOCRACY J6hann Pall Arnason, Bundoora

I. Changing and conflicting interpretations of democracy are an integral part of its history. Neither the questions on the agenda nor the answers in dispute can be understood without reference to a broader political and cultural context. At the present moment reflections on this subject are inevitably conditioned by the momentous events of the last few years: the upheaval variously described as the end of the cold war and of global bipolarity, the end of Communism, the end of the shorter twentieth century (which, on this view, began in 1914), or even the end of history. As thesedifferent diagnoses suggest, it is by no means obvious what came to an end and who was defeated; but for our present purposes, this question is less important than its obverse: who won and what prevailed? While there is general agreement that the West triumphed over its main adversary, it remains a matter of debate which aspect or version of the West was most clearly vindicated and what the longterm implications of the victory are. There are at least three different answers to this question, and although the post-Communist experience has been conclusive enough to disappoint some early expectations, it would be premature to close the list. The Eastern European events of 1989 were widely seen as a victory of democracy and a return to the mainstream of the democratic revolution; to quote Fran~ois Furet, the rejection of 1917 was at the sametime a rediscovery of 1789. As the social and political contours of the post-Communist regimes became clearer, the triumph of capitalism overshadowed the more uncertain achievements of democracy, and the possibility of capitalist development in conjunction with more or less authoritarian politics had to be admitted. If there was no economic alternative to capitalism, it was all too easy to imagine political alternatives to democracy. But the reintegration into the world capitalist economy soon proved to be a much more difficult and destructive process than its advocates had expected. Its irreversible dynamic is no guarantee of a lasting solution to the economic problems of the societies in question. The neo-liberal phantasm of "shock therapy" (a new version of the "great leap forward") is now widely discredited and openly rejected by

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some of those who critically accepted it. With the decline of both democratic and capitalist optimism, the upsurge of nationalist forces throughout the post-Communist world became more visible and seemed more threatening. There is, however, some reluctance to recognize this third trend as apart of the Westernizing process. To talk about a resurgence of "tribalism" is to obscure the fact that the ideological dynamic of nationalism and the power structures of the nation-state, developed but also to some extent domesticated in the West, are now making new inroads into a region where they had previously had a limited impact and are still faced with major historical obstacles. The "post-Communist transition" is also a continuation of earlier efforts to impose national identities and boundaries on the domains of the Eastern European empires. Some of the problems which in the past led to rapid failures or recurrent crises have in the meantime been solved, but others remain; the phenomena that Western observers perceive as a simple return of the repressed are better understood as symptoms of the tension between the logic of the nation-state and the legacy of imperial history. This brief overview suggests some tentative conclusions with regard to democracy and its status in the context of modernity. The problematic relationship between the three aspects of the post-Communist constellation democracy, capitalism, and the nation-state- is easier to understand if we do not over-idealize their original union. The Western- or, more specifically, liberal-democratic - pattern of modernity is (to use a term which Ken Jowitt coined for the nation-state) a "partially antagonistic amalgam", rather than a model, a system or a paradigm. It is, in other words, a fragile balance of divergent and potentially conflicting forces, irreducible to formal ground rules or organizational principles; its victory over less adaptable alternatives and its expansion into new regions can be expected to reveal new internal problems. But it is the question of the democratic component, rather than the dominant pattern as a whole, that concerns us here. Without an interpretationand a review of rival interpretations- of democracy, there can be no analysis of its relationship to other aspects of modernity. In the present context, the first thing to be noted is that the recent historical breakthroughs of democracy are not bringing us any nearer to a theoretical agreement on its meaning. Neither the enthusiasm aroused by the Eastern European revolutions nor the more cautious views now current have done much to advance the self-understanding of democratic societies. The broader practical consensus has, if anything, highlighted the interpretive conflicts. Our discussion should therefore begin with a glance at the most distinctive approaches.

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n. Three criteria seem particularly relevant to the classification of theories of democracy. In the first place, they disagree on the historical context and significance of democratic institutions. Forthose who take an evolutionary view of history, democracy appears as the logical culmination of a long-term process and as a definitive developmental breakthrough. The Parsonian conception of democratic government as an "evolutionary universal" (Parsons 1964), i.e. an organizational development which marks a decisive step forward in the evolutionary process and can therefore be expected to occur in otherwise different historical settings, is a prime example of this line of argument. More recent adaptations vary widely in both calibre and content (they include Fukuyama's revised and Americanized version of the end of history as well as Habermas's defence of the "unfinished project of modernity"). How central democracy is to modern societies and how conclusively it has won out against other alternatives are, from this point of view, questions that can be answered in different ways. But the shared evolutionary assumptions set the otherwise different theories apart from a second approach, most strongly represented in recent French contributions to the debate (cf. particularly the work of Claude Lefort, Franc;ois Furet and Marcel Gauchet). Here the emphasis is on the openness and discontinuity of history, rather than on universal and irreversible trends; the democratic revolution is seen as a radical break with traditional forms of sociallife and an attempt to redefine its very foundations. As for the later history of democratic societies, it is largely shaped by the various ways of coming to terms with latent implications and long-term consequences of the new turn taken at the beginning. In particular, the project of a social order constructed by sovereign individuals and the shift from religious to political models of power give rise to permanent structural problems. The institutionalization of democracy thus involves a continuous confrontation with its inbuilt dilemmasandpotential regressions. There is, of course, ample room for controversy within this perspective: the work of the above-mentioned authors contains different accounts of the historical antecedents of democracy (although their role is, in any case, more indirect and ambiguous than evolutionary reconstructions would suggest) as well as different views of its own historical trajectory. Marcel Gauchet has, for example, argued that even the most extreme twentieth-century projects of radical democracy have essentially remained within the universe of discourse and imagination that took shape at the end of the eighteenth century; Lefort is, by contrast, more inclined to interpret the history of modern democracy in terms of a permanent revolution. But such disagreements are less fundamental than the "family resemblances" stressed above. Finally, it has been argued that democracy defined as the subordination of social power to individual interests, is the "natural political r egime of the human species" (Baechler

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1985), and that this natural condition was- 1n a very general but genuine sense- characteristic of primitive societies. Homo democraticus is, on this view, the twin brother of homo economicus, both are essentially calculating animals, and both are much older than civilization. Although the emergence of complex societies does not lead to the disappearance of democracy, it becomes more difficult to establish and maintain: an ideal which remains rooted in human nature can only be realized if an increasingly improbable set of preconditions is fulfilled. This interpretation of democracy is more marginal to the theoretical debate than the two others, but it probably merits more serious attention than it has so far received - not so much because of its literal content as in view of an unusually sustained effort to neutralize the liberal imagery.

Similar distinctions can be marle between alternative ways of locating democracy within the social world. The most restrictive approach reduces democratic institutions to specific rules or techniques of the political subsystem. Since I want to discuss views at some length below, all that is needed here is a brief description; but some distinctive implications should be noted. Because of the underlying affinities between systems theory and evolutionary theory, this conception is easily- although not inevitably -linked to evolutionary notions of democracy. It reflects and reinforces the conceptual segregation of culture and politics that has been a recurrent feature of the sociological tradition: the two themes are equated with separate subdivisions of the social system and subsumed under its functional imperatives. Within this frame of reference, it becomes easier to construct strategies for the transition to democracy and blueprints for viable democratic regimes. By contrast, those who relate the question of democracy to the problematic of political culture aremoresensitive to the complexity of the background and the uncertainty of the future. This line of argument has, broadly speaking, been developed in opposition to reductionistic approaches of various kinds; for our present purposes, it is enough to note that political cultures are grounded in traditions, maintained and perpetuated through informal patterns of sociallife, and irreducible to structural or organizational principles. Both the Habermasian attempt to derive the logic of democracy from the elementary structures of the lifeworld and the reactivation of the idea of civil society can in my view be understood as ways of anchoring the idea of political culture, and the aim is in both cases to clarify the unexplored context and unexhausted potential of modern democracy. Claude Lefort's analysis of democracy as the politicalform of modern society (1981, 1986, 1992) goes further in that direction. For our present purposes, it is enough to note three aspects of his argument. Against what he sees as an ingrained reductionism of the sociological tradition, he invokes the legacy of political philosophy from the Greek origins to such twentieth-century traditionalists as Leo Strauss,

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and its understanding of political forms as overall articulations of sociallife. From this point ofview, democracy- understood as the institutional dissociation of power, knowledge, and law- is the most formative, most innovative and most revealing part of the combination known as modernity. It is the framework within which the conflictual dynamic of other factors- especially capitalism- can unfold and be contained. Butthereis another side to its crucial role: if it can be argued that modernity is "enigmatic at its core" (to use a phrase of Anthony Giddens), Lefort's claim is that this applies in a particular and paradoxica1 sense to modern democracy. It opens up new possibilities for the self-thematization and self-questioning of society, but in so doing, it paves the way for permanent relativization and thus generates its own interpretive problems. The self-interpretation of democratic societies lags behind their practical self-constitution, and their implicit self-understanding does not automatically lend itself to theorizing. To conclude this discussion, a few words should be said about the relationship between democracy and rationality. It is no less controversial than the two other themes which I have discussed. There is, to begin with, the utilitarian conception- or, in a very broad sense, the "economic theory" - of democracy: the assumption that democratic institutions are based on instrumental reason. It has served to defend both emphatic and disillusioned versions of the democratic idea (Schumpeter's critique of the "classical doctrine of democracy" has, among other things, been criticized for its dependence on utilitarian premises which he shared with the classics but reformulated in a more pessimistic vein). The underlying conception of rationality does not exclude revisions which may even give it a more dialogical turn (for example, Jon Elster's recent work acknowledges the role of "arguing" as well as "bargaining" in processes of social choice). But the core component of rationality is, in any case, the calculating pursuit of interests, and its primacy is disputed by those who argue that democracy must not only draw on non-rational (or more precisely trans-rational) sources if it is to survive, but also link its ground rules to non-rational values if it is to live up to its promises. Such claims are compatible with otherwise contrasting views; the force beyond reason may be identified with religious foundations of the Western tradition, or - as in Fukuyama's neo-Hegelian philosophy of history - with the "struggle for recognition" that follows an evolutionary logic but does not conform to rational principles. Dissatisfaction with the traditional terms of debate between utilitarianism and its critics leads to the search for a more complex model of rationality, capable of regulating interaction without weakening the commitment to reason. Habermas's theory of communicative action and discursive rationality is the most representative example; his aim is to reconstruct the idea of practical r eason in such a way that it becomes less dependent on particular social and cultural contexts than the

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Aristotelian tradition assumed, but more directly involved in elementary forms of sociality than the Kantian alternative could admit. A conceptual connection between rationality and democracy is essential to this argument: the case of the communicative version of practical reason is strengthened by showing that it is embodied in the project (if not always in the really existing practices) of modern democracy, and the defence of democracy is linked to the ongoing self-elaboration of reason which constitutes- as Habermas sees it- the most continuous theme of the Western tradition.

Ill.

As the above considerations suggest, the interpretive problems of democracy are inseparable from those of the most basic concepts of social theory. To theorize about democracy is, among other things, to relate it to history, society, and rationality; our implicit or explicit understanding of all those notions is bound to affect our conception of democracy. Other categories could be added to the list, but a detailed inventory is beyond the scope of this paper; rather, the following reflections will focus on one of the three keywords we have already encountered and its impact on the problematic of democracy. My main concern is, in other words, with the concept of society, and my main claim will be that a dominant image of society - i.e. the ways of thinking about social life that have had the most lasting and pervasive influence on the sociological tradition - has narrowed our understanding of democracy and channelled it in certain directions at the expense of other possibilities. The conceptual obstacles in question can be located on two levels, i.e. in relation to substantive interpretations as well as basic concepts. The first point t o be noted is the predominance of two interrelated but at least partially divergent paradigms of modern society, those of capitalism and industrialism, and the absence of a comparable model of democratic society. It can be argued that the sociological classes arenot as easily divided into two camps as some later analysts have suggested, and that the most important among them were-in one way or another- concerned with both capitalist development and industrialization. But the overriding importance of these twin themes, in conjunction or competition, is beyond dispute. By contrast, the experience of the democratic transformation has not been reflected in a theoretical tradition of the same calibre. The problern cannot be solved by rehabilitating Tocqueville as a sociological classic (as Raymond Aron tried to do) and claiming that he did for democratic society what Marx did for capitalist society and Durkheim for industrial society. As recent work on Tocqueville has shown, his insights often remained undeveloped because of the lack of conceptual distinctions which later became central to the socio-

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logical tradition, and on the other hand, his attempt to make sense of the democratic revolution owes much to the pre-sociological tradition of political philosophy. Lefort's interpretations have thrown new light on both aspects. Tocqueville does not, in brief, belang to the same intellectual family as Marx, Durkheim and Weber. I have discussed the legacy of the classics elsewhere (Arnason 1992). For present purposes, it is not necessary to go into details. Instead, I would like to consider a possible objection and use it to clarify a morefundamental problern of the sociological tradition in relation to democracy. The one-sided focus on capitalism and/or industrialization might seem characteristic of nineteenth-century thought, and the theorists who did most to define the agenda of twentieth-century sociology were at the same time reacting against the reductionism of their predecessors. Durkheim developed his sociological theory in opposition to Marx and Spencer; his aim was to open up for scientific inquiry the moral dimension of sociallife which had become less visible but not less fundamental with the transition to modernity. There is no denying that the "Durkheimian moment", as we might call it, constituted a major landmark in the history of social thought. But as a solution to the problern which we are discussing here, it was inconclusive and conducive to further difficulties. The notion of society as a reality sui generis, the object of sociological inquiry and the key to the human condition, was the most enduring part of Durkheim's legacy. This is not to say that there was no controversy about it: countercurrents, qualifications and partial substitutes have also left their mark on the history of the social sciences. There is, however, no doubt that the concept of society and the idea of sociology as the science of society has been crucial to the continuity and specificity of the sociological tradition. The more technical category of the social system is best understood as a derivative elaboration of the Durkheimian problematic. This conceptual core is at the centre of current debates in social theory. We can, broadly speaking, distinguish between two main schools of thought: the critics who want to deconstruct the received image of society (adumbrated by Durkheim, perfected by Parsons, and streamlined by Merton and many others), and the system-builders who would like to reconstruct it in the light of new problems and developments. For the critics (Anthony Giddens and Alain Touraine are among the most prominent ones), the notion of society is, in the last instance, a transfiguration of the nation-state. Its theoretical content is, to summarize the most salient points in a very rough outline, an over-bounded, over-integrated and over-programmed image of sociallife. It postulates, in other words, a unit of social life that is clearly and consistently delimited from other such units, centred on unifying norms and values, and capable of functioning as a collective actor. The construction of a central principle which controls and coor-

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dinates the more specific sectors of social activity gives an a priori functionalistic twist to his model. Although this critique has not primarily been motivated by concern with democracy and its social context (the theorists in question are more preoccupied with such previously marginalized or misrepresented themes as conflict, power, and creativity), it is easytospell out some implications of the dominant image of society for the theory of democracy. The emphasis on given, determinate and centrally constituted structures is at odds with those interpretations of democracy that have linkeditto self-transformative capacity, the articulation of conflicts, and the openness to change and uncertainty (Lefort et al.). Democratic institutions can be incorporated into the paradigm of modern society, but they tend to be grounded in an objective (and more or less explicitly evolutionary) order of things, rather than in collective invention or creation. If we relate this perspective to issues in political theory, it might be said that the established concept of society has an underlying affinity with constitutionalism rather than with more radical conceptions of democracy. And within a functional frame of reference, it is morenatural to think of democracy as a technique developed for specific purposes than as a project with global and radical implications. Niklas Luhmann's work represents by far the most sustained attempt to rethink and radicalize the concept of society and thus to defuse the criticism directed against its more traditional variants. On his view sociology still needs this category for the purpose of "designating the unity of its object" (Luhmann 1992, p. 67), but it must be separated from the "old European" preconceptions which the classics tried to build into it. After Durkheim and Parsons, Luhmann's innovations open up a third phase in the development of the concept of society; it remains to be seen whether they will have a comparable effect on sociological inquiry or turn out to be the last flowering of an exhausted tradition. There is no doubt that Luhmann's redefinition of society (the decisive step is, to cut a very long story short, a shift from integration to communication) has rendered some of the above-mentioned objections irrelevant. His analysis of "world society" shows that the implicit primacy of the nation-state is no Ionger accepted; the de-centred conception of the social system as a network of communications allows for a more extensive autonomy of the subsystems and moreflexible relations between them; and the theory of autopoietic systems is used to construct a more abstract and less anthropomorphic model of society in action. But if the concept of society can thus be reconstructed in response to criticism, the questions raised by the critics can also be reformulated within the new frame of reference. To talk about "world society" might be a way of minimizing the contrasts and conflicts between nation-state patterns and globalizing processes. The notion of an "operatively closed" social system suggests that the new theoreticallan-

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guage is not incompatible with the old overemphasis on integration. As for the concept of the self-referential system, Luhmann's critics have highlighted its unacknowledged links to the philosophical tradition which also served to construct images of society as an actor or a subject writ large. A critical discussion of Luhmann's work would have to deal with all these issues. The following remarks will be limited to a much more specific problern: Luhmann's redefinition of democracy and the concomitant critique of earlier theories. If the logic of the dominant sociological paradigm leads - as I have suggested- to the conceptual confinement of democracy, Luhmann's theory can be seen as the final culmination of this trend. It grants the political subsystem a moreextensive autonomy than the more traditional version of functionalism could envisage, but this relaxation of societal constraints serves to impose more effective limits on democracy: as the political sphere becomes more selfcontained, it is easier to argue that its systemic boundaries arealso those of democratic processes. Each subsystem has a specific code which regulates its own activity as well as interactions with other subsystems, and these codes are based on binary distinctions between positive and negative values; as Luhmann sees it, the distinction that is central to modern political systems is a "splitting of the summit", i.e. the separation between government and opposition. The comparison with true and false within the scientific sphere, as well as transcendence and immanence within the religious one, should not be mistaken for an idealist lapse; all distinctions have passed through the levelling machine of systems theory, and truth and divinity have been reduced to a condition where the parallel with parliamentary politics is no Ionger inappropriate. From this point of view, the adoption of the term "democracy" seems to have been an historical accident: the real meaning of the mechanism which it serves to describe is a more effective exercise and circulation of power.

IV. No systematic critique of Luhmann's theory of democracy can be attempted here; my concluding comments should be read as hermeneutical preliminaries to such a critique. I would, in particular, like to raise three questions concerning Luhmann's own account of his starting-point. In the text where Luhmann (1990) introduces his definition of the democratic code, it is contrasted with two entrenched misunderstandings of democracy: the notion of a domination of the people over the people and the principle of maximum participation. It is easy for him to show that both give rise

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to insoluble conceptual and practical problems. But it can be argued that each is only one side of a conflictual pair, and that both pairs should first be located at a deeper level than that of theories or rationalizations. The complement and counterweight to popular sovereignty is the notion of human rights; presuppositions are equally fundamental to the self-understanding of the modern democratic world, and the tension between them is central to its history. At the same time, visions of participatory democracy took shape in connection with the rival model of representation, used to transfigure and generalize analready existing technique of delegating and limiting power. In both cases, it seems appropriate to describe the orientations in question as imaginary horizons of modern democracy, and to regard them as essential to its transformative and conflictual potential; it is only in relation to more onesided and derivative interpretations that we can talk about theoretical misunderstandings and "broken promises" (as Bobbio calls them) of democracy. But the theoretical articulation of the democratic imaginary has been an historical force in its own right. As Marcel Gauchet (1989) has shown, the debates of the French Constituent Assembly in 1789 set the scene for a whole epoch: they led to the discovery of problems that are still on the agenda and the invention of solutions that have had unexpected long-term consequences. Other confrontations have played a less pronounced but comparable role. Theories of democracy should link up with this immanent theorizing of its implications; but Luhmann's separation of the broader field of cultural semantics from the closed codes of subsystems prevents him from making the connection. A second consideration has to do with Luhmann's relationship to his theoretical ancestors. He likes to present his systems theory as a radical break with the classics; but his treatment of democracy can only be understood in the light of trends and counter-trends that had been characteristic of the earlier sociological tradition. Briefly, the three abovementioned phases in the elaboration of the concept of society represent successive steps towards a more consistently reductionistic conception of democracy. In Durkheim's work the functionalistic image of modern society, foreshadowed in his first major text and central to later interpretations of his legacy, is to some extent counterbalanced by another line of argument which leads him to regard the democratic state as a more decisive factor and a more radical innovation than the functional division of labour. For Parsons, democracy is first and foremost a new and superior mode of collective decision-making; in this capacity, it is an evolutionary achievement of the political subsystem. At the same time, his interest in the interpenetration of politics with other parts of social life enables him to retain some of the broader normative connotations of the concept. Luhmann's theory of democracy has clearly overcome this ambiguity, but not so much because of a radically new approach as by using the con-

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ceptual tools of systems theory to strengthen one strand of the classical heritage at the expense of the other. Finally, it should be noted that the modern beginnings of theoretical reflection on democracy were closely linked to another theme: the self-constitution and self-regulation of society. Tocqueville was, as noted above, a precursor rather than an early dassie of the sociological tradition, but his formulation of this connection is highly relevant to later discussions. He distinguishes two diametrically opposed "social states", one where power is external to society and the patterns of social life are therefore determined from outside, and another- the democratic condition- where "society acts by and for itself". To the extent that Durkheim saw democracy as a privileged form of the self-constitution of society, he was still following this line of thought; it was abandoned by Parsansand more emphatically repudiated by Luhmann. One of the major implications of the theory of autopoietic systems is to shift the theme of self-constitution to a level where it has no conceptual links to democracy and its theoretical problems. Once again, Luhmann's conceptual innovations can thus be understood as a new response to classical problems and a more definitive choice between alternatives adumbrated within the tradition. But there are other approaches to the problematic of self-constitution and rival interpretations that try to retain or restore the democratic connection. The work of Cornelius Castoriadis and Alain Tauraineis an obvious case in point. This is a current which Luhmann has, to the best of my knowledge, never confronted. A theory which explicitly sees itself as one of many contenders in a pluralistic field (or even, in more postmodernist terms, as an offer at an auction) could be expected to engage more explicitly with its most unequivocal adversaries; the failure to do so is especially striking with regard to the two authors I have mentioned.

Heferences

Arnason, J. P. (1992), The Theory of Modernity and the Problematic of Democracy, in: P. Beilharz et al. (ed.), Between Totalitarianism and Postmodernity, Cambridge (Mass.). Baechler, J. (1985), Democraties, Paris. Bobbio N . (1992), L'eta dei diritti, Turin. Gauchet, M. (1989), La revolutiondes droits de l'homme, Paris. Lefort, C. (1981), L'invention democratique, Paris. - (1986), Essais sur le politique, Paris.

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- (1992), Ecrire- A l'epreuve du politique, Paris.

Luhmann, N . (1990), The Future of Democracy, in: Thesis Eleven 26. - (1992), The Concept of Society, in: Thesis Eleven, No. 31.

Parsons, T. (1964), Evolutionary Universals in Society, in: American Sociological Review, Vol. 29, No. 3.

WHAT IS SOCIAL PHILOSOPHY? Mogens Blegvad, K0benhavn

I. The acronymic name of our association, IVR, may be thought to stand for Internationale Verein für Rechtsphilosophie. But, as you know, this is not so. The real name is Internationale Vereinigung für Rechts- und Sozialphilosophie, in English: International Association for Legal and Social Philosophy. This name suggests an important point: the understanding of the nature of law, and the treatment of related philosophical problems, presupposes a grasp of the social context in which law is embedded. Although legal philosophy is not identical with legal sociology, law is a social phenomenon; and there are good reasons to claim that it is not possible to identify its nature, except on the basis of an understanding of what it means to form and to live in a society.l Our founding fathers seem to have recognized this claim. To be sure, the present name is not the original one. When the association was founded in 1909 it was called Internationale Verein für Rechts- und Wirtschaftsphilosophie. Butthisname too suggests that law must be seen in its relation to other aspects of sociallife. Perhaps the relationship to the economic aspect was emphasized because economics was a more developed social science than, for example, sociology. Sociology was not yet recognized in Germany as a university subject and had only achieved some kind of status and structure there through the founding of the German Sociological Society2, initiated by Max Weber, Georg Simmel and Ferdinand Tönnies. Tönnies was a founding member of the IVR, and at the second congress of the association in Darmstadt, in 1911, he contributed to a discussion of the "Verhältnis von Soziologie und Rechtsphilosophie, insbesondere die Förderung der Rechtsphilosophie durch die Soziologie". The main contributor to that discussion was Josef Kahler, law professor in Berlin since 1888 and 1 The converse is also true: social theory must include an account of the role of legal and other norms in society and therefore an understanding of the nature of law. 2 Vol. IV of the Archiv für Rechts- und Wirtschaftsphilosophie contains an interesting report on the first German "Soziologentagung" (held in Frankfurt in October 1910) by L. von Wiese (Archiv 1910, pp. 274-279).

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president of the IVR as well as faunder and chief editor of the Archiv für Rechts- und Wirtschaftsphilosophie3, the official organ of the IVR. Kahler was not only one of the leading legal scholars of his time but, according to Brackhaus Enzyklopädia (1990, p. 153), "ein Gelehrter von breitgefächerter Bildung" .4 To the first issue of the Archiv he contributed a programmatic paper, "Wesen und Ziele der Rechtsphilosophie" (Archiv 1907/08, pp. 3-15) which begins as follows: Das Recht kann nur in der Kulturgemeinschaft der Menschheit und zunächst der einzelnen menschlichen Verbände betrachtet werden, es ist etwas sozialesandbleibt etwas soziales (Archiv 1907/08, p. 3).

In the short editorial introduction to the same issue (pp. 1-2) the inclusion of "Wirtschaftsphilosophie" is explained by the "fast allgemein erkannten, wesentlichen auf gegenseitigen Wechselwirkung beruhende Zusammenhang zwischen Recht und Wirtschaft" .5 Not only the philosophical treatment of economics, but also of topics connected with political science and sociology were meant to be included, as appears from the lists of contents of the first volumes. The contributions are here classified under headings such as "Sozialphilosophie", "Staatsphilosophie", "Allgemeine Staatslehre" and "Zur Psychologie des Rechts der Kultur- und Naturvölker", in addition to "Rechtsphilosophie", "Wirtschaftsphilosophie" and "Gesetzgebungsfragen". When, in 1933, the title of the Archiv was changed to the present one, this was announced in the last issue of vol. XXVI (Archiv 1932-33, p. 545) without any explanation.B It did not signal any essential change in the topics dealt with in the Archiv, except that matters of economics gradually became less prominent - other reviews were taking care of those. The main change had to do with the Nazitakeover; papers with titles like "Ideen zu einer Philosophie des Führertums" began to appear. This particular paper was written by professor C.A. Enge, who from vol. XXVIII took over as chief editor of the Archiv and as president of the IVR after professor Wilhelm Sauer. This quarterly will be referred to in the following as just Archiv. From various papers in the Archiv one gathers that he e.g. composed and contributed papers on the history of the "Lied" to a review of the history of music. He was chosen to represent German jurisprudence at the jubilee congress in Chicago 1904, to which Max Weber was also invited, and he was made an honorary doctor at the University of Chicago. H e lived from 1849 to 1919. 5 According to Gerhard Sprenger, the present managing editor of the Archiv, it is due to Fritz Berolzheimer, one of original editors, that "Wirtschaftsphilosophie" was included in the title (Archiv 1987, pp. 1-14). See also L. Lotze & W. Schier: F.B. und das ARSP (Archiv 1987, pp. 15-29). 6 At that time Wilhelm Sauer (1879-1962, prof. Königsberg 1916, Münster 1935) was chief editor. He used the phrase "Rechts- und Sozialphilosophie" in the title of some of his works. Before him, the Austrian economist Freidrich von Wieser had, until his death in 1926, been chief editor. 3

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In the preceeding years the idealistic, Hegelian trend represented by Kohler had given way to a Neo-Kantian one.7 Enough about the past. I only mention these historical facts in order to show that from the very beginning the field of interest of the IVR has been much wider than legal philosophy, narrowly conceived, so that the present name is quite appropriate. In addition to legal scholars and philosophers, representatives of social sciences like sociology, anthropology, political science, social psychology and economics have been encouraged to take part in its activities. Its name suggests that the association has takenon a responsibility to further the kind of inquiries covered by the term "social philosophy", in addition to those dealing more directly with law.

n. But what is social philosophy? In ordernottobe accused of the essentialism which questions of this form suggest and against which my friend Karl Popper has warned us so persistently, I want to rephrase the question and ask: is there a field of intellectual endeavour which can be distinguished with some precision from related fields such as those of political philosophy, legal philosophy and the various social sciences, and which it is reasonable to call social philosophy? I have found that this label is used rather indiscriminately, so we cannot find support for an answer in a firm tradition in the literature.B Let us start by asking how social philosophy may be distinguished from social science. Some remarks by a contemporary of Josef Kohler, who was both a philosopher and a sociologist, may be of assistance here. Georg Simmel, in a short preface to his masterpiece The Philosophy of Money (Simmel1900, pp. V-IX, 1978, pp. 53-56) propounded his view on the relation 7 Sauer was an adherent of Neo-Kantian value-metaphysics. In the editorial introduction to the first issue of the Archiv, Kohlerand Berolzheimer stated as a main pont in what they called "die neue Rechtsphilosophie" and identified with Neo-Hegelianism, that besides individual beings there is a whole, which transcends our "sinnliche Anschauung", which follows its own rules and has its own needs. They call this whole "Volksseele". The original statutes of IVR contain the statement that although no philosophical position should be excluded, the ideas and postulates of the neo-idealistic philosophy deserve special attention and support (Archiv, 1909/10, p. 3). 8 Neither the International Encyclopedia of Social Science, nor the Encyclopedia of Philosophy has entries for "Social Philosophy". The volume by Joel Feinberg on "Social Philosophy" in the Prentice-Hall Foundations of Philosophy Series (1973) contains mostly topics which I would place under political philosophy. The same goes for the Readings in Social Philosophy entitled Society, Law, and Morality, edited by Frederick A. Olafson (1961). "Sozialphilosophie" is characterized by Jürgen von Kempski in the entry in Handwörterbuch der Sozialwissenschaften (1956, Vol. 9, pp. 527-32) as "Systemen, Theorien und Gedankengänge vorwiegend sozialreformatorisch-utopisches Art".

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between philosophy and the special sciences.9 Writing on money, he might have been thought to be posing as an economist without being one, so he felt obliged to explain right from the beginning how a philosophy of money differs from a scientific treatise in economics. He gave the more general account of the relationship between philosophy and the special sciences as a lead-up to such an explanation. To this purposehe employed spatial metaphors. Each science borders on philosophy on two sides. Below it we have philosophical investigations of its presuppositions and methods. Above it we have speculative attempts to build a total picture of the part of reality with which it is concerned, and to relate this picture to our lives and the world in general. These attempts must rely on the necessarily fragmentary results of the science in question. Simmel also characterized the first part of philosophy as standing before ("vor") and the second behind ("hinter") the given science. Simmel, however, also acknowledged the old truth that all science begins as philosophy, as "a mere estimate of the phenomena in general terms" (Simmel1900, p. V, 1978, p. 53). The boundaries between science and philosophy have obviously emerged as the result of an evolution. Gradually the primitive, crude conceptions of how we know "the phenomena" give way to more precise and penetrating methods of investigation and conceptualization, and what Simmel calls "das exacte" (Simmel1900, p. V, 1978, p. 53)- exact scientific laws and theories - are developed. But such laws and theories never amount to a complete and perfect picture of the reality in question. They have great influence on the development of the philosophical syntheses from primitive, poorly supported ones into more sophisticated ones, better supported by empirical evidence. But scientific theory never makes philosophical synthesis superfluous. And science always rests on presuppositions which have to be scrutinized philosophically. I shall not follow Simmel into his account of how he plans in his philosophy of money to use the phenomenon of money as a point of departure for important insights into "the conditions and connections of life in general" (Simmel1978, p. 54). But I shall employ his conception of philosophy as being "below" or "in front of" as well as "above" and "behind" the special sciences to characterize the relationship between social philosophy and social science. I shall emphasize a point only hinted at in passing by Simmel: that this relationship must be seen as evolving in the course of scientific development. I want also to add that this evolution involves an important interplay between what Simmel sees as two parts or aspects of philosophy, one of which he calls the synthetic (Simmel1900, p. VI, not in the transl.) while the other may be called the analytic. 9 Heuses expressions like "Einzelwissenschaften" and "Forschungsgebiete", but also calls philosophy a "Wissenschaft", albeit "eine prinzipiellere" . In the folowing I use "science" in the broad sense which "Wissenschaft" has in German.

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m. The social sciences present a rather chaotic picture. Not only do the boundaries between the various disciplines lack theoretical foundation; but none of them can, as May Brodbeck has pointed out, "by itself expect to achieve completeness in its terms" (Brodbeck 1968, p. 11).10 But it is also a fact that within each we find a number of competing theoretical points of view, and some of these aspire to conquer areas lying outside the discipline in which it originated.ll None of them has, however, succeeded in proving its validity across the whole field, and we have no comprehensive, generally accepted scientific theory of society.l2 Thomas Kuhn has suggested that the social sciences arestill at a primitive stage, where what he calls normal science has not yet become possible for lack of agreement on a dominant paradigm (Kuhn 1962, p. 15). Jon Elster describes the situation as one in which the social scientist has a toolbox containing a number of "mechanisms" from which he can choose one or more according to the problern at hand, so that at least partial explanations of particular social phenomena may be produced. "But we have no theories that tell us when one or the other of these mechanisms will operate" (Elster 1989, p. 9). No wonder that social scientists and philosophers have spent much energy on inquiries and debates on the presuppositions and methodologies of the social sciences; or that the task of articulating the picture of society which has emerged from the work of social scientists in the various disciplines, and which is presupposed in their further work, has been so difficult. Since questions about the proper way to study an aspect of reality cannot be answered independently of the conception one has of what it is like, the two kinds of endeavour which we, inspired by Simmel, have named the analytic and the synthetic cannot really be separated. So there is reason to include both under the label "social philosophy". But one may emphasize one or the other, starting either from questions about the character and methods of the social sciences, or from questions about the nature of social reality. In the former case, one works within what is called the philosophy of social science, a well established branch of philosophy with its own journals, textbooks, anthologies, etc.13 So it may, after all, be more practical to reserve the name "social phiMay Brodbeck continues as follows: Any theory of human behavior will contain references to political, legal, psychological, economic, religious, and other institutional factors in the individual's environment. It is a commonplace by now that these factors all interact, so each social science is to some greater or lesser extent dependent upon the findings of others (Brodbeck 1968, p. 11). ll It is not uncommon to hear complaints from sociologists, political scientists and others about the imperialism of some economists. Also anthropologists tend nowadays to extend their point-of-view to all social sciences. 12 Attempts to provide a foundation for such a theory have been made by Talcott Parsans and Alfred Kuhn (Kuhn I Parsans 1966), but even the grandiose work of the former must today be considered a failure. 10

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losophy" for the activities which take the latter starting point, keeping in mind, however, that no clear dividing line can be drawn. As a matter of fact, a not insignificant part of the philosphy of social science deals with questions about social reality; and the social philosopher in asking how the results of social science research have influenced our conception ofthat reality, must look into the procedures employed in the research in question. Nevertheless, there is a difference in emphasis and perspective between the philosophy of social science and what I prefer to call "social philosophy" .

IV. The social sciences vary considerably in approach and in conceptual apparatus. Just compare the presuppositions of economic theory epitomized in the model of "economic man" with those of anthropology when it attempts to interpret the customs of a primitive tribe. The philosopher has to understand such differences; but in order to do so, he has to ask hirnself what it means that the various social sciences have society as their common object of study. It is important to realize that "society" here does not simply mean the particular kind of social unit which in sociological theory is called society and which is defined in the International Encyclopedia of Social Science as "a relatively independent and self-sufficient population characterized by internal organization, territoriality, cultural distinction and sexual recruitment" (the entry Society (Vol. 14, pp. 577-586) is written by Leon H. Mayhew; cf. also the definitions in Johnson 1961, pp. 9-13; and Parsons 1951, p. 19). "Society" must be taken to mean all kinds of collectivities, all kinds of more or less closely connected collections of human individuals: groups, organizations, mobs, societies in the narrow sense, etc. 13 The relationship between "Philosophy of Social Science" and "Philosophy of Science", which deals primarily with the natural sciences, is not unproblematic. On the one hand, some philosophers of science want to include the social sciences in their field of interest. The international congresses for "Logic, Methodology, and Philosophy of Science", for instance, have always a special section for "Philosophical and Foundational Problems of the Social Sciences" or the like. On the other hand, some philosophers are of the opinion that the social sciences are not sciences in the same sense as the natural ones. As a matter of fact, a main topic of discussion within the philosophy of social science has been the extent to which the social sciences are like the natural sciences. In my opinion this question has been a pproached in a rather simplistic way. The starting-point has typically been an outmoded co~rrception of natural science method. And one which has ignored the great differences between the various natural sciences. Also, the differences within the range of social sciences have often been neglected, and the Germanterms "erklären" and "verstehen" have been used to mark a supposedly essential difference between the two groups. Those who do so have tended to consider "verstehen" as characteristic of what they call the human sciences, both those taught within faculties of social science and those taught within faculties of humanities. A further complication has been introduced by those who want to join psychology and some parts of social science under the label "behavioral sciences" , usually in order to stress an "erklä ren" approach.

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In all cases, however, we confront the problern of the whole versus the individual parts. We can perhaps agree that the statement "the whole is more than the sum of its parts" applies to social collectivities, and that they have "emergent qualities", but what do we really mean by these words? (On the statement see e.g. Nagel1952; on the concept of emergence, see Edel1959, pp. 167-69.) As soon as we try to articulate our pre-scientific understanding we run into difficulties. This understanding involves that the behaviour of the social whole is determined by, or consists in, the actions of its members, but also that it influences them in various ways. This seems paradoxical, as expressed by the following quotations from a sociologist and an anthropologist, respectively: The mostfundamental idea concerning the nature of social reality isthat the properties of the elements of social phenomena obtain many of their characteristics from the !arger phenomena of which they are part, while the !arger entities obtain their characteristics mostly from the relations between the parts of which they are composed. This difficult paradox has been the cause of much irritation to social theorists (Cohen 1968, pp. 11-12). The social fact ... entails psychological ... processes not only as part of its texture, but also as something that exists outside and apart form it, namely, as its cause or antecedent and as its effect or consequent. In accepting this ... we are faced with certain logical difficulties. For we predicate some mutual influence between a datumvisible on one level of analysis and the same datum analyzed more deeply .... This sounds paradoxical (Nade!1951, pp. 213-214).

We find two tendencies in the philosophical as well as in much scientific, treatment of society which seek to evade this paradox. One goes in the direction of reducing what looks like the action of the social whole on a member to actions by other members. We may not always be able to resolve the process into its parts- that is, to the influence on the member in question by specific other members- but many believe that this is what the process must consist of. The other is to deny that the parts are really separate; they are only elements in a pattern which follows its own laws - laws of spiritual development or of functional adaptation to shifting environments. The concept of "Gestalt", developed within psychology, has been characterized by Max Wertheimeras signifying wholes "the behavior of which is not determined by that of their individual elements, but where the part-processes are themselves determined by the intrinsic nature of the whole" (Wertheimer 1950, p. 2).14 This expresses the same idea. 14 Quoted in Nagel1961, p. 391, where we also find a formulation by Kurt Koffka: "Instead of starting with the elements and deriving the properties of the wholes from them a reverse process is necessary, i.e. to try to understand the properties of parts from the properties of wholes" (Encyclopedia of the Social Sciences, 1931, p . 645). Eino Kaila, the late Finnish philosopher and psychologist, distinguished between "holistic wholes" (=Gestalten) and "meristic wholes" as follows: in the former the laws governing the behaviour of the whole is simpler than those governing the behaviour of the parts, in the latter it is the other way around (Kaila 1939, pp. 25-29).

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The choice between the two possiblities seems often heavily influenced by ideological bias. The fragmentary state of the social sciences leaves ample room for influence from considerations of a moral or political character. The names of the two competing positions in social philosophy, individualism and collectivism, refer mostly to positions on how the relationship between social wholes and their individual members should be regulated. According to individualism the individual human beings are the loci of value, the social wholes are only means for the furthering of their well-being. Collectivism, on the contrary, stresses the obligations of the individuals towards society. Those who follow the first of the tendencies mentioned without wanting to take position on the moral or political issues, have therefore coined the term "methodological individualism" for their point of view. In the same way adherents of the second tendency may call themselves "holists" .15 In my opinion, all attempts to prove by conceptual analysis that one or the other of these positions is the right one have failed. And although theories about group minds are out - only individuals have consciousness and mind - there are experiences which support a holistic position. Durkheim said that society should be considered as a thing ("comme une chose"), an independent reality outside the individuals which exerts coercion on them (Durkheim 1895, pp. 27-28). This is, in fact, how we sometimes experience it. Social norms constrain us. It is, on the other hand, difficult for us to accept that it is only an illusion that we, in the last analysis, are free to choose how to act. What the social philosopher has to do in this situation is to ask how results of social scientific research.can help us to a better understanding of the relationship between social wholes and their members than the one contained in our common sense, pre-scientific conception. Is it possible in this way to dissolve the whole-part paradox and do justice to the insights behind both individualism and holism?

V. Many would, I think, agree that the most fruitful way to approach this, the main problern of social philosophy, is to inquire whether the experiences which point to a holistic conception may, in the light of social scientific investigations, after all be explained as results of social interaction between individuals. Now, we must not forget that social wholes are of different kinds, that several kinds of bondsbind individuals together. A small, informal group differs 15

The opposite of holism may also be called atomism.

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significantly from a large organization as well as from a modern society, and not only in size. Ferdinand Tönnies emphasized this kind of difference by introducing his distinction between "Gemeinschaft" and "Gesellschaft". It is in the form er that we find the close ties which make the social whole take on a holistic appearance. Tönnies' classical work is now over hundred years old,16 and much in his account of the difference is not acceptable today.l7 We need to look into what later empirical research- and conceptual analysishas contributed to a better understanding of what consitutes "Gemeinschaft''. Here we find investigations of small, informal groups like Whyte's "street corner society" and sturlies of group formation processes like those of Festinger and Newcomb (see Whyte 1943; FestingerI Schachter I Back 1950; Newcomb 1961), which seem to exhibit ways to explain the "emergent qualities" of such groups as the results of interaction processes. That we sometimes experience social facts as described by Durkheim may perhaps be explained by a feature of social interaction which was already emphasized by the Scottish moralists of the 18th century,1s and which is now given increased prominence. Adam Smith's "invisible hand" metaphor relates to situations where the interaction between individual actors gives unintended results on the sociallevel, while each of them realizes his own intentions. But in other situations the social result is one which frustrates the actors and which may be experienced by them as an external reality which each of them is unable to do anything about, although it is caused by their own activity.l9 16 The first edition of Gemeinschaft und Gesellschaft appeared 1887.

17 Some would also claim that it is a work in social philosophy, rather than in social science. The same may be said about great parts of the work of other early sociologists like Durkheim, Simmel or Weber. I must admit nottobe able to draw a hard and fast line here. In principle I accept Karl Popper's demarcation criterion: scientific statements are distinguished from philsophical or metaphysical statements by being falsifiable. But falsifiability is a matter of degree, and Popper hirnself in his later works admitted that metaphysics may be of great importance in scientific work as a source of hypotheses. If we agree that the social scientist in his work always has a certain "general conception of society" in mind, and that his results may influence both his own social philosophy and that of others, it is for our present purpose not of great importance how we classify Tönnies' ideas, or other ideas which may help us to tackle the problern of the relationship between wholes and parts in the social sphere. 18 In the Scottish Enlightenment professors of moral philosophy like Adam Smith in Glasgow and Adam Ferguson in Edinburgh lectured on society, state, law, and economics as part of their courses and developed theories of great interest. The name "Scottish Moralists" was introduced by Gladys Bryson as covering four professors, two judges and David Hume (Bryson 1945). 19 F.A. Hayek, who with Karl Popper has designated unintended social consequences as the proper subject for social science, has borrowed a phrase from Adam Ferguson as title for an important essay: "The Results of Human Action but not of Human Design" (Hayek 1967, eh. 6). Among the many modern treatments of the phenomenon are Boudon 1977; Wippler 1978; and Vernon 1979. J.-P. Sartre has named the phenomenon "contrafinalite".

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Modern social science has developed a tool suited to unravel these phenomena: game theory. As pointed out by Jon Elster, game theory does justice not only to the fundamental aspect of sociallife covered by the term interaction (the result of my action is not independent of what others do), but also to the intentionality so essential to human nature and behaviour. (Elster 1979, p. 75. Elster is a declared methodological individualist, see e.g. Elster 1989, p . 13.) It would carry us too far afield if I tried here to present game theory systematically. I shall just say something about the general approach and give one striking example of its application.

VI.

Game theory operates with very simplified models of social situations. It started, as the name suggests, with parlour games- its faunder John von Neumann was interested in poker (an von Neumann, the history of game theory, etc. see Poundstone 1992)- but has gradually been extended to other situations where two or more parties are faced with choices and their outcomes depend not only on their own choices but also on those of the others. It is presupposed that the parties can evaluate the outcomes cardinally, or at least rank them ordinally, and that each wants as good an outcome as possible. Let us now suppose that two individuals, A and B, have each to choose between joining or not joining a project which may benefit them both. A does not know what B chooses before having to choose himself, and vice versa. Let us say that the cost of the project is $1,500, and that if the project is carried through, the outcome is worthup to $1,000 to each of them. If only one joins and has to carry all the costs he loses $500, while the other gains $1,000. If both join and split the costs evenly, each stands to gain $250. If neither joins, the pröject will not be realized and there is no loss or gain at all. A will rank the four possible combinations as follows: 1. I do not join

B joins

I gain $1000

2. I join

B joins

I gain $250

3. I do not join

B does not join

I gain $0

4. I join

B does not join

I lose $500

Since A does not know what B will do it is rational for him not to join; this gives him a better outcome both if B joins and if he does not.2o But B must come to a similar conclusion- there is complete symmetry. So the project 20 This is according to the so called dominance principle: if one strategy gives at least as good an outcome as any other, irrrespective of what the other(s) do(es), this is your rational choice. This seems obvious.

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fails, and both miss an opportunity to gain $250. That the rational choice gives a less favourable outcome than is possible has been considered paradoxical, and has given rise to a prolonged debate.21 Situations like this are called Prisoner's Dilemma situations (PD-situations). When the patternwas discovered in 1950, a psychologist constructed a story to illustrate it in a lecture (Poundstone 1992, eh. 6). A modern version of the story runs as follows: Two members of a criminal gang are arrested and imprisoned. Each prisoner is in solitary confinement with no means of communicating with the other. The police admit they don't have enough evidence to convict the pair on the principal charge. They plan to sentence both to a year in prison on a lesser charge. Simultaneously, the police officer offers each prisoner a Faustian bargain. If he testifies against his partner, he will go free while the partner will get three years in prison on the main charge. If both prisoners testify against each other, both will be sentenced to two years in jail. The prisoners are given a little time to think this over, but in no case may either learn what the other has decided until he has irrevocably made his decision. Each is informed that the other prisoner has been offered the same deal (Ibid, p. 118).

Here again the dominance principle applies and it is rational for each to accept the deal: No time in prison is better than 1 year, 2 years better than 3. So they get 2 years each, while they could have gotten off with only 1! How could they have escaped the dilemma? Notice that each is only interested in getting offhirnself as lightly as possible. If he is interested in helping his partner, he may refuse the deal, hoping that the partnerwill do the same out of sympathy with himself. Weshall have toreturn to the question of why theories of rational choice, of which game theory is one, often presuppose that the decision makers are purely self-interested. If we accept that this is the case with the prisoners, we can ask: how can they then escape the dilemma? One possibility isthat they, as members of a criminal gang know that they will be severely punished by the gang if they confess and are released. Another is that they are good criminals whose conscience forbids them to co-operate with the police- and that they know that about each other. Finally, they may have promised each other not to do so if caught. If they both respect the normthat promises must not be brokenand know that about each other - they are then out of the dilemma. 21 In my opinion it is not really paradoxical. I agree with John C. Harsanyi that such a: failure to cooperate need not represent irrational behavior on the part of the players- because they may have perfectly good reasons to distrust each other. (Many discussions of the cold war seem to be based on the completely unwarranted tacit assumption that mutual distrust- i.e. the expectation that the other side would not abide by agreements if it could profit by violating them- - cannot be the result of rational judgment and of a realistic assessment of the situation) (Harsanyi 1968, pp. 311-312).

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In the case of A and B similar solutions can be found. An outside authority may force them both to join; this could be a political authority which decides to carry the project through and collect their contributions as taxes. This is mostprobable if a larger number of individuals are interested in the project, which can be said to concern the provision of a public good.22 One of the reasons for having political authorities is that many such goods will not be provided voluntarily. If you arenot sure enough that the other citizens are willing to share the burden, it is not rational for you to pay anything. Also, if they are willing to pay, you may get a free ride. This is a typical PD-situation and the dominance principle teils you not to pay. Another solution would be to explain to the citizens how each can profit if all join and thereby persuade them to sign a contract by which they bind themselves to participate, sharing the costs, if enough others do the same. If you cannot trust the others to fulfil their obligation for moral reasons, such contracts must, however, be binding in the sense that the signers can be forced to honour them. Here again public authorities are needed: political authorities to create laws about contracts and judicial authorities to take care of those who try to evade their obligations.

VII.

Why do many of the theories which social philosophy has to build upon presuppose that people are only motivated by self-interest? We know, after all, that this is not true. First of all, because this permits analyses to be carried through, which would be impossible with less simple presuppositions. Secondly, because economists have shown that such assumptions are sufficient to develop theories that match empirical reality approximately in some areas: in particular, theories of free market economy with private goods.23 Thirdly, because in this way we can find what is lacking. (A good short exposition of this is Sen 1976-77.) As we have seen, one cannot explain why public goods are in fact provided in large amounts, without introducing either sympathy, conscience, or political organization. But how can these phenomena then be explained? 22 A public good is one which it is impossible (or very diffcult or costly) to reserve the benefit of for those who have contributed. Secondly, if one derives benefit from it, this does not diminish the benefit others may derive (or at least only a little). 23 As Adam Smith already pointed out, such a theory presupposes that the economic actors abstain from "force or fraud", so also here it is assumed that norms (of fair trade) are obeyed, either because they are internalized, or because they are upheld by public authorities. Only in some cases can one trust purely selfish actors not to cheat or use force if they can gain thereby. Actually elementary economic theory presupposes the existence of a legal system.

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In many contexts sympathy cannot play a very great role; David Hume rightly pointed out that it weakens in proportion to the social distance between the individuals involved.24 So we will not bother with how sympathy may be conceived and explained according to modern psychology.

Concerning conscience we can, in social psychology and the psychology of personality, find explanations of how it comes about that children make the moral claims directed at them their own. This internalization of social norms is, according to Freud, due to identification with the parents (and other educators). This is not an ordinary learning process. Perhaps the description of what happens given by C. H. Coley or G. H. Mead is better. The key insight here is that the self is a product of social interactions which involve the evaluation of the child by its surroundings according to social norms. Respect for these is in that way built into the person's self-esteem and gains motivating force independent of external pressures. (I have accounted for these matters in a book in Danish called Moral og samvittighed (Morals and Conscience) (Blegvad 1963).) These theories, which I have only here been able to hint at, may be supported by some biological facts. As emphasized by anatomists like A. Portmann and L. Bolk and the anthropologist Arnold Gehlen, we humans are born much less fully developed and more flexible than other animals, who are furnished with fixed, ready-made instinctual patterns of behaviour. What we are furnished with is an ability to learn, in particular to learn and internalize cultural elements like norms that allow us to live an ordered social life. Gehlen's point may be expressed so: "The animals have instincts, we have institutions" (Gehlen 1961, pp. 55-77). Even if we accept this kind of explanation of the formation and function of the individual conscience, we have not explained why there are social norms which parents and other educators try to instill in the rising generation.

vm. To explain how it comes about that norms are formed and generally accepted in a society it is not enough to show that they help in solving social problems, as Edna Ulmann-Margolit does in The Emergence of Norms (Ullman-Margolit 1977). She deals in an interesting and illuminating way 24 There is also the problem, that actions out of sympathy may be considered really motivated by self-interest. "It can be argued that behaviour based on sympathy is in an important sense egoistic" (Sen 1976- 77, p. 95). Thomas Hobbes, who was convinced that we all are egoists, answered a clergyman who saw him give alms to a beggar and accused him of acting contrary to his beliefs, that he gave the money in order to lessen the pain the sight of the suffering beggar gave him (by virtue of sympathy).

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with PD-situations, situations where activities need tobe co-ordinated, and situations where inequalities may lead to trouble. Using game theory she shows how three types of norms are relevant in these situations. But when she talks about the situations as "generating" the norms, her talk is misleading. She seems aware of that, since she explains that "generate" is tobe taken in a "structural" and not in a "historical" sense, and that this means that the norms are "called for", which again means that they offer solutions to the problems (Ibid, pp. 8-9, 22). To believe that when there is a need for something, then it will come, is a crude form of functionalism. The long debate on functional explanations has shown that, only if a mechanism like natural selection can be supposed to have been at work, has the pointing out of a need, a "functional prerequisite", any explanatory power. This is what F. A. Hayek believed about the basic social norms, but others doubt that the conditions for a selection mechanism have been present.25 I consider the questiontobe open still. There has recently been great interest in attempts to show how norms may emerge spontaneously through social interaction between self-interested persons. Some are here inspired by David Hume's account "Of the Origin of Justice and Property" (A Treatise of Human Nature III. II; see e.g. Sugden 1986) but the concept of "convention" as analyzed by David K. Lewis (Lewis 1969) has also been important. The decisive move, however, has been the discovery that while self-interested players in a single PD-game cannot rationally choose the alternative which would bebest for them, it makes a great difference if the same players play the same game repeatedly.26 The players can then learn to trust each other. Many experiments have been made with such iterated PD-games, the most famous being those organized by Robert Axelrod with the help of computers (Axelrod 1984). In competitions between computer programs designed by experts in game theory, the one which came out on top was a quite simple one called TIT FOR TAT: start with the co-operative alternative and thereafter choose the one your opponent chose in the previous play. 25 Hayek has developed his theory of spontaneous order in several works (see. e.g. Hayek 1973, Vol. 1, chs. 1-2). The Counterargument is set forth succinctly by C.H. Whiteley: As to the Darwinian ground for a presumption of utility in social institutions, this is very weak. The struggle for existence can be guaranteed to produce adaptive results only in so far as there are relatively large numbers of individuals competing for survival and having a high death-rate; the effect operates only in the very long run ... These conditions arenot fulfilled in the case of human societies (Whiteley 1973, p . 28). See, however, Parijs 1981. 26 As a matter of fact, in the first experiment with a PD-game in 1950 the two players went trough 100 plays and were able to "escape the dilemma" in the majority of them. Their comments show that they often did not reason rationally out of self-interest (see Poundstone 1992, pp. 106-116).

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This kind of experiment seems to show that it is not impossible for pure egoists to establish mutually beneficial co-operation without outside help, but only under conditions which may not be present very often in reallife. (Axelrod gives some examples from real life (Ibid, eh. 4).) Fortunately, we humans arenot pure egoists. And I agree with Jon Elster, that it is not possible to explain all unselfish behaviour as really based on egoism: "Altruism, trust and solidarity aregenuine phenomena, which cannot be dissolved into ultra-subtle forms of self-interest" (Elster 1979a, p . 146).27 The real interest in theories of rational self-interested choice is that they point out what cannot be explained in this way. The emergence of social norms seems tobe outside of their range. As Elster puts it: "I have come to believe that social norms provide an important kind of motivation for action that is irreducible to rationality or indeed to any other form of optimizing mechanism" (Elster 1989a, p. 15). In my opinion this means that the main task of social philosophy, at present, is to find a way to combine theories of normatively regulated behaviour with those of rational choice. This is, so to speak, the modern version of the old holism-individualism problem.

IX. Wehaveseen that external influences (the criminal gang and the political taxing authorities) may enable the parties in a PD-situation to escape the dilemma. If the parties in question, tagether with others, have set up a mechanism for making collective decisions that are binding on all, their possibilities for co-operating are quite different from those in "the state of nature". But the setting up of such mechanisms raises problems of just the same character, as has been shown in discussions of Thomas Hobbes' political philosophy. Talcott Parsans named the problern of social order the "Hobbesian problem" and denied that the egoists in his state of nature could ever agree on a social contract (Parsons 1937, p. 92). And John Watkins has shown that they are in a PDsituation (Watkins 1970, pp. 202-206). Parsans claimed that social order requires shared values, which I interpret as shared, internalized norms. The normthat promises have tobe kept is, of course, particularly important. 28 So we are back at the problern of the emergence of norms. Since some norms at least are made into laws by political and legal authorities, the problern dealt with here seems to me to have relevance for both political philosophy and legal philosophy. 27 In this work Elster i.a. criticizes one the boldest att empts to prove by analysis of iterated PD-games that social co-operation can be obtained without political authority, that of Michael Taylor (Taylor 1976). 28 The concept of social order has been analyzed by Percy S. Cohen (1968) as including restraint, reciprocity, predictability and consistency. Jon Elster distinguishes between two concepts of social order: predictability and cooperation (Elster 1989a, pp. 1-2).

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What I have tried to do here is to identify the task of what I think is fitting to call social philosophy. The task is, in short, to give a general account of what it is to live in society, using the results of the social sciences to correct and elaborate our common sense conceptions, and taking into account what the philosophy of social science has to say about these sciences, their methods and their limits. Next I pointed out the whole-part paradox inherent in our common sense notion and asked for ways in which to dissolve this paradox, using the results of the social sciences. I described briefly two approaches, one from social psychology, and one from the theory of rational choice. In this way I hope to have answered the question in my title and to have suggested how good it is that our association includes social philosophy in its name and on its agenda. But I do not claim to have presented a social philosophy, let alone the correct social philosophy - if such a thing can be found.

References

Archiv für Rechts- und Wirtschaftsphilosophie (1907-8), Vol. I. - (1909-10), Vol. III. - (1910-11), Vol. IV. - (1932-33), Vol. XXVI. - (1987), Vol. 73.

A.xelrod, R. (1984), The Evolution of Cooperation, New York. Blegvad, Mogens (1963), Moral og samvittighed (Morals and Conscience), Copenhagen. Boudon, Raymond (1977), Effets pervers et ordre social, Paris. Brackhaus Enzyklopädia (1990, 14. ed.), Vol. 12. Brodbeck, May (1968), Methodological Individualisms: Definition and Reduction, in: Philosophy of Sciences, Vol. 5. Bryson, Gladys (1945), Man and Society: The Scottish Inquiry of the Eighteenth Century. Cohen, Percy S. (1968), Modern Social Theory, London. Durkheim, Emil (1895), Les regles de la methode sociologique, (15. ed. 1963), Paris. Edel, Abraham (1959), The Concept of Levels in Social Theory, in: L. Gross (ed.), Symposium on Sociological Theory, New York.

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Elster, Jon (1979), Forklaring og dialektikk, Oslo. - (1979a), Ulysses and the Sirens, (2. ed. 1984), Cambridge. - (1989), Nutsand Bolts for the Social Sciences, Cambridge. - (1989a), The Cement of Society: A Study of Social Order, Cambridge.

Encyclopedia of the Social Seiences (1931), Vol. 6. Feinberg, Joel (1973), Social Philosophy, (Foundations of Philosophy), Prentice Hall, N.J. Festinger, Leon I Schachter, S. I Back, K. (1950), Social Pressures in Informal Groups, New York. Gehlen, Arnold (1961), Anthropologische Forschung, Hamburg. Handwörterbuch der Sozialwissenschaften (1956), Vol. 9. Harsanyi, John C. (1968), Game Theory: The Example of Social Status, in: I. Lakatos I A. Musgrave (eds.), Problems in the Philosophy of Science, Amsterdam. Hayek, F. A. (1967), Studies in Philosophy, Politics and Economics, London. - (1973), Law, Legislation and Liberty, London.

International Encyclopedia of Social Science, Vol. 14. Johnson, H. M. (1961), Sociology: a Systematic Introduction, London. Kaila, Eino (1939), Personlighetens psykologi, Stockholm. Kuhn, A. I Parsons, T. (1966), The Study of Society: A Multidisciplinary Approach. Kuhn, Thomas (1962), The Structure of Scientific Revolutions, (International Encyclopedia of Unified Science, Vol. II, 2), Chicago. Lewis, David K. (1969), Convention: A Philosophical Study, Harvard. Nadel, S. F. (1951), The Foundations of Social Anthropology, London. Nagel, Ernest (1952), The Whole is More than the Sum of its Parts, in: Philosophical Studies, Vol. 3. - (1961), The Structure of Science, London.

Newcomb, Theodore M. (1961), The Acquaintance Process, New York. Olafsson, Frederick A. (ed.) (1961), Society, Law and Morality, (Readings in Social Philosophy).

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Parsons, Talcott (1937), The Structure of Social Action, (2. ed. 1949), Glencoe, Ill. - (1951), The Social System, (paperb. ed. 1964), New York.

Poundstone, William (1992), Prisoner's Dilemma, New York. Sen, A. (1976-77), Rational Fools, repr. in: F. Hahn IM. Rollis (eds.) (1979), Philosophy and Economic Theory, Oxford. Simmel, Georg (1900), Philosophie des Geldes. - (1978), Philosophy of Money, (trans. T. Bottomore I D. Frisby).

Sugden, Robert (1986), The Economics of Rights, Co-operation and Welfare, Oxford. Taylor, Michael (1976), Anarchy and Cooperation, (2. ed. 1987, entitled The Possibility of Cooperation), Cambridge. Ullman-Margolit, Edna (1977), The Emergence of Norms, Oxford. Van Parijs, Philippe (1981), Evolutionary Explanation in the Social Sciences, London. Vernon, Richard (1979), Unintended Consequences, in: Political Theory, Vol. 7. Watkins, John (1970), Imperfect Rationality, in: R. Borger I F . Cioffi (eds.), Explanation in the Behavioural Sciences, Cambridge. Wertheimer, Max (1950), Gestalt theory, in: W.D. Ellis (ed.), A Source Book in Gestalt Psychology, New York Whiteley, C. H. (1973), Mind in Action, Oxford. Whyte, William Foot (1943), Street Corner Society, (2. ed. 1955), Chicago. Wippler, Reinhard (1978), Nicht-intendierte soziale Folgen individueller Handlungen, in: Soziale Welt, Vol. 29.

THE CONFORMITY OF THE LEGAL STAFF Hubert Rottleuthner, Berlin

Any society which makes a distinction in some way or other betweeen the act of law-making and the application of law, between the legislative and the judicial, beitunder the rubric of division of labor, separation of functions or "separation of powers", must confront the problern of how to ensure the conformity of the legal staff. (The term "legal staff" is used here to refer to those persans charged with the application, interpretation and enforcement of given norms.) How do those who create legislation succeed in ensuring that laws are applied in accordance with the legislative will, without becoming embroiled in the supervision of and intervention in individual cases? One would think that in almost every society this problern could be solved to the satisfaction of the regime in power. Yet, it would still be necessary to find an explanation for those instances in which the conformity ofthelegal staff has not been or is not, secured. This problern is especially noticeable in times of radical political transformation, when a change in the political regime gives rise to or sharply increases tensions between the powers-that-be and the legal staff. Countriesthat have rid themselves of a dictatorship- Greece, Spain, Portugal, and many of the states in Latin America - offer examples. The fall of the communist regimes in Central and Eastern Europe also will supply sufficient illustrative material. Since political breaks have occured frequently in its recent history, Germany provides a particularly rich source of examples: on four occasions in this century a new political regime has had to redefine fundamentally its relationship to the legal staff. In 1918, the newly-founded Republic took over the civil servants of the German Empire without any rupture. The consequence was strained relations between authoritarian-minded judges and the democratic political parties, which never succeeded in making the Republic something dear to the hearts ofthelegal staff and legal scholars (cf. Kübler 1963, pp. 104-128; concerning the problern of investigating in the attitudes ofthelegal staff in the Weimar Republic cf. also Rottleuthner 1987, pp. 373-394). The Weimarinterlude ended in 1933 with the restoration of an authoritarian state with strong leadership and a promise to establish a homogeneaus

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national community (Volksgemeinschaft) that would no Ionger be splintered into innumerable factions. In the course of this transformation, as early as 1933/34, the mechanisms that would be employed to control the legal staff became dramatically clear: dismissal from the judiciary and academic institutions of political and "racial" undesirables; reorganization of the judicial system to realign jurisdiction and to create new positions for those members of the legal staff who were eager to conform; changes in legal training; assimilation of professional organizations into Naziparty associations; appropriation of legal publishing and its supervision by the party, etc. After a while, these measures were supplemented by restrictions on jurisdiction in favour of the police and the SS; direct interventions by high ranking personalities, including Hitler himself; elimination of the presidential system in the administration of the courts; centralization of power in the ministry of Justice of the Reich; the introduction of reporting obligations imposed on chief public prosecutors and the heads of the regional courts of appeals; issuance of instruction bulletins, holding of conferences, making suggestions of a general nature and also in individual cases to prosecutors, sending of letters of information and recommendation for action to judges and attorneys (Richterbriefe and Rechtsanwaltbriefe); previews and reviews of cases, creating new means to quash decisions, grant pardons, etc. (cf. Gruchmann 1990, in particular pp. 1091-1112; Oldenhage 1986, pp. 100-120, particularly concerning the Harnburg "System Rothenberger" cf. Bästlein 1992, p. 105ff.; cf. also the synopsis of mechanisms to ensure conformity of the judiciary in the Nazi era in Rottleuthner 1987, p. 385). After 1945, the allied forces were at first unanimous in holdingthat the legal system (apart from the education system) had contributed substantially to the maintenance of the Nazisystem of injustice and had therefore tobe throughly reformed. But the concrete measures adopted soon took the Occupying Powers down differing roads. At first there was close examination leading to dismissal of those members of the legal staff who were incriminated, especially in the American and Soviet zones; but as early as 1946, judges and public prosecutors who bad been more than merely formal members of the NSDAP were being reinstated in office in the Western occupation zones, whereas in the Soviet zone, even those who had been party members only in a formal sense were excluded from all judicial functions under Soviet military order no. 49 of 4.9.1945 (German translation in Benjamin 1976, p . 64ff.; cf. also SMAD order no. 204 of 23.8.1947). In the Western zones it was considered preferable to keep the administration of justice functioning with the old personnel r ather than risk a shutdown of the judicial system, in the hope that adaptation and re-education, the force of the official norms and influence of the highest "purified" levels of the system would suffice. By contrast, in the Soviet zone the choice was made

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for a radical renewal of personnel. The few remaining unincriminated judges were to be assisted as rapidly as possible by graduates of the courses for people's judges (Volksrichterlehrgänge) even though the latter did not possess the legal qualifications for holding judicial office. Under the circumstances political reliability was counted as more important than professional qualifications.l Recruitment of these people's judges can be seen as the first exercise in political control of the administration of justice in the Soviet Zone, later the German Democratic Republic. This mortgage had tobe carried as the cost of a radical denazification. Following the recent German unification, only about 30 to 40 percent of former GDR judges and prosecutors were retained in office when the new states oftheGerman Federal Republic were established.2 Those who had held high positions, had maintained close connections with the Ministry of State Security, or who had participated in political cases, mostly on the criminal justice side of the system, were deemed unacceptable. This historical sketch demonstrates that the mere enactment of laws and other normative measures is certainly not sufficient tobring the legal staff into line with the prevailing political regime, even if it has the legislative power in its hands. Legal norms have to be interpreted and can be evaded. Forbidding interpretationwill not help, nor is it adequate to demand that the "original intent" rule of interpretation be followed. (For that matter, the "will of the legislator" is usually too vague and itself begs for interpretation.) The postulate of the primacy of legislation coupled with a legalistic attitude of the addressees still needs to be supplemented by a series of other formal and informal mechanisms of control. The customary mechanisms for securing the conformity of the legal staff lie in the following areas:

Legal education. Entry to law study can be made dependent on certain criteria conducive to conformity;3 the content of the education can be controlled through state examinations, the state can exert influence over the choice of teaching personnet and materials.

- -The-graduates of the courses for people's judges were later awarded the qualifica1

tion for holding judicial office by an order of the Soviet military administration of August 1947 (Neue Justiz 1947, p . 198), in order to meet the conditions defined under the Gerichtsverfassungsgesetz . 2 In Berlin, due to a restrictive practice, only about 10% of the judges and prosecutors of East-Berlin, mostly younger ones, were retained. It was held that one could afford such a drastic measure- with a percentage of remairring judges and prosecutors similar to the one after 1945 in the Soviet zone- because of a sufficient number of existing staff in West-Berlin. 3 In the German Empire (until1918) members of the worlring class could be kept away from judicial office (and not only from that) by demanding that students and post-graduate judicial service trainees (Referendare and Assessoren) had to supply proof of a certain amount of personal property.

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Legal scholarship. The state can support the publication of schalarship which builds a body of scholarly opinion ("herrschende Meinung"), which in turn exerts influence upon teaching, to some extent, and upon the practice of the courts. Recruitment of personnel. Government agencies can influence the types and locations of work for legal personnel, as well as the development of their career paths. Professional discipline. Legal measures for professional discipline can be taken against those who exceed the bounds of tolerance. Appellate or review instances. So long as the judicial offices in the higher courts are held by politically reliable persons, unsatisfactory decisions of the lower courts can be revised or quashed. Review also helps to guarantee a uniformity of interpretation in the lower instance. Moreover, a hierarchy of courts offers incentives for advancement to positions with higher salaries and broader responsibility. Of course, there is a price for these privileges. Devices and procedures. Uniformity of interpretationalso is promoted by the adoption of standardized formulas which, having been adopted by one court, find favour in others, and though only informally binding, facilitate decision-making (e.g., for determining the amount of maintenance to be paid for children, or for calculating damages, or for determining the fines for certain classes of offenses, such as traffic offences). Social sanctions. Common informal mechanisms to irrstill conformity function at the personal Ievel in the workplace (ostracism by colleagues, for example) can be set up. This catalogue of mechanisms makes clear that the problern of ensuring conformity actually has two aspects. On the one hand, it is a matter of ensuring a certain degree of loyalty that extends beyond mere formal allegiance to law. On the other hand, it isamatter of promoting a degree of uniformity of judicial decisions. No sharp line can be drawn between these two dimensions, insofar as each effort at achieving uniformity necessarily involves at the same time giving a particular substantive direction to the development of the law. In what follows, I want to take the example of the German Democratic Republic, a country that understood itself to be socialist, to show how the conformity ofthelegal staff was ensured, especially at its core in the judicial and prosecutorial personnel. Using the GDR as an example has the special advantage that we arenot (or are no longer) limited to official self-descriptions and legitimating statements. Since the opening of the archives we have

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access, in addition, to information about the "back-stage" activities of the state and party machinery. What I want to showisthat it was impossible to implement the basic organizational principles of the system without raising certain contradictions and that these contradictions became manifest in paradoxes that appeared within the control mechanisms, creating problems of orientation for the legal staff - yet that it was precisely these problems that actually increased the conformity of the legal staff. In order to avoid a simplistic application to the GDR of such concepts as the Rechtsstaat (Rule of Law), separation of powers and judicial independence as they are understood in the Federal Republic of Germany, it is advisable to examine the internal GDR perspectives on these matters. The socialist doctrine of state and law draws a contrast between the bourgeois-liberal notion of separation of powers and the unity of powers in a socialist state. If, as asserted, classes no Ionger exist, if instead workers and farmers comprise a sovereign and homogeneaus community, it is the state apparatus that alone can and must function as the unified means of expressionofthat community. Nevertheless, it is the party that is the organ of the workers' and farmers' power and thus has a leading role to play. The "democratic centralism" of state power is compatible only with a "functional division" of the unitary state authority. Socialist legality is then a functional modality within the division of functions . In this respect, the Weimar Republic served as an historical sample for a state structure in which the judiciary was able to gain independence from the parliamentary sovereign - with fatal consequences. Historical experience, therefore, demanded that the legal staff be bound closely to the sovereign people through devices such as a doctrine of strict adherence to statutory law, the prohibition of any form of judicial review of legislation, the subjection of the judiciary to votes of confidence by the citizenry by making judicial office an elective office (in the GDR after autumn 1960), provisions for recall of judges, and the obligation to submit regular reports of activity. The judges remained "independent" in making decisions, that is, in deciding particular cases. It was not considered incompatible with that principle to establish a comprehensive system of "guidance" in order to realize the constitutional principle of "uniformity of interpretation". Thus, the decisive principles were: - unity of state power (i.e., no separation of powers, but rather "democratic centralism", no right of judicial review); - the leading role of the party; - socialist legality; - uniformity of interpretation; and - independence of the judiciary.

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Even though neither the Constitutions of the GDR (of 1949, 1968 and 1974) nor any of its laws contain a single word about the role of the SED (Socialist Unity Party- the ruling party in the GDR) in directing the administration of justice, the decisive impact of the party apparatus can be reconstructed from the archival documents, looking past the facade of formal regulations. Party bodies were able to exert influence over admission to law study, over legal education (personnel, curriculum and materials), in the recruitment and selection of the personnet of the legal staff and the election of judges, over the organization of the courts, and finally, over individual decisions. Control was exerted at all levels, starting with the Politbüro, then through a special department of the central committee of the party, through the party organization in the courts, and through the local party organizations. There were regular conferences held between the directors of courts and the responsible party leadership, in some cases in the presence of representatives of the local state security agency, police agencies et al. The fact that nearly all judges and prosecutors were party members also subjected them to party disciplinary proceedings if the need arose. The position of a director of a courtwas extremely strong as compared, for example, to the situation in West Germany. He/she determined the distribution of work; he/she could take any particular case into his/her own hands or refer it to a judge of bis choice. He/she was the first person to view the file in criminal cases. Regular reports and staff conferences gave hirn/her the opportunity to check up on the performance of particular judges and to discuss forthcoming cases with them. Judges were obligated to inform hirn/her of proceedings of "special political significance" . The director also undertook to evaluate judges prior to elections. The influence of the higher courts (county courts and the supreme court) upon the lower courtswas not limited to the decision of appeals, the flow of which they could not so easily control. Therefore, in addition to their ordinary role in making decisions, and issuing guidelines and other directives, they engaged in "operative activity". The directors of lower courts were required to attend plenary sessions of the higher courts and conferences of specialized judges. The higher courts conducted inspections and made sorties on the spot and they received weekly reports from the lower courts. Judges of higher courts also could call judges of lower courts on the carpet. Besides these internal forms of direction there also was constant influence from ministries, particularly from the Ministry of Justice (which until 1963 had its own administrative offices in the counties and districts); it was responsible for personnet matters. Moreover, the Ministry for State Security had numerous opportunities to exert influence over the administration of justice, well beyond its legally recognized sphere of investigative powers in political matters.

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In addition to those measures of control provided by law and those revealed from the practice documented by the archives, there were also informal mechanisms to secure the loyalty ofthelegal staff. In cantrast to the situation in the Federal Republic of Germany, where judges arerather isolated in their work, the GDR placed great value on the collective nature of decisions. Communication among judges was much closer, they saw one another more frequently, and they helped each other when necessary by substituting in a case. Party members pretended tobe on familiar terms. Moreover, one was bound up in a dense and time-consuming network of party and "community activites" (gesellschaftliche Aktivitäten) such as party courses, party membership meetings, activities in one's residential area, associations, the worker's militia (Kampfgruppe), etc. Being enmeshed in this network of social relations profoundly increased the pressure to conform. Of course, in such a large structure as the justice system it is not possible to intervene in each particular matter. That is precisely why general mechanisms such as personnel selection and organizational structures were employed. However, the apparatus was set up in such a way that it was always possible to implement concrete directives when necessary. The system of guidance of the administration of justice was justified, under the principle of the leading role of the party. But in view of the absence of any legal basis for party jurisdiction this was not really compatible with the principle of socialist legality. The system of guidance then also was justified by the goal of ensuring uniformity of interpretation. Yet the measures taken for that purpose could hardly be consistent with the principle of the independence of the judiciary. This tension between securing conformity, on the one hand, and the principles of the rule of law and of judicial independence, on the other, led to control paradoxes that overtaxed the judges' ability to orient themselves. The paradoxes threatened the effectiveness of control and brought forth continuous, intensive and refined measures that only served to confirm the lack of effectiveness. This can be shown in detail: (1) The demand that legality and party loyalty be treated as a unityalbeit a dialectical one, as it was understood- could lead to "ambiguities". A senior county court judge struggled with his ideological confusion: "If my decision is legally correct, it will be politically wrang. If it is politically correct, it will be wrong in legal terms." When, even after discussion, the party members of the county court could not reach a clear decision, the county committee of the SED (Socialist Unity Party) intervened through the Ministry of Justice (IfGA ZPA IV 2/13/103).4 4

Report on the work of the judicial authorities in the Leipzigcounty of 14.7.1956 .

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(2) Similar problems might arise from the requirement that each application of law take into consideration the social function of law. Criticism might then be made that: the judges have not yet fully overcome bourgeois legal positivism. They somet imes base their decisions on the legal norm alone without giving due regard to the concrete political and economic conditions under which an offense was committed (IfGA ZPA IV 2/5/201, p. 256).5

(3) Conflicts over the role one was supposed to assume were caused by the boundary between professional (i.e. state) and party acitivity: Local party organizations have to resist the tendency to separate party activity from official duties. Such a separation contributes to the loss of the leading role of the party (IfGA ZPA IV 2/13/33, p. 5).6

But on other, official occasions this boundary was maintained. (4) A specialproblern confronting the judiciary must have arisen from the opportunistic penal policy, i.e., from the demands put forth by the party about how to deal with lawbreakers. The general criterion for the imposition of punishment was supposed to be the degree to which the criminal act "endangered the community". The court was supposed to differentiate between a law violation due to a lack of sense of responsibility or a backward consciousness, on the one hand, and crimes against the state (i.e., against the socialist social system), on the other. What was called for was: principled firmness but, at the same time, flexibility; intransigeance in opposing the adversary and, simultaneously, great sensitivity and patience in dealing with those individuals who still talk a Iot of nonsense (IfGA ZPA IV 2/5/201, p. 233).

Sometimes the educational function of penalties was emphasized, while at other times it was their repressive function . (5) The principle of democratic centralism wa s given lip service to encourage initiatives from below, but in the final analysis it served merely to justify goals determined from above. (6) Judicial officials were chased around the mulberry bush with political tag words whose definition rested entirely in the hands of the party leadership: dogmatism, revisionism, normativism, formalism, objectivism, liberalism, positivism, sectarianism and a host of other items. (7) Another monopoly in the hands of the party was knowledge of "the laws of social development". Judicial officials were responsible for discovering them. Formulas like these purport to provide information, but all they really do is to intensify the readiness to adjust to the demands of those above who claim to have superior ability do discern their meaning. 5 Report on the investigation of the jurisdisction of the Supreme Court and va rious lower courts, April1962. 6 Thesis on the basic conception of judicial work submitted by the sub-department for justice of the Central Committee of 24.9.1959.

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(8) This patternwas carried to its extreme in the search for "what is really new". A sloganwas announced: "Discover what is really new." It was a magic formula. One is required to search for something that is hidden somewhere, and when one does not find it, it must be admitted that one lacks the required cognitive capacity.7 Theorientation from above only appears to be clear. The recommendation to study the classics of Marxism-Leninism and the resolutions of party congresses fail to provide the kind of guidance necessary to reach decisions in individual cases. Yet neither is the task of concretizing the law delegated to the lower levels. Instead, there is a continuous intervention arising out of fear that control somehow will be lost. Those working below must behave as if they understood everything clearly. Incorrect decisions will be attributed to their lack of understanding. Feeling insecure, the addressees find themselves in such a bind that they respond with hyper-conformity. Contradictions in the structural principles manifest themselves at the subjective level in disorientation, which produces insecurity. That in turn promotes the readiness to adapt to whatever is asked from on high. Of course, contradictions in structural principles also exist in western societies. A principle of equality before the law, a prinicple of equal treatmentin the GDR, the principle of uniform application of the law- is hardly compatible with a principle of the independence of the judiciary. Any detailed analysis of the decisions of particular courts (and not only in the Federal Republic of Germany) will reveal tremendous inconsistencies (e.g., in the practices of prosecutors in dismissing cases, in sentencing practices, in the duration of proceedings, etc.) which seem to cause little discomfort, primarily because they are not systematically recognized. The sense of contradiction is eliminated by ignoring the facts. By contrast, those agencies which were occupied with directing the administration of justice in the GDR operated with enormaus attentiveness. It appears that in the GDR the insatiable demand for control and the awareness of permanent deficiencies in the means of giving direction kept building upon one another - under the motto of "uniformity of interpretation" . What do these contradictions in structural principles - the principle of the leading role of the party versus the principle of socialist legality; the prin7 "The new that comes into being must after all be the expression of underlying laws of social development which are effectively operating. There is the "new" (Neues) which only seems to be new, but there is also the "new" (das Neue) which is genuinely new, where a law becomes effective. If one knows about the laws, it helps a lot in explaining and promoting the new. If you walk around without a theory in your head looking for the new you might easily catch the wrong thing." (Karl Polak, the leading legal-theoretical scholar in the GDR during the 50s, at a department conference with the secretary of the Central Committee Grüneberg, of 4.12.1959, Conference records, p. 36 (IfGA ZPA IV 2/13/26)).

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ciple of uniformity of interpretation versus the principle of the independence of the judiciary - and the enormous gap between the law in the books and the law in action- between state law and its party directed administration - mean for the concept of law? Was it a legal system? Was it valid law? According to what criteria? Legal rules were issued officially and according to formally established criteria. But what about the efficacy of the official legal rules if their application and the use made of them followed informal rules enacted by party agencies? Was there, in consequence, no law at all, was it an a-legal system or a pre-legal one, was it a system of injustice to the core (or only at its core)? Legal theory that claimstobe realistic has to deal with these issues.

References

Benjamin, H . et al. (1976), Zur Geschichte der Rechtspflege der DDR 19451949, Berlin. Bästlein, K. (1992), Vom Hanseatischen Richterturn zum nationalsozialistischen Justizverbrechen. Zur Person und Tätigkeit Curt Rothenbergers 1896-1959, in: Justizbehörde Harnburg (ed.), "Für Führer, Volk und Vaterland ... ". Hamburger Justiz im Nationalsozialismus, Hamburg. Gruchmann, L. (1990), Justiz im Dritten Reich 1933-1940. Anpassung und Unterwerfung in der Ära Gürtner, (2. ed.), München. Institut für die Geschichte der Arbeiterbewegung- Zentrales Parteiarchiv, IfGA ZPA IV 2/13/103. IfGA- Z.P.A. IV 2/5/201. IfGA - Z.P.A. IV 2/13/33. IfGA - Z.P.A. IV 2/13/26.

Kübler, F. K. (1963), Der deutsche Richter und das demokratische Gesetz in: Archiv für die civilistische Praxis, Vol. 162. Neue Justiz (1947).

Oldenhage, K. (1986), Justizverwaltung und Lenkung der Rechtsprechung im Zweiten Weltkrieg. Die Lageberichte der Oberlandesgerichtspräsidenten und Generalstaatsanwälte (1940-1945), in: D. Rebentisch I K. Teppe (eds.), Verwaltungcontra Menschenführung im Staat Hitlers, Göttingen. Rottleuthner, H. (1987), Rechtspositivismus und Nationalsozialismus. Bausteine zu einer Theorie der Rechtsentwicklung in: Demokratie und Recht. SMAD order no. 204 of 23.8.1947.

MONTESQUIEU REVISITED THE BALANCE OF POWER BETWEEN THE LEGISLATURE AND THE JUDICIARY IN A NATIONAL-INTERNATIONAL LEGAL CONTEXT J an M. van Dunne, Rotterdam Magistratum Zegem esse Zoquentem Cicero, De legibus III, 1, 2 I.

Introduction. Montesquieu's bouche de Ia loi Metaphor and the Separation of Powers

Traditionally, the invention of the doctrine of the separation of powers is attributed to Montesquieu, in hisfarnaus De Z'esprit des Zois (1748). Insiders know better: Montesquieu was well acqainted with the works of Hobbes, Locke and Harrington, who represent seventeenth- and early eighteenth-century English thought on the separation of powers (ViZe 1967, p. 48). Montesquieu's contribution tothelegal doctrine of Trias politica, however, lay principally in his discussion of the position of liberty in a legal setting, in the search for boundaries to the powers that could endanger that vital human condition, which proved so inspiring to French and American revolutionaries after his time. Interestingas the discussion of the wide variation in doctrinal models of separation of powers or a balanced constitution may be, which seems to find no end, I would rather focus on another, perhaps even more famous, contribution to legal thinking, namely the concept of the judge as the bauche de Za Zoi, the mouthpiece of the law. This metaphor, also presented in his treatise De Z'esprit des Zois, generally is seen as the original and independant contribution of Montesquieu to jurisprudence. It is one of the most popular concepts for describing the judicial function in its relation to the legislature, cited by generations of lawyers in the defence of legal positivism or in its rejection. In French legal doctrine it became known as the view of the judge as Z'organe, en quelque far;on machinal, de la loi (Franr;ois Geny), Ze juge-automate, or as it is called by English and American authors: the 'mechanical view of the proper role of the judges' (ViZe).

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It is an intriguing metaphor; although few authors still make use of it to defend a strict separation of powers, in particular between the legislature and the judiciary. It is, according to my impression, still in the back of the minds of many lawyers, when dealing with the judicial function in legal theory or practice. In the Contineutal tradition, of course, it is becoming more and more of a legal anachronism; but in the common law tradition, with its much greater respect for the words of statute law, and where reference to the legislative history is still not permissible in the interpretation of statutory law (as is the case under English law), its influence in contemporary law should not be underestimated. Therefore, the judge as 'the mouth of the law' is a hidden metaphor, and it serves to support the traditional view that parliament and the judiciary should each mind their own business, the making and the execution of the law, respectively. The legislative and the judicial powers should be kept well apart in practice, and in legal theory as weil.

Since the present author is not very sympathetic with that point of view, it seems worth while to investigate what meaning the bauche de la loi metaphor had for Montesquieu in his legal system, and to Iook for the origins of the concept. It was very likely as weil known to eighteenth-century readers on both sides of the Channel as the concept of separation of powers. Recent research in the Netherlands gives ample support for the view that there is a parallel situation there, a presentation of which may be of interest to the nonDutch reader. The question is whether there was an already existing metaphor of 'the mouth of the law' to which Montesquieu was referring, and if there was, how this affected the meaning of the concept thus used by him. As we will see, our research willlead us along paths which skirt the boundaries of judicial power, an old tale which still is quite modern in essence. It may serve to shed new light on some of the typical Contineutal doctrines concerning legal interpretation and decision making, such as teleological interpretation of the law, and dialectical and hermeneutic approaches to the judicial process. To drop some names at this stage: Karl Larenz, Josef Esser, Arthur Kaufmann (Germany}, Michel Villey, Jean-Louis Gardies (France), Paul Schelten, Jannes Eggens (Netherlands), John Bell (U.K.). It is a tradition the English lawyer comes accross to his surprise when reading a Iandmark decision of the Strasbourg European Court of Justice, an experience to which the American lawyer is not exposed - to his detriment perhaps. The interpretation of the Treaty of Rome by the European Court of Justice, in its development of human rights, has changed the Iandscape of private, criminal and administrative law in many European countries, thereby raising the issue of the role of the Court: judicial restraint versus judicial activism. The Luxembourg Court of Justice, dealing with the interpretation of the EEC Treaty, has a Ionger tradition of liberal interpretation, in the light of economic policies of the common market, but basically it concerns the same issue: the balance of power.

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Our little excursion in time may also be of importance for contemporary legal thought: the interpretation (and common misinterpretation) of the famous and over-cited text by Montesquieu is in itself exemplary for the interpretation of statutory law in our time, for its methodology. It is a speculum iuris, a mirror of law, and a reflection of all times. In some respects it is a Shakespearean plot in a plot, like the tinker's dream in the introduction to The Taming of the Shrew. I do not know whether Ms. Justitia appreciates being compared to Katherine in that play, she can be a bit hard-mouthed, of course, but let us settle on the association that the interpretation of the law is a tinker's job. Kiss me, Kate! II.

The Origins of the bouche de Ia loi Metaphor, its Meaning in Montesquieu's System of Law In Dutch legal doctrine, the common cliche on le juge-automate is becoming abandoned, due to the convincing arguments of K. M. Schönfeld in his 1979 Leyden thesis, the composition of which took more than a decade. In the course of meticulous research, by continuously asking uninhibited questions, he tried to solve the anomalies in Montesquieu's presentation of the famous metaphor, which appears, in Montesquieu, in two separate chapters, namely VI.3 and XI.6 (Schönfeld 1979, p . 34). In the former, Montesquieu is describing the role of the judge in the English trial by jury: the judge more or less mechanically follows the jury in his verdict, for which he only needs his eyes. In its original form, however, which is tobe found in the manuscript in the Bibliotheque Nationale in Paris, Montesquieu's text is more elaborate: il (the judge) leur (the jury) represente le texte de la loi. C'est une affaire d'organes, et c'est comme s'illeur disoit: vous avez des yeux, voyez la loi; vous avez des oreilles, ecoutez les temoins; ce que vous entendez est-il le cas de la loi? (Brethe de la Gressaye 1950-1961, p . 288, n . 13).

One finds here the eyes and the ears of the law; the mouth is missing, and is only present by implication: the judge rendering the sentence. If one now turns to the dassie phrase of XI.6, the mouth of law appears, with the mysterious addition, 'as we have said': Mais les juges de la nation ne sont, comme nous avons dit, que la bauche qui prononce les paroles de la loi; des etres inanimes qui n'en peuvent moderer ni la force, ni la rigueur.

There is no other citation of the metaphor in the book, which leaves many questions open to the reader who is curious to know what is meant by all this, in particular, why the reference comme nous avons dit is left up in the air. Schönfeld is such a reader, and a fascinating search leads to sources in England, and eventually, also in France. If one is still puzzled by the first

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citation, and its interesting original form, it should be noted that this is an essential passage, which Montesquieu worked over several times, as he confesses in a letter to David Hume (it caused him 'le plus de peine'). It therefore is by no means a phrase of minor importance in the treatise, or one of which Montesquieu could have lost sight in the process of writing. Before moving on, some remarks on Montesquieu's knowledge of English law. He lived two years in England (1729-1730), attended sessions of parliament and was a member of the Royal Society; unfortunately, Montesquieu's accounts of his travels in England were destroyed. He was familiar with the common law system, judge-made law and the rule of precedent, and the writings of Coke. Furthermore, it should also be realized that Montesquieu was a judge by profession in Bordeaux, a function inherited from an uncle; he left the bench for Paris in 1725 (at the age of 36) as one of the court's presidents (Richter 1977, p .l4; Witteveen 1990, p . 33). As will be explained shortly, Montesquieu knew the ins and outs of the judicial process from own experience, including the struggle for power with the sovereign. He presumably would have had little difficulty in understanding the English judicial system, and being of the nobility, in conversing with English judges about the intricacies of their profession. In examining the text of De l'esprit des lois and its sometimes obscure parts, such as the ones discussed here, we should also keep in mind that the author was not in the position to write freely about the relation between the sovereign and the judiciary: Judges of his time were recruited from the nobility, the office being in the possession of certain families. One of the main political issues of the day was the relation between the king and the nobility, which makes writing about the role of the judge in relation to the law, established by the king, a touchy subject. Actually, in order to evade censorship, Montesquieu had the book in its first edition printed in Geneva, and it was distributed further in Europe through sources in Holland, a liberal country. In his own practice as a judge in the parlement of Bordeaux, he was also acquainted with legislative work; the local parlement had to register the laws of the king before they became effective, it could ask the king for information, and even could amend the law. The king, however, had the last word; but to invoke it he had to appear in the parlement, thereby taking over the powers of the member s of the parlement, which were derived from the king ('lit de justice'). In England, Montesquieu would have found a comparable institution, the king as the supreme judge, who may sit and judge in any court in the Halls of Westminster. In the words of Bancroft: 'the King being the author of the Lawe is the Interpreter of the Lawe'. We now come to the source of inspiration for Montesquieu's mouth of law metaphor in English law. It is the clash between the Scots King James I of England (supported by Bancroft, archbishop of Canterbury) and the Lord Chief Justice, Sir Edward Coke. King James brought to Englandhis concepts

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of the king as an absolute monarch, derived from Roman law. As explained in 'The trew law of Free Monarchies' (1598), there is a direct relation between the king and the law: "Not that I deny the old definition of a King, and a law; which makes the kingtobe a speaking law, and the Law a dumbe king." In a jurisdictional dispute between common law courts and ecclesial courts, the position of the kingwas the central question. It reached its apex in Calvin's case (1608), where Coke gave his view on the case, which was without precedent ('a case of first impression', as Americans would call it). The case concerned the issue which divided the House of Commons and the Scots King, whether his Scots subjects could become English citizens by birth (after the date he took the English throne) or by an act of naturalization by law. The test case involved one Robert Colville, born in Edinburgh, whose name in England was happily corrupted to 'Calvin'. Coke, sitting in the Exchequer Chamber, which ruled that Robert Colville was 'a natural subject of the English King', stated in his Report: this case, such a one as the eye of the law (our books and book-cases) never saw, as the ears of the law (our reports) never heard of nor the mouth of the law (for judex est lex loquens) the Judges our Forefathers of the law never tasted ...

In this statement, Coke is taking Opposition to the King's claim, supported in this case by the Lord Chancellor, Ellesmere, in the following words: And some grave and notable writers in the civile lawe say: "rex est lex inanimata", some say: "rex est lex loquens" .

He could have quoted the King himself, who in a speech of 1607 said: ... that in this case of the post nati, the Law of England doth not clearly determine, then in such a question wherein no positive Law is resolute, Rex est Judex, for he is Lex loquens ...

Herewe have a remarkable resemblance with the bauche de la loi concept, and also with the preceding text on the eyes and ears of the law. Montesquieu implicitly took the side of Coke in his fight against the King, placing the judge in the position of the 'speaking law', thereby replacing the King. If the author wished to stay friends with the censors of his book and still wanted to frequent the Parissalons to discuss it, it would have been wise to say this all not too openly. One may wonder, however, whether the French reader of the book, whom Montesquieu would have had in mind at his writing desk, would have been familiar with the English metaphors mentioned. Therefore, the question comes up whether under French law the same metaphor would have been familiar to the reader, who, it should be noted, under the circumstances of the time would have needed little help to understand suggestions marle by authors critical of contemporary society. That is actually the case, a s Schönfeld states in his thesis. The metaphor was used in the seventeenth cen-

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tury fight between the nobility and the king (these nobiliaire v. these royaliste), although in a somewhat disguised form. In one of the pamphletsofthat period, called Mazarinades after prime minister Mazarin, which could be pro or contra the royalists, Monsieur le President de Thou is cited, asking the king to give authority to the laws and the parlements; it says: Or les Juges et !es Magistrats sont les Ministres et les interpretes des Loix, desquelles enfin nous devons tous estre serfs, pour pouvoir estre tous libres (dated 1652).

This concept of being 'the slave of the law' (and its paradoxical counterpart of freedom) is an image reminding us of the mouth of law idea, it actually appears in one of Montesquieu's Pensees, to be discussed in a moment. The judge quoted in this pamphlet, Jacques-Auguste de Thou, was president of the Paris parlement. He wrote a well-known book in 1604, Histoire Universelle, still reprinted in the eighteenth century (the original versionwas in Latin, and de Thou was in correspondence with English writers of the time; an intriguing thought is that Coke might have known his book and could have been inspired by it). The Pensee of Montesquieu giving more insight in his view on the relation between the judge and the law is nr. 2266, and is worth while quoting. The first sentence brings us home at once: Le parlement est l'esclave de Ia lettre de la loi. Les monarchies n'ont point un jour, c'est l'ouvrage des siecles. Les loix en sont la contexture et les fondements. C'est l'ouvrage de chaque monarque, et les loix d'une monarchie sont les volontes de tous les monarques qui ont regne. Une volonte ne peut pas detruire toutes les volontes, mais chaque volonte est le complement de toutes. Il faut que chaque monarque ajoute a cet ouvrage car cet ouvrage n'est jamais fini; parfait aujourd'hui, demain il est imparfait parce qu'il est soumis au temps comme les autres choses de l'univers, parce qu'il est soumis aux circonstances comme toutes les autres choses de l'univers, parce que chaque societe d'homme est une action, composee de l'action de tous les esprits. Le monde intellectuel, aussi en mouvement que le monde physique, change comme le monde physique. C'est le Parlement qui connoit toutes les loix faites par tous !es monarques, qui en a appris Ia suite, qui en a connu l 'esprit. Il sc;:ait si une nouvelle loi perfectionne ou corrompt !'immense volume des autres, et il dit: !es choses sont ainsi, c'est de Ia qu'il faut partir sans quoi vous gätes tout l'ouvrage. Il dit au Prince, vous etes un legislateur, mais vous n'etes pas tous !es legislateurs, vous faites bien executer toutes les loix, mais vous n'avez pas fait toutes !es loix. Elles sont avant vous, elles sont avec vous, elles seront apres vous. Vous avez ajoute votre volonte a celle de tous !es autres et vos successeurs respecteront votre volonte tout de meme. Vous serez dans Je corps, vous en ferez partie et vous ne serez soumis qu'a !'Empire du temps. '

This text is a wonderful mixture of serfdom and freedom in regard to the law. It is dialectics in a pure form: only by being a slave of the law, can one be free in the name of the law. Heracleitos would have enjoyed reading it. At the same time, it is a nice illustration of the independance of the judge vis-a-vis the sovereign law-maker. Statute-law is not a finite, completed entity; perfect today, it may be imperfect tomorrow. As a consequence, astatute is only of

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relative value. In Montesquieu's view it is the judge (parlement) who has the task of assessing that value, thereby correcting the law in its application. Its basic philosophy is the idea that the legislator is connected with preceding law-makers, which gives legislation a timeless character. It is not hard to bring to mind the struggle Montesquieu witnessed in his own practice in the Bordeauxcourt between the judiciary and the sovereign legislator. That his contemporaries received the message given in his De l'sprit des lois is illustrated by a speech of the avocat general of the Provence parlement in 1765, Le Blanc de Castilion, who said, referring to the work of Montesquieu: Le Magistrat, considere selon toute l'etendue de l'expression, est Juge, Pontife, Legislateur: il est la loi qui parle, puisque la loi est appellee le Magistrat muet. The judex lex loquens has replaced the rex lex loquens, it may be concluded. The latter concept in fact is much older than might be inferred from 17th century quotations from writers or kings; as may be derived from the work of Kantorowicz on medieval kingdom, the source is to be found in Aegidius Romanus (who died in 1316). This author stresses the unity of rex and lex. In conclusion, the words of James I, cited before, could have been written by Romanus, centuries earlier (Schönfeld 1979, p. 54).

We now have a better insight in the historic origins of the bauche de la loi metaphor; by using it, Montesquieu is joining a longline of thinkers, extending from the Middle Ages to his time, actually even from Roman times. The citation heading this paper reveals that Cicero, that great practitioner of law, also spoke of magistratum legem esse loquentem, the judge is the speaking law. More important however, is the conclusion that in Montesquieu's thought it was never meant to be a description of a mechanical judge, le jugeautomate, speaking the literal words of the law, functioning thereby as a mouthpiece. The political situation, as explained, made it impossible for the author to be very explicit here, since that 'Would have meant direct opposition to the king, as the supreme legislator. The message for the contemporary reader, however, was loud and clear, as it should ll.e in our time as well. The lesson which may be found in this construction of Montesquieu's text on the metaphor, isthat only literal interpretation of the sentence leads to the conclusion that it is the judge's function to give a literal interpretation of statute law. We find here the prevalence of letter over spirit, both in the initial approach to the text in the act of interpretation, andin the conclusion it renders. This brings up the question of what role the concept of esprit plays in Montesquieu's legal thinking, in relation to that of loi. One should be reminded of the book's title, De l'esprit des lois, which could not have been chosen by coincidence. Hisdefinition of law is quite broad: La loi, en general, est la raison humaine, en tant qu'elle gouverne tous les peuples de la terre; et les lois politiques et civiles de chaque nation ne doivent etre que les cas particuliers ou s'applique cette raison humaine.

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Every country, the author continues, has laws 'propre a la nature et au principes des gouvemernents'. His sociological approach to law leads hirn to elaborate on the character of govemrnents, the well-known troika of the republic, the rnonarchy and despotisrn, each with its typical kind of laws, requiring a specific type of judge and decision rnaking. I will skip that part, and look for his definition of esprit. The sociologist of law in Montesquieu here cornes even rnore clearly to the surface: in his description the spirit of the law has to do with 'les divers rapports que les lois peuvent avoir avec diverses choses', such as clirnate, religion, econorny, size of the country, rnanners and custorns. Hereweare confronted with a concept of law different frorn that which refers exclusively to the statute law established by the king; the difficulty here is, that the ward 'law' denotes both concepts. If one takes loi in the sense of la raison humaine, goveming all peoples of the earth in the true sense of naturallaw, the rnetaphor of bauche de la loi gets a cornpletely different, and rnore general, content: 'les juges de la natian ne sont que la bauche qui prononce les paroles de la loi, etc.' Here, the judge is the rnouthpiece of human reason, and therein guided by the spirit of the law. Nota bad idea at all, according to eighteenth-century standards, and also to the norrns of society of today. As will be discussed later, a contemporary source of naturallaw is the human rights Court in Strasbourg, which forces national judges to consult 'human reason' in the application of rules of nationallaw. This approach in the interpretation of the farnaus metaphor to my judgment is the rnost convincing one. It is in line with the Pensee cited before, where the judge appears as the keeper of the law, knowing alllaws rnade by kings, knowing their sequence, and above all, knowing their spirit. This legal wisdorn gives the judge the authority to oppose the rnonarch and legislator, telling hirn when a new law will corrupt existing laws. Of course, Montesquieu could never have said this explicitly, for reasons explained earlier. Another argurnent in support of this interpretationisthat the rnetaphor is ernployed by the author when describing the English systern of law. In the first place, in the sarne passage he explains that the Hause of Lords is in the position to change the law; andin the second place he is fully aware of the significance of judge-rnade law in the cornrnon law system, contrary tothat of statutory law. In Pensee nr. 1645 he notes about statutory law in the English system, ce saurce n'est pas considerable (Wittev een 1988, p . 301). It rnay be helpful to make a distinction here between loi and droit, the latter rnay be restricted to the positive law, derived frorn acts of the legislature. The judge then is bound to speak as the bauche de la lai, and not as the bauche du drait. Nota result to the taste of legal positivists, that is for sure, but I submit that the essence of interpretation is suchthat not everybody can

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be served. The above distinction brings to mind the discussion in legallogic on the use of dassie logic in the study of 'la structure de la loi' and not that of 'la structure du droit' (Gardies 1980, p . 109). In a moregeneralsense the issue seems to be related to the well-known dichotomy of Langue and parole, current since the days of De Saussure. This theme cannot be elaborated here. But similar remarkes apply to the use of metaphor in general, andin law in particular (compare Cooper 1986; Van Dunne 1988, p. 170; Witteveen 1988, 1991; Foque 1992). Some concluding remarks on the related subject of the separation of powers, that other canonized concept taken from the De l'esprit des lois. Montesquieu's innovation, compared to John Locke's model, is the introduction of the third power: the judiciary. There is some similarity here, in the presentation of the separation of powers concept andin its common misunderstanding. For instance, the exceptions to the separation, quite important in Montesquieu's view, are usually left out in quotations. They are: the right of veto of the monarch (executive power) over legislation, and the transfer of the judicial power regarding the judging of crimes or disputes of the nobility tothat part of the legislative body which is made up of nobles. Many authors find arguments herein for a form of checks and balances in Montesquieu's system. Indeed, his greatest concern was to have the three powers checked by counterpowers, sometimes with the help of the spirit of the law, in its naturallaw setting. As a consequence, Montesquieu's model of separation of powers should not be seen as a dogma; its social substructure is far more important than the structure itself (Neumann 1949/1957). It took a rational mind like Kant's to make the model of separation of powers into a strict, logical one, with no room for exceptions (Witteveen 1990, p . 45). Not surprisingly, in Kantian jurisprudence there is little room for the spirit of the law, neither in theory nor in judicial decision making (Van Dunne 1984, pp. 176, 188, 197). Therefore, to my judgment the Kantian contribution is a set-back to the development of the law.

III. The Role of the Judge in lnterpreting the Law According to Some Contemporary Schools of Jurisprudence

I will now give my impression of the relevance of Montesquieu's legal thinking for some central issues in the jurisprudence of our time. Unfortunately, there is not much room left for it in this paper, and I will therefore have to be very brief in my remarks. The role of the judge as the 'keeper of the law' in the application of positive law, like statutory law (droit), referring thereby to general principles of law (loi) as a guidance in the

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finding of the law, reminds us of several streams of contemporary legal thought. First, teleological interpretation of statutes, whereby the purpose of the statutory rule is established, may be mentioned its goal (telos in Greek and Zweck in German). This issue is the off-spring of the nineteenth-century debate on statutory interpretation, the choice between 'the words of the statute' or 'the will of the legislator'. The concept of will or intention by its very nature can be seen as either subjective or objective in character as applied to physical persons, which view can be transplanted to legal persons, here the legislator. This is what actually happened; in French jurisprudence it is well illustrated in the opposing views of two farnaus writers at the turn of the century: Fran~ois Geny, adhering to the intention of the legislator as the source of statutory interpretation, in the tradition of the doctrine de l'exegese; and on the other hand, Raymond Salleilles, advocating to assouplir les textes et les mettre en contact direct avec la vie, in a process of interaction between the contents of the statute and economic and societal factors (Drilsma 1948). It is no coincidence that Saleilles adhered to an 'organic' system of law, opposed to the traditional mechanistic one, based on the Kantian syllogistic model. In the same period we find in German jurisprudence in the work of Josef Kahler an approach comparable tothat of Saleilles: teleological statutory interpretation in an organic, 'sociological' setting. In the Netherlands, in the same school of thought, the writings of Paul Schalten from the first decades of the century should be mentioned: these works had a considerable influence on the way of thinking in the judiciary. In Continental legal decision making of our time, teleological statutory interpretation is generally accepted, especially in its 'objective' form, beyond the search of the statutory purpose in legislative history and open to societal needs involved in the dispute presented to the court (MacCormick I Summers 1991, p. 518). In German case law, the phraseSinn und Zweck of the statute (sense and purpose) is common; and in Dutch decisions one finds the expression 'reasonable interpretation of the law', which sometimes leads to a result contrary to the wording of the statute in the light of the travaux preparatoires (e.g. the DES daughters case, 1992, joint and severalliability of producers of the drug, see Van Dunne 1993). In most Continental jurisdictions, contra legem decisions are accepted, though still exceptional. In even more traditional jurisdictions, like the U.K., a 'purposive' approach to statutory interpretation is developing, making room for judicial policies based on value-judgments about the best balance between statutory objectives and other social goals (Bell 1983, p. 92; 1989, p. 55). The most spectacular example of this aspect of judicial decision making is of course the interpretation by the European Court of Justice of the Treaty of Horne on questions of human rights. The Court's purposive interpretation of several articles of the Trea ty has, for instance, changed family law and the

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law of succession considerably, by giving a natural child the same status as a legitimate child, based on the article on the protection of the family (Marckx case 1979). The introduction of the concept of 'undue delay' in criminallaw has had far-reaching consequences forthat part of the law, especially for the policy of the public prosecutor (Brogan case 1988). In administrative law, a last example, an old Dutch procedure of administrative appeal to the Crown was practically banned by the Court (Benthem case 1985). An interesting discussion of the development of this objective teleological interpretation of the Treaty over the last decades - the choc des opinions between the justices who were recruited from such different jurisdictions may be found in the Tinbergen lecture of Gerard Wiarda, president of the Court in that period (Wiarda 1986, 1990, p. 90). The dissenting opinions of the English justice Fitzmaurice, adherent of a strictly subjective teleological interpretation, are characteristic for the traditional common law approach, but did not accord with the view of the majority of Continental justices. Finally, I would like to make some remarks on the background of this development in judiciallaw-making by statutory interpretation, emphasizing the contribution of Montesquieu. In this connection, I would like to draw attention to the fact that most jurisprudents who advocated an objective teleological interpretation of statutes were following a dialectical approach. That is, they tried to overcome the traditional syllogistic model of decision making, based on the Kantian division of Reason and Understanding. In legal spheres, this dichotomy led to the 'is-ought' split, which was so often a thorn in the side of the judge who attepted to reach a principled decision, giving a result that could satisfy societal needs, and would not just serve black letter law (Van Dunne 1984, p. 188, 1986, p . 17). Here I will mention three short examples of that approach, that would have pleased Mr. Justice Montesquieu. Karl Larenz, in his Methodenlehre took the development of concepts as a central theme of legal decision-making: a general-abstract concept should be realized in a general-concrete concept, the sense of which is 'transparent'; that is, it is 'shining through' when one is consulting a source, also known to the philosopher of law, a consciousness containing social-ethical and legal experience. It is illustrated with general concepts as 'person', 'property', etc. (Larenz 1969, p. 488; Van Dunne 1988, p. 118; this view is comparable tothat of Telders, Eggens, et al., in the Netherlands, and to that of Michel Villey in France, 'syllogismes dialectiques'). In short: the task of the judge in interpreting statutes is to develop the law, making use of general values and considerations tobe found outside of the statute. The main contribution of another German author, Josef Esser, is the connection between the legal consciousness of the interpreter with pre-conscious

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knowlege, Vorverständnisse, in the tradition· of the hermeneutic insights derived from Gadamer (Heidegger) and his school (Esser 1970, p. 134). The text of the statute is basically a draft (Entwurf), which awaits further finalizing by the interpreter, in view ofthelegal order needed for society. Finally, I would like to mention the approach of Arthur Kaufmann, inspired by the Natur der Sache (as were the Freirechtier and the legal realists earlier this century): each legal interpretationldecision is characterized by three stages (Stufen): Rechtsidee-Rechtsnorm- Rechtsentscheidung: the general-abstract principles of law, the general-concrete statutory concepts, and the concrete positive law in the decision reached, respectively. The interesting part of it is, that no phase can do without the other; not one can be missed in the process of legal decision making. Therefore, a legal decision cannot be derived solely from a legal norm. One should also take the general principle of law (Rechtsidee) into consideration. Furthermore, no phase can be deduced from a higher phase, by a logical process. Thus the old syllogism, fetish of generations of posivists, is set aside (Kaufmann 1982, p. 12). In conclusion, Montesquieu's point of view in regard to the judge's role in interpreting statutes, has been the source of an important tradition in legal reasoning which developed in the centuries that followed. The lawyers of Montesquieu's age took his metaphor of the judge as 'the speaking law' in the right sense, as I have tried to demonstrate; it would be fair for lawyers in our time to give Montesquieu credit for this, and to accept him as one of the founding fathers of modern legal thinking on judicial decision-making.

References Bell, J. (1983), Policy Arguments in Judicial Decisions, Oxford.

- (1989), Policy Arguments in Statutory Interpretation, in: J. M. van Dunne (ed.), Legal Reasoning and Statutory Interpretation, Serie Rechtsvinding, Vol. 5, Arnhem.

Drilsma, R. L . (1948), De woorden der wet of de wil van de wetgever, thesis Amsterdam, Amsterdam. Cooper, D. (1986), The Metaphor, Aristotelian Society Series, Vol. 5, Oxford. Esser, J. (1970), Vorverständnis und Methodenwahl in der Rechtsfindung, Frankfurt. Foque, R. (1992), Het bereik van de wet: concrete ordening of metafoor?, in: W. J. Witteveen I H. D. Stout IM. J. Trappenburg (eds.), Het bereik van de wet, Zwolle.

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Gardies, J. L. (1980), La structure logique de la loi, Archiv. du Phil. du Droit. Kaufmann, A. (1982), Analogie und 'Natur der Sache', (2. ed.), Berlin. Larenz, K. (1969), Methodenlehre der Rechtswissenschaft, (2. ed.), Berlin. MacCormick, D. N. I Summers, R. S. (1991), Interpretation and Justification, in: D. N. MacCormick 1 R. S . Summers (eds.), Interpreting Statutes: A Comparative Study, AldershotjBrookfield. Neumann, F. (194911957), Introduction to the Re-edition of Thomans Nugent's Translation of !'Esprit des Lois: The Spirit of the Laws, New York, 1949; appeared also as: Montesquieu, in: The Democratic and Authoritarian State: Essays in Political and Legal Theory, Glencoe, 1957. Richter, M. (1977), The Political Theory of Montesquieu, Cambridge I New York. Schönfeld, K. M. (1979), Montesquieu en 'la bouche de la loi', thesis Leyden, Leyden. Van Dunne, J. M. (1984), De dialektiek van rechtsvinding en rechtsvorming, Serie Rechtsvinding, Vol. 1a, Arnhem; The Role of Personal Values in Legal Reasoning, paper presented in Helsinki 1983, also published in: Rechtstheorie, Beiheft 10, Berlin, 1986. (1988), De dialektiek van rechtsvinding en rechtsvorming, Serie Rechtsvinding, Vol. 1c, Arnhem. - (1993), note to Hoge Raad 9 October 1992, DES daughters case, TMA I Environ.mental Liability, Law Review, 1993, No. 1, Lelystad.

Vile, M. J. C. (1967), Constitutionalism and the Separation of Powers, Oxford. Wiarda, G. J. (1986), Rechterlijke voortvarendheid en rechterlijke terughouding bij de toepassing van de Europese Conventie tot bescherming van de rechten van de mens, Tinbergen lecture, Erasmus Univ. Rotterdam, Zwolle. - (1990), interview , in: J . M. van Dunne (ed.), Ex tune, ex nunc, Zwolle.

Witteveen, W. J. (1988), De retoriek in het recht: Over retorica en interpretatie, staatsrechten democratie, thesis Leyden, Zwolle. - (1990), Zeer vrij naar Montesquieu, in: P . B. Cliteur IM. R. Rutgers (ed.), De Trias onder spanning, Groningen. - (1991), Evenwicht van machten, inaugurallecture Tilburg, Zwolle.

Mitarbeiterverzeichnis Aarnio, Aulis, University of Helsinki, Institute for Private Law, Vourikatu 5C, SF00100 Helsinki 10, Finland. Agrawal, K. B., Indian Institute of Comparative Law, 6/ 146 Malviya Nagar, Jaipur 302017, lndia. Allen, Anita, Georgestown University Law Center, 600 New Jersey Avenue NW, Washington DC 20001-2022, U.S.A. Aoi, Hideo, Tohoku University, Faculty of Law, Kawauchi, Aoba-ku, 980 Sendai, Japan. Aomi, Junichi, 1-14-3 Nagasaki, Toshima-ku, Tokyo 171, Japan. Ardal, Pall S ., Queen's University, Kingston, Ontario, Canada, K7L 3N6. Arnason, J6hann Pall, Department of Sociology, La Trobe University, Boondoora Victoria 3083, Australia. Bankowski, Zenon, The University of Edinburgh, Old College, South Bridge, Edinburgh EH8 9YL, Scottland Bengoetxea, Joxerramon, University of the Basque Country, Donostia, Spain. Bjarup, Jes, Institut for Retslcere, Aarhus Universitet, DK-8000 Arhus C, Denmark. Blegvad, Mogens, The Royal Danish Academy of Seiences and Letters, Copenhagen, Denmark. Borucka-Arctowa, Maria, Institut Nauk Politycznych, Uniwersytetu Jagiellonskiego, ul. Jablonowskich 5, 31-114 Krak6w, Poland. Bröstl, Alexander, Faculty of Law, Safarik-University, Srobarova 57, Kosice, Slovakian Republic. Brynjarsd6ttir, Eyja Margret, Institute of Philosophy, University of Iceland, 101 Reykjavik, Iceland. Campbell, Tom D., Law School, University of Glasgow, Glasgow G12 8QQ, Skotland, U.K. Cragg, Wesley, York University, 4700 Keele Street, North York Ontario, Canada M3J 1P3.

Dais, Eugene E., The University of Calgary, Faculty of Law, 2500 University Drive NW., Calgary, Alberta, Canada T2N 1N4.

de Moor, Anne, Sommerville College, Oxford University, OX 26 MD, England. Elster, Jon, Universitetet i Oslo, Blindem, 0316 Oslo 3, Norway. Endre, Helen, Faculty of Law, Queensland University of Technology, Brisbane, Queensland 4001, Australia. Eriksson, Lars D., Institute of Public Law, University of Helsinki, Vipunenvägen 14, Helsinki, Finland. Frändberg, Ake, Jurdiska Institutionen, Uppsala Universitet, S-751 Uppsala, Sweden.

466

Mitarbeiterverzeichnis

Gianformaggio, Letizia, Departmento Di Studio Politici, University of Siena, Via Banchi di Sotto 55, 53100 Siena, Italy. Haragopal Reddy, Y. R., Nagarjuna University, Nagarjuna Nagar- 522510, India. Ingram, Attracta, Department of Politics, University College Dublin, Belfield, Dublin 4, Ireland. J6nsson, Ölafur Pall, Institute of Philosophy, University of Iceland, 101 Reykjavik, Iceland. Kamenka, Eugene, The Australian National University, The Research School of Social Sciences, P .O. Box 4, Canberra, ACT 2600, Australia. Karlsson, Mikael M., Institute of Philosophy, University of Iceland, 101 Reykjavik, Iceland. Krawietz, Wemer, Lehrstuhl für Rechtssoziologie, Rechts- und Sozialphilosophie, Universität Münster, Bispinghof 24/25, D-4400 Münster. Lagerspetz, Eerik, Department of Philosophy, University of Turku, SF-20500 Turku, Finland. Llompart, Jose, S. J . House, 7-1 Kioicho, Chiyoda-ku, Tokyo, 102 Japan. Marshall, Sandra, Department of Philosophy, University of Stirling, Stirling FK9 4LA, Scotland U.K. Martin, Rex, University of Kansas, Lawrence, Kansas 6604-2145, U.S.A. Martino, Antonio A., Istituto per la Documentaxione Giuridica del Donsiglio Naxionale delle Riderdhe, Via Panciatchi, 56-16, I-50127 Matsuura, Yoshiharu, Osaka University, Faculty of law, 8-15-14 Minoo, Minoo-shi 562, Japan. Mazzarese, Tecla, Instituto di Dritto e Processuale, Universita di Pavia, Strade Nova 65, I-27100 Pavia, Italy. Moffat, Robert C. L ., College of Law, University of Florida, Gainesville FL 32611, U.S.A. Murphy, Jeffrie G., College of Law, Arizona State University, Tempe Arizona 85287, U.S.A. Nagao, Ryuichi, Tokyo University, Faculty of law, 1-5-17 Ogidai, Irumashi, Saitama, Japan. Narayan, Uma, Department of Philosophy, Vassar College, Poughkeepsie New York 12601, U.S.A. Nogushi, Hiroshi, Faculty of Liberal Arts, International Christian University, 10-2, Osawa 3, Mitaka, Tokyo 181, Japan. Paik, Bong-Humm, The Law School, Dong-Guk University, #26, 3-ka, Pil-Dong, Chung-ku, Seoul100-715, Korea. Petev, Valentin, Rechtwissenschaftliche Facultät, Westfällische Wilhelms-Universitet, Universitätsstraße 14-16 D-4400 Münster, Germany. Reaume, Denise, Faculty of Law, University of Toronto, 78 Queens Park, Toronto Canada, M5S 2C5. Rottleuthner, Hubert, FB Rechtwissenschaft, Freie Universität, Boltzman Straße 3, 1000 Berlin 33, Germany.

Mitarbeiterverzeichnis

467

Sack, Peter G., The Australian National University, GPO Box 4, Canberra ACT 2601, Australia.

Sato, Setsuko, Aoyama Gakuin University, 6-9-46 Sasage, Konan-ku, Yokohama-shi, Japan. Slattery, Brian Osgoode Hall Law School, York University, Toronto Canada M3J 1P3. Sterba, James, Department of Philosophy, University of Notre Dame, Notre Dame IN 46556, U.S.A. Tanaka, Shigeaki, Kyoto University, Dept. of Law, 6-1-305 Kawaharadacho, Matsugasaki, Sakyo-ku, Kyoto 606, Japan. Tay, Alice erh-Soon, University of Sidney, Department of Jurisprudence, 173-175 Phillip Street, Sydney, N.S.W. 2000, Australia. Troper, Michel, Centre de Theorie du Droit, Universite de Paris, 200 avenue de la Republique, F-92001 Nantarre Cedex, France. van Dunne, Jan, Erasmus Universitet Rotterdam, Postbus 1738, 3000 DR Rotterdam, The Netherlands. Varga, Csaba, Institute for Legaland Administrative Sciences, Hungarian Academy of Sciences, P .O. Box 25, H-1250 Budapest, Hungary. Vernengo, Roberto, Universidad de Buenos Aires, Viamonte 444, 1053 Bueanos Aires, Argentina. Vishnupriya, Yadlapalli, Sri Padmavathi Mahila Viswavidyalayam, Tirupati- 517502, India. Weinberger, Ota, Karl-Franzens-Universität Graz, Institut für Rechtsphilosophie, Universtätsstraße 27, A-8010 Graz, Austria. Wellman, Carl P., Washington University in St. Louis, Department of Philosophy, Campus Box 1ö73, St. Louis, MO 63103, U.S.A. Winston, Kenneth I., Harvard University, John F. Kennedy School of Govemment, 79 John F . kennedy Street, Cambridge, Massachusetts 02138, U.S.A. Yasaki, Mitsukuni, Seijo University, Faculty of Law, 6-1-20 Seijo, S etagaya-ku, Tokyo 157, Japan. Zirk-Sadowsk i, Marek, Law Faculty, University of Lodz, Narutowicza 65, Lodz, Poland. Porgeirsd6ttir, Sigriöur, Freie Universität, Altensteinstraße 40, 1000 Berlin 33, Germany.