Modern Isonomy: Democratic Participation and Human Rights Protection as a System of Equal Rights 9780226811765

Citation preview

Modern Isonomy

Modern Isonomy Democratic Participation and Human Rights Protection as a System of Equal Rights An Essay

Gerald Stourzh t r a n s l at e d b y g e r a l d s t o u r z h and cynthia peck-k ­ u bac z e k

The University of Chicago Press Chicago and London

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2021 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. Published 2021 Printed in the United States of America 30  29 28 27 26 25 24 23 22 21  1 2 3 4 5 isbn-­13: 978-­0-­226-­81162-­8 (cloth) isbn-­13: 978-­0-­226-­81193-­2 (paper) isbn-­13: 978-­0-­226-­81176-­5 (e-­book) doi: https://doi.org/10.7208/chicago/9780226811765.001.0001 Originally published in German as Die moderne Isonomie: Menschenrechtsschutz und demokratische Teilhabe als Gleichberechtigungsordnung; Ein Essay (Vienna: Böhlau Verlag, 2015). This translation sponsored by the Zukunftsfonds der Republik Österreich. The cover of the paperback edition shows Nelson Mandela voting for the first time in his life on April 24, 1994, after the end of apartheid and after he had spent more than twenty-seven years in prison. On May 10, 1994, the year after he received the Nobel Peace Prize, Mandela was elected president of South Africa. Library of Congress Cataloging-in-Publication Data Names: Stourzh, Gerald, author, translator. | Peck-Kubaczek, Cynthia, translator. Title: Modern isonomy : democratic participation and human rights protection as a system of equal rights : an essay / Gerald Stourzh ; translated by Gerald Stourzh and Cynthia Peck-Kubaczek. Other titles: Moderne Isonomie. English Description: Chicago ; London : The University of Chicago Press, 2021. | Includes bibliographical references and index. Identifiers: lccn 2021023916 | isbn 9780226811628 (cloth) | isbn 9780226811932 (paperback) | isbn 9780226811765 (ebook) Subjects: lcsh: Equality before the law. | Civil rights. | Human rights. | Democracy. Classification: lcc jc578 .s77813 2021 | ddc 323.42—dc23 LC record available at https://lccn.loc.gov/2021023916 ♾ This paper meets the requirements of ansi/niso z39.48-­1992 (Permanence of Paper).

I dedicate this book to the memory of my wife Marlies in gratitude for the years of happiness in old age.

The weaker are always asking for equality and justice, but the stronger care for none of these things. a r i s t o t l e , Politics, 1318b, 4–­5

Nature knows neither an equality of individuals nor an equality of nations; it is a creation of law and its greatest benefit to those subject to it. k a r l r e n n e r , Das Selbstbestimmungsrecht der Nationen, 1918, 148

Contents

Preface  ix

Introduction

1

1 Isonomy in Greek Antiquity

8

2 Gradations: Hierarchy in This World and the Other World

16

3 Equalizations: Ways toward Modern Isonomy in America and in France

38

4 Democracy with Adjectives

47

5 The Six Components of Modern Isonomy General Legal Capacity: From Slavery to Freedom Equality before the Law The Liberation of Peasants Tolerance and Equalization of Religious Groups Jewish Emancipation and Renewed Deprivation of Rights On the Equal Rights of Women Indigenous Persons Citizens and Foreigners Positive Discrimination (Affirmative Action) The Evolution of Fundamental Rights The Protection of Fundamental Rights as Part of Constitutional Justice The Internationalization of Fundamental Rights as Human Rights Democracy

59 60 63 69 72 75 78 82 89 90 96 99 107 118



125

Conclusion: The Two Focal Points of Modern Isonomy Bibliography  141 Index of Names  165

Preface

I call this small book an essay for two reasons. First, this book takes up many different themes related to different disciplines—­history, political science, public law, even theology—­though these fields are held together by the red thread of what I have chosen to call “isonomy.” This book is intended as a contribution to political typology. I am aware that for many of the special themes only briefly discussed here, for example women’s rights or Jewish emancipation or indigenous peoples, there are entire libraries of specialized literature. The reader will note that the book contains a long bibliography. This is purposeful, as I like to pass on ideas and suggestions I have found stimulating to other and notably younger people. Specialists will soon notice what I have made no use of or what I do not know. This risk I have incurred. But this book is also an essay because personal views and convictions are expressed, and I do not shy away from personal judgments, though I think that they are founded on an intersubjective basis. The original edition of this book in German appeared in 2015; in 2018, a slightly enlarged French translation was published. The English edition has been revised and again enlarged. This essay was long in the planning, even if its publication has come late in life. A considerable number of my articles, published in English, German, or French, have prepared the way, though the term “isonomy” has not been mentioned. These are listed and footnoted in the bibliography. I am very, very thankful to colleagues who have assumed the burden of reading the manuscript or some earlier shorter versions of it used for lectures at the Austrian Academy of Sciences and at the Institut Michel Villey at the University Paris II Panthéon-­Assas. Let me gratefully mention Ludwig Adamovich, Birgitta Bader-­Zaar, Olivier Beaud, Catherine Colliot-­Thélène,

x

pr e fac e

Thomas Fröschl, Margarete Grandner, Hartmut von Hentig, Hans Hock Sr., Jean-­François Kervégan, Raoul Kneucker, Ralph Lerner, Helene Maimann, Wolfgang Mantl, Nicolette Mout, Jana Osterkamp, Helmut Paul, Peter Pulzer, Sonja Puntscher Riekmann, Robert Schigutt, Wolf-­Dieter Stempel, and Yfaat Weiss. Constant moral support while writing this book came from my late wife, Marlies. While preparing the English language edition, I enjoyed such support from my daughters and also from Dorothea Friesen. I am very grateful to the peer reviewer of this book who has read it all line for line, even correcting minor typographical errors, yet above all has given me most valuable suggestions to extend some themes a little further or express them more clearly. I am also very grateful to Dominik Ivancic, who with great care has corrected the footnotes and the bibliography to accord with the guidelines of the publisher. He has also compiled the index. I would like to express my very great gratitude to the Zukunftsfonds der Republik Österreich and its former and present presidents Dr. Kurt Scholz and Professor Herwig Hösele, who granted the entire cost for the translation of chapters 4 and 5, and the conclusion. Chapters 1–­3 of this book were translated by myself. Chapters 4 and 5 and the conclusion were translated by Cynthia Peck-­Kubaczek, who translated an earlier book of mine with great success. I owe her many thanks indeed for her work with this book as well. For many decades, a special relationship has existed between me and the University of Chicago Press. My very first book, Benjamin Franklin and American Foreign Policy, came out with Chicago in the spring of 1954 before I had reached the age of twenty-­five. In 2007, I published my volume of essays From Vienna to Chicago and Back at the press. And now, at the age of ninety-­two, my last book, Modern Isonomy, in its revised and enlarged English edition, is also being published by the University of Chicago Press. My particular gratitude goes to Assistant Editorial Director and Executive Editor Charles T. Myers, for his unwavering efforts to guide this book toward publication. I am also most grateful to Christine Schwab, Alicia Sparrow, and Holly Smith for helping me along in many editorial questions. I am particularly grateful to Kathryn Kraynik for the copyediting and important helpful suggestions. Vienna, July 12, 2021 Gerald Stourzh

Introduction

The Greek historian Herodotus in the fifth century BC calls the rule of the people “isonomy” and adds that this is “the finest of all names to describe it”—­οΰνομα πάντων κάλλιςτον (oúnoma pántōn kálliston).1 Final acceptance even in ancient Athens and later in modern times and the present was gained not by “isonomy” but by “democracy.” “Isonomy” derives from ísos, “equal,” and from nómos, “law.” A fair translation of “isonomy” into English is “equality before the law.”2 A Czech scholar has put it, very precisely, in German as “equality secured by the law.”3 It can be rendered, as the German historian Christian Meier has put it, as an “order of citizens’ equal rights” or as an “order [system] of equality.”4 Isonomy, wrote a wise and great Dutch historian, Johan Huizinga, in 1943, toward the end of World War II and of his own life—­isonomy expresses more clearly and more directly than the word “democracy” the ideal of liberty. Also, isonomy expresses most clearly the idea of the rule of law; the democratic ideal of equality before the law, he said, was rendered more purely by the notion of isonomy. Huizinga’s book manuscript “Geschonden wereld” (Violated 1. Herodotus, The Histories, trans. Aubrey de Sélincourt, rev. with introduction and notes by John Marincola (London: Penguin Books, 2003), bk. 3, 80.6, 207. 2. See for more detail the beginning of chapter 1. 3. “[D]urch das Gesetz gesicherte Gleichheit.” Bořivoj Borecký, “Die politische Isonomie,” Eirene: Studia graeca et latina 9 (Prague, 1971): 8. 4. Christian Meier, Entstehung des Begriffs “Demokratie”: Vier Prolegomena zu einer histo­ rische Theorie (Frankfurt am Main: Suhrkamp, 1970), 15. In later works, Meier has decided on “Gleichheitsordnung” (order of equality). Meier, The Greek Discovery of Politics (Cambridge, MA: Harvard University Press, 1990), 162. Meier, Athens: A Portrait of the City in Its Golden Age (New York: Metropolitan Books/H. Holt & Co., 1998), 177–­78.

2

introduction

world) was written in 1943, several months after he had been released from a Nazi internment camp, in the little place De Steeg near Arnheim. The Nazis had prohibited Huizinga from returning to Leiden. This work was not published during Huizinga’s lifetime. He died on February 1, 1945. Later in the same year “Geschonden wereld” came out in German translation in Basel under the title Wenn die Waffen schweigen (When arms are silent).5 In this essay I intend to follow Huizinga’s reflection and to extend his brief reference to the outline of a politico-­juridical system, a system of equal rights, a system of “modern isonomy.” I propose to introduce the notion of “isonomy” in the context of a great change of paradigms in history, often commented upon: the transition from the paradigm of gradation not only of human structures, but of the structure of the universe under God, to the new paradigm of a human order based on equality, on the “equality of everything bearing a human countenance” (Fichte).6 Under the new paradigm, the human order is separated from the structure of the universe, whether God-­given or not God-­given. Now the focus is on the human striving to attain equal rights or on enjoying their achievement and exercise. The equality of those subject to the pure arbitrariness of despotism, as it is presented in Montesquieu’s teachings on types of regimes, is not my theme.7 Very shortly I will address the distinction between equality in general and equality as entitlement to equal rights (in German the untranslatable composite word Gleichberechtigung). In the old paradigm of hierarchical orders, it was lawful to assign persons to hierarchically organized ordines, to orders or estates, or to status groups 5. Johan Huizinga, Wenn die Waffen schweigen (Geschonden wereld), trans. Wolfgang Hirsch (Basel: Burg-­Verlag, 1945), 95, 192. Dutch original version in Johan Huizinga, Verzamelde Werken, vol. 7, Geschiedwetenschap: Hedendaagsche Cultuur (Haarlem: Willink & Zoon, 1950), 434, 602. Huizinga’s passage on isonomy is quoted by Friedrich A. Hayek, The Constitution of Liberty (London: Routledge & Kegan Paul, 1960), 459–­60; Hayek, The Collected Works of F. A. Hayek: The Definitive Edition, ed. Ronald Hamowy, vol. 17, The Constitution of Liberty: Definitive Edition (London: Routledge, 2011), 238–­39. A reference to Huizinga is also in Wilfried Nippel, Ancient and Modern Democracy: Two Concepts of Liberty?, trans. Keith Tribe (Cambridge: Cambridge University Press, 2015), 364. 6. Fichte’s formula, which spread widely during the latter part of the nineteenth and the first half of the twentieth centuries, is to be found in his work of 1813, “Die Staatslehre,” in Johann Gott­ lieb Fichte’s sämmtliche Werke, ed. Immanuel Hermann Fichte, vol. IV, Berlin 1845, 423. Referred to in Gerald Stourzh, “Die Gleichheit alles dessen, was Menschenantlitz trägt” (2004), reprinted in Stourzh, Der Umfang der österreichischen Geschichte: Ausgewählte Studien 1990–­2010 (Vienna: Böhlau, 2011), 269–­82. 7. Montesquieu, De l’esprit des lois, vol. 1, bk. 2, chap. 5, bk. 3, chaps. 8–­10 (Paris: Garnier, [1748] 1956).

introduction

3

below or outside the hierarchy of estates, such as slaves or strangers. In contrast, the new paradigm is epitomized in one sentence of the first article of the French Declaration of the Rights of Man and of the Citizen; it changed everything: “Men are born and remain free and in rights equal.” “Les hommes sont nés et demeurent libres et égaux en droits.”8 Taking these words as his point of departure, Étienne Balibar has coined the word “égaliberté”—­translated as “equaliberty.”9 Balibar has pointed out that the Greeks had a strong notion of “égaliberté,” which they called isonomy.10 I regard isonomy in the sense of a “system of equal rights” close to “égaliberté” but not identical with it. Isonomy in the sense of equal rights sticks to the last words of that sentence quoted from the Declaration of 1789: “in rights equal.” Isonomy is more correctly un­ derstood as a “system of equal rights” and not as a “system of equality”; within Athenian isonomy or democracy, great economic or social differences were by no means excluded.11 Equality of rights and its development is the theme of this book on modern isonomy, not the even more complex problem of “factual” or social equality, which goes beyond the formula of “égaux en droits.”12 This essay proceeds in the fields of political science, legal history and public law, in part also in the

8. See Antoine de Baecque, Wolfgang Schmale, and Michel Vovelle, eds., L’an I des droits de l’homme (Paris: Presses du CNRS, 1988), 198. This phrasing seems to be formulated for the first time, as far as I can tell, in the project of Jean-­Joseph Mounier of July 27, 1789 (see Baecque et al., 86); it is also in an abbreviated version of this project (see 88). Note a brilliant essay by Mona Ozouf, “Égalité,” in Dictionnaire critique de la Révolution française, ed. François Furet and Mona Ozouf (Paris: Flammarion, 1988), 696–­7 10. 9. Étienne Balibar, Equaliberty: Political Essays, trans. James Ingram (Durham, NC: Duke University Press, 2014), chap. “The Proposition of Equaliberty,” 35–­65. 10. Balibar, Equaliberty, chap. “New Reflections on Equaliberty: Two Lessons,” 129; also in the concluding chapter “Resistance, Insurrection, Insubordination,” 286–­87 (on Herodotus and Rousseau). 11. On “isonomia” as “equal rights,” see as early as 1975 the concluding words in the article of Otto Dann, “Gleichheit,” in Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-­ sozialen Sprache in Deutschland, ed. Otto Brunner, Werner Conze, and Reinhart Koselleck, 8 vols. (Stuttgart: E. Klett/Klett-­Cotta, 1972–­1997), here vol. 2 (1975), 1046. See also Otto Dann, Gleichheit und Gleichberechtigung: Das Gleichheitspostulat in der alteuropäischen Tradition und in Deutschland bis zum ausgehenden 19. Jahrhundert (Berlin: Duncker & Humblot, 1980), on “isonomia,” notably 37–­38. 12. See particularly the important work of Pierre Rosanvallon, The Society of Equals, trans. Arthur Goldhammer (Cambridge, MA: Harvard University Press, 2013). More recently, see Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, MA: The Belknap Press of Harvard University Press, 2018) and Thomas Piketty, Capital and Ideology, trans. Arthur Goldhammer (Cambridge, MA: The Belknap Press of Harvard University Press, 2020).

4

introduction

history of theology; it is not an essay in social history, economics, sociology, or philosophy. The process of historical approximations or equalizations, which resulted and still results from the words on the equal rights of human beings in the Declaration of 1789, has been and continues to be diverse. These words were formulated in the indicative, yet they were meant to be a postulate and set in motion complex movements striving for the greater recognition of civil and human rights.13 These were and are accompanied by opposite movements of sometimes tremendous dimensions, by which they were menaced and sometimes even destroyed, like the genocide of the Jewish population in Europe under National Socialist and fascist domination toward the middle of the twentieth century, or the regime of violence, sometimes also ending in genocidal developments, of the communist system in the Soviet Union.14 Notwithstanding the enhanced protection of human rights since the middle of the twentieth century and the enlargement of the sphere of equal rights as lately shown, for example, in the improvement of the status of homosexuals (and of LGBT persons in general), it would be rash to predict or assume the future course of the paradigm of equal rights. What was considered in the old paradigm as lawful and legitimate—­the great number of gradations down to the total lack of any rights—­was considered as discriminating and illegal in the new paradigm of equal rights, which evolved in numerous and diverse developments since the late eighteenth century and was renewed after the genocidal catastrophe of National Socialism in the middle of the twentieth century. The most important article of the Universal Declaration of Human Rights of the United Nations of 1948, article 2 on nondiscrimination, reads as follows: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This essay concentrates on the human being as bearer of rights. Therefore, the notion of status will be important in this study—­status understood not as a situation of prestige but as a legal category. What legal status may mean or imply is illustrated by an event that happened in Jerusalem about the year 57. Paul of Tarsus was arrested by Roman 13. See also Dann, Gleichheit und Gleichberechtigung, 22–­23. 14. See Timothy Snyder, Bloodlands: Europe between Hitler and Stalin (London: Bodley Head, 2010). Unfortunately, Snyder gives no information on the bloodshed toward and after the end of World War I (red versus white Russians, conflict concerning the Ukraine, Russian-­Polish war).

introduction

5

soldiers, bound, and was to be tortured. Paul addressed the centurion that stood by and asked him whether it was lawful that he should be scourged (flagellated), given he was a Roman. The Latin version is clearer; Paul said: “Civis Romanus sum.” Upon hearing this, the centurion went to the Chief Captain and told him that the prisoner was a Roman citizen, again in Latin: “Hic enim homo civis Romanus est.” Thereupon the Chief Captain approached Paul, asking him whether he was a Roman citizen. Paul replied yes. The soldiers then let Paul go, but the Chief Captain was afraid because he had allowed a Roman citizen to be put in chains.15 Paul’s “civis Romanus sum” did not merely save him from torture in Jerusalem; it also rendered possible the execution by decapitation in Rome, an execution much “better” than the incomparably more cruel crucifixion of Jesus of Nazareth.16 Crucifixion was in principle not imposed upon Roman citizens. Crucifixion was not merely the cruelest method of execution, it was also the most dishonorable and shameful of all Roman executions. It was applied to persons having committed high treason, rebels, and generally to slaves.17 Therefore we read in the New Testament that Jesus “endured the cross, despising the shame.”18 Even in the contemporary world, where the equality of citizens’ rights or beyond that of human rights has been achieved in principle, though by no means everywhere in practice, there still remain status groups. There are minors and adults, citizens and noncitizens, persons with voting rights and those without voting rights, free persons and persons under guardianship, free persons and prisoners, etc. In this study, however, the focus will be on those status differences which were legitimate in the old paradigm of gradations, yet which disappeared—­at least legally—­from the new paradigm. Those protracted processes of equalization were often slowed down by considerable opposition and conflicts before giving way to a situation of “equal rights.” Consider the contrasts slaves/free men, unfree peasants/masters, heretics/orthodox believers, Jews/ 15. Acts 22:22–­29. 16. The Roman citizenship of Paul is not undisputed. Cf. Wolfgang Stegemann, “War der Apostel Paulus ein römischer Bürger?,” Zeitschrift für die neutestamentliche Wissenschaft, no. 78 (1987): 220–­29. Theodore Mommsen was convinced of Paul’s Roman citizenship. Theodor Mommsen, “Die Rechtsverhältnisse des Apostels Paulus,” Zeitschrift für die neutestamentliche Wissenschaft, no. 2 (1901): 81–­96. 17. On crucifixion as generally not applicable to Roman citizens, emphatically Cicero in his speech pro Rabirio, and also exceptions to the rules, see Martin Hengel, Crucifixion in the An­ cient World and the Folly of the Message of the Cross (Philadelphia: Fortress Press, 1977). 18. Letter to the Hebrews 12:2.

6

introduction

non-­Jews, bastards/born in wedlock, indigenous people/citizens of colonial (or former colonial) powers, women/men, homosexuals/heterosexuals, etc. This essay has two dimensions, a historical one and a systematic one. In its historical dimension it sketches the transformations from an order of gradated status (to use the Latin plural) to an order of equal status (singular). In the second half of the twentieth century, we can speak (in principle) of a “a single-­status political community,” to use the felicitous words of Gregory Vlastos.19 The systematic dimension, showing the joining of rights of participation (democracy) and rights of protection (rule of law) as a political system of equal rights to be called isonomy, will unfold in the pages to come, notably chapters 4 and 5. The process of equalization takes place on various levels of the law: rights on the level of ordinary law, fundamental rights (Grundrechte) on the level of constitutional law (in the European Union also on the level of EU law), and finally human rights under the protection of regional or worldwide conventions. As compared to the individual as bearer of rights, groups and institutions of public or private life step into the background of this essay. This does not mean that the leading role of human groups would be unknown or unimportant to me. It does mean I give priority to the individual homo sapiens moriturus, the individual who knows about the certainty of his death. Every death in the middle of mass dyings, whether in a battle or an earthquake or a shipwreck, is the death of an individual person, and to individual persons I accord primacy vis-­à-­vis alleged “entities,” whether they be named state or people or race or class.20 The history of law is more apt than other branches of historical knowledge to depict the significance of every single human person—­the emphasis is on “every”! “Every human being has inborn rights evident through human 19. Gregory Vlastos, “Justice and Equality,” republished in Theories of Rights, ed. Jeremy Waldron (Oxford: Oxford University Press, 1984), 41–­76, here 55. This is quoted erroneously as “single-­status society” by Jeremy Waldron, One Another’s Equals: The Basis of Human Equality (Cambridge, MA: The Belknap Press of Harvard University Press, 2017), 8. 20. I fully share the criticism directed against the ideas of Othmar Spann in his book Der wahre Staat (Leipzig: Quelle & Meyer, 1921) by my father Herbert Stourzh in his book Humanität und Staatsidee: Eine Philosophie der Politik (Luzern: Vita Nova, 1938). Spann, under Platonic influence, belittled the primacy of the individual in comparison to the true or real entirety of the state, of which the single person was only a component without any true independence. The strongly anti-­Nazi book of Herbert Stourzh was published in Switzerland under the pseu­ donym Karl Sturzenegger to protect the author from Nazi persecution. It is reprinted in Herbert Stourzh, Gegen den Strom: Ausgewählte Schriften gegen Rassismus, Faschismus und National­ sozialismus 1924–­1938, ed. Gerald Stourzh (Vienna: Böhlau, 2008), 73–­176, contra Spann, 97–­98.

introduction

7

reason and therefore is to be considered as a person.” This is said with unsurpassed clarity in section 16 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch) of 1811. When I speak of man and woman as bearers of rights, I understand these rights as innate rights (in the sense of Kant) as well as positive rights. Every human being is in one way or another an object of law. The biblical God told the people of Israel: “I have called thee by thy name.”21 Likewise, the law calls every human being by his or her name. Having said this, I believe to be able to do without the notion of the “sacredness” of the human person that has been coined by Hans Joas. A central theme of my essay is the attempt to investigate the enforceability of sanctions of violations of human rights as a high benefit, maybe the highest benefit of human beings as bearers of rights. But the quality of being a bearer of rights is independent of the aura of sacredness.22 This essay presents a new ideal type in the field of public law and political science that would combine, under the name of isonomy, what Jürgen Habermas has called “the two pillars of legitimacy of political rule, tied together, democracy and human rights.”23 This attempt—­an essay in its true sense—­is perhaps daring. Its point of departure does not start with collective entities such as the state or the people or the nation, nor does it deal with the “intermediary” powers of democracy, such as political parties, trade unions, employers’ associations, or other organized interest groups—­though I by no means ignore the significance of these groups. Its point of departure begins with all human beings, as bearers of moral and—­as sweeping as possible—­positive rights, which gather around two focal points. The first is the right of political participation—­the right to vote which, if free, general, equal, secret, and periodically exercised, captures the essence of democracy. The second focal point is—­on the basis of the institutions for the protection of constitutional rights and of international conventions—­the right of individuals to gain direct access to the highest constitutional authority of the land or, in some parts of the world, even gain access to transnational courts competent to judge on the enforceability of fundamental rights. In other words: human rights as an enforceable corpus of positive law. 21. Isaiah 43:1; also 45:3 and 4. 22. Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights (Washington, DC: Georgetown University Press, 2013). This wide-­ranging book, focusing on a great number of writers, from Beccaria to Foucault and Troeltsch to Parsons, has led to numerous discussions. Of special interest are his reflections on “how experiences become Rights.” 23. “die beiden miteinander verschränkten Legitimationssäulen politischer Herrschaft.” Jürgen Habermas, “Wieviel Religion verträgt der Staat?,” in Volksherrschaft—­Wunsch und Wirklich­ keit, ed. Uwe Justus Wenzel (Zürich: Neue Zürcher Zeitung, 2014), 30.

1

Isonomy in Greek Antiquity

Isonomy—­ισονομία or ισονομίη—­has been understood as a system of equal rights or a system of equality.1 It applied within the limits of the polis, excluding women, metics,2 and slaves, to free male citizens. A variety of modern notions comes to mind which connects “equal” or “equality” with the law or with rights. “Equality before the law,” “equal rights,” “equal law for everyone,” etc. The French sociologist Célestin Bouglé, in 1899, rendered “isonomy” as “equality before the law.”3 Martin Ostwalt, an American classical philologist chased out of Nazi Germany, has written that “isonomy” comes closer than any other Greek word to the modern notion of “rights” as we find it in expressions such as “human rights,” “citizens’ rights,” “Bill of Rights,” and the like.4 Similarly, the American philosopher Gregory Vlastos, who has worked intensively on the notion of isonomy, has thought that ísos means not merely “equal” but also “fair” and just and that it approaches more closely than other Greek words the English meanings of “just” and “morally fair.”5 Close to the word ísos is the

1. On controversies in the literature concerning the etymology of isonomy, see David Asheri et al., A Commentary on Herodotus Books I–­IV, trans. Barbara Graziosi et al. (Oxford: Oxford University Press, 2007), 474. 2. Free persons without citizens’ rights of foreign origin as well as freed slaves. 3. Célestin Bouglé, Les idées égalitaires, 4th ed., presented by Serge Audier (Latresne, Gironde: Le Bord de l’eau, [1899] 2007), 146. 4. Martin Ostwald, Nomos and the Beginnings of the Athenian Democracy (Oxford: Clarendon Press, 1969), 113 n. 1. 5. Gregory Vlastos, “ΙΣΟΝΟΜΙΑ ΠΟΛΙΤΙΚΗ” (Isonomía politikē), in Isonomia: Studien zur Gleichheitsvorstellung im griechischen Denken, ed. Jürgen Mau and Ernst Günther Schmidt

isonomy in greek antiquity

9

word ὃμοιος (hómoios), with an important difference. Ísos means “a quantitative equality and describes legal equalization”; ισότης (isótēs, equality) and “isonomia” are “catchwords of democracy.”6 Hómoios rather refers to equality of kind.7 With the Greeks, “isonomy” referred to the (equal) holding of power. It was a political word.8 “Isonomy” first appears at the turn from the sixth to the fifth century BC—­first, incidentally, in the form of an adjective, isónomos, in a song of praise on the (at first only partial) fall of tyranny in Athens 514.9 Isonomy was used on several occasions in connection with the reforms of Kleisthenes prior to 500.10 Various nuances and differences of interpretations do not need to occupy us here.11 It is undisputed, however, that Herodotus (ca. 484–­ca. 424 BC) in his Histories (which appeared presumably around 430–­425 BC) speaks of isonomy as “the rule of the many,” of the people.12 Isonomy meant exactly what would later be referred to as “democracy,” a word that was to assert itself

(Berlin: Akademie-­Verlag, 1964), 19. See also Gregory Vlastos, “Isonomía,” American Journal of Philology 74, no. 4 (1953): 337–­66. 6. Carl Werner Müller, Gleiches zu Gleichem: Ein Prinzip frühgriechischen Denkens (Wiesbaden: O. Harrassowitz, 1965), 165 n. 42. 7. Müller, 165 n. 42. An interesting example for ísos as equal and hómoios as “equal in kind” is found in Aristotle, Politics, trans. Benjamin Jowett (New York: Modern Library, 1943), 1308a.12. 8. Ostwald, Nomos and the Beginnings of the Athenian Democracy, 112–­15. 9. This song of praise (around 500) deals with the murder of the tyrant Hipparchos in 514. The two persons who murdered Hipparchos, Harmodios and Aristogeiton, were praised for having made Athens “isónomous”—­a city of equal rights. In fact Hipparchos’s brother, Hippias, survived and continued to rule as a tyrant until he was driven out of Athens in 510. But later in Athens, the murder of Hipparchos in 514 was seen and celebrated in Athens as the beginning of liberty. See Victor Ehrenberg, “Das Harmodioslied,” in Polis und Imperium: Beiträge zur alten Geschichte, ed. Victor Ehrenberg, Karl Friedrich Stroheker, and Alexander John Graham (Zürich: Artemis, 1965), 61. On the Harmodios song and other early references to isonomy and related notions see Peter Frei, “ΙΣΟΝΟΜΙΑ (Isonomía): Politik im Spiegel griechischer Wortbildungslehre,” Museum helveticum 38, no. 4 (1981): 209–­10. 10. Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law: Law, Society, and Politics in Fifth-­Century Athens (Berkeley: University of California Press, 1986), 27, 50. 11. The literature is rich. See Dann, Gleichheit und Gleichberechtigung, 33–­38. More recent references are in Kurt A. Raaflaub, The Discovery of Freedom in Ancient Greece (Chicago: University of Chicago Press, 2004), 94, 310 n. 160. Also Asheri et al., A Commentary on Herodotus, 471–­75. 12. The Histories were probably published between 430 and 425 BC, including parts already published or orally presented. The years of publication remain a matter of controversy. Cf. Rosalind Thomas, Herodotus in Context: Ethnography, Science and the Art of Persuasion (Cambridge: Cambridge University Press, 2000), 20.

10

chapter one

successfully against isonomy. Herodotus himself makes use of “democracy” in a later book (book VI) of the Histories.13 Herodotus employs the word “isonomy,” meaning the rule of the many (plēthos árchon), with the addition that it has “the finest name of all to describe it”—­isonomía—­here translated by “equality under law.”14 This occurs in the “constitutional debate,” as it has been called by modern scholars, in book III of the Histories. It is supposedly a debate among seven Persian grandees in 522 BC to find a new ruler. Three of them speak out in favor of the rule of the many, of the few, and of one person, respectively. Herodotus lets one of the grandees, Otanes, defender of isonomy, speak the words just cited. Otanes combines the praise of isonomy with a devastating condemnation of monarchy. A single ruler tends to hubris, he is responsible to no one, he violates women and puts men to death without trial. Yet the speaker in favor of the rule of one person, Darius, of the family of the Achaemenids, will emerge as Persia’s next ruler.15 Otanes renounces all striving for rulership and requests and receives in turn the privilege of owing obedience to no one and not commanding anyone. The definition of isonomy as “no-­rule” by Hannah Arendt is obviously inspired by this passage, yet I am unable to follow her, because the earlier passage already referred to on isonomy as “the rule of the many” and “the finest name to describe it” is quite clear.16 Rousseau, too, on one occasion refers to the constitutional debate in his Discourse on the Origins and Foundations of Inequality among Men. Rousseau mentions that Otanes “gave his opinion strongly in favor of the republic.” For Rousseau, “republic” stands for “isonomy”; the original Greek word is not mentioned by Rousseau. He also refers, like Arendt, to the later passage concerning Otanes’s renunciation of rule and being ruled.17 13. Herodotus, The Histories, bk. 6, 43.3, 374. On this occasion, Herodotus also uses (for the first time) the rather modern sounding verb δημοκρατέεσθαι (demokrateesthai), literally, “to be ruled by the people,” “to have a democracy.” 14. Herodotus, bk. 3, 80.6, 207. 15. For the whole debate, see Herodotus, bk. 3, 80.6, 207–­9. On the “constitutional debate,” see Christopher Pelling, “Speech and Action: Herodotus’ Debate on the Constitutions,” Proceedings of the Cambridge Philological Society 48 (2002): 123–­58. Important also: Arlene W. Saxon­ house, Athenian Democracy: Modern Mythmakers and Ancient Theorists (Notre Dame, IN: University of Notre Dame Press, 1996), 31–­57. Of great interest is the discussion in Balibar, Equa­ l­iberty, 286. On isonomy as “plēthos árchon,” see Martin Ostwald, Oligarchia: The Development of a Constitutional Form in Ancient Greece (Stuttgart: Steiner, 2000), 17, 19. 16. Herodotus, The Histories, bk. 3, 83.2, 209. Hannah Arendt, On Revolution (Harmonds­ worth: Penguin Books, 1973), 30. 17. “Otanes vigorously urged a republic.” Jean-­Jacques Rousseau, Discourse on the Origin of Inequality, ed. Patrick Coleman, trans. Franklin Philip (Oxford: Oxford University Press, [1755] 1994, reissued 2009), 86 (= Rousseau’s own note A). See also Balibar, Equaliberty, 287.

isonomy in greek antiquity

11

It has been plausibly argued that the “constitutional debate” is a fictitious text containing Athenian thinking of the Periclean and post-­Periclean period, that is, the middle and the second half of the fifth century, and that it cannot have taken place in this form in Persia in the sixth century, to be precise in 522, when Darius became the ruler of Persia.18 In this debate, the famous trinity of types of government—­by the many, by the few, or by one—­seems to be addressed for the first time. The three types are named isonomy, oligarchy (in the sense of the rule of groups, not yet in the subsequent pejorative way), and monarchy or tyranny (neutral, not pejorative).19 In the positive and negative evaluation of each of these three forms (depending on the speaker), there is a foreboding of Aristotle’s later typology of the three positive and the three negative forms of government.20 Both notions used by the Greeks for the rule of the many—­isonomy somewhat earlier, democracy somewhat later—­display some remarkable differences. It has been noted that isonomy has a sound that is more value-­related, more “moral” than democracy, the sound of the latter being more fact-­related and more sober.21 Here we are reminded anew of the adorning apposition to “isonomy”—­“the finest of all names to describe it.” Paul Cartridge has given the most convincing interpretation of this apposition. It had the rhetorical function to push the praise of isonomy still higher. On the other hand, Cartridge argues, the notion of democracy—­known to and used by Herodotus—­ contained an “etymological potential for a negative interpretation.”22 Dēmos meant not only “the whole people” but also, particularly in the eyes of the upper classes, the “poor people,” the lower classes, The combination of dēmos and krátos had implied, for the aristocrats deprived of power, a negative connotation.

18. Jochen Bleicken, “Zur Entstehung der Verfassungstypologie im 5. Jahrhundert v. Chr. (Monarchie, Aristokratie, Demokratie),” Historia 28, no. 2 (1979): 152–­53, 156. Not convinced is Ostwald, Oligarchia, 14–­15. Possible influences of the Sophist Protagoras on Herodotus—­both were contemporaries—­have been investigated. See François Lasserre, “Hérodote et Protagoras: Le débat sur les constitutions,” Museum Helveticum 33, no. 2 (1976): 65–­84. Also Paul Cartledge, Ancient Greek Political Thought in Practice (Cambridge: Cambridge University Press, 2009), 73. 19. See Ostwald, Oligarchia, 18. On terminology, very enlightening, Ostwald, 7–­20. 20. Bleicken, “Entstehung der Verfassungstypologie,” 161. 21. Vlastos, “ΙΣΟΝΟΜΙΑ ΠΟΛΙΤΙΚΗ,” 8, thinks that isonomy in difference to democracy (a “utility word”) is “more a banner than a label.” 22. Herodotus, The Histories, bk. 6, 43.3, 374. Cartledge, Ancient Greek Political Thought in Practice, 74. See Paul Cartledge, “Comparatively Equal,” in Dēmokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles W. Hedrick (Princeton, NJ: Prince­ ton University Press, 1996), 183 n. 24.

12

chapter one

“Isonomy” ties rule more strongly to the law and therefore emphasizes the legal aspect of public rule. On the other hand, “democracy,” partly derived from kratein, “to rule,” refers more strongly to the power aspect of public rule. Christian Meier therefore has spoken—­creating two artificial adjectives—­of the (older) “nomistic” and the (younger) “cratistic” aspect of Greek political thought.23 In favor of “nomistic” thinking, Meier has rightly stressed “that the way and the mind of the rulers, according to which they ruled, was more im­ portant than their number or their origin.”24 In Herodotus’s work, there also occurs the rare expression isokratía. According to Martin Ostwald, this is to be seen in the historical context of a sharp contrast between tyranny and joint oligarchic and democratic elements toward the end of the sixth century.25 Only later during the fifth and fourth cen­ turies, in connection with the conflict Athens/Sparta, there occurred a sharper distinction between oligarchy and isonomy/democracy.26 Isonomy is the daughter of a much older notion, that of eunomía, meaning “good order” (in contrast to dysnomía, “disorder”).27 Eunomía, mentioned as early as the Odyssey and Hesiod, is well documented around 600, which means Solon’s period. “Nomistic” thinking, in other words, had an old tradition. In view of all that has been said, it seems justified to understand isonomy as an order or system of equal rights, even if in ancient Greece the participatory rights of free citizens stood in the foreground rather than the protective rights of the individual, as in modern times. The idea of general participation—­with limitations to free men!—­has been impressively displayed in a myth told by the Sophist philosopher Protagoras. 23. Meier, The Greek Discovery of Politics, 216–­17, also 162. The Brazilian sociologist Alberto Guerreiro Ramos emphasizes the difference of the law-­related suffix in “isonomy” and the power-­related suffix in “democracy.” He uses, however, the notion of isonomy exclusively for an ideal concept of society, drawn up by himself, without market economy, without power relations, and with a cooperative form of living together. Alberto Guerreiro Ramos, The New Science of Organizations: A Reconceptualization of the Wealth of Nations (Toronto: University of Toronto Press, 1981), 131–­32. 24. Meier, Entstehung des Begriffs “Demokratie,” 31. 25. “Isokratía” is mentioned, according to Herodotus, by a Corinthian speaker during the first meeting of the Peloponnesian federation in 505 or 504. 26. This is Ostwald’s interpretation, who declines to accept the identity of isonomy and isocracy. Martin Ostwald, “Isokratía as a Political Concept,” in Islamic Philosophy and the Classical Tradition: Essays Presented by his Friends and Pupils to Richards Walzer on his 70th Birthday, ed. S. M. Stern, Albert Hourani, and Vivian Brown (Columbia SC: University of South Carolina Press, 1973), esp. 283, 287–­88. 27. See Victor Ehrenberg, “Eunomia,” in Polis und Imperium, 152.

isonomy in greek antiquity

13

The Austrian scholar Adolf Menzel has therefore called Protagoras the earliest theoretician of democracy.28 The myth of Protagoras goes as follows: Prometheus had stolen from the gods that kind of knowledge which was important for the maintenance of physical life, fire and (distributed to the various individuals) mechanical and technical skills and qualities. But knowledge about the political community Prometheus did not have. That had remained in the possession of Zeus. Human beings were, however, threatened by mutual extermination, since they lacked politikē technē, the ability to live in community.29 Thus Zeus sent Hermes, the messenger of the gods, to men, to give them the qualities of αιδώς (aidṓs, respect) and δίκη (dikē, justice, just conduct). These qualities Hermes was supposed to distribute among all men, as Zeus said: “Make a distribution to all. Let all have a share. There could be no cities if only a few of them had a share, as with the other arts.”30 If there is talk of “all,” it has to be kept in mind that free males only were intended, as becomes clear from the use of the word politikos and additional remarks by Protagoras.31 Thus we must never forget that the free Athenians, proud of their isonomy and democracy, as they were classically presented by Thucydides in his rendering of Pericles’s funeral oration in the year 431 BC, were only the uppermost part of the Attic social and legal structure.32 There were free women, but without the voting rights accorded only to men. There were also, with minor rights, the metics, often strangers though Greeks, but also freed former slaves.33 At the bottom of the social and legal scale, there were the slaves, to be sold or to be bequeathed like animals, yet unlike animals vested with the possibility to be manumitted and thereby to rise to the status of a human being equipped with various rights. In Athens, this meant to rise to the status of

28. See Adolf Menzel, “Protagoras, der älteste Theoretiker der Demokratie,” Zeitschrift für Politik 3 (1910): 206–­38. 29. Plato, Gorgias, Menexenus, Protagoras, ed. Malcolm Schofield, trans. Tom Griffith (Cambridge: Cambridge University Press, 2010). Here: Protagoras, 322c–­d, 159. 30. Plato, Protagoras, 322d, 159. 31. Plato, 322d–­323c, 159–­60. Protagoras to Socrates; for “everybody” in the original ἀνήρ (anēr)—­male being, man, but also in particular “free man.” 32. “Democracy is the name we give to it, since we manage our affairs in the interests of the many not the few.” Thucydides, The War of the Peloponnesians and the Athenians, trans. and ed. Jeremy Mynott (Cambridge: Cambridge University Press, 2013), bk. 2, § 37.1, 111. Thucydides uses “isonomía” as a slogan of the democratic side: “political equality for the masses.” Thucydides, bk. 3, 83.8, 213. 33. On the metics, see Meier, Athens, 268, and Nippel, Ancient and Modern Democracy, 23–­30.

14

chapter one

a metic, who was sometimes still burdened with certain obligations toward the former owner.34 Among the great philosophers of antiquity “democracy” remained a word with negative connotations. F. A. Hayek observed that Plato employed “isonomy” to criticize democracy rather than to justify it.35 In antiquity itself and in the tradition reaching from antiquity via the Middle Ages to modern times and the contemporary world, democracy, not isonomy, has imposed itself.36 Decisive for the ensuing tradition was Aristotle’s typology of forms of government in the Politics, which since 1260/61 was available in Latin translation, with its division into the three “good” forms of monarchy, aristocracy, and “polity” (politeia) and the three “degenerated” forms of tyranny, oligarchy, and democracy. Since the Renaissance (notably Machiavelli) the typology of the Hellenistic historian Polybios (200–­ca. 120 BC) was also taken up; he distinguished between the positive forms of monarchy, aristocracy, and democracy and the corrupt forms of tyranny, oligarchy, and ochlocracy (rule of the mob, a new word coined by Polybios). Polybios also developed a detailed theory of mixed government, composed of monarchical, aristocratic, and democratic elements, as a stable form of government.37 Frequently, only the simplified trinity of monarchy, aristocracy, and democracy was passed on. “Isonomy,” as Friedrich von Hayek has shown, was employed on occasion in England toward the end of the sixteenth and during the seventeenth century, in the sense of equal laws for all, yet it was replaced progressively by English expressions.38 The last and very influential typology of governments of early modern times is that of Montesquieu in his De l’esprit des lois of 1748, which distinguished despotisms, monarchies, and republics—­the latter further divided into aristocratic and democratic republics. During the long centuries of gradated political and social structures displaying either princely/aristocratic dominance or, in the cities, patrician/guild-­ led dominance—­in other words, structures characterized by the prevalence of 34. Hans Klees, Sklavenleben im klassischen Griechenland (Stuttgart: F. Steiner, 1998), 306–­7. 35. F. A. Hayek is referring to Plato’s Republic, 8.557b–­c, 8.559d, 8.561e. Hayek, The Constitution of Liberty, 165. Hayek, The Collected Works of F. A. Hayek: The Definitive Edition, 17:241. 36. In a collective volume on the foundations of human rights and European identity in antiquity, the notion of isonomy is not mentioned at all. Klaus M. Girardet and Ulrich Nortmann, eds., Menschenrechte und europäische Identität: Die antiken Grundlagen (Stuttgart: Franz Steiner, 2005). 37. See Kurt von Fritz, The Theory of the Mixed Constitution in Antiquity: A Critical Analysis of Polybius’ Political Ideas (New York: Columbia University Press, 1954). 38. Hayek, The Constitution of Liberty, 164–­65, 459–­61. Hayek, The Collected Works of F. A. Hayek: The Definitive Edition, 17:238–­41.

isonomy in greek antiquity

15

“orders” or “estates,” democracy was considered as a form of government limited to small states, frequently threatened by waves of instability. Martin Luther taught on traditional forms of government in a table talk of 1539 and referred to democratia, “where many common folks govern, as in Switzerland and Ditmars” (Dithmarschen).39 Two fundamental new appreciations of democracy set in during the eigh­ teenth century, to be precise with the American Revolution. First, the traditional connection between democracy—­or “republic” in the sense of a democratic republic—­and the smallness of a state was rejected. Second, the compatibility of democracy with a representative form of government was recognized. Thus there originated in America the notion of “representative democracy”—­today self-­evident, at that time new, early documented in the writings of Alexander Hamilton in the years 1777 and 1788.40 With the emergence of representative democracy we have reached that change of paradigms I mentioned in the introduction—­the change of paradigms from notions of a gradated order to notions of an order that at least strove and strives by numerous processes of equalizations to approximate a status of equal rights—­of isonomy. Yet before entering the realm of the new paradigm, the preceding paradigm, dominated by the ideas of hierarchy and gradation, deserves close analysis.

39. Martin Luther, D. Martin Luthers Werke: Kritische Gesamtausgabe (Weimarer Ausgabe); Tischreden aus den Jahren 1538–­1540, vol. 4 (Weimar: Hermann Böhlaus Nachfolger, 1916), 240 (no. 4342). 40. Alexander Hamilton, Letter of May 19, 1777, to Gouverneur Morris, and notes for a speech in the New York Ratifying Convention, June 1788: See Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford, CA: Stanford University, 1970), 48–­49, 223 nn. 35–­36.

2

Gradations: Hierarchy in This World and the Other World

The historian Otto Brunner expressed the conviction that the watershed during the eighteenth century was deeper than that between the Middle Ages and modern times and that it also signified more than the transition from a “feudal” to a “bourgeois” worldview. What vanished, Brunner said, was a world of aristocratic structure and its worldview, the “old ontology, the ancient thinking about the cosmos,” a structure “which had been dominant through more than two thousand years.”1 I agree with Brunner’s views, yet I think they are incomplete. Christendom broke into the aristocratic structure of antiquity, it appealed at first not to aristocrats, but to the common people, among them many freed slaves, and it had an appreciation of work—­in contrast to the “otium cum dignitate” view of the upper classes.2 Yet as early as the second century AD, the Christian church grew in trends toward more and more hierarchization.3 The adjustment to or the internalization of hierarchical ways of thought and of organization grew, of course, after the emperor Constantine lifted the prohibition against the Christian religion (313) and after Theodosius I proclaimed the Christian religion as the state religion (380). One must add that from 1. Otto Brunner, Adeliges Landleben und europäischer Geist: Leben und Werk Wolf Helmhards von Hohberg, 1612–­1688 (Salzburg: O. Müller, 1949), 137. 2. Orlando Patterson, “Paul and His World: A Community of Urban Freedmen,” chap. 18 in Freedom, vol. 1, Freedom in the Making of Western Culture (New York: Basic Books, 1991), 316–­24, esp. 323: “Otium cum dignitate”—­“Leisure with dignity.” 3. Very informative is Rolf Rilinger, “Zum kaiserlichen Leistungs-­und Rangdenken in Staat und Kirche,” (1995), reprinted in Rilinger, Ordo und dignitas: Beiträge zur römischen Verfassungs-­ und Sozialgeschichte, ed. Tassilo Schmitt and Aloys Winterling (Stuttgart: Franz Steiner, 2007), 181–­222, esp. 220–­22.

gr a dations

17

the fourth to the sixth century, neoplatonic ideas of a gradated world order entered into Christian thought, from Augustine to Pseudo-­Dionysius Areopagita. The influence of Greek philosophical thought on Christian thinking has been profound.4 The neoplatonic-­Christian notion of a gradated world order survived the transition from late antiquity to the Middle Ages and from the Middle Ages to early modern times. It did not survive the great “break” of the eighteenth century, the “saddle period” (Sattelzeit), to use the famed expression coined by Reinhart Koselleck for the period from ca. 1750 to ca. 1850.5 To sum up: ordo as a gradated world order under God, including the hu­ man social and legal order, was considered valid in the fifth or sixth century as well as in the tenth century, in the thirteenth century in the age of high scholasticism, and also in early modern times from the sixteenth to the eigh­ teenth centuries.6 The (western) Christian church survived the breakdown of the Western Roman Empire so firmly and hierarchically organized that the estate of the clerics has been called an “example of all privileged estates of the West.”7 The Reformation, with its revolutionary priesthood of all believers, did shake the traditional ecclesiastical hierarchy, wherever it succeeded to establish itself.8 Yet the close connection of “throne and altar” on both sides of the ecclesiastical divide encouraged the continuing existence and even the growth of 4. Rilinger, 220–­22. 5. Original source: Reinhart Koselleck, “Einleitung,” in Geschichtliche Grundbegriffe, ed. Brunner, Conze, and Koselleck, vol. 1 (1972), XV. 6. Heinrich Fichtenau, Living in the Tenth Century: Mentalities and Social Orders, trans. Patrick J. Geary (Chicago: University of Chicago Press, 1991) makes outstanding points regarding the fifth, sixth, and tenth centuries. See Wolfgang Hübener, “Malum auget decorem in universo: Die kosmologische Integration des Bösen in der Hochscholastik,” in Die Mächte des Guten und Bösen: Vorstellungen im XII. und XIII. Jahrhundert über ihr Wirken in der Heilsgeschichte, ed. Albert Zimmermann (Berlin: Walter de Gruyter, 1977), 1–­26, regarding the age of scholasticism. For applicability to early modern times, see Paul Münch, “Grundwerte der frühneuzeitlichen Ständegesellschaft: Aufriss einer vernachlässigten Thematik,” in Ständische Gesellschaft und soziale Mobilität, ed. Winfried Schulze and Helmut Gabel (Munich: R. Oldenbourg, 1988), 66, 69. 7. Otto Hintze, “The Preconditions of Representative Government in the Context of World History” (1931), in Hintze, The Historical Essays of Otto Hintze, ed. and with an introduction by Felix Gilbert (New York: Oxford University Press, 1975), 340. See also Peter Brown, The Rise of Western Christendom: Triumph and Diversity, A.D. 200–­1000, 10th rev. ed. (Chichester, UK: Wiley-­Blackwell, 2013), 72–­92. 8. On “gradualism” in the medieval church, see Berndt Hamm, “Einheit und Vielfalt der Reformation—­oder was die Reformation zur Reformation machte,” in Reformationstheorien: Ein kirchenhistorischer Disput über Einheit und Vielfalt der Reformation, ed. Berndt Hamm, Bernd Moeller, and Dorothea Wendebourg (Göttingen: Vandenhoeck & Ruprecht, 1995), 70–­7 1. I am grateful to Barbara Stollberg-­Rilinger for the reference.

18

chapter t wo

hierarchical structures in society. It has been emphasized that the Protestant rejection of the “gradated plurality of the Middle Ages” concerned only the religious-­ecclesiastical part of public affairs and not the social and political hierarchy of the estate-­or order-­oriented societies of early modernity.9 Definitions of the essence of order-­oriented or more generally gradated or hierarchical societies are frequent. I prefer a definition which I find especially precise, formulated by Moses Finley: “An order or estate is a juridically defined group within a population, possessing formalized privileges and disabilities in one or more fields of activity, governmental, military, legal, economic, religious, marital, and standing in a hierarchical relation to other orders.”10 I draw particular attention to Finley’s pointing to the “hierarchical relation” among various estates, which presupposes a superior whole. I shall return to this theme. Finley’s definition is much more convincing than that given by Max Weber, often cited, which I view critically. Weber considers the “social estimation of honor” as key to the “status-­situation” (emphasis in the original). He continues by saying that “status honor is normally expressed by the fact that above all else a specific style of life is expected from all those who wish to belong to the circle” (emphasis in the original).11 But it is not a case of “will,” if Weber at another place in the same text speaks of slavery as a “status group.”12 One cannot speak of “social honor” in the case of slavery. Also I observe critically that in most cases—­apart from the clergy—­it is not an act of “will” that determines affiliation to such a status group but being born into this group, from which it was usually impossible to leave by one’s own volition. Rather than speaking of “social honor,” Finley rightly emphasizes the necessity of the “legal definition” of such a group.13

9. Hamm, 87. 10. Moses I. Finley, The Ancient Economy, updated edition with a foreword by Ian Morris (Berkeley: University of California Press, 1999), 45 (emphasis in the original). 11. Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed. Guenther Roth and Claus Wittich (New York: Bedminster Press, 1968), 932. 12. Weber, 928. 13. An excellent survey on the development and significance of “order” or “estate” (Stand) has been presented by Otto Gerhard Oexle, “Stand im lateinischen Europa,” first published in 1990, republished in Oexle, Die Wirklichkeit und das Wissen: Mittelalterforschung—­historische Kulturwissenschaft—­ Geschichte und Theorie der historischen Erkenntnis, ed. Andrea von Hülsen-­Esch, Bernhard Jussen, and Frank Rexroth (Göttingen: Vandenhoeck & Ruprecht, 2011), 287–­399.

gr a dations

19

I look at the ancient world of gradated orders with the help of three texts taken out of Alexis de Tocqueville’s Democracy in America, volume II, of 1840. It is a volume going far beyond American themes and a masterpiece of political and sociological thought, only to be compared with Montesquieu’s De l’esprit des lois.14 Tocqueville calls the ancient, passing order simply “aristocracy” and the newly emerging order simply “democracy.” His presentation of these orders should be seen in the sense of the “ideal types” of Max Weber. First example: A chapter is titled “How democracy modifies the relations between servant and master.” Among aristocratic peoples, according to Tocque­ville, “the poor man is trained from childhood of being commanded. In whatever direction he turns his glance he immediately sees the image of hierarchy and the aspect of obedience.”15 With the word “hierarchy,” Tocqueville has pronounced the key word of the old paradigm. At the same time, Tocqueville furnishes remarkable insights into the relationship of master and servant: “Thus, although under aristocracy the master and the servant have no natural resemblance; although on the contrary, fortune, education, opinions, and rights place them at an immense distance on the scale of beings [sur l’échelle des êtres], nevertheless, in the end, time binds them together.”16 The servant, we should add, pertains to the status group referred to in French as domesticité, whose members within the framework of the ancient structure of “the whole house” (domesticité has its roots in the Latin domus) were regarded as having no will of their own, because of dependency on the will of their master, and who therefore were excluded from the right of suffrage during the whole French revolution.17 Also in democracy, to return to Tocqueville, there are masters and servants. But now they are, as Tocqueville had seen in America, tied together by a wholly different relationship, that is, by a contractual agreement, to be dissolved at any time. In the social order of aristocracy, the master seen from the perspective of the servant is a different human being. In the social order of democracy, matters are different: “Equality of conditions makes new beings

14. The first volume of Tocqueville’s De la démocratie en Amérique was published in 1835, the second in 1840. The following translation is used in this book: Alexis de Tocqueville, Democracy in America, ed., trans., and with introduction by Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000). Cited henceforth: Tocqueville, Democracy I or II. 15. Tocqueville, Democracy II, pt. 3, chap. 5, 547. 16. Tocqueville, pt. 3, chap. 5, 548 (my emphasis). “Scale of being” refers to the neoplatonic scale or ladder of all beings, living or without life, on which more below, pp. 27–29. 17. Important: Pierre Rosanvallon, Le Sacre du citoyen: Histoire du suffrage universel en France (Paris: Gallimard, [1992] 2001), 155–­69.

20

chapter t wo

of servant and master. . . .”18 “At each instant the servant can become a master and aspire to become one; the servant, therefore, is not another man than the master.”19 Second example: Tocqueville describes the mental abyss between the aristocracy and “simple people” by referring to a gruesome event in Brittany in 1675. At that time, “the lower classes of Brittany became aroused over a new tax.” “These tumultuous movements,” Tocqueville continues, “were repressed with an unexampled atrocity.”20 He cites from a letter of the Marquise de Sévigné, one of the great letter writers of French literature, already famous in her own lifetime. She wrote about punitive measures like the driving out of the population of a whole street including pregnant women, children and old people, then executions by breaking people on the wheel or hanging them. She added that Brittany was a good example to respect governors and governesses—­ her daughter was married to the Governor of Provence—­and that no one should throw stones into their garden. Tocqueville emphasizes that Mme. de Sévigné was no selfish or barbaric creature and that she treated her vassals and servants with goodness and indulgence. Yet: “Mme. de Sévigné did not clearly conceive what it was to suffer if one was not a gentleman.”21 What we consider as hierarchical structures, what Tocqueville himself even designated as difference of “castes,” meant for him that every caste “has its own opinions, sentiments, rights, mores, and separate existence.” They scarcely believe themselves “to be a part of the same humanity.”22 Comparing the aristocratic and the democratic forms of society, Tocque­ ville thought they are “as it were, two distinct humanities, each of which has its particular advantages and inconveniences, its goods and evils that are proper to it.”23 I will not fail to point out that Tocqueville recognizes also the emergence of a new aristocracy out of democracy, an aristocracy of masters of industry, but he regards this as an exception. Nevertheless, according to Tocqueville, friends of democracy ought to look constantly with anxiety in this direction, 18. Tocqueville, Democracy II, pt. 3, chap. 5, 549. 19. Tocqueville, 549 (my emphasis). 20. Tocqueville, pt. 3, chap. 1, 536. 21. Tocqueville, 537. 22. Tocqueville, 535. 23. Tocqueville, pt. 4, chap. 8, 675. I refer to Gerald Stourzh, “Tocqueville’s Understanding of ‘Conditions of Equality’ and ‘Conditions of Inequality’ ” (2006), republished in Gerald Stourzh, From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America (Chicago: University of Chicago Press, 2007), 335–­58.

gr a dations

21

“for if ever permanent inequality of conditions and aristocracy are introduced anew into the world, one can predict that they will enter by this door.”24 Reading this chapter in the second decade of the twenty-­first century, one is tempted to think of the “masters of finance” rather than the “masters of industry.”25 Now to the third and last selection from Democracy in America and the most important one. In a very brief chapter “On individualism in democratic countries,” Tocqueville describes individualism as a new phenomenon, one he confronts with reticence. Individualism, he argues, destroys the solidarity within the various “classes”—­he does not speak of “castes” on this occasion, yet he means in both cases the status groups of the world of estates. The individual, he continues, isolates himself from the masses and withdraws into the circle of his family and friends. Individualism is of democratic origin, “and it threatens to develop as conditions become equal”—­“à mésure que les conditions s’égalisent.” I cite the French original because the verb égaliser is very telling for the process which leads to modern isonomy. The most important sentence is as follows: “Aristocracy had made of all citizens a long chain that went from the peasant up to the king; democracy breaks the chain and sets each link apart.”26 In his celebrated book Homo hierarchicus on the society of castes in India, Louis Dumont has given Tocqueville’s chapter on individualism a central place, with a view to elucidating the contrast between hierarchical and modern society.27 I shall return to this chapter. What has been said about Tocqueville’s contrasting of the old paradigm of “aristocracy”—­which I prefer to call the paradigm of hierarchy or of gradation—­with the new paradigm of “democracy”—­which I prefer to call the paradigm of isonomy—­offers an excellent starting point for commenting on various aspects of “hierarchy.” Some aspects shall be singled out because of their exemplary significance.

24. Tocqueville, Democracy II, pt. II, chap. 20, 532. 25. I refer particularly to the new book by Thomas Piketty, Capital and Ideology, cited above, introduction, note 12. 26. Tocqueville, Democracy II, pt. II, chap. 2, 283. 27. I would like to express my indebtedness to Louis Dumont and his book Homo Hierarchicus: The Caste System and Its Implications, trans. Mark Sainsbury, Louis Dumont, and Basia Gulati (1st French ed. 1966; Chicago: University of Chicago Press, 1980). It was followed several years later by Homo aequalis, vol. 1, Genèse et épanouissement de l’idéologie économique (Paris: Gallimard, 1977) and vol. 2, L’idéologie allemande: France-­Allemagne et retour (Paris: Gallimard, 1991).

22

chapter t wo

The—­generalized—­relationship between master and servant can easily be specified to apply to various kinds of the vertical dual relation of master and servant. There is the dualism of master and slave, or of master and serf, whether bound to the person or to the land, of master and domestic servant. Gender aspects are to be kept in mind: master and female slave, or master and female servant, but also mistress and slave, or mistress and (male or female) servant. An excellent work of the Leipzig historian Hartmut Zwaar, Master and Servant: Pairs of Figures in History, gives a survey of developments through many centuries.28 Hegel, in his Phenomenology of the Spirit, has cho­ sen Herrschaft und Knechtschaft—­“Lordship and Bondage”—­as a special theme, which has produced innumerable comments.29 It must be pointed out, however, that during the dominance of the paradigm of hierarchy, notable “explosions” of man’s original equality did occur. In the first place, the medieval law book Der Sachsenspiegel, written around 1230 by Eike von Repgow, must be named. In the part devoted to customary law (Landrecht), the author refers to the Bible’s book of Genesis and man’s creation in the image of God. Eike von Repgow writes that his reason could not hold for true the idea that someone could by nature belong to someone else.30 The well-­known proverb, “When Adam delved and Eve span, who was then the gentleman?” is documented for the year 1381. This happened in a sermon given by the radical priest John Ball during a peasant rebellion in this year with which he sympathized. Ball was executed on July 15 of that year in a most cruel procedure. Variations of this saying are known from the end of the fourteenth century and the whole fifteenth century.31 Of considerable significance is a text dated March 1525. Immediately preceding the outbreak of the German peasant war, an assembly of the peasantry of Upper Swabia issue a declaration of twelve articles with grievances and demands. In the third article, a “key text of debates on liberty,” the peasants protested 28. Hartmut Zwahr, Herr und Knecht: Figurenpaare in der Geschichte (Leipzig: Urania-­ Verlag, 1990). 29. Georg Wilhelm Friedrich Hegel, Phenomenology of Spirit, trans. A. V. Miller, with analysis of the text and foreword by J. N. Findley (Oxford: Oxford University Press, 1977), here section B, IV, A: Independence and dependence of self-­consciousness: Lordship and Bondage, 111–­19. The philosophical comments by Alexandre Kojève in France and the discussions produced by it, or other philosophical works dealing with this theme, are beyond the scope of this study. 30. Eike von Repgow, Der Sachsenspiegel, ed. Claus Dieter Schott (Zürich: Manesse, 1984), 189–­91 (Landrecht, III, 42). 31. Thesaurus proverbiorum medii aevi: Lexikon der Sprichwörter des romanisch-­germanischen Mittelalters, ed. Kuratorium Singer der Schweizerischen Akademie der Geistes-­und Sozialwissenschaften, vol. 1 (Berlin: De Gruyter, 1995), 32.

gr a dations

23

against their status as unfree peasants (serfs, Eigenleute) and reclaimed their liberty, considering that “Christ with his precious blood had all redeemed and bought back, the shepherd as well as the highest one, no one excepted.32 Therefore the holy Scriptures tell us that we are free and wish to be free.”33 A historian who greatly emphasizes the significance of the twelve articles, Peter Blickle, has written: “The notion of freedom of the Upper Swabian peasants is a notion that declares status qualities for all human beings, at least for all Christians, as indispensable: freedom of movement, freedom of marriage, free disposition of the yield of labor at the end of life.”34 Blickle’s reference “for all human beings, at least for all Christians” evokes the comment that the whole text is so clearly based on the Gospels and above all on the redemptive death of Christ, that I am not sure whether it included the same kind of freedom for all non-­Christians, notably the Jews.35 The rights of Christians and human rights are two different things. There is, however, a document of the peasants’ war, according to which no one shall suffer denial of law within the realm of divine and imperial laws, be he (or she) “Turk, heathen, Jew, murderer, thief or of whatever name.”36 In the chapter on individualism mentioned above, Tocqueville speaks of the chain reaching from peasant to king in the gradated order of hierarchy. Briefly, here are a few examples. One is the problem of equality or inequality of family rank (Ebenbürtigkeit), most important in the planning of marriages, to be solved by complicated comparisons of family ancestry.37 Until about

32. Peter Blickle, Von der Leibeigenschaft zu den Menschenrechten: Eine Geschichte der Freiheit in Deutschland (Munich: C. H. Beck, 2003), 90. 33. Original text cited in Blickle, 90. 34. Blickle, 91. 35. The famous passage in Paul’s Letter to the Galatians (Gal. 3:28), breaking down the traditional barriers between Jews and Greeks, the slave and the free, between man and woman, stressed the “unity in Christ” and thus referred to the new barriers between Christians and non-­ Christians. Baptism would emerge as a very strong barrier between baptized and nonbaptized people, a barrier that was to play a sad role in the problem of nonbaptized small children, who had no chance to ascend to heaven. Augustine reserved for them the uppermost place in hell; later they were placed in the “limbus puerorum.” 36. “Beschwerdeartikel der Württembergischen Landschaft,” May 1525, in Quellen zur Geschichte des Bauernkrieges, ed. Günther Franz (Munich: R. Oldenbourg, 1963), 427. Reference given by Wolfgang Schmale, Archäologie der Grund-­und Menschenrechte in der Frühen Neuzeit: Ein deutsch-­französisches Paradigma (Munich: Oldenbourg, 1997), 283. In addition, I refer to “reservoirs of equality” in the age of hierarchy in my article “Equal Rights: Equalizing the Individual’s Status and the Breakthrough of the Modern Liberal State” (1996), republished in Stourzh, From Vienna to Chicago and Back, 275–­303. 37. See Elizabeth Harding and Michael Hecht, eds., Die Ahnenprobe in der Vormoderne: Selektion—­Initiation—­Repräsentation (Münster: Rhema, 2011).

24

chapter t wo

the middle of the twentieth century, the equal rank of the husband’s and the wife’s family was important in aristocratic and more particularly in monarchical families. As an example of marriages of unequal rank in monarchical families, consider the marriage of the successor to the Habsburg throne archduke Francis Ferdinand with Countess Sophie Chotek at the beginning of the twentieth century. Normally, the rank of the woman to be married was elevated but never to complete equality with the husband. One famous case of unequal marriage in the early twentieth century resulted in equality of rank—­the duke and the duchess of Windsor—­but only at the price of King Edward VIII renouncing the British throne: after his abdication in 1936 he married the divorced American Alice Wallis Simpson. In the late twentieth and early twenty-­first centuries, unequal marriages in monarchical families have become much more frequent. Another field to put into relief inequality of rank in hierarchical socie­ ties: dueling. One telling example is the affair Voltaire/de Rohan of 1726. The bourgeois Voltaire and a young aristocrat, the chevalier de Rohan, had mutually felt insulted by various mocking comments, and de Rohan had Voltaire beaten up by his servants. Thereupon Voltaire challenged de Rohan to a duel, which de Rohan declined owing to their difference in rank. Voltaire was the loser in this affair. The result was that through the influence of the Rohan family at the royal court, Voltaire was imprisoned for three weeks in the Bastille, and afterward departed for England. Dueling, confined to those living within a status-­bound understanding of “honor,” achieved its apogee within the aristocracy of early modern times; nevertheless it continued in the upper reaches of bourgeois society widely into the nineteenth and the early twentieth century until about the end of World War I. Groups who took hierarchized notions into a society undergoing modernization continued the practice. Among these and foremost were the officers’ corps of the military establishments, but there were also other groups who thought themselves rather highly placed in state and society. A famous case is the duel between Alexander Hamilton and Aaron Burr in 1804, resulting in Hamilton’s death. An interesting aspect of the long survival of dueling is the fact that dueling stood in contradiction to the commands of both the Christian religion and (increasingly) legal prohibitions.38 38. On the apogee of dueling in early modern times, see François Billacois, Le duel dans la société française des XVIe–­XVIIe siècles: Essai de psychosociologie historique (Paris: Éditions de l’École des hautes études en sciences sociales, 1986). On the history of dueling, notably in the nineteenth and early twentieth centuries, see Ute Frevert, Men of Honour: A Social and Cultural History of the Duel (Cambridge: Polity Press, 1995). In general, see V. G. Kiernan, The Duel

gr a dations

25

One should not ignore what happened at the lower end or even outside the estate-­oriented order. Conflicts on rank took place in villages. There were fights for the places in church among richer and poorer peasants.39 Yet another dimension is reached when we consider “dishonorable” professions excluded from respectable society. Early modern times have been called the “blossoming times of dishonorability.”40 Among “dishonorable professions,” condemned in particular by the Roman Catholic church, there were the “comedians.” A well-­known example: the funerals of Molière 1673.41 Molière never had abjured his status as comedian. The parish priest denied ecclesiastical funerals to Molière. It seems that an intervention by Louis XIV was needed, and the archbishop of Paris ordered an ecclesiastical funeral without special celebration and during the night. Another problem of families with “dishonorable” professions, such as executioners: daughters of such families were hit by special restrictions or interdictions of marriage.42 Yet there were chances of upward mobility even within the society of hierarchical legal and social order.43 Apart from the possibilities offered by entry into the ecclesiastical order, one might mention the rise of middle-­class jurists who had become indispensable as councilors of rulers, the possibility of women to “marry upward” (within certain limits), or the purchase of offices, notably in France. We also must keep in mind that within gradated orders there were, corresponding to the image of gradation, levels of equal rights. The American theorist Douglas Rae has spoken of “segmental equalities” existing within in European History: A Study of the Aristocratic Ascendancy (Oxford: Oxford University Press, 1988). On the Voltaire-­Rohan affair, Kiernan, 98. On the Hamilton-­Burr affair, Kiernan, 305–­6. 39. Winfried Schulze, “Die ständische Gesellschaft des 16./17. Jahrhunderts als Problem von Statik und Dynamik,” in Ständische Gesellschaft und soziale Mobilität, ed. Schulze and Gabel, 1–­17, esp. 16, referring to Jan Peters, “Der Platz in der Kirche: Über soziales Rangdenken im Spätfeudalismus,” Jahrbuch für Volkskunde und Kulturgeschichte 28 (new series 13) (1985): 77–­106. 40. Rainer G. Schöller, Der gemeine Hirte: Viehhaltung, Weidewirtschaft und Hirtenwesen vornehmlich des nachmittelalterlichen Umlandes von Nürnberg (Nuremberg: Korn & Berg, 1973), 170, referred to by Ernst Schubert, “Mobilität ohne Chance: Die Ausgrenzung des fahrenden Volkes,” in Ständische Gesellschaft und soziale Mobilität, ed. Schulze and Gabel, 113–­64, here 123. Schubert, “Mobilität ohne Chance,” 118–­24, presents an excellent survey on the problem of “dishonorable” professions. 41. Alfred Simon, Molière ou la vie de Jean-­Baptiste Poquelin (Paris: Seuil, 1995), 499–­500. 42. Andreas Deutsch, “Das schwere Schicksal der Henker—­zur privaten Seite eines grausamen Handwerks,” Zeitschrift der Savigny-­Stiftung für Rechtsgeschichte, Germanistische Abteilung 118 (2011): 420–­37, esp. 431–­32. 43. Excellently on this point, see the collective volume by Schulze and Gabel, Ständische Gesellschaft und soziale Mobilität.

26

chapter t wo

hierarchical systems of authority.44 Among the most important of such systems are to be counted, since Christian antiquity, monastic communities but also, much later, the medieval system of cities with its system of hierarchical levels of citizenship or residence.45 A grandiose symbolism of the medieval city is presented by the Buon Governo fresco of Ambrogio Lorenzetti in the Palazzo Publico of Siena (1338/39). Siena’s citizens—­all of equal height!—­hold the cord of justice, which they receive from the allegorical figure of Concordia, which in turn has received it from the figure of Justitia; on the other end of the group of citizens, the cord is tied to the sword of the figure of the Comune di Siena sitting on the throne. I return once more to Tocqueville’s chain from peasant to king. The classical structure, gradated according to rank, was that of oratores, bellatores, and laboratores.46 From the High Middle Ages to the eighteenth century this structure was firmly rooted despite terminological changes. This can be seen with especial clarity in the ranking of the three estates, notably in France: first, the ecclesiastical order; second, the nobility; and then the famous “third estate.”47 44. “Indeed, a major example of segmentation is provided by hierarchical systems of power and authority, in which each tier is explicitly subordinated to the tier above, but is equal within its membership.” Douglas W. Rae, Equalities, 2nd ed. (Cambridge, MA: Harvard University Press, 1989), 30. 45. Barbara Frenz, Gleichheitsdenken in deutschen Städten des 12. bis 15. Jahrhunderts: Geistesgeschichte, Quellensprache, Gesellschaftsfunktion (Cologne: Böhlau, 2000). 46. Georges Duby, The Three Orders: Feudal Society Imagined, rev. ed., trans. Arthur Goldhammer, with a foreword by Thomas N. Bisson (Chicago: University of Chicago Press, 1982). Most recently, Thomas Piketty in his Capital and Ideology puts the “ternary order” into the center of his analysis of “societies of order” (see particularly chap. 1, “Ternary Societies: Trifunctional Inequality,” 51–­64). I am critical of Piketty’s lack of analyzing diversity among the third estate. He writes: “The third estate, the common people, did the work. Peasants, artisans and merchants provided the food and clothing that allowed the entire community to thrive. . . . In practice, ternary societies were more complex and diverse. Each group could contain a number of subgroups. . . .” Piketty, 52. Yet this is hardly sufficient. Piketty does not deal with the place of towns and cities in medieval and early modern Europe. In 1789, the third estate of the French National Assembly counted 654 members, of whom 392 persons were jurists (18 of these were nobles). The lawyers dominated the third estate. See, in detail, Edna Hindie Lemay, “Les révélations d’un dictionnaire: Du nouveau sur la composition der l’Assemblée Nationale Constituante (1789–­1791)” in Annales historiques de la Révolution française, no. 284 (1991), 159–­89, here 176–­79. Where did these “hommes de loi” come from? My term “gradated society” leaves more place for varieties of gradation than Piketty’s term “ternary society.” 47. Important: Otto Gerhard Oexle, “Die funktionale Dreiteilung als Deutungsschema der sozialen Wirklichkeit in der ständischen Gesellschaft des Mittelalters,” in Ständische Gesellschaft und soziale Mobilität, ed. Schulze and Gabel, 19–­51. This study reaches far into early modernity, including the eighteenth century.

gr a dations

27

There were numerous substructures, including the urban order, as is to be seen in the order of ranks of the guilds, or in the “clothing orders” (Klei­ derordnungen) of early modern times.48 This structure was based on older foundations, as can be seen in the very important work by Heinrich Fichtenau, Living in the Tenth Century: Mentalities and Social Orders (1991), one of the great works of medieval studies of the twentieth century. His chapter “Order as Rank Order” presents both ecclesiastical orders (omitted by Tocque­ ville) and Roman notions of rank as mediated by the Christian church and is a magnificent introduction into the structured cosmos of Latin Europe.49 To make this imagined structure of the world conceivable, metaphors of the body were often used, all of which were based on a famous source in Paul’s letter to the Corinthians (12:12–­31). It should be noted that, thanks to the body metaphor, the lower “serving” orders also found their place in the social order—­as pedes rei publicae, as “feet of the state.”50 Here an insertion is needed: England. In England there was “an intermixing of orders,” not to be found “anywhere else.” This special position was above all based on the fact that “the lower nobility had early thrown off the warlike and feudal character” and mixed with “the prosperous elements of free men on the land and urban burghers.”51 Jointly they sat in the Lower House of the English Parliament, while the two upper estates, the high clergy and the upper nobility, were assembled in the Upper House. The broadly representative character of the Lower House should give it a dominant position beginning with about the second third of the seventeenth century. On certain consequences of this special development, particularly for the colonies in America, we shall return in the next chapter. Let’s have final look at Tocqueville’s chain from peasant to king. This chain leads us still further. It is only part of a much longer chain, “the Great Chain of

48. Rich in details: Liselotte Constanze Eisenbart, Kleiderordnungen der deutschen Städte zwischen 1350 und 1700: Ein Beitrag zur Kulturgeschichte des deutschen Bürgertums (Göttingen: Musterschmidt, 1962). 49. Fichtenau, Living in the Tenth Century, chap. 1, “Order as Rank Order,” 3–­29. 50. Tilman Struve, Die Entwicklung der organologischen Staatsauffassung im Mittelalter (Stuttgart: Anton Hiersemann Verlag, 1978), 130–­31. Tilman Struve, “Pedes rei publicae: Die die­ nenden Stände im Verständnis des Mittelalters,” Historische Zeitschrift 236 (1983): 1–­48, here 37, with reference to the Policraticus of John of Salisbury, according to whom the state who protects his subjects is to be regarded as equipped “with shoes.” 51. Otto Hintze, “Typologie der ständischen Verfassungen des Abendlandes,” in Staat und Verfassung: Gesammelte Abhandlungen zur allgemeinen Verfassungsgeschichte, 2nd ed., ed. Gerhard Oestreich (Göttingen: Vandenhoeck & Ruprecht, [1930] 1962), 120–­39, esp. 128.

28

chapter t wo

Being,” as it has been called by Arthur Lovejoy, its most important explorer, in his Harvard lectures of 1933 and the ensuing book of 1936 bearing this title.52 Alexander Pope’s Essay on Man of 1733–­1735, broadly developing the theme of the vast chain of being, offers the best-­known and most appealing specimen of a way of thinking developed about one and one-­half thousand years earlier:53 Vast chain of being, which from God began, Natures aethereal, human, angel, man, Beast, bird, fish, insect! what no eye can see, No glass can reach! from Infinite to thee, From thee to Nothing!

Of neoplatonic origin, going back to the platonist philosopher Plotinus, living in the third century AD, this chain meant to convey the uninterrupted descending and again reascending connection of all intelligible and imaginable spiritual beings, of all natural beings, whether alive of without life, below an unrecognizable, uppermost “one,” the platonic God. To show that even a bare stone was part of this interminable and unbroken chain, Augustine wrote: “Et lapis est”—­“a stone exists.”54 In the second half of the fourth century, Augustine Christianized Plotinus’s ideas; the place of the highest “one” was taken by the Christian God.55 The world was perceived of as a “realm of grades or steps”; gradibus ordinare—­to order the world by gradation—­this was how the divine power of creation was characterized.56 In the gradated order of being, “evil does not get an ontological stand of its own; it merely is, in the free action of man, conceivable and possible by a turning away from what should be fulfilled in each

52. Arthur O. Lovejoy, The Great Chain of Being: A Study of the History of an Idea (Cambridge, MA: Harvard University Press, 1936). Douglas Rae in his already mentioned book of 1989, Equalities, 159 n. 21, refers to the connection of this “great chain of being” with his system of “segmented equalities.” I recall Tocqueville’s use of “l’échelle des êtres,” referred to above, p. 19. 53. Alexander Pope, An Essay on Man, Twickenham Edition, commented by Maynard Mack (London: Methuen, 1950 [reprinted 1993]), Epistle 1, lines 237–­41, see also 244–­46 (pp. 44–­45). See also: “Order is Heav’n’s first law; and this confest, Some are, and must be, greater than the rest, More rich, more wise . . .” Epistle 4, lines 49–­51 (pp. 132–­33). 54. Augustinus, De libero arbitrio, bk. 2, 3.7. English translation: St. Augustine, The Problem of Free Choice, trans. and annotated by Dom Mark Pontifex (Westminster, MD: Newman Press, 1955), bk. 2, 3.7, 81. 55. See Dann, Gleichheit und Gleichberechtigung, 57. 56. On the connection of neoplatonic and Christian ideas, see Josef Rief, Der Ordobegriff des jungen Augustinus (Paderborn: Schöningh, 1962), esp. 132, and Werner Beierwaltes, Platonismus im Christentum (Frankfurt am Main: Vittorio Klostermann, 1998), esp. 52–­53.

gr a dations

29

man.”57 This has become the most enduring theodicy of the Christian world, effective far into the eighteenth century and in school theology even longer. More than one hundred years later, around 500, the originally neoplatonic idea of a gradated universe, but now under the rule of the Christian God, was powerfully seized by an author writing in Greek, whose identity remains mysterious to this day. This writer called himself Dionysius Areopagita and claimed to be a contemporary of the apostle Paul and that Athenian of whom it is reported in the Acts of the Apostles that he heard Paul’s speech at the Areopagus in Athens and thereupon converted to Christianity. Only in the fifteenth century was the falsification discovered by Lorenzo Valla, and since then this author is referred to as “Pseudo-­Dionysius.” He is the inventor of the word “hierarchy,” a word composed of the words hierós, “holy,” and archē, “rule.” The works of Pseudo-­Dionysius refer to a descending hierarchy in the church: first and highest are the sacraments (as presence of the Divine), second is the bishop as leader of the Christian community, and third are the Christian laypeople. In the divine realm, “hierarchy” refers to the ranks of the nine choirs of angels, which are additionally ranged in subgroups of three.58 Another 800 years after Pseudo-­Dionysius, Dante in canto 28 of the Pa­ radiso names Dionysius as source for his ranking of the nine choirs of the angels.59 An interesting comparison of the hierarchy of the nine choirs of the angels with the earthly functionaries of a king (with explicit reference to Dionysius) is to be found in the Legenda aurea of the Dominican Jacobus de Voragine—­only a few decades prior to Dante.60 57. Beierwaltes, 52. 58. Paul Rorem, Pseudo-­Dionysius: A Commentary on the Texts and an Introduction to Their Influence (New York: Oxford University Press, 1993), 57–­58. See further: Ronald F. Hathaway, Hierarchy and the Definition of Order in the Letters of Pseudo-­Dionysius (The Hague: Nijhoff, 1969). Hathaway stresses the neoplatonic roots of the ideas of Pseudo-­Dionysius. In the ninth century the Irish scholar John Scottus Eriugena reworked the Latin translation of the works of Dionysius and thus passed on to the medieval West “the neoplatonic-­mystical-­speculative thinking.” Rein­ hold Kaiser, Die Mittelmeerwelt und Europa in Spätantike und Frühmittelalter (Frankfurt am Main: S. Fischer, 2014), 319–­20. 59. Dante Alighieri, The Divine Comedy, trans. Allen Mandelbaum, introduction by Eugenio Montale, annotations by Peter Armour (London: Everyman’s Library, 1995), “Paradiso,” Canto XXVIII, lines 97–­126 and 130–­35. The comment in the notes by Peter Armour that Dionysius (line 130) was “the disciple of Saint Paul” (p. 780) is mistaken. On Dante’s use of Pseudo-­ Dionysius, see the commentary in Kurt Flasch, Einladung, Dante zu lesen, 3rd ed. (Frankfurt am Main: Fischer, 2011), 134, 139, 210. 60. Jacobus de Voragine, The Golden Legend: Readings on the Saints, trans. William Granger Ryan, 2 vols. (Princeton, NJ: Princeton University Press, 1993), vol. 2, 203. See Michel Vovelle, La mort et l’Occident de 1300 à nos jours (Paris: Gallimard, 1983), 61, 83.

30

chapter t wo

In our times, the nine choirs of the angels have receded far away. There is, however, in Vienna the church “To the nine choirs of the angels,” and near the Austro-­Italian border close to Tarvisio there is the parish church Saint Andreas in the Austrian village of Thörl with a grandiose fresco of the master Thomas of Villach, dating from the late fifteenth century: crucified Christ, on his right paradise, on his left hell, the upper beam of the cross transformed into the right hand of Christ, unlocks the door to the divine Jerusalem and the nine choirs of the angels.61 Thomas Aquinas has spoken of the gradations ( gradus) of beholding God in heaven in his summa theologica: “The supreme truth is seen by all the blessed in various grades”—­the highest reward goes to those with the greatest love of God during life on earth and the greatest merit (in faith).62 Dante’s Divine Comedy, as is well known, has a strictly symmetrical threefold construction—­ Inferno, Purgatorio, and Paradiso—­ hierarchically divided into circles or spheres. Gradations, then, also determine the structure of the other world. There was the image of the heavens as a number of bowls one upon another, seven heavenly bowls according to Aristotle. The plurality of several heavens has become rather rare, except perhaps in the phrase “in the seventh heaven.” Yet this plurality existed in several variants. In 1543, a parish priest in Kent spoke of three heavens, one for the great, one for people with sparse means, and one for the very poor.63 Even in our day, the Lord’s Prayer speaks of “our Father in the Heavens” in several languages, including Greek, Latin, Italian, and French. The Swiss historian Richard Feller has written that prior to modernity, the individual had been so preoccupied with the acquisition of his daily bread and his eternal salvation “that he did not miss political rights.”64 To “eternal salvation” one ought to add “and to prevent eternal damnation.”65 The French 61. Gerald Stourzh, “Menschenrechte und Genozid,” in Spuren einer intellektuellen Reise: Drei Essays (Vienna: Böhlau, 2009), 118. Also Friedrich Zauner, Das Hierarchienbild der Gotik: Thomas von Villachs Fresko in Thörl (Stuttgart: Urachhaus, 1980). 62. “Quia summa veritas ab omnibus beatis secundum diversos gradus conspicitur” (my emphasis). Thomas Aquinas, Summa theologiae, ed. Pietro Caramello (Turin: Marietti, 1952), Pars prima, quaestio LXII, articulus 9 (I, 62:9), vol. I, 304. On this passage: Colleen McDannell and Bernhard Lang, Heaven: A History (New Haven, CT: Yale University Press, 1988), 90 (2nd ed. 2001). Also David E. Luscombe, “Thomas Aquinas and Conceptions of Hierarchy in the Thirteenth Century,” in Thomas von Aquin: Werk und Wirkung im Licht neuerer Forschungen, ed. Albert Zimmermann (Berlin: W. de Gruyter, 1988), 261–­77, esp. 271. 63. Keith Thomas, Religion and the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth Century England (London: Weidenfeld & Nicolson, 1971), 71, 152. 64. Richard Feller, Geschichte Berns, vol. 2 (Bern: H. Lang, 1953), 18. 65. An excellent survey is given by Peter Jezler, ed., Himmel, Hölle, Fegefeuer: Das Jenseits im

gr a dations

31

historian Pierre Chaunu has observed that in the European Middle Ages the fear of death was less real than the fear of eternal damnation.66 In my juxtaposition of the old and the new paradigm, I would like to draw attention to the following. As Dante has shown, the other world was presented as a world of gradations, much more colorful and diverse, also much more populated than it appears in the imagination since the late nineteenth century, and particularly so in the twentieth and twenty-­first centuries. On “classes and hierarchies in the other world,” an excellent survey has been submitted by the Austrian historian Peter Dinzelbacher. In this survey, a rare hierarchy of a hell with three levels is of interest. In the deepest level, there are the sinning Christians, who had committed treason vis-­à-­vis God’s revelation which had been granted to them, and treason, as can be observed in Dante’s “Inferno,” such as Lucifer’s treason of God, was the ultimate, most horrible and punishable sin. In the middle level there are the Jews, and in the upper level there are the heathen.67 So even heaven and hell, as illustrated in the foregoing, had better and worse places. In addition, the great number of beings between God and humans, the angels, as well as between the devil and humans, the demons, made the other world quite populous. These imaginations have paled within the last 250 years. This is also true of purgatory, but a couple of centuries ago this was different. Andreas Hofer, the Tyrolian resister against Napoleon, a few hours before his execution in Mantua on February 20, 1810, wrote his closest friend. He requested that “all still living good friends shall pray for me and help me to get out of the hot flames, if I should have to do penance in purgatory.”68

Mittelalter; Katalog der Ausstellung des Schweizerischen Landesmuseums Zürich (Zürich: Verlag Neue Zürcher Zeitung, 1994). 66. Mentioned in Alois Hahn, “Tod und Sterben in soziologischer Sicht,” in Tod, Jenseits und Identität: Perspektiven einer kulturwissenschaftlichen Thanatologie, ed. Jan Assmann and Rolf Trauzettel (Freiburg im Breisgau: Alber, 2002), 64. See Pierre Chaunu, La mort à Paris: XVIe, XVIIe et XVIIIe siècles (Paris: Fayard, 1978), 137, 141. Chaunu stresses the growth of the theme of the last judgment and of the judging Christ in the iconography since the thirteenth century; Chaunu, 118. Vast iconographical material can be found in Peter Dinzelbacher, Angst im Mit­ telalter: Teufels-­, Todes-­und Gotteserfahrung; Mentalitätsgeschichte und Ikonographie (Paderborn: F. Schöningh, 1996). 67. Peter Dinzelbacher, “Klassen und Hierarchien im Jenseits,” in Soziale Ordnungen im Selbstverständnis des Mittelalters, ed. Albert Zimmermann, first part (Berlin: De Gruyter, 1979), 20–­40, esp. 32. 68. Karl Paulin, Andreas Hofer und der Tiroler Freiheitskampf 1809: Nach geschichtlichen Quellen und mit 8 Dokumentarbildern, Edition Zeitgeschichte (Vienna: Tosa, 1996), 105.

32

chapter t wo

In Dante’s “Inferno,” many persons important in this world, starting with emperors and popes, were to be found. Presentations of the last judgment or of hell display the sufferings of the formerly great and powerful. The reversal of the hierarchical order of this world in the next may have given satisfaction to some people badly treated in this life.69 A great theme ever since Augustine and of renewed topicality in early modern times was the Christian teaching on the mass of damned people, massa damnata, massa damnationis, or massa perditionis. The word of the Bible, “many are called yet few are elected” had great weight, particularly when Augustine, in about the middle of his lifetime, developed his “teaching of grace” based exclusively on divine predestination; his “teaching of grace” rather ought to be named his “teaching of sin.” Augustine (354–­430) turned to a rigid theory of predestination only by 396/97 in his writing De diversis quaestionibus ad Simplicianum, according to which election (for few) and damnation (for many) depended exclusively on God’s indiscernible decision.70 Another view, developed about 200 years earlier by the Greek church father Origenes, on the final purification and redemption of all, including the inhabitants of hell, was judged heretical in 543 and on later occasions.71 The Augustinian teaching that the majority of all human beings (even Christians) are destined to damnation and that only a small group of the elect should en69. Since in many artistic presentations of hell the damned are naked, signs of earthly status are not easy to find. Sometimes the former status of the damned can be recognized by their headgear or tonsure. See the illustration of the entry into hell on the northern portal of the cathedral of Reims in Robert Hughes, Heaven and Hell in Western Art (New York: Stein and Day, 1968), 187. A similar motive is to be seen in the relief of the last judgment in the dome of Bamberg, reproduced in Jezler, Himmel, Hölle, Fegefeuer, 13. 70. Kurt Flasch, Logik des Schreckens: Augustinus von Hippos De diversis quaestionibus ad Simplicianum I 2, 2nd improved edition (Mainz: Dieterich’sche Verlagsbuchhandlung, 1995). See also Alberto Pincherle, Vita di Sant’Agostino, 2nd ed. (Bari: Laterza, 1988), 154–­63, and Hermann Häring, Die Macht des Bösen: Das Erbe Augustins (Zürich: Benziger Verlag/Gütersloher Verlagshaus Gerd Mohn, 1979), esp. 200, 212–­13. Less critical is Peter Brown, Augustine of Hippo: A Biography, new ed. with an epilogue (Berkeley: University of California Press, 2000), 146–­48, also 497, 517. He does not even discuss the theme of “massa damnata.” I cannot follow his view. 71. On Origenes, see Christoph Markschies, Origenes und sein Erbe: Gesammelte Studien (Berlin: De Gruyter, 2007). On predecessors and followers, see Herbert Vorgrimler, Geschichte der Hölle (Munich: Fink, 1993), 95–­99. On Origenes’s work “Apokatástasis tōn pántōn,” see Alfons Fürst, Von Origenes und Hieronymus zu Augustinus: Studien zur antiken Theologiegeschichte (Berlin: De Gruyter, 2011), 144–­46, 166–­76. On the condemnation of nonbelief in the eternity of damnation in 543 by an edict of the emperor Justinian, and four later condemnations by ecumenical councils up to the ninth century, see Chaunu, La mort à Paris, 127. On the reemergence of the teaching on “Apokatástasis” at the turn from the seventeenth to the eighteenth century, see below, note 89.

gr a dations

33

joy eternal beatitude has for centuries made the Christian religion a religion of fear and not of love. A work by a theologian on Christian eschatology in 2010 concludes regarding faith in the middle ages: “Salvation is the extraordinary grace of God, hell is the normal fate. The fear of hell thus becomes the dominant experience of one’s existence.”72 A famous painting, the Last Judgment of Hans Memling, shows how “the few saved ones” turn toward paradise, while “the mass of the damned” falls into eternal damnation.73 The fear of hell began to intensify during the twelfth century and reached an apogee in the horrible fourteenth century, the century of the plague and of pogroms.74 This fear continued to be present at a high level in the first centuries of early modern times, the centuries of confessionalization and the wars of religion, notwithstanding the Renaissance and humanism, movements tied to elite groups, and went on well into the eighteenth century. It was not confined to Catholicism. In Martin Luther’s writings the “massa perditionis” is present. In his tract De servo arbitrio, directed against Erasmus, Luther wrote: “This is the highest degree of faith, to believe him merciful when he saves so few and damns so many. . . .”75 Until the late eighteenth century there are statements 72. Johanna Rahner, Einführung in die christliche Eschatologie (Freiburg im Breisgau: Herder, 2010), 272. The preacher Johannes Herolt (died 1468) said that of 30,000 dead persons, only two elected and three candidates for purgatory could be counted. The remaining 29,995 persons go to hell (Rahner, 272 n. 5). On the “massa perditionis,” see, above all, Jean Delumeau, Sin and Fear: The Emergence of a Western Guilt Culture; 13th–­18th Centuries, trans. Eric Nicholson (New York: St. Martin’s Press, 1990), particularly chap. 9, “The Mass of Perdition and the System of Sin,” 282–­303. On the improbability of salvation and the probability of damnation, and the results of this constellation on efforts for relief like prayers of intercession and the (slow) growth of belief in a purgatory, see Philippe Ariès, The Hour of Our Death, trans. Helen Weaver (New York: Knopf, 1981), 152–­54. On the growth of the fear of hell in the fourteenth and fifteenth centuries and the endurance of such until the seventeenth century despite the belief in a purgatory, see Vovelle, La mort et l’Occident, 133ff. Vovelle speaks of a “pastoral of fear” (Vovelle, 146 and 313). The Reformation, notably Calvinism concentrating on predestination, took away two moderating elements at the disposition of Roman Catholics: purgatory and the intercession of the mother of God. On her important role, see Jean Delumeau, Rassurer et protéger: Le sentiment de sécurité dans l’Occident d’autrefois (Paris: Fayard, 1989). 73. Comment on this painting by the medievalist Johannes Fried, Das Mittelalter: Geschichte und Kultur (Munich: C. H. Beck, 2008), 471. 74. “No one doubted in the Middle Ages that the vast majority would be eternally damned.” Barbara W. Tuchmann, A Distant Mirror: The Calamitous 14th Century (New York: Knopf, 1978), 34. 75. “.  .  .  qui tam paucos salvat, tam multos damnat.” Latin original in Martin Luther, D. Martin Luthers Werke, vol. 18 (Weimar: H. Böhlau, 1908), 633. English translation: Luther and Erasmus: Free Will and Salvation, ed. E. Gordon Rupp and Philip S. Watson (Philadelphia: Westminster Press, 1969), 138. Comment: Gerhard Ebeling, Luthers Seelsorge: Theologie in der Vielfalt der Lebenssituationen an seinen Briefen dargestellt (Tübingen: Mohr, 1997).

34

chapter t wo

by Roman Catholic theologians and priests who affirm the tradition of the massa perditionis, some of these full of fear and desperation themselves.76 A new high point of Augustinianism had been reached in the seventeenth century with the emergence of the Jansenists, chiefly in France, named after Cornelius Jansen, bishop of Ypres, whose book Augustinus had been published in 1640; the Jesuits became the greatest critics of the Jansenists and Augustinianism. For the first time, it seems, the Italian Jesuit Giuseppe Gravina dared to write a text in 1763, according to which the greater part of humanity will be saved. In 1772, the publication was put on the index of prohibited books.77 Looking back after Vatican II, a great Roman Catholic theologian of the twentieth century, Karl Rahner, has bitterly criticized Augustine: “Augustine has inaugurated a view of world history and taught it to Christianity, in which out of the incomprehensibility of God’s command world history remained the history of the ‘massa damnata,’ from which in the end only few were saved through a rarely granted grace of election.”78 We return from imaginings of the other world and reflections concerning the whole universe to this world. Yet it seems that from the fourteenth to the seventeenth and partly into the eighteenth century this world was populated by demons and witches—­male and female. The belief in the existence of Satan and his servants, the demons, was by no means limited to the fear of hell; this fear also was directed to the misdeeds of Satan and his demons in this world. In 1978 the French historian Jean Delumeau published a work on fear in the Occident from the fourteenth through the eighteenth centuries. He writes: “An unbelievable fear of the devil accompanied the emergence of modernity in Western Europe.”79 And he stresses: “The violent controversies that stained

76. Delumeau, Sin and Fear, 285–­86. (The bishop of Vence, in 1788.) 77. Delumeau, 287. Gravina added to a posthumously (1762) published work of a deceased co-­Jesuit, Benedetto Plazza, entitled Dissertatio anagogica, theologica, paraenetica de paradiso, an introduction and several chapters, and among those a chapter entitled “De Electorum Hominum Numero respectu Hominum Reproborum” (= Pars III, Caput V, 519–­694). This work has been digitalized by Google and is available on the internet. 78. “Augustinus hat eine Betrachtung der Weltgeschichte inauguriert und sie die Christenheit gelehrt, in der aus der Unbegreiflichkeit der Verfügung Gottes heraus die Weltgeschichte die Geschichte der ‘massa damnata’ blieb, aus der letztlich nur wenige durch eine selten gegebene Auserwählungsgnade gerettet wurden.” Karl Rahner, “Die bleibende Bedeutung des II. Vatikanischen Konzils,” in Sämtliche Werke: Beiträge zum Konzil und seiner Interpretation, vol. 21/2, ed. Günther Wassilowsky and Karl Lehmann, vol. 21 (Freiburg im Breisgau: Herder, 2013), 958–­69, here 966–­67. 79. Jean Delumeau, La Peur en Occident (XIVe–­XVIIIe siècles): Une cité assiégée (Paris: Fayard, 1978), 304.

gr a dations

35

Europe with blood in the first centuries of modernity corresponded with the measure of fear of the devil, his agents and his moves felt at that time.”80 In 1580 Jean Bodin, one of the most important political writers of modern times, founder of the notion of sovereignty, published his book De la démonomanie des sorciers. It reached twenty editions in twenty years and was translated in four languages.81 A person with an outstanding intellect such as Bodin was an unconditional believer in demons and witches. It has been shown how this belief is connected with Bodin’s closeness to the neoplatonic and Christianized idea of the “great chain of being,” in which evil is part of the “good” world order created by God. Very similar presentations of this gradate world order, which includes the necessity of evil, are to be found at the conclusion of Bodin’s Six Books of the Commonwealth and at the beginning of De la démonomanie des sorciers.82 The notable significance of “evil” from the middle of the fifteenth century to the middle of the eighteenth century is closely connected with an intensified reception of Augustine in these centuries; they have been called the “Augustinian moment” in European history; one even has spoken of “Augustinian Europe,” prior to and after the breakup of the churches in the sixteenth century.83 A prominent author, Charles Taylor, has referred to a “hyper-­Augustinian position” in post-­Reformation thought, both Roman Catholic and Protestant (notably Calvinist).84 The question may be posed: why “hyper-­Augustinian”? “Augustinian” is sufficient.85 I return to the “servants of evil” in early modernity. Who were Satan’s servants? The title of three chapters in Delumeau’s work on fear in the Occident are frightening: “The agents of Satan I: Idolaters and Muslims. The agents of Satan II: The Jews. The agents of Satan III. Woman.” On the last point, we have the two sayings of Bodin: Woman is “Satan’s arrow,” and she is also the “guardian of hell.”86

80. Delumeau, 331. 81. A modern English translation was published in 1995 in Toronto: Jean Bodin, On the Demon-­Mania of Witches, trans. Randy A. Scott, introduction by Jonathan L. Pearl (Toronto: Centre for Reformation and Renaissance Studies, 1995). Of great interest is the chapter “Bodin’s Political Demonology” in Stuart Clark, Thinking with Demons: The Idea of Witchcraft in Early Modern Europe (Oxford: Oxford University Press, 1997), 668–­82. 82. Clark, 677. 83. Anthony D. Wright, The Counter-­Reformation: Catholic Europe and the Non-­Christian World (Aldershot: Ashgate, 2005), 3–­11, esp. 5 and 6. 84. Charles Taylor, A Secular Age (Cambridge, MA: The Belknap Press of Harvard University Press, 2007), 105; see also 227. 85. Taylor, 231. 86. Delumeau, La Peur en Occident, 433.

36

chapter t wo

Delumeau’s sources are very rich: many facts, in particular those concerning anti-­Judaism and witch-­hunting, are well known. I would only like to emphasize the “pact with the devil,” the allegedly voluntary compact of a person with the devil, the existence of which was regularly extorted by torture from persons accused of sorcery. The compliance of law faculties concerning experts’ reports on the crime of witchcraft, partly lasting until the eighteenth century, is a sordid chapter of the history of law. There exist pertinent reports of the universities of Tübingen and Helmstedt from the years 1713 and 1714; even a decade later Johann Gottlieb Heineccius, professor of law at the university of Halle, proclaimed that the pact with the devil ought to be punished by being burnt alive.87 This was in stark contrast to his colleague Christian Thomasius, who continuously fought against the belief in witches. Yet one should also recall the virtually forgotten memory of a very early fighter against belief in witchcraft, the medical doctor Johann Weyer (1515 or 1516 to 1588), who demonstrated the nullity of pacts with the devil in his work De praestigiis daemonium (On the trickery/deception of demons). The last witch trials took place in 1775 in Kempten (execution suspended), in 1782 in the canton of Glarus, and in 1793 in Poznan/Posen (executions took place).88 Only after the demise of a climate of opinion in which pacts with the devil could be the theme of criminal trials—­the Salem witchcraft trials took place as late as 1692—only with the subsiding of the belief in the division of mankind into the eternally damned and the eternally blessed, in other words, only with the advent of the Enlightenment did a new beginning become imaginable.89 It became imaginable to put into political practice that enlarge87. Georg Schwaiger, “Das Ende der Hexenprozesse im Zeitalter der Aufklärung,” in Teufelsglaube und Hexenprozesse, 4th ed., ed. Georg Schwaiger (Munich: C. H. Beck, 1999), 164–­65. 88. On Weyer, find several contributions in Hartmut Lehmann and Otto Ulbricht, eds., Vom Unfug des Hexen-­Processes: Gegner der Hexenverfolgungen von Johann Weyer bis Friedrich Spee (Wiesbaden: O. Harrassowitz, 1992). See particularly H. C. Erik Midelfort: “Johann Weyer in medizinischer, theologischer und rechtsgeschichtlicher Sicht,” 53–­64. Schwaiger, “Das Ende der Hexenprozesse,” 176–­77. 89. See D. P. Walker, The Decline of Hell: Seventeenth Century Discussions of Eternal Torment (Chicago: University of Chicago Press, 1964). See also the important work by Heinz D. Kittsteiner, Die Entstehung des modernen Gewissens (Frankfurt am Main: Insel-­Verlag, 1991), section on the abolition of hell, 101–­56. Kittsteiner shows how the revival of the Apokatástasis-­teaching of Origenes at the beginning of the eighteenth century was used to refute the teaching on eternal damnation and on the “massa damnata.” A consequence of this latter teaching, the pietist Johann Wilhelm Petersen wrote in 1710, would be that evil, following the teaching of eternal damnation, would be as strong and powerful as good, that it would be even stronger than Christ, because more people would remain condemned than the number of those redeemed by him. Quoted by Kittsteiner, 138, from the work of Johann Wilhelm Petersen, Mystērion apokatástaseōs pántōn

gr a dations

37

ment of human self-­determination that is reflected in the constituent power of the people, in the declarations of human rights and in the processes of constitutional formation as they developed in the American states and later in France. In the half-­century from about 1740 to about 1790, which on the European continent is the age of enlightened despotism, one encounters several events of high symbolic significance, some documenting the continuance of the ancien régime, others announcing the birth of things to come. To the former group belong two notable executions in France: in 1757 there was the execution of Robert Damiens for his attempted assassination of Louis XV, which in its cruelty corresponded to the execution of the murderer of Henri IV, Ravaillac, and which has become known around the world through the account given by Michel Foucault.90 Five years later, in 1762, the continuously strong confessional conflict led to the execution of the Protestant Jean Calas in Toulouse, which, however, became the motive for Voltaire’s Treatise on Tolerance of 1763, a classic writing of the Enlightenment.91 And “new things” had begun earlier. In 1740 Frederick II of Prussia had abolished torture, though initially with some exceptions. Two important writings against torture appeared in 1764 and 1775: Cesare Beccaria’s Dei delitti e delle pene (On crimes and punishments) and On the Abolition of Torture by the Austrian Josef von Sonnenfels. One year later, 1776, torture in Austria was abolished; in France, its abolition took place in two steps, in 1780 and 1788.92 The diffusion of confessional discriminations is noticeable in the 1780s, in Austria (decrees of Joseph II for Protestant and Orthodox Christians in 1781 and for Jews in 1782) and in France (edicts of Louis XVI in 1787 for Protestants and Jews, not carried out for Jews in Lorraine and Alsace). Yet the real shattering of the age of gradations and the breakthrough to political-­legal modernity took place with the American and French Revolutions in 1776 and 1789.

(Offenbach, 1700–­1710), vol. 3, 211. In the Netherlands the reformed minister Balthasar Bekker led a passionate struggle against belief in hell, against great resistance, in his book Betoverde wereld (trans. The World Bewitched, 1695) of 1693. See Jonathan Israel, The Dutch Republic: Its Rise, Greatness, and Fall 1477–­1806 (Oxford: Clarendon Press, 1995), 925–­31. 90. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979), 3–­6. 91. Lynn Hunt, Inventing Human Rights: A History (New York: W. W. Norton & Co., 2007), 70–­75. 92. On Beccaria and the abolition of torture, see Joas, The Sacredness of the Person, 39–­48.

3

Equalizations: Ways toward Modern Isonomy in America and in France

The dawn of the political-­legal modern age, the dawn of what I consider the path toward isonomy, may be marked symbolically by two rhetorically compelling and enormously successful texts: in North America, Common Sense by Thomas Paine, published in 1776, and in France, Qu’est-­ce que le Tiers État? by Emmanuel Sieyes, in 1789. Both appeared at the start of those two country’s respective revolutions. Paine emphasizes the call for independence as well as a “continental” and republican constitution, painting a glorious picture of a constitutional proclamation. The constitution—“charter”—should be put on the Bible, the word of God. Both it and the Bible should be crowned, so the world would know “in America, the LAW IS KING.”1 In France, still under the rule of a monarchy ordered according to three estates, Sieyes proclaims the sovereignty of the nation, the latter being represented by the third estate. “What is the Third Estate?” Sieyes asks, and replies: “Nothing. What should it become? Everything.”2 In America as well as in France, there were two central topics at the opening of the modern political age:

1. Thomas Paine (1776) quoted from Thomas Paine, Thomas Paine: Representative Selections, with Introduction, Bibliography, and Notes, ed. Harry Hayden Clark (New York: American Book Co., 1944), 3–­44, esp. 32–­33. Here one reads the stirring sentences: “Freedom hath been hunted round the globe. Asia and Africa have long expelled her. Europe regards her like a stranger, and England hath given her warning to depart. O receive the fugitive, and prepare in time an asylum for mankind” (Paine, 34). 2. Emmanuel Sieyes, Qu’est-­ce que le Tiers État?, critical ed., ed. Roberto Zapperi (Geneva: Droz, [1789] 1970). It is (more) correct to spell the name Sieyes without an accent. Albert Mathiez, “L’orthographe du nom de Sieyes,” Annales historiques de la Révolution française 2 (1925): 87.

e qua l i z at ions

39

First: the constituent power of the people, le pouvoir constituant of the nation.3 And second: human and civil rights. The main topic of discussion in America in the years following 1776—besides the war—was a republican constitution. This discourse was reinforced, on the one hand, by the novelty of the idea of a large republic and, on the other, by the many new constitutions that had been instituted between 1776 and 1788 in individual states, in fact, in eleven of the thirteen.4 This finally led to the Federal Constitution of 1787/88, with its extensive ratification debates. In one of the lectures on history held by Leopold von Ranke for King Maximilian II of Bavaria in 1854, Ranke described the innovation of what had happened in North America in the following words: Because the North Americans, breaking away from the constitutional principle valid in England, created a new republic based on the individual rights of every single person [jedes einzelnen], a new power entered the world, since ideas spread most quickly when they are specifically represented in a manner appropriate to them. Thus the republican tendency was introduced to this Roman-­Germanic world.5

The situation in France, with its different religious circumstances, was more emotional. Here the breakthrough of the nation’s sovereignty initially led “merely” to the absolute monarchy being transformed into a constitutional one, which was superseded only in 1792 by the increasingly radicalized Republic, a radicalization that was to escalate to the king’s execution.6 Several years ago and again in his more recent book on the eighteenth century, Wolfgang Schmale examined various tendencies toward secularization in prerevolutionary eighteenth-­century France.7 He showed how a shift toward 3. The “constituent power of the people” is the main topic of the still important volumes by Robert R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America 1760–­1800 (Princeton, NJ: Princeton University Press, 1959–­1964), vol. 1, The Challenge, and vol. 2, The Struggle. 4. On this, see Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, trans. Rita and Robert Kimber, with a foreword by Richard B. Morris, expanded edition (Lanham, MD: Rowman & Littlefield, 2001). The book first appeared in German in 1973 under the title Republikanische Verfassung und bürgerliche Freiheit. 5. Leopold von Ranke, Über die Epochen der neueren Geschichte: Vorträge dem Könige Maximilian II. von Bayern gehalten, ed. Theodor Schieder and Helmut Berding (Munich: Oldenbourg, 1971), 415 (19th lecture of October 13, 1854; my emphasis). 6. See Jonathan Israel, Revolutionary Ideas: An Intellectual History of the French Revolution from the Rights of Man to Robespierre (Princeton, NJ: Princeton University Press, 2014). 7. Wolfgang Schmale, Entchristianisierung, Revolution und Verfassung: Zur Mentalitäts­ geschichte der Verfassung in Frankreich, 1715–­1794 (Berlin: Duncker & Humblot, 1988).

40

chapter three

the “search for existential security and a worldly way of life” progressively took place and how, in particular, the pursuit of a “constitution” increasingly became the focus of publications, discussions, wishes, hopes and demands. It was a movement that by 1789 had led to a true “constitutional fever”—a contemporary expression. As Schmale describes it, a “sacralization” of the constitutional discourse took place on the occasion of the civil constitution of the clergy of 1790/91 and, especially, during the de-­Christianization of the years 1793/94.8 Nevertheless, it must not be forgotten that there were Christian and even clerical revolutionaries, such as Abbé Henri Grégoire, a passionate proponent of the emancipation of Jews and the liberation of slaves. Less well-­known is Claude Fauchet, who, five days after the acceptance of the Declaration of Human and Civil Rights, preached that God, through Jesus Christ, was a fellow citizen of humanity! On another occasion, he stated that Jesus Christ died for the democracy of the world and that it was the aristocracy who crucified the Son of God. Fauchet, for a short time the constitutional Bishop of Calvados, died on the scaffold in 1793.9 When looking at the background of the North American and French declarations of rights, the following should be considered.10 North America had inherited the tradition of the Rights of Englishmen from the British motherland. Although these rights were not based, as the myth would have it, on the Magna Carta of 1215, which was de facto intended for the aristocracy, in the seventeenth century the House of Commons repeatedly became spokesman for the Rights of Englishmen during its disputes with the Crown, for instance with the “Petition of Right” of 1628. Various writers of the mid-­seventeenth century also emphasized these rights. I would like to single out Edward Chamberlayne, who in his book Angliae notitia, published in 1669, enumerated the eight “hereditary fundamental Liberties and Properties” of the Commons of England—the wording still reflects an estates-­based system. In the eighteenth century, the status of the “Commons” had become so strong that in 1765, the country’s best-­known lawyer, William Blackstone, 8. Wolfgang Schmale, “Die Suche nach dem anderen Gott,” chap. 5, in Das 18. Jahrhundert (Vienna: Böhlau, 2012), 241–­88, esp. 276–­88. See also the earlier work by Schmale, Archäologie der Grund-­und Menschenrechte in der Frühen Neuzeit. 9. Quoted in Karl Dietrich Erdmann, Volkssouveränität und Kirche: Studien über das Verhältnis von Staat und Religion in Frankreich vom Zusammentritt der Generalstände bis zum Schisma, 5. Mai 1789–­13. April 1791 (Cologne: Kölner Universitätsverlag, 1949), 188. 10. See also Gerald Stourzh, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century” (1988), as well as “Liberal Democracy as a Culture of Rights: England, the United States and Continental Europe” (2000), both republished in Stourzh, From Vienna to Chicago and Back, 80–­99, 304–­34.

e qua l i z at ions

41

was able to open the first volume of his Commentaries on the Laws of England with the chapter “Of the absolute Rights of Individuals,” even before the chapters on the parliament and the king. It has been documented that Blackstone was widely read in America.11 In America itself, a few catalogs of rights were created during the colonial period. Particularly impressive were the Fundamental Laws of 1677 in the colony of West New Jersey.12 And just prior to the break from the motherland, in 1774, the Americans formulated a Declaration of Rights that deliberately followed the 1689 English Bill of Rights—officially a “Declaration of Rights.” For the longest time, the Americans had argued that they held the Rights of Englishmen. The leap to natural law took place late and for quite pragmatic reasons. With the decision to become independent, it was no longer possible to be subject to the rights of the English. And the Americans were quite familiar with various philosophers of natural law, including not only John Locke, but also others, such as Emmerich de Vattel and Jean Jacques Burlamaqui. The declarations of rights established after the break with England, the first of which passed in Virginia on June 12, 1776, contained preambles containing natural rights followed by numerous rights that the Americans had long held or claimed for themselves as English rights. In many cases these declarations codified already existing rights, now mainly at the new level of higher-­ranking constitutions (the Declaration and Constitution in Virginia had still been adopted at the level of ordinary law). Things were different in France. A declaration of the rights of the third estate was never made. Those rights that were claimed were in the form of protests against royal absolutism; they were firmly rooted in the system of “gradations,” of orders or estates. As late as March 1776, the Parlement de Paris declared: Any system which, under a seeming humanity and beneficence, would tend, in a well-­ordered kingdom, to establish between men an equality of duties and to destroy these necessary distinctions would soon bring about disorder, the inevitable consequence of absolute equality, and accomplish the overthrow of civil society, the harmony of which is maintained only through this gradation of powers, authorities, preeminences, and distinctions which keeps everyone in his place and safeguards all estates against confusion.13 11. On Blackstone, see Gerald Stourzh: “William Blackstone, Teacher of Revolution” (1965), republished in Stourzh, From Vienna to Chicago and Back, 60–­79. 12. Julian Boyd rightly described this document as the “first expression of fundamental law in the sense of the constitutions adopted by the American states a century later.” Julian Boyd, ed., Fundamental Laws and Constitutions of New Jersey, 1664–­1964 (Princeton, NJ: Van Nostrand, 1964), 13. 13. Cited in Roland Mousnier, The Institutions of France under the Absolute Monarchy, 1598–­ 1789, vol. 1, trans. Brian Pearce (Chicago: University of Chicago Press, 1979), 37–­38 (emphasis in Mousnier). See also Palmer, The Age of the Democratic Revolution, vol. 1, 451.

42

chapter three

On the other hand, various political thinkers of early modern times, the most important of them being Hugo Grotius and Thomas Hobbes, took the principle of human equality as foundation of a theory of natural law, though their theories led by no means to democracy.14 An important and symbolic turning point away from a God-­centered worldview occurred in 1625 when Grotius—­who was a good Christian—­wrote that even if (etiamsi) we grant that there is no God—­he added “what without the greatest Wickedness cannot be granted”—­these laws of nature exist.15 Widespread in the Enlightenment decades before 1789 was the idea of a general, albeit rather abstract “equality,” especially among Freemasons, and notably among radical enlightenment writers inspired by Spinoza’s idea of popular sovereignty, such as Paul-­Henri d’Holbach.16 The relevance of the topic to the situation of the time was made clear in 1755 with Jean-­Jacques Rousseau’s Discourse on the Origin and Foundations of Human Inequality.17 Following 1776, however, the declarations of rights passed by the individual American states between 1776 and 1780 also played a role in France, with French translations appearing already from 1777 onward. The most important collection was the 1783 publication Constitutions des Treize États de l’Amérique, compiled by Benjamin Franklin and the Duc de la Rochefoucauld-­ d’Enville; it was based on an official collection published in 1781 in Philadelphia on behalf of the Congress of the United States. Comparisons between the American documents and France’s 1789 Declaration of the Rights of the Man and of the Citizen also appeared early. Without going into the famous 14. The literature is huge. A detailed account of developments from the sixteenth to the eighteenth centuries has recently been presented by Dan Edelstein, On the Spirit of Rights (Chicago: University of Chicago Press, 2019). Edelstein neglects, however, the significance of the gradated system of orders. 15. Hugo Grotius, The Rights of War and Peace: Book I, ed. Richard Tuck (from the edition by Jean Barbeyrac, 1738) (Indianapolis: Liberty Fund, 2005), § 11, 10. See also the introduction by R. Tuck in Grotius, Rights of War and Peace, xxiv. Also Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 76. See also Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010), 73–­74, citation on p. 74 of Grotius, De jure belli ac pacis. 16. See Artur Greive, “Die Entstehung der französischen Revolutionsparole ‘Liberté, Égalité, Fraternité,’ ” Deutsche Vierteljahresschrift für Literaturwissenschaft und Geistesgeschichte 43 (1969): 726–­51. See also Jonathan Israel, Democratic Enlightenment: Philosophy, Revolution, and Human Rights, 1750–­1790 (Oxford: Oxford University Press, 2011). Israel’s interpretation, strongly influenced by Spinoza’s teaching of the sovereignty of the people and its effects, has been criticized. See especially the four critical reviews (including one by Keith Baker) and Israel’s response, available online: H-­France Forum 9, no. 1 (2014), no. 1–­5. 17. Rousseau, Discourse on the Origin of Inequality, see above, chap. 1, note 17.

e qua l i z at ions

43

early twentieth-­century controversy between Georg Jellinek, who saw the American texts as having influenced the French, and Emile Boutmy, who vigorously opposed this idea, I would like to emphasize two points. First, there are several formal similarities between the Virginia Declaration and the French Declaration.18 But, second, there is a very important difference between them that must be pointed out. While the American declarations, as mentioned before, established already existing rights, the French Declaration—in a moment of a complete break with the past and looking only to the future—gave orders to the legislature. It is striking how often the French declaration announces what la loi, the law, will regulate as an expression of the volonté générale (article 6). Not less than seven articles—numbers 4, 5, 7, 8, 9, 10, and 11—contain such regulations. The future superiority of the legislature—also in the face of the constitution, and that well into the mid-­twentieth century—is already laid out here. That is why a constitutional court was long rejected in France. The introduction of the Constitutional Council (Conseil constitutionnel) in the constitution of 1958 was a first, rather hesitant, attempt to curb the legislature’s superiority over the constitution. Further developments, much more recent, will be discussed below. “Democracy” is not the keyword of the period between the 1770s and the 1790s, although it did play a larger role in America than in France. As already mentioned, it was in America that the notion of representative democracy was shaped. Philip Mazzei, an Italian friend of Jefferson’s who had come to Virginia in 1773, may have been the first to speak of “representative democracy” around 1774 or 1775.19 Alexander Hamilton used this word in 1777 regarding the state of New York and then again in 1788 in a detailed model of systems of government when preparing a speech for the Federal Constitution’s ratification convention in New York.20 Unlike Hamilton, James 18. This has been pointed out in particular by Palmer, The Age of the Democratic Revolution, vol. 1, Appendix IV, 518–­21. 19. Philip (Filippo) Mazzei apparently spoke of “representative democracy” in an article in the Williamsburg Virginia Gazette in the winter of 1774/75. The original article does not seem to be extant. It was republished in Italian by Mazzei and has been retranslated into English by Howard Marraro. “Philip Mazzei on American Political, Social and Economic Problems, edited and translated by Howard R. Marraro,” Journal of Southern History 15 (1949): 354–­78. In an article on democracy (exact title unknown), Mazzei says: “Democracy, I mean representative democracy, which embraces all individuals in one simple body, without any distinction whatsoever, is certainly the only form of government under which true and enduring liberty may be enjoyed.” Quote on 357. 20. “But a representative democracy, where the right of election is well secured and regulated & the exercise of the legislative, executive and judiciary authority is vested in select persons, chosen really and not nominally by the people, will in my opinion be most likely to be

44

chapter three

Madison, in the famous tenth essay in the collection of articles published as The Federalist, distinguished sharply between (direct) democracy, which he calls “pure democracy,” and a “representative republic.” Indeed, for Madison, the very definition of a republic was “a government in which the scheme of representation takes place.”21 Madison’s distinction remained an isolated idea. Jefferson, like his great adversary Hamilton, explicitly spoke of “this new principle of representative democracy.”22 In France, Emmanuel Sieyes wrote already in the 1770s about a “gou­ vernement par procuration,” which he also expressly described as “représentatif,” and later repeatedly emphasized the representative character of the first French revolutionary constitution.23 But this constitution still had a monarchy component. Thomas Paine argued against Sieyes and, still before the fall of the monarchy, advocated a republican representative democracy in part II of his famous work The Rights of Man (February 1792).24 Yet the primary catchword in revolutionary France after the fall of the monarchy was republic, not democracy. But by the 1830s, Alexis de Tocqueville had already used the word “democracy” to describe modern Western society as it was beginning to emerge, still ahead of Europe, in North America. The transformation of the concept of democracy from a political phenomenon to a social one was already apparent in France in the 1820s, where, despite the monarchy and an extremely happy, regular and durable.” Letter to Governor Morris, May 19, 1777, in Alexander Hamilton, The Papers of Alexander Hamilton, ed. Harold C. Syrett, vol. 1 (New York: Columbia University Press, 1961), 255. Stourzh, Alexander Hamilton and the Idea of Republican Government, 49, 223 n. 36. The full text of Hamilton’s notes from July 1788 can be found in vol. 5, 149–­51, of The Papers of Alexander Hamilton. 21. Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (Cleveland: World Publishing Co., [1788] 1961), 61–­62. 22. Jefferson in a letter to Isaac H. Tiffany, August 26, 1816, quoted in The Political Writings of Thomas Jefferson, ed. Edward Dumbauld (New York: Liberal Arts Press, 1955), 87. The Federalist, No. 63, states: “The difference most relied on between the American and other republics, consists in the principle of representation, which is the pivot on which the former move, and which is supposed to be unknown to the latter, or at least to the ancient parts of them.” “American republics” refers, of course, to the States of the United States. Hamilton, Madison, and Jay, The Federalist, ed. Jacob Cooke, no. 63, 427. Editors hesitate between Madison’s or Hamilton’s authorship; I and some other scholars opt for Hamilton. 23. On this, see Hasso Hofmann, Repräsentation: Studien zur Wort-­und Begriffsgeschichte von der Antike bis ins 19. Jahrhundert, 4th ed. (Berlin: Duncker & Humblot, 2003), 406–­9, as well as Pasquale Pasquino, Sieyes et l’invention de la Constitution en France (Paris: O. Jacob, 1998), 35–­52; “gouvernement par procuration” (Pasquino, 163). 24. See also Robert Lamb, Thomas Paine and the Idea of Human Rights (Cambridge: Cambridge University Press, 2015), 75–­89.

e qua l i z at ions

45

limited suffrage, egalitarian features of the civil law—­after the fall of the society of orders codified in the Code civil (Code Napoléon) of 1804—­had begun to play a role—albeit with some major exceptions. In particular these exceptions included the inferior status of married women and domestic servants, as well as that of wage laborers. In the Code Napoléon the employer had a better position than the employee. In wage disputes, it was the affidavit of the master—and not the person paid by him—regarding wages, amounts paid, and advances that was to be believed (Article 1781 of the Code civil). It was not until 1868 that this article was legally repealed as an infringement of equality.25 Regardless of these exceptions, in 1822 Pierre-­Paul Royer-­Collard, a liberal member of the Doctrinaires group, declared that “democracy was a social fact.” He continued that “equality of rights (which represents the verity of democracy)” had prevailed. “Guaranteed by the Charter, it is today the universal form of society, and thus it is everywhere.” Democracy, as Pierre Rosanvallon has concluded—­and who has analyzed the developments in the years between 1820 and 1830—­therefore “cannot be regarded as ‘a political regime,’ but a type of society.”26 The French historian François Furet has shown that Tocqueville basically defined democracy as “civil equality.”27 Here an important consideration is needed. Individualism, which Tocque­ ville explicitly referred to as a result of democracy, is Janus-­faced. Tocqueville states, on one hand, that democracy greatly increases the number of people with whom one can sympathize. He once noted that sympathy is a democratic word; real sympathy is something one only feels for those who are similar or alike.28 It is from this that a sense of commonality can be felt among citizens participating in a democracy. Democratic political ideas, as developed in the last decades of the twentieth century as “republican” constitutional theory or even “communitarian” political theory, do comply with this kind of 25. “Le maître est cru sur son affirmation . . . ,” March 29, 2004, Institut Supérieur du Travail, accessed December 22, 2013, https://www.istravail.com/actualites-­etudes/les-­etudes-­sociales-­et -­syndicales/10186-­le-­maitre-­est-­cru-­sur-­son.html. 26. Pierre Rosanvallon, La démocratie inachevée: Histoire de la souveraineté du peuple en France (Paris: Gallimard, 2000), 117–­21, here 117. Rosanvallon also refers to Tocqueville’s hesitations when he makes use of the word “democracy.” 27. François Furet, “Tocqueville et le problème de la Révolution française,” in his volume Penser la Révolution française (Paris: Gallimard, 1978), 190. See also Gerald Stourzh, “Tocque­ ville’s Understanding of ‘Conditions of Equality’ and ‘Conditions of Inequality’ ” (2006), republished in Stourzh, From Vienna to Chicago and Back, 355–­56. See, above all, Tocqueville, “How Mores Become Milder as Conditions Are Equalized,” chap. 1 in Democracy II, pt. 3: 535–­39. On the theme of this paragraph, see Lucien Jaume, Tocqueville: Les sources aristocratiques de la li­ berté; Biographie intellectuelle (Paris: Fayard, 2008), 28–­29. 28. Tocqueville, Democracy II, pt. 3, chap. 1, 536.

46

chapter three

democratic sense of community.29 On the other hand, however, Tocqueville noticed that individualism drives people into a certain type of isolation; it makes them more self-­involved. Moreover, while in a democracy people have “destroyed the annoying privileges of some of those like them; they come up against the competition of all.” Tocqueville continues: “However democratic the social state and political constitution of a people may be,” it is certain “that each of its citizens will always perceive near to him several positions in which he is dominated, and one can foresee that he will obstinately keep looking at this side alone.”30 Tocqueville thus not only developed in a few sentences a theory of envy, which is sometimes referred to as a characteristic feature of democracy, he also opened the—psychological—door to an understanding of the competitive struggles of capitalism. The ambivalence between opposite tendencies of individualism in modern democracy—­the tendency of community-­building on the one hand and the tendency toward individual competition on the other—­has not been resolved by Tocqueville. Although Tocqueville saw individualism as emerging from democracy, he was well aware that the message of Christianity was important for the concept of human equality. He indignantly opposed the racist ideas of Arthur de Gobineau, whom he knew personally. “Christianity, which has rendered all men equal before God, will not be loath to see all citizens equal before the law.”31 The great project of Tocqueville, it rightly has been said, was to unite, in France, “religion and the values of 1789.”32

29. One must mention the American Frank Michelman, whose writings influenced Habermas. See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996), 267–­86. Among others, the texts by Charles Taylor or Michael Walzer should be mentioned. See Habermas, Between Facts and Norms, 498–­99 (Taylor), 513 (Walzer). 30. Tocqueville, “Why the Americans Show Themselves So Restive in the Midst of Their Well-­Being,” chap. 13 in Democracy II, pt. 2: 511–­14, here 513. 31. Tocqueville, “Introduction,” in Democracy I, 11. On Tocqueville and Christianity, see also Stourzh, “Tocqueville’s Understanding,” in From Vienna to Chicago and Back, 348–­49. 32. Jean Claude Lamberti, “Notice” on vol. 1 of Democracy in America, in Oeuvres, Alexis de Tocqueville, vol. 2 (Paris: Gallimard, 1992), 909.

4

Democracy with Adjectives

The spread of universal, equal suffrage for men in the second half of the nineteenth century and its general implementation in the first decades of the twentieth century, including secret ballots, at least in Europe and America, was followed by the introduction of women’s suffrage. Already in the nineteenth century there were examples of women’s suffrage in Austria, both at the local level and in some of the crown lands in the Austrian parts of the Habsburg Monarchy. This was linked to ownership of landed property or, in rare cases, levels of education.1 Women’s suffrage was also introduced on Pitcairn Island in 1838 and in New Zealand in 1893. At the national level, electoral rights for women in Western countries were mainly introduced in the first half of the twentieth century (with a few exceptions, such as Switzerland in 1971 and Liechtenstein in 1984).2 In many countries in Asia and Africa, suffrage for both men and women was simultaneously introduced only after independence was attained in the wake of decolonization from 1947, often only in the 1960s. The collapse of the great monarchies at the end of the World War I and above all, the collapse of Fascism and Nazism in 1945 led, with few exceptions, 1. Birgitta Bader-­Zaar, “Rethinking Women’s Suffrage in the Nineteenth Century: Local Government and Entanglements of Property and Gender in the Austrian Half of the Habsburg Monarchy, Sweden and the United Kingdom,” in Constitutionalism, Legitimacy, and Power: Nineteenth-­Century Experiences, ed. Kelly L. Grotke and Markus J. Prutsch (Oxford: Oxford University Press, 2014), 107–­26. 2. At the cantonal level in Switzerland, Appenzell-­Innerrhoden was the last canton to introduce women’s suffrage, as late as 1990; the local parliament had rejected women’s suffrage early in 1990, but by judgment of the Swiss Supreme Court (Bundesgericht), it was introduced later in that year.

48

chapter four

to the worldwide recognition of democracy as the only truly legitimate form of government. The efforts of very different political systems to invoke the legitimacy of “popular rule” became so strong in the twentieth century that even regimes bearing a clear dictatorial character called themselves democracies. The Fascist philosopher Giovanni Gentile wrote in 1927 that the Fascist state is “a people’s state and, as such, the democratic state par excellence.”3 In October 1933, Joseph Goebbels described the Nazi system that had come into power as a “refined democracy.”4 And the countries of Eastern and Southeastern Europe that were subjected to communism after World War II were known as “people’s democracies.” Falsifications, however, must not lead us to lose sight of the meaningful and essential elements of democracy to be discussed in the ensuing pages. Very different kinds of political systems have been designated or self-­ designated as democracies.5 This has contributed to those democracies first developed in Western Europe and North America being given narrower definitions.6 The expression “Western democracy” flourished especially during the Cold War; after 1989–­91 and the end of communist rule in the East, it faded from use. It is an expression that is again gaining in relevance, at least in German-­speaking countries, due to the strong emphasis that the German historian Heinrich August Winkler has given to the history of the West and its “normative project.”7 Efforts to link democracy, as the “rule of the people,” to other important modern developments have regularly led to “democracy” being given other supplementary attributes. “Liberal” democracy is arguably the most common characterization, prevalent especially in the Anglo-­American

3. From an article in Foreign Affairs, quoted in Jan-­Werner Müller, Contesting Democracy: Political Ideas in Twentieth-­Century Europe (New Haven, CT: Yale University Press, 2011), 180. Giovanni Gentile, “The Philosophic Basis of Fascism,” Foreign Affairs 6 (1927/28): 290‒304, here 301. 4. At a press conference in Geneva on September 28, 1933. Various sources available online. 5. The Marxist-­leaning Canadian political scientist C. B. Macpherson has distinguished between three types of democracy: liberal democracy, nonliberal democracy (the communist variant), and nonliberal democracy (the variant in underdeveloped countries). C. B. Macpherson, The Real World of Democracy (Oxford: Clarendon Press, 1966). 6. Pierre Rosanvallon has noted: “There is scarcely another word in political usage whose practical definition is subject to a greater number of variations. Hence the continual tendency to prop it up with some adjective or other.” Rosanvallon, “The History of the Word ‘Democracy’ in France,” Journal of Democracy 6, no. 4 (1995): 153. 7. Heinrich August Winkler, Geschichte des Westens (Munich: C. H. Beck, 2009–­2015), vol. 1 (2009): Von den Anfängen in der Antike bis zum 20. Jahrhundert; vol. 2 (2011): Die Zeit der Weltkriege 1914–­1945; vol. 3 (2014): Vom Kalten Krieg zum Mauerfall; vol. 4 (2015): Die Zeit der Gegenwart. On the “normative project of the West” see vol. 1, 13, 21–­24, as well as vol. 4, 579–­611.

democr acy w ith a djectives

49

world.8 But “liberal” is an ambiguous word that lends itself to various interpretations. In an interesting work published in 2003, The Future of Freedom, “liberal” democracy is juxtaposed with “illiberal democracy.” The author, Fareed Zakaria, describes popular autocrats who rule their country by combining elections with authoritarianism, taking the examples of the development from Yeltsin to Putin in Russia or from Chávez to Maduro in Venezuela. Elections combined with an authoritarian government—sometimes with the approval of several parties and candidates, in other cases with elections being mere rituals of confirmation—have become quite common.9 This pattern, which started in Russia but now extends to countries in Asia, Africa, and some parts of Latin America, has in many cases the assent of a majority of the population. It is uncertain what epithet to use or what prerequisites are needed in order to consider these “hybrid regimes” as democracies. One suggestion is “defective democracies,” but there might be other, more appropriate expressions, like “electoral autocracy,” an expression suggested by the former Hungarian foreign minister Kinga Göncz.10 The expression “illiberal democracy” has become particularly significant since 2014: Hungarian Prime Minister Viktor Orbán, in a July 2014 speech to Hungarians living in Romania, explicitly stated that he believed in “illiberal democracy” as opposed to “liberal” democracy, adding however that the term is not incompatible with the “idea of freedom.”11 Often, and rightly so, liberal democracy is considered “pluralist” democracy, which allows for a large number of beliefs, parties, as well as minorities.12 Liberal democracy has also been seen as closely connected to the economic system of capitalism—and the closely related political theory of “possessive individualism.”13 Caution should be exercised here, however, since capitalist 8. This is also discussed in Jan-­Werner Müller’s volume Contesting Democracy; see above, note 3. 9. See the recent book by Steven Levitsky and Daniel Ziblatt, How Democracies Die (London: Viking, 2018), 2–­8, 188. 10. On “defective democracy” see Wolfgang Merkel et al., Defekte Demokratie, vol. 1: Theorie (Opladen: Leske + Budrich, 2003), there on illiberal democracy 261–­76. Göncz’s remark as reported by the Vienna newspaper Der Standard, February 15, 2016, 4. 11. Speech on July 26, 2014, at the 25th summer university in Băile Tuşnad (Tusnádfürdő), Romania. Complete English translation available on the online site of the Budapest Beacon, https://budapestbeacon.com/full-­text-­of-­viktor-­orbans-­speech-­at-­baile-­tusnad-­tusnadfurdo -­of-­26-­july-­2014/ (accessed on May 20, 2018). 12. One of the most impressive arguments for a pluralistic political system is James Madison’s essay No. 10 in The Federalist. 13. The expression “possessive individualism” was coined by C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962).

50

chapter four

economic systems have also functioned in nondemocratic political systems, such as under Nazism14 or now in China. On the other hand, especially in Europe from the second half of the twentieth century until the present, using the keyword “social market economy,” it has been demonstrated that liberal democracy is compatible with sociopolitical legislation, including redistributive tax policies and public services.15 In addition, liberal democracy addresses the special status of the free individual in the modern (Western) social order.16 The liberal and pluralist view of democracy is in stark contrast to the interpretation of democracy going back to Jean-­Jacques Rousseau, which is based on the uniformity or unity of the volonté générale, the people’s will. In principle, this postulates the unity of the sovereign (legislative) and magistrate (executive) powers of the people and thus rejects the idea of representation. Moreover, Rousseau—and after him, Sieyes—bases his ideas on the nation’s or the people’s completely autonomous free will, a free will that is not subject to any restraints (as, for example, prepositive individual rights).17 In the 1920s, the traditional “Rousseauist” line had a deep influence on two scholars of opposite political views, Carl Schmitt and Gerhard Leibholz. In the 1970s it found a strong echo in the concept of “identitarian” democracy.18 One of the early and major critics of this line was the Swiss scholar Werner Kägi, who spoke expressly of a “decisionist-­totalitarian view of democracy” and advanced the “democratic state under the rule of law” as the “standard for legal thinking.”19 Rousseau’s theory of volonté générale and democracy has also been attacked in strong words by a supporter of “liberal” democracy, Jacob Talmon, who has described it as “totalitarian democracy.”20 14. On this, see Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, new ed. with an introduction by Jens Meierhenrich, trans. E. A. Shils et al. (1st English ed. 1941; Oxford: Oxford University Press, 2017). 15. See Peter Pulzer, Experiencing the Twentieth Century (New York: The New School for Social Research, 2011), 27. 16. Pulzer, 28. 17. See Werner Kägi, “Rechtsstaat und Demokratie (Antinomie und Synthese),” in Demokratie und Rechtsstaat: Festgabe zum 60. Geburtstag von Zaccaria Giacometti, ed. Max Imboden (Zürich: Polygraphischer Verlag, 1953), 107–­42. 18. On the contrast between the teachings of representative democracy, on the one hand, and identity-­oriented democracy on the other, see Wolfgang Mantl, Repräsentation und Identität: Demokratie im Konflikt; Ein Beitrag zur modernen Staatsformenlehre (Vienna: Springer-­ Verlag, 1975), on Schmitt, esp. 121–­49, on Leibholz, esp. 149–­88; on the renaissance of identitarian concepts in the 1960s and 1970s, 202–­21. 19. Kägi, “Rechtsstaat und Demokratie,” 108, 141. 20. J. L. Talmon, The Origins of Totalitarian Democracy (London: Secker & Warburg, 1952), esp. chap. 3.

democr acy w ith a djectives

51

As influential as the “identitarian” idea of democracy has been, or may still be, I cannot accept it either. Carl Schmitt defined democracy as follows: “As a state form as well as a governmental or legislative form, democracy is the identity of ruler and ruled, governing and governed, commander and follower.”21 But this alleged identity has never existed in reality, nor can it exist in reality. Children are not allowed to vote due to their age (voting age has fluctuated, and still fluctuates, from about 24 down to the age of 16). Persons subject to legal custody are never rulers, they are always ruled. The voting rights of prisoners are regulated in very different ways and are constantly a subject of controversy. And to this one must add, in an age of huge migration flows, that there are large numbers of foreigners legally resident in countries who have no voting rights. Historically seen, there have been still other demarcations between the rulers and the ruled in (at least so-­called) democracies. One thinks of colonial rule, such as that of France (general male suffrage since 1848), but also of other states in the century between 1860 and 1960. The fact that during the nineteenth century the development of equal rights took place within the framework of “citizens’ rights” facilitated the distinction between “citizen” and “subject” and thus the colonial rule over indigenous “subjects.” The most unabashed depiction of the limitations of democracy was that of Hans Kelsen: “Who belongs to the people? . . . In most democracies, by excluding children, the mentally ill, criminals, foreigners, women, slaves—all or only some of these categories, depending on how the world and life are seen—from political rights, one limits the ‘people’ in the political sense to a relatively small part of the masses who ethnographically must be addressed as the people.”22 “We, the People . . .” are the proud first words in the preamble to the Federal Constitution of the United States of 1787/88. But if one bears in mind that those who regarded themselves the “people” of the United States were merely the voting citizens in the United States, it must be viewed much more critically. Far less than half of the people residing in the country—and only the adults—were allowed to vote. Excluded from the “people” were all women, all slaves and people of color, all of the original American peoples, as well as the large numbers of European immigrants who were not yet naturalized. In 1788, in the slave state of Virginia, John Marshall, later Chief Justice of the Supreme Court of the United States, described the United States as a 21. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer, with a foreword by Ellen Kennedy (Durham, NC: Duke University Press, 2008), 264. 22. Hans Kelsen, Vom Wesen und Wert der Demokratie, 1st ed. (Tübingen: J. C. B. Mohr, 1920), 31–­32.

52

chapter four

“well-­regulated democracy.”23 The time-­honored description of democracy as government “with consent of the people” should be carefully examined as to whether that consent is an active or a passive one. Following a tradition that had been handed down from ancient times, democracy was used to describe regimes in which the majority of the population, made up especially of slaves and women, and after the abolition of slavery, mainly the female part of the population, did not have the right to vote. As early as 1791, the Frenchwoman Olympe de Gouges, a passionate advocate of women’s rights, wrote that a constitution is null and void if the majority of individuals forming the nation had not participated in its composition.24 I thus suggest calling such regimes—and this means prior to the introduction of women’s suffrage, also the Western European and the North American states—partial democracies. Recent critical studies on the development of democracy have added still other new adjectives to the word “democracy.” “Deliberative democracy” is the term Jürgen Habermas has adopted based on American democratic debates, an expression that has led to extensive discussion.25 I find that the notion of deliberative democracy, being rational and essentially consensus-­ oriented, underestimates the antagonistic element in the competitive struggle for a majority in the democratic confrontation. The competitive and confrontational aspect is the focus of Joseph Schumpeter’s theory of democracy.26 It should also be critically noted that the idea of weighty “deliberative” discussions among citizens and in assemblies, separate from the political parties—thus creating a sort of “double representation”—has the disadvantage of being “subordinate” to the persons or groups directly involved in the election process and being members of law-­giving institutions.27 An interesting 23. John Marshall at the Virginia Ratifying Convention, June 1788, see Stourzh, Alexander Hamilton, 226 n. 58. 24. Olympe de Gouges, Déclaration des droits de la Femme et de la Citoyenne of Septem­ber 7, 1791, Article 16, a deliberate counterposition to Declaration of the Rights of the Man and of the Citizen of 1789. English text in Lynn Hunt, The French Revolution and Human Rights: A Brief Documentary History (Boston: Bedford Books of St. Martin’s Press, 1996), 124–­26. On Olympe de Gouges, see also below, p. 80. 25. First used by Joseph Bessette, “Deliberative Democracy: The Majority Principle in Republican Government,” in How Democratic Is the Constitution?, ed. Robert A. Goldwin and William A. Schambra (Washington, DC: American Enterprise Institute, 1980), 102–­16. Jürgen Habermas, “Deliberative Politics: A Procedural Concept of Democracy,” in Between Facts and Norms, chap. 7, 287–­328. 26. Joseph A. Schumpeter, Capitalism, Socialism, and Democracy, 3rd ed. (London: Allen & Unwin, [1942] 1950), chap. 22, 269–­83. 27. Peter Graf Kielmansegg, Die Grammatik der Freiheit: Acht Versuche über den demokratischen Verfassungsstaat (Baden-­Baden: Nomos, 2013), 265–­66.

democr acy w ith a djectives

53

complement to the discussion on deliberative democracy has been contributed by the American scholar Christopher Zurn.28 A strong advocate of deliberative democracy, influenced by Habermas, Zurn has connected deliberative democracy with the role of judicial review in a constitutional government. Strongly critical of the monopolizing of judicial review by courts alone, he suggests a “spreading,” and thereby “democratizing” of judicial review among a number of institutions. Zurn suggests five centers of judicial review, partly existing, partly to be created: (1) independent constitutional courts (unlike the US system, but existing in many European countries and elsewhere), (2) “self-­review panels in legislatures and regulatory agencies,” (3) “mechanisms for interbranch debate,” (4) “easing formal amendability requirements,” and (5) “establishing civic constitutional fora,” strengthening notably with his last proposal the ideas of deliberate democracy.29 Not so different from deliberative democracy is “contestatory democracy,” which has been developed by the Irish philosopher Philip Pettit, who has long worked in Australia and the United States. Pettit’s contestatory democracy is certainly more pugnacious than deliberative democracy. The “elective-­cum-­ contestatory democracy” rejects the monopoly of democratic electoral decisions in order to intentionally protect the position of minorities. Normal majority decisions are to be essentially “questioned” or controlled, be it through already existing institutions such as a multichamber system, the separation of powers, or judicial review, or with institutions yet to be created that examine legislation not only retroactively, but before it enters into force. Pettit believes that individual rights exist that should be detached from majority decisions (“counter-­majoritarian rights”), but his real concern is the coexistence with minorities who, in relation to the majority population, exhibit important differences and never can count on becoming majorities themselves.30 Further adjectives used in recent years to describe democracy include “monitory democracy,” in the sense of a controlled democracy or one accompanied by controls, as found in the 2009 work of English political scientist John Keane in The Life and Death of Democracy.31 There is also “nonpartisan 28. Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge: Cambridge University Press, 2007). 29. Zurn, 274. 30. Philip Pettit, “Minority Claims under Two Conceptions of Democracy,” in Political Theory and the Rights of Indigenous Peoples, ed. Duncan Ivison, Paul Patton, and Will Sanders (Cambridge: Cambridge University Press, 2000), 199–­215, esp. 203–­4. Also Pettit, “Democracy, Electoral and Contestatory,” Nomos 42 (2000): 105–­44. 31. John Keane, The Life and Death of Democracy (London: Simon & Schuster, 2009), esp. part III.

54

chapter four

democracy,” as offered in recent writings by the French political scientist Pierre Rosanvallon. His most important work, The Society of Equals, contains a fundamental criticism of contemporary democracy, which he considers a successful political system but a threatened form of society.32 Also to be mentioned is the book by the French philosopher and political scientist Catherine Colliot-­Thélène Democracy and Subjective Rights: Democracy without Demos, first published in French in 2010, which discusses the problems of democracy and the rights of the individual having arisen specifically through international, transnational, and global developments.33 Uneasiness about a too far-­ reaching juridification of the protection of human rights by transnational institutions, with the consequence of a growing distance from democracy, is to be found in the book of the Swiss author Gret Haller, Human Rights without Democracy?34 In 2000, the English political scientist Colin Crouch coined the popular phrase “post-­democracy.”35 It has, however, recently been the subject of clear criticism, namely, that the idea of “post-­democracy” suggests an attitude of defeatism and that “the political system in its present form is no longer a democracy anyway.” This attitude of resignation could pave the way for a truly authoritarian system.36 This list, of course, is by no means complete. If the link between democracy and the traditions of constitutional law or the constitutional state is to be emphasized, the term “constitutional democracy” is used, especially in German but also in English. Walter F. Murphy has written a large book on Constitutional Democracy.37 Not infrequently, similar expressions are being used, such as “democratic state under the rule of law” or “democratic constitutional state.”38 In view of the constitutional protection of individual rights as fundamental rights, the sensible expression “fundamental rights democracy” (in German in one word, Grundrechtsdemokratie) has been introduced. First 32. Rosanvallon, The Society of Equals. 33. Catherine Colliot-­Thélène, Democracy and Subjective Rights: Democracy without Demos, trans. Arianne Dorval (Lanham, MD: Rowman & Littlefield International, 2018). 34. Gret Haller, Human Rights without Democracy? Reconciling Freedom with Equality, trans. Cynthia Klohr (New York: Berghahn Books, 2012). 35. Colin Crouch, Coping with Post-­Democracy, Fabian pamphlet no. 598 (London: Fabian Society, 2000). Followed by Colin Crouch, Post-­Democracy (Cambridge: Polity Press, 2004). 36. See the criticism by Jan-­Werner Müller, “Postdemokratie? Karriere und Gehalt eines politischen Schlagwortes,” in Volksherrschaft—­Wunsch und Wirklichkeit, ed. Uwe Justus Wenzel (Zurich: Neue Zürcher Zeitung, 2014), 124–­27. 37. Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007). See also the remarkable volume by Frank I. Michelman, Brennan and Democracy (Princeton, NJ: Princeton University Press, 1999). 38. See Kägi, “Rechtsstaat und Demokratie,” esp. 141. The latter term (demokratischer Verfassungsstaat) is central in Kielmansegg, Die Grammatik der Freiheit.

democr acy w ith a djectives

55

coined by the German lawyer Wolfgang Fikentscher, it is an expression I have used several times.39 While the expression has not achieved a broad impact, I used it for the title of my book of 1989, and in 2003 it was used by the philosopher Wolfgang M. Schröder for his volume Grundrechtsdemokratie als Raison offener Staaten (fundamental rights democracy as a basis for open states).40 Not infrequently, double formulations like “human rights and democracy” have come into use to describe more exactly the nature of our system of government. As early as 1977, I referred to “participation and protection” as the two pillars of the constitutional state.41 The double formulation “democracy and constitutional state,” as it has been used for instance by Peter Kielmansegg, reveals that the word “democracy,” even together with various adjectives, is not an adequate expression for everything needed to understand that political way of life considered desirable by most states in Europe as well as many other countries in the world.42 According to Kielmansegg, the term “democratic constitutional state” can indeed be used to express the happy marriage between democracy and the constitutional state. But what holds good for every marriage, he continues, holds good for the union of democracy and the constitutional state as well: “There is not only harmony, there are also tensions.” The democratic constitutional state is to be understood as a “symbiosis of two different basic principles whose harmony is not pre-­established.”43 The American political scientist Walter Murphy in a book 39. Wolfgang Fikentscher, Methoden des Rechts in vergleichender Darstellung, 5 vols. (Tübingen: J. C. B. Mohr, 1975–­77), here esp. vol. 4, 510, 615, 617–­18, 625. I used this expression for the first time in Gerald Stourzh, “Die Begründung der Menschenrechte im englischen und amerikanischen Verfassungsdenken des 17. und 18. Jahrhunderts,” in Menschenrechte und Menschenwürde: Historische Voraussetzungen, säkulare Gestalt, christliches Verständnis, ed. Ernst-­ Wolfgang Böckenförde and Robert Spaemann (Stuttgart: Klett-­Cotta, 1987), 89. It is also used in the title of my book Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates (Vienna: Böhlau, 1989) and in the title of an essay of 1991, “Verfassungsgerichtsbarkeit und Grundrechtsdemokratie—­die historischen Wurzeln,” republished in Der Umfang der österreichischen Geschichte, 157–­79. 40. Wolfgang M. Schröder, Grundrechtsdemokratie als Raison offener Staaten: Verfassungs­ politik im europäischen und im globalen Mehrebenensystem (Berlin: Duncker & Humblot, 2003). 41. Gerald Stourzh, “The American Revolution, Modern Constitutionalism, and the Protec­ tion of Human Rights,” in Truth and Tragedy: A Tribute to Hans J. Morgenthau, ed. K. W. Thompson and J. Robert Myers (Washington, DC: New Republic Book Co., 1977), 172. 42. Related to this are annual “evaluations” of the democracies in the entire world. Some thoughts on these evaluations are offered by Larry Diamond, “Facing Up to the Democratic Recession,” Journal of Democracy 26, no. 1 (2015): 141–­55. See now the excellent book by Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It (Cambridge, MA: Harvard University Press, 2018). 43. Kielmansegg, Die Grammatik der Freiheit, 145.

56

chapter four

just mentioned has spoken of constitutional democracy as a “hybrid,” coming out of the marriage of democracy, the people’s rule, with constitutionalism as a system of “institutional checks on the authority of all rulers, even the people themselves.”44 The German jurist Robert Alexy has gone as far as speaking of a necessary “conflict between the principle of democracy and constitutional rights.”45 An inevitable conflict within liberal democracy between democratic and liberal principles has been stressed by Chantal Mouffe; against the too harmonious concept of deliberative democracy she emphasizes the role of conflict as a constituent part of democracy.46 The double formulation “democracy and constitutional state” is by no means incorrect, but it does not go far enough. The highest goal of the constitutional state is to protect the constitutionally guaranteed fundamental rights (or human rights, as explicitly stated in the German Basic Law) of those persons subject to its jurisdiction. Especially since the mid-­twentieth century, this goal has been supported by constitutional states developing constitutional complaint procedures concerning fundamental rights violations. But it is supported by a second factor: the protection of fundamental rights, or human rights as they are usually called in international treaties, going beyond individual states. In theory, this applies to the members of the United Nations worldwide, as far as they have approved the respective declarations or ratified the corresponding conventions. In practice, this applies to certain regions like Europe and Latin America (see below, pp. 112–18). It is therefore legitimate to refine the double formulation “democracy and the constitutional state,” by explicitly stressing the protection of fundamental rights. Also, the formulation should be expanded insofar as it now extends beyond the constitutional state to the dimension of international law protecting human rights. Here I would again like to remind us of the description of Jürgen Habermas, mentioned in the introduction, of the “two interconnected pillars that give legitimacy to political rule—democracy and human rights.” Habermas has also dealt intensively with the double formulation “democratic constitutional state.”47 The two components are not always formulated 44. Murphy, Constitutional Democracy, 2. 45. Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2009), 297. A controversy has taken place between the British jurist Trevor Allen and Alexy, with Allen denying the antinomy between democracy and constitutional rights, while Alexy maintained his position. See Matthias Klatt, ed., Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2010), 134 and 330. 46. Chantal Mouffe, The Democratic Paradox (London: Verso, 2000). 47. See, above all, Habermas, Between Facts and Norms. See also Habermas, “On the Internal Relation between the Rule of Law and Democracy,” in The Inclusion of the Other: Studies in

democr acy w ith a djectives

57

in the same way by Habermas: sometimes this reads “rule of law and democracy,” in other places, “human rights and popular sovereignty” or even “human rights and democracy.” Habermas is particularly concerned (in the legal sphere) with the inner link between two equally original forms of autonomy: “the realization of basic rights is a process that secures the private autonomy of equally entitled citizens only in step with the activation of their political autonomy.”48 In the realm of private autonomy we find—something to which Habermas rightly gives great value—actionable subjective rights—­the emphasis is on “actionable.”49 The realm of public or political autonomy (or self-­determination) is akin to popular sovereignty.50 Seen historically, the “lock step,” as Habermas has called it, of “private” and “public” autonomy is problematic. In 1789, due to the distinction made between “active citizens” and “passive citizens,” the idea existed that all citizens (both men and women) enjoy the right to the protection of the law, but only active citizens are entitled to the right to participate in the organization of public affairs (that is, to be given the right to vote).51 Sieyes’s distinction between active and passive citizens was echoed four years later in Kant’s distinction between citizens (who have “civil independence” and thus have voting rights) and those who are merely “protected.” Among the latter, Kant counts children and women, as well those who have no “property.” Examples include, as Kant observes in a note, the domestic servant, the shop assistant, the laborer, or even the barber. “They are merely laborers (operarii), not artists (artifices, in the wider sense) or members of the state, and are thus unqualified to be citizens.”52 At a central point in Habermas’s philosophy of law, “the democratic idea unfolded by Rousseau and Kant” is addressed, whereby Habermas states that “those who participate in the legislative process” must be expected to “drop the role of private subject and assume, along with their Political Theory, ed. Ciaran Cronin, trans. Pablo De Greiff (Cambridge, MA: MIT Press, 1998), 253–­64; as well as Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” (2001), reprinted in Time of Transitions, ed. and trans. Ciaran Cronin and Max Pensky (Cambridge: Polity Press, 2006), 113–­28. 48. Habermas, Between Facts and Norms, 418, 426 (emphasis in the original on 426). 49. Habermas, 88. 50. Habermas, 99. 51. On this, see below, pp. 119–20. 52. Immanuel Kant (1793): “On the Common Saying: This May Be True in Theory, but It Does Not Apply in Practice,” in Kant’s Political Writings, ed. Hans Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1970), 78. Kant adds in this note: “But I do admit that it is somewhat difficult to define the qualifications which entitle anyone to claim the status of being his own master.”

58

chapter four

role of citizen, the perspective of members of a freely associated legal community.  .  .  .” But it is surprising that Habermas does not refer in any way to Kant’s exclusion of the majority of the population from those counted as “state members” and citizens.53 Habermas’s concept of autonomy is also, as one critic has convincingly demonstrated, more strongly shaped by antecedent rational determinations than Habermas concedes.54 Habermas repeatedly speaks of the “intrinsic” value of “classical” human rights.55 In any case, it should be noted that for Habermas, the pairs of expressions private/public autonomy on the one hand and “human rights and democracy,” on the other, while not directly, are at least closely related to one another.56 Indeed, the aim of this essay is to combine the last-­named pair “human rights and democracy” under the name of “isonomy” as a system of equal rights of protection and participation.

53. Habermas, Between Facts and Norms, 32 (emphasis on “democratic idea” in the original). 54. Thomas Kupka, “Jürgen Habermas’ diskurstheoretische Reformulierung des klassischen Vernunftrechts,” Kritische Justiz 27 (1994): 461–­69. 55. See “On the Internal Relation between the Rule of Law and Democracy,” in The Inclusion of the Other, Habermas, 260 (see above, note 47). Habermas, “Remarks on Legitimation through Human Rights,” in The Postnational Constellation: Political Essays, ed., trans., and with an introduction by Max Pensky (Cambridge: Polity Press in association with Blackwell Publishers, 2001), 117. 56. Habermas, Between Facts and Norms, 99. These two conceptual pairs “one cannot simply align” to each other. Nonetheless, there are “affinities between these two pairs of concepts . . . that can be emphasized to a greater or lesser degree” (Habermas, 99). I find these affinities very pronounced in Habermas’s work.

5

The Six Components of Modern Isonomy

I regard democracy, in its political and legal sense, as an instrument to put into practice the fundamental right to political participation and not as a social system. In this sense, democracy is an important element of the system of isonomy. Speaking of democracy, I waive the use of any adjectives, with the exception of procedural qualifications such as “representative” or “direct” (“plebiscitary”) democracy. Its isonomous character is demonstrated by the existence of general, equal, free, secret and periodic male and female suffrage. This does not allow the (mis-­)use of democracy as confirmation of preceding alternative-­less decisions by means of pseudo-­votes or pseudo-­elections.1 But democracy in this sense is just one of several components or, as they might be described, one of several “building blocks” forming isonomy. The political-­legal system first introduced in the late eighteenth century but reaching its achievement only in the second half of the twentieth and the beginning of the twenty-­first centuries—­what I call modern isonomy—­is ideally embodied by a group of at least six components. Their individual histories were quite dissimilar and did not run parallel to one another. It seems to make sense to designate these six components also individually as “isono­ mous” components of this political-­legal order. They are 1. 2. 3. 4.

General legal capacity. The development of “fundamental rights.” Equality before the law, especially personal legal equality. The development of constitutional jurisdiction and, especially, procedures for individual complaints to guarantee fundamental rights.

1. On this, see John Keane, “Die neuen Despotien,” Merkur 69, no. 790 (March 2015): 18‒31.

60

chapter five

5. The internationalization of fundamental rights as human rights. 6. Democracy as the realization of the fundamental right to participation in political decision-­making.

General Legal Capacity: From Slavery to Freedom The clearest explanation of the general legal capacity of all persons, with the consequences thereof named as well, is found in the Austrian General Civil Code of 1811, as mentioned in the introduction. The relevant paragraphs are the following: § 16: Every human being has innate rights, which are already apparent through reason, and must therefore be regarded as a person. Slavery or serfdom and the exercise of power related to them are not permitted in these countries. § 18: Everyone is capable of acquiring rights under the conditions prescribed by the law.

The significance of this general legal capacity cannot be overestimated— here it is not “citizens” who are being referred to, but “every person,” “every­ one.”2 Indeed, this is what Hannah Arendt has called the “only” human right.3 I would like to designate this right, which Arendt has called “the right to have rights”—­as the first and most fundamental human right.4 In German idealism, this concept was very clearly expressed by Johann Gottlieb Fichte, who described “the possibility of acquiring rights,” that is, the legal capacity of doing so, as the original “human right that precedes all legal contracts and alone makes them possible.”5 Even in the early modern period, a group of people was declared to have a “clearly worse status than other vagrants” and were explicitly outlawed— “gypsies” (Sinti and Roma). They were expelled from the Reich by the Freiburg 2. An excellent older account, one that, to my knowledge, has not been surpassed in recent literature, is that of Eugen Ehrlich, a scholar of Roman law and a legal sociologist born in Chernivtsi (Czernowitz) in Bukovina who taught at the University of Czernowitz: Eugen Ehrlich, Die Rechtsfähigkeit (Berlin: Puttkammer & Mühlbrecht, 1909). 3. Hannah Arendt, “Es gibt nur ein einziges Menschenrecht,” Die Wandlung 4 (1949): 754–­ 70. Available at http://www.hannaharendt.net (accessed June 3, 2018). 4. Hannah Arendt, The Origins of Totalitarianism (London: Penguin Classics, 2017), 388. 5. Quoted in Wilhelm Metzger, Gesellschaft, Recht und Staat in der Ethik des deutschen Ide­ alismus, ed. Ernst Bergmann (Heidelberg: Carl Winters Universitätsbuchhandlung, 1917), 164, from: Johann Gottlieb Fichte, 1796: Grundlage des Naturrechts nach Principien der Wissenschafts­ lehre: Zweiter Anhang des Naturrechts; Grundriss des Völker-­und Weltbürgerrechts, § 22. In Johann Gottlieb Fichte, Johann Gottlieb Fichte’s sämmtliche Werke, ed. Immanuel Hermann Fichte, vol. III (Leipzig: Mayer & Müller, 1845), 384.

the six components of modern isonomy

61

Reichstag of 1498 (and subsequently from many territories) and were considered vogelfrei, “outlaws” (after an expulsion period had expired).6 Killing an outlaw was not considered punishable. The extraordinary punishment for felonies was the mors civilis, “civil death,” which was still applied until the middle of the nineteenth century (only abolished in France in 1854). A person thus punished was denied any legal capacity—­his marriage was considered dissolved and he was no longer in a position to own or bequest property. Although physically still alive, he was legally considered dead. Also in “monastic death”—­still in 1794 included in the General State Laws for the Prussian States—­monks and nuns were denied any secular legal capacity, with any assets transferred to their heirs. The most important and numerically by far most significant transformation to the possession of general legal capacity was that of slaves—­legally considered an object and thus marketable or inheritable. This transformation is the classic example for the vast importance of general legal capacity. An expert in Roman law, Ernst Levy, has said: The proper manumissio (release) transformed the slave “from an object to a subject of rights, the most funda­ mental metamorphosis that can be imagined.” These are magnificent words. Another classical scholar, Moses Finley, who quotes Levy, has added, “He was now a human being, unequivocally.”7 But by no means did this mean automatic assimilation as a citizen with equal rights. In the United States, the Thirteenth Constitutional Amendment of 1865 abolished slavery for the entire Union, but it was not possible to prevent new laws quickly emerging in the Southern states that established African-­Americans as citizens with lesser rights. This is why the Fourteenth Constitutional Amendment was adopted in 1868, which established the legal equality of all persons under American jurisdiction, at least on paper.8

6. Ernst Schubert, “Mobilität ohne Chance,” 132. 7. Ernst Levy, “Libertas und Civitas,” Zeitschrift für Rechtsgeschichte, Romanistische Ab­ teilung 78 (1961): 142–­72, here 145. My translation; my emphasis. These words cited and comment added by Moses I. Finley, Ancient Slavery and Modern Ideology, enl. ed. with a new introduction by Brent D. Shaw (Princeton, NJ: Markus Wiener Publishers, 1998), 165 (my emphasis). 8. “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” This is in the current terminology the “equal protection clause” of the US Federal Con­ stitution. There is a huge amount of literature on the abolition of slave trade and slavery in the Atlantic region, especially in the United States, as well as on the abolitionist movements in En­ gland and North America. I would like to refer in particular to the life work of one of the most outstanding experts on this topic, David Brion Davis; from his many publications I particularly recommend the following: David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World (Oxford: Oxford University Press, 2006).

62

chapter five

The “apartheid” regime of the Union of South Africa, existing until 1994, was a regime based on the theoretical legal capacity of all inhabitants, but this was embedded in a system based on severe discrimination against those with lesser rights, especially the Black population, in contrast to the privileged whites. It was not until 1990 that a path was opened to the abolition of apartheid, when Nelson Mandela, after twenty-­seven years of imprisonment, was released by South African President Frederik de Klerk. The country’s first free and equal elections were held in April 1994 and Mandela was elected the successor of President de Klerk in May 1994.9 It is amazing that the first declaration of human rights to become famous, the Virginia Declaration of Rights of 1776, with its grandiose beginning stating that all human beings are by nature equally free and independent, originated in a slave state where there were large numbers of people who had no legal rights. Only with considerable sophistry, if not hypocrisy, could the text we know come into being. It refers to entering “into the status of a society,” and it (tacitly) argues that slaves could not be “constituent members” of a state-­organized society.10 In this sense, Virginia and the other US slave states—until slavery was abolished in the United States—followed the legacy of democracy in its ancient form. The Austrian General Civil Code of 1811 is based less on this legacy and more on logic, as shown at the beginning of this section, mentioning the legal capacity of all people in the same paragraph as the abolition or nonadmission of slavery on Austrian territory (in a later ordinance, also expressly on Austrian ships). In summary, I would venture to say that the recognition of “everyone”— the word includes all women—as a person, that is, a bearer of rights or as a “legal subject,” is of tremendous importance. Why? A legal subject is “someone who, in his own interests, can set the legal system in motion.” “Set the legal system in motion”: This was written by Georg Jellinek in 1900.11 This “setting in motion” can be in the form of concluding a contract or being a plaintiff in civil law, or of filing, under public law, a criminal complaint; it can be an appeal to an administrative authority, or bringing a constitutional challenge to

9. See Christoph Sodemann, Die Gesetze der Apartheid (Bonn: Issa, 1986). See also, above all, Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (London: Little, Brown and Company, 1994); also Saul Dubow, Apartheid, 1948‒1994 (Oxford: Oxford University Press, 2014). 10. Gerald Stourzh, “Zur Konstitutionalisierung der Individualrechte in der Amerikanischen und Französischen Revolution,” in Wege zur Grundrechtsdemokratie, 159. 11. Georg Jellinek, Allgemeine Staatslehre, reprint of the 3rd ed. of 1914, after the death of Georg Jellinek, revised by his son Walter Jellinek (Berlin: Gehlen, 1966), 418 (my emphasis).

the six components of modern isonomy

63

a constitutional court, or even an individual appeal to the European Court of Human Rights in Strasbourg. Whatever form it takes, it is a tremendous right to which every legal person is entitled. I will come back to this later. Equality before the Law In the first article of the 1789 French Declaration of the Rights of the Man and of the Citizen, as mentioned in the introduction, it is stated that all men are “equal in rights.” In the sixth article we read that in the eyes of the law “all citizens are equal.” The difference between “men” and “citizens” is important. Only citizens have the right to participate directly or indirectly in lawmaking. While the law is an expression of the general will, it is the universal will of the political nation, of those entitled to vote. In this single document, the double provenance of modern concepts of equality—human rights and citizens’ rights—is clearly expressed. Both types of rights had a common enemy: the hierarchically ordered world of the ancien régime. Initially, these two con­ cepts frequently merged in general rhetoric. As questions of concrete legal equalization or steps of emancipation were more often addressed, the more it was citizens’ equality, in the sense of legal equality, that prevailed. Yet the evolution of citizens’ rights within the confines of individual states would allow these states to conquer territories—­colonies—­whose inhabitants were not citizens and thus could be ruled as subjects. In the language of the nineteenth and early twentieth centuries, “civilized” nations felt entitled to dominate over “uncivilized” populations.12 In the last few decades, it seems that the second half of the Declaration of 1789, the rights of the citizen, has been neglected in research to the advantage of human rights. The concept of the burgher or citizen, whose equality before the law was repeatedly declared after 1789 (although this was a development that progressed at different rates in various countries), had a number of roots. The oldest were found in the traditions of antiquity. The Aristotelian tradition regarded the polítes to be the bearers of the pólis, the city-­state; the focus of Roman tradition was the civis, the addressee of Roman law, although in comparison to other Roman branches of law, it was Roman (Justinian) private law that had the widest reception in the modern period.13 Another root, although 12. See Stefan-­Ludwig Hoffmann, “Introduction: Genealogies of Human Rights,” in Human Rights in the Twentieth Century, ed. Stefan-­Ludwig Hoffmann (Cambridge: Cambridge University Press, 2011), 10. 13. Franz Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd ed. (Göttingen: Vandenhoeck & Ruprecht, 1967), 137–­38.

64

chapter five

this is a major simplification of a complex development, was the concept of the burgher or citizen of a city, distinct from the nobility as well as from the (free or nonfree) rural population. The notion of citizen had various internal distinctions, such as citizens who were eligible for membership in city councils or governments and those who were not. In addition, there were the inhabitants or residents (incola) who were not citizens. Separating itself from the notion of the citizen of a city or town there developed the group of economically well-­to-­do citizens, notably the entrepreneur, referred to as “bourgeois,” a member of the “bourgeoisie.” The bourgeois was the bearer of a socioeconomic layer, or, in the interpretation of Karl Marx, a member of the class of the bourgeoisie.14 Legally, the adjective “civil” has chiefly to do with the realm of private law, though with the growth of catalogs of the rights of citizens, interchangeably with it, the notion of “civil rights” became important, notably in the United States, as part of the discourse on constitutional law.15 In Austria, in 1867, a “fundamental law on the political rights of the citizens” was declared (still valid today). It contained however many “civil rights” to be applied to noncitizens as well. An expression that began to appear frequently in German texts from about 1791 was Staatsbürger, the “citizen of the state,” although the term was criticized by some as being redundant—­one does not say “aquatic fish” (Was­ serfisch), as Klopstock protested in 1794.16 Its direct precursor, however, was a very different word—­Untertan, or “subject.”17 With the increase in aristocratic and finally monarchical exclusive privileges, the notion of “subject” as contrasted to “authority” gained in importance. In an absolutist monarchy, it provided a sort of equality despite the estates-­based structure of the kingdom.18 The German word Untertan corresponded to the French sujet or English “subject.” In the territories ruled by the British Crown, it was only

14. A nuanced examination of the concept of the bourgeois is found in Manfred Riedel, “Bürger, Staatsbürger, Bürgertum,” in Geschichtliche Grundbegriffe, vol. 1, ed. Brunner, Conze, and Koselleck, 672–­725. On Marx, see Riedel, 716–­18. On the subject of citizen and citizenship, see Dieter Grimm, Recht und Staat der bürgerlichen Gesellschaft (Frankfurt am Main: Suhrkamp, 1987). 15. Examples: Code civil (Code Napoléon), 1804; General Civil Code for all the German hered­ itary provinces of the Austrian monarchy (the so-­called Allgemeines bürgerliches Gesetzbuch—­ ABGB), 1811; the German Bürgerliches Gesetzbuch (Civil Code, BGB), 1896. 16. Riedel, “Bürger, Staatsbürger, Bürgertum,” 692. 17. Rich in sources, see the excellent work of Rolf Grawert, Staat und Staatsangehörigkeit: Ver­ fassungsgeschichtliche Untersuchung zur Entstehung der Staatsangehörigkeit (Berlin: Duncker & Humblot, 1973). 18. Riedel, “Bürger, Staatsbürger, Bürgertum,” 689.

the six components of modern isonomy

65

in the twentieth century that the term “subject” was gradually replaced by “citizen.”19 In contrast, in France the leap from sujet to citoyen took place suddenly, in 1789, and then played a dominant role in the French constitutions of 1791, 1793 and 1795. The declarations of fundamental rights of the nineteenth and even the early twentieth centuries consistently speak of the equality of citizens before the law. The French Charter of 1814 states: “Les Français sont égaux devant la loi” (the French are equal before the law); similarly the Belgian Constitution of 1831 said: “Les Belges sont égaux devant la loi” (the Belgians are equal before the law), which in turn, is similar to the 1849 German constitution that never came into force: “Die Deutschen sind vor dem Gesetze gleich” (the Germans are equal before the law). The Weimar Constitution of 1919 reads similarly: “All Germans are equal before the law.” The great leap was only accomplished in 1949, after the catastrophe of Nazism, in the Bonn Constitution, the Basic Law for the Federal Republic of Germany: “All human beings [alle Menschen] are equal before the law” (Article 3).20 The development of fundamental rights during the nineteenth and early twentieth centuries as citizens’ rights—­on the national level, as it were—­had important consequences. It enabled nations with charters of citizens’ rights to acquire dominion over territories, whose populations were not citizens of the conquering nations and who were considered mere “subjects.” Thus, colonialism could and did develop without any regard to “international” or generally worldwide human rights. The legal equality which united the citizens of a nation did not extend to the colonial subjects, as will be shown later. Only the declaration of worldwide human rights in the years following the Second World War exploded, as it were, the legal inequality of citizens and subjects as basis of colonial rule. The breakdown of colonialism, partly in violent warfare, partly in peaceful processes, followed. More on this will be said in the section on “Indigenous Persons.” Implementing the principle of equality before the law on the national level also involved developments in judicial organization, such as courts that were not specific to a particular class or estate but had jurisdiction over everyone and to which anyone could appeal. This equalization of judicial organization involved, for example, the abolition of manorial jurisdiction. The 19. British “Nationality Act” of 1948 and 1981. 20. The relevant clauses can be found in Dieter Gosewinkel and Johannes Masing, eds., Die Verfassungen in Europa 1789–­1949: Wissenschaftliche Textedition unter Einschluss sämtlicher Änderungen und Ergänzungen sowie mit Dokumenten aus der englischen und amerikanischen Verfassungsgeschichte (Munich: C. H. Beck, 2006).

66

chapter five

organization of courts developed in various countries in very different ways; describing this in detail goes beyond the scope of this essay. The greatest significance of the right to appeal for equality before the law, also known as “legal equality” or the “principle of equality,” is not that individual rights have been “constitutionalized,” but that it has become legally possible for individuals to sue in court for violations of the constitutionally guaranteed right to equal treatment.21 As is well known, the first country where it was possible to make such a constitutional complaint was the United States (based on the Fourteenth Amendment), beginning in courts of first instance and finally, sometimes, reaching the Supreme Court. In Europe, it became possible in Austria after World War I, in the Federal Republic of Germany after World War II, and then in many other countries (see “The Protection of Fundamental Rights as Part of Constitutional Justice” below). The enormous increase of legal petitions or appeals by individuals concerning alleged violations of the right to equality before the law in the last half-­century has made the principle of equality before the law one of the most important, if not the most important, of fundamental rights.22 As early as 1981, the German constitutional lawyer Gerhard Leibholz called the principle of the appeal to equality “probably the most cited fundamental right.”23 Leibholz, who has written a monograph on equality before the law, has also made the important observation that the principle of equality has a tendency to radicalize itself; he has attributed this tendency to the abstract nature of this principle.24 At this point, an inquiry should be made as to the most important historical root for equality before the law: generally speaking, the quest—­or struggle—­of underprivileged status groups for legal equality. The successful struggle of the third estate against the privileges of the first and second estate in France in 1789 is the classic example. Special privileges had been held by the nobility, city patriciates, and the (high) clergy. Some of these aristocratic

21. Simon Kempny and Philipp Reimer, “Introduction,” Die Gleichheitssätze: Versuch einer übergreifenden dogmatischen Beschreibung ihres Tatbestands und ihrer Rechtsfolgen (Tübingen: Mohr Siebeck, 2012). 22. For Austria, but also other countries, see Magdalena Pöschl, Gleichheit vor dem Gesetz (Vienna: Springer, 2008), on personal legal equality, 315–­20. 23. In a panel discussion at a symposium on the principle of equality on the occasion of his eightieth birthday: Christoph Link, ed., Der Gleichheitssatz im modernen Verfassungsstaat (Baden-­Baden: Nomos, 1982), 90. 24. Gerhard Leibholz, Die Gleichheit vor dem Gesetz: Eine Studie auf rechtsvergleichender und rechtsphilosophischer Grundlage, 2nd ed. (Munich: C. H. Beck, [1923] 1959), 25.

the six components of modern isonomy

67

privileges were still valid until 1918.25 The continued use in a number of countries (including the Federal Republic of Germany, but not Austria) of aristocratic titles as part of the name does not mean that these people still have legal privileges. In the overview of the equalization of status groups, the initial privileged status of certain religions as monopoly religions, or at least as state religions, must also be mentioned, as well as the fight for freedom of conscience and equal rights for those religious denominations that were originally prohibited or severely restricted. Several of the equalization movements from the late eighteenth century to the twentieth century are known as “emancipations”—­slave emancipation, Jewish emancipation, women’s emancipation—­others carry the label “liberation,” such as the peasants’ liberation. In addition to the emancipation of slaves discussed in the previous section, one must also add the struggle of liberated African-­Americans for equality and the abolition of the racial segregation that was practiced for many decades in the United States. In 1896 the US Supreme Court even declared such segregation as compatible with the principle of equality. While there was a dissenting voice, that of Judge John Marshall Harlan, a memorable document of protest against the degradation of the African-­American population, the court majority followed the doctrine of “separate but equal.”26 It was not until 1954 that “separate but equal,” and thus segregation, was recognized as unconstitutional by the Supreme Court.27 As late as 1967 (!), the Supreme Court struck down one of the cornerstones of racial inequality in the case of Loving v. Virginia. The prohibition and penalization of interracial marriage, mostly between white and Black, but also in some states extending to white and Asian or white and Native American marriages, was widespread, not only in the Southern states.28 In the 1967 case, involving a white/ Black couple from Virginia, the Supreme Court’s unanimous decision, and with the Court’s opinion written by its Chief Justice Earl Warren, declared the 25. The abolition of the nobility in Germany and Austria took place after World War I; in Germany it was allowed to keep an aristocratic title as part of one’s name, but not in Austria, where the use of an aristocratic title can even be prosecuted. 26. US Supreme Court decision Plessy v. Ferguson, 163 U.S. 537 (1896). See also Andrew Kull, The Color-­Blind Constitution (Cambridge, MA: Harvard University Press, 1992), 113–­30. 27. US Supreme Court decision Brown v. Board of Education of Topeka, KA, 347 U.S. 483 (1954). See also Kull, Color-­Blind Constitution, 151–­63. 28. See the excellent and extensive discussion of the prohibition of interracial marriages by Bruce Ackerman, “Spheres of Intimacy,” chap. 13 in We the People, vol. 3, The Civil Rights Revolu­ tion (Cambridge, MA: Harvard University Press, 2014), 288–­309.

68

chapter five

prohibition of interracial marriages unconstitutional. The Court wrote, inter alia, that marriage was one the “vital personal rights” of free men. The Court added that racial classifications were “directly subversive of the principle of equality at the heart of the Fourteenth Amendment” (to the Constitution).29 The most recent movement in the series of status groups striving for legal equality is that of persons with same-­sex orientation.30 For centuries, the proven practice of homosexuality, especially male homosexuality, was subject to severe punishment (as well as religious sanctions). This gave way only slowly to impunity in the course of the twentieth century. Since the 1960s, this process of equalization has become increasingly important and fast.31 First, successful efforts were made to reduce the legal age of persons in homosex­ ual  relationships; this was followed by demands for officially recognized “partnerships,” then for same-­sex couples being allowed to adopt children and, finally, to wed. Same-­sex marriages were first allowed in 2001 in the Netherlands. Important landmarks were the decision in France in 2013 to allow same-­sex marriages, and then in Ireland in May 2015, the latter the result of a constitutional amendment approved by popular vote (62 percent).32 Of particular importance is the recent constitutional recognition of same-­sex marriages in the United States, whereby the principle of equality in the Fourteenth Amendment was cited in the Supreme Court decision of June 26, 2015, in the case of Obergefell v. Hodges. The Court’s decision was decided by a narrow majority of 5:4. In part, this was accompanied by some very sharp minority votes, with that of Judge Antonin Scalia literally speaking of a “judicial coup” by the majority. One sentence of the court’s opinion (written by Judge Anthony Kennedy) stands out. It emphasizes the importance of the individual constitutional appeal—­which I shall discuss in more detail below: “An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”33 29. Cited in Ackerman, 304–­5. A detailed analysis of Loving v. Virginia, 388 U.S. 1 (1967), Ackerman, 300–­306. The whole judgment is available online on several sites. 30. A detailed history is Martin Duberman, Martha Vicinus, and George Chauncey Jr., eds., Hidden from History: Reclaiming the Gay and Lesbian Past (New York: Meridian, 1990). 31. In the 1990s, the term “LGBT” (lesbian, gay, bisexual, transgender)—­with variations and enlargements—­was coined in the United States in the joint efforts by these groups for legal and social equal rights. 32. The French law is as of May 17, 2013. 33. US Supreme Court decision Obergefell v. Hodges, 576 U.S. 644 (2015), decided on June 26, 2015; its syllabus is available online. At the time of this court decision, same-­sex marriage was still prohibited in thirteen US states (which are referred to with the words “even if the legislature

the six components of modern isonomy

69

It was only under the new paradigm of isonomy that the concept of “discrimination” in a pejorative sense gained currency for disadvantaged status groups—­initially, in the context of the lower status of liberated slaves in the United States in the second half of the nineteenth and the first half of the twentieth centuries.34 In the earlier paradigm of the hierarchical order of status groups, this pejorative sense of “discrimination” was lacking; it was a concept that did not yet exist. In the following brief accounts of some of these equalization processes, I shall insert, following the section “Citizens and Foreigners,” a section on positive discrimination or “affirmative action,” which reaches beyond positive discrimination for women and will deal with affirmative action in general. To attempt a comprehensive or systematic discussion would go beyond the scope of this essay. t h e l i b e r at i o n o f p e a s a n t s The transition of nonfree European peasants from a multiple bondage—­be it to the person of a “lord” or to his land—­to the status of free citizens who were free to marry, free to move and free to sell or purchase land, is unquestionably one of the most monumental changes to have taken place during the nearly one hundred years from the first peasant liberation in Savoy (1772) to the last in the Russian Empire (1861). Such was anticipated, of course, as already noted, by the much earlier developments in Great Britain. The peasants in Europe were liberated as the result of a mixed situation: reform-­minded princes, landlords eager for improvements, new types of crops and new farming techniques, aristocrats who were interested in profitable production and deplored the economic flaws of the peasant economy, dissatisfied and sometimes rebellious peasants, as well as the new and disturbing ideas of equality proposed by people who felt the privileges of the nobility to be unfair.35 If seen from the viewpoint not of economic but of political history, it is remarkable that all of the peasants’ liberations in Europe, with the exception of revolutionary France and its close neighbor Switzerland, were the work of enlightened monarchist absolutism. refuses to act”). Detailed information on the development in the individual states can be found in the excellent Wikipedia article “Same-­sex marriage in the United States.” 34. The linguistic development of this usage in the United States is described in detail in Tilmann Altwicker, Menschenrechtlicher Gleichheitsschutz (Heidelberg: Springer, 2011), 103–­7. 35. Jerome Blum, The End of the Old Order in Rural Europe (Princeton, NJ: Princeton University Press, 1978), 357. It is a classic work to which I am grateful for many insights.

70

chapter five

It is clear that the decision made in the famous night session of 4 to 5 Au­ gust 1789 by the French National Assembly was a thunderclap, as was the Declaration of the Rights of the Man and of the Citizen a few weeks later: “The National Assembly abolishes the feudal system entirely.” (L’Assemblée nationale détruit entièrement le régime féodal.) However, the sudden abolition of feudalism in France rather slowed efforts of reform in the rest of Europe, which was governed by absolutism. The starting point, with large regional differences, was a complex of various obligations and limitations of personal freedom, whereby the personal bondage to an estate (serfdom) outweighed the mere aspect of being a subject. When manorialism, serfdom, and jurisdictional control coincided, as was the case in northeastern Germany—­a system which has been described as a “tighter form of manorialism”—­peasants were under the greatest pressure.36 Although there were various regional differences, the main restrictions on freedom might be listed as follows: marriage only with the permission of the lord and sometimes after the payment of taxes; restrictions on inheritance rights, with claims made by the lord upon a serf ’s death; restrictions in the freedom of movement, at best relief only after the payment of taxes; forced labor of underage children; services to lords through unpaid working time (socage) and/or taxes; occasional commutation of physical service into taxes; lords having policing and criminal conviction rights, including the right to use corporal punishment. A gruesome portrayal of serfdom in the eighteenth century was written by Ernst Moritz Arndt about the Swedish-­Pomeranian island of Rügen; Peter Blickle has described it as follows: “The estimated fertility of a woman could be decisive for whether or not a lord gave his permission for her to marry. When goods were offered for sale, inventories were made in which, if Ernst Moritz Arndt’s report is to be believed, serfs were recorded and posted according to age and strength ‘like oxen and horses.’ ”37 A year before the French Revolution, a report described Rügen as having a “true Negro trade.”38 Landless nonfree serfs of the lowest peasant class were bought and sold in central-­eastern, eastern, and southeastern Europe, with a peak in the eighteenth century.39

36. Jürgen Kocka, Weder Stand noch Klasse: Unterschichten um 1800 (Bonn: Dietz, 1990), 57. 37. Blickle, Von der Leibeigenschaft zu den Menschenrechten, 128. Serfdom was abolished in Rügen by the Swedish king in 1806. 38. Blickle, 129. 39. Blum, The End of the Old Order in Rural Europe, 41. On the differences among the rural peasant population between nonfree persons with property, small farmers, those with little land and those with none, see Kocka, Weder Stand noch Klasse, 87–­91.

the six components of modern isonomy

71

Prior to 1789, peasant liberation campaigns took place in Savoy (1771), Baden (1783), the Swiss canton of Solothurn (1785), and Denmark (1788). In the Habsburg monarchy, Emperor Joseph II abolished serfdom with an edict dated November 1, 1781, the first of two steps, with the final peasant liberation taking place sixty-­seven years later. From 1781 on, peasants liberated from serfdom had the possibility of getting married after a mere announcement of intent and of moving away from the former lord’s lands if they observed the requirements for military registration. Subjects were free to learn a trade of their own choosing and no longer had to perform, with very few exceptions in some crown lands, any services for lords. The landlord retained the function of presiding over the patrimonial court and continued to be the main authority for public administration. At the Revolutionary Reichstag in Austria of 1848, the deputy Hans Kudlich presented the proposition for terminating peasant allegiance relationships in July 1848; about a month later it was raised to a resolution of the Reichstag, which on September 7 led to the imperial edict abolishing the allegiance relationship. The liberal Austrian Constitution of 1867 states in Article 7 of its Fundamental Law Concerning the General Rights of Citizens: “Every relation of vassalage or dependence is forever abolished.”40 In Prussia the liberation of peasants was proclaimed in 1807 and entered into force on Saint Martin’s day (November 11) 1810: “After Martini Day 1810, there will be only free people.” It is not possible here to list all of the other liberation measures taken in other countries. Suffice it to say in general that these measures can be divided into those in which restrictions were terminated without compensation for former landowners and those that were terminated with compensation in the form of state subsidies. The settlement of compensation payments often dragged on for many years. Only in revolutionary France did the National Convention, after four years, repeal all compensation claims and demand that all entitlements be burned. As is well known, the last country to liberate its peasants was the Russian Empire in 1861, with the key aspect being the abolition of serfdom.41 40. Transl. in Walter Fairleigh Dodd, ed., Modern Constitutions: A Collection of the Funda­ mental Laws of Twenty-­Two of the Most Important Countries of the World, With Historical and Bibliographical Notes (Chicago: University of Chicago Press, 1909), 72. 41. Serfdom was abolished in the Baltic States, at that time Estonia, Courland, and Livonia, as early as 1816, 1817, and 1819, respectively. The freed serfs were not given any land. A comparative study of Russian serfdom and North American slavery is found in Peter Kolchin, Unfree Labor: American Slavery and Russian Serfdom (Cambridge, MA: The Belknap Press of Harvard University Press, 1987). More recent, arguing against a strict separation of the situation in Russia

72

chapter five

While there were tremendous social consequences as a result of the liberation of the peasants in Europe, they will not be discussed here in further detail. One of the most important consequences, however, since it was the most challenging, was increased settlement in cities and, in the process of the development of industrial capitalism, the transformation of parts of the rural lower strata into the urban working class. In the second half of the nineteenth century, reaching its peak by World War I, this was accompanied by sharp population growth and a vast increase in overseas emigration.42 t o l e r a n c e a n d e q u a l i z at i o n of religious groups The processes toward religious tolerance were protracted and, in the lands of Europe, took many different courses: from the persecution and eradication of religious minorities, even Christian ones, in the Middle Ages (such as the Albigensians and Waldenses) to the tolerance of certain minorities in the course of the early modern period, albeit often only in the age of enlightened absolutism during the eighteenth century. These processes will be described here briefly. It has recently been emphasized that due to the wide variety of developments in Europe in the early modern period, they cannot be systematized.43 On one hand, confessional tolerance was established in the Netherlands relatively early and it became long lasting.44 And the Grand Duchy of Transylvania saw the exceptional situation of four privileged denominations—­Lutherans, Calvinists, Roman Catholics and Unitarians (!)—­ coexisting alongside the nonprivileged Greek Orthodox Church of the peasants.45 On the other hand, developments existed such as the compromise agreement in the Edict of Nantes under Henri IV (1598) relapsing under from that prevailing in other parts of Europe, see Alessandro Stanziani, “Serfs, Slaves, or Wage Earners? The Legal Status of Labour in Russia from a Comparative Perspective, from the Sixteenth to the Nineteenth Century,” Journal of Global History 3 (2008): 183‒202. 42. Blum, The End of the Old Order in Rural Europe, 418–­19. 43. Benjamin J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (Cambridge, MA: The Belknap Press of Harvard University Press, 2007). 44. M. E. H. N. Mout, “Limits and Debates: A Comparative View of Dutch Toleration in the Sixteenth and Early Seventeenth Centuries,” in The Emergence of Tolerance in the Dutch Republic, ed. C. Berkvens-­Stevelinck, J. Israel, and G. H. M Posthumus Meyjes (Leiden: Brill, 1997), 37–­48. 45. Toward the end of the seventeenth century, a separate Greek uniate church was established that submitted to Papal authority.

the six components of modern isonomy

73

Louis XIV to cruel expulsion and persecution of the Protestants (Revocation of the Edict of Nantes, 1685). Late Protestant expulsions from the archbishopric of Salzburg (1731/32) and from Habsburg Tyrol (from Zillertal as late as 1837), as well as Maria Theresa’s expulsion of Jews from Prague and all of Bohemia in 1744/45 (retracted in 1748) also illustrate how erratically these developments progressed.46 Among the theoreticians of religious tolerance and freedom of conscience should be mentioned above all the Savoyard Sebastian Castellio (1515‒1563), who fought passionately against the killing of heretics in reaction to the execution carried through by John Calvin of Michel Servet (Servetus), who had been condemned as a heretic in Geneva.47 Another figure who should be mentioned, also from the late sixteenth century, is Dirk Volkertszoon Coorn­ hert in the Netherlands. He was close to William of Orange and published two works in 1582 and 1589 defending freedom of conscience against Roman Catholics and, above all, Calvinist orthodoxy.48 At another level is the complete abolition of a state religion or an “established church” and thus the complete separation of state and religion and the equality of all religious confessions. In this, North America was at the forefront. Roger Williams (1603‒1683), born in London and educated at Cambridge, went to Massachusetts at the age of thirty and, after serious conflicts with the close-­knit ecclesiastical and state authorities, established the settlement Providence Plantation, whose Statute of 1640 included the principle of “Liberty of Conscience.”49 Williams championed the principle of a “wall of separation,” a wall dividing secular and spiritual affairs. For him, the principle of freedom of conscience also applied to non-­Christians. He recorded his convictions in the book The Bloudy Tenent of Persecution for Cause of 46. Anna Maria Drabek, “Das Judentum der böhmischen Länder vor der Emanzipation,” in Prag—­Czernowitz—­Jerusalem: Der österreichische Staat und die Juden vom Zeitalter des Abso­ lutismus bis zum Ende der Monarchie, ed. Anna M. Drabek, Mordechai Eliav, and Gerald Stourzh (Eisenstadt: Edition Roetzer, 1984), 5–­30, here 22–­28. 47. Hans R. Guggisberg, Sebastian Castellio, 1515–­1563: Humanist und Verteidiger der re­ ligiösen Toleranz im konfessionellen Zeitalter (Göttingen: Vandenhoeck & Ruprecht, 1997); see also Hans R. Guggisberg, ed., Religiöse Toleranz: Dokumente zur Geschichte einer Forderung (Stuttgart: Frommann-­Holzboog, 1984). 48. Martin van Gelderen, The Political Thought of the Dutch Revolt 1555–­1590 (Cambridge: Cambridge University Press, 1992), 243–­56. 49. Plantation Agreement at Providence, August 27, 1640, in Henry Steele Commager, ed., Documents of American History, vol. 1, 7th ed. (New York: Appleton-­Century-­Crofts, 1963), 24–­ 25. In 1644 Providence joined other settlements to form the colony “Rhode Island and Providence Plantation” and received a patent from the government in London. Throughout the colony there was freedom of conscience; also, Jews settled in Newport.

74

chapter five

Conscience.50 Georg Jellinek considered Roger Williams a founding figure in the modern history of human rights.51 In 1786, Virginia passed the Statute of Religious Freedom, authored by Thomas Jefferson and based on natural law, which abolished the position of the Anglican Church as established church. I will return to this grandly formulated law below.52 In 1791, the First Amendment to the Federal Constitution declared that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This did not, however, preclude established churches by the states, as with Massachusetts until 1833. The Jews were also included in this equality, as is testified by an impressive letter from President George Washington to the Jewish community of Newport, Rhode Island, in the year 1790.53 The state of Virginia and, from 1791, the United States at least on the federal level can thus be regarded as the first truly secularized states of the modern period.54 French Protestants received a tolerance edict in 1787—before the outbreak of the revolution. Religious freedom was then established in Article 10 of the Declaration of 1789 and in the Constitution of 1791. In 1790, the descendants of exiled Protestants were granted French citizenship. The attempt to “nationalize” the Roman Catholic clergy with the Constitution civile du clergé in 1790 marked the beginning of a volatile and conflict-­ridden development that only came to an end in 1905 with the complete separation of state and church. The emancipation of the French Jews between 1789 and 1791 was one of the French Revolution’s various movements of equality, as the title of one of the best-­ known recent works on the subject shows: Libres et égaux.55 In England, the sixteenth-­century ban of the Roman Catholic Church came to an end with Catholic emancipation through the series of “Catholic Relief Acts” of 1778, 1791, and above all 1829. The “Copernican revolution” in the Roman Catholic 50. Roger Williams, The Bloudy Tenent of Persecution for Cause of Conscience (London, 1644). 51. Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History, trans. Max Farrand, revised by the author (New York: H. Holt, 1901). 52. For a comprehensive volume of collected articles, see Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Cambridge: Cambridge University Press, 1988). 53. Letter dated August 18, 1790, quoted in Stourzh, From Vienna to Chicago and Back, 285. 54. United States: First Amendment to the Federal Constitution (see above) ratified on December 15, 1791. In various states of the Union, the abolition of established denominations took place over a longer period of time. 55. Robert Badinter, Libres et égaux  .  .  . L’émancipation des Juifs 1789–­1791 (Paris: Fayard, 1989).

the six components of modern isonomy

75

Church, namely, the recognition of religious freedom, did not occur until the twentieth century, with the Vatican’s Declaration on Religious Freedom, Dig­ nitatis humanae, adopted in the last session of the Second Vatican Council on December 7, 1965, the advent of which had been prepared for by the human rights papal encyclical Pacem in terris of Pope John XXIII of 1963.56 j e w i s h e m a n c i pat i o n a n d r e n e w e d d e p r i vat i o n o f r i g h t s In 1781 there appeared a book in Berlin entitled Über die bürgerliche Verbesse­ rung der Juden (On the civil improvement of the Jews) by Christian Konrad Wilhelm Dohm. It had its origins in an appeal from the chairman of the “Jewish nation” in eastern France to Moses Mendelssohn in Berlin. Mendelssohn, at the time one of the most famous figures of the European Enlightenment, was requested to reply to the anti-­Jewish polemics of a certain Jean-­François Hell.57 Mendelssohn gave the task to the Prussian official and writer Dohm. The key passage in Dohm’s book is the following: The Jew is even more a human being than a Jew, and how should it be possible that he should not love a State, in which he could acquire and enjoy free property, in which his taxes would not be greater than those of the other citizens, and where he, too, can acquire honor and respect? Why should he hate people who would no longer be separated from him by grievous privileges, with whom he would share equal rights and equal duties?58

The hope for equal rights, namely, for isonomy, has rarely been expressed as clearly as in this passage. The book was translated into French already in 56. Ernst-­Wolfgang Böckenförde repeatedly refers to this declaration as a “Copernican revolution.” For a comment, see in particular Ernst-­Wolfgang Böckenförde, “Einleitung zur Text­ ausgabe der ‘Erklärung über die Religionsfreiheit,’” in Kirche und christlicher Glaube in den Herausforderungen der Zeit: Beiträge zur politisch-­theologischen Verfassungsgeschichte 1957–­2002 (Münster: Lit Verlag, 2003), 231–­48. See also Karl Gabriel, Christian Spieß, and Katja Winkler, eds., Die Anerkennung der Religionsfreiheit auf dem Zweiten Vatikanischen Konzil: Texte zur In­ terpretation eines Lernprozesses (Paderborn: Schöningh, 2013). 57. This was the so-­called affaire des fausses quittances. For more details, see Badinter, Libres et égaux, 32–­33, 63–­64. 58. My translation. The German original: “Der Jude ist noch mehr Mensch als Jude, und wie wäre es möglich, dass er einen Staat nicht lieben sollte, in dem er ein freyes Eigentum erwerben, und desselben frei geniessen könnte, wo seine Abgaben nicht grösser als die anderer Bürger wären, und wo auch von ihm Ehre und Achtung erworben werden könnte! Warum sollte er Menschen hassen, die keine kränkenden Vorrechte mehr von ihm scheiden, mit denen er gle­i­ che Rechte und gleiche Pflichten hätte?”

76

chapter five

1782.59 The legal equality of Jews in France was only effected on the last day of the Constituent Assembly in late September 1791, when it was also confirmed that slavery in the colonies would continue.60 “One must deny the Jews as a nation everything, and one must grant the Jews as individuals everything.” This sentence, announced in the Constituent Assembly, set the course for equalization and was to become the model for legal equalization in Western Europe.61 A few key markers regarding the equalization process for Jews in Western and Central Europe are the following: first, expanding the French model, the Prussian Edict of Emancipation of Jews of 1812, which granted citizenship to Jews in the Old Prussian territories, various retractions of this right in the German Confederation, then a new equalization boost during the revolution of 1848, followed by retractions in the 1850s, with a breakthrough finally in England in 1858, in Austria and Hungary in 1867, in the North German Confederation in 1869 and in the New German Empire in 1871.62 What is important here is not the history of Jewish assimilation, or the anti-­Semitism that began to emerge in the 1870s, but how a significant equalization movement could be completely dismantled, in this case by Nazism (and its allies) and turned into its opposite. In November 1935, based on the Nuremberg Laws of the same year, democratic suffrage was taken away from Jews. A 1936 trial before the Supreme Court of the Reich will be given as an example of how quickly and how far Nazi lawyers were able to distance themselves from the principle of civic equality before the law. The German film company UFA and a Swiss company concluded a contract in February 1933, according to which rights were transferred to the UFA to film a script by the author Erik Charell, with Charell himself directing. The UFA was allowed to withdraw from the contract if Charell’s directing activities “because of sickness, death or similar causes” were rendered impossible. 59. Christian Konrad Wilhelm von Dohm, Über die bürgerliche Verbesserung der Juden, 2 vols., reprint in one volume ([Berlin] Hildesheim: Olms, [1781–­83] 1973), I, 28. French edition, Paris 1782; new French edition with a preface by Dominique Bourel: De la réforme politique des Juifs, trans. Jean Bernoulli (Paris: Stock, 1984). See also Klaus L. Berghahn, “Eine Denkschrift für aufgeklärte Monarchen,” chap. 7 in Grenzen der Toleranz: Juden und Christen im Zeitalter der Aufklärung (Cologne: Böhlau, 2000), 127–­49. 60. Badinter, Libres et égaux, 196–­203. 61. The deputy Clermont-­Tonnerre in December 1789, quoted in Badinter, 137. 62. An excellent overview is found in Friedrich Battenberg, “Jewish Emancipation in the 18th and 19th Centuries,” European History Online (EGO), ed. Institut für Europäische Geschichte, Mainz, August 25, 2017, accessed May 29, 2018, http://ieg-­ego.eu/en/threads/european-­networks /jewish-­networks/friedrich-­battenberg-­jewish-­emancipation-­in-­the-­18th-­and-­19th-­centuries.

the six components of modern isonomy

77

Charell was Jewish. In April 1933, the UFA withdrew from the contract on the grounds that Charell was unable to exercise his directing activities at the UFA and sued the Swiss company to release the large deposit that had already been paid. The highest court of the Reich affirmed the UFA’s demand in all instances, justifying its decision as follows: “The former (liberal) theory of the legal status of personality made no distinction between races. . . .” According to the national socialist worldview, however, only “persons of German origin . . . should enjoy full legal rights.” This was “merely a renewal of fundamental limi­ tations of the former law of foreigners and the taking up of thoughts which in earlier times were recognized by the distinctions between persons having full le­ gal capacity and those who had only lesser rights.” The degree of “complete dep­ rivation of all rights is described as ‘civil death,’ ” since this abolished the legal personality as completely as bodily death does; indeed the constructs of “civil death” and “monastic death” received their names from this comparison. Since the contract mentions “sickness, death or similar cause” as possibilities preventing Charell from fulfilling his obligations, “there is without hesitation the change in the juridical quality of a personality due to legally recognized views of the politics of race [rassepolitische Gesichtspunkte] to be seen in anal­ ogy [dem gleichzuachten], insofar as it prevents the execution of a director’s task correspondingly as death or sickness would do.”63 In the autumn of 1938, still prior to the November pogrom, the chief judge of the Nazi party, Walter Buch, published the following statement in a legal journal: “The Jew is not a human being.”64 Following the November pogrom of 1938, a series of “steps of exclusion” occurred, with the particular turning point of the introduction of the “yellow star” in the fall of 1941, the mass killings that began in the summer of 1941 (initially in the conquered Ukraine) and the mass deportations that soon

63. My emphasis. Judgment of the Reichsgericht (Supreme Court of Germany), June 27, 1936, quoted from Juristische Wochenschrift 65 (1936): 2529–­31, here 2530. I was made aware of this decision by the very important work by Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, trans. E. A. Shils, in collaboration with Edith Lowenstein and Klaus Knorr (New York: Oxford University Press, 1941), here 95–­96. A new edition was published 2017 with an introduction by Jens Meierhenrich. An article of mine on this verdict of the Reichs­ gericht will appear in the (belated) 2019 issue of the Yearbook of the Simon Dubnow Institute for Jewish History and Culture in Leipzig. 64. Walter Buch, “Des nationalsozialistischen Menschen Ehre und Ehrenschutz,” in Deut­ sche Justiz: Rechtspflege und Rechtspolitik; Amtliches Blatt der deutschen Rechtspflege, vol. 100, ed. A, no. 42 (October 21, 1938): 1660.

78

chapter five

followed.65 These acts will not be described here.66 I will mention, however, the 13th Decree to the Reich Citizenship Law of 1 July 1943, which followed the arbitrary disenfranchisement and extermination of millions of Jews. It states tersely: “Punishable acts of Jews shall be punished by the police.” This completed the rescinding of Jewish emancipation. The right to a legal judge, one of the central fundamental rights in a constitutional state, a right that had already been circumvented tens of thousands of times by the Gestapo, was now formally abolished.67 o n t h e e q u a l r i g h t s o f w o m e n 68 The lines in Schiller’s Ode to Joy are well known: “Every man becomes a brother, where thy gentle wings abide.” They are soon followed by: “Brothers, o’er the stars unfurl’d, must reside a loving Father.” Is there any better proof for the “maleness” of conventional language than Schiller’s lines? Also, the three-­part motto of the French Revolution is “liberty, equality and fraternity.” There are no sisters. Through the ages of estates-­based systems, the position of women was a subordinate one, as has often been discussed. So was a prominent exception: female succession to the throne, which was allowed in certain countries—England, but not France—in order to uphold dynastic succession in ruling families. And there was one influential function held by women that should not be overlooked: that of the abbess, who was of great 65. The first mass murder of Jews (including many Jews from Hungarian-­occupied Carpatho-­ Ukraine who had been expelled from Hungary to the east) took place from August 26 to 29, 1941, in Kamianets-­Podilskyi in Podolia (Ukraine). Approximately 23,600 Jews were killed by firing squad. Snyder, Bloodlands, 199–­200. 66. See Konrad Kwiet, “Nach dem Pogrom: Stufen der Ausgrenzung,” in Die Juden in Deutschland 1933–­1945: Leben unter nationalsozialistischer Herrschaft, 4th ed., ed. Wolfgang Benz (Munich: C. H. Beck, 1996), 545–­659. 67. As late as June 5, 1943, two young Jewish sisters were prosecuted by the police in Breslau. They were sentenced to prison or penal servitude but were handed over to the Gestapo a few months later. They survived Auschwitz and Bergen-­Belsen. This has been documented by one of the two sentenced women, Anita Lasker-­Wallfisch, Inherit the Truth: A Memoir of Survival and the Holocaust (New York: Thomas Dunne Books/St. Martin’s Press, 2000). 68. Among the inestimable number of works in the field, I draw the reader’s attention to the following very few titles: Gerda Lerner, The Creation of Feminist Consciousness from the Middle Ages to 1870 (New York: Oxford University Press, 1993) (various later editions); Gerda Lerner, The Majority Finds Its Past: Placing Women in History (New York: Oxford University Press, 1979); Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1994); Ute Gerhard, ed., Frauen in der Geschichte des Rechts: Von der frühen Neuzeit bis zur Gegenwart (Munich: C. H. Beck, 1997).

the six components of modern isonomy

79

importance in times when convents offered unmarried or widowed women the best opportunity for refuge and protection.69 It was the rhetoric of the French Declaration of the Rights of Man and of the Citizen that put the position of women up for renegotiation, although initially nothing changed in their subordinate position; women were mainly seen as “different” and closer to “nature.” But it was not just “nature,” as I see it, that was the source of this subordination, but the legal figure of the Roman pater familias, who from times of antiquity well into the twentieth century remained an authoritative force by law or by tradition. “A fundamental reorientation in the sense of equal rights for men and women (in marriage and family law) ensued only in the second half of the twentieth century.”70 The resilience of the idea that domestiques belonged to the “whole house,” which was linked to their having an inferior legal status (also long after the Revolution, in fact, in some cases into the twentieth century, with a short exception when this status was abolished in the 1792 Constitution), also points in this direction.71 Women’s emancipation was a development of the nineteenth and, especially, the twentieth centuries. But steps toward equalization did spring from the French Revolution, such as the extremely liberal legislation of 1792 that established mutual consent as grounds for divorce. Under Napoleon this was soon restricted, in 1816 terminated completely, and only introduced again in 1884.72 Under the law of 1792, the majority of applications for divorce, from two-­thirds to three-­fourths, were filed by women.73 During the French Revolution, there were women and men who took the Declaration of the Rights of Man and of the Citizen seriously. Above all, 69. For a very early general survey, attention should be drawn to John Millar’s book first published in 1771, The Origin of the Distinctions of Rank, 4th ed. (London: William Smith, 1806), ed. Aaron Garretim (Indianapolis: Liberty Fund, 2006). The first and longest chapter of this book is entitled “Of the Rank and Condition of Women in Different Ages,” (93–­156). On Millar within the context of the Scottish Enlightenment, see Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 154–­81. 70. Barbara Dölemeyer, “Frau und Familie im Privatrecht des 19. Jahrhunderts,” in Frauen in der Geschichte des Rechts, ed. Gerhard, Frauen in der Geschichte des Rechts, 633–­58, here 658. 71. Only in 1930 were domestiques given the right in France to be appointed as members of a jury. See Rosanvallon, Le sacre du citoyen, 548. Claude Petitfrère, “Liberté, égalité, domesticité,” in Les droits de l’homme et la conquête des libertés: Actes du colloque de Grenoble-­Vizille 1986; Des lumières aux révolutions de 1848, ed. Michel Vovelle (Grenoble: Presses Universitaires de Grenoble, 1988), 248–­56. 72. Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge: Cambridge University Press, 1988), 256–­76. 73. Phillips, 260–­62.

80

chapter five

the Marquis de Condorcet should be mentioned; in 1790 he published an essay supporting women’s right to citizenship—De l’admission des femmes au droit de cité. His wife, Sophie de Condorcet, was also active as a feminist.74 The most famous among these personalities was Olympe de Gouges, the already mentioned author of the Declaration of the Rights of the Woman and of the Citizen, the heart of her book Les droits de la femme (The rights of the woman). Olympe de Gouges published this text, addressed to Queen Marie Antoinette, in October 1791, deliberately reformulating the 1789 declaration article by article as the Declaration of the Rights of the Women and of the (female) Citizen (the French citoyenne has no equivalent in English). It is important to consider the double sense in French of the word l’homme, which means both “person” and “man.” While the 1789 Declaration used l’homme in the sense of “person,” de Gouges’s l’homme is always a man.75 De Gouges, also active in the fight to abolish slavery, died in 1793 on the scaffold. Just as de Gouges used the French declaration as a model to demonstrate the logical contradiction of a male human rights declaration, American women used the American Declaration of Independence more than a half-­century later as a model in the Seneca Falls Declaration of July 1848.76 I would like to draw attention to a highly original defense of the equal rights and political legal capacities of women, as has been recounted by Pierre Rosanvallon. A deputy from northern France to the Constitutional Convention of 1793, Pierre Guyomar, pointed out the double meaning of the French word l’homme and stated that the droits de l’homme thus referred to people and not men. He therefore proposed speaking of the rights of the “individual” (my emphasis). This word most accurately denotes “persons of every gender, every age, etc.” In a democracy, both men and women are members of the realm. As long as only the men form a (political) state (corps), women will be

74. Israel, Revolutionary Ideas, 122–­23. 75. The text of de Gouges’s declaration printed in English translation can be found in Hunt, The French Revolution and Human Rights (see above, chap. 4, note 24). Literature on de Gouges in English is not large. See, however, both on Condorcet and Olympe de Gouges, Joan B. Landes, Women and the Public Sphere in the Age of the French Revolution (Ithaca, NY: Cornell University Press, 1988), 112–­17, 124–­27. See further, Sophie Mousset, Women’s Rights and the French Revolu­ tion: A Biography of Olympe de Gouges, trans. Joy Poirel (Piscataway, NJ: Transaction Publishers, 2007), and Annie K. Smart, Citoyennes: Women and the Ideal of Citizenship in Eighteenth-­ Century France (Newark, DE: University of Delaware Press, 2011). 76. The text of the Seneca Falls Declaration and Resolutions can be found in Commager, ed., Documents of American History, vol. 1, 315–­17.

the six components of modern isonomy

81

“the helots of the republic.”77 Also to be mentioned are two works on the equal rights of women that appeared in the revolutionary year of 1792. Mary Wollstonecraft (1759‒1795), an English champion of women’s rights, published A Vindication of the Rights of Woman.78 In the same year, Über die bürgerliche Verbesserung der Weiber (On the civil improvement of women) was published in Berlin by the Prussian civil servant and intermittent mayor of Königsberg, Theodor Gottlieb von Hippel. Its title was based exactly on the aforementioned work of another Prussian official, Christian Konrad Wilhelm Dohm, Über die bürgerliche Verbesserung der Juden.79 Hippel was friends with Kant, but Kant apparently did not subscribe to Hippel’s advocacy of women’s political rights.80 Hippel was critical of the French Revolution, since it had not granted political rights to women. Incidentally, Hippel found women partic­ ularly suited for work as judges.81 The political entitlement of women was an equalization movement not of the nineteenth, but of the twentieth, century, with World War I acting as an important catalyst.82 In some cases, the equalization of women’s rights in civil law (especially marital law) came even later than political equalization. In West Germany, the Basic Law provided that family law be equalized by March 1953. The date passed; the so-­called equal rights law only came into force on July 1, 1958. A husband’s right to end his wife’s employment without notice was voided. Full equality, however, was achieved only with the marital reform law of 1977 by replacing the division of labor in marriage by the principle of partnership. Also, the gainful employment of a woman without the

77. Pierre Guyomar, Le Partisan de l’égalité politique entre les individus, ou Problème très important de l’égalité en droits et de l’inégalité en fait (Paris 1793) (= third appendix to the session of the Constitutional Convention of April 29, 1793, Archives Parlementaires, vol. LXIII, 591–­99), quoted in Rosanvallon, Le sacre du Citoyen, 181–­82; see also Israel, Revolutionary Ideas, 361–­62. 78. Mary Wollstonecraft, A Vindication of the Rights of Woman, ed. Miriam Brody (Harmondsworth: Penguin Books, [1792] 1992). 79. Theodor Gottlieb von Hippel, Über die bürgerliche Verbesserung der Weiber, reprint of the ed. of 1828 (Vaduz: Topos Verlag, [1828] 1981). The first edition of 1792 is available online. 80. On the relationship between Hippel and Kant (both personal and in their thinking), see Ursula Pia Jauch, Immanuel Kant zur Geschlechterdifferenz: Aufklärerische Vorurteilskritik und bürgerliche Geschlechtsvormundschaft (Vienna: Passagen-­Verlag, 1988), chap. 8, 203–­36. 81. Jauch, 213, 216. 82. Birgitta Bader-­Zaar, “Women’s Suffrage and War: World War I and Political Reform in a Comparative Perspective,” in Suffrage, Gender and Citizenship: International Perspectives on Parliamentary Reforms, ed. Irma Sulkunen, Seija-­Leena Nevala-­Nurmi, and Pirjo Markkola (Newcastle: Cambridge Scholars, 2009), 193–­218.

82

chapter five

consent of her husband was made possible only with this law.83 In Austria, reforms took place throughout the 1970s. Most important was the 1975 federal law reorganizing the personal legal effects of marriage; the position of the husband as head of the family was abolished and the equal rights of women in the marital union were established. Also, the right of a husband to prohibit his wife’s employment was revoked. Housework was recognized as an equal contribution to the support of the family.84 In the Anglo-­American world, that is, in common law countries, the Norman tradition of coverture existed. It subordinated a married woman’s rights completely to those of her husband. She could not own property or enter contracts, hence the term feme covert. In contrast, an unmarried woman, a feme sole, had the right to own property and conclude contracts in her own name. In the course of the nineteenth century, both in England and in many of the states in the United States—where matrimonial law is not governed by federal law but by individual state law—coverture was gradually dismantled, although some remnants remained in a few US states, even into the second half of the twentieth century. In 1966, the Supreme Court recognized the still existing coverture law in the state of Texas (although it was abolished soon thereafter), despite the personal “distaste” of the judges against this “obsolete” institution. A minority vote by Judge Hugo Black lashed out at the coverture as an “archaic remnant of a primitive caste system.”85 Today, women in Western societies experience disadvantages and discrimination above all in relation to their professional life. More on this will be found in the section on positive discrimination. indigenous persons The colonial situation has been accurately described as “the distinctive complex of domination, exploitation and cultural conflict in ethnically heterogeneous political entities that were created by outside influence.”86 It would be just to make the overall picture even uglier and mention explicitly the aspect of physical violence.87 This does not only have to do with the first conquests, 83. “Erstes Gesetz zur Reform des Ehe-­und Familienrechts” of June 14, 1976, in force since July 1, 1977. 84. “Bundesgesetz über die Neuordnung der persönlichen Rechtswirkungen der Ehe,” BGBl. 412 of 1975. 85. US Supreme Court decision U.S. v. Yazell, 382 U.S. 341 (1966). 86. Jürgen Osterhammel and Jan C. Jansen, Kolonialismus: Geschichte, Formen, Folgen, 7th ed. (Munich: C. H. Beck, [1995] 2012), 30. 87. On this, see also: Hans Joas, “Folter und Kolonialismus,” in Sind die Menschenrechte westlich? (Munich: Kösel, 2015), 55–­67.

the six components of modern isonomy

83

such as in Mexico or Peru, but also those that occurred later. It includes the deportation of slaves—deported indigenous people ripped out of their tribal and language communities—­and their use as forced laborers in the capitalist plantation economies of Brazil, the Caribbean, and the southern United States.88 It also includes entire tribes being exterminated, such as the Herero in German Southwest Africa in 1904, as well as the consequences of uncontrolled rule with extreme brutality, such as in the Congo Free State of King Leopold II of Belgium (1885‒1908) in the course of rubber extraction—­ described in Heart of Darkness by Joseph Conrad.89 It includes the recurring expulsions of native peoples, practiced from the United States to Australia, by white settlers occupying ever more land. The legal situation of natives in the era of Western colonialism remained most unsatisfactory. In a judgment of 1919, the British Privy Council included in a decision this appalling consideration: some natives may be “so low in the scale of social organization as to render it idle to impute such people a shadow of rights known to our law.”90 In the United States, native-­born “Indians” were generally granted birthright citizenship rights only as of 1924, although there had been Indians with citizenship rights before due to treaties concluded with certain tribes. In Australia, only in 1967 did a constitutional amendment, approved by a referendum with 90 percent votes in favor, rescind the exceptional status of indigenous people (aborigines) and include them for the first time in national censuses.91 In this essay only two examples will be given, namely, examples that are closely related to its central topic: that of Spain and the spread of old European basic patterns of tiered social and legal systems in the Spanish-­ruled regions in Central and South America; and that of France and the charged

88. On the mental state of slaves, see the important work by the Jamaican-­born African-­ American Harvard professor of sociology: Orlando Patterson, Slavery and Social Death: A Com­ parative Study (Cambridge, MA: Harvard University Press, 1982). On the aspect of forced labor, see Jürgen Kocka, Capitalism: A Short History, trans. Jeremiah Riemer (Princeton, NJ: Princeton University Press, 2016), 55–­59. 89. On the Herero, see several articles in the volume of collected papers: A. Dirk Moses, ed., Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (New York: Berghahn Books, 2008). Regarding the Congo, see Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa, 2nd ed. with an epilogue (New York: Barnes & Noble, [1998] 2008). 90. In re: Southern Rhodesia (1919) AC at 233–­34, quoted by the Indian legal scholar Upen­ dra Baxi, in his important book The Future of Human Rights (New Delhi: Oxford University Press, 2002), 33. Emphasis added by Baxi. 91. It was only in 2007 that the United Nations Declaration on the Rights of Indigenous Peoples was concluded. Text available online.

84

chapter five

relationship between colonial rule and democratic ideas of equality after the French Revolution. It was only in the Spanish colonial empire, as has often been emphasized, that the indigenous peoples were involved after the conquista in the process of erecting Spanish institutions and duplicating its church in the viceroyalties of New Spain and New Castile (later Peru). This meant the construction of countless churches, monasteries, and secular administrative palaces. Outside Hispano-­America, indigenous peoples were marginalized, excluded or exterminated.92 In the Spanish possessions, indigenous tribal chiefs, the caciques, were put on the level of hidalgos, a lower category of the Spanish nobility, and were used by the Spaniards to control the ordinary indigenous peoples.93 Despite the famous criticism of the Dominicans, especially that of Bartolomé de Las Casas, and despite various efforts of the Roman Catholic Church (the Papal bull Sublimis Deus of 1537, which established that “Indians” were equally rational human beings) and the Crown (which in 1542, decreed the general prohibition of enslavement), only very slowly were the brutal practices of the sixteenth and seventeenth centuries mitigated. In Spanish America—­in contrast to Brazil, with its much larger number of African slaves on the one hand and North America with its sharp separation of white and Black (notwithstanding the existence of mulattos)—­a recognized population group, the mestizos, came into being, the offspring of whites and Amerindians, in part a result of the growing influx of indigenous peoples in the cities. There were numerous grades of such mixed people, including those who were part African. In the seventeenth and especially in the eighteenth century, the various possibilities of mixed couples led to the establishment of a hierarchical system of castas. It was a system frequently depicted in paintings, with such casta paintings containing sixteen hierarchically graduated images of (mixed) couples together with a child.94 The hierarchical structure of New Spain is made clear in a source from the year 1752, a report by a lawyer in Mexico that discusses the question of whether a man who has seduced a girl by promising her marriage could be legally obligated to wed her. The lawyer points out that if the seduced girl was of an inferior status and thus, if the man married her, would do more harm 92. Serge Gruzinski, The Mestizo Mind: The Intellectual Dynamics of Colonization and Glob­ alization (New York: Routledge, 2002), 62–­63. 93. On this, see Wolfgang Reinhard, Kleine Geschichte des Kolonialismus, 2nd ed. (Stuttgart: Kröner, 2008), 85. 94. See Ilona Katzew, Casta Painting: Images of Race in Eighteenth-­Century Mexico (New Haven, CT: Yale University Press, 2004). The volume contains many reproductions of casta paintings.

the six components of modern isonomy

85

to his family than the dishonor of his having seduced her and leaving her unmarried, then he did not have to marry her. The following examples are given: if a duke, an earl, a marquis or a nobleman of a known family seduces a mulatto girl, a china or coyota, or the daughter of an executioner, a butcher or a tanner, he does not have to marry her. A coyota was the daughter of a mestizo and a Native American (or vice versa); a china was the daughter of a mixed Native American or African father and an African mother (or vice versa). This list of groups that were considered lower or even “dishonorable” is interesting in that it includes professions also considered “dishonorable” in Europe, such as executioners or butchers and tanners (because they touch dead animals), as well as people belonging to different groups of mixed Mexicans (castas), whereby Africans or those of African descent were considered “dishonorable.” Marrying such a person, according to this legal report, would dishonor a noble family and “destroy a thing which gives splendor and honor to the Republic.” If, on the other hand, the seduced girl was of only slightly inferior status, then the seducer had to give the girl dowry; if she did not accept it, he was obliged to marry her.95 This source clearly shows that the European hierarchical class structure was broadened to include the element of skin color. The relatively integrated circumstances of the indigenous peoples—which only really began in the eighteenth century—as well as the mild images in casta paintings should not belie the fact that they lived—with the exception of indigenous chiefs—in extreme poverty, whether as workers on the land or in the cities. Alexander von Humboldt wrote an impressive description of Mexico at the beginning of the nineteenth century based on his own experiences traveling in the country from March 1803 to March 1804. He concluded that Mexico was “the country of inequality. Nowhere does there exist such a fearful difference in the distribution of fortune, civilization, cultivation of the soil, and population.”96 Humboldt’s description carries a whiff of Enlightenment spirit and the French Revolution, when he writes: The lawyers, who detest innovations, and the Creole proprietors, who frequently find their interest in keeping the cultivator in degradation and misery, maintain that we must not interfere with the natives, because, on granting them more liberty, the whites would have every thing to fear from the 95. Dictamen de Dr. Tembra (Madrid, Biblioteca National, Manuscritos de America), first published in English by Verena Martinez-­Alier (publishes also under the name Stolcke), “Elopement and Seduction in Nineteenth-­Century Cuba,” Past and Present 55, no. 1 (1972): 91–­129, here 91. 96. Alexander von Humboldt, Political Essay on the Kingdom of New Spain, 2 vols., trans. John Black (New York: I. Riley 1811), vol. 1, 186.

86

chapter five

vindictive spirit and arrogance of the Indian race. The language is always the same whenever it is proposed to allow the peasant to participate in the rights of a free man and a citizen. I have heard the same arguments repeated in Mexico, Peru, and the kingdom of New Granada, which, in several parts of Germany, Poland, Livonia, and Russia, are opposed to the abolition of slavery among the peasants.97

Now to the French developments after 1789. At the time of the revolution, France possessed only a few colonies—­in the Antilles, Guadeloupe, Martinique, Saint-­Domingue (today’s Haiti), Guyana, and in the Indian Ocean, the island of Réunion. In the course of the revolution, free persons of color were granted citizenship in 1792, and in 1794, after fierce conflicts involving revolutionary principles as opposed to the interests of plantation owners and slaveholders, slavery was abolished. In 1798, all colored and mixed persons were granted citizenship if they fulfilled certain conditions. With Napoleon, some of these steps were reversed, with slavery even reintroduced in 1802. Not to be forgotten are the series of uprisings on the island of Saint-­Domingue, later Haiti, from 1790 onward and ending in an unbelievably cruel war in 1802–­1803. Then Napoleon lost interest in the island, which declared its independence in 1804. During the July Monarchy, the equality of all free colored people was restored in 1833, and they were granted general civil rights, including suffrage (at the time, still very limited). The revolutionary year of 1848 brought both the unconditional abolition of slavery and the introduction of universal equal male suffrage for French citizens. In the meantime, however, the creation of a “second” French colonial empire had started, with the occupation of Algiers in 1830 and the annexation of Algeria in 1834. Upon occupying Algiers, France assured the inhabitants that their freedom would be respected as well as their religion (predominantly Muslim, but also Jewish). However, they were placed outside the jurisdiction of the Code civil and were not given French civil rights. This instigated debates regarding the legal status of indigenous Algerians, debates that were resolved in 1862 through a momentous court ruling which was finally put into force in 1864. The indigenous inhabitants of Algeria would indeed be ressortissants français—affiliated or belonging to the French state—but not français de France or French citizens. They would be French subjects, sujets. From then until 1946, the separation of citizen and subject, citoyen and sujet, became the primary source of legal inequality in the rapidly growing French colonial empire, which as of 1870 was governed by the democratic Third Republic. 97. Humboldt, 199‒200 (my emphasis). The first edition of Humboldt’s book was published in French in Paris in 1811.

the six components of modern isonomy

87

The Code de l’indigénat was implemented in Algeria in 1881; it has been retrospectively condemned as a “juridical monster.”98 It provided for summary punishments, including detention and fines that could be converted into forced labor.99 In fact, forced labor was frequently exacted. There was no possibility for appeal. Also other means were used to extract forced labor, and it played a major role in the African colonies. Only in 1946 was forced labor abolished.100 In 1919 and again in 1927, the Code de l’indigénat was abolished for parts of the population; it was finally abolished completely in 1944.101 After 1881, variants of the Code de l’indigénat were progressively extended to all of the French colonial empire. French naturalization of sujets was handled very restrictively. A special problem arose regarding a quite large group of “mixed” persons: the illegitimate children of indigenous women and French men, often soldiers who had been posted in the country temporarily and whose identity was often unknown. These children, following the status of their mother, were sujets, but their missing fathers were citoyens, French citizens. From the turn of the century, the French colonial administration increasingly sought to bring the status of these children into line with that of their fathers through complex procedures.102 The inequality of French and indigenous people was also expressed in the organization of colonial representative bodies, the “double council” system (deux collèges): one collège was elected by the citizens of the republic; the other represented the much larger number of indigenous people. As of 1944 the two council system was also used in Algeria. After World War II, there were bitter disputes in 1946 about abolishing this discriminatory system; nonetheless it was extended, to the detriment of the indigenous peoples, and only abolished in 1956 (and in Algeria as late as in 1958).103

98. Olivier Le Cour Grandmaison, De l’indigénat—­Anatomie d’un monstre juridique: Le droit colonial en Algérie et dans l’Empire français (Paris: Zones, 2010), 7–­12. 99. “Involuntary servitude” was accepted as a punishment for crime in the Thirteenth Amendment to the US Constitution. 100. The so-­called Law Houphouët-­Boigny, April 11, 1946. 101. “Statut juridique des indigènes d’Algérie,” French Wikipedia entry (accessed June 1, 2018). It includes a large bibliography. An overview may be found in Yerri Urban, L’indigène dans le droit colonial français, 1865–­1955 (Paris: LGDJ, 2011). 102. On this, see Emmanuelle Saada, Les enfants de la colonie: Les métis de l’Empire français entre sujétion et citoyenneté (Paris: La Découverte, 2007). The work is based particularly on primary sources from Indochina. 103. On these discussions, see Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French Africa, 1945–­1960 (Princeton, NJ: Princeton University Press, 2014), 114–­17, 134–­45 and passim.

88

chapter five

Ideologically, the colonial rule of the Third Republic was largely seen as France’s mission civilisatrice, the (ultimate) assimilation of indigenous peoples into French culture. The idea of a long-­term “guardianship” was often brought up as an argument; other colonial governments had used this notion as well.104 But in the age of social Darwinism there were also militant voices against this idea, among others that of the ethnologist and psychologist Gustave Le Bon.105 In 1910, the French diplomat Jules Harmand published the book Domination et colonization, in which he forthrightly and with rare clarity presented the incompatibility of democracy and colonial rule, also using the social Darwinist argument of the “universal law of life struggle.” He acknowledged that expansion through conquest was for a democratic conscience particularly unfair and disturbing, since it led to an “ipso facto aristocratic regime.” France, Harmand continued, tried to solve this paradox by assimilation, based on the belief in the equality of all people and their rapid perfectibility. The time had come to replace this utopian idea with views more in accordance with (Darwinist) science.106 With the victory of the Western democracies in World War II, France was forced to meet the increasing demands of its subject populations. In 1946, “all next of kin” (ressortissants) in the overseas territories were given citizenship (citoyens), thus eliminating the deplorable separation between subjects and citizens.107 This article was included in the French Constitution of October 27, 1946.108 It also established the “French Union,” which consisted of the 104. On this, see Martin Deming Lewis, “One Hundred Million Frenchmen: The ‘Assimilation’ Theory in French Colonial Policy,” Comparative Studies in Society and History 4 (1962): 129–­ 53. For a discussion going beyond the French colonies, see Jürgen Osterhammel, “ ‘The Great Work of Uplifting Mankind.’ Zivilisierungsmission und Moderne,” in Zivilisierungsmissionen: Imperiale Weltverbesserung seit dem 18. Jahrhundert, ed. Boris Barth and Jürgen Osterhammel (Constance: Universitätsverlag Konstanz, 2005), 363–­425, on the French mission civilisatrice, 369 and 372. 105. As for example, on the occasion of an “International Colonial Congress” held in Paris 1889, see Osterhammel, 137–­38. 106. Jules Harmand, Domination et colonisation (Paris: E. Flammarion, 1910), esp. 152–­53, 155–­56, quoted in Lewis, “One Hundred Million Frenchmen,” 148. Harmand’s book is available online. See also the text of a senior official in the colonial ministry of 1926, M. Tesseron, quoted in Saada, Les enfants de la colonie, 122. See also the recent article by Olivier Beaud, “L’Empire et l’empire colonial dans la doctrine publiciste française de la IIIe République,” Jus politicum, hors série—­2017: “Penser juridiquement l’Empire?,” 253–­412. 107. The so-­called Law of Lamine Guèye (an African deputy from Senegal), May 7, 1946; Cooper, Citizenship between Empire and Nation, 88. For more on this lawyer and socialist, who pushed through women’s suffrage in Senegal in 1945, see Cooper, 46–­49. 108. Article 80. Gosewinkel and Masing, Die Verfassungen in Europa, 370.

the six components of modern isonomy

89

French Republic on one hand, including its overseas departments and territories, and associated territories and states on the other. The latter included Vietnam, Cambodia, Laos, Morocco, and Tunisia. All five countries left the union between 1955 and 1957.109 In 1958, with the new French Constitution (the so-­called De Gaulle Constitution), the Union was transformed into the Communauté française, which gave the former “overseas territories” the opportunity to constitute themselves as its member states. One territory, French Guinea, did not join but declared its independence already in 1958. Another eleven regions constituted themselves as member states, but they all declared their independence in the course of the year 1960. De facto, the Communauté did not exist after 1960, but it was removed from the constitution only in 1995. Notwithstanding general civil rights being granted in 1946, structures such as the Union, but also the Communauté, could never shake off the superiority of France. It seems preposterous that the Communauté adopted as its symbols the Marseillaise, the French Tricolour, and celebrating the 14th of July!110 In this way, equal rights could never be achieved. The only real alternative to the former colonial empires, despite their gradually being granted autonomous powers, was their becoming independent states with equal rights under international law. citizens and foreigners First, it should be noted that since the emergence of the modern constitutional state, fundamental rights are the “rights of everyone”; they are rights not bound by the status of citizenship. Thus the Austrian Basic Law on the General Rights of Citizens of 1867, which is still valid, contains numerous rights that not only pertain to citizens, but to everyone, such as the inviola­ bility of property, personal freedom, freedom of belief and conscience, and many other rights.111 The Basic Law of the Federal Republic of Germany makes a distinction between the rights of everyone and “German rights.”112 In the current epoch of worldwide migrant flows, the status of foreigners, es­ pecially refugees and asylum seekers as well as illegal immigrants, as in 109. The First Indochina War (1946–­54) and the Algerian War (1954–­62) will not be discussed here. 110. Decree published in Journal officiel de la République française, February 17, 1959, 2051; see also the Wikipedia article “French Community” (accessed June 1, 2018). 111. Ludwig Adamovich et al., Österreichisches Staatsrecht, vol. 3, Grundrechte, 3rd ed. (Vienna: Verlag Österreich, 2019), 20. 112. Angelika Siehr, Die Deutschenrechte des Grundgesetzes: Bürgerrechte im Spannungsfeld von Menschenrechtsidee und Staatsmitgliedschaft (Berlin: Duncker & Humblot, 2001).

90

chapter five

the United States, is at the forefront of political discussions. There are chiefly three issues that have become the subject of conflict-­ridden discussions in politics and literature. First, the problem of regularizing people who are seeking asylum or have arrived in a country illegally or are overstaying their visa allowance. A powerful answer is, “No human is illegal.”113 Then comes the problem of naturalization, coupled with the problem of dual citizenship—­the latter usually being viewed critically by lawyers and state representatives but rather positively by representatives of civil society. And, finally, there is the problem of voting rights of the noncitizen resident populations. Scholarly writing in political science has been in the majority liberal and welcoming to foreigners—­as found in the publications of Rainer Bauböck, Etienne Balibar, Seyla Benhabib, and Catherine Colliot-­Thélène.114 The attitude of public opinion and of governments especially after the turn of 2015 in Europe seems in favor of restrictions. p o s i t i v e d i s c r i m i n at i o n ( a f f i r m at i v e a c t i o n ) Within measures for achieving equality, one that has emerged only in recent decades is the question of positive measures to help weaker and disadvantaged populations attain equality with more favored groups, or at least to reduce as many disadvantageous differences as possible. Such measures, once very aptly described as “promoting equalization” and in the Unites States best known as “affirmative action,” are now generally subsumed under the expression “positive discrimination.”115 The expression “reverse discrimination” has also been used.116 Although very seldom categorized as “positive discrimination,” progressive taxation is probably the most widely used form of politically conscious 113. Slogan of the “Immigrant Workers’ Freedom Ride” in Queens, NY, October 4, 2003; motto of the book by Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004). 114. Rainer Bauböck, Transnational Citizenship: Membership and Rights in International Mi­ gration (Cheltenham, UK: Edward Elgar, 2002); Balibar, Equaliberty, pt. 3: “For a Democracy without Exclusion”; Benhabib, The Rights of Others; Colliot-­Thélène, Democracy and Subjective Rights. 115. According to Paul Kirchhof in the section “Die Gleichberechtigung von Mann und Frau,” in Die Verschiedenheit der Menschen und die Gleichheit vor dem Gesetz (Munich: Private printing of the Carl Friedrich von Siemens Stiftung, 1996), 51–­59. 116. As for example, Ronald Dworkin, “Reverse Discrimination,” chap. 9 in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977). Dworkin is a proponent of affirmative action in the United States; on this, see also Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000), 386–­426.

the six components of modern isonomy

91

and law-­driven steps to reduce the disadvantages of certain sections of the population.117 A decision of the German Federal Constitutional Court saw tax progression as logically consistent with the principle of equality. A 1958 ruling expressly states that “in the area of taxation, formal equal treatment of rich and poor by applying the same rate of taxation would contradict the principle of equality.” The Federal Constitutional Court added: “Here, justice demands that in terms of proportional equality, economically more efficient persons should pay a higher percentage of their income than economically weaker persons.”118 An important chapter in positive discrimination is the affirmative action policy, notably in the United States but also that of other countries, of which I single out India, Canada, and South Africa. As to the United States, I shall limit myself to the field of education.119 In effect since the 1960s, its specific aim is the social equalization of the African-­American population and other disadvantaged sections of the population, such as Hispano-­Americans, Native Americans and also (chiefly in the field of employment) women. The most important arena where affirmative action has been applied is in admission policies to American universities. Due to the numbers of admissions being strictly limited, introducing quotas for members of disadvantaged groups has led to the discrimination of more-­qualified candidates from the generally more-­privileged members of the population. Among several Supreme Court decisions, the Bakke case of 1978 is of interest in view of one of the opinions submitted. The case (filed by the University of California Medical School), with the safeguards for civil rights in the United States Federal Constitution its focus, ended with a compromise: stricter rules were to be followed for the favoring of minorities, but affirmative action was not to be abolished, and the plaintiff, a citizen of Norwegian descent, was allowed 117. A reference to tax progression can be found in the separate vote of a member of the United States Supreme Court, Justice Harry Blackmun, in a famous case in 1978 that examined the constitutionality of preferred admission to American universities for members of minority groups (African-­American, Hispanic, Native American, etc.). On this, see Gerald Stourzh, “Gleichheitsgebot und Benachteiligtenförderung: Der Fall Regents of the University of California v. Bakke vor dem US Supreme Court, 1978,” in Der Rechtsstaat vor neuen Herausforderungen: Festschrift für Ludwig Adamovich zum 70. Geburtstag, ed. Bernd-­Christian Funk et al. (Vienna: Verlag Österreich, 2002), 773–­89, here 789. 118. 1. Parteispendenurteil des Bundesverfassungsgerichts (First judgment on gifts to political parties), June 24, 1958, Entscheidungen des Bundesverfassungsgerichts, vol. 8, 51-­1, B-­IV, Randnr. 70. 119. A useful summary of US affirmative action cases is to be found in George Gerapetritis, Affirmative Action Policies and Judicial Review Worldwide (Cham, CH: Springer International Publishing, 2016), 92–­110.

92

chapter five

admission as a student. One of the most measured opinions came from Judge Harry Blackmun, who advocated African-­Americans being favored as a temporary yet necessary policy, as “transitional inequality.” The racism in America forced one to consider the factor of “race”: for some people [those belonging to the African-­American minority, G.S.], to receive “equal” treatment, they must be treated “differently.”120 A rather narrow vision of affirmative action emerged from two Supreme Court judgments in 2003. In Grutter v. Bollinger, the Court, upholding a University of Michigan Law School program of affirmative actions on grounds of its favoring the variety students, did not permit the admission of a white student who was just below the criteria for the admission of majority students, yet would have easily met the standards for the admission of minority students.121 In Gratz v. Bollinger, the Court struck down as unconstitutional a University of Michigan undergraduate program which gave minority students an automatic advantage of 20 points.122 In April 2014, the policy of affirmative action was further narrowed by a Supreme Court ruling of six votes against two in the Schuette case from Michigan. The conservative majority of the Court decided that an amendment to the state constitution of Michigan, which declares “race-­sensitive” admission to public state universities inadmissible, to be in accordance with the Federal Constitution. That meant that affirmative action could not be required anymore, but it was not a complete interdiction. The liberal minority of the two women Supreme Court Justices, however, presented a passionate minority verdict.123 The author, Sonia Sotomayor, is the only Hispanic Supreme Court member. Sotomayor, of Puerto Rican descent, even owes her studies at two top American universities (Princeton and Yale) to affirmative action programs and grew up in very constrained social circumstances.124 She defended the importance of protecting minority rights from majority decisions: “The majority may not suppress the minority’s right to participate on equal terms in the political process.” Rarely has the age-­old conflict between majority will and minority rights been as strongly and clearly articulated as in this case.125 For the time being, the last important case was Fisher v. Univer120. Separate vote by Justice Blackmun in the case of Regents of the University of Califor­ nia v. Bakke, 438 U.S. 265 (1978), 403–­7. 121. 539 U.S. 306 (2003). 122. 539 U.S. 244 (2003). 123. The third female Justice of the Supreme Court, Elena Kagan, did not take part in this case. 124. See Sonia Sotomayor’s autobiography, My Beloved World (New York: Knopf, 2013). 125. US Supreme Court decision Schuette v. Coalition to Defend Affirmative Action (BAMN), 572 U.S. 291, April 22, 2014. The syllabus is available online. In 2020, according to

the six components of modern isonomy

93

sity of Texas II, decided in 2016, in which the Court accepted the race-­aware policy of the University of Texas as constitutionally admissible. Although what is called affirmative action in the United States was primarily designed to better the status of African-­American citizens, it has also benefited women in professional life, not only in America, but also and especially in Europe. This policy, formerly and perhaps more clearly referred to as “support of equalization,” is now generally called positive discrimination. It is considered constitutionally legal under European law as part of guaran­tees of equality. Article 3, paragraph 2, of Germany’s Basic Law originally read: “Men and women have equal rights.” In 1994, as part of a constitutional reform, a second sentence was added that specifically anchors the support of equalization/ positive discrimination in the constitution: “The state promotes the effective enforcement of equal rights for women and men and works to eliminate disadvantages.” The Austrian Federal Constitution has included a commitment to the “actual” equality of men and women since 1998, when the following sentence was added: “Measures for the advancement of the factual equal position of women and men by the elimination of actually existing inequalities are admissible.”126 The Charter of Fundamental Rights of the European Union contains an entire title on equality, Chapter III. Its Article 23, “Equality between men and women,” reads: “Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-­represented sex.” This can be seen as a “comprehensive claim of validity” for gender equality.127 This article is considered the most modern formulation of the precept of equality between men and women.128 In line with several EU directives to consolidate women’s equality, the European Court of Justice has decided numerous cases in favor of equal treatment of women. Only two decisions will be mentioned here. In a judgment of January 11, 2000, the European Court of Justice ruled in favor of a plaintiff who felt that her right to equal treatment had been violated by the German armed forces having rejected her application as an electronics

Wikipedia, eight states have prohibited affirmative action, including California and, since 2020, Idaho. 126. Article 7 (2) of the Austrian Federal Constitution. I am grateful to Ludwig Adamovich for bringing this and other points to my attention. 127. Text with commentary in Charta der Grundrechte der Europäischen Union, 4th ed., ed. Jürgen Meyer (Baden-­Baden: Nomos, 2014), 418–­27. Text in English available online. 128. Meyer, 424.

94

chapter five

technician to repair weapons.129 The armed forces based its rejection on the then applicable Article 12a, paragraph 4, of the Basic Law, that women “under no circumstances may . . . be required to render service involving the use of arms” (also § 1, para. 2 of the German Soldatengesetz [Soldiers Act]). The ECJ ruled that this provision contradicted the EU directive on equal treatment of men and women (76/207/EC). The Basic Law (Article 12a, para. 4) had to be amended by the law of December 19, 2000. Although the Basic Law now stipulates that women cannot be obliged “to render service involving the use of arms,” professional female soldiers can now be trained in the use of weapons, and the number of female soldiers has since risen sharply.130 In a 2011 case in Belgium, the ECJ ruled that considering gender a risk factor in insurance contracts constitutes discrimination against women; as of December 2012, the rule of gender-­neutral bonuses and benefits is to be applied.131 Before leaving the West, a brief glance at Canada. Since 1982, Canada possesses as part of its constitution the “Charter of Rights and Freedoms.” The charter, in its article on equality rights (Article 15), affirms the equal rights of all people living in Canada. Yet in section 15.2. it grants an exception in favor of affirmative action. “Affirmative action programs are specifically allowed for the amelioration of conditions of disadvantaged individuals or groups.” The Supreme Court of Canada upheld this section in a case in 1987. The Canadian National Railway Company had raised a complaint against a rule derived from the charter’s section on affirmative action which laid down that the railway company must hire one woman among four persons hired into unskilled blue-­collar jobs. The Court rejected the railway company’s complaint in favor of upholding the obligation to hire women.132 Of great importance is positive discrimination in nations who are burdened with huge problems of social inequality, such as India or South Africa. In India, inequality is chiefly due to the caste system, abolished by the constitution of 1950, but persisting in view of its close connection to the Hindu religion, and also due to the existence of religious minorities, such as Islam or Christianity. Legal and social inequalities were attacked soon after independence in the constitution of India of 1950, which gave room for “reservations”—­thus the official name for positive discrimination or affirmative action. Three points need to be put on record. 129. Case C-­285/98, Tanja Kreil v. Federal Republic of Germany, decision of January 11, 2000. 130. In the end, the plaintiff, Tanja Kreil, did not take up service in the German armed forces. 131. Case C-­236/09, March 1, 2011. 132. Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes (1987), 8 C.H.R.R. D/4210 (S.C.C.).

the six components of modern isonomy

95

First, the Indian constitution proclaims the equality of all citizens (Arti­ cles 16–­18). Second, it identifies large groups of the population which are entitled to “reservation,” formally in contradiction to the principle of equality. One group were the “Scheduled Castes” (SCs), the untouchables or “Dalits,” below the normal caste system and “traditionally viewed as the most ‘polluted’ members of Indian society.”133 To this group were added the “Scheduled Tribes” (STs), India’s indigenous peoples, also outside and below the caste system. A third group entitled “Other Backward Classes” (OBCs), consisting chiefly of “Shudras,” the second lowest caste group and also considered as “polluted,” was first excluded from the protecting “reservations,” yet admitted in 1990. The advantages provided for these groups were given in the fields of public (not private) employment and of education.134 Third, the Indian Supreme Court, apart from its traditional task as serving as highest court of appeal, was empowered with original jurisdiction to decide on complaints being filed by individuals concerning the violation of fundamental rights (Article 32 of the Constitution). Standing rights to complain to the Supreme Court on the violation of individual rights were enlarged when the Court allowed any Indian citizen to file complaints for violation of fundamental rights on behalf of other citizens too poor or disabled to file a complaint for themselves! In addition, the Court developed the practice of taking up fundamental rights cases on its own initiative (suo motu). I shall again refer to the Court’s vast possibilities in the field of fundamental liberties later. It has been estimated that more than half of India’s population, due to its social disadvantages, is eligible to profit from the “reservations” aforementioned.135 Summing up the three points just enumerated, one must conclude that the Indian state has established one of the most powerful systems of affirmative action anywhere. India has been called “the greatest affirmative action laboratory in the world.”136 The Republic of South Africa, after the great turn of the early 1990s and under influence of Nelson Mandela, provided in its interim Constitution (1993) and in its definitive and current Constitution (1996) for vast areas of affirmative action. The definitive Constitution proclaimed in Section 9, § 2: “Equality includes the equal enjoyment of all rights and freedoms.” Yet it added significantly: “To promote the achievement of equality, legislative 133. Stephan Stohler, Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States (Cambridge: Cambridge University Press, 2019), 134. 134. Stohler, 134. 135. Stohler, 145. 136. Gerapetritis, Affirmative Action Policies, 150.

96

chapter five

and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”137 Affirmative action measures increased under Mandela’s successor Thabo Mbeki, notably in the area of business transformation, encouraging Black ownership and control over businesses, as well as in the area of bureaucracy and public employment in general.138 The Evolution of Fundamental Rights139 The idea of “fundamental rights” developed out of the notion of “fundamental laws.” This can be shown in Europe beginning in the second half of the sixteenth century and continuing more clearly during the seventeenth century. Fundamental laws were addressed during the French confessional conflicts of the 1570s in the writings of the Protestant-­friendly lawyer and politician Innocent Gentillet, who named three fundamental laws regarding the French monarchy: the lex salica (this referring to the tenet of excluding female succession to the throne, which was de facto anchored in France in the mid-­ fourteenth century and thus much later than the sixth-­century Salic code); second, the inalienability of the possessions of the Crown; and third, the existence of three estates. It was the third, where the rights of Frenchmen—­of different order—­emerged, that was the most important to Gentillet.140 At the beginning of the seventeenth century, King James I of England (concurrently James VI of Scotland) stated that the laws called “fundamental laws” in Scotland were those “whereby confusion is avoided,” that is, those regulating succession to the throne. Laws of succession can indeed be called the “fundamental laws” of monarchies; an example is the 1713 edict of the Pragmatic Sanction regarding the Habsburg Empire. The situation in seventeenth-­century England was a little different. Unlike the fundamental laws of Scotland, as James I continued, there exists a “common law” that is responsible “for the fundamental lawes of this Kingdome.” On one hand, this concerned the prerogatives of the king, on the other, the “the possessions 137. Gerapetritis, 193. 138. Gerapetritis, 204–­16, with special emphasis on the helpful judicature of the Supreme Court. The largest bibliographical compilation of works on affirmative action anywhere is to be found, to my knowledge, in this book by Gerapetritis. 139. For this brief section, I have used materials gathered for earlier works in which I have presented the development of the constitutionalization of individual rights in detail. See my own works listed in the bibliography, particularly Stourzh 1974, 1975, 1981, 1995, 1999a. 140. Stourzh, “Naturrechtslehre, leges fundamentales und die Anfänge des Vorrangs der Verfassung” (1995), 17.

the six components of modern isonomy

97

of the Subjects,” either within the relationship between the king and one of his subjects, or between the subjects themselves, “in the points of meum et tuum.” This is where the rights of the individual subject or person, that is, above all, the right to own property, emerge as part of the fundamental laws of England. The expressions “fundamental laws” or “fundamental liberties” are repeatedly found in seventeenth-­century England, used in references to the rights of “free-­born Englishmen” and, especially, to the right of protection against arbitrary arrest (the Habeas Corpus Law of 1679).141 In the eighteenth century, William Blackstone, in his famous Commentaries on the Laws of En­ gland, based all constitutional order on the rights of the individual. This is why I have spoken of a fundamentalization of individual rights in England. But in England, there never existed a dissociation between ordinary laws and laws of formally higher ranking above the simple majority criterium of a majority of 50 percent plus one person, nor does such a dissociation exist today. The habeas corpus law of 1679 was, like the Bill of Rights of 1689 (actually the Declaration of Rights), a simple law; it was even suspended several times, once for seven years (1794–­1801). In England there was, and is, no distinction made between simple and higher-­ranking laws. However, initial steps toward this kind of distinction were indeed made during the colonial period in North America, with particular clarity, as already mentioned, in the founding document of the colony of West New Jersey of 1676. An exceptional section of this document Concessions and Agreements is titled “Charter or fundamental laws of West New Jersey agreed upon,” in which it is declared that the “Legislative Assembly” is subordinate to these fundamental articles and that it is prohibited from concluding laws contradicting them. These were prohibitions for a “legislative” assembly! One must consider how enormously this differs from the concept of law in Hobbes or Rousseau! There begins in North America a tradition that was to continue after the colonies’ independence, a tradition that is expressed forcefully in the First Amendment to the US Federal Constitution. There it is proclaimed that the federal legislator is forbidden to establish a national religion or to prohibit the free exercise of religion; further, it is prohibited to restrict the freedom of speech and the press, the right of assembly, and the right to petition! Preceding this, the short period between 1776 and 1780 is of particular importance, because the states ratified their individual constitutions (with two exceptions). Most of these were furnished with catalogs of individual rights. The 141. On this, see Stourzh, “Grundrechte zwischen Common Law und Verfassung: Zur En­t­ wicklung in England und den nordamerikanischen Kolonien im 17. Jahrhundert” (1981), republished in Stourzh, Wege zur Grundrechtsdemokratie, 75–­89.

98

chapter five

first and most famous catalog, the Virginia Declaration of Rights of 1776, was adopted as ordinary law as a separate document from the constitution itself. But the ensuing catalogs of rights were part and parcel of the higher-­ranking state constitutions. Since the ratification of these state constitutions (with that of Massachusetts being particularly sophisticated), it is possible for the first time in Western history to speak of constitutions that have one part which establishes fundamental rights and another which deals with the organization of state and government. In December 1787, an as yet unidentified American author published an essay listing a tiered order of rights, “Letters from the Federal Farmer”: Of rights, some are natural and unalienable, of which even the people cannot deprive individuals: Some are constitutional or fundamental; these cannot be altered or abolished by the ordinary laws; but the people, by express acts, may alter or abolish them.—­These, such as the trial by jury, the benefits of the writ of habeas corpus, &c. individuals claim under the solemn compacts of the people, as constitutions, or at least under laws so strengthened by long usage as not to be repealable by the ordinary legislature [presumably referring to Magna Charta]—and some [rights] are common or mere legal rights, that is, such as individuals claim under laws which the ordinary legislature may alter or abolish at pleasure.142

This statement is reminiscent of the theory of the hierarchical or gradated structure of law developed by the twentieth-­century Austrian legal scholar Adolf Merkl, a pupil and friend of the eminent Austrian jurist and legal philosopher Hans Kelsen (so-­called Stufenbau der Rechtsordnung). For Kelsen and Merkl, however, natural rights as mentioned here in the first position are not included. In Europe, the first constitution of this type was the French Constitution of 1791. Another characteristic that ranks these constitutions higher than ordinary laws are their stipulations of complex procedures for resolutions and amendments. I have referred to the anchoring of individual rights in constitutions as the constitutionalization of individual rights.143 With the anchoring of individual rights in higher-­ranking constitutional law, it makes sense to 142. “Letters from the Federal Farmer,” in The Complete Anti-­Federalist, 7 vols., ed. Herbert J. Storing (Chicago: University of Chicago Press, 1981), here vol. 2, 261 (letter 6). The authorship was recently attributed to Melancton Smith of New York, an opponent of the Federal Constitution. Also quoted in Stourzh, From Vienna to Chicago and Back, 321. 143. I already proposed that there is a difference between fundamentalization and consti­ tutionalization in the first version of my 1975 essay “Vom aristotelischen zum liberalen Verfassungsbegriff,” expanded version in Stourzh, Wege zu Grundrechtsdemokratie, 29.

the six components of modern isonomy

99

refer to these rights as constitutional rights or often as basic or fundamental rights (Grundrechte), expressions that have become largely common, especially in legal terminology.144 Equipping individuals with higher-­ranking “fundamental rights” in relation to “ordinary” laws has been part of the process of composing and implementing constitutions, a process that reaches from the late eighteenth century into the present. This enshrining of such rights in a constitution soon, and increasingly, included equality before the law, as the examples from Germany cited above show. Initially, provisions regarding fundamental rights in constitutions were invitations for the legislature to observe or promote these rights in its legislation. But the great and ultimately paramount importance of fundamental rights began at the moment they became legally enforceable. This happened early in the United States but only much later in Europe and other parts of the world. The Protection of Fundamental Rights as Part of Constitutional Justice As John Locke wrote in 1689, “Inter legislatorem et populum nullus in terris est judex”—­“There is no judge on earth between the legislature and the people.” To the question “Quis erit inter eos judex?” (Who will judge between them?) Locke replied: “Solus Deus”—“God alone.”145 He meant the court of God— and thus, in this world, fight, with the victor having the blessing of God. With ordinary legislation separated from the constitution, the possibility emerged of finding a secular “judge” between the legislature and the people, namely, judges empowered to measure legislation against the “higher” people’s will, the Constitution. This development is particularly easy to follow between 1776 and 1789 in the United States; such cases were already conducted in the 1780s in some American states, a notable case occurring in North Carolina. The North Carolinian case Bayard v. Singleton of 1786–­87 can be considered the most important precursor of Marbury v. Madison. A North Carolina law had stated that claims for the restitution of property of loyalists that had been confiscated by the State and subsequently sold must be rejected by the courts. In this case, the judges of the Supreme Court had grave doubts that the Constitution of North Carolina permitted such a rejection, since the 144. I do not share the more general and nonlegal criteria of fundamental rights as defined by Schmale, Archäologie der Grund-­und Menschenrechte, 95. 145. John Locke, Epistola de tolerantia, ed. Mario Montuori (The Hague: Nijhoff, [1689] 1963), 86.

100

chapter five

constitution provided that property claims had to be decided in ordinary legal proceedings, including trial by jury. No act of the legislature could revoke or change the constitution. Thus the court granted to the plaintiffs the right to claim their lost property, but they finally lost the case for other reasons. Now it is most interesting that one of the lawyers for the plaintiffs, James Iredell, argued in an article for the right of judicial review by the Supreme Court with a clarity and incisiveness that is at least as impressive as Hamilton in No. 78 of the Federalist or Marshall in Marbury v. Madison. The British-­born Iredell, later appointed by George Washington as a Justice of the Federal Supreme Court, argued that there were three possibilities to react if the legislative assembly were to violate the constitution. So far, either the right of petition or the right of resistance were accepted remedies. He ridiculed the right of the sovereign to petition its own representatives. As far as the right of resistance was concerned, he doubted that the majority of the people would stand up in defense of the violation of individual rights: “A majority may see A.B., C.D. and E.F. and hundreds of others quietly injured and not stir a step toward a civil war.” Yet there was a third remedy: judicial power. Iredell emphatically affirmed the right of the judicial power to judicial review: It will not be denied, I suppose, that the constitution is a law of the state, as well as an act of Assembly, with this difference only, that it is the fundamental law, and unalterable by the legislature, which derives all its power from it. One act of Assembly may repeal another act of Assembly. For this reason, the latter act is to be obeyed, and not the former. An act of Assembly cannot repeal the constitution, or any part of it. For that reason, an act of Assembly, inconsistent with the constitution, is void, and cannot be obeyed, without disobeying the superior law, to which we were previously and irrevocably bound. The judges, therefore, must take care at their peril, that every act of Assembly they presume to enforce is warranted by the constitution, since if it is not, they act without lawful authority. This is not a usurped or a discretionary power, but one inevitably resulting from the constitution of their office, they being judges for the benefit of the whole people, not mere servants of the Assembly.146 146. James Iredell, “To the Public,” published in Newbern, NC, August 17, 1786, republished in Life and Correspondence of James Iredell, ed. Griffith McRee (New York, 1858), II, 147–­48. Emphasis in the original. I have referred to this magnificent text as early as 1977 in my article “The American Revolution, Modern Constitutionalism, and the Protection of Human Rights,” in Truth and Tragedy. A Tribute to Hans J. Morgenthau, ed. Kenneth Thompson and Robert J. Myers (Washington, DC: The New Republic Book Company, 1977), 162–­76, here 171. The significance of Iredell has long been underestimated. It is fully appreciated by Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT: Yale University Press, 1990), 45–­53.

the six components of modern isonomy

101

Thus Locke’s call to resistance, since God as judge meant resistance, was replaced by laws being examined by a supreme court with powers of constitutional adjudication. Also the federal judicature of the United States adopted this view, so it came to the famous case in 1803 of Marbury v. Madison, the case that established the principle of judicial review on the federal level, the power of judging whether a law is constitutional or unconstitutional and in the latter case to be invalidated. Also, in revolutionary France the constitution was separated from the legislature. The brilliant mind of Emmanuel Sieyes led him in 1795 (year III of the French Republican Calendar) to conceive of a jury constitutionnaire, having the power to declare laws inconstitutionnel and to repeal them. Sieyes’s attempt was not successful; his motion at the Constitutional Convention was unanimously rejected. But in the context of this essay, it is of great interest that Sieyes proposed the individual appeal. In his conception, appeals to the constitutional jury, which was to be formed not of professional judges, but of 106 former deputies, could be brought forward by the two chambers of the proposed parliament (the Conseil des Anciens and the Conseil des 500). But an appeal could also be brought forward by citoyens au nom individuel—­citizens in their own name!147 In addition to the separation of the legislature and the constitution, the rights of individual persons were included in constitutional texts, first in America, as mentioned in the previous section. Individual rights as found in the constitution were also liable to be examined under the procedure of judicial review. From the decades following the Civil War, throughout the twentieth century and until today, the Supreme Court has received and continues to receive cases to judge on the issue of constitutionality. The special procedure for appointing justices to the US Supreme Court—­nomination by the President, advice and consent by the Senate and sitting for lifetime—­has created considerable political problems.148 These are much less acute in other countries where nominations to the constitutional courts are made by a balance of persons representing different branches of government, including

147. See Pasquino, Sieyes et l’invention de la Constitution, 93–­97. Text of Sieyes’s petition du jury constitutionnaire in Pasquino, 193–­96; individual appeals in Article VI of the petition, 194. 148. During the Obama presidency, in 2016—­an election year—­the Republicans on the Senate Judiciary Committee were not willing even to discuss the nomination by Obama of Merrick Garland and thus blocked the presidential right of carrying through a nomination. This action, without precedent, evoked strong criticism among the American legal profession, with only a few jurists in support of the Republicans’ position. See the Wikipedia article “Merrick Garland Supreme Court nomination.”

102

chapter five

parliaments and political parties, and where the duration of officeholding is limited. In Europe, fundamental rights were initially included in constitutions as guidelines for legislators to respect; indeed, they were not more than guide­ lines as long as violations of fundamental rights could not be appealed. Not only were such appeals introduced in Europe much later, the institutional structures for such appeals were also different from those for the United States. First efforts in this direction were made during the Revolutions of 1848/49, although these constitutional plans remained on paper and were not implemented. The most important precursor to the constitutional complaint was a provision in the Bavarian Constitution of 1818 granting citizens the right to bring “complaints of violations to constitutional rights to the Assembly of Estates.”149 A first real constitutional complaint is provided for in the Frankfurt Constitution of 1849, which stipulates that “complaints of German citizens regarding violations of rights granted them by the Empire’s Constitution” had to be decided by the Empire’s Court (Reichsgericht).150 In Austria, the so-­called Kremsier constitutional draft of 1848/49 states that the Supreme Imperial Court was the only court that could judge “appeals to satisfy violations of constitutional rights by official acts of state employees.”151 These first constitutional steps of the 1848/49 Revolutions were anchored in German law only decades later, in part in the 1919 Weimar Constitution with its Bill of Rights. Yet it was only after World War II that the German Federal Constitutional Court was created in 1951 and even later that the individual complaint on violations of constitutionally guaranteed rights became part of the Bonn Basic Law (amendment of 1969). In contrast, the individual constitutional complaint became anchored in Austria as early as in 1867 within the framework of a specific historical constellation—­the adoption of a liberal constitution as part of the Austro-­ Hungarian Compromise. In the Basic Law Establishing a Supreme Court of the Empire (Reichsgericht) of 1867, one competence assigned to this Court, 149. Titel VII, § 21. On this, see Max Seydel, Bayerisches Staatsrecht (Munich: Riedel, 1885), vol. 2, 30–­56. On this and the following, see Gerald Stourzh, “Verfassungsgerichtsbarkeit und Grundrechtsdemokratie—­die historischen Wurzeln” (1991), republished in Stourzh, Der Um­ fang der österreichischen Geschichte, 157–­79, esp. 168–­70. 150. See § 126g of the Frankfurt Constitution. On the introduction of the right to appeal, see Hans Joachim Faller, “Die Verfassungsgerichtsbarkeit in der Frankfurter Nationalversamm­ lung,” in Menschenwürde und freiheitliche Rechtsordnung: Festschrift für Willi Geiger zum 65. Geburtstag, ed. Gerhard Leibholz and Hans Joachim Faller (Tübingen: J. C. B. Mohr, 1974), 827–­55. 151. See § 140, Abs. 1. Edmund Bernatzik, ed., Die österreichischen Verfassungsgesetze mit Erläuterungen, 2nd ed. (Vienna: Manz, 1911), 129.

the six components of modern isonomy

103

was to hear “appeals of citizens regarding violations of the political rights guaranteed to them by the Constitution” (after they had followed specific administrative procedures).152 Decisions of this Imperial Court did not yet have the effect of an annulment: while a decision could be declared wrong, it could not be voided. Nonetheless, with this possibility for individual appeal, Austria—that is, the non-­Hungarian parts of the Austro-­Hungarian Monarchy—took up what had been initiated in the Revolutions of 1848, thereby playing a pioneering role in Europe.153 Following World War I, the Reichs­gericht was transformed by the law of January 25, 1919, into the German-­Austrian (deutschösterreichischer) Verfassungsgerichtshof—­Constitutional Court—­the first court in world with this name!154 After the definitive Austrian Constitution of October 1, 1920, this first court was transformed into the Verfas­ sungsgerichtshof, with the election of new members according to the new constitution in July 1921. The republican courts took over the institution of the constitutional complaint from the imperial Reichsgericht, yet with the additional competence that the judgments of the Constitutional Court now were binding and thus voided previous laws or regulations declared unconstitutional.155 Hans Kelsen’s influence in the creation both of the provisional court of 1919 and the definitive court of 1920 was considerable. Kelsen, incidentally, was a member of both courts. Also established, as second constitutional court in Europe, was the Czechoslovak Constitutional Court in February 1920. It had lesser powers and no procedure for individual complaints.156 152. Article 3b of the Basic Law on Establishing a Supreme Court of the Empire (Reichs­ gericht), Bernatzik, Die österreichischen Verfassungsgesetze mit Erläuterungen, 428. 153. The developments in Austria from 1867 to 1918 are virtually unknown among Anglo-­ American scholars of the history of judicial review. For more on this, see Gerald Stourzh, Die Gleichberechtigung der Nationalitäten in der Verfassung und Verwaltung Österreichs 1848–­1918 (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1985), a study based on the analysis of about 115 constitutional complaints in the field of linguistic and ethnic conflicts. 154. Many scholars begin the story of the Austrian Constitutional Court with the Constitution of 1920; for example, David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, NJ: Princeton University Press, 2010), 11. Robertson is also mistaken when writing that the Nazi state rose in Austria in 1934 (Robertson, 11). See, however, Georg Schmitz, “The Constitutional Court of the Republic of Austria 1918–­1920,” Ratio Juris 16, no. 2 (2003): 240–­65. 155. In Austria, this is called Individualanfechtung (individual appeal) or Individualantrag (individual application). Federal Constitutional Law, Article 140 “Anfechtung der Verfassungswidrigkeit von Gesetzen” (Contesting the unconstitutionality of laws), Article 139 “Anfechtung der Gesetzeswidrigkeit von Verordnungen” (Contesting the illegality of regulations). 156. For Austria, see Kurt Heller, Der Verfassungsgerichtshof: Die Entwicklung der Ver­ fassungsgerichtsbarkeit in Österreich von den Anfängen bis zur Gegenwart (Vienna: Verlag

104

chapter five

The actual triumph of the constitutional courts and the constitutional complaint in Europe and the other continents—­notably in India and South Africa—­came only after World War II. The first country to establish a constitutional court, as already mentioned, was Italy (Constitution of 1947), without individual constitutional complaint.157 Then the Federal Republic of Germany (Basic Law 1949) established a constitutional court, followed by many other countries, probably the most important among these being the Supreme Court of India, established with the Constitution of 1950. As of 2014, there were thirty-­two constitutional courts in Europe, including the three South Caucasus states; moreover, in France the Conseil constitutionnel is becoming increasingly similar to a constitutional court, and the country has eight high courts also responsible for constitutional matters. The Conference of the European Constitutional Courts has existed since 1972; as of the end of 2020 it has forty-­one full members and one associate member (Belarus).158 The World Conference on Constitutional Justice was established in 2009; as of January 2021 it comprises 117 constitutional courts and “equivalent bodies.” In accordance with its statute, the objective of this World Conference is to promote “constitutional justice—­understood as constitutional review including human rights case-­law—as a key element for democracy, the protection of human rights and the rule of law.” The supreme courts of the United States, the United Kingdom, Canada, India, and China are not members of the World Conference; it does include the relevant courts or councils of Germany, Austria, Switzerland, France, Brazil, and Russia.159 In the Federal Republic of Germany, the constitutional complaint—­ Verfassungsbeschwerde as it is officially called in German constitutional law—­ had precursors in certain federal states; it was anchored for the entire country in the Act on the Federal Constitutional Court of 1951 (§ 90). “Any person” can make a constitutional complaint by claiming that one of his or her fundaÖsterreich, 2010). For Czechoslovakia, see Jana Osterkamp, Verfassungsgerichtsbarkeit in der Tschechoslowakei (1920–­1939): Verfassungsidee—­Demokratieverständnis—­Nationalitätenproblem (Frankfurt am Main: V. Klostermann, 2009). 157. This explains the fact that the number of individual complaints to the European Court of Human Rights from Italy is the highest among West European countries. 158. This Conference includes nine supreme courts, which also fulfill the functions of constitutional courts. Many documents are available online under “Conference of European Constitutional Courts.” The Constitutional Court of the Republic of Kosovo is currently not a member of this Conference. 159. Many documents available online under “World Conference on Constitutional Justice.” Of great interest: Andrew Harding and Peter Leyland, eds., Constitutional Courts: A Compara­ tive Study (London: Wildy, Simmonds and Hill Publishing, 2009).

the six components of modern isonomy

105

mental rights or one of the rights enshrined in six other articles of the Basic Law has been violated by public authority. It was not until 1969 that the constitutional complaint was inscribed in the constitution, namely, in the newly added paragraph 4a of Article 93 in the Basic Law. The constitutional complaint has been highly successful; more than 95 percent of all appeals reaching the Federal Constitutional Court are constitutional complaints. More than sixty years after its founding, the German Federal Constitutional Court enjoys the highest respect among the federal authorities. For a court, that is a remarkable status. Rightly, it has been said that the constitutional complaint as complaint against the violation of fundamental (that is, constitutionally guaranteed) individual rights—­not merely in Germany—­seems indeed to be the “crowning of the protection of subjective rights in the constitutional state.”160 It must be added, however, that “standing rights,” that is, the right to apply for appropriate remedies, are very unequally distributed in the world. The original jurisdiction of supreme courts or supreme constitutional courts to receive complaints from individuals directly as a more modern alternative to appellate jurisdiction is by no means universal. It does not exist in important nations such as France, Great Britain, the United States, or Canada. In France, the Conseil constitutionnel, established in the Constitution of 1958, holds a special position. In 1989 President François Mitterrand proposed that individual complaints be brought before the Conseil constitutionnel, but his initiative failed.161 Since the constitutional reform of 2008, however, a limited form of individual appeal has been introduced as part of ongoing legal proceedings; such an appeal is referred to the Conseil constitutionnel after filtration (review) by the Conseil d’État or the Cour de cassation—the so-­ called question prioritaire de constitutionnalité—­priority question on constitutionality.162 This important reform has enabled, for the first time in France, a posteriori control over the constitutionality of laws; it entered into force on 160. See Matthias Jestaedt, “Phänomen Bundesverfassungsgericht: Was das Gericht zu dem macht, was es ist,” in Das entgrenzte Gericht: Eine kritische Bilanz nach sechzig Jahren Bundesver­ fassungsgericht, ed. Matthias Jestaedt et al. (Berlin: Suhrkamp, 2011), 77–­157. 161. Projet de loi constitutionelle, March 29, 1990, Assemblée nationale, Publication No. 1203. 162. Comments on Mitterand’s (and that of his long-­time Minister of Justice Robert Badinter) initiative of 1989 and the constitutional reform of 2008 can be found in Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Cambridge, MA: The Belknap Press of Harvard University Press, 2019), 219–­21. Ackermann does not mention the name of the procedure newly introduced in 2008, the “Question prioritaire de constitutionalité” (“Priority question of constitutionality”), and he does not say precisely that individuals may approach the Conseil constitutionnel only in the course of judicial proceedings and after “filtration” either by the Court de Cassation or the Conseil d’État (Highest Administrative Tribunal).

106

chapter five

March 1, 2010. In the report of an Assemblée nationale commission of March 2013, the introduction of the constitutional appeal was welcomed highly. Describing it as a révolution juridique, a juridical revolution, it also suggests that the Conseil constitutionnel has come closer to become a constitutional court. It is emphasized: “Les justiciables se sont réappropriés la norme suprême nationale.” (Those subject to the law have reappropriated the highest law of the nation.)163 What remains is the problem of England, more precisely the United Kingdom. England possesses a number of early rights declarations, most notably the Bill of Rights of 1689. But in England no differentiation is made between simple laws and higher-­ranking constitutional law, and thus there is no constitutional jurisdiction. Proposals to introduce a higher-­ranking Bill of Rights have been made several times in the past decades, and it is still a topic of discussion. In the meantime, the accession of the United Kingdom to the European Convention on Human Rights has created a kind of “subsidiary” declaration of fundamental rights and, with the European Court of Justice in Strasbourg, a kind of subsidiary Supreme Court for human rights. This has given rise to many legal difficulties and conflicts. In 1997, as part of the platform of the new Labour government, the Queen announced that the European Convention on Human Rights would be “incorporated” into British law. This was then done with the Human Rights Act of 1998, which came into force on October 2, 2000. This act stipulates that public authorities must comply with the European Convention unless an act of Parliament contravenes. Persons who feel their rights have been violated by British authorities or courts failing to comply with a part of the Convention may file an ordinary lawsuit. If it is legally determined that there is an incompatibility between a Convention provision and British law, the courts—since 2009 also the newly established Supreme Court of the United Kingdom—issue a “declaration of incompatibility.” Such declarations may also be communicated to the European Court of Human Rights; so British law can be taken into consideration in future cases. This has already happened in some cases; a public statement 163. Article 61-­1 as well as Article 62 of the Constitution according to the constitutional reform of July 23, 2008. On this, see the excellent article in French Wikipedia “Question prioritaire de constitutionnalité.” The complete text of the report no. 842 of the “Commission des lois constitutionnelles, de la législation et de l’administration générale de la République” of March 27, 2013 (chaired by Deputy Jean-­Jacques Urvoas), is online at http://www.assemblee -­nationale.fr/14/rap-­info/i0842.asp (accessed June 2, 2018). Former Minister of Justice Robert Badinter already requested that the Conseil constitutionnel be converted into a constitutional court on the occasion of the constitutional consultations in 2008 (see “Commission des lois constitutionnelles”).

the six components of modern isonomy

107

from the Supreme Court of the United Kingdom has spoken of a “dialogue” between the two courts.164 However, whether the United Kingdom changes a law to conform to a legal opinion of the European Court of Human Rights or not remains a decision of Parliament.165 Within the past two decades, controversies on the Human Rights Act and British membership in the European Convention, with the Conservative party on the critical side, have been frequent. Some commentators have spoken of the “frenzy about human rights” in the United Kingdom.166 An emotional controversy of twelve years duration (2005–­17) concerned the voting rights of prisoners. The Strasbourg Court upheld this right, the British Government and Parliament refused to follow the Strasbourg judgment. In 2017 a “compromise” was found, granting an extremely small number of prisoners (“while released on temporary licence”) the right to vote.167 It remains to be seen whether or how Brexit may affect British relations to the European Convention on Human Rights. The Internationalization of Fundamental Rights as Human Rights Mass violations of human rights, above all by National Socialism, led to a renaissance after 1945 of the discourse on human rights, the most important that had taken place since the second half of the eighteenth century. After World War II, the Nuremberg trials against the Nazi leaders inaugurated movement to internationalize the protection of human rights, to a higher level as it were, 164. “The Supreme Court and Europe.” The public commentary of the Supreme Court of the United Kingdom (with references to the cases in question) is available online under: https:// www.supremecourt.uk/about/the-­supreme-­court-­and-­europe.html (accessed June 2, 2018). 165. “The Supreme Court and Europe”: “Although a declaration of incompatibility does not place any legal obligation on the government to amend or repeal legislation, it sends a clear message to legislators that they should change the law to make it compatible with the human rights set out in the Convention.” See also Alexander Horne and Vaughne Miller, November 6, 2004: “Parliamentary Sovereignty and the European Convention on Human Rights.” House of Commons Library blog “Second Reading,” available online under https://commonslibrary .parliament.uk/parliamentary-­sovereignty-­and-­the-­european-­convention-­on-­human-­rights/ (accessed October 13, 2020). My gratitude goes to Sonja Puntscher Riekmann for having pointed this out to me. The best account is John Wadham et al., eds., Blackstone’s Guide to the Human Rights Act 1998, 7th ed. (Oxford: Oxford University Press, 2015). 166. These are the editors of Blackstone’s Guide to the Human Rights Act 1998, 7th edition: John Wadham, Helen Mountfield QC, Elizabeth Prochaska, and Raj Desai; see Wadham et al., viii. 167. Wadham et al., 357–­60, and House of Commons Library Briefing Paper CBP-­7461, dated September 30, 2019, “Prisoner’s voting rights: developments since May 2015,” available at https:// commonslibrary.parliament.uk/research-­briefings/cbp-­7461/.

108

chapter five

from being limited to individual states and their “fundamental rights protection” to an international level protected by international law.168 The most important legal scholar calling for the internationalization of human rights protection and international human rights law was Sir Hersch Lauterpacht, of Polish-­Jewish origins, teaching at the University of Cambridge.169 The first important UN documents were the Anti-­Genocide Convention of December 9, 1948, and the Universal Declaration of Human Rights of December 10, 1948. The Anti-­Genocide Convention of December 9, 1948, owes much to the engagement of the Polish-­Jewish lawyer Raphael Lemkin. After having fled from the Nazis to the United States, he coined the word “genocide” and contributed to the spread of its use with his book published in 1944, Axis Rule in Occupied Europe.170 Although it is not a treaty under international law, the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948, remains, to date, the most important document regarding international human rights.171 The only document comparable in its importance is the 1789 168. By far the most comprehensive new study on the history of human rights in the international sphere since 1945 is Jan Eckel, Die Ambivalenz des Guten: Menschenrechte in der inter­ nationalen Politik seit den 1940ern (Göttingen: Vandenhoeck & Ruprecht, 2014). 169. On Lauterpacht’s biography and achievements, see Philippe Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (London: Weidenfeld & Nicolson, 2016). Among Lauterpacht’s works, most important in the context of this book is Hersch Lauterpacht, An International Bill of the Rights of Man (Oxford: Oxford University Press, [1945] 2013). 170. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Gov­ ernment, Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, Division of International Law, 1944), esp. chap. 9, “Genocide,” 79–­95. On Lemkin, see also Sands, East West Street for more details. 171. On the composition of the declaration, see the excellent overview of Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: Univer­ sity of Pennsylvania Press, 1999). Also of great interest: Joas, The Sacredness of the Person, 72–­73, 182–­91. The most important architects of the declaration were, in alphabetical order: René Cassin (France), P. C. Chang (noncommunist China), John P. Humphrey (Canada; he wrote the first draft of the declaration), Charles Malik (Lebanon; Christian orthodox formation); Eleanor Roosevelt (USA). See the following titles: Jay Winter and Antoine Prost, René Cassin and Hu­ man Rights: From the Great War to the Universal Declaration (Cambridge: Cambridge University Press, 2013); Hans Ingvar Roth, P. C. Chang and the Universal Declaration of Human Rights (Philadelphia: University of Pennsylvania Press, 2018); John P. Humphrey, Human Rights and the United Nations: A Great Adventure (New York: Transnational Publisher, 1984) (autobiography); Habib C. Malik, ed., The Challenge of Human Rights: Charles Malik and the Universal Declaration (Oxford: Charles Malik Foundation, Centre for Lebanese Studies, 2000); Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).

the six components of modern isonomy

109

French Declaration of the Rights of the Man and of the Citizen. The first sentence of Article 1 of the UN Declaration of 1948 reads: “All human beings are born free and equal in dignity and rights.” The similarity to the first sentence in the first article of the French Declaration of 1789, already mentioned in the introduction, is immediately apparent. Thus, the most important human rights document of the twentieth century and the present day recognizes the existence of prepositive rights “inherent” to human beings. It has been accurately stated that the Declaration is based on the “inherence view of human rights.”172 Numerous proposals to validate this religiously have failed, as have proposals to refer to the “nature” of human beings. The Declaration is considered a true “secular” document.173 I have already pointed out the central importance of Article 2, the “anti-­discrimination clause.”174 The fact that the rights mentioned in the Declaration have to do with prepositive moral rights and not positive law was clear to all participants involved in composing the text.175 It has been said that in “the decades hat have elapsed since its adoption in 1948, the Declaration has undergone a dramatic transformation.”176 However, the extent to which the Declaration or, rather, some parts of it, are now considered as having become binding international law is controversial.177 At the UN General Assembly of December 10, 1948, in Paris there were no votes against adopting the Universal Declaration of Human Rights: forty-­ eight states voted in favor. There were, however, eight abstentions: the six communist states, although their representatives had actively participated in the drafting process; Saudi Arabia, especially with regard to Muslim marriage restrictions and the country’s nonacceptance of the Declaration’s right

172. Morsink, Universal Declaration, 290–­96. See also Johannes Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration (Philadelphia: University of Pennsylvania Press, 2009). 173. Morsink, Universal Declaration, 284–­90, here 290. 174. Above, p. 4. A comprehensive examination of the development of this article can be found in Morsink, Universal Declaration, 92–­116. Also Article 7 contains the explicit prohibition of discrimination in the context of equality before the law. An analysis of Article 2 is found in Sigrun Skogly, “Article 2,” in The Universal Declaration of Human Rights: A Common Standard of Achievement, ed. Gudmundur Alfredsson and Asbjørn Eide (The Hague: Kluwer Law International, 1999), 75–­87. 175. Morsink, Universal Declaration, 295. 176. Thomas Buergenthal et al., International Human Rights in a Nutshell, 5th ed. (St. Paul, MN: West Academic Publishing, 2017), 44. This book, first published in 1988 by Thomas Buergenthal alone, is an excellent repository of international human rights law for nonspecialists and is regularly updated (last done in 2017). 177. Buergenthal et al., 43–­48.

110

chapter five

to freedom of religion; and South Africa, due to the apartheid regime and the awareness that the Declaration would be used against it.178 Before giving an overview of UN treaties relevant to human rights, I would like to make a chronological leap—­from 1948 to 1993, the year the UN World Conference on Human Rights took place in Vienna. This conference is particularly significant because its final document, the Vienna Declaration and Program of Action, was adopted by acclamation by 171 states with no opposing votes. This is more than three times the number of states that adopted the Universal Declaration of Human Rights in Paris in 1948. Indeed, the majority of the states represented in Vienna had not existed in 1948; between the two declarations lay the great period of decolonization. This means the majority of the parties to the Vienna text, which of course emphasizes that all human rights are universal, indivisible, and interdependent, were non-­ Western states.179 Thus, if ever human rights are criticized or challenged as being a “Western” product, it must be remembered that the Vienna Document is based on a worldwide consensus.180 The Indian scholar Upendra Baxi is an important supporter of the universal, not merely “Western,” character of the origins and developments of human rights. He struggles against the prevailing notion that human rights are “the gift of the West to the rest.”181 He also criticizes the views of those Asian speakers who regard human rights a purely western product, a view strongly expressed in 1997 by the Prime Minister of Malaysia on the occasion of a Southeast Asian–­ Western conference on human rights in Kuala Lumpur.182 The Prime Minister Mahathir Mohamad called for a review of the Universal Declaration of 1948 so that it would better reflect the views of Asian countries that were not yet part of the UN at that time—­wholly ignoring the Vienna conference of 1993. Professor Baxi pointed out that by designating human rights as a western product, dictatorial regimes in the Third World would be enabled to deny “even the most 178. On these reasons for abstaining, see also Morsink, Universal Declaration, 21–­28. Two states, Honduras and Yemen, did not vote. 179. Point 5 of the Vienna Declaration. The text is available online. The preparatory material for the Vienna Conference, based on earlier conferences in various regions, is also available online. 180. There is an interesting study of the Vienna documents by the Indian scholar Upendra Baxi, “ ‘The Spirit of our Age, and the Realities of Our Time’: The Vienna Declaration of Human Rights,” in Mambrino’s Helmet? Human Rights for a Changing World (New Delhi: Har-­Anand Publications, 1994), 1–­17. In the same book, the integral text of the “Vienna Declaration and Programme of Action” is printed as an appendix, 181–­221. 181. Baxi, The Future of Human Rights, 24. 182. Baxi, 25.

the six components of modern isonomy

111

minimal protection from human rights violations” and thus would serve “such regimes with an atrocious impunity of power.”183 Before enumerating the most important binding convention/treaty instruments of the UN, mention must be made of a mere declaration (UN General Assembly Resolution), whose symbolic impact was great: the Declaration on the Granting of Independence to Colonial Countries and Peoples of December 14, 1960. It stands at the beginning of what was to become the great decade of decolonization, the 1960s. Eighty-­nine countries voted in favor of it, none against, but among those abstaining one finds the great colonial powers of the West: Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, United Kingdom, and United States. The main UN treaty instruments following the 1948 Universal Declaration of Human Rights came in 1966, when two international pacts were adopted—one on civil and political rights, the other on economic, social, and cultural rights.184 Both came into force in 1976. Other UN conventions that must be mentioned are listed below: The UN Convention on the Elimination of All Forms of Racial Discrimination of 1965, entry into force in 1969. The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979, entry into force in 1981. The UN Convention against Torture of 1984, entry into force in 1987. Among other things, this convention provides for the appointment of a special rapporteur, elected for six years, who is to be admitted to the prisons of the signatory states. This was initially conducted with the permission of the states concerned; based on an additional protocol of 2002 (in force since 2006), states must also agree to unannounced prison visits.185 The UN Convention on the Rights of the Child of 1989, entry into force in 1990. The UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, entry into force in 2003; however, no Western industrialized state or immigrant receiving state is a member of this convention. 183. Baxi, 25. 184. On civil and political rights, see especially Manfred Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 2nd ed. (Kehl: N. P. Engel, 2005). As of March 21, 2015, 168 states have ratified or joined this pact. China has not ratified it, but the United States has. Regarding the pact on economic, social, and cultural rights, as of March 21, 2015, 164 states have ratified or joined this pact. China has not ratified it, but the United States has. 185. See, among others, the book written by the United Nations Special Rapporteur from 2004 to 2010, Manfred Nowak, Folter: Die Alltäglichkeit des Unfassbaren (Vienna: Kremayr & Scheriau, 2012).

112

chapter five

The UN Convention on the Rights of Persons with Disabilities of 2006, entry into force in 2008.

Six United Nations Covenants or Conventions and their respective Additional Protocols provide the possibility of individual complaints, albeit not in court, but through examination in committees. These are the Covenant on Civil and Political Rights, and since 2013, also the Covenant on Economic, Social and Cultural Rights, the Convention against Torture, the Convention against Racial Discrimination, the Convention on the Elimination of Discrimination against Women, and the Convention on the Protection of the Rights of Migrant Workers. Moreover, the Human Rights Council of the United Nations must be mentioned. Established in 2006 to succeed the discredited UN Human Rights Commission, it is made up of forty-­seven member states, each holding a term of three years. The council, too, has been the object of frequent criticism, since the number of members who are skeptical of strict human rights protection outnumber those who are not. Case-­by-­case, they form alliances to counter their own wrongdoing.186 The post of United Nations High Commissioner for Human Rights, created in 1993, is a welcome development, also in view of important individuals who have been appointed to the position, such as Mary Robinson from Ireland (1997‒2002), Louise Arbour from Canada (2004‒8), and Navanethem Pillay from South Africa (2008‒14). The prosecution of crimes related to human rights, genocide, and crimes against humanity has also been institutionalized. Following the model of the Nuremberg Tribunal, UN tribunals have been established decades later concerning former Yugoslavia (1993) and Rwanda (1995). The International Criminal Court (in which, incidentally, the United States does not participate) was formally established in 2002. There are a number of regional human rights protection systems with varying degrees of enforcement possibilities that are independent of the United Nations. Already in the spring of 1948, at a conference in Bogotá on May 2, 1948, the American Declaration of Human Rights and Duties was adopted—six months before the United Nations’ Universal Declaration of Human Rights. It was adopted concurrently with the Charter of the Organization of American States (OAS), to which all thirty-­five American states

186. See inter alia the interview with the United Nations Special Rapporteur for Torture, Manfred Nowak, “Menschenrechtsschutz der UNO  in  großer  Krise,”  Der  Standard,  Octo­ ber 22, 2010.

the six components of modern isonomy

113

belong.187 In 1960, the Inter-­American Commission on Human Rights was founded, with its seat in Washington, DC. From 1966 it had the limited capacity to accept individual complaints; since 1978 it can accept complaints regarding all rights mentioned in the 1948 American Declaration. This was in the framework of the American Convention on Human Rights, which while signed in 1969 did not come into force until 1978. Of the thirty-­five states in the Americas, twenty-­five have joined this Convention—not, however, the United States or Canada.188 Within the Convention’s framework, the Inter-­ American Court of Human Rights was established in 1979, which has its seat in San José, Costa Rica. Its judges are elected by the states party to the Convention, but they can also come from other American states.189 Individual complaints are provided for quite generously in the Inter-­American System for the protection of human rights. Petitions may not only be submitted by alleged victims of a violation, but by other individuals or states (of the Convention) or NGOs as well.190 Petitions, however, cannot be submitted directly to the Court, but to the Inter-­American Commission of Human Rights, which in turn will present them to Court.191 In Africa, the African Charter on Human and Peoples’ Rights has been in force since 1986; it was established within the framework of the Organization of African Unity (since 2002, the African Union).192 It is more closely based on the two UN human rights conventions than on the European or American conventions. With due regard to African traditions, it also contains a list of obligations as well as certain collective rights, “rights of peoples,” including the right to self-­determination (which might include the right to secession), to freely dispose of wealth and natural resources, as well as the right to development. There is an African Commission, as well as an African Court on Human and Peoples’ Rights, the latter established in 2004 and operating since 2006. Individual complaints can be lodged with both the Commission and the Court, not only by victims of human rights violations, but also by other 187. On this and the following, see esp. Thomas Buergenthal et al., International Human Rights, 281–­357, on the inter-­American system of human rights. 188. In 1998 Trinidad and Tobago left the Convention; in 2012, Venezuela. 189. From 1979 to 1991, the US citizen Thomas Buergenthal was a judge at the Inter-­American Court. Buergenthal, born in 1934, survived the Auschwitz concentration camp as a child. See his autobiography: Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy, with a foreword by Elie Wiesel (London: Profile Books, 2010). 190. Buergenthal et al., International Human Rights, 313. 191. Buergenthal et al., 317. 192. Buergenthal et al., 359–­400.

114

chapter five

persons and NGOs. In the case of complaints brought directly to the Court, the state concerned must declare its consent to the Court’s jurisdiction in the case—­a serious restriction. In its decisions, the Court may order specific steps to be taken to eliminate the wrong; their implementation is to be carried out by the state concerned. If a state fails to do this, the Court may publicize this in its activity reports. Disclosure of this kind is possibly an effective enforcement measure. There have also been initiatives in the Arab world. However, the Cairo Dec­ laration on Human Rights in Islam of August 5, 1990, explicitly gives Sharia law superiority over all other rights declarations. More important is the Arab Charter on Human Rights, which was adopted in 1994 by the Council of the Arab League but never came into force. A revised and expanded version was adopted in 2004 by the Arab League, which came into force on March 15, 2008, but it also refers to Sharia law. Since 2009, an Arab Human Rights Committee exists to review implementation, but neither a human rights court nor individual appeals are foreseen.193 However, in 2014 the Council of the Arab League decided for the creation of an Arab Court of Human Rights and adopted statutes for it. So far, the court has not yet come into being; no ratifications have taken place. At the forefront of regional systems is undoubtedly the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which has been in force since 1953. It provided for the creation of a European Court of Human Rights, which was established in 1959. After having been expanded after the “turn” of 1989/91, the legal protection system of the European Court of Human Rights extends from Reykjavík to Baku, from Dublin to Vladivostok. It affects about 800 million people—tremendous dimensions, despite difficulties, especially with Russia. There is far too little awareness of the enormous dimensions of this legal protection system, not only in terms of the geographical area it covers, but also the number of appeals received in Strasbourg, although the word “Strasbourg” has indeed become a household word in Europe when referring to complaints submitted by one’s own country. In Austria, the European Convention on Human Rights has held constitutional status since 1964.194 It thus 193. There is a an English translation of the Arab Charter published in Boston University International Law Journal 24, no. 2 (Fall 2006): 147–­64, with an introduction by Dr. Mohammed Amin A-­Midani (available online). More can be found under “Arab Charter on Human Rights” on the Swiss internet site www.humanrights.ch, which is an excellent site providing comprehensive and objective information on matters of human rights. See also Buergenthal et al., International Human Rights, 405–­8. 194. Austrian federal constitutional law of March 4, 1964, BGBl. 59/1964.

the six components of modern isonomy

115

constitutes a parallel catalog of fundamental rights for Austria alongside the constitutional law on the general rights of citizens in force since 1867, since no new catalog of fundamental rights was established when the current Federal Constitution of 1920 was composed. In Germany, the European Convention on Human Rights does not have constitutional status, but the Federal Constitutional Court has stated that the German courts are obliged to “take account of the case-­law of the European Court of Human Rights.”195 In Norway, the provisions of the European Convention on Human Rights (and certain other international conventions related to human rights) have been superior to all other laws since 1999.196 Indeed, it must be agreed that the Strasbourg system has developed into the “most remarkable mechanism for the international protection of human rights which has ever existed.”197 The effectiveness of the European Court of Human Rights can be divided into two major periods—­prior to 1998 and after 1998.198 Until 1998, the Court as founded in 1959 was presided over by judges who were not employed full-­ time. It was superior to the European Commission on Human Rights, which prepared case reviews and reports, passing only relatively few cases to the Court for decision. The growing number of individual complaints in the

195. Decision of the German Federal Constitutional Court of October 14, 2004, case Görgülü. 196. Act to strengthen the position of human rights in Norwegian law (Human Rights Act), May 21, 1999, available in English translation online. 197. A. W. Brian Simpson, “Foreword,” in The Evolution of the European Convention on Hu­ man Rights: From Its Inception to the Creation of a Permanent Court of Human Rights, ed. Ed Bates (Oxford: Oxford University Press, 2010). In his own book: A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), 3, Simpson calls the Strasbourg system “the pre-­eminent system of international human rights protection which exists anywhere in the world.” 198. As an introduction, see Steven Greer, Rose Slowe, and Janneke Gerards, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge: Cambridge University Press, 2018). See also Andreas Føllesdal, Birgit Peters, and Geir Ulfstein, eds., Constituting Europe: The European Court of Human Rights in a National, Euro­ pean and Global Context (Cambridge: Cambridge University Press, 2013). A particularly full treatment is offered in the chapter “The European System for the Protection of Human Rights” in International Human Rights, Buergenthal et al., 175‒279. Also Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention. Ein Studienbuch, 6th ed. (Munich: C. H. Beck; Basel: Helbing Lichtenhahn; Vienna: Manz, 2016). The Protocol No. 12 of 2000 added a general prohibition of discrimination to the Convention, in addition to Article 14 thereof. The Protocol came into force in 2005 but has not been ratified by Germany, Austria, and Russia, among other countries; Switzerland, France, and Great Britain have neither signed nor ratified it (as of February 26, 2015).

116

chapter five

1990s and the large number of new members from Eastern Europe following the collapse of the Soviet system led to a major reform in 1998. The Commission was dissolved and the seats of the Court filled by full-­time judges, one from each of the now forty-­seven member states. Admitting individual appeals was until 1998 up to the discretion of the members. West Germany agreed to the individual appeal in 1955, England in 1966, and France only in 1981.199 Since 1998, every member state must recognize individual appeals. From 1959 to and including 2019, the court has passed 22,535 judgments. The number of applications has been vastly larger: 882,000 applications. A very great number of applications has been and is being rejected chiefly due to formal faults. The political turn of 1989–­91 in Europe brought with it the accession of the Eastern European States, including Russia, to the Convention. A consequence was a vast growth of applications from the East, above all from Russia. Among the court’s judgments since 1959, three states are on top of the statistics: Turkey (3,645 cases), the Russian Federation (2,699 cases) and Italy (2,410 cases). Italy has so many cases because its domestic constitutional system lacks the constitutional complaint before the Constitutional Court. Among the main reasons for violation judgments by the court are the length or fairness of judicial proceedings (about 25 percent) and threats to the right of life as well as cases of torture and inhuman or degrading treatment (more than 20 percent).200 The Court threatens to become a victim of its own success, however; the highest number of pending cases was reached in August 2011, with 160,200 undecided cases. Since then, the situation has been eased significantly by the introduction of new procedures.201 Further reforms will be needed, and the Court does not only have friends among the member states.202 Two other Council of Europe institutions are relevant. The Social Charter of the Council of Europe of 1961—in force since 1965, revised in 1996, in its revised form in force since 1999—incorporates thirty-­one social and economic rights and principles. In 1995, it was endowed with a novel 199. Only in 1974 did France ratify the Convention, twenty-­one years after its entry into force. 200. For these data, see the following two publications: European Court of Human Rights, ECHR Overview 1959–­2019, Strasbourg: European Court of Human Rights, Public Relations Unit, 2020, 4, and European Court of Human Rights, The ECHR in Facts and Figures 2019, Strasbourg: European Court of Human Rights, Public Relations Unit, 2020, 5, 7. These brochures appear annually and are available online. 201. See the section “The Individual Application Process” in Greer, Slowe, and Gerards, Hu­ man Rights in the Council of Europe and the European Union, 94–­104. 202. For example, Russia (Greer, Slowe, and Gerards, 265–­66), but also Great Britain.

the six components of modern isonomy

117

collective complaints procedure, which has been in force since 1998.203 Complaints regarding a breach of the rights in the Social Charter may be lodged to the Council of Europe by the European Trade Union Confederation for employees and “Business Europe” and International Organisation of Employers for employers; certain NGOs holding participatory status with the Council of Europe; and, above all, national employers organizations and trade unions in the country concerned. These complaints are dealt with by the European Committee of Social Rights, an expert panel of the Council of Europe. Another noteworthy institution is the European Commission for Democracy through Law, established in 1990. It is better known as the Venice Commission, so named because of the place of its plenary sessions. Its main task is to provide legal, mainly constitutional, advice regarding democratic institutions and fundamental rights, constitutional and ordinary justice, as well as regarding elections, referendums, and political parties. The Commission played a special role in the years following the political “turn” of 1989/91 by providing advice in the transition to the rule of law in Eastern and Southeastern Europe, including intensive consultations regarding new constitutions. The Commission has also made its expertise available to interested nonmember states of the Council of Europe. Twelve non-­European states are members of the Commission, including the United States and several Latin American countries. The Commission was instrumental in the founding of the above-­ mentioned World Conference on Constitutional Justice.204 In the European Union, the protection of human rights is anchored in several places: first, in the European Charter of Fundamental Rights.205 In Austria, ever since a ruling of the Constitutional Court in 2012, the rights anchored in the Charter can be claimed as constitutionally guaranteed rights with individual appeal before the Constitutional Court.206 Then there are the

203. Additional Protocol to the European Social Charter Providing for a System of Collective Complaints of November 9, 1995, entry into force on July 1, 1998 (text available online). It has been ratified by thirteen states (as of June 2018), including France, Belgium, the Netherlands, Norway, Sweden, Finland, but not Germany or Austria. Switzerland and Great Britain have neither signed nor ratified it. 204. More information is available online under “Venice Commission: Council of Europe.” 205. On this, see the chapter “The Fundamental Rights Jurisprudence of the European Court of Justice,” in Greer, Slowe, and Gerards, Human Rights in the Council of Europe and the European Union, 293–­367. Also: Meyer, ed., Charta der Grundrechte der Europäischen Union. The European Charter speaks of “fundamental rights,” not human rights, thus using a domestic term to emphasize the EU’s character of integration. 206. Constitutional Court of Austria, decision of March 14, 2012 (Sammlung der Urteile des Verfassungsgerichtshofs 19.632/2012). On this: Constitutional Court of Austria, Country

118

chapter five

cases of the European Court of Justice related to human rights.207 The Lisbon Treaty’s declaration of intent to join the European Convention on Human Rights, as of March 2019, is no longer expected to be implemented. Important is the inclusion of a “catalog of values” in Article 2 of the Lisbon Treaty. These values are “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” The treaty’s text continues: “These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail.” In addition, Article 7 of the Lisbon Treaty anchors a procedure for protecting these values. It is interesting that “democracy” is listed as one of the six “values”; together they might conveniently be called “isonomous” values. With the accompanying legal protection system, one can undoubtedly speak here of an “isonomous” system, of an isonomy. Applying the two articles of the European Treaty mentioned in connection with the dismantling of constitutional provisions in Hungary, through the possible use of procedures according to Article 7, which may go as far as the withdrawal of voting rights, has been discussed, but it is seen as a kind of “heavy artillery.” For this reason, “milder” options for safeguarding the fundamental values of the European Treaty are being put up for discussion.208 The multilayered network protecting fundamental and human rights in the European Union, from national institutions providing legal protection to international institutions—­be it the European Convention on Human Rights (reaching beyond the EU) or individual decisions made by the European Court under EU law—­has made it an isonomous structure based on equality that is unique in the world. This has often been described as the ordre public européen, the “European constitution of human rights.”209 Democracy I return here to democracy explicitly as an “isonomous” element. I am not referring to democracy as a form of egalitarian society but to political democracy in the narrower (and original) sense of political participation, including

report for the XVIth Congress of the European Constitutional Courts Vienna, May 2014, Point I.2.b. Available online under “XVI. Kongress der Konferenz der Europäischen Ver­fassungsgerichtshöfe.” 207. On the equal treatment of women and men in particular, see above, pp. 78–82. 208. An excellent study, which goes far beyond the point in question in its analysis and suggestions, is Jan-­Werner Müller, Wo Europa endet: Ungarn, Brüssel und das Schicksal der liberalen Demokratie (Berlin: Suhrkamp, 2013), esp. 49–­64. 209. Grabenwarter and Pabel, Europäische Menschenrechtskonvention, 6.

the six components of modern isonomy

119

the instruments needed for it. The vital core of any democracy is political will, with that being formed on the basis of general, equal, secret, and guaranteed periodic suffrage for men and women in elections (representative democracy), or on the basis of direct votes on substantive issues (direct democracy, referenda). If one looks at the democracies of today—if one compares, for example, Switzerland and Austria—it becomes clear that there are various ways to combine the elements of electoral democracy with elements of referendum democracy.210 As said before, the subsequent confirmation of an already established fait accompli through pseudo-­elections or pseudo-­votes is no part of democracy. As has been stressed by Pierre Rosanvallon, electoral franchise that is universal, equal, and secret—equally open to all voters regardless of economic or social position, of education or intelligence, of interest or lack of interest in politics—is an expression of the fundamental equivalence (équiva­ lence) of human beings, an equivalence that lies above all individual differences.211 In 1871, the politician Georges Clemenceau was asked by a journalist: “Is it prudent to equate the vote of a Rothschild or a Thiers [a French statesman around 1870] to the vote of a street sweeper?” Clemenceau’s answer was: “The principle of universal suffrage allows no compromise. The scholar has the same right as an ignorant man: it is a right based on natural law.”212 His reference to natural law is reminiscent of the famous statement of Robes­ pierre: “L’homme est citoyen par la nature”—“human beings are citizens by nature.”213 Perhaps in these words Robespierre has caught the essence of what today is frequently referred to as the dignity of the human person. It should be added, however, that the majority of the revolutionaries of 1789 drew a clear distinction between “active citizens” and “passive citizens,” as Sieyes already put it in July 1789, a few weeks prior to the Declaration of the Rights of the Man and of the Citizen being proclaimed.214 Passive citizens included children, foreigners, those “who have nothing to contribute to the preservation of public institutions,” and—“du moins dans l’état actuel,” at least for

210. An overview is Dieter Nohlen, Wahlrecht und Parteiensystem: Zur Theorie und Empirie der Wahlsysteme, 7th ed. (Opladen: Barbara Budrich, 2014). 211. Rosanvallon, Le Sacre du citoyen (paperback ed.), esp. 15–­17, 21. 212. See Rosanvallon, 16–­17. 213. Speech on October 23, 1790, in the National Assembly against restrictions on (male) voting rights. Marc Bouloiseau, Georges Lefebvre, and Albert Soboul, eds., Œuvres de Maximi­ lien Robespierre, vol. 6, Discours 1789/90 (Paris: Presses universitaires de France, 1950), 553–­54. 214. Text in Baecque, Schmale, and Vovelle, L’an 1 des droits de l’homme, 76. (Sieyes, Pré­ liminaire de la constitution, read by Sieyes at the Constituent Assembly on July 20 and 21, 1789, 71–­78).

120

chapter five

the present time—women.215 This short additional clause, which has received little attention, is remarkable in that it shows Sieyes was far from believing in the fundamental exclusion of women from political rights due to their “other nature.” The “equivalence” of all citizens in general suffrage is the result of a development in which the right to vote—in both French and English, described with just one word, “suffrage” (from the Latin suffragium)—proceeded from free and secret male suffrage further to the inclusion of women, and finally, with ever-­lower voting ages, to a very large majority of all citizens. When totalitarian systems have taken over power, this equivalence has been deliberately revoked. For example, the Constitution of Soviet Russia of July 1918 stripped “exploiting” population groups (including Orthodox priests) of their right to vote. The restoration of universal suffrage in the so-­called Stalin Constitution of 1936 was meaningless in view of the absolute dictatorship that had been established.216 As previously discussed, after the Nazi seizure of power in Germany in November 1935, all persons who were “Jews” as defined in the Nuremberg Laws of September 1935 were deprived of their right to vote.217 “Democracy” in the sense of the équivalence of voters has been used, and will be used, also for political systems that deserve this name only partially, like the right to suffrage with the exclusion of women; in such cases, as stated above, I speak of partial democracies.218 The exercise of general, equal, and secret electoral rights by both men and women, with the resulting majority decisions, is and will remain the cornerstone of democracy in the true sense.219 Beyond the classic majority of 50 percent or more, “qualified” or “super” majorities with a threshold higher than 50 percent, frequently two-­thirds majorities, are often chosen.220 There are two important reasons for securing a larger majority. First, major decisions should unite as many voters as possible, something particularly true for 215. Baecque, Schmale, and Vovelle, 76. 216. Manfred Hildermeier, Geschichte der Sowjetunion, 1917–­1991: Entstehung und Nieder­ gang des ersten sozialistischen Staates (Munich: C. H. Beck, 1998), 133. 217. First executive decree on basis of the Citizenship Law, November 14, 1935. 218. See above, p. 52. 219. On this, see the informative, if occasionally polemic, work of Egon Flaig, Die Mehrheits­ entscheidung. Entstehung und kulturelle Dynamik (Paderborn: Schöningh, 2013) as well as Egon Flaig, ed., Genesis und Dynamiken der Mehrheitsentscheidung (Munich: Oldenbourg, 2013). 220. On the origins and early history of qualified or “super” majorities, see Sung Hui Kim, “ ‘We (the Supermajority of) the People’: The Development of a Rationale for Written Higher Law in North American Constitutions,” Proceedings of the American Philosophical Society 137, no. 3 (1993): 364–­89.

the six components of modern isonomy

121

constitutional decisions and amendments. Here, the range of what requires a qualified majority is wide—from easily changeable constitutions or constitutional provisions to those that are difficult to change.221 Second, qualified majority voting often serves the purpose of protecting (larger) groups of minorities. The United Kingdom has withstood the introduction of governing with “two levels of law, of an ordinary law checked by a higher constitutional law.”222 A spectacular change, a mutation from governing with one level of law, that of ordinary legislation, to governing with two levels of law, ordinary and constitutional legislation, has occurred with the departure of Canada from the sovereign power of the British Parliament in 1982. With the British Parliament’s Canada Act of 1982, the United Kingdom has renounced any right of approving Canadian legislation. The Canadian Constitution was “patriated” (a Canadian neologism) to Canada, and from that time forward, Canadian legislature proceeded on two levels, constitutional law and ordinary law. A new and important constitutional act, already mentioned, was put at the head of Canadian constitutional legislation, the “Charter of Liberties and Freedoms.”223 In a very simplified way, one could say that Canada changed from a “British-­type” to an “American-­type” government. Back to Britain: in British parliamentary history, only one small and finally unsuccessful exception from rule by the fifty plus one majority has occurred. In 2011, in the “Fixed-­term” Parliament Act of that year, a two-­thirds majority (including all seats of the House of Commons, including the vacant ones) was introduced for motions calling for an early election prior to the five-­year term fixed by this law. In October 2019, the House of Commons three times defeated a motion originating with the prime minister for an early election on December 12, 2019. Yet after these three failures of the motion, the government introduced a law, fixing a new election for December 12, 2019. This law, as distinct from the motion, required merely a simple majority. Thus, the law “circumvented,” “bypassed,” or “got around” the two-­thirds requirement

221. See Leslie Wolf-­Phillips, Comparative Constitutions (London: Macmillan, 1972). 222. Palmer, The Age of the Democratic Revolution, vol. 1 (1959), The Challenge, 234. Palmer uses these words to characterize the American way of governing as it emerged during the American Revolution. 223. The Canadian Charter has one flaw. In section 33, as a result of last-­minute political negotiations, it is provided that exceptions from the constitutional guarantees of certain rights are allowed, valid up to five years. Language rights are not included in these exceptions. Some of the member provinces have availed themselves of these exceptions. The federal government has never used this clause.

122

chapter five

of the motion.224 The isolated introduction of qualified majorities without a system of two levels of law is bound to fail in view of the absolute primacy of the law-­making authority of Parliament. The most difficult minority problem in democracy is posed by “structural” minorities, those minorities who have no chance to become a majority, mainly because of ethnic or religious differences from the majority population. Georg Jellinek devoted a short essay to this problem entitled Das Recht der Minoritäten (The rights of minorities), basing himself concretely on the threat, as he saw it, to the German-­speaking minority in the Austrian part of the Austro-­Hungarian monarchy.225 Among other things, Jellinek refers to an ingenious method of protecting a large minority, that is, a minority having a de facto right of veto. This was proposed by John C. Calhoun in his doctrine of “concurrent majority,” developed to protect the American slave states. “Concurrent” majority referred to state legislatures being required to approve federal legislation. As a model for Austria, Jellinek pointed to the amicabilis compositio between the Protestant and Roman Catholic parts of the diet of the Holy Roman Empire following the Peace of Westphalia of 1648. There are various options for organizing suffrage, and federalist structures can also be considered. Legislative problems of structural minorities play a significant role in countries with indigenous populations; in particular, they have been intensively discussed in Canada, Australia, and New Zealand.226 Ultimately, difference of opinion between a majority and a structural minority can only be resolved through negotiation and agreements. In relation to the existence of general and equal voting rights, questions of electoral law are secondary matters—how electoral districts are divided, whether voting is directly for candidates, for parties, or for combinations

224. All these words were used in comments available on the Internet. 225. Georg Jellinek, Das Recht der Minoritäten (Vienna: A. Hölder, 1898). Flaig in his work on majority decision has mentioned Jellinek’s work, but by no means does he examine Jellinek’s proposals regarding structural minorities in depth. On this topic, see Gerald Stourzh, “Verfassung und Verfassungswirklichkeit Altösterreichs in den Schriften Georg Jellineks,” in Georg Jellinek—­Beiträge zu Leben und Werk, ed. Stanley Paulson and Martin Schulte (Tübingen: Mohr Siebeck, 2000), 247–­60, here 259–­60. 226. The Canadian author Will Kymlicka has criticized the “classical” theory of liberal democracy (as also found in Dworkin and Rawls) for too often assuming the homogeneity of the citizens in democratic states. Unfortunately, he did not examine the innovative literature from around 1900 on the rights of Austrian nationalities; the most original author, Karl Renner, is not mentioned at all, and although Otto Bauer is mentioned once, he is not discussed. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995). See also Pettit, “Minority Claims . . . ,” 211–­15.

the six components of modern isonomy

123

thereof, etc.227 There are also the very important problems the role of political parties plays in “party-­state” democracies, as they are often called, which are secondary as compared to general, equal, and secret voting rights. If seen from the importance of universal voting rights, however, the phenomenon of declining voter turnout (in contrast to the legitimate but seldom used “white” ballot) is a critical issue. There may be a number of reasons for this tendency. I would like to mention the following. First, the great turn toward a “free market” economy, symbolized by the names of Reagan and Thatcher, accompanied by a mental turning away from the state, a turning away from the public sphere, and leading to a kind of “privatization” of thinking. (The coronavirus crisis of 2020–­21 may produce a renewed respect for state services.) Second, and closely connected to the first reason: institutional change, namely, turning over institutions’ activities thus far reserved for the state to private hands, as in many countries railways and postal services, and also, very problematic, security services. Third, another factor ought to be added. There are vast numbers of noncitizens and therefore nonvoters residing permanently in many notably western countries; thus the percentage of persons with voting rights as compared with persons without these rights has been changed considerably to the disadvantage of citizens with voting rights.228 While “civic sense” has declined, the NGOs that have frequently replaced it are often more involved in transnational than in national matters (which is by no means meant as a negative comment). Population changes due to large migratory flows may have contributed to the above trend as well. Whatever the reasons, it is a trend that should, from the point of view of maintaining the strength of democracies, be criticized. I will make two comments on the right to “equal” and “secret” voting. The “naturalization” (Einbürgerung) of the proletariat was the great problem of social order in the nineteenth century, as Franz von Baader put it as early as 1835.229 Two important and successful developments were the instruments of this “naturalization” of industrial workers. There was above all the introduction of equal male suffrage in the second half of the nineteenth and the early twentieth centuries, belatedly accompanied by the introduction of 227. Rosanvallon, Le Sacre du citoyen, 21. 228. See Martin Hochhuth, ed., Rückzug des Staates und Freiheit des Einzelnen: Die Priva­ tisierung existenzieller Infrastrukturen (Berlin: Duncker & Humblot, 2012). 229. Franz von Baader, Über das dermalige Mißverhältnis der Vermögenslosen oder Proletairs zu den Vermögen besitzenden Klassen der Sozietät in Betreff ihres Auskommens, sowohl in mate­ rieller als intellektueller Hinsicht, aus dem Standpunkte des Rechts betrachtet (Munich: Franz, 1835; reprint, Aalen: Scientia, 1965). Cited in Gerald Stourzh, “Zur Institutionengeschichte der Arbeitsbeziehungen und der sozialen Sicherung” (1986), in Wege zur Grundrechtsdemokratie, 337.

124

chapter five

secret suffrage and, chiefly in the first half of the twentieth century, by women’s suffrage. Second, there was the long struggle of the working class for freedom of association, for forming unions and the freedom of collective bargaining, which eventually led to collective wage agreements (labor contracts). The Weimar Constitution of 1919 even contained a constitutional guarantee of freedom of association.230 Collective agreements meant the “recognition of equality between employers and employees,” as it was rightly stated in 1908.231 It was this freedom of association and the equality and secrecy of suffrage that created the conditions in which a social market economy could be established in Europe in the second half of the twentieth century. On the right to a secret vote: Really “free” elections only became possible with the introduction of the secret ballot. A secret ballot in a polling booth—an achievement only of the late nineteenth and early twentieth centuries—symbolizes the most important aspect of electoral or voting rights: an alternative to violence, to the threat or the exercise of force, ultimately, an alternative to death by force of arms for achieving political goals.232 No one has expressed this more impressively than the author Elias Canetti in his great work Crowds and Power. In election campaigns, he writes, nearly anything is allowed. However, when a voter enters the polling booth to secretly mark his or her ballot, there is a profound transformation: But the moment in which he casts his vote is almost sacred, the sealed boxes which hold the ballot papers are sacred; and sacred is the count. The solemnity of all these activities derives from the renunciation of death as an instrument of decision. With every single ballot paper death, as were, is put away. But the effect that death would have had on the strength of the opponent is scrupulously put down in figures; and any one who tampers with these figures, who destroys or falsifies them, lets death in again without knowing it.233

230. Article 159 of the Weimar Constitution, cited in Stourzh, 344. 231. By the German parliamentarian (from the Catholic Center Party) Kornelius Trimborn, quoted in Stourzh, “Institutionengeschichte,” 346. 232. The modern development of a secret ballot was introduced in 1856 in the colony of Victoria in Australia (which is why it is called an “Australian ballot”). On this, see Hubertus Buch­ stein, Öffentliche und geheime Stimmabgabe: Eine wahlrechtshistorische und ideengeschichtliche Studie (Baden-­Baden: Nomos, 2000), 318–­25. This remarkable study, which ranges from antiquity to modern times, also offers some basic considerations on various recent developments (absentee ballots, internet voting) as well as problems of secret suffrage. 233. Elias Canetti, Crowds and Power, trans. Carol Stewart (London: Victor Gollancz, 1962), 190. I have modified slightly the translation given there.

Conclusion: The Two Focal Points of Modern Isonomy

The six components of a political order discussed in chapter 5 are ones I would like to collectively designate as “modern isonomy,” at least for those countries presently built on democracy and human rights. The focus of each of these six components is the individual as a “legal person,” be it (1) as a legal person who can “set the legal order in motion”; (2) as the holder of “equal rights”; (3) as the bearer of “fundamental rights” enshrined in a constitution—though without a right to legal appeal; (4) as a potential plaintiff or complainant regarding violations of the fundamental rights guaranteed by a constitution; (5) as a complainant before a transnational court of human rights, with the keyword of “individual appeal”; and (6) last but not least, as a voting member of a democratic political system. By no means do I deny the fact that in many countries there are plentiful shortcomings and deficiencies, especially in the area of procedural law. But these deficiencies do not detract from the notion of an “ideal-­type” (Max Weber) of what comprises an isonomy. From the ensemble of these six components, there emerge two aspects regarding the individual as a legal person that I regard as particularly important for an isonomous order. First: the legal person is bearer of the right to political participation, the most important element of which is the suffrage. Second: the legal person is bearer of the right “to set the legal order in motion.” The most important element of this right in the field of public law is the right to raise a constitutional complaint or even to sue his or her state before an international court of human rights, if such an institution exists. With a little imagination, this can be represented as an ellipse with two focal points. The first focal point: the legal person is the bearer of the right to political

126

conclusion

participation. This right consists not only in active voting rights, be it at the local, national, or even international level, such as in European elections. It also includes passive voting rights—the right to stand as a candidate at all levels of public elections, from municipal to European elections, and perhaps to be elected. Indeed, working in an elected decision-­making body is a type of political participation—again whether this is at the local level in a city or county council, in a provincial parliament, in a national parliament, or even, as for example in Europe, in the European Parliament. And so is the possibility of contributing to the formation of political decisions as a member of a political party or an advocacy group. At the center of these possibilities—and the most important symbol of political participation—is still the right to vote, including voting in referendums. The second focal point is the legal person as bearer of the right to “set the legal order in motion.” There are many ways where and how this wide-­ ranging right can be expressed, especially in the area of private law. There are also various possibilities in the area of administrative law, from challenges to court decisions or to administrative agencies to more recent complaint possibilities like appeals to ombudsmen. I have singled out as the most far-­ reaching possibility to protect individual rights the right to file a complaint against violations of constitutionally guaranteed fundamental rights directed to the highest (constitutional) national court, or even to file a suit against one’s own county at an international court for human rights abuses, as is possible in Europe, Latin America, and Africa. These then are the two focal points of modern isonomy: a democratic one, and one that in the broader sense has to do with the rule of law, but in the narrower sense with the constitutional adjudication of violations of fundamental rights. I support the institution of the constitutional court, especially in its role as a court for fundamental rights, although by no means can miscarriage of justice be ruled out. I note two notorious United States Supreme Court rulings: the Dred Scott case of 1857, which allowed for the expansion of slavery beyond the states where it already existed, and the case of Plessy v. Ferguson of 1896, which approved racially segregated institutions as long as they were “equal”—something that in actual practice was never the case. It should be added that peculiarities of appointment procedures (like nomination by the president and appointment for lifetime for the Supreme Court in the United States) may play a considerable role in influencing the character of court decisions. In addition to the large number of constitutional courts in Europe and other continents, notably in India, fundamental human rights are protected by the European Court of Justice in Luxembourg (of the European Union, with twenty-­seven member states), by the European Court of Human

conclusion

127

Rights (of the Council of Europe, with forty-­seven member states), by the Latin American Human Rights Court, and the African Human Rights Court. There are some who, out of concern that democracy is weakening, are distrustful of the increasing influence of constitutional courts or transnational courts of human rights. Last but not least is the recent book by the sometime member of the British Supreme Court and legal and historical scholar Jonathan Sumption, Trials of the State: Law and the Decline of Politics.1 Sumption is a declared supporter of the primacy of parliamentary sovereignty and an opponent to government on two levels of law—­ordinary law and constitutional law. His great negative example is the US Constitution, thereby omitting the fact that other constitutions are more easily amenable to democratically created amendments. He writes that the “legal model” of democracy “seeks to create a body of constitutional rights that is beyond the reach of democratic choice.”2 At this point, objections need to be raised. Modern constitutions are the creation of “the people as constituent power.”3 Constitutions are not beyond the reach of democratic choice, neither, in most cases, when they are created, nor when it comes to the application of the amending power.4 Sumption is especially critical of the entrenchment of bills of rights in constitutional texts.5 He does not mention the very great popularity of constitutional complaints by individuals asserting the violation of entrenched rights, of which more will be said very shortly. Concerning the critics of “countermajoritarianism” and of judicial review, I would like to add this comment. The critics of “countermajoritarianism” are often American or British or come from Commonwealth countries. They tend to take the US Constitution as yardstick of their criticism, and it seems to me that two elements of the American constitution provide the background for their attacks. First, and already mentioned, is the way in which the justices to the Supreme Court are nominated. Even in the United States, though, the legislature participates in the nomination through the approval or disapproval of the Senate. In many other nations, parliamentary participation in the process of nominations or appointments is considerably greater, and thus the democratic element in the nomination process is larger. Second, there is 1. Jonathan Sumption, Trials of the State: Law and the Decline of Politics (London: Profile Books, 2019). 2. Sumption, 80. 3. This is the theme of chapter 8 of Robert Palmer’s work The Age of the Democratic Revolution, vol. 1, 213–­35. 4. An exception is the German Grundgesetz of 1949. The United States were, at the time of the creation by “We, the People,” at best a partial democracy, as is argued elsewhere in this book. 5. Sumption, Trials of the State, 81.

128

conclusion

the problem that amendments to the US Constitution are extremely difficult and therefore very rare. In many other countries, including Germany and notably Austria, the amending process is easier, and the democratic participation in amending constitutions lowers the distance between democracy and constitutional jurisdiction.6 As the best means of transparency and, thus, a jurisdiction friendly to democracy, I see the practice of publishing minority reports or dissenting opinions, as applied in the Anglo-­American world (and also by the Inter-­American Court of Human Rights). On the continent of Europe, it is chiefly practiced by the German Federal Constitutional Court since 1971 and by the European Court of Human Rights in Strasbourg, and also in many European countries, with the exception of France, Italy, Belgium, and Austria. This practice is an im­­ portant tool for bringing the legal process and discourse “to life.”7 It is instructive to see how American Supreme Court judges criticize each other within one and the same decision.8 To skeptics, I would again like to point out that the triumphal march of the individual constitutional complaint in those countries where it is permitted is extraordinary, although attempts to abolish the individual complaint have existed and may be repeated. But such attempts must be seen as attacks of the power-­holders against the protection of fundamental or human rights. One such attack gave an occasion to Hans Kelsen to justify vigorously the individual complaint and it shall therefore be mentioned here. In 1929, the right-­ wing government of Austria proposed several amendments to the Constitution of 1920, one of which provided for the abolition of the direct complaint of individuals to the Constitutional Court. Kelsen attacked this amendment 6. An excellent discussion of the antimajoritarian controversy is to be found in the book by the Canadian author Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge: Cambridge University Press, 2016), 167–­75. Weinrib is a convinced defender of judicial review, but he is very fair to his opponent Jeremy Waldron. Waldron’s most relevant publication on this theme is “The Core of the Case against Judicial Review,” Yale Law Journal 115 (2006): 1346–­1406. 7. A convincing theoretical rationale for publishing dissenting opinions can be found in Thomas Osterkamp, Juristische Gerechtigkeit: Rechtswissenschaft jenseits von Positivismus und Naturrecht (Tübingen: Mohr Siebeck, 2004), 186. 8. The above-­mentioned case Schuette v. Coalition to Defend Affirmative Action of April 2014 is an impressive example of critical dissenting statements being given, though these did not change the principle that the final decision is based on the majority vote. A unique event in the history of American Supreme Court Justices was the personal friendship between Justice Antonin Scalia (very conservative) and Justice Ruth Bader Ginsburg (Left liberal), both now deceased. An opera, Scalia v. Ginsberg, was composed and written by Derrick Wang and performed in 2015.

conclusion

129

plan with the greatest energy, which then indeed was not anymore pursued by the government. I quote Kelsen in translation: Heaviest reservations [die allerschwersten Bedenken] must be raised if a competence is to be taken away from the Constitutional Court, by which the Court appears very specifically as guarantor of the constitution, and by no means only as an administrative tribunal: these are complaints concerning the violation of constitutionally guaranteed rights.  .  .  . The direct connection between the subject who has been violated in his constitutionally guaranteed rights by an administrative agency and the special court destined for the protection of the constitution is thus annulled.

Kelsen went on to emphasize the significance of this issue by pointing to the fact that “because of the protection of constitutionally guaranteed rights, as early as 1867 the Reichsgericht (Imperial Court) was created, the successor of which is our Constitutional Court.”9 It is worthwhile to reflect how much Kelsen was aware of the protection of constitutionally guaranteed rights already in 1867—­mentioned earlier in this book—­because scholars with no awareness of this historical development have tended to credit Kelsen with the invention of constitutional jurisdiction. The access to individual constitutional complaints, as discussed, has achieved its most advanced form in India. The individual complaint is provided for in the Constitution of India, Article 32. B. R. Ambedkar, a jurist coming from the lowest social group, formerly called “untouchables,” and considered the real writer of the Indian Constitution, has called the ability of citizens to petition the Supreme Court directly for violation of their fundamental rights “the very soul of the Constitution and the very heart of it,” without which the Constitution “would be a nullity.”10 Developing judicature based on this article, the Indian Supreme Court created the method of “Public Interest Litigation” (PIL), extending standing rights “to allow any member of the public to seek relief from the Court on behalf of a person or people 9. Hans Kelsen, “Die Verfassungsreform,” Juristische Blätter 58 (1929): 445–­57, here 455. My translation. Words emphasized by Kelsen himself are in italics. The central sentence in German is as follows: “Die unmittelbare Verbindung zwischen dem in seinen verfassungsmäßig gewährleisteten Rechten durch die Verwaltungsbehörde verletzten Untertan und dem zum Schutz der Verfassung berufenen Spezialgericht wird dadurch aufgehoben.” David Robertson is unaware of this when he writes that Kelsen “disapproved of courts having the power to apply a bill of rights.” Robertson, The Judge as Political Theorist, 370. 10. On December 9, 1948, quoted in Nick Robinson, “The Structure and Functioning of the Supreme Court of India,” in A Qualified Hope: The Indian Supreme Court and Progressive Social Change, ed. Gerald N. Rosenberg, Sudhir Krishnaswamy, and Shishir Bail (Cambridge: Cambridge University Press, 2019), 27.

130

conclusion

whose fundamental rights had been violated but who could not, ‘by reasons of poverty, helplessness or disability or socially or economically disadvantaged position’ come before the Court for relief themselves.”11 In addition, growing out of PIL litigation, the Supreme Court beginning in 1979 introduced the suo motu litigation, the Supreme Court arrogating itself the right to convert any information coming to the knowledge of justices concerning violations of individual rights into a case.12 I regard the individual complaint, establishing a direct link between the individual and the highest constitutional instance in a country, as the apex of the rule of law in its function as one of the two focal points of modern isonomy, this apex being elevated even more highly where direct access to a transnational court such as the European Court of Human Rights exists.13 Going beyond the framework of constitutional states, let me recall the enormous numbers of individual complaints that have been and are being brought before the European Court of Human Rights, as mentioned above in “The Internationalization of Fundamental Rights as Human Rights” in chapter 5, especially from Russia, Romania and Turkey, and also Italy, because Italy does not know the proceeding of constitutional complaint. Not surprisingly, some of the Court’s decisions incite criticism from member states. Indeed, some years ago, former British Prime Minister David Cameron threatened that the United Kingdom might withdraw from the European Convention on Human Rights.14

11. Cited from the case S. P. Gupta v. Union of India, AIR 1982 SC 149 in Aparna Chandra, William H. J. Hubbard, Sital Kalantry, “The Supreme Court of India: An Empirical Overview of the Institution,” in A Qualified Hope, ed. Rosenberg et al., 47. 12. Marc Galanter and Vasujith Ram, “Suo Motu Intervention and the Indian Judiciary,” in A Qualified Hope, ed. Rosenberg et al., 92–­122. In India, the High Courts as well as the Supreme Court serve as constitutional courts, empowered to accept individual complaints. Galanter and Ram, 92. 13. Jacob Weinrib, in his book (cited above, note 6), places the constitutional complaint among the three most important elements of the modern constitutional state: first, a constitution that establishes the conditions for the validity of public authority; second, a “constitutionally entrenched bill of rights”; and third, “a politically independent judicial body to which any individual can bring a constitutional complaint challenging the validity of any exercise of public authority on the grounds that it violates a constitutional right.” Weinrib, Dimensions of Dignity, 137. As early as 2002, the German scholar Georg Brunner wrote that “indeed the real constitutional complaint (Grundrechtsbeschwerde) seems to be the crowning of the subjective protection of fundamental rights in the constitutional state” (my translation). Georg Brunner, “Der Zugang des Einzelnen zur Verfassungsgerichtsbarkeit im europäischen Raum,” Jahrbuch des öffentlichen Rechts der Gegenwart 50 (2002): 191–­256, here 235. 14. On September 29, 2013, in an interview for BBC1 during a Conservative Party conference in Manchester; available online.

conclusion

131

It should be remembered that not only decisions of national constitutional courts have led to changes in national legislation, but also decisions of the Strasbourg Court and the EU’s Court of Justice. Even an article in the Basic Law of the Federal Republic of Germany was amended based on a decision of the European Court of Justice, as described above.15 Thus, the individual legal person—dependent on national constitutional provisions and the incorporation of international human rights instruments—may have an influence on legislation not only as a voter but also as a complainant. To conclude my thoughts on isonomy, I would like to refer to a passage written by Thomas Jefferson as part of his first inaugural speech of 1801.16 These were his words: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful, must be reasonable; and that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”17 One might well see the clause “that the minority possess their equal rights, which equal laws must protect” as a classic formulation of the principle of isonomy. Indeed, the smallest minority is always the single individual. Thus, we arrive once again at the protection of the rights of the individual as a legal person and, ultimately, at the protection of the rights of all—human rights. Jefferson’s dazzling rhetoric was calculated to mask an aporia, an irresolvable internal contradiction. Here, we should remember that a constitutional state must be understood as a synthesis of two different basic principles, pop­ ular sovereignty and constitutional justice, principles that have no preestablished harmony. This also applies to modern isonomy. The aporia is the following: What if the will of the majority is not “reasonable” and therefore not “rightful” but is nonetheless to be enforced “in all cases”? Jefferson was a powerful legal thinker and thus, in this warning to the legislature, he was certainly aware of what may be considered seen as his most significant legislative achievement: the Virginia Statute of Religious Freedom, mentioned above, which he composed in 1777. Adopted in 1786 by the legislature as ordinary law, it abolished the Anglican Church as the established religion and declared unrestricted religious freedom in Virginia. It expressly states that while the legislature has described this law as irrevocable, this has no legal effect since the current legislature cannot prevent a future legislature from revoking or restricting this law. But it goes on to say that the current legislature regards 15. See above, p. 94. 16. See Commager, ed., Documents of American History, vol. 1, 186–­89, quote on 187. 17. Also quoted in Gerald Stourzh, Ralph Lerner, and H. C. Harlan, eds., Readings in American Democracy, 2nd ed. (New York: Oxford University Press, 1966), 122.

132

conclusion

the rights pronounced in this law on religious freedom as belonging to the “natural rights of mankind” and that revoking or restricting them would constitute an “infringement of natural right.”18 The explanation is clear: while a later law of this sort would be valid if passed by a majority, it would be contrary to natural right. What consequences this might bring is not mentioned. Ordinary law decided by a simple majority with final effect and no possibility of appeal is rare worldwide, but there are exceptions. New Zealand might be mentioned, and as is well known, this is the situation still today in the United Kingdom, where no act of Parliament can be overturned, as for example by a constitutional court. This is absolute parliamentary sovereignty or, more precisely, sovereignty of the majority owner. Changes are only possible at the same level by amendments which might go as far as a repeal. For decades prominent jurists have called for the introduction of a higher-­ranking bill of rights, a call that is continuing today, also for political reasons such as disapproval of “Strasbourg” judicature.19 But so far, the United Kingdom has eluded Jefferson’s aporia through the clear superiority of parliamentary majority voting. On the exact opposite side of the United Kingdom, Germany has a higher-­ ranking written constitution, the Basic Law to be modified only by a two-­ thirds majority of the members of both houses of parliament (Bundestag and Bundesrat). Yet certain articles of the Basic Law are excluded from the possibility of modification; they are unamendable and are called unofficially the “eternity articles” of the Basic Law. They concern the federal structure of the Republic as well Articles 1 and 20 of the constitution (Basic Law). As mentioned above, Article 1 states that human dignity is inviolable and that the German people are committed to the inviolability and inalienability of human rights. It also specifies that the fundamental rights listed in the subsequent Articles 2 through 19 are binding for the legislature, the executive, and the judiciary as directly applicable law. In Article 20, it is secured that the Republic of Germany is a democratic and social federal state and respects the rule of law. These provisions contain what is “essential” (Horst Dreier) to the state.20

18. Text available online: http://en.wikipedia.org/wiki/Virginia_Statute_for_Religious_Free dom (accessed June 15, 2018). 19. As for example in 1974 in Sir (later Lord) Leslie Scarman, English Law—­The New Dimension (London: Stevens, 1974), 14–­21, 69, 77. The Human Rights Act, in force since 2000, also did not change the sovereignty of the British Parliament. 20. Horst Dreier, ed., Grundgesetz: Kommentar, vol. 2, Article 20–­82 (Tübingen: Mohr Siebeck, 1998), 1. See also Horst Dreier, Gilt das Grundgesetz ewig? Fünf Kapitel zum modernen Verfassungsstaat (Munich: Carl Friedrich von Siemens Stiftung, 2009), 61–­62.

conclusion

133

“Eternity clauses” or, to be precise, unamendable articles as in Germany are found in many other constitutions; a recent specialized study has counted 199 countries with unamendable articles in their respective constitutions.21 The exclusion of certain vital issues of state organization from the democratic decision-­making process has historically been explained in Germany as a result of the trauma experienced through the Nazi seizure of power, which though legal, was brought about under political pressure, as well as the further trauma of the deeply brutal annihilation policies of the Nazi era.22 Adopting unamendable clauses that protect human rights is thus connected to the renaissance following World War II of the conviction that human rights must be protected. In the case of unamendable clauses, Jefferson’s aporia is avoided by the primacy of protecting fundamental rights, even at the price of weakening the democratic amending power. The principle of “eternity clauses” has often been criticized, as for example by Horst Dreier who has offered a detailed criticism of Verfassungsverewigung, constitutional perpetuity.23 It is only rarely said that in Article 146 of the Basic Law a new constitution replacing the Basic Law was provided for in the case of the unification of the two Germanys. Thus the “eternity clauses” theoretically were not “eternal,” only unamendable.24 However, the decision to retain the Basic Law for the reunited Germany after 1990 has made Article 146 obsolete. In many countries all over the world, there exist unamendable constitutional articles. An important unamendable clause is to be found in Article V of the US Constitution, to the effect that a state’s equal representation in the Senate without its consent is prohibited. John Locke’s text of a “Fundamental Constitution” for Carolina in 1669 provided that it “shall be and remain the sacred and unalterable form and rule of government of Carolina forever.” The constitutions for New Jersey and for Delaware (1776) contained unamendable articles.25 In the British case one might speak of an “incomplete” isonomy due to the lack of a higher-­ranking constitution or bill of rights (that of 1689 does not count as such a bill!) and therefore the lack of constitutional jurisdiction. On the other hand, one might regard the German codification that excludes certain principles from constitutional amendment as an “exaggeration” of the 21. Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford: Oxford University Press, 2017), 235–­74. 22. The Nazi’s “Enabling Act” of March 24, 1933, would have received a majority vote even without the exclusion of the Communist deputies. Only the Social Democrats voted against it. 23. Dreier, Gilt das Grundgesetz ewig?, chap. “Verfassungsverewigung,” 57–­77. 24. Roznai, Unconstitutional Constitutional Amendments, 129. 25. Roznai, 16 (Locke) and 19 (American states).

134

conclusion

principle of isonomy. But the creation of the “eternity” articles so far has not had any practical significance. Its significance is a symbolic one. The vast majority of states that consider themselves liberal or constitutional democracies have found a stable balance between democracy and the protection of human rights, the two focal points of isonomy. This is done within multilevel systems consisting of ordinary legislation, constitutional legislation, varieties of federal organization, as well as occasional special agree­ ments between structurally different population groups (the classic example being Belgium). To be added is the control of compliance with fundamental rights. In Europe this includes compliance with the European Court of Human Rights and the European Court of Justice; in Latin America, with the Inter-­American Court of Human Rights. The fact that each country which can be considered an isonomous state deviates in one way or another from the model of isonomy presented here is not to be considered a deficiency but is an essential feature of the ideal-­type in the sense of Max Weber. The processes of equalization outlined in the previous chapter—the shift in the status of groups of people formerly considered unequal to the status of having “equal rights”—was a radical change from the times when those who were considered equal were to be treated equally, those who were considered unequal, unequally. Many groups of persons considered “unequal” in both the distant and not so distant past—slaves, bonded peasants, heretics, Jews, indigenous peoples, women, homosexuals, and others—have gained equality under the law, after countless battles over the past two and one-­half centuries for equal rights and treatment and the ensuing steps toward equalization. They thus have come within the span of legal systems that are at least tending toward isonomy. The most comprehensive form of equality is that of equal rights for all human beings, “equality of all having a human countenance.”26 Such an idea, notwithstanding the Universal Declaration of Human Rights, remains utopian, as is easily shown—just think of the words “foreigner” and “alien.”27 The fact that this process cannot come to a conclusive end is also clear if one thinks of categories such as rights of the unborn, or rights of minors, or, for some, rights of animals. However, the struggle of many status groups toward legal equalization has been successful, as has been shown here. It should be emphasized, though, that this has not been a uniform process— it has been uneven, both temporally and spatially, and has often been challenged by opposing, sometimes catastrophic, developments. A few keywords 26. A phrase used by Fichte, see above, introduction, note 6. 27. Such distinctions are often made today. Think, for example, of “EU citizens” and “non-­ EU citizens.”

conclusion

135

will suffice: the “Reign of Terror,” the Napoleonic dictatorship, colonialism; in the realm of ideas, Social Darwinism; then in the twentieth century various forms of totalitarianism such as communism, fascism and Nazism, genocide, apartheid, ethnic cleansing, and, by no means a thing of the past, racism. The Cultural Revolution in China, mass extermination in Cambodia, Ruanda, or the territories of former Yugoslavia must not be forgotten. Even today and in states that in principle could be described as isonomous (having democratic suffrage and guarantees of fundamental and human rights), there are democratically questionable tendencies toward economic inequality, and there have been grave violations of constitutionally or internationally protected human rights. The increase in income inequality over the past three decades has been documented many times over.28 Tocqueville’s famous chapter on the dangers threatening democracy comes again to mind, yet as said before, Tocqueville’s “new aristocrats” are not any longer the chiefs of industry, but the managers of high finance.29 There are more specific examples of the breach of guaranteed rights. Torture is widely banned, yet it is still practiced in many countries.30 Persons are subject to long-­term detention without being granted their right to a legal trial, such as in Guantánamo. But should manifold examples of noncompliance of fundamental rights or international legal guarantees be a reason for abandoning these guarantees? Certainly not. Nonetheless, there is a great danger that guarantees of fundamental or human rights will be sacrificed on the altar of “security.” The horrendous attacks of September 11, 2001, on New York and Washington, DC, and the subsequent US reaction (the Patriot Act, in particular) may well be regarded as a turning point. The need for security or, more frankly, the fear of terrorist attacks is growing. With this, the erosion of personal rights is in full swing, as the revelations of Edward Snowden in 2013/14 have shown. And since the summer of 2014, a new horror message has emerged in the Middle East, where archaic brutality is being combined with the most advanced digital information technology available. With attacks in Europe this has also brought consequences

28. Instead of the large amount of literature on this subject, I would like to refer here to the reports of the OECD (Organisation for Economic Co-­operation and Development), most recently: OECD, In It Together: Why Less Inequality Benefits All, 336 pages, published May 2015. Available online at http://dx.doi.org/10.1787/9789264235120-­en (accessed June 23, 2018). 29. Tocqueville, Democracy II, pt. 2, chap. 20, “How Aristocracy Could Issue from Industry,” 530–­32. 30. See the US Senate report of December 9, 2014, on torture practiced by the CIA in the years following 9/11. Regrettably, there are probably many countries that carry out similar practices but do not report it.

136

conclusion

in Europe such as calls for reinforcing communications surveillance, data retention, etc. Has the system protecting human rights already passed its zenith? Human rights was a major point on the agenda, in fact a priority, for a quarter-­ century: from the Helsinki Final Act of 1975, with its 3rd Basket, opening the door to human rights being protected in the then Eastern bloc, but ending in the catastrophe of 9/11 and its consequences.31 In May 1976, a Public Group to Promote Fulfillment of the Helsinki Accords was established in Moscow.32 Václav Havel’s Charter 77 in Czechoslovakia has gone down in historical memory. The same quarter-­century saw the preparations for and—sudden— breakthrough of the “turn” of 1989/91. The already mentioned World Conference on Human Rights, where the rights of women also played a special role, was held in Vienna in 1993, thus also falling into this quarter-­century. The Fourth World Conference on Women, held in Beijing in 1995 with 6,000 official delegates and about 47,000 women participants fell into this period as well. Moreover, there was an increase in the number of transnational NGOs, even beyond this quarter-­century, with Amnesty International playing a particularly important role.33 But there was a turning point in 2001, and thus it is not currently possible to predict how the status of human rights will develop or what priority it will be given in national and international politics. Nonetheless, the following point should be taken into consideration. In the fight against oppression, wherever and whenever it is suffered, the corpus of human rights as it has developed since the first major breakthrough in the eighteenth century and again since 1945 forms a reservoir of moral force that can be drawn upon, even under adverse circumstances, no matter where they might occur, whether in the west, east, or south. A paradoxical case comes to mind. In Indo-­China in 1945, at the beginning of the struggle against the French colonial power, the communist Ho Chi Minh included the statement “all men are created equal”—exactly the words of the United States 1776 Declaration of Independence—in the Independence Declaration of the Democratic Republic of Vietnam dated September 2, 1945. It has been reported that Americans who had been parachuted into Vietnam during the battles against Japan were asked by Ho Chi Minh 31. For a comprehensive description of the preparation and realization of the Helsinki documents, see Eckel, Die Ambivalenz des Guten, 733–­45. See also Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: The Belknap Press of Harvard University Press, 2010), 148–­50. Moyn focuses heavily and too one-­sidedly on the last decades of the twentieth century. 32. Winkler, Geschichte des Westens, vol. 3 (2014), 717. 33. For more details: Eckel, Die Ambivalenz des Guten, chap. 4, 207–­59, and chap. 6, 347–­434.

conclusion

137

about Jefferson’s text.34 For a more recent example: Václav Havel’s Charter 77 has just been mentioned. It has a parallel in the Charter 08 of China. One of this Charter’s co-­authors was Liu Xiaobo, who was imprisoned in China and then awarded the Nobel Peace Prize in 2010. It has been described as a document that should be placed on equal standing with the 1776 Virginia Declaration of Rights and the 1789 Declaration of the Rights of Man and of the Citizen.35 As early as a quarter of a century ago, it has been noticed and commented upon that in an age of relativism, there is a “remarkable” stubbornness to the discourse on human rights.36 Conventions, especially legal conventions, persist for a surprisingly long time, even if the forces that originally motivated them have passed, as for example, the idea of natural rights during the American and French Revolutions, or the renaissance of beliefs in human rights as a result of the Holocaust and World War II. Indeed, to put it quite bluntly, certain philosophers, representatives of context-­free, “poststructuralist” thinking, may have claimed intellectual success. Nonetheless, the European Court of Human Rights vigorously continues to pronounce judgments and literally tens of thousands of people, from Reykjavík to Vladivostok, from Dublin to Baku, have sought redress for alleged violations of their human rights and fundamental freedoms, even if only a small fraction of them succeed. Between 1835 and 1840, Tocqueville wrote that in the political world, there are only two ways to establish equality (in the sense of equal rights): “Rights must be given to each citizen or no one.”37 Tocqueville also thought that with the weakening of religion, the idea of divine rights was disappearing and, moreover, since “mores” were being altered, “that with them the moral notion of rights is being effaced.” If, according to Tocqueville, “in the midst of that universal disturbance you do not come to bind the idea of rights to the personal interest that offers itself as the only immobile point in the human heart, what will then remain to you to govern the world except fear?”38 Knowing Montesquieu, Tocqueville knew that fear—la crainte—is the guiding principle of despotism.39 34. Gerald Stourzh, introduction to the volume Europäisierung der Erde? Studien zur Einwirkung Europas auf die außereuropäische Welt, ed. Grete Klingenstein, Heinrich Lutz, and Gerald Stourzh (Vienna: Verlag für Geschichte und Politik, 1980), 9–­14, here 9. 35. Winkler, Geschichte des Westens, vol. 4 (2015), 474–­75. 36. Thomas L. Haskell, “The Curious Persistence of Rights Talk in the ‘Age of Interpretation,’ ” Journal of American History 74 (1987/88): 984–­1012. He adds, however, that this might have to do with “borrowed time.” 37. Tocqueville, Democracy I, pt. 1, chap. 3, 52. 38. Tocqueville, Democracy I, pt. 2. chap. 6, 228. 39. Montesquieu, De l’esprit des lois, I, 31 (first part, bk. 3, chap. 9).

138

conclusion

To conclude, I would like to raise for discussion four points in favor of the term “isonomy.” First, isonomy (like democracy), is a word that is easy to use in most languages of the world. But isonomy in the sense of a “system of equal rights” also has the advantage that the concept of equal rights—which in both French and English does not exist as a single word—can be rendered with one word understandable in English, French, Spanish and other languages. To repeat what has been stated in the introduction: the word “isonomy” can be used in many languages to express, briefly and succinctly, the “two interconnected pillars that give legitimacy to political rule—democracy and human rights,” as described by Habermas. Isonomy as a system of equality corresponds to the principle expressed in the first article of the 1789 Declaration, égaux en droits—“equal in rights”—a concept that spread in the late eighteenth century, in contrast to the premodern ideas of hierarchical order. Second, as mentioned at the beginning, isonomy reflects “nomistic” ideas, that is, it is related to nomos, the law, a notion closer to rights and thus also closer to the (equal) rights of the individual. In contrast, “democracy” implies “cratic” ideas, that is, krátos, “strength, might, rule, authority,” and is therefore more bound to the collective of the demos and its rule. In addition to the fact that historically, as was emphasized by Kelsen, demos has often meant the noninclusion of large sections of the population, we also know from recent history how small the step can be from the superiority of demos to the superiority of ethnos: the Nazi seizure of power in Germany in 1933 has shown us how the demos of the Weimar Republic, which embraced all citizens, could be transformed into the exclusionary ethnos of the Nazi regime. Third, the concept of “isonomy” or “isonomous” is more capable of crossing boundaries between countries than is the concept of “democracy” or “democratic,” which is more strongly tied to the respective demos, the people of a particular state. This is reflected in the oft-­mentioned internationalization or transnationalization of human rights protection, but also, of course, in the opening of national sovereignty in a sui generis union such as the European Union. “Isonomy” has no difficulty encompassing such systems; democracy (in individual states) does. Are there, after Brexit, twenty-­seven European demoi or is there one European demos? Or do they both exist side by side? At present, I do not see a European demos on the horizon, although since the Maastricht Treaty of 1992, “European citizenship” does exist. Yet I recall what I have said before: the multilayered network protecting fundamental rights in the European Union, from national institutions providing legal protection to its international institutions, and with the European Court of Human Rights reaching beyond the European Union to include twenty more countries, has

conclusion

139

created an isonomous structure that is unique in the world. No one should say that such transnational structures may not be established in other parts of the world. Fourth and last but not least: the terms “democracy” and “human rights” are showing some signs of wear and tear, as well as, at times, inflationary usage.40 Thus it does not seem inappropriate to revive and give a new image to the discussion on basic questions of our political order by introducing a new concept—by “injecting,” as it were, a concept that has positive connotations and embraces both democracy and human rights. This concept is isonomy. Let us think again of Herodotus, who described isonomia as having “the fairest name of all,” oúnoma pántōn kálliston. I am thus tossing the word “isonomy” into the broad field of debate. I do not know whether someone will pick it up and will toss it on to someone else. I have taken up the suggestion of Johan Huizinga made in 1943 and attempted to develop it further. And now I am passing it on.

40. As early as 1999 Wolfgang Kersting warned against the inflationary use of the term “human rights”: see “Diät für Menschenrechte: Plädoyer für einen frugalen Universalismus,” Frankfurter Allgemeine Zeitung, no. 298, December 21, 1999, 53.

Bibliography

Ackerman, Bruce. We the People. Vol. 3, The Civil Rights Revolution. Cambridge, MA: Harvard University Press, 2014. ————. Revolutionary Constitutions: Charismatic Leadership and the Rule of Law. Cambridge, MA: The Belknap Press of Harvard University Press, 2019. Adamovich, Ludwig, Bernd-­Christian Funk, Gerhart Holzinger, and Stefan L. Frank. Österreichisches Staatsrecht. Vol. 3, Grundrechte, 3rd ed. Vienna: Verlag Österreich, 2019. Adams, Willi Paul. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era. Translated by Rita and Robert Kimber, with a foreword by Richard B. Morris, expanded ed. Lanham, MD: Rowman & Littlefield, 2001. Alexy, Robert. A Theory of Constitutional Rights. Oxford: Oxford University Press, 2009. ————. “Comments and Responses.” In Institutionalized Reason: The Jurisprudence of Robert Alexy, edited by Matthias Klatt, 319–­56. Oxford: Oxford University Press, 2010. Allan, Trevor Robert Seaward. “Constitutional Rights and the Rule of Law.” In Institutionalized Reason: The Jurisprudence of Robert Alexy, edited by Matthias Klatt, 132–­51. Oxford: Oxford University Press, 2010. Altwicker, Tilmann. Menschenrechtlicher Gleichheitsschutz. Heidelberg: Springer, 2011. Anonymous. “Letters from the Federal Farmer” (abbreviated title). In The Complete Anti-­ Federalist, edited by Herbert J. Storing. Vol. 2 of 7, 214–­357. Chicago: University of Chicago Press, [1787/88] 1981. Arendt, Hannah. “Es gibt nur ein einziges Menschenrecht.” Die Wandlung 4 (1949): 754–­70 (available online). ————. On Revolution. Harmondsworth: Penguin Books, 1973. ————. The Origins of Totalitarianism. London: Penguin Classics, 2017. Ariès, Philippe. The Hour of Our Death. Translated by Helen Weaver. New York: Knopf, 1981. Aristotle. Politics. Translated by Benjamin Jowett. New York: Modern Library, 1943. Asheri, David, Alan Lloyd, and Aldo Corcella. A Commentary on Herodotus: Books I–­IV. Edited by Oswyn Murray and Alfonso Moreno, with a contribution by Maria Brosius. Translated by Barbara Graziosi, Matteo Rossetti, Carlotta Dus, and Vanessa Cazzato. Oxford: Oxford University Press, 2007.

142

bibliogr aphy

Augustinus. De libero arbitrio. English translation: St. Augustine. The Problem of Free Choice. Translated and annotated by Dom Mark Pontifex. Westminster, MD: Newman Press, 1955. ————. De diversis quaestionibus ad Simplicianum, see entry under Flasch, Kurt. Baader, Franz von. Über das dermalige Mißverhältnis der Vermögenslosen oder Proletairs zu den Vermögen besitzenden Klassen der Sozietät in Betreff ihres Auskommens, sowohl in materieller als intellektueller Hinsicht, aus dem Standpunkte des Rechts betrachtet. Munich: Franz, 1835; reprint, Aalen: Scientia, 1963. Bader-­Zaar, Birgitta. “Women’s Suffrage and War: World War I and Political Reform in a Comparative Perspective.” In Suffrage, Gender and Citizenship: International Perspectives on Parliamentary Reforms, edited by Irma Sulkunen, Seija-­Leena Nevala-­Nurmi, and Pirjo Markkola, 193–­218. Newcastle: Cambridge Scholars, 2009. ————. “Rethinking Women’s Suffrage in the Nineteenth Century: Local Government and Entanglements of Property and Gender in the Austrian Half of the Habsburg Monarchy, Sweden and the United Kingdom.” In Constitutionalism, Legitimacy, and Power: Nineteenth-­ Century Experiences, edited by Kelly L. Grotke and Markus J. Prutsch, 107–­26. Oxford: Oxford University Press, 2014. Badinter, Robert. Libres et égaux . . . L’émancipation des Juifs 1789–­1791. Paris: Fayard, 1989. Baecque, Antoine de, Wolfgang Schmale, and Michel Vovelle. L’an 1 des droits de l’homme. Paris: Presses du CNRS, 1988. Balibar, Étienne. Equaliberty: Political Essays. Translated by James Ingram. Durham, NC: Duke University Press, 2014. Bates, Ed. The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights. Oxford: Oxford University Press, 2010. Battenberg, Friedrich. “Jewish Emancipation in the 18th and 19th Centuries.” European History Online (EGO), edited by Institut für Europäische Geschichte Mainz. Published Aug. 25, 2017, accessed May 29, 2018. http://ieg-­ego.eu/en/threads/european-­networks/jewish-­networks /friedrich-­battenberg-­jewish-­emancipation-­in-­the-­18th-­and-­19th-­centuries. Bauböck, Rainer. Transnational Citizenship: Membership and Rights in International Migration. Aldershot, UK: Edward Elgar, 1994; reprint: Cheltenham: Edward Elgar, 2002. Baxi, Upendra. Mambrino’s Helmet? Human Rights for a Changing World. New Delhi: Har-­ Anand Publications, 1994. ————. The Future of Human Rights. New Delhi: Oxford University Press, 2002. Beaud, Olivier. “L’Empire et l’empire colonial dans la doctrine publiciste française de la IIIe République.” Jus Politicum, hors série—­2017, “Penser juridiquement l’Empire?” (2017): 235–­412. Beierwaltes, Werner. Platonismus im Christentum. Frankfurt am Main: Vittorio Klostermann, 1998. Benhabib, Seyla. The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press, 2004. Berghahn, Klaus L. Grenzen der Toleranz: Juden und Christen im Zeitalter der Aufklärung. Cologne: Böhlau, 2000. Bernatzik, Edmund, ed. Die österreichischen Verfassungsgesetze mit Erläuterungen. 2nd ed. Vienna: Manz, 1911. Bessette, Joseph. “Deliberative Democracy: The Majority Principle in Republican Government.” In How Democratic Is the Constitution?, edited by Robert A. Goldwin and William A. Schambra, 102–­16. Washington, DC: American Enterprise Institute, 1980. Billacois, François. Le duel dans la société française des XVIe–­XVIIe siècles: Essai de psychosociologie historique. Paris: Éditions de l’École des hautes études en sciences sociales, 1986.

bibliogr aphy

143

Bleicken, Jochen. “Zur Entstehung der Verfassungstypologie im 5. Jahrhundert v. Chr. (Monarchie, Aristokratie, Demokratie).” Historia 28, no. 2 (1979): 148–­72. Blickle, Peter. Von der Leibeigenschaft zu den Menschenrechten: Eine Geschichte der Freiheit in Deutschland. Munich: C. H. Beck, 2003. Blum, Jerome. The End of the Old Order in Rural Europe. Princeton, NJ: Princeton University Press, 1978. Böckenförde, Ernst-­Wolfgang. “Einleitung zur Textausgabe der ‘Erklärung über die Religionsfreiheit.’ ” In Kirche und christlicher Glaube in den Herausforderungen der Zeit: Beiträge zur politisch-­theologischen Verfassungsgeschichte 1957–­2002, 231–­48. 1st ed. Münster: Lit Verlag, 2003. Bodin, Jean. On the Demon-­Mania of Witches. Translated by Randy A. Scott, introduction by Jonathan L. Pearl. Toronto: Centre for Reformation and Renaissance Studies, 1995. Borecký, Bořivoj. “Die politische Isonomie.” Eirene. Studia graeca et latina 9 (1971): 5–­24. Bouglé, Célestin. Les idées égalitaires. 4th ed. presented by Serge Audier. Latresne, Gironde: Le Bord de l’eau, [1899] 2007. Bouloiseau, Marc, Georges Lefebvre, and Albert Soboul, eds. Œuvres de Maximilien Robespierre. Vol. 6. Discours 1789/90. Paris: Presses universitaires de France, 1950. Boyd, Julian, ed. Fundamental Laws and Constitutions of New Jersey, 1664–­1964. Princeton, NJ: Van Nostrand, 1964. Brown, Peter. Augustine of Hippo: A Biography. New edition with an epilogue. Berkeley: University of California Press, [1967] 2000. ————. The Rise of Western Christendom: Triumph and Diversity, A.D. 200–­1000. 10th anniversary rev. ed. Chichester, UK: Wiley-­Blackwell, [2003] 2013. Brunner, Georg. “Der Zugang des Einzelnen zur Verfassungsgerichtsbarkeit im europäischen Raum.” Jahrbuch des öffentlichen Rechts der Gegenwart 50 (2002): 191–­256. Brunner, Otto. Adeliges Landleben und europäischer Geist: Leben und Werk Wolf Helmhards von Hohberg, 1612–­1688. Salzburg: O. Müller, 1949. Buch, Walter. “Des nationalsozialistischen Menschen Ehre und Ehrenschutz.” In Deutsche Justiz: Rechtspflege und Rechtspolitik; Amtliches Blatt der deutschen Rechtspflege, vol. 100, ed. A, no. 42 (October 21, 1938). Buchstein, Hubertus. Öffentliche und geheime Stimmabgabe: Eine wahlrechtshistorische und ideengeschichtliche Studie. Baden-­Baden: Nomos, 2000. Buergenthal, Thomas. A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy. With a foreword by Elie Wiesel. London: Profile Books, 2010. Buergenthal, Thomas, Dinah Shelton, David P. Stewart, and Carlos M. Vázquez. International Human Rights in a Nutshell. 5th ed. St. Paul, MN: West Academic Publishing, 2017. Canetti, Elias. Crowds and Power. Translated by Carol Stewart. London: Victor Gollancz, 1962. New edition: New York: Seabury Press, 1978. Cartledge, Paul. “Comparatively Equal.” In Dēmokratia: A Conversation on Democracies, Ancient and Modern, edited by Josiah Ober and Charles W. Hedrick, 175–­86. Princeton, NJ: Prince­ ton University Press, 1996. ————. Ancient Greek Political Thought in Practice. Cambridge: Cambridge University Press, 2009. Chaunu, Pierre. La mort à Paris: XVIe, XVIIe et XVIIIe siècles. Paris: Fayard, 1978. Clark, Stuart. Thinking with Demons: The Idea of Witchcraft in Early Modern Europe. Oxford: Clarendon Press, 1997.

144

bibliogr aphy

Colliot-­Thélène, Catherine. Democracy and Subjective Rights: Democracy without Demos. Translated by Arianne Dorval. Lanham, MD: Rowman & Littlefield International, 2018. ————. “Les droits subjectifs à l’épreuve de la solidarité sociale.” In Citoyenneté et droits subjectifs, edited by Olivier Beaud, Catherine Colliot-­Thélène, and Jean-­François Kervégan, 323–­43. Paris: Garnier, 2019. ————. “Le citoyen et l’étranger.” Contribution at the colloquium La citoyenneté comme appartenance au corps politique (March 9–­10, 2017, at Institut Michel Villey, Paris), to be published with the papers of the colloquium. Commager, Henry Steele, ed. Documents of American History. 7th ed. New York: Appleton-­ Century-­Crofts, 1963. Cooper, Frederick. Citizenship between Empire and Nation: Remaking France and French Africa, 1945–­1960. Princeton, NJ: Princeton University Press, 2014. Crouch, Colin. Coping with Post-­Democracy. Fabian pamphlet no. 598. London: Fabian Society, 2000. ————. Post-­Democracy. Cambridge: Polity Press, 2004. Dann, Otto. “Gleichheit.” In Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-­ sozialen Sprache in Deutschland, edited by Otto Brunner, Werner Conze, and Reinhart Koselleck, vol. 2, 997–­1046. Stuttgart: E. Klett, 1975. ————. Gleichheit und Gleichberechtigung: Das Gleichheitspostulat in der alteuropäischen Tradition und in Deutschland bis zum ausgehenden 19. Jahrhundert. Berlin: Duncker & Humblot, 1980. Dante Alighieri. The Divine Comedy. Translated by Allen Mandelbaum, introduction by Eugenio Montale, annotations by Peter Armour. London: Everyman’s Library, 1995. Davis, David Brion. Inhuman Bondage: The Rise and Fall of Slavery in the New World. Oxford: Oxford University Press, 2006. Delumeau, Jean. La Peur en Occident (XIVe–­XVIIIe siècles): Une cité assiégée. Paris: Fayard, 1978. ————. Rassurer et protéger: Le sentiment de sécurité dans l’Occident d’autrefois. Paris: Fayard, 1989. ————. Sin and Fear: The Emergence of a Western Guilt Culture 13th–­18th Centuries. Translated by Eric Nicholson. New York: St. Martin’s Press, 1990. Deutsch, Andreas. “Das schwere Schicksal der Henker—­zur privaten Seite eines grausamen Handwerks.” Zeitschrift der Savigny-­Stiftung für Rechtsgeschichte, Germanistische Abteilung 118 (2011): 420–­37. Diamond, Larry. “Facing Up to the Democratic Recession.” Journal of Democracy 26, no. 1 (2015): 141–­55. Dinzelbacher, Peter. “Klassen und Hierarchien im Jenseits.” In Soziale Ordnungen im Selbstverständnis des Mittelalters, edited by Albert Zimmermann, 20–­40. Berlin: De Gruyter, 1979. ————. Angst im Mittelalter: Teufels-­, Todes-­und Gotteserfahrung; Mentalitätsgeschichte und Ikono­ graphie. Paderborn: F. Schöningh, 1996. Dodd, Walter Fairleigh, ed. Modern Constitutions: A Collection of the Fundamental Laws of Twenty-­Two of the Most Important Countries of the World, With Historical and Bibliographical Notes. Chicago: University of Chicago Press, 1909. Dohm, Christian Konrad Wilhelm von. Über die bürgerliche Verbesserung der Juden. 2 vols. New edition in one volume: Hildesheim: Olms, [1781–­83] 1973. French edition 1782, new edition with a preface by Dominique Bourel: De la réforme politique des Juifs. Translated by Jean Bernoulli. Paris: Stock, 1984.

bibliogr aphy

145

Dölemeyer, Barbara. “Frau und Familie im Privatrecht des 19. Jahrhunderts.” In Frauen in der Geschichte des Rechts: Von der frühen Neuzeit bis zur Gegenwart, edited by Ute Gerhard, 633–­58. Munich: C. H. Beck, 1997. Drabek, Anna Maria. “Das Judentum der böhmischen Länder vor der Emanzipation.” In Prag—­ Czernowitz—­Jerusalem: Der österreichische Staat und die Juden vom Zeitalter des Absolutismus bis zum Ende der Monarchie, edited by Anna Maria Drabek, Mordechai Eliav, and Gerald Stourzh, 5–­30. Eisenstadt: Edition Roetzer, 1984. Dreier, Horst, ed. Grundgesetz: Kommentar. Vol. 2, articles 20–­82. Tübingen: Mohr Siebeck, 1998. ————. Gilt das Grundgesetz ewig? Fünf Kapitel zum modernen Verfassungsstaat. Munich: Carl Friedrich von Siemens Stiftung, 2009. Duberman, Martin, Martha Vicinus, and George Chauncey Jr., eds. Hidden from History: Reclaiming the Gay and Lesbian Past. New York: Meridian, 1990. Dubow, Saul. Apartheid, 1948–­1994. Oxford: Oxford University Press, 2014. Duby, Georges. The Three Orders: Feudal Society Imagined. Translated by Arthur Goldhammer, with a foreword by Thomas N. Bisson. Chicago: University of Chicago Press, 1982. Dumbauld, Edward, ed. The Political Writings of  Thomas Jefferson: Representative Selections. New York: Liberal Arts Press, 1955. Dumont, Louis. Homo Hierarchicus: The Caste System and Its Implications. Translated by Mark Sainsbury, Louis Dumont, and Basia Gulati. Chicago: University of Chicago Press, 1980. ————. Homo aequalis. Vol. 1, Genèse et épanouissement de l’idéologie économique. Paris: Gallimard, 1977. Vol. 2, L’idéologie allemande: France-­Allemagne et retour. Paris: Gallimard, 1991. Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977. Aug­ mented edition: London: Duckworth, 1978. ————. Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press, 2000. Ebeling, Gerhard. Luthers Seelsorge: Theologie in der Vielfalt der Lebenssituationen an seinen Briefen dargestellt. Tübingen: Mohr, 1997. Eckel, Jan. Die Ambivalenz des Guten: Menschenrechte in der internationalen Politik seit den 1940ern. Göttingen: Vandenhoeck & Ruprecht, 2014. Edelstein, Dan. On the Spirit of Rights. Chicago: University of Chicago Press, 2019. Ehrenberg, Victor. “Das Harmodioslied.” In Victor Ehrenberg, Karl Friedrich Stroheker, Alexander John Graham, eds., Polis und Imperium: Beiträge zur alten Geschichte, 57–­69. Zürich: Artemis, 1965. ————. “Eunomia.” In Victor Ehrenberg, Karl Friedrich Stroheker, Alexander John Graham, eds., Polis und Imperium: Beiträge zur alten Geschichte, 139–­63. Zürich: Artemis, 1965. Ehrlich, Eugen. Die Rechtsfähigkeit. Berlin: Puttkammer & Mühlbrecht, 1909. Eisenbart, Liselotte Constanze. Kleiderordnungen der deutschen Städte zwischen 1350 und 1700: Ein Beitrag zur Kulturgeschichte des deutschen Bürgertums. Göttingen: Musterschmidt, 1962. Eisenmann, Charles. La justice constitutionnelle et la Haute Cour Constitutionnelle d’Autriche. Paris: Economica, Aix-­en-­Provence: Presses universitaires d’Aix-­Marseille, [1928] 1986. Erdmann, Karl Dietrich. Volkssouveränität und Kirche: Studien über das Verhältnis von Staat und Religion in Frankreich vom Zusammentritt der Generalstände bis zum Schisma, 5. Mai 1789–­ 13. April 1791. Cologne: Kölner Universitätsverlag, 1949. European Court of Human Rights. ECHR Overview, 1959–­2019. Strasbourg: European Court of Human Rights, Public Relations Unit, 2020.

146

bibliogr aphy

————. The ECHR in Facts and Figures, 2019. Strasbourg: European Court of Human Rights, Public Relations Unit, 2020. Faller, Hans Joachim. “Die Verfassungsgerichtsbarkeit in der Frankfurter Nationalversamm­ lung.” In Menschenwürde und freiheitliche Rechtsordnung: Festschrift für Willi Geiger zum 65. Geburtstag, edited by Gerhard Leibholz, and Hans Joachim Faller, 827–­55. Tübingen: J. C. B. Mohr, 1974. Feller, Richard. Geschichte Berns. Vol. 2, Von der Reformation bis zum Bauernkrieg 1516 bis 1653. Bern: H. Lang, 1953. Fichte, Johann Gottlieb. “Grundlage des Naturrechts nach Principien der Wissenschaftslehre.” In Johann Gottlieb Fichte’s sämmtliche Werke, Johann Gottlieb Fichte. Edited by Immanuel Hermann Fichte. Vol. III, 1–­385. Leipzig: Mayer & Müller, [1796] 1845. ————. “Staatslehre” [written 1813]. In Johann Gottlieb Fichte’s sämmtliche Werke, Johann Gott­ lieb Fichte. Edited by Immanuel Hermann Fichte. Vol. IV. Leipzig: Mayer & Müller, 1845. Fichtenau, Heinrich. Living in the Tenth Century: Mentalities and Social Orders. Translated by Patrick J. Geary. Chicago: University of Chicago Press, 1991. Fikentscher, Wolfgang. Methoden des Rechts in vergleichender Darstellung. 5 vols. Tübingen: J. C. B. Mohr, 1975–­77. Finley, Moses I. Ancient Slavery and Modern Ideology. Enlarged edition with an introduction by Brent D. Shaw. Princeton, NJ: Markus Wiener Publishers, 1998. ————. The Ancient Economy. Updated edition with a foreword by Ian Morris. Berkeley: University of California Press, 1999. Flaig, Egon. Die Mehrheitsentscheidung: Entstehung und kulturelle Dynamik. Paderborn: Schö­ n­­ingh, 2013. ————, ed. Genesis und Dynamiken der Mehrheitsentscheidung. Munich: Oldenbourg, 2013. Flasch, Kurt. Logik des Schreckens: Augustinus von Hippo, De diversis quaestionibus ad Simplicianum, I 2, 2. 2nd rev. ed. with postface. Mainz: Dieterich’sche Verlagsbuchhandlung, 1995. ————. Einladung, Dante zu lesen. 3rd ed. Frankfurt am Main: Fischer, 2011. Føllesdal, Andreas, Birgit Peters, and Geir Ulfstein, eds. Constituting Europe: The European Court of Human Rights in a National, European and Global Context. Cambridge: Cambridge University Press, 2013. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1979. Fraenkel, Ernst. The Dual State: A Contribution to the Theory of Dictatorship. New edition with an introduction by Jens Meierhenrich. Translated by E. A. Shils, in collaboration with Edith Lowenstein and Klaus Knorr. New York: Oxford University Press, [1st English ed. 1941] 2017. Franz, Günther, ed. Quellen zur Geschichte des Bauernkrieges: Gesammelt und herausgegeben von Günther Franz. Munich: R. Oldenbourg, 1963. Frei, Peter. “ΙΣΟΝΟΜΙΑ (isonomía): Politik im Spiegel griechischer Wortbildungslehre.” Museum helveticum 38, no. 4 (1981): 205–­19. Frenz, Barbara. Gleichheitsdenken in deutschen Städten des 12. bis 15. Jahrhunderts: Geistes­ geschichte, Quellensprache, Gesellschaftsfunktion. Cologne: Böhlau, 2000. Frevert, Ute. Men of Honour: A Social and Cultural History of the Duel. Cambridge: Polity Press, 1995. Fried, Johannes. Das Mittelalter: Geschichte und Kultur. Munich: C. H. Beck, 2008. Fritz, Kurt von. The Theory of the Mixed Constitution in Antiquity: A Critical Analysis of Polybius’ Political Ideas. New York: Columbia University Press, 1954.

bibliogr aphy

147

Furet, François. Penser la Révolution française. Paris: Gallimard, 1978. Fürst, Alfons. Von Origenes und Hieronymus zu Augustinus: Studien zur antiken Theologie­ geschichte. Berlin: De Gruyter, 2011. Gabriel, Karl, Christian Spieß, and Katja Winkler, eds. Die Anerkennung der Religionsfreiheit auf dem Zweiten Vatikanischen Konzil: Texte zur Interpretation eines Lernprozesses. Paderborn: Schöningh, 2013. Gelderen, Martin van. The Political Thought of the Dutch Revolt 1555–­1590. Cambridge: Cambridge University Press, 1992. Gentile, Giovanni. “The Philosophic Basis of Fascism.” Foreign Affairs 6 (1927/28): 290‒304. Gerapetritis, George. Affirmative Action Policies and Judicial Review Worldwide. Cham, CH: Springer International Publishing, 2016. Gerhard, Ute, ed. Frauen in der Geschichte des Rechts: Von der frühen Neuzeit bis zur Gegenwart. Munich: C. H. Beck, 1997. Girardet, Klaus M., and Ulrich Nortmann, eds. Menschenrechte und europäische Identität: Die antiken Grundlagen. Stuttgart: Franz Steiner, 2005. Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Gosewinkel, Dieter, and Johannes Masing, eds. Die Verfassungen in Europa 1789–­1949: Wissenschaft­ liche Textedition unter Einschluss sämtlicher Änderungen und Ergänzungen sowie mit Dokumenten aus der englischen und amerikanischen Verfassungsgeschichte. Munich: C. H. Beck, 2006. de Gouges, Olympe. “The Declaration of the Rights of the Woman and the Citizen (citoyenne)” (1791). English translation in The French Revolution and Human Rights: A Brief Documentary History, edited by Lynn Hunt, 124–­29. Boston: Bedford Books of St. Martin’s Press, 1996. Grabenwarter, Christoph, and Katharina Pabel. Europäische Menschenrechtskonvention: Ein Studienbuch. 6th ed. Munich: C. H. Beck; Basel: Helbing Lichtenhahn; Vienna: Manz, 2016. Grawert, Rolf. Staat und Staatsangehörigkeit: Verfassungsgeschichtliche Untersuchung zur Entstehung der Staatsangehörigkeit. Berlin: Duncker & Humblot, 1973. Greer, Steven, Rose Slowe, and Janneke Gerards. Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge: Cambridge University Press, 2018. Greive, Artur. “Die Entstehung der französischen Revolutionsparole ‘Liberté, Égalité, Fraternité.’ ” Deutsche Vierteljahresschrift für Literaturwissenschaft und Geistesgeschichte 43 (1969): 726–­51. Grimm, Dieter. Recht und Staat der bürgerlichen Gesellschaft. Frankfurt am Main: Suhrkamp, 1987. Grotius, Hugo. The Rights of War and Peace (1625). Edited by Richard Tuck from the edition by Jean de Barbeyrac. Translated (chiefly) by John Morrice. Indianapolis: Liberty Fund, [1738] 2005. Gruzinski, Serge. The Mestizo Mind: The Intellectual Dynamics of Colonization and Globalization. New York: Routledge, 2002. Guggisberg, Hans R., ed. Religiöse Toleranz: Dokumente zur Geschichte einer Forderung. Stuttgart: Frommann-­Holzboog, 1984. ————. Sebastian Castellio, 1515–­1563: Humanist und Verteidiger der religiösen Toleranz im konfessionellen Zeitalter. Göttingen: Vandenhoeck & Ruprecht, 1997. Guyomar, Pierre. Le partisan de l’égalité politique entre les individus, ou Problème très important de l’égalité en droits et de l’inégalité en fait, Paris, 1793 (= third appendix to the session of the Constitutional Convention of April 29, 1793, Archives Parlementaires, vol. LXIII, 591–­99).

148

bibliogr aphy

Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press, 1996. Habermas, Jürgen. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, MA: MIT Press, 1996. Translation with an introduction by William Rehg of Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, 4th revised and enlarged edition. Frankfurt am Main, 1994. ————. “On the Internal Relation Between the Rule of Law and Democracy.” In The Inclusion of the Other: Studies in Political Theory, edited by Ciaran Cronin, translated by Pablo De Greiff, 253–­64. Cambridge, MA: MIT Press, 1998. ————. “Remarks on Legitimation Through Human Rights.” In The Postnational Constellation: Political Essays, edited by Max Pensky, 113–­29. Cambridge: Polity Press in association with Blackwell Publishers, 2001. ————. “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” In Time of Transitions, edited by Ciaran Cronin, translated by Max Pensky, 113–­28. Cambridge: Polity Press, 2006. ————. “Wie viel Religion verträgt der Staat?” In Volksherrschaft—­Wunsch und Wirklichkeit, edited by Uwe Justus Wenzel, 30–­36. Zürich: Neue Zürcher Zeitung, 2014. Hahn, Alois. “Tod und Sterben in soziologischer Sicht.” In Tod, Jenseits und Identität: Perspek­ tiven einer kulturwissenschaftlichen Thanatologie. Edited by Jan Assmann and Rolf Trau­ zettel, 55–­89. Freiburg im Breisgau: Alber, 2002. Haller, Gret. Human Rights without Democracy? Reconciling Freedom with Equality. Translated by Cynthia Klohr. New York: Berghahn Books, 2012. Hamilton, Alexander. The Papers of Alexander Hamilton. Vol. I. Edited by Harold C. Syrett. New York: Columbia Univ. Press, 1961. ————. The Papers of Alexander Hamilton. Vol. V. Edited by Harold C. Syrett. New York: Columbia University Press, 1962. Hamilton, Alexander, James Madison, and John Jay. The Federalist. Edited by Jacob E. Cooke. Cleveland, OH: World Publishing Co., 1961. Hamm, Berndt. “Einheit und Vielfalt der Reformation—­oder was die Reformation zur Reformation machte.” in Reformationstheorien: Ein kirchenhistorischer Disput über Einheit und Vielfalt der Reformation, edited by Berndt Hamm, Bernd Moeller, and Dorothea Wendebourg, 57–­127. Göttingen: Vandenhoeck & Ruprecht, 1995. Harding, Andrew, and Peter Leyland, eds. Constitutional Courts: A Comparative Study. London: Wildy, Simmonds and Hill Publishing, 2009. Harding, Elizabeth, and Michael Hecht, eds. Die Ahnenprobe in der Vormoderne: Selektion—­ Initiation—­Repräsentation. Münster: Rhema, 2011. Häring, Hermann. Die Macht des Bösen: Das Erbe Augustins. Zürich and Gütersloh: Benziger Verlag and Gütersloher Verlagshaus Gerd Mohn, 1979. Harmand, Jules. Domination et colonisation. Paris: E. Flammarion, 1910 (available online). Haskell, Thomas L. “The Curious Persistence of Rights Talk in the ‘Age of Interpretation.’ ” Journal of American History 74 (1987/88): 984–­1012. Hathaway, Ronald F. Hierarchy and the Definition of Order in the Letters of Pseudo-­Dionysius. The Hague: Nijhoff, 1969. Hayek, Friedrich A. von. The Constitution of Liberty. London: Routledge & Kegan Paul, 1960. ————. The Collected Works of F. A. Hayek. Vol. 17, The Constitution of Liberty. The Definitive Edition, edited by Ronald Hamowy. London: Routledge, 2011.

bibliogr aphy

149

Hegel, Georg Wilhelm Friedrich. Phenomenology of Spirit. Translated by A. V. Miller, with analysis of the text and foreword by J. N. Findley. Oxford: Oxford University Press, 1977. Section B, IV, A: Independence and dependence of self-­consciousness: Lordship and Bondage, 111–­19. Heller, Kurt. Der Verfassungsgerichtshof: Die Entwicklung der Verfassungsgerichtsbarkeit in Österreich von den Anfängen bis zur Gegenwart. Vienna: Verlag Österreich, 2010. Hengel, Martin. Crucifixion in the Ancient World and the Folly of the Message of the Cross. Philadelphia: Fortress Press, 1977. Herodotus. The Histories. New revised edition, translated by Aubrey de Sélincourt, revised and edited by John Marincola. London: Penguin Books, 2003. Hildermeier, Manfred. Geschichte der Sowjetunion, 1917–­1991: Entstehung und Niedergang des ersten sozialistischen Staates. Munich: C. H. Beck, 1998. Hintze, Otto. “Typologie der ständischen Verfassungen des Abendlandes.” In Staat und Verfassung: Gesammelte Abhandlungen zur allgemeinen Verfassungeschichte. 2nd enlarged ed., edited by Gerhard Oestreich, 120–­39. Göttingen: Vandenhoeck & Ruprecht, [1930] 1962. ————. “The Preconditions of Representative Government in the Context of World History” (1931). In The Historical Essays of Otto Hintze, edited and with an introduction by Felix Gilbert, 302–­53. New York: Oxford University Press, 1975. Hippel, Theodor Gottlieb von. Über die bürgerliche Verbesserung der Weiber. Vaduz: Topos Verlag, [1st ed. 1792] 1981, reprint of the edition of 1828. Hochhuth, Martin, ed. Rückzug des Staates und Freiheit des Einzelnen. Die Privatisierung existenzieller Infrastrukturen. Berlin: Duncker & Humblot, 2012. Hochschild, Adam. King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa, 2nd ed. with an epilogue. New York: Barnes & Noble, [1998] 2008. Hoff, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1994. Hoffmann, Stefan-­Ludwig. “Introduction: Genealogies of Human Rights.” In Human Rights in the Twentieth Century, edited by Stefan-­Ludwig Hoffmann, 1–­28. Cambridge: Cambridge University Press, 2011. Hofmann, Hasso. Repräsentation: Studien zur Wort-­und Begriffsgeschichte von der Antike bis ins 19. Jahrhundert. 4th ed. with a new introduction. Berlin: Duncker & Humblot, 2003. Hübener, Wolfgang. “ ‘Malum auget decorem in universo’: Die kosmologische Integration des Bösen in der Hochscholastik.” In Die Mächte des Guten und Bösen: Vorstellungen im XII. und XIII. Jahrhundert über ihr Wirken in der Heilsgeschichte, edited by Albert Zimmermann, 1–­26. Berlin: Walter de Gruyter, 1977. Hughes, Robert. Heaven and Hell in Western Art. New York: Stein and Day, 1968. Huizinga, Johan. Wenn die Waffen schweigen: Die Aussichten auf Genesung unserer Kultur. Trans­ lated by Wolfgang Hirsch. Basel: Burg-­Verlag, 1945. ————. “Geschonden wereld.” In Verzamelde Werken. Vol. 7, Geschiedwetenschap. Heden­ daagsche Cultuur, 477–­606. Haarlem: Willink & Zoon, [1945] 1950. Humboldt, Alexander von. Essai politique sur le royaume de la Nouvelle-­Espagne. Vol. 1. Paris: Schoell, 1811 (independent publication and written by Humboldt alone within the framework of Voyage de Humboldt et Bonpland). English edition: Humboldt, Alexander von. Political Essay on the Kingdom of New Spain. 2 vols. Translated from the original French by John Black. New York: Longman, 1811. Reprint 2014 by Cambridge University Press; also available online.

150

bibliogr aphy

Humphrey, John P. Human Rights and the United Nations: A Great Adventure. (Autobiography). New York: Transnational Publishers, 1984. Hunt, Lynn. The French Revolution and Human Rights: A Brief Documentary History. Boston: Bedford Books of St. Martin’s Press, 1996. ————. Inventing Human Rights: A History. New York: W. W. Norton & Co., 2007. Israel, Jonathan. The Dutch Republic: Its Rise, Greatness, and Fall, 1477–­1806. Oxford: Clarendon Press, 1995. ————. Democratic Enlightenment: Philosophy, Revolution, and Human Rights 1750–­1790. Oxford: Oxford University Press, 2011. ————. Revolutionary Ideas: An Intellectual History of the French Revolution from the Rights of Man to Robespierre. Princeton, NJ: Princeton University Press, 2014. Jacobus de Voragine. The Golden Legend: Readings on the Saints. 2 vols. Translated by William Granger Ryan. Princeton, NJ: Princeton University Press, 1993. Jauch, Ursula Pia. Immanuel Kant zur Geschlechterdifferenz: Aufklärerische Vorurteilskritik und bürgerliche Geschlechtsvormundschaft. Vienna: Passagen-­Verlag, 1988. Jaume, Lucien. Tocqueville: Les sources aristocratiques de la liberté; Biographie intellectuelle. Paris: Fayard, 2008. Jellinek, Georg. Das Recht der Minoritäten. Vienna: A. Hölder, 1898. ————. The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History. Translated by Max Farrand, revised by the author. New York: Henry Holt, 1901. Available on the Online Library of Liberty, published by the Liberty Fund. ————. Allgemeine Staatslehre. Reprint of the 3rd edition of 1914, revised after the death of Georg Jellinek by his son Walter Jellinek. Berlin: Gehlen, 1966. Jestaedt, Matthias. “Phänomen Bundesverfassungsgericht: Was das Gericht zu dem macht, was es ist.” In Das entgrenzte Gericht: Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht, edited by Matthias Jestaedt, Oliver Lepsius, Christoph Möllers, and Christoph Schönberger, 77–­157. Berlin: Suhrkamp, 2011. Jezler, Peter, ed. Himmel, Hölle, Fegefeuer: Das Jenseits im Mittelalter; Katalog der Ausstellung des Schweizerischen Landesmuseums Zürich. Zürich: Verlag Neue Zürcher Zeitung, 1994. Joas, Hans. The Sacredness of the Person: A New Genealogy of Human Rights. Washington, DC: Georgetown University Press, 2013. ————. Sind die Menschenrechte westlich? Munich: Kösel, 2015. Kägi, Werner. “Rechtsstaat und Demokratie (Antinomie und Synthese).” In Demokratie und Rechtsstaat: Festgabe zum 60. Geburtstag von Zaccaria Giacometti, edited by Max Imboden, 107–­42. Zürich: Polygraphischer Verlag, 1953. Kaiser, Reinhold. Die Mittelmeerwelt und Europa in Spätantike und Frühmittelalter. Frankfurt am Main: S. Fischer, 2014. Kant, Immanuel. “On the Common Saying: This May Be True in Theory, but It Does Not Apply in Practice” (1793). In Kant’s Political Writings, edited by Hans Reiss, translated by H. B. Nisbet, 61–­92. Cambridge: Cambridge University Press, 1970. Kaplan, Benjamin J. Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe. Cambridge, MA: The Belknap Press of Harvard University Press, 2007. Katzew, Ilona. Casta Painting: Images of Race in Eighteenth-­Century Mexico. New Haven, CT: Yale University Press, 2004. Keane, John. The Life and Death of Democracy. London: Simon & Schuster, 2009. ————. “Die neuen Despotien.” Merkur 69, no. 790 (March 2015): 18‒31.

bibliogr aphy

151

Kelsen, Hans. Vom Wesen und Wert der Demokratie. 1st ed. Tübingen: J. C. B. Mohr, 1920. ————. “Die Verfassungsreform.” Juristische Blätter 58 (1929): 445–­57. Kempny, Simon, and Philipp Reimer. Die Gleichheitssätze: Versuch einer übergreifenden dogmatischen Beschreibung ihres Tatbestands und ihrer Rechtsfolgen. Tübingen: Mohr Siebeck, 2012. Kersting, Wolfgang. “Diät für Menschenrechte: Plädoyer für einen frugalen Universalismus.” Frankfurter Allgemeine Zeitung, no. 298, December 21, 1999, 53. Kielmansegg, Peter Graf. Die Grammatik der Freiheit: Acht Versuche über den demokratischen Verfassungsstaat. Baden-­Baden: Nomos Verlagsgesellschaft, 2013. Kiernan, V. G. The Duel in European History: A Study of the Aristocratic Ascendancy. Oxford: Oxford University Press, 1988. Kim, Sung Hui. “ ‘We (the Supermajority of) the People’: The Development of a Rationale for Written Higher Law in North American Constitutions.” Proceedings of the American Philosophical Society 137, no. 3 (1993): 364–­89. Kirchhof, Paul. “Die Gleichberechtigung von Mann und Frau.” Die Verschiedenheit der Menschen und die Gleichheit vor dem Gesetz, 51–­59. Munich: Carl Friedrich von Siemens Stiftung, 1996. Kittsteiner, Heinz D. Die Entstehung des modernen Gewissens. Frankfurt am Main: Insel-­Verlag, 1991. Klees, Hans. Sklavenleben im klassischen Griechenland. Stuttgart: F. Steiner, 1998. Kocka, Jürgen. Weder Stand noch Klasse: Unterschichten um 1800. Bonn: Dietz, 1990. ————. Capitalism: A Short History. Translated by Jeremiah Riemer. Princeton, NJ: Princeton University Press, 2016. Kolchin, Peter. Unfree Labor: American Slavery and Russian Serfdom. Cambridge, MA: The Belk­ nap Press of Harvard University Press, 1987. Koselleck, Reinhart. “Einleitung.” In Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-­sozialen Sprache in Deutschland, edited by Otto Brunner, Werner Conze, and Rein­ hart Koselleck, vol. 1, XIII–­XXVII. Stuttgart: E. Klett, 1972. Kull, Andrew. The Color-­Blind Constitution. Cambridge, MA: Harvard University Press, 1992. Kupka, Thomas. “Jürgen Habermas’ diskurstheoretische Reformulierung des klassischen Vernunftrechts.” Kritische Justiz 27 (1994): 461–­69. Kwiet, Konrad. “Nach dem Pogrom: Stufen der Ausgrenzung.” In Die Juden in Deutschland 1933–­ 1945: Leben unter nationalsozialistischer Herrschaft, 4th ed., edited by Wolfgang Benz, 545–­ 659. Munich: C. H. Beck, 1996. Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995. Lamb, Robert. Thomas Paine and the Idea of Human Rights. Cambridge: Cambridge University Press, 2015. Landes, Joan B. Women and the Public Sphere in the Age of the French Revolution. Ithaca, NY: Cornell University Press, 1988. Lasker-­Wallfisch, Anita. Inherit the Truth: A Memoir of Survival and the Holocaust. New York: Thomas Dunne Books/St. Martin’s Press, 2000. Lasserre, François. “Hérodote et Protagoras: Le débat sur les constitutions.” Museum Helveticum 33, no. 2 (1976): 65–­84. Lauterpacht, Hersch. An International Bill of the Rights of Man. Oxford: Oxford University Press, [1945] 2013. Le Cour Grandmaison, Olivier. De l’indigénat—­Anatomie d’un monstre juridique: Le droit colonial en Algérie et dans l’Empire français. Paris: Zones, 2010.

152

bibliogr aphy

Lehmann, Hartmut, and Otto Ulbricht, eds. Vom Unfug des Hexen-­Processes: Gegner der Hexenverfolgungen von Johann Weyer bis Friedrich Spee. Wiesbaden: O. Harrassowitz, 1992. Leibholz, Gerhard. Die Gleichheit vor dem Gesetz: Eine Studie auf rechtsvergleichender und rechts­ philosophischer Grundlage. 2nd ed. Munich: C. H. Beck, [1923] 1959. Lemay, Edna Hindie, “Les révélations d’un dictionnaire: du nouveau sur la composition de l’Assemblée Nationale Constituante (1789–­1791).” Annales historiques de la Révolution française 284 (1991): 159–­89. Lemkin, Raphael. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. Washington, DC: Carnegie Endowment for International Peace, Division of International Law, 1944. Lerner, Gerda. The Majority Finds Its Past: Placing Women in History. New York: Oxford University Press, 1979. ————. The Creation of Feminist Consciousness from the Middle Ages to 1870. New York: Oxford University Press, 1993. Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. London: Viking, 2018. Levy, Ernst. “Libertas und Civitas.” Zeitschrift für Rechtsgeschichte, Romanistische Abteilung 78 (1961): 142–­72. Lewis, Martin Deming. “One Hundred Million Frenchmen: The ‘Assimilation’ Theory in French Colonial Policy.” Comparative Studies in Society and History 4 (1962): 129–­53. Link, Christoph, ed. Der Gleichheitssatz im modernen Verfassungsstaat: Symposium zum 80. Geburtstag von Gerhard Leibholz am 21. Nov. 1981. Baden-­Baden: Nomos, 1982. Locke, John. Epistola de tolerantia. Edited by Mario Montuori. The Hague: Nijhoff, [1689] 1963. Loughlin, Martin. Foundations of Public Law. Oxford: Oxford University Press, 2010. Lovejoy, Arthur O. The Great Chain of Being: A Study of the History of an Idea. Cambridge, MA: Harvard University Press, 1936. Luscombe, David E. “Thomas Aquinas and Conceptions of Hierarchy in the Thirteenth Century.” In Thomas von Aquin: Werk und Wirkung im Licht neuerer Forschungen, edited by Albert Zimmermann, 261–­77. Berlin: W. de Gruyter, 1988. Luther, Martin. D. Martin Luthers Werke. Kritische Gesamtausgabe (Weimarer Ausgabe). Weimar: H. Böhlau, vol. 4, 1916; vol. 18, 1908. ————. De servo arbitrio. English translation in Luther and Erasmus: Free Will and Salvation. Edited and translated by E. Gordon Rupp and Philip S. Watson. Philadelphia: Westminster Press, 1969. Macpherson, C. B. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Oxford University Press, 1962. ————. The Real World of Democracy. Oxford: Clarendon Press, 1966. Malik, Charles Habib, ed. The Challenge of Human Rights: Charles Malik and the Universal Declaration. Oxford: Charles Malik Foundation, Centre for Lebanese Studies, 2000. Mandela, Nelson. Long Walk to Freedom: The Autobiography. London: Little, Brown and Company, 1994. Mantl, Wolfgang. Repräsentation und Identität: Demokratie im Konflikt; Ein Beitrag zur moder­ nen Staatsformenlehre. Vienna: Springer-­Verlag, 1975. Markschies, Christoph. Origenes und sein Erbe: Gesammelte Studien. Berlin: De Gruyter, 2007. Marraro, Howard R. “Philip Mazzei on American Political, Social and Economic Problems, edited and translated by Howard R. Marraro.” Journal of Southern History 15 (1949): 354–­78.

bibliogr aphy

153

Martinez-­Alier, Verena (publishes also under the name Stolcke). “Elopement and Seduction in Nineteenth-­Century Cuba.” Past and Present 55, no. 1 (1972): 91–­129. McDannell, Colleen, and Bernhard Lang. Heaven: A History. New Haven, CT: Yale University Press, 1988; 2nd ed., 2001. McRee, Griffith. Life and Correspondence of James Iredell. New York: Appleton, 1858. Meier, Christian. Entstehung des Begriffs “Demokratie”: Vier Prolegomena zu einer historische Theorie. Frankfurt am Main: Suhrkamp, 1970. ————. The Greek Discovery of Politics. Cambridge, MA: Harvard University Press, 1990. ————. Athens: A Portrait of the City in Its Golden Age. New York: Metropolitan Books/H. Holt & Co., 1998. Menzel, Adolf. “Protagoras, der älteste Theoretiker der Demokratie.” Zeitschrift für Politik 3 (1910): 206–­38. Merkel, Wolfgang, Hans-­Jürgen Puhle, Aurel Croissant, Claudia Eicher, and Peter Thiery. Defekte Demokratie. Vol. 1, Theorie. Opladen: Leske + Budrich, 2003. Metzger, Wilhelm. Gesellschaft, Recht und Staat in der Ethik des deutschen Idealismus. Edited by Ernst Bergmann. Heidelberg: Carl Winters Universitätsbuchhandlung, 1917. Meyer, Jürgen, ed. Charta der Grundrechte der Europäischen Union. 4th ed. Baden-­Baden: Nomos, 2014. Michelman, Frank I. Brennan and Democracy. Princeton, NJ: Princeton University Press, 1999. Midelfort, H. C. Erik. “Johann Weyer in medizinischer, theologischer und rechtsgeschichtlicher Sicht.” In Vom Unfug des Hexen-­Processes: Gegner der Hexenverfolgungen von Johann Weyer bis Friedrich Spee, edited by Hartmut Lehmann and Otto Ulbricht, 53–­64. Wiesbaden: O. Harrassowitz, 1992. Millar, John, The Origin of the Distinction of Ranks (1771, 1781). London: William Smith, 1806; 4th ed., edited by Aaron Garretim, Indianapolis: Liberty Fund, 2006. Minkov, Svetozar, ed. Enlightening Revolutions. Essays in Honor of Ralph Lerner. Lanham, MD: Lexington Books, 2006. Mommsen, Theodor. “Die Rechtsverhältnisse des Apostels Paulus.” Zeitschrift für die neutestamentliche Wissenschaft, no. 2 (1901): 81–­96. Montesquieu, Charles Louis de Secondat baron de. De l’esprit des lois. Paris: Garnier, [1748] 1956. Morsink, Johannes. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press, 1999. ————. Inherent Human Rights. Philosophical Roots of the Universal Declaration. Philadelphia: University of Pennsylvania Press, 2009. Moses, A. Dirk, ed. Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History. New York: Berghahn Books, 2008. Mouffe, Chantal. The Democratic Paradox. London: Verso, 2000. Mounk, Yascha. The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It. Cambridge, MA: Harvard University Press, 2018. Mousnier, Roland. The Institutions of France under the Absolute Monarchy, 1598–­1789, vol. I. Translated by Brian Pearce. Chicago: University of Chicago Press, 1979. Mousset, Sophie. Women’s Rights and the French Revolution: A Biography of Olympe de Gouges. Translated by Joy Poirel. Piscataway, NJ: Transaction Publishers, 2007. Mout, M. E. H. N. “Limits and Debates: A Comparative View of Dutch Toleration in the Sixteenth and Early Seventeenth Centuries.” In The Emergence of  Tolerance in the Dutch Republic, edited by C. Berkvens-­Stevelinck, J. Israel, and G. H. M Posthumus Meyjes, 37–­48. Leiden: Brill, 1997.

154

bibliogr aphy

Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge, MA: The Belknap Press of Harvard University Press, 2010. ————. Not Enough: Human Rights in an Unequal World. Cambridge, MA: The Belknap Press of Harvard University Press, 2018. Müller, Carl Werner. Gleiches zu Gleichem: Ein Prinzip frühgriechischen Denkens. Wiesbaden: O. Harrassowitz, 1965. Müller, Jan-­Werner. Contesting Democracy: Political Ideas in Twentieth-­Century Europe. New Haven, CT: Yale University Press, 2011. ————. Wo Europa endet: Ungarn, Brüssel und das Schicksal der liberalen Demokratie. Berlin: Suhrkamp, 2013. ————. “Postdemokratie? Karriere und Gehalt eines politischen Schlagwortes.” In Volksher­r­ schaft—­Wunsch und Wirklichkeit, edited by Uwe Justus Wenzel, 124–­27. Zürich: Neue Zür­ cher Zeitung, 2014. Münch, Paul. “Grundwerte der frühneuzeitlichen Ständegesellschaft: Aufriss einer vernachlässigten Thematik.” In Ständische Gesellschaft und soziale Mobilität, edited by Winfried Schulze and Helmut Gabel, 53–­72. Munich: R. Oldenbourg, 1988. Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order. Baltimore: Johns Hopkins University Press, 2007. Nippel, Wilfried. Ancient and Modern Democracy: Two Concepts of Liberty? Translated by Keith Tribe. Cambridge: Cambridge University Press, 2015. Nohlen, Dieter. Wahlrecht und Parteiensystem: Zur Theorie und Empirie der Wahlsysteme. 7th ed. Opladen: Barbara Budrich, 2014. Nowak, Manfred. U.N. Covenant on Civil and Political Rights: CCPR Commentary. 2nd rev. ed. Kehl: N. P. Engel, 2005. ————. “Menschenrechtsschutz der UNO in großer Krise.” Der Standard. Oct. 22, 2010. ————. Folter: Die Alltäglichkeit des Unfassbaren. Vienna: Kremayr & Scheriau, 2012. OECD (Organisation for Economic Co-­operation and Development). In It Together: Why Less Inequality Benefits All. 336 pages, published May 2015. Available online: http://dx.doi.org/10 .1787/9789264235120-­en. Oexle, Otto Gerhard. “Die funktionale Dreiteilung als Deutungsschema der sozialen Wirklichkeit in der ständischen Gesellschaft des Mittelalters.” In Ständische Gesellschaft und soziale Mobilität, edited by Winfried Schulze and Helmut Gabel, 19–­51. Munich: R. Oldenbourg, 1988. ————. “Stand im lateinischen Europa.” In Die Wirklichkeit und das Wissen: Mittelalterforschung—­ historische Kulturwissenschaft—­Geschichte und Theorie der historischen Erkenntnis, edited by Andrea von Hülsen-­Esch, Bernhard Jussen, and Frank Rexroth, 287–­399. Göttingen: Vandenhoeck & Ruprecht, 2011. Orbán, Viktor. Speech on July 26, 2014, at the 25th Summer University in Băile Tuşnad (Tusnádfürdő), Romania. Complete English translation available on the website of The Budapest Beacon, https://budapestbeacon.com/full-­text-­of-­viktor-­orbans-­speech-­at-­baile -­tusnad-­tusnadfurdo-­of-­26-­july-­2014/ (accessed on May 20, 2018). Osterhammel, Jürgen. “ ‘The Great Work of Uplifting Mankind.’ Zivilisierungsmission und Moderne.” In Zivilisierungsmissionen: Imperiale Weltverbesserung seit dem 18. Jahrhundert, edited by Boris Barth and Jürgen Osterhammel, 363–­425. Constance: Universitätsverlag Konstanz, 2005. Osterhammel, Jürgen, and Jan C. Jansen. Kolonialismus: Geschichte, Formen, Folgen. 7th ed., completely reworked and brought up to date. Munich: C. H. Beck, [1995] 2012.

bibliogr aphy

155

Osterkamp, Jana. Verfassungsgerichtsbarkeit in der Tschechoslowakei (1920–­1939): Verfa­s­sungsidee—­ Demokratieverständnis—­Nationalitätenproblem. Frankfurt am Main: V. Klostermann, 2009. Osterkamp, Thomas. Juristische Gerechtigkeit: Rechtswissenschaft jenseits von Positivismus und Naturrecht. Tübingen: Mohr Siebeck, 2004. Ostwald, Martin. Nomos and the Beginnings of the Athenian Democracy. Oxford: Clarendon Press, 1969. ————. “Isokratía as a Political Concept.” In Islamic Philosophy and the Classical Tradition: Essays Presented by his Friends and Pupils to Richards Walzer on his 70th Birthday, edited by S. M. Stern, Albert Habib Hourani, and Vivian Brown, 277–­91. Columbia: University of South Carolina Press, 1973. ————. From Popular Sovereignty to the Sovereignty of Law: Law, Society, and Politics in Fifth-­ Century Athens. Berkeley: University of California Press, 1986. ————. Oligarchia: The Development of a Constitutional Form in Ancient Greece. Stuttgart: Steiner, 2000. Ozouf, Mona. “Égalité.” In Dictionnaire critique de la Révolution française, edited by François Furet and Mona Ozouf, 696–­7 10. Paris: Flammarion, 1988. Paine, Thomas. Common Sense (1776). Reprinted in Thomas Paine. Representative Selections, with Introduction, Bibliography, and Notes, edited by Harry Hayden Clark. New York: American Book Co., 1944. Palmer, Robert R. The Age of the Democratic Revolution: A Political History of Europe and America 1760–­1800. Vol. 1, The Challenge. Vol. 2, The Struggle. Princeton, NJ: Princeton University Press, 1959, 1964. Pasquino, Pasquale. Sieyes et l’invention de la Constitution en France. Paris: O. Jacob, 1998. Patterson, Orlando. Slavery and Social Death: A Comparative Study. Cambridge, MA: Harvard University Press, 1982. ————. Freedom. Vol. 1, Freedom in the Making of Western Culture. New York: Basic Books, 1991. Paulin, Karl. Andreas Hofer und der Tiroler Freiheitskampf 1809: Nach geschichtlichen Quellen und mit 8 Dokumentarbildern. Vienna: Tosa, 1996. Pelling, Christopher. “Speech and Action: Herodotus’ Debate on the Constitutions.” Proceedings of the Cambridge Philological Society 48 (2002): 123–­58. Peters, Jan. “Der Platz in der Kirche: Über soziales Rangdenken im Spätfeudalismus.” Jahrbuch für Volkskunde und Kulturgeschichte, no. 28 (new series 13) (1985): 77–­106. Petersen, Johann Wilhelm. Mystērion apokatástaseōs pántōn. 3 vols. Offenbach, 1700–­1710. Peterson, Merrill D., and Robert C. Vaughan, eds. The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History. Cambridge: Cambridge University Press, 1988. Petitfrère, Claude. “Liberté, égalité, domesticité.” In Les droits de l’homme et la conquête des li­ bertés: Actes du colloque de Grenoble-­Vizille 1986; Des lumières aux révolutions de 1848, edited by Michel Vovelle, 248–­56. Grenoble: Presses Universitaires de Grenoble, 1988. Pettit, Philip. “Democracy, Electoral and Contestatory.” Nomos 42 (2000): 105–­44. ————. “Minority Claims under Two Conceptions of Democracy.” In Political Theory and the Rights of Indigenous Peoples, edited by Duncan Ivison, Paul Patton, and Will Sanders, 199–­ 215. Cambridge: Cambridge University Press, 2000. Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. Cambridge: Cambridge University Press, 1988.

156

bibliogr aphy

Piketty, Thomas. Capital and Ideology. Translated by Arthur Goldhammer. Cambridge, MA: The Belknap Press of Harvard University Press, 2020. Pincherle, Alberto. Vita di Sant’Agostino. Bari: Laterza, [1980] 1988. Plato. Gorgias, Menexenus, Protagoras. Edited by Malcolm Schofield; translated by Tom Griffith. Cambridge: Cambridge University Press, 2010. Pope, Alexander. An Essay on Man. “Twickenham edition.” Edited by Maynard Mack. London: Methuen, [1734] 1950, reprinted 1993. Pöschl, Magdalena. Gleichheit vor dem Gesetz. Vienna: Springer, 2008. Pulzer, Peter. Experiencing the Twentieth Century. New York: The New School for Social Research, 2011. Raaflaub, Kurt A. The Discovery of Freedom in Ancient Greece. Chicago: University of Chicago Press, 2004. Rae, Douglas W. Equalities. 2nd ed. Cambridge, MA: Harvard University Press, 1989. Rahner, Johanna. Einführung in die christliche Eschatologie. Freiburg in Breisgau: Herder, 2010. Rahner, Karl. “Die bleibende Bedeutung des II. Vatikanischen Konzils.” In Sämtliche Werke: Bei­ träge zum Konzil und seiner Interpretation, edited by Günther Wassilowsky and Karl Leh­ mann, vol. 21/2, 958–­69. Freiburg im Breisgau: Herder, 2013. Ramos, Alberto Guerreiro. The New Science of Organizations: A Reconceptualization of the Wealth of Nations. Toronto: University of Toronto Press, 1981. Ranke, Leopold von. Über die Epochen der Neueren Geschichte: Vorträge dem Könige Maximi­ lian II. von Bayern gehalten. Edited by Theodor Schieder and Helmut Berding. Munich: Oldenbourg, 1971. Reinhard, Wolfgang. Kleine Geschichte des Kolonialismus. 2nd ed., completely revised and augmented. Stuttgart: Kröner, 2008. Repgow, Eike von. Der Sachsenspiegel. Edited by Claus Dieter Schott. Zürich: Manesse, 1984. Riedel, Manfred. “Bürger, Staatsbürger, Bürgertum.” In Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-­sozialen Sprache in Deutschland, edited by Otto Brunner, Werner Conze, and Reinhart Koselleck, vol. 1, 672–­725. Stuttgart: E. Klett, 1972. Rief, Josef. Der Ordobegriff des jungen Augustinus. Paderborn: Schöningh, 1962. Rilinger, Rolf. “Zum kaiserlichen Leistungs-­und Rangdenken in Staat und Kirche.” In Ordo und dignitas: Beiträge zur römischen Verfassungs-­und Sozialgeschichte, edited by Tassilo Schmitt and Aloys Winterling, 181–­222. Stuttgart: Franz Steiner, 2007. Robertson, David. The Judge as Political Theorist: Contemporary Constitutional Review. Prince­ ton, NJ: Princeton University Press, 2010. Rorem, Paul. Pseudo-­Dionysius: A Commentary on the Texts and an Introduction to Their Influence. New York: Oxford University Press, 1993. Rosanvallon, Pierre. “The History of the Word ‘Democracy’ in France.” Journal of Democracy 6, no. 4 (1995): 140–­54. ————. La démocratie inachevée: Histoire de la souveraineté du peuple en France. Paris: Gallimard, 2000. ————. Le Sacre du citoyen: Histoire du suffrage universel en France. Paris: Gallimard, [1992] 2001. ————. The Society of Equals. Translated by Arthur Goldhammer. Cambridge, MA: Harvard University Press, 2013. Rosenberg, Gerald N., Sudhir Krishnaswamy, and Shishir Bail, eds. A Qualified Hope: The In­ dian Supreme Court and Progressive Social Change. Cambridge: Cambridge University Press, 2019.

bibliogr aphy

157

Roth, Hans Ingvar. P. C. Chang and the Universal Declaration of Human Rights. Philadelphia: University of Pennsylvania Press, 2018. Rousseau, Jean-­Jacques. Discourse on the Origin of Inequality. Edited by Patrick Coleman; translated by Franklin Philip. Oxford: Oxford University Press, [1755] 1994, reissued 2009. Roznai, Yaniv. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers. Oxford: Oxford University Press, 2017. Saada, Emmanuelle. Les enfants de la colonie: Les métis de l’Empire français entre sujétion et citoyenneté. Paris: La Découverte, 2007. Sands, Philippe. East West Street: On the Origins of Genocide and Crimes against Humanity. London: Weidenfeld & Nicolson, 2016. Saxonhouse, Arlene W. Athenian Democracy: Modern Mythmakers and Ancient Theorists. Notre Dame, IN: University of Notre Dame Press, 1996. Scarman, Sir (later Lord) Leslie. English Law—­The New Dimension. London: Stevens, 1974. Schmale, Wolfgang. Entchristianisierung, Revolution und Verfassung: Zur Mentalitätsgeschichte der Verfassung in Frankreich, 1715–­1794. Berlin: Duncker & Humblot, 1988. ————. Archäologie der Grund-­und Menschenrechte in der Frühen Neuzeit: Ein deutsch-­ französisches Paradigma. Munich: Oldenbourg, 1997. ————. Das 18. Jahrhundert. Vienna: Böhlau, 2012. Schmitt, Carl. Constitutional Theory. Translated by Jeffrey Seitzer, with a foreword by Ellen Kennedy. Durham, NC: Duke University Press, 2008. Schmitz, Georg. “The Constitutional Court of the Republic of Austria 1918–­1920.” Ratio Juris 16, no. 2 (2003): 240–­65. Schöller, Rainer G. Der gemeine Hirte: Viehhaltung, Weidewirtschaft und Hirtenwesen vornehm­ lich des nachmittelalterlichen Umlandes von Nürnberg. Nuremberg: Korn & Berg, 1973. Schröder, Wolfgang M. Grundrechtsdemokratie als Raison offener Staaten: Verfassungspolitik im europäischen und im globalen Mehrebenensystem. Berlin: Duncker & Humblot, 2003. Schubert, Ernst. “Mobilität ohne Chance: Die Ausgrenzung des fahrenden Volkes.” In Ständische Gesellschaft und soziale Mobilität, edited by Winfried Schulze and Helmut Gabel, 113–­63. Munich: R. Oldenbourg, 1988. Schulze, Winfried. “Die ständische Gesellschaft des 16./17. Jahrhunderts als Problem von Statik und Dynamik.” In Ständische Gesellschaft und soziale Mobilität, edited by Winfried Schulze and Helmut Gabel, 1–­17. Munich: R. Oldenbourg, 1988. Schulze, Winfried, and Helmut Gabel, eds. Ständische Gesellschaft und soziale Mobilität. Munich: R. Oldenbourg, 1988. Schumpeter, Joseph A. Capitalism, Socialism, and Democracy. 3rd ed. London: G. Allen & Unwin, [1942] 1950. Schwaiger, Georg. “Das Ende der Hexenprozesse im Zeitalter der Aufklärung.” In Teufelsglaube und Hexenprozesse, 4th ed., edited by Georg Schwaiger, 150–­79. Munich: C. H. Beck, 1999. Seydel, Max von. Bayerisches Staatsrecht. Vol. 2. Munich: Riedel, 1885. Siehr, Angelika. Die Deutschenrechte des Grundgesetzes: Bürgerrechte im Spannungsfeld von Menschenrechtsidee und Staatsmitgliedschaft. Berlin: Duncker & Humblot, 2001. Sieyès, Emmanuel. Qu’est-­ce que le Tiers État? Édition critique. Edited by Roberto Zapperi. Geneva: Droz, [1789] 1970. Simon, Alfred. Molière ou La vie de Jean-­Baptiste Poquelin. Paris: Seuil, 1995. Simpson, A. W. Brian. Human Rights and the End of Empire: Britain and the Genesis of the European Convention. Oxford: Oxford University Press, 2001.

158

bibliogr aphy

————. “Preface.” In The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights, edited by Ed Bates. Oxford: Oxford University Press, 2010. Skogly, Sigrun. “Article 2.” In The Universal Declaration of Human Rights: A Common Standard of Achievement, edited by Gudmundur Alfredsson and Asbjørn Eide, 75–­87. The Hague: Kluwer Law International, 1999. Smart, Annie K. Citoyennes: Women and the Ideal of Citizenship in Eighteenth-­Century France. Newark, DE: University of Delaware Press, 2011. Snowiss, Sylvia. Judicial Review and the Law of the Constitution. New Haven, CT: Yale University Press, 1990. Snyder, Timothy. Bloodlands: Europe between Hitler and Stalin. London: Bodley Head, 2010. Sodemann, Christoph. Die Gesetze der Apartheid. Bonn: Issa, 1986. Sotomayor, Sonia. My Beloved World. New York: Knopf, 2013. Spann, Othmar. Der wahre Staat. 3rd ed. [Leipzig: Quelle & Meyer, 1921]. Jena: Gustav Fischer, 1931. Stanziani, Alessandro. “Serfs, Slaves, or Wage Earners? The Legal Status of Labour in Russia from a Comparative Perspective, from the Sixteenth to the Nineteenth Century.” Journal of Global History 3 (2008): 183‒202. Stegemann, Wolfgang. “War der Apostel Paulus ein römischer Bürger?” Zeitschrift für die neutes­ tamentliche Wissenschaft, no. 78 (1987): 220–­29. Stohler, Stephan. Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States. Cambridge: Cambridge University Press, 2019. Stourzh, Gerald.1 “Reason and Power in Benjamin Franklin’s Political Thought.” American Political Science Review 47, no. 4 (December 1953): 1092–­115. ————. “Die Gleichberechtigung der Nationalitäten und die österreichische Dezember-­ Verfassung von 1867: Zur Entstehung und Bedeutung des Artikel 19 des Staatsgrundgesetzes über die allgemeinen Rechte der Staatsbürger.” In Der österreichisch-­ungarische Ausgleich von 1867: Vorgeschichte und Wirkungen, edited by Peter Berger, 168–­218. Vienna: Herold, 1967. ————. “William Blackstone, Teacher of Revolution.” Jahrbuch für Amerikastudien 15 (1970a): 184–­200. Republished in From Vienna to Chicago and Back, 60–­79. Chicago: University of Chicago Press, 2007. ————. Alexander Hamilton and the Idea of Republican Government. Stanford, CA: Stanford University, 1970b. ————. “Vom Widerstandsrecht zur Verfassungsgerichtsbarkeit: Zum Problem der Verfassungs­ widrigkeit im 18. Jahrhundert.” In Kleine Arbeitsreihe des Instituts für Europäische und vergleichende Rechtsgeschichte an der Rechts-­und Staatswissenschaftlichen Fakultät der Universität Graz, 1974. Republished in Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 37–­74. Vienna: Böhlau, 1989. ————. “Vom aristotelischen zum liberalen Verfassungsbegriff.” In Fürst, Bürger, Mensch: Untersuchungen zu politischen und soziokulturellen Wandlungsprozessen im vorrevolutionären Europa. Wiener Beiträge zur Geschichte der Neuzeit. Vol. 2, edited by Friedrich Engel-­Janosi, Grete Klingenstein, and Heinrich Lutz, 97–­122. Vienna: Verlag für Geschichte und Politik, 1975. 1. Included here are all works by Gerald Stourzh touching the field of constitutional or human rights, ordered by date of first publication.

bibliogr aphy

159

————. “Zur Konstitutionalisierung der Individualrechte in der Amerikanischen und Fran­ zösischen Revolution.” Juristenzeitung 31 (1976): 397–­402. Republished in Wege zur Grund­ rechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 155–­74. Vienna: Böhlau, 1989. ————. “The American Revolution, Modern Constitutionalism, and the Protection of Human Rights.” In Truth and Tragedy: A Tribute to Hans J. Morgenthau, edited by Kenneth W. Thompson and Robert J. Myers, 162–­76. Washington, DC: New Republic Book Co., 1977a. ————. “Staatsformenlehre und Fundamentalgesetze in England und Nordamerika im 17. und 18. Jahrhundert: Zur Genese des modernen Verfassungsbegriffs.” In Herrschaftsverträge, Wahlkapitulationen, Fundamentalgesetze, edited by Rudolf Vierhaus, 294–­328. Göttingen: Vandenhoeck & Ruprecht, 1977b. ————. “The Declarations of Rights: Popular Sovereignty and the Supremacy of the Constitution. Divergences between the American and French Revolutions.” In La Révolution américaine et l’Europe: Colloque international no. 577 du Centre National de la Recherche Scientifique, February 21–­25, 1978, under the direction of Claude Fohlen and Jacques Godechot, 347–­67. Paris: Centre National de la Recherche Scientifique, 1979. ————. “Die Gleichberechtigung der Volksstämme als Verfassungsprinzip 1848–­1918.” In Die Habsburgermonarchie 1848–­1918, vol. 3, Die Völker des Reichs, edited by Adam Wandruszka and Peter Urbanitsch, 975–­1206. Vienna: Verlag der österreichischen Akademie der Wissenschaften, 1980a. ————. Preface to Grete Klingenstein, Heinrich Lutz, and Gerald Stourzh, eds. Europäisierung der Erde? Studien zur Einwirkung Europas auf die außereuropäische Welt. Wiener Beiträge zur Geschichte der Neuzeit. Vol. 7, 9–­14. Munich: Oldenbourg, 1980b. ————. “Grundrechte zwischen Common Law und Verfassung: Zur Entwicklung in England und den nordamerikanischen Kolonien im 17. Jahrhundert.” In Grund-­und Freiheitsrechte im Wandel von Gesellschaft und Geschichte: Beiträge zur Geschichte der Grund-­und Freiheitsrechte vom Ausgang des Mittelalters bis zur Revolution von 1848. Vol. 1, edited by Günter Birtsch, 59–­74. Göttingen: Vandenhoeck & Ruprecht, 1981. Republished in Wege zur Grund­ rechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 75–­89. Vienna: Böhlau, 1989. ————. “Hans Kelsen, die österreichische Bundesverfassung und die rechtsstaatliche Demokratie.” In Die Reine Rechtslehre in wissenschaftlicher Diskussion: Referate und Diskussion auf dem zu Ehren des 100. Geburtstages von Hans Kelsen von 22. bis 27. September 1981 abgehaltenen Internationalen Symposion, 7–­29. Vienna: Manz, 1982. Republished in Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 309–­34. Vienna: Böhlau, 1989. ————. Fundamental Laws and Individual Rights in the 18th Century Constitution, edited by Claremont Institute for the Study of Statesmanship and Political Philosophy, Claremont, CA. Montclair, CA: 1984. Republished in The American Founding: Essays on the Formation of the Constitution, edited by J. Jackson Barlow, Leonard W. Levy, and Ken Masugi, 159–­93. Westport, CT: Greenwood Press, 1988. ————. Die Gleichberechtigung der Nationalitäten in der Verfassung und Verwaltung Österreichs 1848–­1918. Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1985. Reprinted 2015. ————. “Die Entwicklung der Rede-­und Meinungsfreiheit im englischen und amerikanischen Rechtsraum.” In Meinungsfreiheit: Grundgedanken und Geschichte in Europa und USA,

160

bibliogr aphy

edited by Johannes Schwartländer and Dietmar Willoweit, 121–­43. Kehl: Engel, 1986a. Republished in Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 175–­96. Vienna: Böhlau, 1989. ————. “Zur Institutionengeschichte der Arbeitsbeziehungen und der sozialen Sicherung—­ eine Einführung.” In Historische Wurzeln der Sozialpartnerschaft. Wiener Beiträge zur Geschichte der Neuzeit. Vol. 12/13, edited by Gerald Stourzh and Margarete Grandner, 13–­37. Vienna: Verlag für Geschichte und Politik, 1986b. Republished in Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates, 335–­61. Vienna: Böhlau, 1989. ————. “Die Begründung der Menschenrechte im englischen und amerikanischen Verfassungsdenken des 17. und 18. Jahrhunderts.” In Menschenrechte und Menschenwürde: Historische Voraussetzungen, säkulare Gestalt, christliches Verständnis. Edited by Ernst-­Wolfgang Böckenförde and Robert Spaemann, 78–­90. Stuttgart: Klett-­Cotta, 1987a. ————. “Frankfurt—­Wien—­Kremsier 1848/49: Der Schutz der nationalen und sprachlichen Minderheit als Grundrecht.” In Grund-­und Freiheitsrechte von der ständischen zur spätbürgerlichen Gesellschaft, edited by Günter Birtsch, 437–­56. Göttingen: Vandenhoeck & Ruprecht, 1987b. ————. “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century.” In Conceptual Change and the Constitution, edited by Terence Ball and J. G. A. Pocock, 35–­54. Lawrence: University of Kansas Press, 1988. Republished in From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America, 80–­99. Chicago: University of Chicago Press, 2007. ————. Wege zur Grundrechtsdemokratie: Studien zur Begriffs-­und Institutionengeschichte des liberalen Verfassungsstaates. Vienna: Böhlau, 1989. ————. “Verfassungsgerichtsbarkeit und Grundrechtsdemokratie—­die historischen Wurzeln.” In 70 Jahre Bundesverfassung: Festakt anläßlich der 70. Wiederkehr der Beschlußfassung über das Bundes-­Verfassungsgesetz und der Einrichtung der österreichischen Verfassungsgerichtsbarkeit am 1. Oktober 1990, edited by Verfassungsgerichtshof der Republik Österreich, 17–­39. Vienna: Österreichische Staatsdruckerei, 1991. Republished in Der Umfang der österreichischen Geschichte: Ausgewählte Studien 1990–­2010, 157–­79. Vienna: Böhlau, 2011. ————. “Naturrechtslehre, leges fundamentales und die Anfänge des Vorrangs der Verfassung.” In Rangordnung der Gesetze: 7. Symposion der Kommission “Die Funktion des Gesetzes in Geschichte und Gegenwart,” 22nd and 23rd April 1994, edited by Christian Starck, 13–­28. Göttingen: Vandenhoeck & Ruprecht, 1995. ————. “The Modern State: Equal Rights; Equalizing the Individual’s Status and the Breakthrough of the Modern Liberal State.” In The Individual in Political Theory and Practice, edited by Janet Coleman, 303–­27. Oxford: Clarendon Press, 1996a. Republished in From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America, 275–­303. Chicago: University of Chicago Press, 2007. ————. “L’État moderne: l’égalité des droits; L’égalisation des statuts individuels et la percée de l’État libéral moderne.” In L’Individu dans la théorie politique et dans la pratique, edited by Janet Coleman, 349–­77. Paris: Presses Universitaires de France, 1996b. ————. “Menschenrechte und Genozid.” (Farewell Lecture, University of Vienna, 1997), complete version published in Spuren einer intellektuellen Reise: Drei Essays, 103–­55. Vienna: Böhlau, 2009.

bibliogr aphy

161

————. “Menschenrechte und Bürgerrechte.” In Europäische Geschichtskultur im 21. Jahrhundert, edited by Haus der Geschichte der Bundesrepublik Deutschland, 80–­93. Berlin: Nicolai, 1999. English version: “Human Rights and Civil Rights.” In The Culture of European History in the 21st Century, edited by Haus der Geschichte der Bundesrepublik Deutschland, 74–­86. Berlin: Nicolai, 1999a. ————. “Constitution: Évolution des significations du terme depuis le début du XVIIe siècle jusqu’à la fin du XVIIIe siècle.” Droits. Revue française de théorie, de philosophie et de culture juridiques, no. 29 (1999b): 158–­75. ————. Begründung und Bedrohung der Menschenrechte in der europäischen Geschichte. 18 pp. Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2000a. ————. “Verfassung und Verfassungswirklichkeit Altösterreichs in den Schriften Georg Jellineks.” In Georg Jellinek: Beiträge zu Leben und Werk, edited by Stanley L. Paulson and Martin Schulte, 247–­60. Tübingen: Mohr Siebeck, 2000b. ————. “Liberal Democracy as a Culture of Rights—­England, the United States, and Continental Europe.” In Nordamerikastudien: Historische und literaturwissenschaftliche Forschungen aus österreichischen Universitäten zu den Vereinigten Staaten und Kanada. Wiener Beiträge zur Geschichte der Neuzeit. Vol. 24, edited by Thomas Fröschl, Margarete Grandner, and Birgitta Bader-­Zaar, 11–­37. Vienna: Verlag für Geschichte und Politik, 2000c. Republished in Bridging the Atlantic: The Question of American Exceptionalism in Perspective, edited by Elisabeth Glaser and Hermann Wellenreuther, 11–­41. Cambridge: Cambridge University Press, 2002. Second republication in From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America, 304–­34. Chicago: University of Chicago Press, 2007. ————. “Die Grundrechte in der Paulskirche und im Kremsierer Reichstag: Gemeinsamkeiten, Unterschiede, Rezeptionen.” In Verfassungswandel um 1848 im europäischen Vergleich, edited by Martin Kirsch and Pierangelo Schiera, 269–­83. Berlin: Duncker & Humblot, 2001. ————. “Gleichheitsgebot und Benachteiligtenförderung: Der Fall Regents of the University of California v. Bakke vor dem US Supreme Court, 1978.” In Der Rechtsstaat vor neuen Her­ ausforderungen: Festschrift für Ludwig Adamovich zum 70. Geburtstag, edited by Bernd-­ Christian Funk, Gerhart Holzinger, Hans R. Klecatsky, Karl Korinek, Wolfgang Mantl, and Peter Pernthaler, 773–­89. Vienna: Verlag Österreich, 2002. ————. “Die Gleichheit alles dessen, was Menschenantlitz trägt.” In Soziokultureller Wandel im Verfassungsstaat: Phänomene politischer Transformation; Festschrift für Wolfgang Mantl zum 65. Geburtstag, edited by Hewdig Kopetz, Josef Marko, and Klaus Poier, 183–­96. Vienna: Böhlau, 2004a. Republished in Der Umfang der österreichischen Geschichte: Ausgewählte Studien 1990–­2010, 269–­82. Vienna: Böhlau, 2011. ————. “ ‘.  .  . égaux en droits’—­The Place of Non-­Discrimination in the History of Human Rights.” Human Rights Law Journal 25 (2004b): 2–­10. ————. “Penser l’égalité: Cinq notions d’égalité chez Tocqueville.” Droits. Revue française de théorie, de philosophie et de culture juridiques, no. 41 (2005): 185–­98. ————. “ ‘Members only’: Willi Paul Adams and Equality in Revolutionary America—­Some Les­ sons for the Understanding of American Constitutionalism,” 33–­44. In Atlantic Passages: Constitution—­Immigration—­Internationalization. In memoriam Willi Paul Adams, edited by Andreas Etges and Ursula Lehmkuhl. Berlin: LIT Verlag, 2006a. ————. “Tocqueville’s Understanding of ‘Conditions of Equality’ and ‘Conditions of Inequality.’ ” In Enlightening Revolutions: Essays in Honor of Ralph Lerner, edited by Svetozar Minkov,

162

bibliogr aphy

with the assistance of Stéphane Douard, 259–­80. Lanham, MD: Lexington Books, 2006b. Republished in From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America, 335–­58. Chicago: University of Chicago Press, 2007. ————. From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America. Chicago: University of Chicago Press, 2007. ————. Spuren einer intellektuellen Reise: Drei Essays. Vienna: Böhlau, 2009. ————. Der Umfang der österreichischen Geschichte: Ausgewählte Studien 1990–­2010. Vienna: Böhlau, 2011. ————. Die moderne Isonomie. Vienna: Böhlau, 2015. ————. “The Development of Constitutional Precedence and the Constitutionalization of Individual Rights.” In Reconsidering Constitutional Formation II: Decisive Constitutional Normativity, edited by Ulrike Müßig, 99–­112. Berlin: Springer, 2018a. ————. L’isonomie moderne. Rennes: Presses universitaires de Rennes, 2018b. Stourzh, Gerald, Ralph Lerner, and H. C. Harlan, eds. Readings in American Democracy. 2nd ed. New York: Oxford University Press, 1966. Stourzh, Herbert. “Humanität und Staatsidee” (1938). Republished in Gegen den Strom: Ausgewählte Schriften gegen Rassismus, Faschismus und Nationalsozialismus 1924–­1938, edited by Gerald Stourzh, 73–­176. Vienna: Böhlau, 2008. Struve, Tilman. Die Entwicklung der organologischen Staatsauffassung im Mittelalter. Stuttgart: Anton Hiersemann Verlag, 1978. ————. “Pedes rei publicae: Die dienenden Stände im Verständnis des Mittelalters.” Historische Zeitschrift 236 (1983): 1–­48. Sumption, Jonathan. Trials of the State: Law and the Decline of Politics. London: Profile Books, 2019. Talmon, J. L. The Origins of Totalitarian Democracy. London: Secker & Warburg, 1952. Taylor, Charles. A Secular Age. Cambridge, MA: The Belknap Press of Harvard University Press, 2007. Thesaurus proverbiorum medii aevi: Lexikon der Sprichwörter des romanisch-­germanischen Mittelalters. Vol. 1. Edited by Kuratorium Singer der Schweizerischen Akademie der Geistes-­ und Sozialwissenschaften. Berlin: De Gruyter, 1995. Thomas Aquinas. Summa theologiae. Vol. 1, edited by Pietro Caramello. Turin: Marietti, 1952. Thomas, Keith. Religion and the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth Century England. London: Weidenfeld and Nicolson, 1971. Thomas, Rosalind. Herodotus in Context: Ethnography, Science and the Art of Persuasion. Cambridge: Cambridge University Press, 2000. Thucydides. The War of the Peloponnesians and the Athenians. Edited and translated by Jeremy Mynott. Cambridge: Cambridge University Press, 2013. Tocqueville, Alexis de. Œuvres. Vol. 2: De la démocratie en Amérique. Edited by André Jardin, Jean-­Claude Lamberti, and James T. Schleifer. Paris: Gallimard, [1835 and 1840] 1992. ————. Democracy in America. Edited, translated and with an introduction by Harvey C. Mans­ field and Delba Winthrop. Chicago: University of Chicago Press, 2000. Tuchmann, Barbara W. A Distant Mirror: The Calamitous 14th Century. New York: Knopf, 1978. Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press, 1979. Urban, Yerri. L’ indigène dans le droit colonial français, 1865–­1955. Paris: LGDJ, 2011. Vlastos, Gregory. “Isonomia.” American Journal of Philology 74, no. 4 (1953): 337–­66.

bibliogr aphy

163

————. “ΙΣΟΝΟΜΙΑ ΠΟΛΙΤΙΚΗ” (Isonomía politikē). In Isonomia. Studien zur Gleichheitsvorstellung im griechischen Denken, edited by Jürgen Mau and Ernst Günther Schmidt, 1–­35. Berlin: Akademie-­Verlag, 1964. ————. “Justice and Equality.” Republished in Theories of Rights, edited by Jeremy Waldron, 41–­ 76. Oxford: Oxford University Press, 1984. Vorgrimler, Herbert. Geschichte der Hölle. Munich: Fink, 1993. Vovelle, Michel. La mort et l’Occident de 1300 à nos jours. Paris: Gallimard, 1983. Wadham, John, Helen Mountfield, Elizabeth Prochaska, Raj Desai, eds. Blackstone’s Guide to the Human Rights Act 1998. 7th ed. Oxford: Oxford University Press, 2015. Waldron, Jeremy. “The Core of the Case against Judicial Review.” Yale Law Journal 115 (2006): 1346–­1406. ————. One Another’s Equals: The Basis of Human Equality. Cambridge, MA: The Belknap Press of Harvard University Press, 2017. Walker, D. P. The Decline of Hell: Seventeenth Century Discussions of Eternal Torment. Chicago: University of Chicago Press, 1964. Weber, Max. Economy and Society: An Outline of Interpretive Sociology. Edited by Guenther Roth and Claus Wittich. Berkeley: University of California Press, 1968. Weinrib, Jacob. Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge: Cambridge University Press, 2016. Wieacker, Franz. Privatrechtsgeschichte der Neuzeit. 2nd ed. Göttingen: Vandenhoeck & Ru­ precht, 1967. Williams, Roger. The Bloudy Tenent of Persecution for Cause of Conscience. London, 1644. Winkler, Heinrich August. Geschichte des Westens. Munich: C. H. Beck. Vol. 1, 2009: Von den Anfängen in der Antike bis zum 20. Jahrhundert. Vol. 2, 2011: Die Zeit der Weltkriege 1914–­194. Vol. 3, 2014: Vom Kalten Krieg zum Mauerfall. Vol. 4, 2015: Die Zeit der Gegenwart. Winter, Jay, and Antoine Prost. René Cassin and Human Rights: From the Great War to the Universal Declaration. Cambridge: Cambridge University Press, 2013. Wolf-­Phillips, Leslie. Comparative Constitutions. London: Macmillan, 1972. Wollstonecraft, Mary. A Vindication of the Rights of Woman. Edited by Miriam Brody. Harmondsworth: Penguin Books, [1792] 1992. Wright, Anthony D. The Counter-­Reformation: Catholic Europe and the Non-­Christian World. Aldershot: Ashgate, 2005. Zakaria, Fareed. The Future of Freedom: Illiberal Democracy at Home and Abroad. New York: Norton, 2003. Zauner, Friedrich. Das Hierarchienbild der Gotik: Thomas von Villachs Fresko in Thörl. Stuttgart: Urachhaus, 1980. Zurn, Christopher F. Deliberative Democracy and the Institutions of Judicial Review. Cambridge: Cambridge University Press, 2007. Zwahr, Hartmut. Herr und Knecht: Figurenpaare in der Geschichte. Leipzig: Urania-­Verlag, 1990.

Index of Names

Ackerman, Bruce, 67–­68, 105 Adamovich, Ludwig, 93 Alexy, Robert, 56 Allen, Trevor, 56 Altwicker, Tilmann, 69 Ambedkar, B. R., 129 Arbour, Louise, 112 Arendt, Hannah, 10, 60 Ariès, Philippe, 33 Aristogeiton, 9 Aristotle, 9, 11, 14, 30 Armour, Peter, 29 Arndt, Ernst Moritz, 70 Augustine of Hippo, 17, 23, 28, 32, 34–­35

Bodin, Jean, 35 Bonaparte, Napoleon, 31, 79, 86, 135 Borecký, Bořivoj, 1 Bouglé, Célestin, 8 Boutmy, Emile, 43 Boyd, Julian, 41 Brown, Peter, 32 Brunner, Georg, 130 Brunner, Otto, 16 Buch, Walter, 77 Buchstein, Hubertus, 124 Buergenthal, Thomas, 109, 113 Burlamaqui, Jean Jacques, 41 Burr, Aaron, 24–­25

Baader, Franz von, 123 Badinter, Robert, 105–­6 Bakke, Allan P., 91 Balibar, Étienne, 3, 10, 90 Ball, John, 22 Battenberg, Friedrich, 76 Bauböck, Rainer, 90 Bauer, Otto, 122 Baxi, Upendra, 83, 110–­11 Beccaria, Cesare, 37 Beierwaltes, Werner, 28 Bekker, Balthasar, 37 Benhabib, Seyla, 90 Bessette, Joseph, 52 Billacois, François, 24 Black, Hugo, 82 Blackmun, Harry, 91–­92 Blackstone, William, 40–­41, 97 Blickle, Peter, 23, 70 Blum, Jerome, 69 Böckenförde, Ernst-­Wolfgang, 75

Calas, Jean, 37 Calhoun, John C., 122 Calvin, John, 73 Cameron, David, 130 Canetti, Elias, 124 Cartledge, Paul, 11 Cassin, René, 108 Castellio, Sebastian, 73 Chamberlayne, Edward, 40 Chang, P. C., 108 Charell, Erik, 76–­77 Chaunu, Pierre, 30–­32 Chávez, Hugo, 49 Chotek, Sophie, 24 Cicero, 5 Clark, Stuart, 35 Clemenceau, Georges, 119 Clermont-­Tonnerre, Stanislas de, 76 Colliot-­Thélène, Catherine, 54, 90 Condorcet, Marquis de (Marie Jean Antoine Nicolas Caritat), 80

166 Condorcet, Sophie de, 80 Conrad, Joseph, 83 Constantine (Roman emperor), 16 Cooper, Frederick, 87–­88 Coornhert, Dirk Volkertszoon, 73 Crouch, Colin, 54 Damiens, Robert, 37 Dann, Otto, 3 Dante Alighieri, 29–­32 Darius (king of Persia), 10–­11 Davis, David Brion, 61 Delumeau, Jean, 33–­36 Desai, Raj, 107 Diamond, Larry, 55 Dinzelbacher, Peter, 31 Dohm, Christian Konrad Wilhelm, 75–­76, 81 Dreier, Horst, 132–­33 Dumont, Louis, 21 Dworkin, Ronald, 90, 122

index of names Gentile, Giovanni, 48 Gentillet, Innocent, 96 Gerapetritis, George, 91, 96 Ginsburg, Ruth Bader, 128 Girardet, Klaus M., 14 Gobineau, Joseph Arthur de, 46 Goebbels, Joseph, 48 Göncz, Kinga, 49 Gouges, Olympe de, 52, 80 Gratz, Jennifer, 92 Gravina, Giuseppe, 34 Grawert, Rolf, 64 Grégoire, Henri, 40 Grimm, Dieter, 64 Grotius, Hugo, 42 Grutter, Barbara, 92 Guèye, Lamine, 88 Guyomar, Pierre, 80–­81

Faller, Hans Joachim, 102 Fauchet, Claude, 40 Feller, Richard, 30 Fichte, Johann Gottlieb, 2, 60, 134 Fichtenau, Heinrich, 17, 27 Fikentscher, Wolfgang, 55 Finley, Moses I., 18, 61 Flaig, Egon, 120, 122 Flasch, Kurt, 29 Foucault, Michel, 37 Fraenkel, Ernst, 77 Francis Ferdinand (archduke of Austria), 24 Franklin, Benjamin, 42 Frederick II of Prussia, 37 Frei, Peter, 9 Frevert, Ute, 24 Fried, Johannes, 33 Furet, François, 45 Fürst, Alfons, 32

Habermas, Jürgen, 7, 52–­53, 56–­58, 138 Haller, Gret, 54 Hamilton, Alexander, 15, 24–­25, 43–­44, 100 Hamm, Berndt, 17 Harding, Andrew, 104 Harlan, John Marshall, 67 Harmand, Jules, 88 Harmodios, 9 Haskell, Thomas L., 137 Hathaway, Ronald F., 29 Havel, Václav, 136–­37 Hayek, Friedrich August von, 2, 14 Hegel, Georg Wilhelm Friedrich, 22 Heineccius, Johann Gottlieb, 36 Hell, Jean-­François, 75 Hengel, Martin, 5 Henri IV of France, 37, 72 Herodotus, 1, 9–­12, 139 Herolt, Johannes, 33 Hesiod, 12 Hipparchos, 9 Hippel, Theodor Gottlieb von, 81 Hippias, 9 Hobbes, Thomas, 42, 97 Ho Chi Minh, 136 Hofer, Andreas, 31 Holbach, Paul-­Henri d’, 42 Hübener, Wolfgang, 17 Hughes, Robert, 32 Huizinga, Johan, 1, 2, 139 Humboldt, Alexander von, 85–­86 Humphrey, John P., 108

Gabel, Helmut, 25 Garland, Merrick, 101

Iredell, James, 100 Israel, Jonathan, 37, 42

Eckel, Jan, 108, 136 Edelstein, Dan, 42 Edward VIII of England, 24 Ehrenberg, Victor, 9 Ehrlich, Eugen, 60 Eisenbart, Liselotte Constanze, 27 Erasmus, 33 Eriugena, John Scottus, 29

index of names James I of England, 96 Jansen, Cornelius, 34 Jauch, Ursula Pia, 81 Jefferson, Thomas, 43–­44, 74, 131–­33, 137 Jellinek, Georg, 43, 62, 74, 122 Jesus of Nazareth, 5, 40 Jezler, Peter, 30, 32 Joas, Hans, 7, 37, 108 John of Salisbury, 27 John XXIII (pope), 75 Joseph II of Austria, 37, 71 Kagan, Elena, 92 Kägi, Werner, 50 Kaiser, Reinhold, 29 Kant, Immanuel, 7, 57–­58, 81 Keane, John, 53, 59 Kelsen, Hans, 51, 98, 103, 128–­29, 138 Kennedy, Anthony, 68 Kielmansegg, Peter Graf, 54–­55 Kiernan, V. G., 24–­25 Kim, Sung Hui, 120 Kittsteiner, Heinz D., 36 Kleisthenes, 9 Klerk, Frederik de, 62 Klopstock, Friedrich Gottlieb, 64 Kocka, Jürgen, 70, 83 Kojève, Alexandre, 22 Kolchin, Peter, 71 Koselleck, Reinhart, 17 Kreil, Tanja, 93–­94 Kudlich, Hans, 71 Kymlicka, Will, 122 Lang, Bernhard, 30 Las Casas, Bartolomé de, 84 Lasker-­Wallfisch, Anita, 78 Lasserre, François, 11 Lauterpacht, Hersch, 108 Le Bon, Gustave, 88 Leibholz, Gerhard, 50, 66 Lemay, Edna Hindie, 26 Lemkin, Raphael, 108 Leopold II of Belgium, 83 Levy, Ernst, 61 Leyland, Peter, 104 Liu Xiaobo, 137 Locke, John, 41, 99, 101, 133 Lorenzetti, Ambrogio, 26 Louis XIV of France, 25, 73 Louis XV of France, 37 Louis XVI of France, 37 Lovejoy, Arthur, 28 Luscombe, David E., 30 Luther, Martin, 15, 33

167 Machiavelli, Niccolò, 14 Macpherson, C. B., 48–­49 Madison, James, 43–­44, 49, 99–­101 Maduro, Nicolás, 49 Malik, Charles, 108 Mandela, Nelson, 62, 95–­96 Mantl, Wolfgang, 50 Maria Theresa (archduchess of Austria), 73 Marie Antoinette (queen of France), 80 Markschies, Christoph, 32 Marshall, John, 51–­52, 100 Marx, Karl, 64 Maximilian II of Bavaria, 39 Mazzei, Philip, 43 Mbeki, Thabo, 96 McDannell, Colleen, 30 Meier, Christian, 1, 12–­13 Memling, Hans, 33 Mendelssohn, Moses, 75 Menzel, Adolf, 13 Merkl, Adolf, 98 Michelman, Frank I., 46, 54 Midelfort, H. C. Erik, 36 Millar, John, 79 Mitterand, François, 105 Mohamad, Mahathir, 110 Molière, 25 Mommsen, Theodor, 5 Montesquieu, baron de (Charles Louis de Secondat), 2, 14, 19, 137 Morsink, Johannes, 108–­10 Mouffe, Chantal, 56 Mounier, Jean-­Joseph, 3 Mounk, Yascha, 55 Mountfield, Helen, 107 Moyn, Samuel, 3, 136 Müller, Jan-­Werner, 49, 54, 118 Münch, Paul, 17 Murphy, Walter F., 54–­56 Nippel, Wilfried, 2, 13 Nortmann, Ulrich, 14 Nowak, Manfred, 111–­12 Obama, Barack, 101 Oexle, Otto Gerhard, 18, 26 Orbán, Viktor, 49 Origenes, 32, 36 Osterhammel, Jürgen, 88 Osterkamp, Thomas, 128 Ostwald, Martin, 8, 10, 12 Otanes, 10 Paine, Thomas, 38, 44 Palmer, Robert R., 39, 43, 121, 127

168 Patterson, Orlando, 16, 83 Paul of Tarsus, 4–­5, 23, 27, 29 Pelling, Christopher, 10 Pericles, 13 Petersen, Johann Wilhelm, 36 Pettit, Philip, 53 Piketty, Thomas, 3, 21, 26 Pillay, Navanethem, 112 Plato, 13–­14 Plazza, Benedetto, 34 Plotinus, 28 Polybios, 14 Pope, Alexander, 28 Pöschl, Magdalena, 66 Prochaska, Elizabeth, 107 Protagoras, 11–­13 Pseudo-­Dionysius Areopagita, 17, 29 Puntscher Riekmann, Sonja, 107 Putin, Vladimir, 49 Rae, Douglas, 25–­26, 28 Rahner, Johanna, 33 Rahner, Karl, 34 Ramos, Alberto Guerreiro, 12 Ranke, Leopold von, 39 Ravaillac, François, 37 Reagan, Ronald, 123 Renner, Karl, 122 Repgow, Eike von, 22 Riedel, Manfred, 64 Rief, Josef, 28 Rilinger, Rolf, 16 Robertson, David, 103, 129 Robespierre, Maximilien, 119 Robinson, Mary, 112 Rochefoucauld-­d’Enville, Louis-­Alexandre de la, 42 Rohan-­Chabot, Guy-­Auguste de, 24–­25 Roosevelt, Eleanor, 108 Rosanvallon, Pierre, 3, 19, 45, 48, 54, 80, 119 Rousseau, Jean-­Jacques, 10, 42, 50, 57, 97 Royer-­Collard, Pierre-­Paul, 45 Saada, Emmanuelle, 87–­88 Sands, Philippe, 108 Saxonhouse, Arlene W., 10 Scalia, Antonin, 68, 128 Scarman, Leslie, 132 Schiller, Friedrich, 78 Schmale, Wolfgang, 23, 39–­40, 99 Schmitt, Carl, 50–­51 Schröder, Wolfgang M., 55 Schubert, Ernst, 25 Schulze, Winfried, 25 Schumpeter, Joseph, 52

index of names Schwaiger, Georg, 36 Scott, Dred, 126 Servet (Servetus), Michel, 73 Sévigné, Marie, Marquise de, 20 Sieyes, Emmanuel, 38, 44, 50, 57, 101, 119–­20 Simpson, A. W. Brian, 115 Simpson, Alice Wallis, 24 Skogly, Sigrun, 109 Smith, Melancton, 98 Snowden, Edward, 135 Snowiss, Sylvia, 100 Snyder, Timothy, 4 Solon, 12 Sonnenfels, Josef von, 37 Sotomayor, Sonia, 92 Spann, Othmar, 6 Spinoza, Baruch, 42 Stalin, Joseph, 120 Stanziani, Alessandro, 72 Stourzh, Herbert, 6 Struve, Tilman, 27 Sumption, Jonathan, 127 Talmon, Jacob, 50 Taylor, Charles, 35, 46 Thatcher, Margaret, 123 Theodosius I (Roman emperor), 16 Thiers, Adolphe, 119 Thomas, Rosalind, 9 Thomas Aquinas, 30 Thomasius, Christian, 36 Thomas of Villach, 30 Thucydides, 13 Tocqueville, Alexis de, 19–­21, 23, 26–­28, 44–­46, 135, 137 Trimborn, Kornelius, 124 Tuchmann, Barbara, 33 Urvoas, Jean-­Jacques, 106 Valla, Lorenzo, 29 Vattel, Emmerich de, 41 Vlastos, Gregory, 6, 8–­9, 11 Voltaire, 24–­25, 37 Voragine, Jacobus de, 29 Vorgrimler, Herbert, 32 Vovelle, Michel, 33 Wadham, John, 107 Waldron, Jeremy, 6, 128 Walzer, Michael, 46 Wang, Derrick, 128 Warren, Earl, 67 Washington, George, 74, 100 Weber, Max, 18–­19, 125, 134 Weinrib, Jacob, 128, 130

index of names Weyer, Johann, 36 William of Orange, 73 Williams, Roger, 73–­74 Winkler, Heinrich August, 48 Wollstonecraft, Mary, 81

169 Yeltsin, Boris, 49 Zakaria, Fareed, 49 Zurn, Christopher, 53 Zwahr, Hartmut, 22