THE HEALTH OF NATIONS Part 5 doc

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and processes, is that the idea ofcivil society is capable ofproducing

the idea ofthe state, which finally embodies, in theory and in prac￾tice, society’s universalising capacity, an achievement which is the ra￾tionally conceived end ofhuman history. And, in appropriate historical

circumstances, such as a ‘constitutional monarchy’, the idea ofthe ‘state’

could become a fact. One thing was certain. The surpassing of civil soci￾ety in the ‘state’ could not be achieved in the form of democracy, if that

meant a system in which the masses (der P¨obel) would, in some sense,

govern.

6.13 The consequences ofHegel’s depreciation of‘civil society’ in

relation to ‘the state’ have been profound and long-lasting. In the hands

ofKarl Marx, misled perhaps by the unfortunate German translation of

Ferguson’s ‘civil society’ as b¨urgerliche Gesellschaft (bourgeois society),18

it became the casus belli ofrevolution, the end ofhumanity’s pre-history.

At the same time, the development ofHegel’s ‘universal class’, in the form

ofthe modern paternalist civil service, with its universalising function

in the service ofthe public interest, rapidly became a feature ofliberal

democracy, even in the most bourgeois ofliberal democracies. But the

contempt for, or at least distrust of, the messy business of democratic

‘politics’, particularly politics ofthe Anglo-American variety, continued

to affect the political development of several European countries until

well into the twentieth century.19 And Hegel’s troubled spirit may be

with us yet again, in the third and latest life-form of ‘civil society’ and

in its conceptual cousin, the sinister new concept of‘governance’.

6.14 It was in the last two decades ofthe twentieth century that the

idea of‘civil society’ was suddenly and mysteriously resurrected or rein￾carnated. The third life of civil society has already generated its own

book-mountain. There is some agreement to the effect that the idea had

two spiritual parents: a decline ofconfidence in the business ofinstitu￾tional politics in liberal democracies; and a tactic ofanti-state dissent

in late-stage communist countries.20 But there is a splendid range of

disparate views about what ‘civil society’ is and is for. Civil Society 1.

For some, particularly for ever-optimistic Americans, it is the arena for

18 It seems that civil society’s latest avatar has been re-branded in German as Zivilgesellschaft. 19 For further discussion of this aspect, see ch. 7 below, at §§ 7.50ff. 20 The most memorable case ofthis phenomenon was the role oftrade unions in the revolu￾tionary social transformation of Poland, but the idea of ‘anti-politics’ had for some time

been an aspect ofthe polemics ofdissidence in Eastern Europe.

168 european soc iety and its law

the revival ofFergusonian community, civility and republican virtue

as a therapeutic response to institutional corruption.21 Civil Society 2.

For others, apparently including the European Commission, it is a neo￾syndicalist assertion ofthe countervailing power ofnon-state organised

interests, mediating between the particularism ofthe individual and the

institutional universality ofthe state.22 Civil Society 3. For others again,

it is the embodiment ofa Habermasian public sphere in which the differ￾entiated voices ofsociety speak to each other and collectively constitute

the consciousness oftheir sociality and perhaps even oftheir human￾ity.23 Civil Society 4. For the apostles ofuniversal democracy, it is the

means by which societies whose social development has been delayed or

disabled can artificially construct the social sub-structure without which

democratic institutions cannot function successfully. And the same prin￾ciple might be applicable to the democratising ofinternational society

itself.24

6.15 The spiritual connection between such ideas and the idea of

‘governance’ is subtle. The word ‘governance’ in the English language

(derived from the Old French gouvernance) is older than the word ‘gov￾ernment’. It referred to any form of control – of a parent over a child,

a natural force, a king’s power over a kingdom. John Fortescue’s The

Governance of England (written in the 1460s, first printed in 1714) was

21 ‘The idea ofcivil society is the idea ofsociety which has a life ofits own which is separate

from the state, and largely autonomous from it, which lies beyond the boundaries of the

family and the clan, and beyond the locality.’ E. Shils, ‘The virtue of civility’ (revised version

ofan essay originally published in 1991), in E. Shils, The Virtue of Civility. Selected Essays

on Liberalism,Tradition,and Civil Society (Indianapolis, Liberty Fund; 1997), pp. 320–55, at

pp. 320–1. 22 Syndicalism was a movement, especially in pre-fascist Italy, which sought to take power

over (or, in its anarcho-syndicalist version, to replace) the power ofthe state by using the

social power ofcorporate entities (sindacati), especially trade unions. Hegel had approved

ofthe non-governmental collective entity (Korporation) as a means ofpartial universalising

within Hegelian civil society. 23 ‘A viable civil society as a kind ofthird force between the state and the economy, on the

one hand, and the private sphere, on the other, seems to require some effective sense of

community and ofthere actually being a community to which people are committed.’

K. Nielson, ‘Reconceptualizing civil society for now’, in Toward a Global Civil Society (ed.

M. Walzer; Providence, Berghahn Books; 1995), pp. 41–67, at p. 56. 24 Governments and intergovernmental organisations have adopted this idea as an article

offaith. National and international non-governmental organisations have been incidental

beneficiaries to the extent that their claim to be self-appointed and self-defined institutions

ofnational and international ‘civil society’ is recognised by governments and intergovern￾mental organisations.

european governance 169

the first constitutional treatise written in the English language.25 It was

an instruction manual for a king on the art of wise governance of the

kingdom. In The Governance and also in his better-known De Laudibus

Legum Angliae(In Praise ofthe Laws ofEngland), written for the instruc￾tion ofthe then Prince ofWales and first printed in 1537, Fortescue had

explained that the King ofEngland is ‘not only regal but also political’,26

that he has dominium politicum et regale.

27 This meant that the English

polity was to be regarded as a monarchy which was, in some sense, also a

republic.28 The King ‘is not able to change the laws without the assent of

his subjects nor to burden an unwilling people with strange impositions

[taxes]’; ‘for a king of this sort is set up for the protection of the law,

the subjects, and their bodies and goods, and he has power to this end

issuing from the people, so that it is not permissible for him to rule his

people with any other power’.29

6.16 In The Governance Fortescue took up, with remarkable acuity,

what would prove to be one ofthe great perennial themes ofEnglish

constitutional history, a theme which has traditionally been known as

the problem of‘influence behind the throne’,30 a theme which is raised

yet again, six centuries later, by the new ideas of‘civil society’ and ‘gov￾ernance’ and in a political world full of focus groups, lobbyists, special

interest groups and non-governmental organisations ofdubious repre￾sentative legitimacy and with purposes which may or may not be for the

common good.

6.17 Fortescue devoted much attention to the problem ofthe com￾position ofthe King’s Council, the embryo-form ofcabinet government.

25 Sir John Fortescue (c.1394–c.1476) was briefly ChiefJustice ofthe King’s Bench. He went into

exile with the Prince ofWales and his mother (Margaret ofAnjou, wife ofKing Henry VI,

who had been deposed in 1461) but was later reconciled with King Edward IV (reigned

1461–83) and became a member ofhis Council. 26 J. Fortescue, De laudibus legum Angliae, in J. Fortescue, On The Laws and Governance of

England (ed. S. Lockwood; Cambridge, Cambridge University Press; 1997), ch. 1. 27 J. Fortescue, The Governance of England (ed. C. Plummer; Oxford, Clarendon Press; 1885),

ch. 1. 28 Both Voltaire and Montesquieu would come to the same conclusion in their observations

on the English constitution. See further in ch. 7 below, at § 7.31, fn. 30. 29 J. Fortescue, De laudibus (fn. 26 above), chs 9 and 13, pp. 17, 21–2. 30 There is, perhaps, a connection with the German phenomenon, discussed by Weber, of R¨ate

von Haus aus (counsel from beyond the court), a controversial practice of German kings.

M. Weber, ‘Bureaucracy’ (part 3, ch. 6 of Wirtschaft und Gesellschaft), in From Max Weber:

Essays in Sociology (eds H. Gerth and C. Wright Mills; London, Routledge; 1948/1991),

pp. 196–244, at p. 236.

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The Council must be carefully composed, including some commoners,

and it must be possible to know who is advising the King. In a pa￾per of1470, he referred to the bad practice whereby ‘our kings have

been ruled by private Counsellors, such as have offered their service

and counsel and were not chosen thereto’.31 Four centuries later, John

Stuart Mill raised the problem yet again, borrowing a phrase from Jeremy

Bentham: ‘sinister interests . . . that is, interests conflicting more or less

with the general good ofthe community’. ‘One ofthe greatest dangers,

therefore, ofdemocracy, as ofall other forms ofgovernment, lies in

the sinister interest ofthe holders ofpower.’32 Should we recognise the

fact that there may even be such a thing as ‘the interest of a ruling

class’?33

The lure of anti-politics

6.18 We may, indeed, wonder what it is that attracts the direct suc￾cessors ofthe medieval kings, the ruling classes ofthe European Union

and ofits member states and ofinternational unsociety, and the ruling

class ofthe capitalist economy, to the new ideas of‘civil society’ and

‘governance’ and to a re-branding ofliberal democracy and capitalism

which is also a dangerous reconceiving ofessential features ofliberal

democracy and capitalism. In whose interest would such a thing be?34

6.19 In Plato’s Protagoras, Protagoras says that Hermes asked Zeus,

no less, whether he should distribute the gifts of wise government only

to the few, as special skills are given to doctors and lawyers and other

experts, or to all alike. Zeus answered: ‘Let all have their share.’35 From

31 J. Fortescue, The Governance (fn. 27 above), pp. 301, 346. 32 J. S. Mill, Considerations on Representative Government (1861) (London, Dent (Everyman’s

Library); 1910), ch. 6, pp. 248, 254. 33 Ibid., p. 249. John Locke said that ifthe Prince had ‘a distinct and separate Interest from

the good ofthe Community’ then the people would not be ‘a Society ofRational Creatures’

but would have to be seen as ‘an Herd ofinferiour Creatures, under the Dominion ofa

Master, who keeps them, and works them for his own Pleasure and Profit’. Two Treatises

on Government (1689) (ed. P. Laslett; Cambridge, Cambridge University Press; 1960), ii,

§ 163, p. 423. 34 Cui bono? (who would profit from it?). Cicero, who used the phrase in the Second Philippic,

attributed it to the judge Lucius Cassius. 35 Plato, Protagoras, 322c–d (tr. W. Guthrie), in The Collected Dialogues of Plato (eds E. Hamilton

and H. Cairns; Princeton, Princeton University Press; 1961), p. 320. Protagoras goes on to

say: ‘Thus it is, Socrates, and from this cause, that in a debate involving skill in building,