THE HEALTH OF NATIONS Part 9 pps

intergovernmental soc iet ies and const itut ional ism 351

Above all, we see now that all our ideas have been historically produced –

our ideas ofGod and gods, our ideas ofnation and gender and race, our

ideas ofthe true and the good and the beautiful, our ideas ofsociety

and law, our ideas ofinternational society and international law, our

ideas about our own humanity, our ideas about the past and the future,

our ideas about ideas. All ofthem might have been otherwise. All of

them are not otherwise. Social consciousness forms itself organically,

by accretion and transformation. New ideas grow in the compost of old

ideas.

12.23 It follows also that old ideas contain the possibility of new

ideas. The ideas we have contain the ideas that we might have. The

present state ofhuman consciousness contains the possibility ofnew

states ofconsciousness which are ours to explore and ours to choose.

The genealogy of constitutionalism

12.24 At the level of all-humanity, social consciousness is formed from

the flow ofconsciousness within and between the public minds ofcount￾less subordinate societies over thousands ofyears, as they constitute

themselves in consciousness, as they form their self-consciousness in the

light ofthe self-constituting ofother societies. Nowhere is this more

true than in the evolution ofthe idea ofconstitutionalism. The past of

the idea ofconstitutionalism is a past which extends over several millen￾nia and many cultures, and includes not only the turbulent development

ofsocial consciousness within particular societies but also the flow of

consciousness among all the most dynamic cultures, ancient and mod￾ern. So deep are its roots in human social experience, in all times and all

places, we might well wonder whether it is a manifestation of some part

ofthe genetic programme ofhuman socialising, a species-characteristic

and not merely a contingent by-product ofhistory.

12.25 The future of the idea of constitutionalism, as a possible idea

within our ideas ofinternational society and international law, is thus

a present potentiality which we have inherited from an exceptionally

long and an exceptionally rich past. As an historically produced social

phenomenon, constitutionalism has taken countless different forms, as

the theory, pure and practical, of countless different societies. Its deep￾structural unity lies in the fact that it offers to a society the most valu￾able prize of all, that is to say, a practically effective idea of the order of

its own self-ordering. In an unusually clear example of the dialectical

352 internat ional soc iety and its law

development ofsocial consciousness, the idea ofconstitutionalism al￾lows a society to reconcile the ideal with the actual by negating and incor￾porating its idea ofthe transcendental.9 For each society, it presents in

one mental structure its own theory ofthe idea and the ideal oflaw. The

history ofconstitutionalism is the history ofthe struggle ofcountless

societies with the problem ofthe idea and the ideal oflaw.

12.26 It is a striking fact of history that there seems to have been a

parallel development in the idea and the ideal oflaw in otherwise dis￾parate cultures. It is a mental phenomenon whose history can be plotted

over time in particular cultures but which cannot be isolated from their

general history, because it has always been closely connected with other

aspects ofsocial and economic development. In particular, it seems that,

in periods ofexceptional social and economic change, and especially in

periods ofgreat social disorder, societies have been led to reconsider

the foundations of their social order, including its transcendental pa￾rameters. That reconsideration has been an integral part ofthe social

struggle, as contending parties sought to enlist competing versions of

transcendental ideas into their own idea ofa better society. Such an ap￾peal could be used as a weapon either ofreaction or ofrevolution, an

unchanging standard ofjudgement by reference to which it could be

argued that the present state ofsociety was either a betrayal ofsociety’s

ancient ideals or else a denial ofthe true potentiality ofthose ideals.

12.27 The fact that all sides in revolutionary social struggle refer

to the idea ofthe social-transcendental, but struggle passionately about

its meaning and its relevance to the current social situation, has cre￾ated a particular difficulty for historians, generating secondary disputes,

among historians themselves, about both those things. It is also particu￾larly difficult to avoid anachronism in making our historical judgements

about such matters, given that we happen to know how things turned

out, how the struggles were resolved in the further development of the

ideal, real and legal self-constituting of the societies in question.

12.28 As we enter the new century, social philosophy must make the

effort to form a reliable view of such processes, because the perennial

9 Hegel’s dialectical logic, which has a place on the human intellectual genome close to the

dynamic epistemology ofSocrates/Plato and the metaphysical biologism ofAristotle, resolves

dissonances at all epistemic levels into something which ‘apprehends the unity ofterms

(propositions) in their opposition – the affirmative which is involved in their disintegration

and in their transition’. Hegel’s Logic (part 1 ofthe Encyclopaedia of the Philosophical Sciences;

1830) (tr. W. Wallace; Oxford, Clarendon Press; 1973/1975), § 82, p. 119. For Hegel, dialectic

is ‘the very nature and essence ofeverything predicated by mere understanding’ (p. 116).

intergovernmental soc iet ies and const itut ional ism 353

problem ofhuman social self-constituting now presents itselfas its limit￾ing case, at the level ofall-humanity, where oppositions ofsocial theory,

including transcendental oppositions ofphilosophy and religion, will

have to be resolved in some new idea and ideal oflaw. Revolutionary

social change is now present at the level ofall-humanity, and that so￾cial change puts in question, among many other things, the nature and

function of intergovernmental organisations, as superordinate interme￾diate societies, a relatively new form of human self-socialising, which

may or may not contain the emerging pattern ofstill more developed

forms. The international social struggle at the level of ideas, the ideal

self-constituting of international society, calls for the contribution and

the courage ofa new breed ofinternational social philosopher.

12.29 International social philosophy must consider urgently wheth￾er the idea ofconstitutionalism might realise its ultimate genetic des￾tiny as the practical theory ofthe ultimate society, international society,

reconciling and overcoming the passionate pure-theoretical diversity,

historical and religious and philosophical, ofits countless subordinate

societies within the revolutionary self-reconstituting of all-humanity.

The genetics of constitutionalism

12.30 Historically, the various forms of constitutionalism have been

a manifestation of the ideas which particular societies have formed of

the relationship between the theory oftheir own social order and one

(or more than one) offour more general theories: (1) divine order;

(2) the sovereignty oflaw; (3) natural cosmic order; (4) natural social

order.

12.31 Constitutionalism has been used to establish (1) an idea of

a very human social order which is seen, paradoxically, as the control￾ling presence of divine order. It has been used to establish (2) the idea

ofthe authority ofeveryday law-making and law-enforcing as the con￾trolling presence ofthe sovereignty of law. It has been used to establish

(3) the idea ofa very particular and artificial human social order which

is seen, paradoxically, as the controlling presence of natural cosmic order.

It has been used to establish (4) the idea ofthe particular and artifi￾cial order ofa given society as the controlling presence of natural social

order.

12.32 Or, to put the four germ-ideas in a single genetic programme,

we may say that constitutionalism postulates an idea and an ideal oflaw

354 internat ional soc iety and its law

which is (1) less than the Will ofGod and (4) more than the General

Will, something which is (2) more than the Rule ofLaw and (3) less

than Natural Law. Such is the evolved charismatic power ofthe idea of

constitutionalism, and the potentiality ofits future power.

(1) Divine order

12.33 In La cit´e antique, Fustel de Coulanges set an extreme benchmark

in relation to which all subsequent opinions may be situated.

‘Among the Greeks and Romans, as among the Hindus, law was at

first part ofreligion.’10 ‘The law among the ancients was holy, and in the

time ofroyalty it was the queen ofkings. In the time ofthe republic it

was the queen ofthe people.’11

12.34 Religion may be ‘what the individual does with his own soli￾tariness’, as Whitehead said,12 or it may be a product of‘man’s need

to make his helplessness tolerable’, in the words ofFreud.13 Or, on the

contrary, it may be a society’s ‘collective ideal’, as Durkheim suggested,14

or ‘the dream-thinking ofa people’15or ‘collective desire personified’.16

It may be a crude weapon ofpower in the hands ofthe ruling class, as

Polybius and many others have suggested,17 or it may be the self-serving

10 N. D. Fustel de Coulanges, The Ancient City. A Study on the Religion,Laws,and Institutions of

Greece and Rome (1864) (Baltimore, London, Johns Hopkins University Press; 1980), p. 178.

Compare Frazer’s assertion: ‘society has been built and cemented to a great extent on a

foundation of religion, and it is impossible to loosen the cement and shake the foundation

without endangering the superstructure’. J. Frazer, The Belief in Immortality and the Worship

of the Dead (London, Macmillan; 1913), i, p. 4. Many ofFustel’s main contentions have been

disputed by classicists and anthropologists, but his book can still be read with pleasure and

profit as a lively intellectual catalyst. 11 Fustel de Coulanges, Ancient City (fn. 10 above), p. 182. 12 A. N. Whitehead, Religion in the Making (Cambridge, Cambridge University Press; 1926),

p. 16. 13 S. Freud, The Future of an Illusion (1927) (London, Penguin (The Pelican Freud Library);

1985), xii, p. 198. 14 E. Durkheim, The Elementary Forms of the Religious Life (fn. 1 above), p. 423. 15 E. Dodds, The Greeks and the Irrational (Berkeley, University ofCalifornia Press; 1951),

p. 104, citing, as sources ofthis idea, Harrison, Rivers, Levy-Bruhl and Kluckhohn (p. 122, ´

fn. 5). 16 E. Doutte, quoted and discussed in G. Murray, ´ Five Stages of Greek Religion (London, Watts

& Co.; 1935), pp. 26ff. 17 ‘I believe that it is the very thing which among other peoples is an object ofreproach,

I mean superstition, which maintains the cohesion ofthe Roman state . . . My own opinion

at least is that they have adopted this course for the sake of the common people.’ Polybius,

Histories (tr. W. Paton; London, William Heinemann (Loeb Classical Library); 1923), vi.56,

p. 395.