¹ The Holy Roman Empire was “neither holy nor Roman nor an empire,” Voltaire, , Essai sur les moeurs et l’esprit des nations (c. 1756), ch. lxx (Paris, Éds. Frères, Garnier, 1963), tm. I, 683 Google Scholar. The shadowy Empire (Reich ) evaporated when Francis II resigned the imperial title in 1806 and declared himself Emperor of Austria, after 16 German states had left the Empire to join the Napoleon-inspired Confederation of the Rhine. In his own lively constitutional imagination, Napoleon, who crowned himself in 1804 as “Emperor of the French” (taking the crown from the hands of the Pope), was the true successor of the Frankish king Charlemagne, who had been crowned by the Pope as Emperor in the year 800, and whose kingdom had been divided following his death. The East Frankish (German) king, Otto I, invaded Italy, took the title King of Italy, and in 962 (the traditional date of the founding of the Holy Roman Empire) was crowned as emperor in Rome by the Pope. The empire came to be called “Roman” under his son, Otto II, “Holy” in the twelfth-century, and “of the German Nation” in the fifteenth-century. The ghost of the old Empire returned in 1871 when, after the Prussian army had occupied Paris, the newly unified Germany was proclaimed, in the Palace of Versailles, as a new German Empire, with the King of Prussia taking the title of Emperor (without being crowned as such). The last German Emperor abdicated in 1918.

² There is a fine example of semantic mésentente cordiale in the fact that the English league of nations (with indistinct echoes of the inter-city alliances of ancient Greece or the Hansa) was also the French société des nations (with overtones of the then-fashionable Durkheim and Duguit and ideas of social solidarity).

³ Anderson, Benedict, in Imagined Communities. Reflections on the Origin and Spread of Nationalism (London, Verso, 1983/1991)Google Scholar, refrained from imposing any general structural theory on his examination of the way in which societies, always and everywhere, have used a remarkable armoury of imaginative and mind-manipulating techniques to establish subjective social identity. A general inference from his study is that it evidently requires much skill and effort to make and maintain the subjective identity of a society.

⁴ Europe’s failed revolutions of the twentieth-century (Russian, German and Italian) have deeply depressed the European spirit, by seeming to prove finally the lesson of 1792 that fundamental social change, born of a marriage of ideas and violence, must lead to chaos, corruption, terror, and reaction. For bitter accounts of one such revolution by former believers, see Koestler, A. and others, The God that Failed. Six Studies in Communism (London, Hamish Hamilton, 1950)Google Scholar. “The Soviet Union has deceived our fondest hopes and shown us tragically in what treacherous quicksand an honest revolution can founder” Gide, A., 198.

⁵ This distinction based on the presence or absence of the definite article “the”—in English and those other languages which permit of such a contrast—expresses the fact that a society is not merely a systematic structure of social power but also a structure-system of ideas (a theory) about social power, the latter being represented by abstract words, that is to say, in the formula of medieval philosophy, by words of “the second intention,” words expressing ideas about ideas (cf. the distinction between “law” and “the law”).

⁶ “They [more than one consciousness] recognize themselves as mutually recognizing each other,” Hegel, G.W.F., Phenomenology of Spirit (1807), §184 (tr., Miller, A.V., Oxford, Oxford University Press, 1977), 112 Google Scholar.

⁷ England was a particularly puzzling and irritating phenomenon for Continental observers, a strange mixture of barbarous manners and advanced thinking. For a vivid account of French xenophobophilia, see Texte, J. Jean-Jacques Rousseau and the Cosmopolitan Spirit in Literature. A Study of the Literary Relations between France and England during the 18th Century (tr., Matthews, J.W., London, Duckworth & Co., 1899)Google Scholar.

⁸ Hegel took the view that all philosophies are part of one philosophy, the accumulating “self-knowledge of Mind” in which “they never have passed away, but all are affirmatively contained as elements in a whole.” Hegel, G.W.F. Lectures on the History of Philosophy (1831) (tr., Haldane, E.S., London, Kegan Paul, 1892), 55, 37Google Scholar.

⁹ Gibbon, E. The History of the Decline and Fall of the Roman Empire, vol. I (1776), ch. III (ed., Womersley, D., London, Allen Lane; 1994), 102 Google Scholar.

¹⁰ Hobbes, Th. Leviathan (1651), ch. 29 (London, J.M. Dent & Sons, Everyman’s Library, 1914), 177 Google Scholar. Evelyn Waugh, describing the history of an imaginary European country, says that it had suffered “every conceivable ill the body politic is heir to. Dynastic wars, foreign invasion, disputed successions, revolting colonies, endemic syphilis, impoverished soil, masonic intrigues, revolutions, restorations, cabals, juntas, pronuncamientos, liberations, constitutions, coups d’état, dictatorships, assassinations, agrarian reforms, popular elections, foreign intervention, repudiation of loans, inflations of currency, trade unions, massacres, arson, atheism, secret societies… Out of [this history] emerged the present republic of Neutralia, a typical modern state.” Waugh, E. Scott-King’s Modern Europe (London, Chapman & Hall, 1947), 4 Google Scholar.

¹¹ Hobbes, Th. Leviathan, ch. xx, above n 10, at 120.

¹² The term “social poetry” is particularly associated with the names of Giambattista Vico (1668–1744), for whom historiography is the re-constructing of the story of the social self-constructing of human consciousness, and Georges Sorel (1847–1922), for whom social consciousness is both a weapon and the target of revolutionary social change.

¹³ See above n 1.

¹⁴ Even the most obvious solution—the “two cities” (Augustine) or “two swords” (Dante) view, with the Pope as emperor of a spiritual realm and the Emperor as master of a secular realm—left a rich fund of less soluble structural problems, pre-figuring the constitutional puzzles of the European Union. Is the Emperor, like the Pope, an agent of God on earth in his own right or is he subject to the spiritual authority of the Pope? Can two “sovereignties” co-exist? Which trumps which, if they are in conflict? Are the non-spiritual (so-called “temporal”) possessions of the Pope subject to the authority of the Emperor? Are bishops, exercising great power within the separate secular realms, the exclusive appointees of the Pope or must they be approved by the local monarch? What are the limits of the legal competence of the Church authorities, within the separate national systems, and of Church (canon) law in relation to national law?

¹⁵ In the influential model proposed by Thomas Aquinas in the thirteenth-century, there are three layers of higher law (i.e., of ius which is not positum): eternal law (the divinely ordained order of the Universe); divine law (the ultimate law for human beings: the will of God made known through faith and revelation); natural law (reason’s normative intimation of eternal law).

¹⁶ In many countries, national law also included elements of Roman (Byzantine) imperial law, after the “reception” of Roman law beginning in the twelfth-century. In all countries, national law also included a mosaic of local custom which was gradually transcended by a national “common” law (at first judge-made and partially codified, later also legislated). Within what came to be known as “feudal” societies, each society was constituted as a more or less integrated legal hierarchy, with a vertical distribution of legal powers and responsibilities, and corresponding judicial institutions and remedies.

¹⁷ Alcuin, from York in the English kingdom of Northumbria, had been a leading figure in the Carolingian intellectual renaissance.

¹⁸ Calais remained under English control until 1558. The formal title of the kings of England (later, of Great Britain) continued to include the words “and of France” until the eighteenth-century.

¹⁹ England and France were not allies in war from the Siege of Acre in 1191 to the Crimean War in 1854.

²⁰ In 1395 “twelve conclusions” containing the radical proposals of John Wyclif (c. 1330–1384) for the reform of the Roman Church were attached by his followers to the doors of St Paul’s Cathedral and Westminster Abbey. The proposals were close to those which would form the basis of the sixteenth-century German Reformation programme. But renovatio or reformatio had been for centuries a Leitmotiv of vigorous debate within the Church. Luther acknowledged his debt to Wyclif and to the man he called “Holy Johannes Hus” (c.1371–1415; condemned by the Church as a heretic and burned to death). Hus learned of Wyclif’s work through what might be called the Bohemian connection, following the marriage of the sister of King Wencelaus of Bohemia to England’s King Richard II in 1382.

²¹ There is a fine irony in the mirror symmetry between the wording of the Act of Parliament known as the Act of Supremacy 1559, which terminated the legal authority of the Church of Rome in England, and the wording of sec. 2 of the European Communities Act 1972 which introduced the legal authority of the European Communities into the United Kingdom.

²² “… coetus multitudinis iuris consensu et utilitatis communione sociatus.” Cicero, , De re publica, I. 25 (tr., Keyes, C.W., Cambridge, Mass., Harvard University Press; 1988), 65 Google Scholar. At least since Aristotle, and most conspicuously in Hobbes and Rousseau, the metaphor of the body politic has been more than a metaphor, expressing the transcendental unity of society, a systematic unity which goes beyond the mere aggregation of society’s members.

²³ “It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. …Hence was embraced the alternative of a government which instead of operating on the States, should operate without their intervention on the individuals composing them…” Madison, J., letter to Jefferson, T. (24 October 1787), in Boyd, J.P. et. al., eds., The Papers of Thomas Jefferson (Princeton, Princeton University Press, 1950– ), vol.12, 271 Google Scholar.

²⁴ “This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of …; but to place before mankind the common sense of the subject … Neither aiming at originality of principle or sentiment. …, it was intended to be an expression of the American mind … All its authority rests on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney &c.” Jefferson, T., in a letter to Lee, H. (8 May 1825), in Thomas Jefferson. Writings (New York, Literary Classics of the U.S., Cambridge, Cambridge University Press, 1984), 1501 Google Scholar. The Federalist Papers (1787–88), a theoretical and polemical analysis of the federal solution by three participants in the reconstituting of the Union (Hamilton. Madison, Jay), was described by Jefferson as “the best commentary on the principles of government which ever was written” Letter to J. Madison (18 November 1788), in Jefferson’s Papers, ibid, vol. 14, 188.

²⁵ “I think our governments will remain virtuous for many centuries; as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America. When they get piled up upon one another in large cities, as in Europe, they will become corrupt as in Europe.” T. Jefferson, in a letter to J. Madison (20 December 1787), in Jefferson’s Papers, ibid, vol. 12, 442. There is a substantial and disputatious literature on the economic bases of the American Revolution.

²⁶ For a lucid overview of the continuing controversy among historians about the socio-economic basis of the French Revolution, see Comminel, G.C. Rethinking the French Revolution. Marxism and the Revisionist Challenge (London & New York, Verso Books, 1987)Google Scholar.

²⁷ Hume, D. A Treatise of Human Nature (1739), II.III.iii.

²⁸ For “American mind,” see the opinion of Thomas Jefferson, above n 24.

²⁹ This use of the word parathesis is proposed as a novelty, an extension of its meaning in classical Greek (a setting-out for the purposes of comparison).

³⁰ Hypostasis (that is, an immaterial thing which is treated as if it had substance) is a word with a complex history, including its use as an element in a Christian theology of the three-in-one God. See, Stead, C. Philosophy in Christian Antiquity (Cambridge, Cambridge University Press, 1994), ch. 14.CrossRefGoogle Scholar

³¹ Allott, Ph. “The Crisis of European Constitutionalism: Reflections on the Revolution in Europe” 34 CMLRev (1997), 439 Google Scholar.

³² He quotes with approval a saying of Solon (a “law-giver” of Athens, seventh to sixth-century BCE) which the makers of the European Union might well bear in mind : “I have given them the best [laws] they were able to bear,” Montesquieu, Baron de, The Spirit of the Laws (1748), ch. XIX (tr., Nugent, T., London, Collier Macmillan, 1949), 305 Google Scholar.

³³ For further discussion, see Allott, Ph. “Intergovernmental Societies and the Idea of Constitutionalism,” in Heiskanen, V. & Coicaud, J.-M., eds. The Legitimacy of International Organisations (Tokyo U.N. University Press, forthcoming)Google Scholar.

³⁴ Francis Bacon called his own new post-Aristotelian method of thinking a “new instrument” (novum organum in Latin, Aristotle’s logic having been traditionally known, in Greek, as the organon or instrument). René Descartes also proposed a new “method” of thinking (Discours de la méthode, 1637).

³⁵ “There was but one course left, therefore— … to commence a total reconstruction of sciences, arts, and all human knowledge, raised upon the proper foundations.” Bacon, F. The New Organon (1620), Proœmium (eds., Spedding, J. Ellis, R.L. & Heath, D.D., London, Longmans & Co., 1858), vol. IV, 8 Google Scholar. For further discussion of “the perennial dilemmas of society”, see Allott, Ph. Eunomia—New Order for A New World (Oxford, Oxford University Press, 1990), chs 4–6Google Scholar.

³⁶ Aristotle had the mind of biologist and hence the application to society of his fine idea of the nature of living things, as systems which are perpetually actualising their potentiality in a process of becoming, was not a metaphor but a necessary corollary of the fact that human societies are composed of human beings as living things.

³⁷ For a discussion of the conceptual problems of historiography, see Allott, Ph., “International Law and the Idea of History,” 1 (1999) Journal of the History of International Law (5), 1–21 CrossRefGoogle Scholar.

³⁸ For the hypothesis that the so-called constitution of a society is a process of self-constituting in three dimensions (the ideal constitution, the real constitution, and the legal constitution), see Allott, Ph. Eunomia, above n 35, at ch. 9.

³⁹ A “state” in the international sense is the hypostasis of a society which is managed through a social system known as a “government” and whose identity as a state is recognised by the governments of other states. In some countries (not the U.K. or the U.S.), the word “state” is used internally as a structural hypostasis of the totality of public-realm power.

⁴⁰ It was Alfred Marshall (1842–1924) who established the intellectual separation of economics from the rest of social and moral philosophy, a development reflected in the adoption of the word “economics” as the accepted name of the discipline in place of the earlier “political economy.” John Ruskin, among others, objected to the “modern soi-disant science of political economy…based on the idea that an advantageous code of social action may be determined irrespectively of the influence of social affection,” Ruskin, J., Unto This Last. Four Essays on the First Principles of Political Economy (1860) (London, George Allen & Sons, 1862/1910), 1 Google Scholar.

⁴¹ “Economics is a science of thinking in terms of models joined to the art of choosing models which are relevant to the contemporary world.” Keynes, J.M., letter to Harrod, Roy of 4 July 1938, Moggridge, D., ed., The Collected Writings of John Maynard Keynes (London, Macmillan for the Royal Economic Society, 1973), vol. XIV, 296 Google Scholar. Keynes was urging Harrod to repel attempts “to turn [economics] into a pseudo-natural-science.” “A system [of ideas] is an imaginary machine invented to connect together in the fancy [imagination] those different movements and effects which are already in reality performed,” Smith, A., essay on “History of Astronomy” in Essays on Philosophical Subjects (Wightman, W.P.D. & Bryce, J.C. (eds), Oxford, Clarendon Press, 1980), 31–105 Google Scholar, at 66. Cf. Kant’s “idea of reason” and Weber’s “ideal-type.” The metaphor of a “model” is now a commonplace of epistemologies of other intellectual disciplines, e.g., natural science, see Craik, K. The Nature of Explanation (1943) (following E. Mach); and sociology, see Winch, P. The Idea of a Social Science and its Relation to Philosophy (1958).

⁴² Aristotle, Politics, I.3.

⁴³ “Capitalism”, in the present context, may be considered to have two defining characteristics: the separation of the activity of labour from property in the profits of labour and the determination of the economic value of goods and services by social processes beyond the con trol of the seller and the buyer of the goods or services.

⁴⁴ More, Th. Utopia (1516), bk. II, in Surtz, E. & Hexter, J.H. (eds) The Complete Works of St Thomas More (New Haven & London, Yale University Press, 1965), vol. 4, 241 Google Scholar. More was Lord Chancellor under King Henry VIII, but was executed for refusing to acknowledge the King as “supreme head” of “the Church of England,” a refusal made treasonable by Act of Parliament (Act of Supremacy 1534). In the same passage, More anticipated Marxian ideas of “surplus value” and “ideology.” “What is worse, the rich every day extort [abradunt] a part of their daily allowance from the poor not only by private fraud but by public law…and, finally, by making laws, have palmed it off as justice.” Kautsky, K. (a leading Marxist theorist who had been, at one time, Engels’ secretary) proposed a reading of More as a Marxist avant la lettre, in Thomas More and His Utopia (1888) (tr., Stenning, H.J., London A. & C. Black, 1927 Google Scholar; republished New York, Russell & Russell, 1959).

⁴⁵ Rousseau, J-J. A Discourse on Political Economy (1755), in The Social Contract and Discourses (tr., Cole, G.D.H., London, Dent, J.M. (Everyman’s Library), 1913/1973), 148 Google Scholar.

⁴⁶ Smith, A. Lectures on Jurisprudence (lecture of 22 February 1763) (Meek, R.L, Raphael, D.D., and Stein, P.G. eds., Oxford, Clarendon Press, 1978), 208-9Google Scholar. See also Smith, A. An Inquiry into the Nature and Causes of the Wealth of Nations (1776), V.i.b. (Campbell, R.H. & Skinner, A.S., eds, Oxford, Clarendon Press, 1976), vol. 2, 715 Google Scholar: “Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”

⁴⁷ Hayek, F. The Road to Serfdom (London, Routledge, 1944), 28 Google Scholar. He goes on, however, to condemn talk about a supposed “Middle Way” between “atomistic” competition and central direction (at 31).See also Weber, M. The Protestant Ethic and the Spirit of Capitalism (1905/1921) (tr., Parsons, T., London, George Allen & Unwin, 1930/1976), 25 Google Scholar: “For modern rational capitalism has need, not only of the technical means of production, but of a calculable legal system and of administration in terms of formal rules … Such a legal system and such administration have been available for economic activity in a comparative state of legal and formalistic perfection only in the Occident.”

⁴⁸ “Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist …; for in the field of economic and political philosophy there are not many who are influenced by new theories after they are twenty-five or thirty years of age, so that the ideas which civil servants and politicians and even agitators apply to current events are not likely to be the newest,” Keynes, J.M. The General Theory of Employment Interest and Money (London, Macmillan, 1936), 383-4Google Scholar.

⁴⁹ Precession, as used in mechanics, refers to the behaviour of a rotating body which continues to rotate, but on an altered axis of rotation, after the original axis of its rotation has been affected by an external force (e.g. a spinning-top leaning under the effect of gravity, or a society’s institutions continuing to function on the basis of the old ideas which caused them to change their functioning in a particular way).

⁵⁰ It seems that an “emperor,” in medieval legal semantics, was simply a ruler who ruled over more than one kingdom but, semiotically, it could not avoid association with the old Roman Empires (East and West).

⁵¹ “Inefficiency,” here and hereafter, means primarily economic inefficiency, as a form of social reality fails to meet the needs of a new actualising of a society’s economic potentiality.

⁵² The word “monarchy” (rule by one) expresses the idea that the One of government (l’état ) is distinct from the Many of society. European monarchs, even those who had origi nally been Nordic-Germanic elected chieftains in character, were gradually seduced, however petty their kingdom, into pseudo-oriental hieratic ritualism, the most seductive manifestation of which was the court of Louis XIV of France (reigned 1643–1715).

⁵³ “The politicians of the ancient world were always talking of morals and virtue; ours speak of nothing but commerce and money,” Rousseau, J-J. A Discourse on the Moral Effects of the Arts and Sciences (1750), in The Social Contract and Discourses, above n 45 at 16. Rousseau was echoing a comment by Montesquieu on English society, in The Spirit of the Laws, III.3, above n 32 at 21 Google Scholar. See generally, Larrière, C. L’Invention de l’Économie au XVIIIe siècle (Paris, Presses Universitaires de France, 1992)Google Scholar.

⁵⁴ The dispute among economic philosophers about the real or the illusionary nature of economic aggregates (society, economy, market, demand, equilibrium etc.) is reminiscent of the bitter dispute in medieval philosophy between “nominalists” and “realists” about the ontological status of “universals” (the characteristic contents of an idealist metaphysical universe).

⁵⁵ Above text n 29.

⁵⁶ M. Friedman’s “The quantity theory of money—a restatement” was published in 1956. Friedman proposed a macro aggregate (money supply) as the central focus of an otherwise determinedly micro worldview. J.F. Muth’s “Rational expectations and the theory of price movements” was published in 1961, initiating a counter-revolutionary denial of the reality of economic aggregates. Hayek had already denied the reality even of “society,” except as the sum-total of the activities of individual human beings.

⁵⁷ The intense concern of post-democratic governments with the problem of “education” was anticipated by A.R.J. Turgot (1727–1781), statesman and economic philosopher, who recommended state-controlled education to the French King as the “intellectual panacea” which would make society into an efficient economic system, changing his subjects into “young men trained to do their duty by the State; patriotic and law-abiding, not from fear but on rational grounds.” Quoted in de Tocqueville, A. The Old Regime and the French Revolution (1856) (tr., Gilbert, S., Garden City, Doubleday & Company, 1955), 160-1Google Scholar.

⁵⁸ Post-democracy may be a fulfilment of the gloomy predictions of Max Weber and of what may have been, at least according to W. Mommsen, his personal preference for some combination of rational governmental professionalism and plebiszitäre Führerdemokratie (plebiscitory leader-democracy), Mommsen, W. Max Weber und die deutsche Politik 1890–1920 (Tübingen, J.C.B. Mohr, 1959), 48, 420Google Scholar. On Weber’s discussion of the combining of bureaucracy and leadership, see Bendix, R., Max Weber. An Intellectual Portrait (Garden City, Doubleday & Company, 1960), 440 ffGoogle Scholar. At the heart of post-democracy is something akin to the spirit of nineteenth-century Prussian bureaucracy: “The fundamental tendency of all bureaucratic thought is to turn all problems of politics into problems of administration,” Mannheim, K. Ideology and Utopia. An Introduction to the Sociology of Knowledge (London, Routledge & Kegan Paul, 1936), 105 Google Scholar.

⁵⁹ This means inter alia undoing the decisions of those national constitutional courts which have conceived of the European Union as essentially an emanation from, and inherently subject to, national “sovereignty.”

⁶⁰ This means inter alia undoing those decisions of the Court of Justice of the European Communities which have tended to substitute a concept of aggregated or reconciled national interest for the concept of the particularising through law of a Union common interest.

⁶¹ This means inter alia undoing the constitutional concept (reflected in the new Article 88 of the French Constitution or the revised version of Article 203 (ex Article 146) of the EC Treaty) which treats the EU as essentially the exercise “in common” of national governmen tal powers.

⁶² In this connection, see Allott, Ph. “The Concept of International Law” 10 (1999) EJIL 31 CrossRefGoogle Scholar.