2.1 The People Introuvable and the First Crisis of Mass Democracy

As discussed above, even if defined in minimalist terms, the factual development of democracy initially followed a very fitful path. Before 1914–18, no European societies had constructed political systems even close to the institutional design and integrational reach of full democracies. To be sure, by this time, most countries in Europe, and some countries in Latin America, had evolved polities with some partial democratic features. None, however, could plausibly claim to extract legitimacy to support their legislative acts from an equally and comprehensively included national population. Generally, strategically selective democratization was the dominant pattern of political organization from the midway into the nineteenth century until midway into the twentieth century. One of the most persuasive analysts of the history of modern democracy states simply that ‘suffrage discrimination’ was the normal principle of political citizenship for most of the nineteenth century, and that electoral franchises were created, not as mechanisms of popular inclusion, but as ‘extraordinarily effective instruments of political repression’ (Goldstein Reference Goldstein1983: 334).

To illustrate this, for example, in the longer wake of the Great Reform Act of 1832, the UK progressively developed a constitutional order based on the idea that the elected chamber of Parliament was the core organ of state. As a result, the period after 1832 saw a progressive widening of the authority of the House of Commons within the parliamentary order as a whole, which culminated in its acquisition of evident superiority in 1911. However, until the establishment of full male suffrage in the Representation of the People Act of 1918 and the stepwise enfranchisement of women from 1918 to 1928, the British government had very restrictive electoral laws. From 1884, the last franchise reform prior to 1918, gender, age and housing tenure were still the primary determinants of the right to vote.Footnote ¹ Moreover, general elections before 1918 were marked by entrenched protection of plural voting for privileged groups; in fact, multiple enfranchisement persisted residually until 1950, when the first general elections without plural voting were held.Footnote ² Additionally, through the late nineteenth century, and, even after 1918, elections in the UK were not always fully competitive. After 1918, tellingly, weak electoral competition was most pronounced at critical political junctures. This was evident in late 1918, when, after World War I and the electoral reforms of 1918, the Liberal and Conservative parties campaigned on the same platform. It was again evident in 1931, when, after the Wall Street Crash, the Labour Party split and its more Conservative elements formed a coalition government that effectively eliminated electoral competition until after 1945. Before 1945, in consequence, there were only two years – from 1929 to 1931 – in which, albeit still with plural voting, Britain had a government elected by a full franchise in fully competitive elections. Strictly, in fact, throughout the entire process of democratization up to 1950, British governments were selected by a number of separate electoral franchises, based on different admission criteria.Footnote ³ Unlike electoral systems defined by fully constitutional principles, franchise membership in the UK had its origins in private qualifications, and voting rights were initially allocated on grounds of status or group affiliation.Footnote ⁴ The British political system was historically not underpinned by a generalized idea of subjective voting rights or by general ideals of political citizenship.Footnote ⁵ Naturally, selective enfranchisement left a powerful impression on British politics. Owing to franchise restrictions, class interests did not become openly politicized until after 1918,Footnote ⁶ which meant that organized labour was weakly integrated in the political process, and the emergence of a strong and nationalized Socialist party was impeded. Consequently, the Labour Party was essentially an adjunct to the Liberal Party until 1918 (Wrigley Reference Wrigley1976: 43–4; Packer Reference Packer2001: 177).Footnote ⁷

After unification in the 1860s, analogously, Italy had a moderately powerful parliament, but until 1912 its franchise was very small, and electoral rotation of office was not fully competitive (Webster Reference Webster1975: 14; Romanelli Reference Romanelli1979: 217). Before 1948, Italy only had a government created by competitive and fully democratic elections (albeit still without female voting) in the years from 1919 to 1922. After 1871, Imperial Germany had a large male franchise, in which, unlike in Britain, the political system was expected to address divergent organized class interests at a relatively early stage, certainly from 1890 onwards. However, up to 1918, members of the German parliament (Reichstag) elected by this franchise had only limited authority: they did not possess full powers to initiate legislation, and members of the Reichstag could not assume ministerial positions. After the formation of the Third Republic, France, which was by some distance the most democratic major European state in the nineteenth century, had a settled full male franchise and competitive elections. In fact, the basis for full male suffrage had been established as early as 1848.Footnote ⁸ However, the Third Republic was created through the annihilation of radical political opposition in the Paris Commune. Throughout the Republic, governmental executives were unstable, governments were sometimes extremely short-lived, and their powers were not fully anchored in parliamentary elections. Women were not allowed to vote until after World War II.

The USA of course had a relatively large male franchise from the 1820s onwards. Yet, large sectors of society were excluded from participation in elections on grounds of ethnic group membership until well into the second half of the twentieth century, and access to electoral rights varied greatly across regional divides. Notably, the exponential growth of white democracy in the era of President Jackson was flanked by very repressive policies towards non-dominant social groups, such that from this time American democracy acquired a clearly and deeply imbued racist hue.Footnote ⁹ Indeed, in the Civil War and the franchise experiments during Reconstruction, the USA experienced an unusual process of enfranchisement and disfranchisement in which the black population was briefly incorporated in, and then, in many states, once again excluded from, the electorate. Even during Reconstruction, however, enfranchisement of the black population was not uniform. At this time, many northern states did not establish African-American suffrage (see Gillette Reference Gillette1979: 7–10), and the Fifteenth Amendment was needed to secure voting rights for the black population in the north (Gillette Reference Gillette1965: 165).Footnote ¹⁰ In 1865, there were only five states in which blacks and whites had equal voting rights (McPherson Reference McPherson1964: 333).

Overall, throughout the nineteenth century, national societies were not very effective in creating democratic governance systems. The early processes of citizenship formation and socio-political nationalization that ran through the nineteenth century did not culminate in the consolidation of national democracies. Through the nineteenth century, as mentioned, it was widely claimed – by both advocates and opponents of democracy – that, once established, national citizenship would inevitably give rise to more egalitarian patterns of political-systemic formation, broadly aligned to electorally preponderant social and political interests in society.Footnote ¹¹ In reality, however, it was not the progressive elaboration of citizenship or gradual political enfranchisement that led to the establishment of mass democracy as a general political model. Ultimately, mass-political democracy was jolted into life in unpredicted fashion, and it was initiated, not by acts of national will formation, but by factors linked to exogenic events – by the intense militarization of nationhood and international challenges to national legal systems caused by World War I. The war proved to be the great catalyst for mass politicization in most of Europe, and most European states underwent a process of intensified democratization either during or in the years that followed the period of conflict (1914–18). World War I therefore triggered the first process of large-scale, cross-polity democratization.

The rise of democracy at this juncture was not universally linked to military mobilization. Spain and Sweden became democracies at this time despite the fact that they were non-belligerent in World War I, although full democratization in Spain was delayed until 1931 because it was not directly involved in the war.Footnote ¹² France already had male mass democracy before 1914. Moreover, intensified democratization also occurred in Latin America at this time.Footnote ¹³ In most cases, however, democratic political systems were created around 1918 in societies in which populations had been acutely affected by the experience of warfare. In each case, the rise of democracy was inseparable from the fact that state structures had been subject to extreme duress by pressures linked to military mobilization, and populations had experienced intensified national integration through military conflict and psychological adversity. In the period around World War I, therefore, conditions close to mass democracy typically came into being through one of three different processes: (1) existing monarchical or imperial governments were replaced by abrupt regime transformation (e.g. Germany, Austria); (2) existing governments implemented hasty reforms, establishing a more equal electoral franchise to permit extended participation in politics (e.g. Italy, UK, Belgium, Netherlands); (3) new states came into being through the collapse of former multi-national Empires (e.g. Czechoslovakia, Poland, Hungary, Yugoslavia), which also established political systems with a large franchise.

The fact that the expansion of democracy was impelled by military conflict throws very distinctive light on its normative foundations, indicating that mass-democratic institution building was first driven by very contingent factors. In fact, this link between war and democracy had important consequences for the eventual construction of democratic institutions in different European societies. Most democracies created around and after 1918 reflected the impact of the war in six separate respects.

First, the rise of full democracy around 1918 was closely linked to Imperialism and the struggle for military expansion. Through the nineteenth century, as mentioned, democracy was often advocated as a mode of political organization which, in helping to motivate the population to support the government, might prove conducive to external expansion, both through economic production and military combat. This reasoning obtained pressing relevance during World War I, which for many combatants was not clearly distinct from an imperial war. In some societies, in fact, governmental executives repeatedly promised reform of domestic suffrage laws as a means of solidifying support for the military effort.Footnote ¹⁴ As a result, the accelerated path towards democracy after 1914 was tied to considerations of military efficiency and success, and political reform was strongly shaped by strategic calculations, which had little to do with democracy as a normative good.

Second, in the new democracies created around 1918, governmental power was not captured, either in full or incrementally, by organized democratic actors or constituencies. Of course, to some degree, political reform was triggered by the democratizing impact of military conscription, which had levelled out social distinctions on the battlefield and drawn inhabitants of different regions into close proximity to one another, promoting an intensified nationalist pattern of citizenship and political affiliation.Footnote ¹⁵ Indeed, as in the revolutionary era in the late eighteenth century, warfare, incubated nationalism, and democratic enthusiasm became inseparable in World War I.Footnote ¹⁶ However, such experiences did not result in a situation in which newly nationalized societal constituencies, motivated by claims for collective freedom, actually gained hold of power. On the contrary, in most cases, power was given to populations by government elites for a number of different reasons, few of which reflected a deep commitment to democracy and few of which proved propitious for enduring democratic institution building. In some cases, governmental executives in 1918 were extremely anxious about the inflammatory, potentially revolutionary, mood of their (often still armed) populations, caused by long periods of deprivation in military combat, and exacerbated by the revolution in Russia in 1917. Under such circumstances, new democracies were created very quickly, and they were designed not to secure collective freedom, but to prevent complete revolution: their motivation was essentially protective and counter-revolutionary. In some cases, power was partly transferred to national populations because political elites felt a sense of obligation towards their populations for their sufferings in the war, and they granted democratic citizenship as a political right because of a sense of duty.Footnote ¹⁷ In this respect, however, political elites often noted that their nations had become Conservative and patriotic through military incorporation, such that the gift of democracy appeared relatively risk-free.Footnote ¹⁸ In these respects, the expedited growth of democracy after 1918 was shaped by a range of quite conflicting motivations. Clearly, however, this most intense wave of democratic formation did not result from simple acts of collective self-legislation.

Third, most democracies established after World War I reflected a very strained definition of their primary constituent subjects.

In most societies, notably, the push for mass political and economic inclusion around 1918 was not supported by a clear construction of the people or the citizens that were to be included in government, and no unified faction of the people was able to present itself as a secure source of authority for government. In many cases, the advent of national democracy occurred in a political reality in which institutions were unable to stabilize a unifying model of citizenship around which their functions could be concentrated, and they were incapable of producing a legitimational bedrock for their functions.

Paradigmatic for these problems was the Weimar Republic, the most important of the new democracies established after World War I, which replaced the semi-constitutional order of Imperial Germany in 1918–19.

The Weimar Republic was founded – although ambivalently – in the name of the German proletariat, and it was established in a context marked by the extensive mobilization of radical political factions against the imperial executive, which culminated in the collapse of the Empire's ruling Hohenzollern dynasty in late 1918. Moreover, the legal foundation of the Weimar Republic was a constitution that was clearly committed to the construction of a nationally unified model of citizenship, able to pull together diffuse factions in German society. For example, the German constitution of 1919 was intended to reduce the exercise of separate authority by different regional governments, and to establish the national state as the highest focus of legal authority (Art 13). Moreover, it was committed to the renunciation of pure liberal capitalism as the dominant economic principle. As a result, the constitution espoused strong ideals of material or economic citizenship, and it provided for representation of the workforce in labour councils, placing the political system in close proximity to the people in their everyday life contexts (Art 165). However, despite these integrative ambitions, the Weimar Republic immediately appeared as a democracy without a clearly identifiable subject, which was unable to gravitate around a fixed order of citizenship, and whose stability was deeply undermined by this absence.

This lack of solidity in the construction of the people was reflected, for example, in the bitter hostility between the left-wing factions that initially assumed government functions in Germany after World War I. Notably, the German political left had been divided during the war and the faction of the political left that took control of government after the war, the Majority Social Democrats (SPD), had, by late 1918, already accomplished the reformist ambitions that its leadership had previously pursued. As a result, many leading members of the SPD would probably have preferred to avoid the foundation of a completely new democratic regime, and they were not convinced of the necessity of uprooting the monarchical system of the Empire (Matthias Reference Matthias1970: 22; Mühlhausen Reference Mühlhausen2006: 99). Moreover, by 1919, the claims of the SPD to represent the German people had been badly undermined by the fact that leading party members had authorized the murders of other important figures on the political left (members of the Communist Party, including Rosa Luxemburg and Karl Liebknecht), who had in fact previously been attached to the left wing of the SPD itself. This lack of cohesion at the core of the Weimar Republic was already evident on the day of its foundation. On this day, symbolically, different factions of the German labour movement made separate proclamations concerning the foundation of the new Republic, so that, initially, two different Republics were created, one by the Majority Social Democrats and one by the Communists, formerly in the SPD.

This lack of solidity in the construction of the people was also manifest in the inter-group agreements that underpinned the Weimar Republic. Indicatively, the Republic was partly instituted because figures attached to the old elites of the Imperial government, especially the more progressive sectors of the military and heavy industry, decided to cooperate with the SPD in establishing the new democracy. These groups were prepared to sanction the creation of a democratic order with mixed liberal and social-democratic features, not because of any deep commitment to democracy, but because they saw this as a means to avoid full-scale revolutionary overthrow and full-scale transformation of the existing economic system (Schieck: 1972: 155; Albertin Reference Albertin and Mommsen1974: 660; van Eyll 1985: 68). This meant that the new Republic resulted in part from pragmatic contrivance, and it lacked deep-set foundations. Moreover, the Weimar Republic was actually constituted by three political parties, forming the Weimar Coalition, which comprised the SPD, the left-liberal German Democratic Party, and the Zentrum (the Roman Catholic Party). These parties had drifted out of their customary political orbit during World War I, in which some of their members had collaborated in cross-party committees to promote constitutional reform (see Patemann Reference Patemann1964: 86; Bermbach Reference Bermbach1967: 67–9). The ability of these parties to form a coalition in 1918–19 to support the foundation of the Republic was largely the result of the personal relations, and resultant willingness to enter compromise, that had developed between members of the different parties during the war (Mommsen Reference Mommsen1990: 28). Soon, however, it became clear that these personal relationships were insufficiently strong to sustain an enduring cross-party popular-democratic consensus, and the objectives of the founding coalition rapidly lost influence after the creation of the Republic. The Zentrum, notably, avoided pledging loyalty to the new Republic altogether (Morsey Reference Morsey1966: 613). As a result of this, the democratic constitution, drafted by leading members of the Weimar Coalition, did not find strong support amongst subsequent governments, and some of its core provisions were ignored and then partly suppressed.Footnote ¹⁹ In fact, the primary elements of the founding constitutional text of the Weimar Republic possessed a shadowy reality through the course of the Republic, as few politicians felt any great inclination to put its policy commitments into practice. Most notably, the material provisions of the Constitution, reflecting corporatist/welfarist ideals of citizenship, were only partially realized, and they were increasingly suspended by the end of the 1920s.Footnote ²⁰

To be sure, the German democracy was a rather extreme example of a democracy without an underlying democratic subject, based on a highly fractured construction of democratic citizenship. The fragmentation of democratic agency in the Weimar Republic was especially manifest because of the accelerated democratic transition from semi-representative to mass-democratic government in Germany. To some degree, however, this phenomenon was common to most interwar democracies, few of which were underscored by a normatively integrated model of democratic citizenship. In the UK, for example, democracy was specifically consolidated in and after 1918 in a form designed to prevent the assumption of government by parties representing the increasingly radicalized labour movement. As mentioned, in the first post-armistice elections, in December 1918, the Liberals and the Conservatives campaigned on a joint platform to obstruct the electoral advance of the Labour Party. Subsequently, an anti-Labour ‘equipoise’, often entailing strategic coalitions between capitalist parties to eliminate the political threat posed by organized labour, remained the dominant principle of British government until after 1945 (McKibbin Reference McKibbin2010: 64).Footnote ²¹ In Italy, the newly democratized political system that emerged from World War I was chronically hamstrung by the fact that its leading democratic parties (the Socialists and the People's Party) found each other ideologically abhorrent and could not agree on principles for collaboration (Knox Reference Knox2007: 362). In Austria, leading theorists of the political Left endeavoured to construct a model of cross-class sovereignty to cement the foundations of the post-1918 democratic system (see Bauer Reference Bauer and Bauer1980: 62). However, this system was blocked by anti-labour factions (Gerlich Reference Gerlich1980: 245). Across Europe, in other words, the first factual integration of the people into the national political system was not carried forward by a wave of mass mobilization or by any real expression of a conclusively unified demos. On the contrary, it was determined by an uncertain push-and-pull process between different actors, different organizations and different interests, which hardly shared common principles of democratic self-government, and many of which accepted democracy on a very contingent, pragmatic basis.

Fourth, new democracies created after 1918 were centred around intensely contested, and internally unsettling, constructions of citizenship.

During World War I, for example, most states had passed legislation identifying and making provision for the treatment of enemy aliens, promoting strictly exclusive ideas of citizenship (King Reference 531King2000: 90; Gosewinkel Reference Gosewinkel2016: 124–30). Democracy was thus implanted in societies marked by virulent nationalist aggression. Further, owing to the military context, democracies created after 1918 were required to incorporate populations marked by recent experience of complete mobilization for, and comprehensive incorporation in, national war machines. Consequently, these new democracies were generally shaped by the conviction that their institutions were required to derive legitimacy from the continued deep inclusion of their constituencies in governmental functions. The military environment surrounding mass democratization, meant that democratic institutions were often expected to integrate the national people at a high degree of intensity, providing both political and material compensation for recent sacrifices in combat and establishing collectivist organs of economic administration for peacefully reincorporating the population in civilian life.Footnote ²² As a result, many political observers after 1918 advocated the creation of corporatist systems of political-economic coordination, which were supposed to construct an immediate relation between state institutions and social agents, and in which government organs were required to assume extensive responsibilities for social administration and material distribution. These constitutional models placed only partial emphasis on the recognition citizens as holders of personal subjective rights, and instead they constructed state legitimacy as a condition dependent on the integration of citizens as holders of collective material rights.

Such enthusiasm for comprehensive political integration was common on the radical political left in post-1918 Europe, as Marxist theorists sought to redefine democracy on the basis of enhanced material unity between state and society.Footnote ²³ One broad line of Marxist orthodoxy around 1914, based on a fusion of late-liberal statism and Marxist economic-democratic theory, devised a theory of organized capitalism to explain the conjuncture of democracy at this time. Proponents of this theory argued that, owing to its increasingly central position in the national economy, the state could assume a steering function in coordinating large-scale monopolistic enterprises, guiding the economy towards socialism in accordance with a popular political mandate.Footnote ²⁴ An alternative, reformist line of corporatist socialism advocated the creation of economic councils at the workplace as part of plan for a broad-based consensual transition to socialism.Footnote ²⁵ In some countries, more socially conciliatory representatives of organized labour saw corporatism as a strategy for economic cooperation with employers, aimed at realizing industrial harmony.Footnote ²⁶ More moderate welfarists, of course, viewed social provision and basic social rights as means for establishing a deepened connection between state and society, and as a result most interwar states created rudimentary welfare systems. However, corporatist outlooks were also common amongst political Conservatives, who often projected a semi-corporatist polity model in which corporatist deputations in the economy were expected to reinforce the coordinating power of the political system, and to stabilize the position of economic elites.Footnote ²⁷ Eventually, such outlooks culminated in the policies of ultra-Conservative, or Fascist corporatist theorists, which were generally based on repressive models of material citizenship, designed to subordinate the labour movement to macro-economic policy making.Footnote ²⁸ After 1918, therefore, a material conception of democracy became widespread at different points on the political spectrum, and this conception was centred on an idea of the citizen as an agent endowed with strong claims to material integration in the political system.Footnote ²⁹

Fundamental to corporatist constitutionalism was the fact that it integrated many political and economic actors directly into the political system. Indeed, it premised the legitimacy of the state on an intricately articulated and highly mediated construct of citizenship, based on the principle that the state should allocate political and economic rights to a range of actors across society in order to reduce inter-class conflicts and to solidify its own foundation in society. In this respect, World War I in fact led to an intensified realization of principles of inclusion embedded in the basic normative construction of national citizenship, and the corporatist political systems created after 1918 embodied attempts, initially, to ensure that national political institutions extracted their legitimacy from the full inclusion of the citizen. At the same time, however, corporatism integrated diverse social actors into the political system in their quality, not solely as formal citizens, but as adversaries in the industrial production process, and it sought to produce legitimacy for the political system by mediating the conflicts between citizens in the material, productive dimension of their lives. Owing to their widespread corporatist bias, European states after 1918 were forced to balance sharply divergent ideas of citizenship, and actors in different sectors of national society utilized their position within the political system, assigned to them under corporatistic arrangements, to demand very different entitlements and very different patterns of inclusion. Across Europe, organizations representing the labour movement viewed corporatistic citizenship as an opportunity to demand extended material rights. By contrast, leaders of organized business used corporatism to entrench more limited, monetary rights. As Marx had anticipated, therefore, the first emergence of mass democracy created a situation in which different social factions used rights inherent in citizenship to claim quite distinct, often logically opposed, sets of rights, and society as a whole became deeply polarized through the deep politicization of rival rights claims.

In most instances, national political systems in post-1918 Europe were not able to resolve conflicts between conflicting constructions of citizenship. Most states were unsettled, usually fatally, by the fact that they institutionalized conflicts between counter-posed sets of rights and interests, articulated with different models of citizenship. Before 1918, as discussed, most governments only possessed rudimentary systems of democratic representation, which were not equipped to conduct the far-reaching processes of class mediation, societal transformation and economic redistribution, to which the material conception of democracy realized after 1918 committed them. As a result, most democracies established after 1918 lacked a stable organizational form in which the national people could be integrated into newly expanded governmental functions. In most cases, the democratic experiments commenced around 1918 were unsettled after just a few years, as governing coalitions failed to establish consensus on the relative weight of socio-economic rights (welfare) and monetary rights (investment, accumulation rights). This became acutely visible as governments were split apart by controversies over fiscal arrangements after the Wall Street Crash of 1929, when, owing to capital withdrawal, governments lost the capacity to balance out rival claims and rival rights in relatively pacified manner.Footnote ³⁰ At this point, the inherent tendency in national citizenship to expose society to a process of inclusive politicization, translating originally private rights claims into volatile political conflicts, became strikingly and acutely manifest, with systemically debilitating outcomes. At this point, most European states renounced the attempt to sustain cross-class coalitions and cross-class models of citizenship, which had originally informed their constitutional designs, and they dramatically switched preference towards the economically dominant actors in these coalitions.Footnote ³¹

Fifth, despite the prognoses of more evolutionary theorists of democracy, the first emergence of the national population as a political agent around 1918 did not result in the more consolidated integration of the people, or even in the steady solidification of representative-democratic institutions.

On the second point, notably, the expansion of mass democracy around 1918 did not lead to the reinforcement of elected legislatures. On the contrary, it led to the transfer of directive power from legislatures to executives, and to the concentration of executive power in the hands of relatively closed political elites. As Weber and his followers had prophesied, mass-democracy, defined as a system of governance led and legitimated by popular parliamentary legislatures, did not long survive the transition to fully inclusive representation. In fact, the democratic widening of the electorate and the concomitant growth of government functions around 1918 almost invariably meant that the executive soon became the dominant branch of government.Footnote ³²

On the first point, further, the expansion of mass-democracy did not lead to the promotion of laws reflecting the wider social and economic interests of the majority of the population. Of course, some experiments in interwar democracy did yield important legislation for the promotion of material redistribution and broad economic amelioration. In the years following 1918, the basic structure of later welfare states was established in a number of societies, including Germany, Sweden and the UK.Footnote ³³ More pervasively, however, the primary outcome of the first experiments in mass democracy was that large sectors of national populations were prepared to mobilize, often using military or paramilitary force, for political and economic initiatives that clearly favoured the interests, not of newly enfranchised social strata, but of historically dominant minorities. New post-1918 democracies in Austria, Germany, Italy and Spain (after 1931) all rapidly came under attack from intensely militarized social factions (widely associated with Fascism), which aimed to sabotage democracy and to replace it with extremely coercive governmental orders. These factions served the protection of barely camouflaged elite prerogatives, but they nonetheless recruited heavily from working-class constituencies. After 1918, therefore, democratization brought a swift and radical turn away from democracy amongst social groups who supposedly stood to benefit most from democratic rule. Even countries that preserved some (partial and thin) vestige of democracy through the interwar era, such as the UK, veered away from conventional systems of representation, and they partly abandoned the competitive component of fully democratic politics.Footnote ³⁴

In addition, sixth, early mass-democratic societies typically lacked overarching national organizational structures, they were still largely dominated by local centres of authority and obligation, and their capacities for integration of mass-political forces were not strong. At one level, World War I brought a great leap forward in the nationalization of democratic political systems, linked to exponentially heightened governmental coordination of the economy and to the intensification of democratic competition between national political organizations.Footnote ³⁵ Indeed, the military environment greatly intensified the basic nationalization of society. However, few societies in this period possessed political institutions that were robust enough to contain the politicization and polarization of society caused by mass-democratic mobilization and mass-democratic contestation over different rights. In most democracies that emerged around 1918, political institutions soon began to resort to more personalistic techniques of administration and consensus formation. In fact, the authoritarian polities that were established in the 1920s and 1930s usually reverted in part to a pre-modern polity type, and their leadership structures often relied on older patterns of patronage and favour to generate societal support. Under these regimes, political parties were only able to connect the different population groups in national societies to national institutions by co-opting local and traditional elites, and by entrusting these elites with responsibilities for social coordination between national institutional centres and regional constituencies.Footnote ³⁶ As discussed, democracy first began to evolve after 1789 through the ideological mobilization of the nation, and early democratic institutions invariably established their authority by invoking the nation as the author of public power. Factually, however, even after 1918, most early mass-democratic societies were only patchily nationalized, and they did not possess either the organizational mechanisms or the institutional infrastructure to consolidate the national people as a unified basis for government. In most societies, political institutions were unable to absorb the pressures triggered by the nationalization of political integration processes and political conflict, and they were not able to project a stable model of national citizenship to encompass and mediate the full set of conflicts existing in national society. As a result, early-modern localism soon reappeared beneath the surface of the democracies created in Europe after 1918, and it remained a dominant political influence until after 1945.

After 1918, in short, national political democracy emerged in Europe, for the first time, as a system of mass-political inclusion. Few societies reached a condition close to full democracy at this time, but most advanced markedly towards democracy. Although paradigmatically exemplified in Europe, in fact, similar processes of political construction can be observed in Latin America. The early processes of democratization and nationalization, which began around 1789 and which ran, at varying degrees of articulation, through the nineteenth century, gained sudden expression, explosively, in the political experiments initiated in and after 1918. Almost immediately after this expression, however, these processes were suspended. By approximately 1940, democracy had virtually disappeared from the global map. Democratization occurred around 1918 in a context marked by multiple, often mutually exclusive, patterns of citizenship, which directed acute social antagonisms towards newly constructed national democratic institutions. Moreover, democratization occurred in contexts in which states lacked organizational forms to absorb the intensified, often intensely conflictual, demands of enfranchised citizens. This meant that institutions struggled to withstand the national articulation of societal conflicts, and they collapsed in face of the pressures caused by the integration of social groups with nationally politicized economic rivalries. Although the figure of the citoyen had acted as the construct that first underpinned the differentiation of the modern political system, after 1918, the citoyen appeared in an acutely politicized form that could not easily be incorporated in national political systems, and which prevented the stabilization of the political system as an integrative social domain. The impetus towards inclusion of the citizen that shaped the first rise of national societies ultimately culminated in a process that simultaneously accentuated both the particularistic and the homogenizing elements in citizenship, and which resulted in both the stabilization of the position of societal elites and the (often violent) eradication of non-dominant social groups. The intensification of national political inclusion through World War I was the primary explanation for each of these problems.

On these grounds, the period of accelerated democratization in interwar Europe, caused by military mass-mobilization in World War I, brought into sharp relief the essential insight of classical sociological theory concerning the nature of democracy: namely, that democracy could not, without deep reduction, be centred around the will of the people. This basic insight of early sociology acquired intensified relevance in post-1918 Europe, where national governments found themselves lacking unifying patterns of citizenship to support their already precariously balanced institutions. After 1918, most states were obliged to manufacture a construction of the citizen strong enough to transcend the acute divisions, linked to class-based, inter-party and regional distinctions, which existed between newly integrated social groups. In this setting, however, states were visibly unsettled by their endeavours to correlate their institutions with a deep-lying popular will and to make the people materially palpable in acts of government. Then, as mass democracies collapsed into authoritarianism, the patchwork form of elite pluralism typical of pre-modern, pre-national, socio-political structure became clearly visible beneath the inclusionary orders established through early national democracy. At this time, many national political systems renounced ideas of national citizenship altogether, reverting to reliance on more traditional local modes of coercion to galvanize societal support. Although interwar polities were based on the attempt to construct complexly mediated patterns of citizenship to support government, they were soon defined by the disappearance of the national citizen as a focus of legitimacy. Throughout interwar Europe, states were unable to construct modes of integration that allowed the people to act as a relatively stable subject, as legally included citizens, through the institutional organs of government. The more the political system was centred on the people as a factually existing group of citizens, the more unstable democracy became, and the less securely the people were integrated in government. The original sociological intuition about the paradox of democracy thus became reality.

The underlying weakness of political subject formation in post-1918 democracies was clearly observed by legal theorists situated at the sociological end of interwar legal analysis. The primary claim in the works of Carl Schmitt, for example, was that post-1918 parliamentary democracy revolved around a fictional construction of the political subject of society.

For Schmitt, this projective aspect of democracy was expressed in the fact that theorists of parliamentary-democratic representation necessarily resorted to political idealism to support their claims. Such theorists, he argued, only managed to justify their model of democracy by constructing it around an imaginary people, endowed with fictitious ethical-consensual orientations and metaphysical propensities for rational behaviour, which could not be found in the conflictual reality of a modern class society (1922: 46). Above all, Schmitt argued that advocates of parliamentary democracy were forced to presume that members of national populations were naturally inclined towards relatively harmonious coexistence, and that their interests and prerogatives could be peacefully mediated into generalized legal form, facilitating their integration in the political order (1923: 45). When confronted with nations in their objectively existent, materially pluralized shape, however, parliamentary-democratic institutions struggled to produce objective laws that could assume general acceptance amongst all actors in their populations. These institutions typically proved incapable of resolving conflicts between the societal factions, which they had sought to integrate, and they merely provide an organizational form for rival social and economic interest groups (1923: 11). For Schmitt, in consequence, parliamentary-democratic institutions were invariably prone to crisis as they attempted to palliate the real social antagonisms that they internalized as they tried to secure legitimacy through inclusion of their national populations.

In addition, Schmitt argued that the projective, fictional aspect of parliamentary democracy was displayed in the fact that, although parliamentary institutions purported to derive legitimacy immediately from the will of the people, the organizational forms particular to parliamentary democracy in fact served actively to disaggregate this will. Such institutions – for example, delegatory chambers, parliamentary factions, political parties – were incapable of incorporating the will of the people in its cohesive totality, and they inevitably obstructed the integration of the people as a unified political agent (1923: 19–20). Indeed, he claimed, such institutions had the unavoidable consequence that the people were subject, usually along fissures determined by class affiliation, to pluralistic division, parcellation and fragmentation, before they could be integrated into the political system. Parliamentary democracy, in short, could not be premised in the enactment of the will of a national people, and it could only ever give partial, unmediated expression to the interests of a given population.

On this basis, Schmitt came to the conclusion that the people could only be represented as an absent force in the parliamentary-democratic system (1928: 209–10), and a democratic system obtained greatest proximity to the will of the people if it renounced the attempt organically to represent the people through delegatory institutions. Accordingly, he decided that the legal apparatus of parliamentary representation had to be subordinated to provisions for plebiscitary elections, and only direct popular acclamation of political leaders could allow the actual will of the people to become visible (1928: 243, 1932b: 85–7). At times, in fact, he claimed that a system of commissarial dictatorship, legitimated by the symbolic approval of the people for a ruler, could be seen as more democratic and more democratically legitimate, than parliamentary democracy (1919: 136, 1927: 34). In other legal-sociological constructions of this time, the view also prevailed that emergent parliamentary systems lacked the institutional capacity to draw society together in a unified whole, and that democratic political subjectivity had to be constructed by means distinct from the typical institutions of democracy. In such cases, it was argued that democracies were required strategically to materialize the people to whom they attached their claims to legitimacy.Footnote ³⁷

2.2 The Transformation of Democracy

If the experiments in nationalized mass-democracy that began around 1918 met with catastrophic failure, political democracy finally – albeit still gradually – became a more securely established and increasingly widespread political form after 1945. Indeed, the underlying, socially formative trajectories of nationalization and democratization, which had been suspended in most societies after 1918, recommenced after 1945, and, in this setting, these processes experienced much more robust institutionalization.

To be sure, in the immediate wake of 1945, democratic states still formed a minority grouping in the international community. Self-evidently, the influence of the Soviet Union in Eastern Europe until the 1980s prevented the emergence of regular democracies in this region. Moreover, many new states created after 1945, especially in post-colonial Africa, were initially founded as nationalized democracies, but, as in Europe in the interwar era, their institutions lacked deep-lying social foundations, and they collapsed into one-party systems, almost invariably dominated by local elites or privileged social groups.Footnote ³⁸

To an increasing degree, nonetheless, after 1945, democracy gradually became a norm by which nation states were measured and legitimated, and there evolved a growing presumption that, in order to presume legitimacy, states should take democratic form. As a result, most states that were reconstructed, or which came into being, after 1945, were designed, at least officially, as democracies. This began in the immediate aftermath of 1945, with the foundation of new democracies in the FRG, Japan, India and Italy. This continued through decolonization in the 1950s and 1960s, and through the transitions in Southern Europe in the 1970s. Democracy then eventually became a global norm through the Latin American transitions of the 1980s, the Eastern European transitions of the 1990s and the African transitions of the 1990s and the first decade of the twenty-first century. These different processes of transitional polity building induced an effective globalization of democracy. Naturally, this does not mean that democracy exists everywhere. Clearly, non-democratic governance is currently prevalent in much of Central and East Asia, and many states classified as democracies contain authoritarian features. However, democracy is a global political form, and polities with no democratic features are rare.

There are several factors in the process of democratic globalization that began after 1945 which require particular attention, and which, like the failure of democracy after 1918, throw broad light on the essential foundations of contemporary democracy. Analysis of these factors again calls into question more classical explanations of democracy. However, it allows us to understand democracy in a global sociological perspective.

2.3 National Democracy and the Global Legal System

After 1945, a legal system began to evolve which was produced through interactions between organizations, often with either judicial or legal norm-setting functions, located at different points in global society. This legal system disconnected itself from national legal-political orders, and it acquired a relatively invariable form both within and across different national societies, increasingly overarching and incorporating different national legal systems. After 1945, moreover, a legal system began to emerge which was capable of producing justification for legal rulings and legitimacy for political institutions on global legal premises, which were located above national structures of legitimacy. In particular, after 1945, a legal system progressively developed which attached particular legal authority to individual human rights, which were imputed to all singular persons in all societies, simply as subjects of law, and which were applied as sources of authority for actions and decisions by institutions in different parts of global society. In its centration on human rights, the legal system as a whole entered a process of intensified differentiation, intensified inclusion, and intensified global extension. The legal system expanded beyond the limits of national societies by extracting a source of legitimacy from single persons, located in all spheres of global society, and it began to assume global authority, uniformity and extension by isolating individual persons – as rights holders – as its primary point of reference. Eventually, this reference to singular rights holders meant that the global legal system internalized a relatively autonomous source of legitimacy for legal norms, and it was able to assume a broadly consistent form, to presume broadly analogous principles of legal validity, and to produce broadly similar binding norms in different regions of the world. In this process, the primary reference for the production of law was, not the citizen as political agent located in national society, but the generic singular citizen, constructed as a holder of universal rights. Once it began to construct its authority around this generalized model of the citizen, the legal system was separated, globally, from more classical, nationally embedded sources of legitimacy, and it acquired a norm for authorizing laws that was not attached to particular decisions, to particular locations or institutions, or to particular patterns of agency and participation. Of course, the global legal system did not become a globally differentiated entity in a short period of time, and it took decades until the legal system, integrating institutions and assuming authorization at national and supra-national level, was fully formed and fully autonomous as a global order. The switch from the national citizen to global human rights as the primary source of legitimacy for law which occurred after 1945, however, clearly marked the moment of take-off in a longer process of global legal-systemic differentiation.

This rights-based differentiation of the global legal system can be observed in a number of different processes.

2.4 Global Democracy and the Sociology of Law

The global rise of democratic polities in the decades after 1945 displays three of the deepest paradoxes in the history of modern society.

First, this process demonstrates the paradox that, with few exceptions, modern national states were only institutionalized as such as they were integrated into a post-national legal order: the construction of nation states as stable political units, within effectively nationalized social systems, did not occur within a legal/political order created by nations, or their populations, themselves.

Second, this process demonstrates the paradox that democracy only became a globally enduring political form as it began to assume an institutional reality that was not centred on the people (the demos) as the dominant focus of political agency and norm formation. As discussed, after 1945, democracy was gradually established as a globally acknowledged and endorsed system of governance. However, by this time, the primary and most essential norms of democratic constitutionalism were no longer solely extracted from the decisions of a particular people or the actions of particular citizens. The citizens of populations that experienced the growth of democracy, in fact, were defined a priori within an overarching system of public-legal norms, centred on human rights, and their demand for democracy was constructed as an element of international law. Through this process, essential functions of legitimacy production and legal norm construction classically imputed to national citizens were absorbed and reproduced within the global legal system.

In fact, third, this process demonstrates the paradox that most societies did not develop a stable, political system until domestic institutions coalesced with the global legal system. As discussed, the basic legitimational vocabulary of democratic politics was focused, not solely on establishing the democratic political system, but also, less manifestly, on abstracting a political system for society more generally. However, few societies achieved this on purely national political premises. Before 1945, most political systems were inherently unstable. Indeed, they were rendered unstable by the fact that they were democratic: by the fact that they were forced to incorporate complex, rival models of citizenship, which they were unable to sustain at a national level. In most cases, it was only as political exchanges were underpinned by, and even performed as, law that societies were able to consolidate and sustain stable political systems. The basic idea of classical democracy – namely, that democracy is the product of a democratic subject, acting pre-eminently, and in eminently political fashion, as a citizen – proved to be a fiction.

In sum, nations first became nations after nationhood. Likewise, democracy first became democracy after the demos. Polities became political after politics.

The factual formation of democracy after 1945 relates in complex manner to the approaches to democracy found in classical legal sociology.

On one hand, democracy finally developed on a pattern that clearly verified the defining insights of legal sociology. As discussed, the insight into the absent subject of democratic politics had assumed great importance in sociological reflection on the initial development of democratic organizations. This insight clearly captured the contingency of early processes of democratic institution building. Then, as, after 1945, democracy became a factual reality, this founding sociological insight slowly began to acquire relevance for a deeper, more structurally enduring, problem of democratic formation, which early sociologists could not have begun to envision. What became clear through the long process of democratization in the twentieth century is that the classical sociological analysis of democracy did not only comprehend the paradoxes underlying the first tentative emergence of national democracy in the nineteenth century – it also showed great prescience in intuiting the paradoxical form that democracy would eventually assume in the twentieth century. In focusing on the absence of the people as a core feature of democracy, classical sociology clearly anticipated, in unforeseen ways, the paradigm shift that underpinned the stabilization of democracy after 1945. Ultimately, the legal-sociological relativization of democracy was strongly substantiated by the fact that democracy emerged, globally, as part of a secondary constitution, in which the displacement of the factual citizen from the institutional focus of democratic governance was a pronounced, indeed necessary feature. The original sociological perception of the illusions of democracy, intimating that democracy could not be centred in any factual reality of collective human agency, was, therefore, fully corroborated. Democracy was established, globally, through a process, in which the actual, existing citizen was, not located at the centre of, but evacuated from the process of public norm production. The citizen was replaced by the socially abstracted form of global human rights. In this respect, as earlier sociologists had indicated, the law itself acted as the primary medium of democratic integration.

Early sociologists had argued repeatedly that the initial cult of democracy was founded in chimerical constructions of human agency and human legal subjectivity, which only managed to project authorship for law by relying on formal-metaphysical accounts of popular agency. After 1945, this claim was vindicated by the fact that national democracy was stabilized on abstracted normative foundations, in which national acts of self-legislation were strictly determined by a pre-stabilized, external constitutional system. The primary constitution of international law, within which national democratic constitutional systems eventually evolved, formed an intensified analogue to the metaphysical constitution of rational law, posited by early theorists of popular government in the Enlightenment and then criticized by sociologists. This constitution translated the uncertain figure of popular sovereignty into an entirely fictionalized idea of the citizen: the citizen was projected as a formal holder of rights, defined within a global legal order, positioned outside objective spheres of social interaction. Indicatively, in fact, theorists of international law, who played a role in creating the international legal order after 1945, often conceived of international human rights on foundations derived from the classical tradition of natural-legal philosophy (see Lauterpacht Reference Lauterpacht1945: 25). This was not an invariable attitude, and some architects of the international legal order after 1945 were sceptical about the renewal of interest in ‘the doctrine of natural law’ (Kelsen Reference Kelsen1962: 319). National democracy, however, was widely realized on a model that formally admitted the fictionality of the people, and which translated the will of the people into a formatively structured normative domain. Indeed, democracy was established within a global order that specifically acknowledged that the democratic subject could only be substantiated in a fictitious design. In this process, international law expressly stood in for, supplanted, and evaded the conflicts inherent in the patterns of political subjectivity constructed in national societies.

On the other hand, however, the factual development of democracy also contradicted some basic analyses of early legal sociologists, and it provided evidence that demanded a revision of some core legal-sociological claims. As discussed, earlier legal sociology had showed a deep unwillingness to accept the implications of the paradoxes that it identified in democracy. Leading classical legal sociologists had remained intent on explaining democratic legitimacy as a condition in which the political system reposes on deeply embedded political-volitional substructures. In fact, sociologists commonly persisted in looking for the people as a subject of democracy, and they imagined that democracy could only obtain legitimacy if the volitional motivations of the people could be identified at its core.

Notable in this respect is the fact that classical proponents of legal sociology had tended to be dismissive of international law, which they often saw as a normative order constructed outside the realm of everyday socio-legal practice and motivation, such that it could not be viewed as an objective source of legal or political obligation. For many early legal sociologists, international law appeared as a particularly implausible outgrowth of rationalist or formalistic conceptions of legal validity, and as an extreme example of the forgetfulness of society in the legal traditions resulting from the Enlightenment: some leading early sociologists of law simply denied that international law could be seen as law (Ehrlich Reference Ehrlich1989 [1913]: 19; Weber Reference Weber1921/2: 221). In the interwar years, then, many legal-sociological observers claimed that the inherent fragmentational tendencies in mass democracy were greatly exacerbated by the fact that, during their transition to mass-democracy, democratic states had ascribed increasing authority to international norms, and, in some of their functions, they accepted the jurisdiction of international organizations. At this time, it was increasingly claimed amongst sociological theorists that the slowly growing force of the international legal order, focused from 1920 on the League of Nations and the Permanent Court of International Justice (PCIJ), obstructed the formation of political systems based on national self-legislation. Amongst legal theorists concerned with domestic democratic processes, the gradual rise of international law was often viewed as a process that fractured the presence of the people at the centre of government, and at the centre of national law-making processes. Indeed, amongst interwar constitutional theorists with strong sociological sensibilities, it was widely asserted that international law, at least insofar as it constrained domestic institutions, was not easily compatible with national statehood and national self-legislation.Footnote ¹¹¹ Paradigmatically for this critique, Carl Schmitt set out the sociological claim that ‘the people, not humanity, is the central concept of democracy’, and the factual interests of the people could not sublimated into a set of external norms (1928: 160). Across different lines of earlier legal-sociological analysis, therefore, the first rise of international law was perceived as one of the primary challenges to democracy.

In this respect, however, early sociological analyses were clearly inaccurate, and their insistence on finding a real political subject to support democracy led them onto stray paths. Democracy, as it finally emerged, did not need to be centred on the people: it was centred on international human rights law precisely because this law intruded on the national material life of the people. Although derided by sociologists, Kelsen's claim that democracy presupposed, not an actively engaged people, but a pure system of norms, proved more sociologically accurate than the common sociological critique of positivism. In fact, long before 1945, Kelsen had clearly foreseen the necessary primacy of international law in the legal systems of democratic states (1920: 215). Democracy, in short, took hold as it replaced the people with an abstracted concept of humanity as its central point of reference.

Overall, the actual globalization of democracy after 1945 both substantiated and contradicted certain basic insights of legal sociology at the same time. Classical legal sociologists had clearly observed that democratic government was not underpinned by a real political subject. This view was eventually corroborated by the factual shape of democracy. Yet, the ultimate global form of democracy also underlined the inability of sociology to accept the implications of its founding insights. Classical sociologists had been right in their critical reflections on the paradoxical fictions of popular sovereignty. But they had been wrong in thinking that real democracy necessitated foundations deeper than this paradox. Democracy ultimately struck root as an abstracted figure of popular sovereignty, which early sociologists diagnosed, rejected and endeavoured to reconfigure, was formally institutionalized as the basis of government. The formation of the subject of democracy within international law implied that fictitious constructions of legal authority were necessary and inevitable preconditions for democracy. Without such fictions, there was no democracy.

After 1945, in consequence, legal sociology found itself confronted with a position similar to that which it addressed in the wake of the Enlightenment. At this juncture, legal sociological reflection was once again confronted with democracies with no manifest subjects from which to claim authority, reliant on metaphysically abstracted constructions of their sovereign peoples. Indeed, the period of democratic re-orientation after 1945 can be seen as a period of second Enlightenment, in which the rise of global democracy was flanked by the promotion of universal normative principles, defined, now not on openly metaphysical foundations, but on the basis of international law. After 1945, indicatively, the main assumptions of classical Liberalism once again became commonplace, and many of the formalist principles of early Liberalism – especially regarding the essentialist foundation of rights, the universal-rational basis of legal obligations, and the natural-legal origin of democracy – were re-established as orthodox perspectives in legal and political theory. This was expressly stated in the constitution-making processes in both FRG and India, both of which were paradigmatic for later constitutional acts. In both cases, ideals of natural law were expressly debated during the writing of the constitution.Footnote ¹¹²

After 1945, however, legal sociology once again struggled to accept the implications of its own basic insights, and it re-commenced its attempt to discover a distinctively political source of authority for the increasingly globalized system of democracy. As discussed, at this time, the reaction amongst sociological theorists of law to the second Enlightenment differed from their reactions to the first Enlightenment. Whereas sociological theorists who reacted to the first Enlightenment had approached the normative construction of democracy with scepticism, sociological theorists who reacted to the second Enlightenment assumed a stance that was more overtly and sympathetically committed to promoting the global process of democratization. Indeed, whereas early legal sociology had responded to the first Enlightenment by focusing its gaze, critically, on the metaphysical content of democratic theory, sociological theory responded to the second Enlightenment by devoting itself to explaining how, in global society, real substance could be infused into the existing order of democracy. After 1945, sociological theorists gradually accepted that democracy had to be perceived as a global or transnational form, in which patterns of legitimation fused elements of national and global law. Sociological theory thus became centred, slowly, on the idea that the national people had lost their monopoly in the production of democratic legitimacy. In recognizing this, however, sociological theory persisted in its search for the democratic people, and it reacted to the increasingly global form of democracy after 1945 by attempting to explain how concepts of classical democracy, already fragile in purely national political systems, could be made to acquire meaning in the global legal order. Indeed, in the longer wake of 1945, legal-sociological accounts of democracy began to project ways in which the presence of the people, hard enough to find in national society, could be reconfigured in global society. Even as the people visibly faded from the centre of legal/political organization, sociological theorists tried to reconstruct new models of democracy in the global setting, attempting to place global institutions on a continuum with national democratic systems. At the centre of legal-sociological democratic theory after 1945, therefore, was a re-initiation of the earlier attempt to imagine the political content of democracy, and to reconnect the legal system of democracy with manifestly political motivations. But this approach was now framed within a much less sceptical account of democracy as governance system.

Such approaches to post-national democracy appear in an almost endless sequence of variations, and they cannot be exhaustively canvassed here. However, some theoretical positions have an exemplary quality in this regard.

Most obviously, the attempt to transfer the (absent) people of national democracy into global society is observable in cosmopolitan theories of democratic institutions. Such analysis is shaped by the sense that national democracies are part of a wider institutional order, in which national institutions interact formatively with global norm setters. In such theories, nonetheless, political institutions, both national and global, are expected to extract and to display legitimacy in much the same way as in classical democracies. Indeed, cosmopolitan theories generally seek to illustrate how originally national patterns of self-legislation can be re-envisioned as the source of institutional legitimacy for global society as a whole.

At one level, this re-envisioning of the national people appears in the work of sociologically oriented cosmopolitan thinkers who argue that supra-national political systems, for example the UN and the European Union (EU), generate globally valid reserves of legitimacy. Underlying such theories is the claim that the sources of legitimacy required by transnational bodies are not discontinuous with national-democratic process of legitimate will formation. This is also reflected in lines of global sociology, which have begun to identify preliminary contours of world statehood in contemporary society (Schmalz-Bruns Reference Schmalz-Bruns1999: 237; Brunkhorst Reference Brunkhorst, Albert and Stichweh2007: 101; Habermas Reference Habermas2012: 22–3; Albert Reference Albert2014: 517).Footnote ¹¹³ This re-envisioning of the people is clearly manifest in more activist/pluralistic theories of cosmopolitanism, which claim that the rise of global society creates new modes of radical political agency, based on border-crossing legal norms.Footnote ¹¹⁴ It is also perceptible in the insistence, amongst some sociological theories of transnational law, that legal community, albeit constructed across geographical boundaries, remains the source of law's authority (Cotterrell Reference Cotterrell2008). Even cosmopolitan theories that are reluctant to claim that contemporary society contains fully global political institutions have accentuated the emergence of new forms of transnational citizenship, articulated around international legal norms (Benhabib Reference Benhabib2009: 699; Cohen Reference Cohen2012: 217).

This re-imagining of the people is especially salient in the most refined theory of cosmopolitan democracy, that set out by Hauke Brunkhorst. Brunkhorst's theory of democracy hinges on the claim that there is a co-evolutionary relation between the legal norms that underpin national democracy and legal norms of a transnational, cosmopolitan nature. On this basis, he argues that national democracy and transnational norms, although historically separate, are always correlated with each other, and global institutions acting to protect democratic legal rights are inevitable consequences of the historical orientation towards democracy in national societies. To explain this, Brunkhorst asserts that national democracy is based on certain shared demands for self-legislation and freedom, which, in their essence, have an egalitarian content that reaches beyond national boundaries and beyond the confines of purely national citizenship laws, implying a process of legal inclusion and recognition that always exceeds the constraints of purely national politics (1994: 231). In this respect, he proceeds from the assumption that democratic citizenship is driven by experiences of solidarity, oriented towards collective liberty, and the normative content of solidarity, in principle, is universal. By definition, solidarity is not restricted to national fellow citizens, and it creates globally inclusive norms that, for their final realization, require global institutions for their realization and enforcement. Underlying this theory is an implied assumption that human social experience necessarily generates patterns of shared liberty and non-instrumental coexistence, and that solidarity is a universal species quality, articulated primarily in the normative foundation of citizenship (2017: 101–2). As a result, the citizen of a nation state and the citizen of the world are always situated in the same ‘normative horizon’ (2002: 110), and the rights claimed by national citizens are commensurate with, and they in fact objectively pre-construct, rights of a global nature, of global citizens.

Overall, for Brunkhorst, democracy inevitably contains both national and global elements, and claims to rights asserted at a national level often both co-imply and presuppose rights declared at a transnational level. In this formulation, however, the co-evolution of national and global democratic rights is phrased in essentially neo-classical terms, and the rise of global democratic institutions is examined as an extension of the original self-expressions of popular sovereign agency.Footnote ¹¹⁵ In this respect, Brunkhorst's theoretical gaze turns on the paradigmatic question of classical sociology, and he seeks to translate the normative political legacy of the French Revolution into an objectively meaningful contemporary reality. In this focus, the global citizen appears in the same form, articulating the same normative processes, as the national citizen, and the growth of transnational democracy brings to fruition the moral potentials that were always implicitly inherent, although often factually suppressed, in national democratic citizenship.Footnote ¹¹⁶ Importantly, for Brunkhorst, both nationally and transnationally, norms of freedom and equality are created and expressed through discursive practices of popular protest and moral contestation (2017: 119).

The sociological transposition of classical ideas of democratic governance onto the dimensions of global society is also evident, second, in proceduralist theories of democracy, which attempt to account for democratic legitimation processes at a transnational level. For example, Habermas's theory of procedural democracy was first conceived for national societies and their institutions. Eventually, however, he arrived at the conclusion that the theory of democracy as a system of deliberative procedures can be translated to the transnational domain, and that, through this, the ‘conceptual association of democratic legitimation with familiar state organizations’ can be loosened (1998: 166).

The most important, and most conceptually challenging, attempt to construct a proceduralist theory of global patterns of democratic legitimation appears in the legal-sociological research of Gunther Teubner.

At one level, most obviously, Teubner turns away from any attachment to classical ideas of democracy, and he accentuates the core insight of legal sociology that the political system of society cannot simply extract authority for its functions from a given people, defined as a factual aggregate of citizens. He advances this argument, first, by arguing that contemporary globalized societies cannot be centred around national or international political institutions, in which collective agreements can be represented in stable, binding fashion. Globalization, for Teubner, is reflected in ‘the worldwide realization of functional differentiation’, one consequence of which is that classical political institutions no longer construct regulatory norms for all functional domains (2004: 14). One key outcome of global functional differentiation, thus, is that state institutions lose their primacy. He develops this analysis, second, by proposing a theory of societal constitutionalism, based on the claim that, in global society, individual functional sectors – for instance, media, health, sport, the economy – generate their own sources of constitutional and democratic agency, and they evolve constitutional norms, to regulate and create regime-like structures for their specific exchanges, in quite distinct, contingent ways (2011: 9). In particular, owing to the relative weakness of state authority, it is vital for modern society that different social spheres preserve capacities for ‘inner constitutionalization’ (2011: 51), or self-constitutionalization, especially in situations in which their communications collide with, or threaten to unsettle, communications in other systems (2011: 51, 2017: 333).

On Teubner's account, the constitutional order of global society is necessarily pluralistic and acentric, resulting from auto-constitutional potentials residing in different social spheres. In particular, the constitutional reality of society cannot be imputed to unifying acts of a given people: there is, in fact, no people – national or global – that can underlie and bring unity to different areas of institutional practice and law production. The most important norms that structure societal exchanges are produced, not by deliberate acts of single or collective actors, but by the inner reflexivity of different media of communication, and they are not articulated with formal political processes of norm production (2012: 121). As a result, the normative order of each social sector retains a conclusively pluralistic character.

Self-evidently, Teubner's theory of global society and global law cannot be linked to more neo-classical attempts to press political institutions into an immediate relation to some single, originating, self-legislating people. Indeed, his work reflects a remarkable endeavour to articulate an irreducibly contingent model of legal/political order, especially in the global setting, and to comprehend patterns of legal construction without simplified reference to primary agents. At the core of Teubner's work is a deep attentiveness, closely continuous with the core insights of classical sociology, to the pluralistic form of social freedom. Despite this, however, he centres his theory around ideas of politics and proceduralization, in which, in some respects, a trace of more classical ideas of democracy is still perceptible.

On one hand, in the micro-sociological dimension of his theory, Teubner claims that, within the different sub-systems of society, constitutional norms are generated by the distinct exercise of constituent power, in which forces specific to a given social sector spontaneously generate constitutional norms. To be sure, the constituent power in this sense cannot be captured by any ‘anthropomorphic identification’ of such power with the strategic acts of a people, community, or collective. On the contrary, such power articulates the ‘social potentials’ and ‘energies’, or even the ‘communicative power’, which is formed in distinct sectors of society, and which gain expression in acts of sectoral self-constitutionalization (2012: 62–3). On this basis, Teubner concludes that different social sectors afford opportunities for distinct modes of democratic norm construction, in which ‘decentralized collective actors’ assume a role in shaping the normative order for a given social domain (2012: 122–3). Indeed, he is very clear that each sector of society possesses its own specific mode of politicality, and every partial system of society remains a realm of contest, in which different actors or stakeholders challenge each other to participate in structural formation or in the creation of ‘regime rules’ (2018). Nonetheless, he imputes a distinctive political content to such processes of self-constitutionalization and sectoral democratization, claiming that each transnational regime contains functionally specialized aggregates of contested agency. The self-contestation of transnational regimes thus supplants the political representation of national peoples as the core energy of democracy (2018). To account for the political substance of constitutional formation, then, he employs a dual concept of the political, implying that different social sectors possess a political force that cannot be captured in conventional categories of institutional politics, and which is worked out through contextually embedded contests over the legal/structural form of different societal domains (2012: 121). Although shifting the politics of society onto highly contingent procedural foundations, therefore, the idea still endures in Teubner's thought that there are certain primary political-democratic substances in society. Albeit in delineated social sectors, the distillation of political energy in constitutional norms remains a core process in global society, and political self-legislation remains a distinctive emphasis of social agents. As implied, a core concern in Teubner's later work is to translate the dominant semantics of classical democratic politics into categories that can be identified in the plural regimes of global society. In this setting, the classical demos may be replaced by a range of actors, such as social movements, stakeholders, professional bodies, standard setters, all of whom contest the form of a particular regime. These actors, however, exist as remote equivalents to the classical demos.

On the other hand, in the more macro-sociological focus of his theory, Teubner argues that society as a whole is capable of obtaining an overarching normative balance, and even of securing reasonable freedoms that traverse different social sectors. In this respect, his work moves close to more classical pluralist claims, similar to arguments set out by Hegel, that even in the most differentiated societies highly particular modes of liberty can co-exist and generate complementary rationalities (2018). In his earlier work, he indicates that the legal system of society is able to institutionalize procedures through which different social systems can be sensibilized to each other, and in which adaptive learning processes can be stimulated in different social systems (1983: 28). In some cases, this means that destabilizing expansionary impulses in one social system that risk unsettling society as a whole can be checked by normative claims in other social systems, such that society as a whole preserves a political configuration adapted to the separate rationalities of different systems. This might mean, for example, that, faced with expansionary economic energies, political forms of agency in other systems (say, social movements, protest groups, professional associations) might instil their micro-political prerogatives into the normative structure of society as a whole. In his later work, this idea re-appears in the assertion that, from inside their own reflexive intelligence, the different sectoral constitutions of society can, and in fact necessarily must, construct ‘principles of an ordre public transnational’. That is to say – different social sectors can articulate principles of a unified meta-constitution, in relation to which each social domain, in its own constitutional perspective, ‘evaluates its own norms’, and configures its norms with the meta-normative form of society as a whole (2017: 330). At no point, categorically, does this theory imply that society as a whole possess a unitary macro-constitution or unifying patterns of political agency, based on demands of socially encompassing subjects. However, residually, it holds out the possibility that conflicts between different constitutional orders might be balanced in a ‘transnational meta-constitution’, and that different sectoral constitutions might evolve internal conflict rules to avoid collision with other constitutions (2017: 329). In this respect, even in the most resolutely acentric analysis of modern society and its law, an echo is heard of a lament for overarching political rationality and trans-sectoral democratic norm formation.

In general, more contemporary legal sociology has opted for a view of democracy which is more immediately affirmative than that set out by classical sociologists, and which moves on a continuum with classical democratic theory. As discussed, classical legal sociology viewed democracy as inherently paradoxical. At the same time, however, legal-sociological theory widely internalized this paradox in its own conceptual structure. As a result, legal sociology remained fixated on the people, defined as a collectively self-legislating agent, as a source of legitimacy, although it clearly explained that this people cannot be constructed as a source of legitimacy. This legal-sociological paradox is commonly intensified in more recent analysis of the conditions of global democracy. In the realities of globalized democracy, in which the existence of a people as the basis for democratic political organization is difficult to identify, legal-sociological research has not been able fully to capitalize on the insights that were inherent in legal sociology in its classical years. Sociological analysis persistently looks for continuities between contemporary and classical democratic processes. Indeed, as the absence of the people (citizens) in democracy becomes an almost incontrovertible fact, sociological inquiry becomes increasingly resolute in its desire to find this people (citizens), and to locate the political agency of the people, in some form, at the centre of social life.

The remainder of this book is designed to demonstrate that, in order to understand democracy in contemporary society, we need more resolutely to follow the implications of classical legal-sociological arguments. As the requirement for a global sociology of legal formation becomes more pressing, the greater becomes the relevance of the primary insights of classical legal sociology into the fictionality of democratic subjectivity. Classical legal sociology contains two claims that profoundly illuminate the reality of contemporary democracy.

First, simply, classical legal sociology claimed that democracy was created without a people. In contemporary society, democracy now appears as a mode of political organization, which is specifically not centred around the people or the citizen, and whose evolution and legitimization are not dictated by specifically political patterns of normative agency. As a result, contemporary society fully reflects one core original claim of legal sociology. More tellingly, second, classical legal sociology claimed that democracy should be observed as the result of a process of apersonal institutionalization, and the conceptual forms of democracy underpin this process. In much early sociology, the societal expansion of democracy was attributed to the autonomous functions of the legal system in promoting social integration, often through the distribution of basic rights to individual agents. Using this insight, we can now see that, within national societies, the process of national-democratic institutionalization failed, and national democracies were not reliably stabilized around national constructs of citizenship. On this basis, we can see that democratic integration and institutionalization began to approach completion when the political citizen, to which the political system owes its legitimacy, became fully apersonal: when it was transferred from the national-political to the global-legal domain, so that the core legitimacy of political institutions was disarticulated from national constructs of political agency. Both central claims in the legal-sociological theory of democratic contingency contain a key to understanding democracy. To understand democracy, we need to move beyond the underlying paradox of legal sociology, we need renounce the search for the people or the political subject at the core of democratic law, and we need to observe the formation of democratic law as shaped by a fully contingent process of institutional construction.

It is an error to seek the origins of contemporary democracy in national democracy, national democratic subject formation, or even in distinctively political sources of agency. Democracy presupposes, not continuity with national citizenship practices, but a deep and incisive rupture with more classical national democratic systems and more conventional patterns of political subject formation. Explaining contemporary democracy means explaining the process through which external, global modes of norm production have supplanted more classical sources of political agency, and it demands that we renounce all attachment to conventional constructions of citizenship and political subjectivity. Explaining contemporary democracy means explaining the ways in which law's autonomy shapes democratic integration and legislation.