PLURALISM STRIKES BACK (THEN’S PUNCHED IN THE FACE)

PART 12: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

This whole section is fascinating viewed through my phenotype wars lens. Just as the spatials and managerial class were consolidating their regime, in the late 19th-early 20th centuries, Grossi argues there was already a pluralist/corporatist backlash against the monist state-individual dyad of the emergent mass society. (And though he doesn't make the point explicitly, the early North American agrarian radical populism was very much a part of that historical pushback.)

However, this brief revival of pluralism, especially in the form of corporatism, turned out to be a double-edged sword. As it aspired to impatiently revive something which in its original iteration had organically arisen from a longue durée of trial-and-error evolution, congealed in ancient custom, the pluralists-in-a-hurry substituted social engineering for tradition. The new corporatism was reconstituted as bureaucentric rather than reicentric. It was not based on the long hard life lessons of brute factuality, but rather upon idealized visions of corporatism. This grounding, not in the human dance with the negative feedback loop of nature, but with the bureaucratic will to engineer the idealized social structure, made the new corporatism a sitting duck for the ventriloquism of the managerial class who animated the early to mid-20th century operationalizations of fascist strategy.

Under Italian Fascism and German National Socialism, the idealized language of corporatism – with its aspirational transcendence of crude liberal individualism – fueled managerial class efforts to bind a strong national identity as part of their strategy in the battle over international control of the managerial revolution, which characterized the mid-20 century. (Those who want to better understand all these events should read my book, The Managerial Class on Trial.)

Much as was seen in Mack Walker’s discussion of the National Socialist’s cooptation of the German hometown tradition, National Socialists and Fascists alike gave much lip-service to corporatism, even as they destroyed any corporations which might exercise any independence from the state and its claim to centralized sovereignty. Genuinely independent intermediary corporate institutions were replaced with organizations that were direct appendages of state power – as though providing a caricature-level manifestation of Piccone’s artificial negativity thesis. (On Piccone's artificial negativity thesis, see my most recent book, A Plea for Time in the Phenotype Wars.)

To start, Grossi reminds us of (what we’d call the temporalist) virtues and history of corporatism:

Corporatism is an attitude of dissatisfaction with modern statism and individualism; it seeks to recover the complexity of the social and legal order.

In such a vision, the association or collective becomes the necessary protective shell for the individual subject, precisely because it rescues him or her from abstraction.

After the drastic rejection of corporatism during the Enlightenment and after the French Revolution had been incorporated into the bourgeois order, the second half of the nineteenth century was a time of renewal for collective movements on two levels: social practice and cultural projects. The number of associations grew during this period, as we have seen, beginning with the first workers’ groups, which developed into political, charitable and co-operative organizations. These were a phenomenon that both united and distinguished the anonymous equal subjects of the bourgeois conception of citizenship; the centre of gravity of public life began to move towards these new social and economic associations. The associations took a great variety of forms: some, such as trade unions, fought to win emancipation for their members; some, such as professional organizations, sought to maintain privileges for their members; some sought to help their members and advance their interests, such as co-operatives; whilst still others brought together co-religionists, such as confraternities.

Though this tendency institutionally accelerated in the latter 20th century, Grossi observes that the same institutional manifestations, and a clear theoretical grounding for a renewed pluralism, was clearly evident in the earlier part of that century.

Also, throughout his book, and most notably in these final installments, Grossi clouds clear understanding with his use of the term bourgeoisie. Certainly, there is a way in which that term can be used instructively. Unfortunately, Grossi’s use of the term too often served to blur the line between entrepreneurial capitalists and the managerial class. And those two groups were largely distinct entities during the 19^th century, even if by the 21^st century there has come to be much less daylight between them. 

Durkheim (1858–1917) took up Schäffle’s key message whilst avoiding the suffocating biological idolatry of contemporary France: social groups are to be valued as an essential conduit between the masses and the political elite.

Catholic thought welcomed the collective, since it provided a useful intermediary that might help society steer between the subversive desires of socialists and the conservative desires of the bourgeoisie. This welcome extended to the highest level, with the support of Pope Leo XIII’s encyclical Rerum novarum of 1891, but it was also evident amongst those who were advocating a state founded on co-operation between the various parts of society. For example, Giuseppe Toniolo (1845–1918), an economist and sociologist with close connections to the Catholic hierarchy, was convinced that the collective was the solution to social conflict, yielding the positive result that the two opposite but equally serious risks of total state control and total anarchy might be avoided.

The theoretical interpretations of the return of corporatism in the late nineteenth and early twentieth centuries thus presented a variety of attitudes: from naivety, to conservatism, to generous solidarity. In effect, corporatism served as an enormous empty vessel to be filled with a great variety of contents. It certainly helped bring together coalitions of the weak in the struggle for social equality – corporatism played a pivotal role in giving solid form to the very first trade unions. However, not long after that, in the 1920s and 1930s, corporatism would also serve as the socio-economic framework for some of continental Europe’s totalitarian states, the reasons for which we shall examine below.

Perhaps even more intriguing, from Grossi’s perspective was Hugo Preuss (1866–1925), former student of Otto von Gierke – seminal theorist of medieval pluralism who much influenced Maitland, and eventually all of Figgis, Cole, and Laski. Pruess wrote an intriguing book that attempted a concrete design for a communal state, based on a distinctly corporatist structure.¹ Additionally, and more relevant to Grossi’s analysis, Pruess was a key contributor to the creation of the Weimar Constitution. Weimar’s “constitutional communitarianism,” despite its mere fourteen-year duration, is identified by Grossi as representing a social, legal, and political experiment worthy of examination.

The Constitutional Assembly [creating the Weimar constitution] was heterogeneous, with many ideological disagreements; nonetheless, it managed to piece together a consensus. The liberal state was not to be resuscitated, but nor was the Russian model of the dictatorship of the proletariat to be followed. The resulting communitarianism was the product of a compromise between the various factions, although it was also the desired goal of the lively German corporatist movements, which were amply represented amongst the assembly. One peculiarity of the Weimar assembly was the decisive role which intellectuals, especially jurists, played alongside the politicians. The masterly and persuasive Germanistic vision of Otto von Gierke, who was living out the last years of his old age, hung over the assembly. Unsurprisingly, therefore, two former pupils of Gierke, Hugo Sinzheimer and Hugo Preuss, were the attendees whose contributions most defined proceedings. Despite a number of differences of opinion, both men were committed and ultimately successful supporters of a communitarian state.

Let me develop a little more what I mean by this cryptic adjective, communitarian: it indicates a pluralistic conception of the state as a community of communities, the state more as Volkstaat, a state of the people, than as Rechtsstaat, a state of law on the liberal model.

…the fundamental idea of collective democracy is the primacy of the interests of groups over those of single individuals. The state does not stand aloof from the actions of individuals, but is rather a body that sets out to intervene specifically in the mechanisms of production. It is this aspect of the Weimar Republic that makes it the perfect summation of the early twentieth-century state, demonstrating its separation from the legal absolutism and individualism so beloved of the French Revolution and of the bourgeois legal structures of the nineteenth century.

For example, although the citizen acquires new rights that are connected to the changed economic and social dynamic of the times – rights which do not abstract the individual, but leave him or her connected to a network of relationships – nonetheless the old individual rights of the liberal tradition are still asserted. For example the principle of private property is asserted even for the means of production, although a series of duties is imposed upon the owner of such means that takes the system a long way away from any kind of Lockean natural law.

Nonetheless, as I have said, the forces of political conservatism present at the assembly ensured that there were numerous hangovers from the bourgeois modern period. The message of novelty was thus muddied and ambiguous, something that would eventually prove the death of the Weimar Republic.

Another criticism of Grossi, besides his insufficiently discriminating use of the term bourgeois, is that he succumbs to the unfortunate American tendency to use “conservative” as a synonym for liberal. That is not to deny that such a tendency is manifest among those claiming the designations, but as a theoretical exercise it muddies the conceptual waters. With those caveats added, we return to his discussion of the role of labor under the Weimar Constitution.

The most important area of law is thus labour law, a discipline to which the liberal constitutional thinkers did not attach any importance, indeed they could not because of their individualistic and proprietorial outlook.

…there were the ‘company councils’, which were set up in Article 165 and constituted an embryonic form of industrial democracy.

Despite the proclamation in favour of labour law, the document gave no firm indications as to how its effectiveness was to be guaranteed. Unions thus became mere statutory corporations (Körperschaft), beholden to the state or the community they served, whilst the company councils remained nebulous entities in the face of the private ownership of the means of production.

Thus, Grossi concludes:

The Weimar Constitution of 1919 begins a new phase in the history of constitutional law, since it no longer casts itself as a bill of rights, that is as a philosophical and political catalogue that lists situations in which the state undertakes to respect the generic citizen’s rights, but rather as a true constitution, a legal framework that governs and reflects the complexities of a nation’s society. The Weimar Constitution sets out be a faithful mirror of German society and an interpretation of the country’s historic values, which it seeks to translate into rules and principles for daily life.

The assembly at Weimar was the first time a state had been conceived of as serving more than one social class; it was therefore the first time that the full complexity of society was considered in a constitutional setting.

Even this fleeting list of divisions should be enough for the reader to grasp the size of the gulf that separates the Weimar experiment from the bills of rights of early constitutional law.

There are of course those that claim it was precisely the nature and weaknesses of the Weimar constitution that gave rise to the victory of the National Socialists, including our old friend Carl Schmitt. How pluralism comes out in all of this though is a more complicated question than the standard superficial commentators can concede. I hope to add a discussion of this topic in a future installment to this series.

In concluding this set of installments, we flesh out the arguments of Paolo Grossi’s history of European law with some observations on how fascism generally both exploited and subverted legal and institutional pluralism, beginning with the original (and purer²) version in his own country, in the form of Italian Fascism.

The single-party state is a radical novelty in Italian terms as well. The National Fascist Party acted as a necessary conduit between private citizens and the state – the privileged place for the individual’s political activities and engagement.

The Fascist programme had been clear from the outset, declaring war on two enemies: individualistic liberalism and collectivist Bolshevism. The choice of corporatism, which the regime would make official via a complex piece of legislation in 1926, was thus a necessity and was made without enthusiasm. The nature of the corporatist sector, even such a corralled and subjugated one as existed under Fascism, means that it will always represent a crack in the compact social and economic structure desired by totalitarianism.

It is necessary in Grossi’s remarks to distinguish administrative corporatism/pluralism and organic or (to use Grossi's phrase) factuality-based versions. We might say: bureaucentric vs reicentric. But, to continue with his line of reasoning:

And corralled it certainly was. On a political level, the first and most confining influence was the party, the single party of Fascism. On a socio-economic level, the constraints came from the Act of 1926, which granted legal recognition to workers’ and employers’ associations (and, in so doing, abolished trade unions at a stroke), declared strikes and lock-outs illegal, and set up a special tribunal system to deal with workplace discord. The corporatist sector was thus covered by an authoritarian carapace that most certainly constrained its free movement, reining in the pluralism that is the defining attribute of any corporatist system.

So, we see this “fascist” operationalization of pluralist rhetoric was in practice thoroughly bureaucentric. And Grossi notes comparable dynamics under National Socialism:

At the heart of the new Nazi vocabulary was the people, the Volk – a notion now very different from that invoked by the eighteenth- and nineteenth-century Romantics and historians. This radical new Volk gained its identity from its supposed biological unity: the Volk was a people which shared blood ties, thanks to which it could become a Gemeinschaft, a spiritually and socially united community. The new Volk, purified of the degradations of history, could rediscover its lost identity and its function as a Volksgemeinschaft, an extremely coherent and united community.

So, dovetailing with Mack Walker’s observations on how the National Socialists rhetorically and ideologically exploited the ethos of the German hometowns, while simultaneously suppressing the pluralist institutions that sustained those hometowns in practice (see here), Grossi points to how they likewise coopted the language of the medieval constitution, while redefining out of the Third Reich’s zeitgeist the very communal and traditional practices and values which animated that institutional and legal pluralism. That also, of course, is why the communitarian Constitution of the Weimar Republic was so anathema to the National Socialist regime.

The final point to note in this thumbnail of National Socialism is that there is no room for any type of continuation of the Weimar Republic’s collective democracy. The Nazi era bears witness to a progressive dismantling of trade unions and company councils, and labour law thus came under the sway of a rigid statism.

And yet, despite the blow that legal pluralism took at the hands of what Grossi’s calls the totalitarian regimes, Grossi regards that as but a stumbling block along a path of reinvigorated legal pluralism in the modern world which is as inevitable as it is necessary. Whatever may have been the understandable rationalization for the emergence of legal monism, and even legal absolutism, in light of Europe’s experience of mercantilism and eventually capitalism, the fatal fissures within such a legal regime have been revealing themselves over now a long period of time. Call this, if you like, the shift from modernism to postmodernism.

The clear and simple legal landscape of yesteryear is being left behind, as it should be: it was too clear and too simple to reflect the underlying social reality in all its complexity. The idols at whose feet the old legal mythology of the modern period worshipped – the law as a product of the state, the written law, the principle of rigid legality, the principle of rigid separation of powers, the hierarchy of legal sources – all appear to have been largely torn down.

Readers who have been following the argument of this book attentively may be tempted to believe that the medieval legal cultures described towards its beginning are undergoing a renaissance. This is a useful way to look at the contemporary legal landscape, and yet somewhat misleading: it demonstrates the relativity of legal innovations that were thought to represent the last word in progress; but it runs the risk of obscuring the identity of our postmodern moment which has been shaped by forces born in the here and now and that must therefore be ordered according to the demands of the here and now.

Which, of course, is why I insist we talk of a spiral, rather than a cycle, in the phenotype wars.

The rebirth of temporalist norms and institutions, through political and legal pluralism, will not be a mere resurrection of medieval temporalism (as valuable a learning resource as the latter may be), but rather such pluralism needs to be grounded in the realistic, existing conditions arising from the actual history of the phenotype wars most recent tour through the vicissitudes of spatial hegemony and its historically specific regime. That’s one reason why I’ve emphasized so strongly the role of federalism and populism in such re-imagination of a revived temporalist vision and practice.

To repeat my observations from the first installment of this lengthy review of Grossi’s book, I want to reiterate how much this book reads to me like a felicitous companion piece to my own book, A Plea for Time in the Phenotype Wars. While Grossi’s book lacks the depth understanding of personality psychology, which explains the conflicting phenotypes, and why, and how, they are constantly at war with each other, driving the spirals of history; with just a little annotation, inspired from my book, his does provide a valuable and thorough illustration of the phenotype wars at work across the history of European law.

Indeed, this is true even to the point of his final emphasis upon a momentum toward the re-emergence of temporalist-inclined institutions of pluralism and communitarianism. I believe this is the best way to understand claims about ours being a postmodern age. Not only is such postmodernism a nod to the fissures and erosion of institutional and legal monism, with its mass society of deracinated individuals and centralist sovereignty; but it is likewise an anticipation of the re-emergence of pluralism – even if the precise forms it will take, in its institutions and practices, remains to be fully revealed. Such revealing can only be achieved amid the historically and culturally particularistic forms of pluralism taken up by a populism inspired to generate the temporalist forms necessary to cushion themselves against the coming arc of the spatialist hegemonic regime.

While this post concludes our review of Grossi’s impressive book, we’re not yet quite done with the Lessons of Legal Pluralism series. Though the posts to come may well be considered footnotes to much of the discussion so far, if that’s true they nonetheless are valuable and informative footnotes, which I hope you’ll enjoy and find useful. So, if you’d like to be on top of those soon as they hit the presses, and haven’t yet, please…

And if you know anyone who’d be interested in the topics discussed here, please…

Meanwhile: Be seeing you!

1. Translated into English, the book’s title is Community, State and Empire as Territorial Associations: An Attempt to Construct a German State Based on the Theory of Associations. This is a very exciting sounding book, which I hope to include in this series. However, it is not available in English and the AI translated version I have generated makes for quite a slog in reading. We’ll see if I can make enough sense of it.

2. Paul Gottfried has made the point that Hitler and the National Socialists probably drew as much, if not more, from Stalin and the USSR as he did from Mussolini and Italian Fascism. Which makes it a bit odd that he include National Socialism under the umbrella of “fascism” in his must read book on the topic: Paul Gottfried, Fascism: The Career of a Concept (DeKalb, Illinois: Northern Illinois University Press, 2017).