Symbolism of the Spirit of the Laws: A Genealogical Excursus to Legal and Political Semiotics
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- Přibáň, J. Int J Semiot Law (2009) 22: 179. doi:10.1007/s11196-009-9101-0
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The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law. The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply highlight the virtues of demos and the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural identity politics.
The metaphor of the spirit of the laws symbolises the transcendental origins and ontological unity of the system of positive law and politics. Because of its status as the origin of the legal system, the spirit of the laws is perceived as a set of ultimate, supra-legal normative sources of positive laws. The spirit of the laws is taken as a symbol of the moral unity and collective identity of society which refers to the moral need for a reservoir of ideal patterns for positive law . It standardises the collective identity and moral unity of a polity and makes them open to political manipulation and power struggles. The central focus of social, political and legal theory then is to throw a ‘little light’ on this ‘absolute origin of the law’ [32, p. 26].
The legal system plays an important role in the politicisation of collective identity when it makes the spirit of the laws subject to national constitution-making, legislation and judicial decision-making. The system of positive law operates in two different ways and therefore has a double effect: it makes the transcendental moral ideals of the spirit part of its internal normative structure; however, this ‘legal codification of morality’ happens only as a temporary and definite process of the immanent legal enactment. The spirit of the laws incorporating the ideally constructed collective identity becomes the spirit of the positive laws, a definite political identity which is different from the identities of other political societies.
The complex process of moral idealisation, legalisation and politicisation of the spirit of the laws and its role in the timeless symbolism of collective identity therefore needs to be introduced by genealogical analysis. This approach reveals both political and theoretical aspects of the symbolic rationality of modern law [36, p. 28] and its contribution to the formation of ‘a community that incorporates a morality’ [56, p. 35]. Using exegetical and genealogical methods of legal semiotics, the following text analyses the notion of the spirit of the laws as a leading metaphor of modern legal and political language which creates moral meaning and reflections of modern society. Inspired by close links between legal semiotics, history and sociology of law , the text provides explanations of the political and moral narrativity of law and the role of legal communication in the social process of collective identity-building [9, p. 132]. It is a study of the language of law focusing upon its metaphorical uses and transmissions of moral ideological messages as well as particular politics [23, p. 19].
The legal system commonly facilitates a symbolic communication drawing on the desire for collective unity and identity pursued by moral communication. The metaphor of the spirit of the laws is an example of this communication which imagines even modern functionally differentiated society as a unity and thus enhances moral reflections of its social cohesion. However, the article concludes by showing that the metaphor of the spirit of the laws rather confirms the communicative and operative pluralism of functionally differentiated modern society in which legality cannot implement moral and political expectations and secure ultimate social values or normative hierarchies.
The Spiritualisation of the Laws: A Historical Excursus
The duality of spirit and letter is an archetype of philosophical and theological knowledge. The image of the force of written language taking over oral traditions, making them durable and published in texts plays an important role in modern culture’s historical and transcendental self-reflection, as if the birth of thinking were marked by the degradation of orally transmitted and shared wisdom, the power of the letter consigning the origins of human knowledge to oblivion. According to this image, the role of spirituality is to oppose the overwhelming force of textuality and its formalistic reduction of thinking. The authentic spirit has to reassert itself against its textual form and thus be ‘redeemed through the very gesture of overcoming/renouncing its particular historical shape’ [58, p. 154]. The authority of a text depends on its spirit. At the same time, the spirit is threatened to be obliterated by its textual expression. In this intellectual tradition, the spirit eventually has to prevail over the formalistic universe of the letter [55, p. 60]. It reconciles contradictions and unifies all moments in one supra-temporal totality. The unifying power of the spirit determines the true source of the letter of the laws and thus guarantees their authority.
For the ancient Greeks, philosophy means a return to the origins of being and the struggle against their oblivion by the mundane world [6, pp. 89–90]. Ancient calls for justice are calls for defining the nature of laws as their transcendental origins. The modern search for the spirit of the laws is echoed in Callicles’ view that strong physis will eventually overcome weak nomoi including all conventional morality. Might is right, what is more powerful is ultimately better [35, p. 266]. The Sophist criterion of success of the stronger and the rule of the strongest represents the first powerful concept of law originating in the nature (natural law) which is unrelated to the theological notion of justice and rightness of laws. Man as a supreme creator of laws has to follow the erupting law of nature in legislating the laws of a polity [35, pp. 1444–1445]. According to Sophist wisdom, nature’s force is to be the first origin of human laws.
This wisdom is contested by Plato who denounces the idea that a good lawgiver drafts laws for the purpose of war and success in it. Radically departing from the Sophist functionalist model of force as the first and ultimate origin of laws, Plato elaborates a different concept of nature and claims that the natural order in politics is the rule of laws freely accepted by all and not enforced by violence. According to him, the ‘unforced rule of law over willing subjects’ should be called ‘nature’s own ordinance’ [35, p. 1285]. The first job of philosophy is to define the conditions whereby citizens will freely accept and recognize laws. According to Plato, a perfect citizen in a naturally ordered politics is governed by the order of justice as the first political good. Justice is reasonable; it is not the will of the powerful forcibly imposed on a polity in the natural struggle of stronger against weaker citizens. Like the Sophist teachings, Plato’s philosophical approach is teleological and functionalist . However, the telos of the laws is not political success and the enforced growth of political power. Plato replaces the telos based on the force of nature with a model of justice as arête, the goodness of laws.
From Hegel’s perspective, obedience to divine laws has to be immanently questioned so that they may be constituted as the reason’s commands. However, the immanent laws of a polity must be subjected to the same test; otherwise, their status is that of mere ‘tyrannical insolence’ [20, p. 260].
[I]f I inquire after their origin and confine them to the point whence they arose, then I have transcended them; for now it is I who am the universal, and they are the conditioned and limited. If they are supposed to be validated by my insight, then I have already denied their unshakeable, intrinsic being, and regard them as something which, for me, is perhaps true, but also is perhaps not true. Ethical disposition consists just in sticking steadfastly to what is right, and abstaining from all attempts to move or shake it, or derive it [20, pp. 261–262].
In modern moral, political and legal philosophy, the problem of origins of the laws consequently becomes inseparable from their temporality. Questioning the temporal nature of the laws means questioning their status as absolute commands. Hegel perceived the question of the law’s origins and sources as part of the absolute spirit’s dynamic which comes to its ultimate point in the reason’s knowledge of the concrete world. The absolute spirit guarantees that the immanent laws of a specific polity will eventually be synthesised with its ethical commands [22, p. 237].
Hegel’s call for temporalisation of the laws has an ultimate goal of constituting the absolute spirit in thinking. Divine and human laws, which are originally undermined by the question of their origins, finally end up embraced and ultimately justified by the absolute spirit. Unlike the eternal natural laws, the spirit of the laws is reason itself in its concrete form and therefore inseparable from its temporality. According to this view, the spirit of the laws is the totalising force unifying and embracing the laws’ reality. The absolute spirit is an ultimate concept embracing the contradictions, differences and conflicts of the concrete world. The spirit understands itself from itself (‘sich in sich’) and therefore eliminates all logical contradictions emerging at the conceptual level and in speculative abstract thinking.
The absolute spirit is a theological concept which introduces unity where there are, in fact, only structural and conceptual differences and differentiations [30, pp. 364–365; 423]. It operates as a symbol of unity which stands above the factual world of differences . It has the total power to absorb everything and thus negate the concept of the ‘outside.’ Contained by the spirit, reality is all inside and does not have an environment. The spirit as unity accumulates all temporal moments because it does not forget and its memory is absolute. It disposes of the ideal concept of time. In the absolute spirit, there is no difference between past, present and future. The question of the origins and sources of laws is eliminated because time is programmed as the progress of the spirit towards itself in the concrete form of the laws of a political community—or State. The State is the absolute form and its evolution and laws are the merely realisations of the laws of historical progress.
The rationality of the absolute spirit is part of the factual world because the rational is identical with actual reality. The familiar statement that ‘[W]hat is rational is actual and what is actual is rational’ [19, p. 10] syntheses normativity and facticity, essence and existence. The absolute spirit is not revealed in some metaphysical form of natural law; it is immanent in the system of positive law. Explorations of the spirit of the laws therefore must proceed as explorations of the positive laws.
Hegel synthesises the immanent and transcendental perspectives in the concept of the ultimate law, manifested in the universal world spirit as the positive will [19, p. 36]. The laws are expressions of the political will and, as such, differ from each other but there is a general criterion of law, which is the origin of all duties in man’s thinking, answering the question of what the laws ‘ought to’ be like.
The Spirit of the Laws and the Concept of Culture
According to Hegel, Charles Montesquieu was the first to recognise the true philosophical position when he demanded that legislation should be examined as a variable moment in the social totality [19, p. 16]. By identifying reality with reason, the idea of law could be explored using positivistic methods and philosophical speculation at the same time. Hegel’s notion of the spirit has three different levels: individual wisdom, the social structure and the world’s transcendence [21, pp. 47–53]. The spirit therefore manifests itself in the collective life, social structures and history of a concrete nation. Different social groups may constitute different forms of the collective spirit which Hegel, drawing on Montesquieu’s ideas regarding the spirit of political societies and their laws, described as Volksgeist (the spirit of the nation) . However, Montesquieu would never draw such speculative conclusions from his study of the spirit of the laws.
Montesquieu indeed assumes that there are natural laws of universally valid reason (having transcendental origins in God’s will) which are intrinsic to human nature—‘antecedent to society’—and which therefore should be followed by the laws of all nations [2, p. 54]. In the second chapter of The Spirit of the Laws, Montesquieu specifies natural laws which transcend social conditions, such as the right to preserve one’s life and live in peace, which have their origins in the existence of individual human beings and not in the existence of society [34, pp. 6–7). The validity of these laws derives from the idea of God as a transcendental legislator. Nevertheless, it does not mean that the laws of all nations ought to be the same. The laws of nature have to be distinguished from the diverse laws originating in social and political conditions which comprise political laws, civil laws, and all major social institutions. The first purpose of an examination of the spirit of the laws is then to describe the differences in the lives of political nations and the unique and untranslatable character of the laws of different nations. According to Montesquieu, the rule of human reason can manifest itself in the real world only as the rule of variety and differences.
The main intellectual task is to disclose mutual relations and connection between all the external influences which determine the final form of the laws of each nation [34, p. 9]. The spirit of the laws is the result of mutual social influences that may have only relative validity and are related to the life of specific nations and external conditions such as climate, geography, and space. As Raymond Aron remarks, the general spirit of the laws is a product of the ‘totality of physical, social, and moral causes…which enables us to understand what constitutes the originality and unity of a given collectivity’ [2, p. 46].
The metaphor of the spirit of the laws is analogical to the modern notion of culture because it signifies specific forms of the life of a nation, its moral bonds, natural environment, and persistence through history. The spirit is concrete and this is why different nations will always have different spirits of the laws. Instead of Hegel’s universal world spirit unifying the laws of different political communities and their specific Volksgeist in the totality of reason, one witnesses an attempt to classify descriptions of the real state of the law of different nations. Montesquieu uses the spirit of the laws as ‘the unifying principle of the social entity’ [2, p. 21] which makes the entity of a specific nation different from other nations. This is what makes The Spirit of the Laws a proto-sociological treatise and its author one of the founding fathers of modern sociology.
The spirit of the laws synthesises descriptions of social diversity and factual differences in the life of different societies. Instead of a speculative attempt to express the total unity of the world, one can see a prototype of sociological nominalism in Montesquieu’s social theory and philosophy [12, p. 57]. The general spirit of the laws signifies both the transcendental unity of a particular society and its specific life forms and differences when compared with other societies. The legislator should have corrective power over political society but the power must be exercised in accordance with the general spirit. If the legislator were to legislate against the spirit, he would be acting as a tyrant [18, p. 21]. The general spirit accounts for the content of the laws commanded by the legislator.
According to Montesquieu, society exists only where there is government enacting a system of political laws. It is therefore the nature of the government that determines the spirit of the laws. Differences between specific legal systems are explicable as differences between the forms of government. At the same time, Montesquieu says: ‘…There is this difference between the nature of the government and its principle: its nature is that which makes it what it is, and its principle, that which makes it act…’ [34, p. 21]. The government may be examined as both a factual form of social life and as a normatively organised and regulated political institution. The spirit of the laws therefore is irreducible to the immanent reality of the socially constructed world which is determined by its environment, its geography, climate etc. It also refers to the transcendental normative principle of political institutionalisation which, albeit socially variable, is structurally common to all types of political societies. In other words, there are no laws without the spirit!
It turns out that the spiritual uniqueness in fact depends on the structural preconditions of the political regime. According to Montesquieu’s interpretation, the republican form of government is both more fragile and stronger than other forms of government, because of the bond of mutual trust between those who govern and those who are being governed and voluntarily subject to the political power. Respect for the laws and the polity is necessary for their continued existence which means that the spirit of the laws of republican government depends on the behaviour and normative judgements of its citizens. Respect for the laws is not a matter of rational judgement; it depends on a political sentiment which is common to all and, in democratic regimes, takes the form of respect and love of equality [34, pp. 42–48].
…[E]ach citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity; what was a rule is now called constraint; what was vigilance is now called fear [34, p. 23].
Citizens as social agents must vigorously defend and respect equality as a structural condition of democratic government so that its laws can be enforceable . Montesquieu can thus be regarded the first modern theorist of the rule of law as a system which, apart from the institutional framework of separation of powers and the distinction between private and public spheres, depends on the virtues of public accountability and trust between the governed citizens and those who are to govern them by the power of the laws [28, p. 150].
Montesquieu conceptualises the spirit of the laws as a matter of social reality and does not translate the normative conditions of the existence of different forms of political government into the universal claims of the spirit of rational law-making. Montesquieu’s strict separation of social reality and speculative claims successfully avoids the proto-romantic perspective of the ‘deification of the factual’ which became so typical of Hegel’s later philosophical legacy and romantic thinking.
The Romantic Philosophy of Volksgeist and Historical Jurisprudence
Romantic philosophy identified normative judgements with rules and regularities analysed and extracted from the factual nature of social reality. It was, indeed, inspired, by Montesquieu’s historical methodology and sense of the importance of historical particulars . It was F.C. von Moser who first used Montesquieu’s concept of the general spirit of the laws in the context of historical nationalism and reformulated the synthetic concept as a unique genius of the German people . The general spirit of the laws was gradually replaced by the national spirit. The concept of human nature antecedent to the social and historical condition of human existence was obliterated by this romantic historicism and its call for national patriotism and a feeling of unique togetherness. According to the romantic visions, the external reality of this world shapes man and imposes commitments and obligations on him as a rational being.
The romantic spirit was first persuasively presented by Herder in his ‘Yet Another Philosophy of History Concerning the Development of Mankind’ .1 The positive laws were considered just another expression of the life and history of different nations and their spirits. The historical nature of the spirit means that it is expressed in folk tales, language, and the daily experiences of peoples. According to Herder, modernity threatens to destroy the specific spirits of different nations and it therefore is necessary to preserve these national distinctions and protect them against modern social pressures and the tendency towards uniformity in social life. The first job of philosophy is to focus on the people because it ‘is supposed to belong to the people’ [50, p. 29).
[T]he new nationalisms enter into violent competition with each other, and the new standard and rallying cry is, above all, folk culture. This is the deep paradox of nationalism: it is a phenomenon of Gesellschaft, but it is obliged to use and invoke the imagery of Gemeinschaft. The moral sovereignty of ethnic culture is nationalism’s central principle. It was the nationalists who really rammed home, persistently and to great effect, the vision of the closed community, final and sovereign [16, p. 29).
Despite the immense role of Herder’s romantic philosophy, it was in fact Hegel who firmly established the concept of Volksgeist in moral and political philosophy and social sciences. Using this concept, Hegel was inspired by both Montesquieu and Herder and referred to the mores, laws, and constitutions of a nation. The spirit of the nation is one of the manifestations of the Weltgeist (World Spirit). According to Hegel, the spirit of the world manifests itself in the spirits of different nations which thus represent only a segment, albeit a meaningful one, of the total history of the world.
Leaving aside philosophical speculation, Hegel’s concept of Volksgeist as the totality of the historical and cultural accomplishments of a nation fundamentally affected the history of social and legal sciences.2 In his famous opposition to A.F.J. Thibaut’s proposals to introduce a codified civil law for all German states during the Napoleonic wars in the beginning of the nineteenth century, F.K. von Savigny used the ‘deeply mystical idea’ [8, p. 21) of Volksgeist. Savigny argued that all legal codifications first of all have to reflect and recognise the genuine spirit, convictions, beliefs, and common consciousness of the nation (Volksbewusstsein) [52, pp. 27–28]. The codified law should express the nation’s distinctive ethos which could be traced back in its history, mythology, religion, customs, or folk tales. In comparison with the Enlightenment’s legal rationalism, this was an entirely new scholarly enterprise according to which customs and popular faiths are the real powers behind the positive laws. The lawgiver’s will ought to follow the spirit of the nation, expressing itself through the national culture. Law derives from the nation’s specific character in the same manner as its language, mores, and folk tales. Legislation has to respect legal customs and traditions (Gewohnheitsrecht).
According to this view, one would expect the legislator to truly represent and reflect on the spirit of the nation and appropriate legislative activities to this ultimate origin of the laws. However, this task has to confront a general historical tendency for modern, rationally organised legal systems to become increasingly detached from custom and their roots in community life. Legal knowledge is organised and exercised by jurists instead of reflecting the popular wisdom of the nation. The spirit of the nation is hard to recognise in modern society: this is typical of the complex and differentiated legal system which demands expert legal knowledge and is detached from the ‘common consciousness’ of the nation.
Law therefore should be more historically reflective of the spirit of the nation. The romantic ethos of historical jurisprudence represented by von Savigny, Puchta or, later, von Gierke and Maine, therefore, established historical methods as the most important tool of legal science. Contrary to Hegel’s legal philosophy, the historical school shifted the theoretical focus from the state to the spontaneous evolution of customs and traditions of historical people. The content of existing law was to respect the characteristics and traditions of a particular community of people. Law, like language and other cultural systems, was considered to have grown organically through the history of a particular people, perceived as an ethnos—a community of shared language, traditions, customs, religion, territory, and race or ethnicity. Romantics like Savigny were convinced that ‘law is the totality of life’ seen from a specific viewpoint [46, p. 343]. According to the romantic ethos, the spirit of the ethnic nation must be verbally expressed in positive laws. The particular spirit of the ethnos is the spontaneous and quiet power operating behind the positive law in the course of the nation’s history.
The Politics of Identity and Ethno-Fantasies of Culture
The romantic spiritualisation of the nation ends up in the modern politicisation of cultural identities and culture in general. Culture represents the shared values and symbols of a people as a homogeneous entity distinct from all other peoples and their values and symbols. Modern nationalism politically sanctifies and identifies with a culture [15, p. 10]. Unlike traditional people’s worship of gods and deities, modern man worships culture in its totality. Politics is perceived as a form of a particular but omnipotent culture. Modern ethno-nationalism was born out of the romantic passion for the spirit of the nation—Volksgeist. The romantic study of collective life forms concluded that human beings as individuals were but creations of their nations, national cultures, and histories. Subverting Montesquieu’s demand of respect and love of a polity by its citizens, adherents of the Volksgeist philosophy eventually demanded that one should ‘love thy nation as thyself’!
The ideology of the spirit of the nation expressing itself through a culture gradually made the regulative idea of justice and the origins of law subject to the factual life of a specific nation and its history. The sovereignty of critical reason was replaced by the factual diversity of the life of modern nations and their different histories. The universality typical of rational Enlightenment philosophy gradually disappeared as the ultimate value and was replaced by romantic particularisms. The idea of universal reason and law was gradually challenged by singularity of culture and prejudice [14, p. 10]. The national became identified with the universal, and the irrational collective spirit of the nation with the iron law of the spirit of history.
Jurisprudential use of the concept of Volksgeist is an example of the totalising expressive symbolism of law which is expected to recognise the nation’s customs, adjudicate on them, and finally codify the national spirit in statute books and political constitutions. Law is supposed to mirror the spirit of the nation. The nation uses the legal system to codify its spirit. The legalisation of ethnic collective identity has an important political role because it turns the primarily cultural concept of identity into codified rules and policies.
The legal constitution of the nation is thus to represent the total political codification of the nation’s ethnic identity and culture. The law’s power to express and codify the world of culture and its traditions result in the attempt to legislate one generally binding collective identity for a political community. The domain of culture colonises the legal system with pre-political forms of expressive symbolism. The legal codification of the ethnic identity of the nation also legalises ethnic and cultural divisions and produces ‘unhelpful rigidities’ in local, national and international politics [10, p. 92].
New forms of identity politics ‘increase centuries-old tensions between the universalistic principles ushered in by the American and French Revolutions and the particularities of nationality, ethnicity…’ [5, vii]. The first principle of the democratic rule of law, that a demos constitutes itself by creating the constitutional powers of a democratic State, is being stripped of its universalistic ethos. Unlike the Enlightenment’s political myth of the democratic political body, the romantic concept of the legal constitution is based on the recognition of the unique characteristics of a particular ethnos and its culture. Ethnic conflicts feeding on differences of language, race, history or religion are thus recognised and facilitated by the system of positive law and the political force behind it. As Michael Kenny admits in his defence of the politics of identity: ‘[R]omantic emphases upon the unique character of certain kinds of belonging… are clearly visible in the politics of identity’ [26, p. 23].
A political society which constructs its identity by defending and proclaiming the past traditions and collective beliefs faces the danger of an authoritarian takeover, controlling first the state and then the whole of society. Conservative and progressive communitarian ethno-politics both demand ‘a complete harmony, within a given territory, between a form of social organization, cultural practices and a political power’ and seek ‘to create a total society’ [47, p. 163]. The speculative question of cultural purity becomes politicalised either in conservative segregationist calls for ‘separate but equal’, or radical misinterpretations of our multicultural reality which call for ‘equal but separate’ politics of identity as difference. Normative conclusions supporting collective ethnic rights make constitutional democracy and human rights the tools of the ethical and political collective self-understanding. They effectively demand that the realm of law should codify the cohabitation of communities and become ‘an aggregate of community-oriented privileges’ [3, p. 199].
Ethnic communitarianism is an ideological reinterpretation of culture which primarily answers the call for collective recognition of different ethnicities pursuing political empowerment. Communitarian ethno-ideologies and policies promise a return to a politics of lived cultural experience and institutions based on shared traditions and beliefs. However, communitarian ‘retrospective utopias’ [47, p. 34] assume authoritarian power which could guarantee the political exclusion of ‘cultural foreigners.’ Communitarianism exploits cultures for political mobilisation and seeks to control a community through political manipulation of cultural symbols.
Similarly, Manuel Castells’ vision of ethnic resistance identities, which oppose various forms of domination in the globalised network society and transform themselves to project identities, thus transforming the overall social structure and contributing to civil society, has a number of flaws. The new primacy of identity politics [7, p. 12] draws on criticisms of the power shift in global society and the destructive effects of its economy and politics on the structures of civil society. According to Castells, the disintegration of civil society makes ethnicity the major source of communal resistance and an emancipating force for the discriminated against and the excluded. Ethnic and cultural identities are perceived as forces revitalizing civil society virtues in the global age. Drawing on the power logic and the struggle for social justice, Castells believes that, despite risks of political violence, such identity politics on the part of dispossessed and marginalized communities would ultimately become emancipatory and result in the necessary political change of global society.
Ethnicity is romanticized as a force of political resistance against the disintegrative forces of global economics and international order. A hypermodern analysis of the information age paradoxically builds on the pre-modern ideal of a community uncorrupted by power and able to channel its potential for disintegrative political violence against the dark forces of modern economics, politics and powerful technologies. Castells’ theory thus represents an eclectic mixture of conservative romanticism and a radical resistance agenda in which emancipation politics is exclusively based on the notion of communal identities without primarily civil self-reflection.
Democratic Politics, Identity, and Cultural Heterogeneity
According to persisting philosophical and political romantism, the nation’s identity, constituted by its historically unique spirit, should stabilise the modern legal system. Identity is to operate as a totalising normative pattern for the laws and the source of their stability. At the same time, communitarian ideologies which have appeared in various politics of identity use the legal system as a tool of social stabilisation and political manipulation of specific identities. The legal system is then expected both to respect cultural identity and codify it.
The communitarian claim that human existence is constituted by culture [43, p. 230] has serious political implications because there is no anthropologically and politically pure cultural domain. Collective identities are, rather, complex power relations constructed by those who control the collectivity and further strengthen their position by codifying the binding version of the collectivity’s identity . Identity politics is recognition politics which makes culture and history part of political hegemony [27, 45].
Despite the political risks, it is impossible to eliminate the pre-political context of collective identity entirely from legislation or constitution-making. It is therefore important to examine how pre-political ethnic identities are manipulated at the level of constitutional rights legislation, and in the process of constituting the sovereign nation by an act of legal constitution-making. As Jürgen Habermas remarks, the tension between pre-political cultural bonds and civil loyalty to the democratic state ‘can be resolved on the condition that the constitutional principles of human rights and democracy give priority to a cosmopolitan understanding of the nation as a nation of citizens over an ethnocentric interpretation of the nation as a prepolitical entity’ [17, p. 131]. According to this view, the civil bonds facilitated by the liberal democratic rule of law are necessary to sustain a democratic polity and therefore have to be nurtured as protection against various forms of ethnic and cultural exclusion and chauvinism.
The first purpose of constitution-making and legislation, namely, the establishment of the liberal democratic rule of law enforcing generally applicable civil rights and liberties, has a strong symbolic effect on political society. It inspires a special form of political identification which stretches beyond the internal communication of law and politics and constitutes a specific system of attachment and solidarity. Apart from obedience to the laws, citizens are expected to emerge as a ‘we-entity’—a polity sharing the common system of political virtues and bonds usually and imprecisely described as civic culture or political culture which stretches beyond the framework of the legal and political system .
Instead of pre-political bonds and feeling of collective belonging, the concept of democratic political culture signifies the indirect impact of politics on the system of culture and self-identification of individuals as citizens. The political concept of demos transgresses the constitutional context, ‘serves as the source of identity, morals, emotions, and collective behaviours,’ and thus becomes ‘a socially specific habitus’ [39, p. 85]. Political culture arises from the laws and politics which makes citizens share a common political identity, mutual responsibility, and the duty of civil participation [54, p. 155]. The general principle of constituting the civil political demos therefore takes precedence over all pre-political cultural and historical entitlements of the ethnos living in the constitutional democratic state, based on the rule of law. The general spirit of the laws is determined by the virtues of civility and democratic political culture. This culture depends on political trust and therefore invokes constitutional patriotism as a way for citizens to identify with their democratic polity.
Liberal thinkers, including a number of liberal communitarians, acknowledge that ethnocentrism has to be rejected and general human rights affirmed. According to them, the political integrity of democratic societies needs a coherent conception of institutional morality which belongs to the larger whole of liberal community [40, p. 323] and focuses on civil society [13, p. 80]. According to these moderate communitarian voices, political community needs to be established on the basis of civil virtues in order to be inclusive and democratic [42, pp. 246–260]. The culture of liberty in a democratic community takes precedence over the ethnocentric cultures of various communities.
The civil tradition has priority over ethnic traditions. The people’s constitutional self-identification is transformed by the legal system to general democratic procedures. Creating a constitutional identity of the sovereign people as demos and its proceduralisation effectively dismantles totalitarian claims of culture. Instead of enforcing the demos–ethnos distinctions and guarding its culture, the political system of modern complex democracies operates as a generalised and socially inclusive system of power circulation expressed in the ‘government/opposition’ code. Any preliminary cultural definition of who can qualify as government and opposition is eliminated by the general character of the political code.
The right to culture advocated by ethno-communitarians assumes that cultures are clearly detectable and legally definable essences which would predetermine political identity and rule out the competition between different cultural self-reflections. The right to culture would therefore necessarily result in the institutionalisation of cultural hegemony, marginalisation of some cultures, and even legal discrimination by one culture against another (for instance, territorially established traditional cultures against the immigrant ones).
share faulty epistemic premises: (1) that cultures are clearly delineable wholes; (2) that cultures are congruent with population groups and that a noncontroversial description of the culture of a human group is possible; and (3) that even if cultures and groups do not stand in one-to-one correspondence, even if there is more than one culture within a human group and more than one group that may possess the same cultural traits, this poses no important problems for politics or policy [5, p. 4].
The hegemonic concept of identity and identity politics would draw ‘the state into culture wars’ [5, p. 1]. Ethnic identity politics feeds on epistemologically flawed cultural essentialism and normativism suppressing those elements within a culture which confront its existing dominant codes, traditions, and practices. Criticising the formalistic rule of law tradition, the holistic concept of political identity draws on the perception of political society as culturally united community [44, pp. 159–168). Culture and its agents would consequently have to be purged of all foreign elements and cultural unity enforced against diversity. Translated into human rights discourse, ethno-nationalist fantasies and claims of ‘the right to cultural membership’ deny one of the basic rights—‘to say no to culture and its identity offers’ and to subvert the norms, patterns and ideals of one’s culture [5, p. 66].
Concluding Remarks: The ‘Noisy’ Spirits of the Laws and the Functional Differentiation of Modern Society
Culture is the permanent communication of the same with the other, and identity is its momentary and temporary outcome. It is only possible to communicate with other cultures if self-identity and knowledge of one’s own culture is being established against the diversity and differences of other cultures . Nevertheless, as Vincent Descombes remarked ‘[D]ifference is necessary in order for identity to preserve itself…’ [11, p. 38]. Unlike ethno-communitarian holistic claims of cultural homogeneity, modern culture is heterogeneous and constantly transforms when face to face with new experiences and their intellectual reflections.
Diversity is a basic element of the world and the world’s unity is constructed against the preliminary background of cultural and temporal horizons (Welsch 1990, pp. 768; 913). Diverse cultural and social processes form collective identities. Identity can hardly be presented as unique and primordial in its nature. The provisional character of modern cultural self-identification rules out the ultimate political enforcement and totalising legal ordering typical of nationalism which ‘pretends that culture is given to the individual, nay that it possesses him, in a kind of ideological coup de foudre.’ [15, p. 16].
Identity is primarily a cultural concept referring to individual and collective self-reflection and self-understanding that cannot be totalised by the legal, political and even moral communication. It is irreducible to the semantics of specific social systems of law and politics. Identity is a much more general and unstable concept than constitutionalism and the constitutional democratic state. Symbolically expressed identity gets evaluated by the moral system only after its differentiation to the transcendental ideals and immanent normative patterns. The moral system consequently cannot establish its ultimate meaning as a moral dogma of evaluative symbolism that could also be legally binding and politically enforceable.
Identity keeps its cultural meaning as a meaningful description of individual and collective lives. Although identity is permanently contested and its provisional character used in political communication [26, p. 101], the cultural symbolism of identity exceeds the logic of political conflicts and their ideological background. No pre-political culture can consequently become a codifying pattern of the sovereign people in the form of either demos, or ethnos.3
The difference between the spirit and the letter of the laws subsequently does not have the epistemological value of explaining the origins of law by external reference to transcendental reason, morality or cultural identity. It, rather, explains the functional differentiation of law, politics and morality. In this process, the spirit of the laws is communicated by different social systems and thus can be accessed only as different moral, legal, and political spirits of the laws. It is impossible to use the spirit of the laws as an external position from which one could satisfactorily prove or disprove legal propositions [29, p. 238]. The concept refers to the law as a cultural artefact and uses different modes of social communication to promote its cultural value (moral communication), integrative force (political communication), and specific virtues of normativity (legal communication).
The spirit of the laws creates important ‘information noise’ in the systems of morality, politics and law. The metaphor of the spirit of the laws shows that the legal system is a social construction which ‘carries symbols of everyday life’ [53, p. 9]. However, it also shows that the law’s symbolic construction does not have any hegemonic or foundationalist effects on its internal operations. The spirit of the laws has been internalised by legal positivist hermeneutics and methodology in various forms of value-based interpretation, socio-legal methods, legal principles and human rights. Furthermore, it can be used in the Montesquieu-like tradition as a set of external determinants of the laws and the extra-legal origins of the legal system. It also can be perceived as transcendental source of positive law, a view typical of philosophical speculation. However, neither the immanent critique of positive law, nor its transcendental speculative analysis can establish the ontologically supreme spirit of the legal system that could inform the politics of identity and secure the ethnic and cultural bonds of political society.
The spirit of the laws informed the romantic historical jurisprudence as well as many different forms of Hegelian political and moral philosophy in the nineteenth and twentieth centuries. It was considered a constitutive metaphor of the collective identity and values of society in its totality. It was expected to codify a cultural code for society and symbolize its unity. Nevertheless, the moral ascendancy of law cannot materialize in functionally differentiated modern societies and results in communication noises between the systems of law, politics and morality. The symbolic meaning of the spirit of the laws may not give law the moral authority over society and the system of positive laws cannot effectively promulgate and guard the moral and political reality of society. In fact, the moral symbolism of modern law expressed through the metaphor of the spirit of the laws is possible only at a higher level of functional differentiation of the legal system when moral and political ‘contaminations’ of the system of positive law [53, p. 7] do not represent any risk of creating new social hierarchies and hegemonies. It is an example of non-trivial interdependence between law and other social systems without the capacity of legal communication to secure an ultimate value consensus of modern society.
Modern society is a multitude of functionally differentiated social systems without a centre defining the supreme sources for the validity and enforcement of social norms. The cultural collective symbolism of the spirit of the laws becomes part of the system of positive law which internalizes the ideality of a political society and makes it part of its circular self-referential operations. Instead of constructing social and epistemological unity, the symbolic spirit of the laws thus reflects an internal paradox of the legal system’s operative autonomy and its parallel search for external foundations.
Herder, who is generally considered a father of the Volksgeist romantic ideology, paradoxically did not introduce the term and used its various expressions like Nationalgeist (in reference to von Moser), Genius des Volkes, and Geist des Volkes.
Apart from the historical jurisprudence, it profoundly influenced comparative and social psychology of the 19th century in the form of Völkerpsychologie .
It is important to distinguish pre-political culture from political culture. Political culture is only a fragment of common culture emerging as a consequence of democratisation (and therefore proceduralisation) of the political system of modern society and its adoption of the rule of law and constitutionalism.