After 1989 and Beyond: Three Theses

Hauke Brunkhorst, University of Flensburg

(1) The transformations of 1989 – symbolized by the fall of the Berlin Wall – were not primarily European but global events. They included not only the end of the Eastern European communist empire but also significant unrest in China, the end of the Apartheid regime of South Africa, the collapse of military dictatorships across Latin America and significant changes in other parts of the world, including the earlier and originally constitutional revolution against the Shah-regime of Persia. The transformations of 1989 were part of and in some respects the final step in the great transformation of the whole world society that goes back to the revolutionary reforms of national and international law after World War II. Between 1941 (Atlantic Charter) and 1951 (Foundation of the European Communities) all institutional tracks were laid for a new construction of the political, legal and economic order of the world, nationally and internationally. Even the basic plan of international welfarism preceded the constitutional declarations and constructions of national social welfare regimes. A new international law was introduced, and everywhere the national legal order underwent deep changes (or was newly founded, as in the former colonies of the West and of the East):

  • The system of civic rights changed from bourgeois centering of equality rights around property into a comprehensive system of anti-discrimination norms (see F. D. Roosevelt’s ‘Second Bill of Rights’ from January 1944: even if in the beginning ‘affirmative action was white,’ it soon became, black, gay etc.), and Eastern Europe now is confronted with its effects, and not only on Christopher Street Day.
  • Legal programs changed from conditional to final programming, including administrative planning law (tried and tested during the World Wars) and a new and dense system of regulative family, socialization, and conduct law, nicely called by Niklas Luhmann Personenänderungsrecht, or what Foucault has called bio-power (which in the former Soviet Empire was already introduced, and in a much more authoritarian version).
  • Everywhere, the national legal order came under pressure from internationally introduced human rights norms and democratic claims for self-determination (since the General Declaration 1948 and the European Convention of Human Rights 1950), which were step by step implemented since the Human Rights Treaties of the 1960s. The demise of the Soviet Empire since the 1970s would not have been possible without the internalization of the pressure of human rights movements and politics that finally led to the OSCE-process. Although often overlooked, the (also already global) rights-movements of the 1960s and 1970s preceded the global human and civic rights movement of the 1980s.
  • The national legitimization principle of the “exclusion of inequalities” (Rudolf Stichweh) was universalized, and constitutes now an emerging world citizenship, including an individualization of international law that was claimed by Hans Kelsen and Georges Scelle already in the 1920s, and which turned out to be deeply ambivalent (see the listing of terrorists by the United Nations Security Council). This principle,
  • Together with the revolutionary step from the old international law of coexistence to the new international law of cooperation (Art 1 II and III UN – this was the most revolutionary invention of the UN-system), and
  • The foundation of a new and lasting network of inter- trans- and supranational organizations that became ever denser (and at once ever more complex and fragmented) enabled, first, the decolonization of the world (since the 1950s) and then the desovietization of the world (since the 1980s).  The consequence was an internationally organized replacement of all modern Empires by a global system of nation states and international organizations. The last square meter of the global continents (except the arctic region) now has become state territory, and failed states and state-building immediately went to the top of the agenda of the international community. One of the most amazing effects of 1989 is that nobody can any longer seal themselves completely off from the access of the international community to the internal affairs of a world region, including Iran, Russia and China. Nobody any longer can insist (as foreign minister Gromyko did so brilliantly and brutally) on the old international law of “peaceful coexistence” and “non-interference.” Furthermore, the fall of the Wall led
  • To a material globalization of the already formally existing global public sphere that has crossed all regional and statist borders, again including Iran and China, and
  • The Western centered global civil society now has been de-centered completely and spread its system of free associations (Tocqueville), now called NGOs and INGOs, all over the entire world. Last but not least,
  • The fall of the Wall has enabled the unrestricted globalization of all functionally differentiated social systems, in particular of the market economy and its organizations (global capitalism), together with all major spheres of value (Max Weber), and in particular of religious world views and organizations.

(2)  The highly dramatic effect of globalization should not be underestimated, particularly with respect to the functional system of modern capitalism and the value sphere of religious self-organization.

  • The globalization of capitalism immediately led to a first “great transformation” (Polanyi) of state-embedded markets of regional late capitalism into market-embedded states of global Turbo-capitalism. The negative effect of economic globalization on our rights is that the freedom of markets explodes globally and again (as with the earlier and primarily European great transformation described by Polanyi and Marx) at the cost of equal freedom from the negative externalities of disembedded markets, and again with the highly increased risk of global economic crisis and its escalation of inequality (as we are still experiencing). Surprisingly enough, but in accordance with some theses of Max Weber, what is true for capitalism also is true for the religious sphere of values.
  • The globalization of religion has transformed state-embedded religions into religion-embedded states, which is the second great transformation we have to face. Since the 1970s, religious communities have crossed borders and have been able to escape from state control, with a final push after 1989. Again the negative effect of this on our rights is that the freedom of religions explodes whereas the freedom from religion comes under pressure. As in the age of the Reformation, the uncontrollable spread of religious fundamentalism expresses a deep crisis of motivation (or, as it is mostly called, “identity,” collective and individual) and has led to a now global desocialization of the individual human being. Whether the newly unleashed fundamentalist energy, concentrated again in de-centered sect- and network religions (Islam, Protestantism) and the Catholic Church (with its 1000 year old experience in cosmopolitan state-building), can again be transformed into a new kind of individualized religious work ethic (Weber), and a re-institutionalization of individualism (Parsons), and an embodiment of a newly reconstructed legal system (Berman), is completely open but seems not very probable now.

(3) In particular in Europe (and that may matter), the new world order has been described as a process of emerging juridification and constitutionalization of world society, and I guess rightly so. Juridification and constitutionalization of world society, still based on the administrative power of the system of states, is far from getting back control over global capitalism and global religions. Moreover, the process of constitutionalization is not at all democratic. This is at best a European illusion, and in particular an illusion of German lawyers and political theorists who identify democracy with the so called Rechtsstaat that binds the law to the state and not to the people. And to be sure, illusions matter.

There is only one way to democracy through law (that is the name and device of the Venice Commission of the Council of Europe: European Commission for Democracy through Law) that is not an illusion, but hard to find is the way that leads to law through democracy. Juridification and constitutionalization therefore are not the solution to the problem of democratization, but part of the problem. The very point here is that juridification and constitutionalization, on the one hand, are evolutionary advances or (as Parsons would say) evolutionary universals that can be renounced only at the price of nationalist and fascist regression. But, on the other hand, the societal function of all law, including constitutional law, is the stabilization of expectations, and that includes the expectations internal to an existing structure of social and political power, of oppression, exploitation and class rule. The deep division of the contemporary world into two classes of people – that is, into people with good passports and people with bad passports – is mirrored by the constitutional structure of world society. All post-national constitutional regimes are characterized by a disproportion between legal declarations and claims of egalitarian rights and democracy and its legal implementation by the international constitutional law of checks and balances (or procedural law, in German in an etatistic variation: Staatsorganisationsrecht).

This must not be confused with a nearly meaningless contradiction between pure normative ideals and dirty facts because it is already a contradiction within the dirty facts, within the always impure facticity of existing world law. Therefore the contradiction internal to world law can be used from both sides, from the point of view of the still dominant powers, and in particular has been used by the executive powers of the states who have learned to “act in concert” (Arendt) and to use their loosely coupled and mostly informal organizations (e. g., Basel Bank Committee, European Council, Bologna-Process, G8 and G20, but maybe in future also G2: USA-China) to create a new kind of soft law regime that has directly binding effects and is implemented by submissive state powers, and bypassing parliamentary control and judicial review. This already has led to a third great transformation of state-embedded power into (soft) power embedded states. The always more flexible second branch of power vis-à-vis the first and third one (again as in the times of constitutional “absolutism”) jeopardizes the achievements of the modern constitutional state. The effect of this is an accelerating process of a global original accumulation of power beyond national and representative government. Instead of global democratic government, we now are approaching some kind of directorial global Bonapartist governance: that is, soft Bonapartist governance for us in the North West, and hard Bonapartist governance for them in the South East, the failed and outlaw states and regions of the globe.

Yet, existing world law can also be used from the other side, from the dominated, marginalized, manipulated or repressed public power of the people: it can be used as a medium of emancipation and for the building of “counter-hegemonic power” (Sonja Buckel). Because world law despite all its faults still is “law, and not philanthropy” (Kant), it can “strike back” (Friedrich Muller), even if it is far from sure that global constitutionalism is already in a shape to enable the legal fight for law within the law. But this is the only hope left in a time of global crisis and no social movement in sight that could take the opportunity of the crisis and change the world as the last great social movement of world history could do and did: the workers movement that withered away at the threshold of the 21st century and was replaced by a Multitude which has no longer any meaning for the reproduction of modern global capitalism, and no chance to establish a global emancipation movement.

Social Science Research Council - One Pierrepont Plaza, 15th Floor | Brooklyn, NY 11201 USA | P: 212.377.2700 | F: 212.377.2727 | E: