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The Research Project Europe 1815-1914

P.O. Box 24
Unioninkatu 40
FI-00014 University of Helsinki
Finland

erere-info[at]helsinki.fi

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Calendar

The programme is continuously updated. New events might be advertised with short notice. External participants are welcome but preferably on a regular basis. Since the number of seats is limited pre-registration with project coordinator Minna Vainio (erere-info[at]helsinki.fi) is requested.

March 2010
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9 March
14-16
Benno Teschke, University of Sussex, “Fatal Attraction – Re-reading the International Political and Legal Thought of Carl Schmitt”, Place: P545, Porthania

Benno Teschke (Univ. of Sussex) presented his working paper, "Fatal Attraction – Re-reading the International Political and Legal Thought of Carl Schmitt," the first of two March seminars on Carl Schmitt. Teschke took a very critical view of Schmitt's thought and legacy, questioning both the theoretical coherence and historical accuracy of Schmitt's perspective, as well as his recent appropriation as a radical or critical thinker whose ideas could be used to combat the ostensibly universalizing market liberalism exhibited most consistently by American policy – a development Teschke found particularly disturbing in its tendency to sanitize and depoliticize Schmitt himself. Teschke began by addressing Schmitt's attempt to forge a new historical-sociological method via the metacategory of the "nomos," (signaling the unity of law and space) and "concrete-order thinking." His criticism of the former was based on the claim that Schmitt's historical narrative is highly selective and idiosyncratic, and provides neither a persuasive account of modern state development, nor a satisfying version of the New World's appropriation by the Old; regarding the latter, Teschke argued that Schmitt offers in effect a "false concrete," premised on a confused and inaccurate interpretation of history that is inherently incapable of generating an alternative historical sociology, and through which one can detect Schmitt's political ascription of legitimacy to Nazi wars of conquest. In the ensuing discussion, Teschke made clear that merely reducing Schmitt to his context was not a sufficient critique; rather, context provided one path toward what he called "the rational core" of Schmitt's work, and helped clarify the argumentative stakes.

For better or for worse, Schmitt's work remains a locus of contemporary historical and theoretical reflection, and for this reason his work is of interest to the group. His polarizing effect on contemporary academic life is to some extent mirrored by the group, and so Teschke's presentation offered a good opportunity for us to do the difficult work of transforming intellectual allegiances into intellectual arguments, and to clarify the group's own historical-critical efforts in the process. The ensuing discussion engaged Schmitt's overarching leitmotifs (the nomos), his interpretation of history (his account of the Monroe Doctrine, his prioritization of the Peace of Utrecht and British naval conquest, as well as his neglect of the French Revolution), and his polemical conceptualizations (the agonistic friend-foe dichotomy, his "land and sea" framework). Concerns were raised about whether greater historical or empirical accuracy would be sufficient by way of response to Schmitt, given the evident existential appeal of his interpretive categories. Martti Koskenniemi emphasized the importance of reading Schmitt as a jurist whose project was a political theology: Schmitt's history was a sacred history, not one of causes and consequences, with jurisprudence being the articulation of political theology in law. This prompted a closer discussion of "political theology" itself, with regard to our ongoing and individual attempts to discern and negotiate key conceptual and historical leitmotifs in the nineteenth century. Discussion continued with Teschke after the seminar at the EReRe offices.

11 March
19-21 (Finnish Time), 12-14 (USA East)
Video seminar with Duncan Kennedy, Harvard University, Oppimiskeskus Aleksandria K132 (Basement level)

In a first (and succesful) attempt with video conferencing, the ERERE group held a lively conversation with Professor Duncan Kennedy on March 11, 2010. Kennedy, Carter Professor of General Jurisprudence at Harvard Law School, began by questioning the particular assumptions about law that historians often have. In his experience, historians have a conception of law as an instrument of political transformation, as coming from a school of thought (naturalism, positivism, liberalism, conservatism,etc) and as a different structure from political development. Kennedy also spoke about the invisible otherness of legal history vis a vis historians, political theorists, and political philosophers. The ERERE project historians agreed that Kennedy´s perception of how historians view law is prevalent but added that, in their own discipline, scholars also tend to essentialize ideas about what history is or should be, and to be limited by particular canons. Bo Stråth was quick to respond that the ERERE project distances itself from these limitations and seeks to be "interdisciplinary with a trans- or counterdisciplinary potential."

The conversation then went on with Kennedy´s outline of the main tenets of Critical Legal Studies (CLS) of which Kennedy is well known as a founder. Kennedy highlighted how the critical legal project, even if taken back to Marx or Weber, shows that political projects do not translate into concrete legal regimes. CLS is often simplified as pointing out that "law is just politics" but this idea still leaves a black box full of unexplained gaps. For CLS, law is a form of political practice but it has its own very powerful internal dimensions, where politics are incorporated at a deeper level into the very substance of legal work. Therefore, the idea of CLS is to study how a legal dimension gets translated to the ground. Kennedy pointed out that the problem with a simply instrumental view of the law is that it has no theory. CLS uses theoretical tools from other fields to figure out at a practical level how the political can be made real. But from a CLS point of view it is bizarre to simply use philosophical terms to identify someone, for example, as a positivist or naturalist, because it tells nothing about how their philosophy works on the ground. CLS has canibalized hermeneutical tools from many other fields to look at at the production of law at the ground level but not in the mode of political philosophy. Kennedy is aware that this experience is often invisible and undetermined, and therefore difficult to explain to someone without legal training what this means.

Another point brought up by Kennedy is the legal consciousness approach in his own work and how it is usefull in surpassing the limited concepts of "schools of thought" or "influence" to explain the production and reception of legal thought. Legal consciousness is a concept that Kennedy has worked on for more than thirty years, and which was first presented in "The Rise and Fall of Classical Legal Thought" (1975-2005) and has revived from a global perspective in his more recent "Three Globalizations of Law and Legal Thought" (2006). For Kennedy, a legal consciousness is "understood as a vocabulary of concepts and typical arguments, as a langue, or language´ which contain an infinity of laws or ´phrases´ that can be formulated in the conceptual vocabulary of that consciousness as ´parole, or speech.´ To identify one writer as participating of a consciousness does not mean that others of the same consciousness (langue) will utter identical forms of speech (parole) nonetheless, they participate by combining and recombining the general policy ´argument or sound bites´ of that language.

Therefore, instead of looking at "schools", Kennedy looks at the sources of the structures of legal consciousness in his work on the nineteenth century. In the "Three Globalizations" (of Classical Legal Thought (CLT), The Social, and Unitedstatesean Legal Thought) what gets globalized is a legal consciousness, not a legal rule or doctrine. Legal consciousness is a conceptual scheme - a way of understanding law as organized. Classical Legal Thought (roughly from 1850 to 1900) was the form of legal consciousness characteristic of the nineteenth century. Kennedy highlighted how Germans were central to CLT and how Friederich Karl Von Savigny was the hero figure. Savigny´s idea of legal science as a system and of a universalizing legal formalist will theory, with the idea that particular regimes of state law reflect diverse underlying non legal societal normative orders, spread across and around the world. The structural characteristics of CLT that facilitated its reception were the distinction between subjects of municipal law and international law and the distinction between public law and private law. This globalization moment was important because of its powerful universal commitment to rule of law. Kennedy remarked further on how modern European identity got a push from legal consciouseness and how the concept of "social legal consciousness" is important for understanding European politics today through the rhetorics of efficiency and social solidarity, even though these may play out to the left or the right of the political spectrum.

The session concluded with Kennedy´s answers to questions on what type of consciousness existed before 1850, how consciousness transfers or overlaps from one period to another, and the political possibilities of historical understandings of law from a CLS point of view. On this last question, Kennedy stated that a radical de-reifying program allows for the possibility of new ideas and empowers intellectual elites to resist teleogical thinking, opening ways for Nietzschean forms of political action.

For complete access to Duncan Kennedy´s published work see his webpage

http://duncankennedy.net/bibliography/chrono.html

16 March
14-16
Volker Sellin, Universität Heidelberg, “Monarchical Legitimacy” , Place: P444, Porthania

Volker Sellin (Universität Heidelberg) sparked an appreciative discussion on the transformation of European monarchical government in the nineteenth century, presenting research from his current project, provisionally entitled, 'In Search of Legitimacy: European Monarchy in the Age of Revolution'. Between 1688 and 1918, he argued, the legitimization of monarchy by arguments from divine right became highly attenuated, and had to be supplemented with new strategies of legitimation. Sellin identified ten such strategies: dynastic right, enlightened rule, charismatic rule, the granting of constitutions, the alliance of throne and altar, nationalism, plebiscitary rule, success in war, the domestication of monarchy, and the embrace of social policies. Of these ten, he opted to discuss the relationship between monarchy and nationalism, a subject of clear import for any reconsideration of the nineteenth century.

Sellin distinguished three ways of framing this relationship. In the first instance, the nation could be said to be the creator of the monarchy. The paradigmatic case of this was the French constitutional monarchy of 1791, in which the sovereign nation authorized the (re-)institution of monarchy, not on the basis of divine or dynastic right, but as the executive agency of the nation itself. This model Sellin took to be a more or less ephemeral phenomenon. It was, he argued, easier for monarchs to make nations than for nations to make monarchs. This was the case with the second type of relationship he identified, in which nationhood was the creation of policy. Napoleon was the progenitor of this way of proceeding – the constitution of the Kingdom of Westphalia was cited in evidence. After Napoleon's fall, however, the utility of making 'nations' out of states was swiftly grasped by other rulers, such as those of Bavaria, Baden and Württemberg. Such 'official nationalisms' became a common aspiration for European monarchs, even putting down roots in autocratic Russia. A further and final type, Sellin suggested, would be the creation of nationalisms through the combined efforts of crown and nation. Here it was the experiences of German and Italian unification that offered the prime examples.

For Sellin, this typology raised the question of the impact of nationalism on monarchical legitimacy. On the one hand, it could provide a useful prop to regimes historically uneasy with legitimation through express popular consent. On the other hand, it begged the question whether, in awakening national consciousness, monarchs did not invite claims for popular representation that were only contingently compatible with monarchy as an institution. As monarchs came to identify their interests with those of the nation, they laid the ground for the reduction of their legitimacy to a matter of functionality. Legitimation came to rest upon success in maintaining collective security and social harmony. Failure could spell the end for monarchy, as the experience of Germany, Austria-Hungary and Russia in 1917-18 attests.

17 March
14-16
Carl Schmitt, The Nomos of  the Earth, introduced by Martti Koskenniemi and Mika Ojakangas. Reading seminar

This session sought to provide a space for a more sustained engagement, assessment and discussion of the work of Carl Scmitt in relation to individual projects and, in general, to our collective concerns with teleology and critical thinking. The session started with an overview of the Schmitt´s oeuvre, from his 1912 dissertation Law and Judgement A Study of Problems of Legal Practice to his later and better known works. The overwiew served to highlight the continuity of some important concepts and to situate Schmitt in the cultural, legal and political context of post World War I and the emergence of Nazism.

During his introductory remarks Martti Koskenniemi emphasized the importance of reading Schmitt as a jurist and suggested the inadequacy of labels –nazist, fascist, radical, etc.—as a way of effectively caracterizing his thought. Due to Schmitt´s skillful dissection of liberalism and his ability to formulate sharp analytical disyuntives pinning Schmitt down is not easy as his work is far more complex. Mika Ojakangas elaborated the methodological implications of Schmitt's concept of the political, especially as it shed light on the State as a contingent historical form of living together, a particular form of expression of the political but by no means an exhaustive one. He then directed our attention to Schmitt's turn from decisionism to concrete order thinking after 1930s. Ojakangas then focused on the book's five introductory corollaries and the three concluding remarks and introduced the philosophy of the Nomos, Schmitt´s mythological approach, his fixation on primeval origins and his ur-thinking.

During the discussion the question of how to read Schmitts in view of his open involvement with and theorization of Nazi ideology emerged once again. It was agreed that this was a decisive but not exhaustive point, and should not deter from asking why and how his thought –as thought-- is pertinent today.

One sure way in which Schmitt´sthought remains contemporary is through his scathing critique of relativism and nihilism. Indeed, his view of sovereignty as that which precedes and is not constituted by law, and is best summarized as the power to decide the instauration of state of exception, constitutes a search for trascendental grounds. Remarkably, it is a problem and a language shared by thinkers on both sides of the political spectrum. Such commonality indicates that the depth of the question is far greater and significant for contemporary political theory than previously imagined.

A second and slighlty less explored line of inquiry in Schmitt addresses land expropriation as the founding act for the Nomos. This central and constitutive moment of modernity reminds us that the origins, order and coherence of the Jus Publicum Europaeum is always already implicated in colonialism. Thus, political and juridical institutions, the economic and social order, artistic and knowledge production are not merely circumstantially or obliquely related to the colonial experience. What we call modernity should also be understood as another name for coloniality.

A critical and political intuition emerged at the end of the session: maybe Schmitt is not such a peripherial figure to contemporary theory and politics; maybe he is precisely what embodies the center. If thus, a critical engagement with Schmitt becomes unavoidable.

18 March
14-16
Thomas Hopkins work in progress presentation

Tom Hopkins presentation's entitled "The Decomposition of Industrialism: Intellectual Origins of the Social Question in France, c. 1800-1850" was the last of the work in progress series.

He focused his talk primarily on the need to analyse the various debates about the social question as emerging in France during this period. Of particular interest to him was the way in which the intellectualisation of this question emerged and how that can be linked to social theory.

Hopkins tied the question of social with a string of concepts, such as socialism, civilisation and industrialisme, all of which have particular meanings as brought up by influential French and British theorists in their debates of the eighteenth century and nineteenth century on dealing with the issue of utility. What these concepts seem to have in common, however, was that each can be situated within the long-running debates on the mind-body problem. This was very much evident in marquis de Mirabeau's definition of civilisation as a combination of material welfare and moral conduct (religion).

In the last decade of the eighteenth and the first decades of the nineteenth century, these debates were taken by the French ideologues, through the doctrine of industrialisme in response to the language of natural jurisprudence and Robert Malthus' reconfirmation of the morality (religion) in the duality. They sought to strip off the religious element from morality, while advocating intellectual and moral progress, which in a strong 'materialistic' framework, as Hopkins put it, went hand in hand with material accumulation. To him, concentring on the debates of idéologues and notion of idéologie was crucial in unpacking the meanings of theory, industry and civilisation.

Then, the discussion opened up with questions about the need to contextualise these concepts and to link the French debates with the notions of social sciences and scientific socialism. Importantly also, it was suggested to confront these debates with Karl Marx's the Communist Manifesto, as a way of problematising the latter. The discussion was concluded with a general assessment of the standing of each individual project following the finalisation of the work in progress series.

23 March
14-16
Martin Louglin, London School of Economics, “Constitutions as Instruments for Restoration and for Reform/Revolution” , Place: P545, Porthania

During his visit professor Martin Loughlin spoke about British constitutional history and development. For Loughlin modern constitutional forms have evolved over 1000 years of struggles between emperors, kings and princes, and led to the creation of the contemporary state formation. Loughlin claims there are four important moments in the development of contemporary democratic constitutionalism. The first, assumption is that states are constructed from above. For Loughlin late medieval monarchies generally sought to centralize control and create a powerful administrative apparatus. Secondly, such push for centralization must not be confused with the exercise of personal power. The King was above all an office and it took an institutional form. A third feature follows from this recognition. It is the acknowledgement that government is quite a complex undertaking. Even absolute monarchy took a composite form and gave way to the differentiation of institutions. The fourth and final feature in the development of modern European constitutional forms is the acknowledgement that the "people" is the authorizing agent, characteristic of modern constitutional democratic forms.

Loughlin then argued that the British constitution, invariably regarded today as a deviation or aberration of the continental and more generalized constitutional forms, actually occupied a central part in the European history of state formation. In fact, for Loughlin the English system was at the vanguard during the first three stages of constitution formation. Furthermore, it is possible to understand the British 19th century as a result of such precocious history. The British did not have suffered a social and political revolution in the late 18th century because they had already had it during the Glorious Revolution, when social conditions were not ripe for the modern State to be formed.

Loughlin made two additional final points. As a consequence of such early history there has been in Great Britain a suppression of the question of the constituent power. Who is the "We" (as in "We the People") in the case of the UK is not clear at all, in large measure because of the nature of British parliamentary sovereignty. That suppression is particularly evident during the 19th century in relation to other nations within the British isles (Ireland, Scotland and Wales) and during the 20th century as decolonization got underway. Secondly, for Loughlin there is a tension between the "romanesque" legal concept of sovereignty and a series of "gothic" practices that characterizes British constitution. This tension is most famously characterized when 19th century constitutionalist scholar A.V. Dicey enunciated the foundational legal principles of the British Constitution as being simultaneously parliamentary sovereignty --as its foundational legal principle— and the central importance of the rule of law. These two logically and conceptually contradictory elements are rendered harmonious through the operation of certain precepts of political morality that Dicey called constitutional conventions.