Chris Reed and Andrew Murray, Rethinking the Jurisprudence of Cyberspace, Cheltenham: Edward Elgar, 2018, 256 pp, hb £72.00.
| Date | 01 May 2020 |
| Author | Mireille Hildebrandt |
| Published date | 01 May 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12491 |
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REVIEWS
Hermann Heller and David Dyzenhaus,Sovereignty: A Contribution to the
Theory of Public and International Law, Belinda Cooper (trans), Oxford:
Oxford University Press, 2019, 189 pp incl. index, hb £70.00.
In 1997 David Dyzenhaus published Legality and Legitimacy (Oxford: OUP,
1997), a pathbreaking study of Weimar jur isprudence. Focusing on the work of
Hans Kelsen, Carl Schmitt and Hermann Heller, he claimed that Kelsen’s legal
positivism had offered no resources to resist the rise of Nazism, that Schmitt’s
‘communitarian existentialism’ effectively invited it and that, although no
legal theory could stand in the way of such a political movement, only Heller
‘has something substantive to offer to contemporary debates in legal and
political philosophy’. Dyzenhaus followed through on this claim by translating
a significant portion of Heller’s unfinished monograph on Staatslehre ((1996)
18 Cardozo Law Review 1139) and now has overseen the project of publishing
an English translation of Heller’s 1927 book on sovereignty. That Heller
continues to be read by English scholars today is entirely down to Dyzenhaus’
admirable determination.
Like much of Heller’s wr iting, Sovereignty is complex, dense and abstract and,
as Dyzenhaus notes, its ideas ‘are presented in great torrents of often highly
polemical argument’ (xii). While accepting that all accounts of sovereignty are
inherently political, Heller defends an absolutist concept of sovereignty. By this,
he means that ‘the essence of sovereigntycan be found in the possibility of finally
and effectively deciding any issue involving the unity of social interaction in the
territor y, even sometimes in opposition to positive law, and of imposing this
decision on everyone — not only members of the association, but absolutely
all residents of the territory’ (128). This, for Heller, is the key to understanding
the nature of law in modernity.
Opposing the prevailing influence in Weimar Germany of legal nor ma-
tivist theories that assume the autonomy of law, Sovereignty opens with the
claim that law can be properly understood only if ‘the meaning or nature of
that concrete political unity in multiplicity that we call the state’ is placed
at the centre of inquiry. Without this, we end up with a ‘theory of state
law that lacks both state and law’. Arguing that this is precisely what legal
normativism leads to, Heller contends that the normativist method ‘must be
destroyed at its roots, and state theory restored to its original literal sense as an
understanding of the essential juristic structure of the state and its institutions’
(60).
This is a powerful thesis. It is also one that David Dyzenhaus, a distinguished
contemporary exponent of legal normativism, explicitly rejects. I will consider
the significance of this later, but first should explain Heller’s argument.
Weimar jur isprudence is in crisis, he suggests, because sovereignty, the con-
cept on which modern public law builds its authority, has been diminished.
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This ‘degradation of the concept of sovereignty’ reaches its apogee in the work
of Hugo Krabbe and Hans Kelsen, the mainstays of an ‘old universalist rule-of-
law liberalism’. Promoting the idea of the sovereignty of law, these normativist
jurists claim that legal norms car ry an impersonal power. Krabbe maintains that
this is a victory of law ‘to the exclusion of any original power of authority’ (67)
and Kelsen is simply ‘the logical executor of the testament of the dominant
doctrine’ (68).
For Heller, normativism is a gross distortion. Sovereignty rests on the estab-
lishment of the power of ruling; there can be no system of rule without a ruler,
‘that is, without a decision-making unit that is always formed by individual
historical processes of will’ (83). A legal analysis must of course be able to dif-
ferentiate ‘the logical substance of law from all other social orders that support
it’ and in that sense law is to be understood as a system of norms. But ‘this
separation of partial content from a totality is conditioned by the ability to see
the separated part in the structure of the whole’, that is, as a product of will and
as a ‘social technology’ (86). Law cannot be understood without incorporating
both causal and normative perspectives. Yet this is being rejected in the legal
science that now prevails and reaches its logical conclusion in Kelsen’s account
of law purely as a system of norms.
In contrast to a medieval ‘rationalist natural law’ that finds its source of
truth in reason, modern positive law is seen to bind only as the authorita-
tive will of a concrete community. It is this rupture that leads modern jur ists
into the error of a one-sided bias of either idealism or empiricism. That is,
it leads either to a liberal legal-rationalist normativism that treats legal validity
as being independent of human will or to a legal positivism in which law
is conceived to be merely a product of the will. Both distort the concept
of sovereignty. For Heller, alongside positive law as author itative will there
exist certain ‘super-positive fundamental legal principles’ that shape legal de-
velopment. These are either constitutive principles of legal form which are
universally valid or are ethical principles which are expressions of culture.
These principles create only ethical obligations or, one might say, conditions of
‘political right’, but they remain of crucial importance to the understanding of
sovereignty.
Heller recognises that the difficulty facing jurists who build their systems
on the foundation of sovereignty is that that concept has now been deper-
sonalised. Given that modern positive law is an expression of will, some
‘sovereign person’ who is a real bearer of will and an ‘independent, law-
creating authority’ must be identified and yet ‘a person equipped with these
characteristics is unknown to our present theory of the state’ (96). Abstract
theories such as Hegel’s, in which the sovereign person is the state com-
prising objective necessity, are unable to do this work, but any attempt to
equate the state to its organs undermines the essential criter ion of unity. All
attempts at resolving the contradiction between nature and mind, will and
norm, end up being unsatisfactory and fictional sovereignty is unimaginable.
The only serious attempt to resolve the problem, Heller suggests, has been
carried out by Carl Schmitt, but his account simply replaces fiction with organ
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sovereignty(‘Whoever decides on the state of exception is sovereign’) and that is
unsustainable.
Having rejected Schmitt’s decisionism and Kelsen’s ‘rationalist rule of law
liberalism’, Heller concludes that the reason that ‘theory today is unable to
construct a state on either the monarchist or the democratic principle without
contradiction lies in its philosophical and epistemological attitude’ (109). After
some tortuous analysis, he suggests that the issue is to be comprehended as a
‘dialectically self-dividing unity and reality’ (112). Individual and community
must be seen as correlative concepts, by which he means that individual will
is necessarily shaped by social forces. Although an individual might struggle
against particular expressions of collective will, to the extent that he or she
accepts other such expressions (eg, in social welfare laws or the protection of
private property) then sovereign will is active in both the individual and the
community. But the type of collective unity forged, he emphasises, is not one
of logic: it is ‘teleological, historical, and sociological, based on the unity of
a judging sovereign will’ (118). This unity ‘is the expression of a high degree
of rational predictability of social relationships’ and only when ‘the ruling
will can regularly expect obedience from everyone . . . can we speak of the
legal system’s logical structure’ (118). ‘Without the presumption of an actually
present and represented “general will”,’ Heller maintains, ‘we achieve neither
a concept of law nor one of the state; but with it, the sought-after sovereign
person presents itself to us’ (123). In the end, then, his account derives a great
deal from Hegel.
Sovereignty concludes with a discussion of the status of international law. This
shows that state sovereignty is not an obstacle to international law but is an
essential requirement for it, not least because the validity of international law is
grounded in the common will of states. But Heller’s treatment of international
law is largely derived from the basic jurisprudential account he presents. That
his argument remains a matter of great controversy today is illustrated by some
of his concluding theorems:
(1) ‘All valid juristic concepts are silhouettes of real social processes. Without
constant reference to sociological-empirical fact, jurispr udence loses itself
in a broad heaven of concepts’ (124).
(2) ‘If one understands revolution as the process through which or iginally
unlawful acts of will grow into legal validity, then revolution is a phe-
nomenon that can be observed by jurists on pretty much a daily basis,
and within which the great problem of the legal force of defective acts
of state forms merely a special case’ (126).
(3) ‘The idea that the state, as a universal decision-making unit that does
not by any means derive its decisions solely from positive law, must be
sovereign cannot, of course, be understood by a legal rationalism that
promulgates legal sovereignty without positive law and a doctrine of the
state without the state’ (131).
(4) ‘This study results in the following thesis: sovereignty is the characteristic of
a universal territorial unit of decision-making and effect, by virtue of which, for
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(2020) 83(3) MLR 686–724
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