Don’t Neglect the Language of Law!

The starting point for my book “A Global History of Ideas in the Language of Law” which will soon be published in the series “Global Perspectives on Legal History” is the (hopefully) uncontroversial finding that the history of ideas can be written as a history of languages. This approach has been elaborated by the so-called “Cambridge School of Intellectual History”, especially in their influential writings about the languages circulating in the discourses on the legitimacy of political orders. The protagonists of the school (Pocock, Skinner et al.) coined the term “languages of politics” for the languages thus analyzed, underlining the political nature of their genesis, use and reproduction.

Drawing on this approach, the languages commonly identified in contemporary discourses of global intellectual history are the languages of philosophy, history, political theory and – more recently – economics. A language sadly neglected in this context is the language of law. This negligence constitutes a remarkable contrast to the importance of the role of legal arguments in the 17th and 18th century. My central proposition is that the research on a global history of ideas would be greatly enriched if the language of law were to enter the stage. There are three main reasons for this assumption:

I. First, there are five functions central to the language of law as a language of politics. When considered with respect to these functions, the language of law proves to be of utmost relevance for a history of ideas:

(1) The language of law functions as a language of discussions on the legitimacy of political authority. The best proof for this claim is the career of the language of “global constitutionalism”.

(2) The language of law is a language of political change. The best-known example for this is the revolutionary legal language which evolved and was used during the course of the French Revolution. A second well-known example is the “takeover” (which was really a hijacking) of the interpretation of existing laws by the National Socialist Regime – prominently accompanied by the writings of Carl Schmitt.

(3) Not surprisingly, the language of law has always been the language of rights – either as a form of protection of legal privileges of the nobility or as a revolutionary language as in the case of the language of human rights. Quite remarkable in this context is the “hardening of political ideas” by translating them into the language of constitutional law. Typical examples are the periodically recurring calls for the integration of certain policies into constitutional texts, for example the protection of the environment or the concept of sustainability.

(4) Historically, a fourth function of the language of law has been the role it can assume as a language of justice. A famous illustration for this is the “Allegoria ed Effetti del Buono e del Cattivo Governo” (Allegory of Good and Bad Government), a series of frescoes by Ambrogio Lorenzetti for the Palazzo Pubblico in Siena from the 14th century (for further elaboration on this cf. my essay “Buon Governo e Giustizia. Gerechtigkeit – ein Qualitätsmerkmal des Regierens?“).

(5) Last but not least, the language of law is obviously an indispensable language for describing a new world order – Michael Zürn’s overview on the subject speaks volumes.

II. Secondly, one can observe that many of the “heroes” of (global) intellectual history – Hugo Grotius, Montesquieu, Immanuel Kant, G. W. F. Hegel, Max Weber, to name but a few – made significant legal arguments in most of their important writings. These works are still discussed today. Some of those heroes even published a “sociology of law” proper (Kant, Hegel, Weber). One can also observe that most of the concepts discussed in intellectual history once “started” as legal concepts or are political and legal concepts at the same time. The best-known examples for such “twin concepts” are the concepts of sovereignty and the idea of a constitution as the central framework for the political organization of a society.

III. Thirdly, it is difficult to imagine a comprehensive history of ideas without including the following four legal concepts:

(1) the “law of nature” as a language of politics and as part of the political philosophy in the era of absolutism;

(2) the history of “international law” as a history of justificatory narratives;

(3) the idea of “human rights” at the cross-roads of ethics, politics, and law; and

(4) the idea of the “rule of law”: law as the basis and limitation of power.

In sum: Let’s work together to broaden the scope and ambition of existing global histories of ideas, by including the language of law as a relevant language for a still unwritten comprehensive intellectual history.

Gunnar Folke Schuppert’ book A Global History of Ideas in the Language of Law will appear in early 2021.

Written by

Gunnar Folke Schuppert is Professor Emeritus at the WZB Center for Global Constitutionalism and Fellow at the Max Weber Centre for Advanced Cultural and Social Studies.
Website at the WZB

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