Philosophy, Public Policy, and Transnational Law Series Editor John Martin Gillroy, International Relations, Lehigh University, Bethlehem, PA, USA
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Philosophy, Public Policy, and Transnational Law
Series Editor
John Martin Gillroy, International Relations,
Lehigh University, Bethlehem, PA, USAPhilosophy, Public Policy, and Transnational Law seeks, uniquely, to publish new and innovative arguments about global law and policy that transcend realist/positivist assumptions and the conventions of current legal/policy discourse. This series means to encourage the application of systematic philosophical and theoretical arguments to practical policy and legal issues that combine domestic, comparative or international law. We will pursue scholarship that integrates the superstructure of the positive law with its philosophical and public policy substructure, and which, in this way, produces a more three dimensional understanding of transnational law and its evolution, meaning, imperatives and future. We seek dissertations, solo and edited volumes, as well as innovative reports that integrate new methods, epistemologies and interdisciplinary perspec- tives with practical issues on the full range of policy and legal dilemmas challenging transnational relations. More information about this series at http://www.palgrave.com/gp/series/14550
Sergio Dellavalle
Paradigms of Social
Order
From Holism to Pluralism and BeyondSergio Dellavalle University of Turin Turin, Italy Max Planck Institute for Comparative Public Law and International Law Heidelberg, Germany Philosophy, Public Policy, and Transnational Law ISBN 978-3-030-66178-6 ISBN 978-3-030-66179-3 (eBook) https://doi.org/10.1007/978-3-030-66179-3 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and informa- tion in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: © steve007/Moment/Getty Image This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Series Editor’s Preface
Of all of the ways in which philosophical argument can approach law
and public policy, the concept of the “paradigm” is among the most
advantageous. The first reason this is so comes from the fact that human
beings approach socio-political ideas and institutions from paradigms
of thought, formed from a variety of sources, and from conscious
and unconscious predispositions, presuppositions and principles/precepts.
The second reason paradigms are important is because change requires
them. If the institutions of transnational law and policy are judged
to be inadequate, it is only through an understanding and ability to
reconstruct or replace their essential paradigms of thought, from which
the institutions, laws and practices arise, that change will become truly
possible.
While a number of books in this series dance around the edges of
this fundamental reliance on paradigms, Sergio Dellavalle takes on this
approach directly and consciously. This is the core importance of his
argument, and why it fits this Series as an integral effort to both under-
stand the substructure of philosophical concepts that create public inter-
national law, and render from these, practical policy arguments to imple-
ment change. Dellavalle, with reasoned argument generated from a wealth
of both philosophical and legal knowledge, utilizes the idea of paradigms
to both trace the history of international legal order and also present
essential or core arguments for change in how we conceptualize and work
within a transnational legal system.
vvi SERIES EDITOR’S PREFACE
Specifically, by relating the theoretical development of distinct yet inter-
related “paradigms of order”, he takes us on a journey through the ever-
developing complexity of transnational law, with the end of delineating
the core problems that prevent us from handling those dilemmas that
transcend the authority of sovereign states. More than this, however,
Dellavalle also shows the reader how philosophical concepts and ideas can
be utilized as a sound basis for policy and law. This is an important and
timely book, especially given the pandemic currently underway, and is
applicable to transnational issues from climate change to peace and secu-
rity, suggesting innovative ways of conceptualizing international law to
better fit the policy requirements necessary for a truly twenty-first-century
definition of “order”.
As the Senior Editor of this Series, I am very please to welcome this
innovative, well-thought-out and truly original scholarship to Philosophy,
Public Policy, and Transnational Law. It not only takes the entire range
of issues this Series seeks to explore seriously, but it is testament to how
well they can be integrated to make the deepest philosophy relevant to
practice and the positive law richer and more conceptually vibrant.
John Martin Gillroy
Lehigh University, Bethlehem, USA
Faculty of Law, CDN, Queen’s University
Kingston, CanadaForeword
This timely book invites us to rethink the global order. The invitation is
extended during the times of the COVID-19 pandemic which engulfed
the globe in a matter of weeks if not days. The book reminds us that while
often we tend to regard political borders as preordained, perhaps even
natural, these are but human constructs, a result of path-dependent deci-
sions and actions. Sergio Dellavalle broadens our horizons and prods us to
weigh alternatives that for various reasons—economic, social, cultural or
moral—might be regarded as more practical, more moral or more sustain-
able. A similar prodding results from the new coronavirus which ignores
political boundaries, exposes the failure of the current political order to
act collectively and demonstrates that no one is safe until everybody is safe
and that global solidarity is key to individual survival.
The book turns deep philosophical inquiries into effective, even prac-
tical, deliberation over the alternative approaches to order or re-order
the world. The book addresses this question from a historical angle,
presenting the various paradigms of order in their chronological sequel
and addressing the theoretical development within each of them. But all
these various approaches are very much en vogue and compete against
each other. The earliest paradigm of order is still the most visible politi-
cally, as it is based on homogeneous communities, separated by an unruly
space subject only to the will of those entities. This vision of order assumes
that each of the communities is more valuable than even the sum of
the individuals that constitute the community. As Dellavalle convincingly
viiviii FOREWORD
argues, in an increasingly globalized world, the possibility of an alter-
native, global order of the whole humankind, one which recognizes a
well-ordered space for inter-community interaction, becomes more and
more appealing from both rational and sociological perspectives. This
order also assumes that the (cosmopolitan) community is endowed with
a higher value, as a whole, than the individuals of whom it is composed.
Yet a third paradigm of order seeks primacy. This is the order founded
on the centrality of the individuals and their priority over the whole of
the community. In this order, public power is only justified to preserve
individuals’ rights and interests. This has implications for the common
space that is governed by international law which is superior to domestic
law. An alternative global ordering envisions non-hierarchical and rather
horizontal private ordering of mainly economic private actors.
Which order will gain supremacy in the competition over the anti-
COVID treatment and vaccines in short supply? Will the understanding
that “as long as there is active SARS-CoV-2 transmission anywhere there
will be a risk of transmission everywhere, [and that hence] the equi-
table allocation of vaccines globally is in all countries’ enlightened self-
interest,”1 transform our understanding of which order is more just and
efficient? Will the ensuing recognition of “all human beings as having
equal moral status and their interests as deserving of equal moral consid-
eration” lead to global commitment to “[e]nsure equity in vaccine access
and benefit globally among people living in all countries, particularly
those living in low-and middle-income countries”?2 Most likely, the global
debate will continue, but Dellavalle’s masterful work will shine a light on
the various possible orders and promote deeper and well-informed delib-
erations. The critique of the lawless global space shared by homogeneous
communities has never been more convincing.
Winter 2020 Eyal Benvenisti
University of Cambridge
Cambridge, UK
Notes
1. WHO Strategic Advisory Group of Experts (SAGE) on Immunization:
Values Framework for the Allocation and Prioritization of COVID-19
Vaccination (2020).
2. Among the values articulated by SAGE.Acknowledgements
This book being the result of almost twenty years of research, it is easily
understandable that many are the friends and colleagues that gave signifi-
cant contributions to the development of the concepts that build its back-
bone, as well as of the specific analyses that make up its more detailed
contents. In the first place, I want to mention Armin von Bogdandy, the
Co-Director of the Max Planck Institute for Comparative Public Law and
International Law in Heidelberg, who coordinated—along with me—the
research project from which the first idea of a book on the “paradigms of
order” arose. Some of the interpretations, which are exposed in detail in
the present volume, emerged in their germinal form during our personal
dialogues as well as from the activities of the research project in Heidel-
berg, and found their first expression in co-authored publications. Among
the friends and colleagues who—during conferences or presentations, as
well as through interactions face-to-face or via mail—commented on some
aspects of the theory of the “paradigms of order” or on the analytic
approach in its entirety are: Eyal Benvenisti, who invited me to research
stays first at the University of Tel Aviv and then at the Lauterpacht
Centre for International Law of the University of Cambridge; Mario
Dogliani, Raffaele Caterina and Pier Paolo Portinaro from the Univer-
sity of Turin; Mortimer Sellers from the University of Baltimore School
of Law; Stefan Kadelbach, Gunther Teubner and Matthias Goldmann
from the Goethe-University in Frankfurt; Hannes Hansen-Magnusson
ixx ACKNOWLEDGEMENTS and Peter Sutch from the School of Law and Politics of Cardiff Univer- sity; Joseph H. H. Weiler from NYU; Jochen von Bernstorff from the University of Tübingen; Hanoch Dagan from Tel Aviv University; Anne Peters, the Co-Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg; Tomer Shadmy from the Hebrew University of Jerusalem; Alec Walen from Rutgers University; Arif Jamal from the National University of Singapore, Wallace Mlyniec from Georgetown University; Timothy Endicott from the University of Oxford; Ingo Venzke from the University of Amsterdam; Christopher McCrudden from Queen’s University Belfast; Massimo La Torre from the University of Catanzaro; Sabrina Zucca from the Helmut-Schmidt- Universität in Hamburg; Peter Hilpold from the University of Innsbruck; Aravind Ganesh from Oxford Brookes University; and Russell Miller from Washington & Lee University. A special thought goes to the memory of Norberto Bobbio, who taught me to love political philosophy and not to shy away from developing unusual views on topics and authors. Further- more, I am deeply grateful to John Martin Gillroy for always supporting my endeavour and for accepting this book in the series on Philosophy, Public Policy, and Transnational Law, and to Rebecca Roberts who, on behalf of Palgrave Macmillan, accompanied the different stages of my work with competence, sensibility and a lot of patience. Finally, I want to thank from the bottom of my heart my wife Eva Birkenstock and my daughters Ariane and Micol for always assisting and encouraging me; with the most heartfelt feelings of love and gratitude, this book is dedicated to them.
Contents
1 Social Order and Its Paradigms, Or: What Is
a Paradigm of Order? 1
1.1 The Concept of Order and the Well-Ordered Society 4
1.2 Theories and Paradigms 7
1.3 The Contents of the Paradigms of Order: Continuity
and Revolutions 13
1.4 The Structure of the Book 18
Notes 26
2 Holistic Particularism as the First Paradigm of Order,
Or: On the Order of Limited and Single Polities
and the Exclusion of Inter-state Order 29
2.1 The First Appearance of the Paradigm in Ancient
Greece 32
2.1.1 The Justification of Particularism in Thucydides 33
2.1.2 The Holistic Understanding of Society
in Ancient Political Philosophy 36
2.1.2.1 Plato: The Unconditional
Identification Between Citizens
and Polis 37
xixii CONTENTS
2.1.2.2 Aristotle: The Enlarged Family
as Social Basis of the Political
Community 39
2.2 The Revival of the Paradigm in Early Modern Ages 41
2.2.1 The Independence of Politics from Moral
and Religion in Machiavelli’s Realism 42
2.2.2 Bodin’s Concept of Sovereignty 44
2.2.3 The Decline of the Familistic Conception
of the Polity in Filmer’s Patriarcha 47
2.3 Adam Müller, Or: The Forging of the Nation
in Political Romanticism 49
2.4 The Struggle Between Friend and Enemy
as the Justification for the Striving for Hegemony
in Carl Schmitt 56
2.5 Three Variants of Holistic Particularism: Realism,
Nationalism, Hegemonism 60
2.6 The Re-foundation of Realism, or the Neo-Realism
of the Theory of International Relations 63
2.7 The Defence of the Nation in the Globalization Era 67
2.8 Contemporary Hegemonism and Beyond 72
2.8.1 The Theory of the Clash of Civilizations 72
2.8.2 Particularism Going Global
in the Neo-Conservative Approach 75
2.9 The Dialectics of Holistic Particularism 80
2.9.1 Rational Choice Theory 81
2.9.2 Communitarianism 83
Notes 86
3 Holistic Universalism as the Second Paradigm of Order 95
3.1 Universal Logos and World Nomos in the Stoic
Philosophy 99
3.2 The Christian-Catholic Conception of Universalism 104
3.2.1 The Idea of the City of God in Augustine 106
3.2.2 The Shaping of Political Universalism 110
3.2.2.1 Dante’s Apology of the Universal
Monarchy 110CONTENTS xiii
3.2.2.2 Francisco Suárez: The Attempt
to Reconcile Unity and Diversity
in the First Multilevel Conception
of Legal Order 116
3.2.3 On Discrimination, Persecution
and the Defence of the Status Quo, Or:
Can Universalism Be Based on Religion? 121
3.2.3.1 The Subjugation of the “Others” 121
3.2.3.2 A Backward-Oriented Conception
of Political Order 128
3.2.4 Bartolomé de Las Casas and the Way Beyond
Discrimination 130
3.2.5 The Inclusion of the “Other” in the Doctrine
of the Second Vatican Council 133
3.2.6 Faith and Logos in the Resumption of Catholic
Exceptionalism 137
3.2.7 Towards a “Global Ethic”? 141
3.2.8 The New Frontier of Catholic Theology 147
3.3 The Universalism of Natural Law 149
3.3.1 From the Law of God to the Law of Humanity:
On the Natural Law Theory from the Middle
Ages to the Reformation 150
3.3.2 Human Sociability and the Law of Nations 161
3.3.2.1 Johannes Althusius: Sociability
and Universal Federalism 162
3.3.2.2 Samuel Pufendorf: The Law
of Nations as Pure Natural Law 165
3.3.2.3 Christian Wolff: The Apotheosis
of the Civitas Maxima 168
3.3.3 The New Natural Law 172
3.3.4 The Constitutionalization of International Law 178
Notes 183
4 Universalistic Individualism as the Third Paradigm
of Order 199
4.1 The Individualistic Turn in the Western Theory
of Knowledge 208
4.2 Thomas Hobbes’s Contractualist Theory of State 212xiv CONTENTS
4.3 Individual Rights and State Power 217
4.3.1 John Locke’s Liberalism 218
4.3.2 Jean-Jacques Rousseau’s Democratic “Social
Contract” 220
4.4 The Universalistic Turn of Contractualism
and the Cosmopolitan Order in Immanuel Kant 223
4.5 Hans Kelsen and the Priority of International Law 241
4.6 The World Federal Republic as the Only Possibility
for Cosmopolitan Order 254
Notes 258
5 The Failed Paradigmatic Revolution: Particularistic
Individualism, or the Spontaneous Order
of Transnational Economic Actors, as a Possible
Fourth Paradigm of Order 269
5.1 Trade as Instrument of World Order 275
5.1.1 The Hellenist Doctrine of the Universal
Economy 276
5.1.2 The Lex Mercatoria of the Middle Ages 278
5.2 The Free Trade Theory 281
Notes 288
6 The Post-unitary Paradigms of Order I: Systems
Theory and the New Lex Mercatoria 291
6.1 Niklas Luhmann and the Plurality of Systemic
Rationalities 293
6.2 The Law of Globalization and Fragmentation 302
6.3 The Lex Mercatoria of Systems Theory 306
6.4 Supra-Systemic Rationality and the Inescapability
of the Public Realm 311
Notes 320
7 The Post-unitary Paradigms of Order II: From
Modernity to Post-modernity 327
7.1 The Philosophical Foundations of Post-modernism 332
7.1.1 Discovering Contextuality 334
7.1.2 Beyond Modern Subjectivism 338
7.2 Order as Oppression 342
7.2.1 Against Empire 343
7.2.2 The Third World Approach to International
Law 347CONTENTS xv
7.2.3 Feminist Theory 350
7.3 The Break of Unitary Order as a Chance
for Individual Self-realization 353
7.3.1 Legal Pluralism 353
7.3.2 Neo-Liberalism in the Theory of International
Relations and in International Law 355
7.3.3 Global Governance 360
7.3.4 Legal Formalism 363
7.4 The Decline of Normativity and Legitimacy 367
Notes 370
8 The Post-unitary Paradigms of Order III: The
Communicative Paradigm 377
8.1 From Subjectivity to Intersubjectivity—and Back? 381
8.1.1 The Struggle for Recognition and the Hypostasis
of Subjectivity in Georg Wilhelm Friedrich
Hegel 382
8.1.2 Karl Marx: From the Overcoming
of Alienation to the Necessary Dynamics
of Historical Evolution 389
8.2 The Intersubjectivity of Political Life 397
8.2.1 The Social and Democratic Dimension
of Individual Freedom in John Dewey’s
Pragmatism 397
8.2.2 Hannah Arendt’s Theory of Political Action 401
8.3 The Rationality of Communication 405
8.3.1 The Theory of Language 405
8.3.2 Gnoseology 410
8.3.3 The Communicative Use of Practical Reason 413
8.3.4 Systems and Lifeworld 417
8.3.5 Plurality and the Unity of Rationality 419
8.3.6 Communication in the Political and Legal
Dimension 424
8.4 The Conception of Order According
to the Communicative Paradigm 427xvi CONTENTS
8.5 The Perspective of a Cosmopolitan Order of Freedom
and Justice in Difficult Times 434
Notes 438
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