26 March 2015

The End of the State As We Know It?

I have been reading more articles, primarily from European writers, about the end of the the modern "state" where the state is understood as a totalizing political-legal regime with a monopoly on the legitimate use of coercive force. Such an understanding of the state is of relatively recent vintage (most would place it in the 17th century) but is increasingly bedeviled by, on the one hand, the internal opposition of those who find themselves increasingly on the "outs" when it comes to the legal side of life and, and the other hand, by external "co-option" by cosmopolitan concentrations of capital.

I've addressed the significance of the rise of the modern state at the margins of contract law in The Puritan Revolution and the Law of Contracts (download here). I've sort-of posted a few times about the post-modern state herehere, and here.

All of this is but an introduction to an article by Italian legal scholar Mariano Croce, Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes (download here). Croce begins by demonstrating my first point: "the rise of the secular state in the modern era as the successful attempt of the governments of central states to do away with the age-old condition of legal pluralism that had hallmarked the political life of medieval and early-modern Europe."

Croce goes on to describe the internal breakdown of the modern consensus of the state as a result of a resurgence in religious practices. In other words, contrary to the monolithic source of legal and practical social norms in the modern state, religious groups prescribe contrary standards of "lawful" behavior. His case in point is same-sex marriage.

Unlike most modern and post-modern writers, Croce does not inveigh against the growing seriousness of religious practices and the threat they present to the modern state. As he puts it,
Although the present, multicultural setting of Western countries cannot be said to be giving life to an actual neo-medieval condition of legal pluralism, the coexistence of multiple normative bodies, I will insist, is likely to prompt a far-reaching revision of the monist structure of liberal legal orders.
Croce indeed holds out hope that the result of a plurality of legal regimes would allow "individuals [to] act as direct and active producers of multiple legal options and models that best meet their needs and requirements."

Pluralist that I am (see my Principled Pluralism and Contract Remedies here), I must admit that I am not as sanguine about the future as Croce. First, the modern state is not about to retreat from its current monopoly on coercive power. I'm afraid it will take as violent an upheaval as the so-called Wars of Religion to get the state to release its firm grasp on power. And, until it does, most groups will fight for control of that power rather than seeking to establish a variety of plural regimes.

Second, Croce does not address the behind-the-scenes but nonetheless real power of multi-national business organizations. Such powerful non-state actors have grown accustomed to using the seemingly democratic levers of power to have their own ways in many states. To the extent that a plurality of legal systems would undercut the uniformity of commercial power, we can expect such actors to press for continuing state monopolies over those systems.

Nonetheless, I commend Croce's analysis to my readers' attention.


  1. Ruben: I think not. Or at least not necessarily. The common law grew up during a time of legal pluralism--manorial law, law merchant, and canon law, among others. I think Croce was observing a return to that state of affairs. The problem for the common law, however, is that the social, historical, and intellectual conditions in which it flourished have largely disappeared. "We are all positivists now," is, sadly, the reality of contemporary Western legal thought whether on the Left or the Right.