The Crisis of Corporatism and the Rise of International LawChris Thornhill, University of Manchester

IntroductionIn recent years, a number of legal theorists have expressed scepticism about the growing potency of international law.1 In particular, these theorists are critical of international human rights law, and they reserve greatest hostility for the judicial bodies responsible for enforcing it. Some of these theorists formulate their reservations about international law in neo-classical categories. From very different points across the political spectrum, they criticize the rise of international law and human rights conventions as marking unmandated intrusions on the classical sphere of sovereign state autonomy (Rabkin 2007: 7; Young 2003: 536; Grimm 1991: 31; Loughlin 2009). Other theorists, by contrast, opt for a more socio-economically refined perspective. They claim that the rise of international legal conventions reflects hegemonic interests in international society, and they argue that the growth of a court-led inter- or perhaps transnational legal/political system establishes favourable conditions for international investment, especially in historically insecure or unstable economic settings (Hirschl 2004; 2007; Schneiderman 2008: 4; Rodríguez-Garavito 2011: 165; Farber 2002: 96-98). These two bodies of analysis are very different. However, they have common preconditions, and in key respects they converge around conventional constructions of national sovereignty (see for example Henkin 1999: 4). First, both claim that there exists a deep antinomy between national and international law, and that the growing force of international law derives from acts and conventions that are external to national political systems. Second, both claim that rising transnational judicial power weakens the democratic power of national states, and that the rise of liberal international law violates principles of collective national self-legislation.

This chapter sets out a counter-thesis to such reflections. It argues that the rise of international law has typically been observed from a rather formalistic, legally pre-constructed standpoint. If viewed from a more sociological standpoint, the assumptions that underscore much discussion of inter- or transnational law become very precarious.2 Accordingly, this chapter proposes a sociological approach to the rise of international law, placing particular emphasis on the social origins of international law in national societies. In particular, it claims that the rise of inter- or transnational law can be explained through reference to crises of economic inclusion in domestic societies. International law, if observed sociologically, is shaped by very deep-lying socio-economic foundations. These are closely linked to the rise and collapse of corporatist models of political organization.

1 Research for this article was funded by the European Research Council (Advanced Grant 323656 – STC).2 Here a clarification of terms is required. The diffuse mediation of international law through national judiciaries often means that international law migrates very informally from jurisdiction to jurisdiction, and it is widely proportioned to objectives that have little to do with its original conception. Where this occurs, it seems more accurate to speak of the emergent global legal order as one based in transnational, rather than international, law. At least, the distinction between inter- and transnational law is now unclear. Throughout this Chapter, in situations where international law wanders more informally across jurisdictional boundaries, I call it transnational law.

1

At one level, it is clear that the apprehensions of much critical reflection on international law are accurate. The construction of statehood since 1945 is manifestly marked by the increasing impact of international human rights law on national states, and this generally produces a quite distinctive pattern of democracy. For example, democratic statehood is now defined by the fact that international organizations, especially those with judicial competence (i.e. the United Nations (UN), the World Trade Organization (WTO), the International Labour Organization (ILO)), can determine national law. In addition, democratic statehood is shaped by the rise of national courts, which borrow norms from the international domain to impose quite strict normative constraints on acts of democratically mandated legislators.3 For these reasons, democratic statehood is now commonly constructed as transnational judicial democracy.4 In this model of statehood, international human rights law generally forms the criterion of legitimacy for new laws – whether constitutional, primary or statutory, whether applied at national, or at supranational level.

Superficially, therefore, the view that contemporary society is defined by a new model of constitutional order is compelling. However, the presumption that this model of constitutional order weakens the effective or sovereign power of national states is more questionable. In fact, the literature endorsing such claims usually revolves around a rather naïve interpretation of modern state formation, and it omits to examine the ways in which the assimilation of international law is driven by structural pressures within national societies. On this last count, questions relating to corporatism, and to varying patterns of corporate experiment in different societies, have great explanatory importance. The rise of international law, and of international human rights law in particular, has widely coincided with a series of shifts in the prevalent model of corporatism in contemporary societies. Analysis of the changing role of corporatism in the evolution of modern states thus provides sociological insight into structural reasons why international law, imposed by international judicial bodies, has come to assume such pervasive transnational influence.

State formation and social inclusionTo develop these arguments, I wish to outline a sociological framework for analyzing the modern national state. The model of state formation proposed below is designed promote analysis of the rise of international law as a sociological phenomenon, impelled in part by structural causes within national states. These causes are inextricably linked to the history of corporatism.

Self-evidently, the state can be defined in many ways. Since Weber, however, it has become conventional in sociological research to interpret the state as a monopolistic repository of legal force in a given national 3 The term ‘judicial review revolution’ is used to describe recent changes in democratic design in Renoux (1994: 892). It is now commonly observed that pure parliamentary sovereignty has ‘faded away’ across the globe (Ginsburg 2003:3).4 Since the Factortame cases, the simple supremacy of the UK national parliament is clearly, in part, subordinate to European law (Bradley 2011: 56). Note also the rising force of the European Convention on Human Rights through the standing of the 1998 Human Rights Act as a ‘constitutional statute’ (Masterman 2005: 913). International norms are now in some ways recognized as a law of laws in UK jurisprudence. See Wilson v First County Trust (No 2) [2003].

2

society. This view is reflected, to some degree, in classical doctrines of international law, in which the existence of states assuming control of their own territorial societies is construed as the basic precondition for the authority of international law (see Kelsen 1944). In both the sociological and the international-legal perspective, therefore, statehood and territorial sovereignty are seen as closely interconnected. Contra such outlooks, however, I wish to propose a view of the state which rejects the idea that the state can be adequately examined as a statically sovereign personality, exercising simple control over a particular society and standing in fully evolved form prior to its legislative acts. Instead of this, the state can be more accurately observed as one part, necessarily variable and incomplete, of a legal/political system, by means of which society reacts to its internal demands for legal/political inclusion.

Every society presupposes that certain exchanges can be easily and evenly subject to political decisions and judicial rulings, and every society contains a legal/political system for generating and distributing law and power to react to these expectations. This system, clearly, can overlap with the condition of statehood. In fact, the administrative organs that we, by way of shorthand, comprehend simply as states, usually evolved as institutions that, in a given social constellation, were particularly effective in producing power and law for a particular society (or a given societal space). At a particular historical moment, these institutions proved an adequate response to demands for the inclusive transmission and circulation of law across this society. In many cases, therefore, states first emerged in social landscapes in which other modes of legal/political inclusion were becoming palpably ineffective and overstrained. Notably, state institutions first became pronounced features of society at a historical juncture where the societal demand for inclusion in power and law necessitated a system whose functions could reach across separate localities, and whose inclusionary penetration into society exceeded the capacities of persons, families and corporate groups. The first stirrings of modern statehood, accordingly, can be traced to the geographical widening and functional differentiation of societies in high medieval Europe. Then, the consolidation of institutions recognizable as those of modern states can be identified in the rapid eclipse of alternative sources of legal and political inclusion in the decades following the Reformation. Later, the emergence during the Enlightenment and its aftermath of states patterned on broadly constitutional models (i.e. with separated powers, guarantees of rights, partly autonomous legislative chambers) formed a response to the requirement for the accelerated production of law as the political domain separated itself finally from private/corporate bodies, and the political system fully asserted itself as the primary source of legal inclusion in society. Lastly, the great expansion of statehood that is constitutive for contemporary society can be ascribed to the dramatic explosion of inclusionary demands for law and legal regulation in the early twentieth century. Statehood, in short, has generally been formed through society’s responses to its own changing inclusionary claims and pressures. As such, statehood is part of society’s legal/political system, and it may often at least be partly homologous or congruent with the system of legal/political inclusion in society more generally. Despite this, however, if we observe the state as part of society’s reactions to its inclusionary demands, we can see that society has a legal or political system which is not necessarily identical with the state, and it can generate requirements

3

for legal and political inclusion for which statehood is relatively insignificant. Society’s legal/political system has some degree of independence from the state, and the state can only be seen as a contingent, and often incomplete, expression of society’s inclusionary structure. On this theory, the state is an adaptive apparatus in which modern society has been able specifically, and often very effectively, to register, to manifest its sensitivity for, and increasingly to adjust to, new pressures for legal and political inclusion. Yet, this same society also has a legal/political system (a mass of demands for legal/political inclusion) that is distinct from the state. Society’s reliance on the state for functions of legal and political inclusion is always rather functionally and historically contingent.

On this analysis, the modern state first developed as a response to two primary inclusionary pressures, and much of the familiar institutional architecture of modern states has been constructed in order to address and to resolve these problems.

First, the modern state developed as a response to pressures for peripheral inclusion. If we reconstruct the founding archaeology of most states, we find that their foundations rest on instruments devised to bring peripheral communities in society under the inclusionary force of the political system. In the core states of Europe, for example, the basic construction of the state, with clear variations across socio-cultural and geopolitical context, was defined by the need legally and politically to include peripheral communities and their elite members, and to counteract the centrifugal force emanating from them. Originally, such inclusion was normally performed through violent or depredatory patterns of subjection. However, as their reach into society extended and their body of functions grew, states came to rely on fiscal and military support across society as a whole, and they experienced requirements for more even and concerted governmental foundations. As a result of this, states began to negotiate with peripheral groups in more circumspect or formally accommodating fashion. Most European states organized the path from the feudal socio-political order to the centralized administrative state by devising relatively undisruptive, sometimes quasi-compensatory, mechanisms to subordinate local groups (usually centred around feudal/baronial elites) to the rising power of the central administration. In particular, most states in Europe developed techniques to integrate local elites within the state by offering compensation for the demise of local power in the form of status, rank, office, and sinecure within the central state apparatus. This was not always successful – and many core European states still bear witness to the incompleteness of this state-building pattern. Indeed, in many societies, at least until recently, the original localism of society remained palpable beneath the superficial veneer of liberal legal inclusion and centralized statehood. In such societies, many supposedly public legal functions long remained in private hands, and state power depended factually for its exercise on bargaining between officials within the state and embedded elites attached to old, semi-assimilated peripheral groups. Furthermore, many European states have recurrently lapsed back into localized privatism, and the re-coalescence of state power and local power has remained a constant threat to supposedly public institutions. Nonetheless, by 1945, most European societies (albeit still incompletely) showed clear hallmarks of

4

national statehood and national legal/political inclusion. In consequence, these societies have been able to show more or less even responsiveness to the reserves of positive law held within centralized states, and, for much of recent history, in these societies statehood and the system of legal/political inclusion have tended to converge.

If centre/periphery conflicts have posed a great challenge to the rise of an abstracted legal/political system, this is the case to an even greater extent for the second inclusionary challenge faced by the modern state: the pressures resulting from inclusion of class conflict. Naturally, as states first evolved in the core territories of European state formation, their power did not extend far into society, and class conflicts were not of great significance for emergent modern states. However, by the nineteenth century, states were increasingly obliged to appease, and negotiate accords between, different social groups. Indeed, the most advanced states of the nineteenth century, which had conclusively separated their patterns of administration and their sources of legitimacy from local/familial structures, were clearly exposed to dilemmas relating to class inclusion. They were faced with the following dilemma. First, in order to expand and augment their power across society, states required wider reserves of support in society. However, second, if they attempted to consolidate deeper layers of support, states risked exposure to the threat that society would become unmanageably politicized, and social conflicts would began to impact in unsettling fashion on political institutions. This was well diagnosed by Marx in the 1850s. Some states responded to these pressures by evolving limited parliaments, allowing a selective representation of conflicting interests in society. As late as 1870, few states had parliaments that allowed large sections of society to play an important role in forming governments. The decades between 1865 and 1900, however, saw a significant leap forward in the promotion of broad-based representative democracy. France and the UK, with very manifest limitations, took the form of limited democracies during this time. Some states, notably Germany under Bismarck, even adopted rudimentary paternalistic techniques to soften potentially incendiary conflicts over materially divisive social questions. Generally, however, most states simply avoided confrontation with pressures of class inclusion, and they continued to rely on private sources of authority to maintain (limited) power across society. At least up to the last decades of the nineteenth century, few European states possessed any real autonomy against the private prerogatives of local elites, and few states acquired extensive powers of societal penetration. Through the nineteenth century, most European societies preserved a residually privatistic political fabric, in which the inclusion of society in legal relations was not the exclusive domain of the state. In fact, most states only notionally existed as such.

This condition changed rapidly in the period 1914-18. During World War I, most European states were quickly transformed into central points of directive agency in society, and in most societies all social groups assumed a more immediate inclusionary relation to the state. As a result, national states assumed far-reaching responsibility for placating rivalry between divergent social prerogatives, and for preserving social peace between newly included, and often intensely antagonistic, social classes. Either in the course of, or immediately after, World War I, most European societies obtained either formal or informal constitutions, which

5

committed states to constructing a cross-class political will as a foundation for their authority, able to sustain a political system with the power to produce collectively formed and collectively binding decisions over the total direction of polity, economy, and society as a whole. Between 1914 and 1918, in other words, states became more or less comprehensive manifestations of the political system of society, and most inclusionary functions addressed to law and power were channelled towards the state. In consequence, states were required to perform their inclusionary functions by holding the entirety of society at a high level of inner-systemic politicization, and most exchanges in society, but especially those relating to conflicts over the macro-economic orientation of society, became objects of extreme political controversy.

This expansion of the state had two primary outcomes. Generally, this led to a rapid, although disjunctive, expansion of parliamentary competence throughout Europe. Most European societies, usually for the first time, staged attempts to conduct processes of mass inclusion through parliamentary chambers. In addition, this led to a rapid and often improvised development of state-corporate models of economic management and regulation, in which core political institutions interlocked closely with economic organizations. The political inclusion of the population in the parliamentary arena was flanked by the material/economic inclusion of the population in corporate chambers, bargaining syndicates, trade unions, lobbies, entrepreneurial associations, all of which were transplanted into the extended margins of the political system. In most cases, the growth of corporate organization was intended to embed the public order of the state in society, and to ensure that its legislative functions, both in origin and application, could presuppose consensual acceptance throughout all sectors of all society – in both its economic and political dimensions. The rise of corporatism can thus be examined as a phenomenon that occurred as both state and society became thoroughly politicized: that is, state-corporatism became a dominant mode of political/economic direction as the state assumed inclusionary responsibility for society as a whole, and as it was obliged to politicize itself and other areas of society in order to perform its expanded public functions.

Typically, widening legal/political inclusion was expressed through a transformation of economic law and labour law. In most European societies, before 1914, trade unions had only operated, at most, in the margins of the legal system. However, as, during World War I, states came to rely on trade unions to accelerate the production process to meet military demands for armaments, unions were rapidly transformed into preferred bargaining partners of government executives. This dense relation between trade unions and governments soon impacted deeply on the legal intersection between the state and other parts of society. During the war, in most of Europe, unions had tended to accept an informal compromise, in which they mobilized their constituencies for the different war efforts in return for higher wages and better protection for rights of coalition and collective bargaining. After 1918, however, unions often sought to harden their position in the intermediary zone between state and society by negotiating the binding formalization of social rights, and by establishing co-determination arrangements in major industrial sectors. In some cases, notably Germany, unions abandoned autonomous

6

collective bargaining as a strategy of labour representation, and they obligated the state to assume powers of mandatory arbitration in industrial conflicts (Kühn 1933: 153). Labour law was thus generally re-defined as part of public law, and the system of public inclusion was extended to such a degree that it effectively internalized trade unions as participants in the legislative process (Wieacker 1952: 321). In some cases, again exemplified by Germany, unions saw parliaments as less effective in legislating over labour conditions than their own leaderships, and they preferred to conduct negotiations direct with business leaders, by-passing parliamentary functions (Feldman 1993: 107). This meant that trade unions acted de facto as parallel legislators, and they assumed functions of legal/political inclusion not substantially different from those assigned to parliamentary bodies comprising politically elected delegates. In some countries, in fact, classical labour law was revised to such a degree that trade unions were accorded constituent authority in the construction of the state: unions became bearers of a living constituent power (see Sinzheimer 1916: 35).

This transformation of the state after 1918 had two main results.

First, in virtually all cases, the growth of parliamentary competence as a mechanism of inclusion was short-lived, and parliamentary assemblies proved unable to respond to new inclusionary pressures running through society. Most states were not equal to the dynamics of politicization caused by their social openness, and they were incapable of assimilating rival social factions through parliamentary institutions. Ultimately, the inclusionary expansion of the political system led, not to more consensual or more eminently public, but rather to more personalized, private patterns of legislation. Across different societies, effective legislative power migrated almost immediately from parliamentary assemblies into relatively free-standing executives. In some societies, typically those which had retained highly privatistic socio-institutional structures from before 1914, this entailed an authoritarian transfer of power parliament to singularly personalized executives. Examples of this are Italy under Mussolini, and Spain under de Rivera. In other societies, this involved a palpable, and essentially exceptionalist, erosion of parliamentary authority within the notional constraints of a democratic constitution. The Weimar Republic is the main example of this. In societies that managed to preserve some meaningful element of democracy into the 1920s (for example, the UK), this entailed the rapid expansion of the executive bureaucracy, the transfer of law-making power to committees (often interacting freely with private lobbies and interest groups), and the rapid removal of parliament from the centre of the political system (Wheare 1955: 142-3).

Second, in virtually all cases, the growth of state-corporatist patterns of inclusion had closely overlapping consequences. In the majority of cases of state-corporatist experimentation beginning in 1914, the state was not able to use its mechanisms for corporate integration as enduring instruments for mobilizing consensual support for law across society. To be sure, some states, typically those with higher levels of successful labour integration before 1914, experimented with limited corporate methods of interest aggregation without experiencing full structural

7

collapse.5 More typically, however, the broadened state periphery resulting from state-corporatist policies transformed the state into a societal battleground, in which dominant groups utilized the powers allocated to them through corporate bargaining structures, not to pursue mediated agreements over economic direction, but to annex positions of political influence in order to consolidate select prerogatives. As a result, in most societies, the state corporatist system created after World War I fragmented rapidly and it was redesigned, in the form of fascism, as a system of authoritarian corporatism, in which skeletal corporate arrangements were preserved as instruments for stabilizing the imperatives of powerful private elites in the political system (Mayer-Tasch 1971: 118, 133-134). In most cases, the corporate experiments in interwar Europe led to a far-reaching re-privatization of the political system, in which corporate structures of collective economic co-ordination were stripped of their consensual/constitutional objectives and re-deployed as means to shield powerful economic bodies.6

In interwar Europe, therefore, the corporatist transformation of the state into a conclusively politicized system of inclusion gave rise, almost immediately, to a converse trajectory – it led to a comprehensive fragmentation of the official public-legal order, to a re-privatization of state resources and functions, and to the depletion of the state’s inclusionary force. The period of extreme authoritarianism in interwar Western Europe (fascism) is often seen as a period that marked the apogée of state power, in which, purportedly, bearers of state authority colonized all areas of society.7 In fact, however, sharp-eyed contemporary observers noted that the opposite was the case.8 Interwar authoritarianism reflected, not a hardening, but rather a deep fracturing of state authority, in which the state retreated in part to its pre-modern role, and it assumed, structurally, a position similar to its standing prior to the nineteenth century: it became merely one source of legal inclusion and direction amidst a pluralized array of rival, indiscriminately undifferentiated foci of power (see Rebentisch 1974: 294). Overall, the tragic history of statehood in interwar Europe reflects a cautionary narrative about the inclusionary functions of the political system. The rise of semi-privatistic authoritarianism (fascism) can be seen as a crisis of statehood caused by hyper-politicized over-inclusion, which is a direct outcome of corporate experiments. As the state assumed a fully central and inclusionary position in society, it was unable to withstand the inclusionary pressures addressed to it, and the corporate techniques which it utilized to address demands for inclusion soon meant that it haemorrhaged authority and autonomy in face of its own hyper-politicization.

This pathology obtained clearest expression in interwar Europe, but it is specific neither to Europe not to the interwar era. Analogous trajectories of

5 Examples of this are the UK and France. On the impact of the war on collective labour law and corporatism in these states see Raynaud (1921: 31); Horne (1991: 15). 6 Notably, corporate legislation in Mussolini’s Italy was only marginally used for resolving industrial conflict. Its main purpose was the ‘unitary discipline of production’: i.e. regimenting productive classes for macroeconomic objectives. This is spelled out in Fanno (1935: 110). 7 See notably Bates (2010: 8). This is widely accepted as signifying a breach between pre- and post-1945 legal presumptions. For recent comment see Williams (2011: 79).8 For variations on this position see Neumann (1944); Schmitt (1995 [1938]: 118).

8

inclusionary crisis induced by state-corporatism are evident in different settings and different historical contexts.

In Latin America, for example, state-corporatist constitutional experiments became intermittently widespread from the 1930s onwards, typically – at least initially – with a more pronounced authoritarian aspect than had first been the case in post-1918 Europe. As in Europe, however, most Latin American states that embarked on policies of palliative class mediation – for instance, Argentina under Perón, Brazil under Vargas, and, later, Chile under Frei – were incapable of withstanding their exposure to the social politicization which they (in part) engendered.9 During their periods of corporate experimentation, these states struggled to consolidate a position of reliable autonomy and public authority, elevated above rival groups and hostile private interactions in society (Sikkink 1991: 171). As in interwar Europe, the corporate expansion of the state normally meant that the state developed an amorphously blurred periphery, and private actors, their relative power dependent on momentary economic relations, openly engaged in conflict for political power, and could easily gain access to directional authority (see Erro 1993: 26). The typical outcome of this was that the state apparatus was unable to separate itself from intensified economic antagonisms, and it lost the capacity to negotiate with corporate interest groups with any degree of autonomy. One observer has expressed the view, quite generally, of Latin American states up to the 1980s that they were determined by unmanageable levels of ‘statist politicization’, such that the ‘state’s capacity to enforce its own measures was considerably undermined’ (see Cavarozzi 1994: 131-2, 144, 148).10 As in interwar Europe, therefore, in Latin America, weakness of state structure typically gave rise to authoritarian regimes that were marked by the deep reliance of the executive on private or patrimonial support (see Remmer 1989: 150; Ranis 1992: 38-9)): i.e. by co-option of powerful societal elites through privatization of public goods. In each case, state corporatism led to a condition of effective state re-privatization.

In the post-independence states of Sub-Saharan Africa, state-corporatist attempts at inclusionary resolution of class antagonism often had almost identical consequences. In most Southern African societies, the initial formation of statehood through the course of decolonization led to the proliferation of institutions whose roots in society were shallow and uneven, which lacked deep structural legitimacy, and which, in consequence, relied to a large degree on patrimonialism, clientelism and spoils distribution for their societal bedrock.11 At the same time, most post-colonial states in Africa, partly because of their patrimonial quality, proclaimed legitimacy by assuming far-reach responsibilities for economic steering and conflict absorption. In particular, these states attempted to downplay the role of class fissures in society, and to reduce the divisive power of lateral affiliations (van de Walle 1994: 133). To this end, they sought to sustain support in society through the selective allocation of economic goods, through artificially high levels of public employment and

9 See in this regard the theory of the politicized state set out in Chalmers (1977: 30-1, 38). On over-politicization in Argentina see Munck (1998: 51). On over-politicization in Chile see Valenzuela (1978: 33). 10 For wider analysis of ‘hyper-politicization’ in Latin American polities and economies see Gerchunoff (1989: 59). 11 On the link between low legitimacy and patrimonialism, see Englebert (2000: 29).

9

publicly regulated production, and through the (often coerced) corporate integration of labour.12 This typically placed unmanageable burdens on states, which were already marked by very precarious regulatory capacities. In most cases, it stimulated high levels of privatism within the state, and led to a profound depletion of state autonomy (van de Walle 2001: 52-4).

Across different regions and époques, therefore, we can propose the following general theses about state-corporatist inclusion of class conflicts.

First, in corporate systems building states usually experience unsustainable volatility (hyper-politicization), and they encounter acute systemic crisis: they lose the capacity to perform inclusionary functions in internally controlled, relatively autonomous fashion. Typically, the political system begins to rely on alternative modes of inclusion and legitimization, usually re-allocating de facto legislative powers to actors situated outside the political system. Usually, then, it divests itself of its strictly public character, and it renounces defined constitutional structure, sometimes re-converging with powerful societal groups, and, in the style of pre-modern state-like institutions, relying on such groups to support its power through society at large.

Second, the patterns of state crisis triggered by corporatism are attributable to the fact that, in state-led corporate systems, the state is forced into an over-consumption and over-production of legitimacy. The state is required to pass laws that include, and are applied to, naturally antagonistic social groups, and, in order to gain compliance for these laws, it is forced to construct legitimacy through the recurrent concrete equilibration of the prerogatives of different social groups in society. The fact that the political system explains its legitimacy through the constant mediation of external societal conflicts means that each law both expresses and expends a quantum of factually generated legitimacy. Each law issued by the political system is based, at least notionally, in a factually reconciled conflict, in the resolution of which the state is required at once to expose, to manufacture, and to demonstrate its legitimacy. In consequence of this, corporatism leads to dual hyper-politicization of the political system: in its external functions, the state experiences hyper-politicization through the conflictual integration of social groups in its administrative margins; in its internal functions, the state experiences hyper-politicization as all law making involves acts of high conflictual intensity, each individual law is constructed as a politically contested good, and few operations of the political system can be performed without the simultaneous fabrication and expenditure of legitimacy. Legitimacy itself in fact becomes over-politicized. The inability of the political system to sustain such politicization of legitimacy can be seen as a key cause of the privatistic or patrimonial fragmentation of the political system, which usually results from state-led corporatism.

Third, quite generally, states, acting within circumscribed national domains and deploying resources of statehood specific to national institutional contexts, have only rarely been effective in mediating class conflict. With rare exceptions, states have not been equal to the pressures 12 For expert analysis of the relation between patrimonial state privatization and corporate integration of society in the state see Lemarchand (1998: 155-6); Callaghy (1988: 82).

10

of class inclusion directed towards them. State-corporatism, which is historically the most common societal reaction to pressures for material conflict mediation, has generally exposed the political system to acute strain, and it has often led to rapid depletion of the state’s structural autonomy and even to wholesale state collapse. Corporatism and the rise of transnational lawPerhaps the most striking legal and political phenomenon in the decades since 1945 is the rise of international law, and especially the rise of international human rights law. In many respects, this has involved a profound revolutionary transformation of contemporary society.13

This revolution occurred in three distinct waves. These waves were: (a) the initial period after 1945, marked by the founding of the UN and the drafting of major international human rights conventions; (b) the period from the mid-1970s to 1980, including the Iberian transitions, the promulgation of the Helsinki Accords, the beginning of the Carter administration in the USA, the entry into force of the International Covenant on Civil and Political Rights (1976) and the Vienna Convention on the Law of Treaties (1980), and the establishment of the Inter-American Court of Human Rights (IACtHR) (1978-79), many of which sharply increased the penetration of international human rights law into domestic jurisprudence; (c) the transitions beginning in the 1980s in Argentina and Brazil, gathering pace in Eastern Europe, and continuing through the earlier 1990s in Southern Africa.

In each of these periods, the rise of international law led to a broadly standard configuration of national political institutions. With obvious variations, the potency of international law promoted the formation of national polities marked by: (a) the attribution of relatively high standing to international human rights law in national jurisprudence and higher court rulings; (b) the assumption of increasingly elevated authority by the judicial branch, especially to courts conducting review of statutes and administrative acts in accordance with international conventions; (c) a high level of interaction (or comity) between national courts and organs of international jurisdiction, often subordinating national courts to international judicial authority, especially in respect of human rights jurisprudence; (d) a relative diminution of the intensity and scope of parliamentary authority: (e) the application of human rights norms as primary foundations for regulating both vertical and horizontal relationships in society; (f) emphasis on single human rights norms, as opposed to collective or organic rights, as the premise for the authority of law. Today, in consequence, the basic normative design of the democratic polity, which traditionally resulted from the exercise of an original constituent power, is commonly derived from norms that are transnationally constructed: either through direct imposition of international conventions in national societies, or through more informal interactions between national judiciaries and legal sources standing outside the national state. With few exceptions, national political orders are locked into a transnational legal/political system, and judicially protected rights spell out the points of intersection (the interlocking seam) between the national political system and its overarching transnational 13 See the account of the growth of international law as a legal revolution in Brunkhorst (2014).

11

context. As discussed, the international political system is thus formed, both as a whole and in its constituent national parts, as a system of transnational judicial democracy.

As mentioned, the rise of transnational judicial democracy has attracted much criticism. Above all, such criticism revolves around the argument that this pattern of systemic formation is alien to the common horizons of national societies, and it illegitimately undermines the sovereignty of national states.

The above inquiry into the crises of systemic inclusion casts doubt on common views about the post-1945 rise of international law. If we pursue a more sociological approach to questions of legal/political systemic formation, we can observe, first, that the growth of international law has occurred within a setting that is marked, not by the excessive power, but – on the contrary – by the endemic fragility, of authoritarian states. Moreover, second, we can observe that the growth of international law is usually, at least in part, driven by factors that are deeply embedded in the formative histories of national societies. Third, we can see that international law does not restrict the power of already formed sovereign states. Instead, it acts as a constitutive element in a process of state building and institutional solidification. Almost invariably, the rights-mediated incorporation of national political systems in the transnational judicial-political system does not curtail, but rather it enhances, the power of national states. If we look sociologically at the formation of political systems, therefore, we can see that the rise of international law is propelled by manifest inner-societal forces, and these are linked to the basic debility of state institutions.

The inner-societal origins of international law become most obvious against the background of historical experiments with state corporatism, and, typically, international law has replaced corporatism as a mode of legal/political inclusion and structural formation. Indeed, if we take a cross-section of the states that, from 1945 into very recent history, have aligned themselves to the general model of transnational judicial democracy, we can see that these states have availed themselves of international human rights law – in part – to correct aspects of their formative trajectories which had historically obstructed their basic autonomy. In each case, the increasingly integral link, mediated through rights jurisprudence, between national and inter- or supra-national legal institutions has helped to insulate states and their constituent institutions against the depletion of autonomy normally caused by the inclusionary pressures resulting from their position in national societies. As a result, international human rights law acquires structurally formative or structure-building impact within national polities. It makes it possible for national political systems to build and to maintain relatively consistent inclusionary structures in face of the pressures which had historically brought them to crisis. This is particularly the case in relation to pressures arising from the corporatist inclusion of class conflict and material conflict.

This structure-building role of international human rights within national societies and their political systems is evident in three distinct factors.

12

First, the structure-building force of international human rights law is visible in the fact that national states which have adjusted their institutional design to fit the model of transnational judicial constitutionalism have reinforced their constitutional order. In particular, they have been able more stringently to separate public institutions from private actors and their prerogatives.

To exemplify this, we can observe the vital case of post-1945 Germany. In interwar Germany, the corporate rights allocated through the corpus of labour law had tied the state and its legitimacy into a public economy marked by deep industrial conflicts (see von Brauchitsch 1990: 183, 239, 255, 256). The political system of Weimar Germany was relentlessly besieged by private economic organizations, and it progressively lost autonomy because of this (see Böhm 1933: 247; Abelshauser 1984: 296). Furthermore, the period of extreme authoritarianism in post-1933 Germany intensified this process to such a degree that public organs of government became indistinguishable from private economic actors.14 After 1945, however, a state was founded in the allied-controlled parts of Germany in which labour law permitted only weakened politicization of trade unions, and the collectivist legal design of interwar political economy was partly abandoned (see Nautz 1985: 45). Mediation between the state and organs of economic aggregation remained vital to the stability of the state in West Germany. However, this was conducted mainly at sub-executive level, and the state had little internal responsibility for the compulsory regulation of class antagonisms (see Schell 1994: 100). This was mainly reflected in laws that guaranteed autonomy in collective bargaining for trade unions, placing industrial relations outside the immediate purview of state power. However, anti-collectivist legislation also restricted the power of cartels, previously institutionalized Hitler (see Rütten 1996: 160-2). Under these conditions, ultimately, a state emerged in West Germany which, although retaining a neo-corporatist emphasis, possessed relatively high autonomy against social and economic organizations, and it was able to imprint normative unity on society as a whole.

Across all societies, however, this structure-building function of international rights law is best exemplified by Argentina – notably, during the post-military transition under Alfonsín, starting in 1983. Historically, Argentina had experienced often debilitating polarization around labour disputes. Indeed, after 1945, the political system in its entirety broke apart along the faultlines between Peronists, favouring positive, semi-corporate labour integration, and anti-Peronists, favouring an authoritarian corporatist system, designed to exclude organized labour from positions of directive influence. This polarity led to often extreme privatism in the political system, as governmental functions could not be rotated in procedurally controlled fashion, and, each time a new governmental bloc was formed, it tighten its grip on the instruments of power by allocating privileges to a select social class. During the Argentinean transition, however, Alfonsín and his Radical Party strategically steered a course between these traditional political alternatives. Invoking the authority of international human rights organizations and the newly founded IACtHR, Alfonsín utilized international human rights to promote a strategy of political structure building. At one level, he employed human rights as a 14 See pp XXX above.

13

vocabulary of legitimacy for the new democratic regime, and he derived basic authority for governance from international courts and from international human rights organizations (see Brysk 1994; 95, 107; Lutz and Sikkink 2000). However, he also promoted rights as a governmental technique with implications for labour regulation. Alfonsín did not aim simply to eradicate corporatism from Argentine society; even Menem maintained certain elements of corporate organization. However, Alfonsín used rights to downplay the centrality of labour integration to the legitimacy of the political system, and he insisted on the importance of singular rights in order to detach the state from functions of corporate mediation (see Munck 1998; Cook 2007: 64). Ultimately, the de-emphasis of class affiliation and prerogatives in Argentine politics under Alfonsín broke the critical polarization of Argentine politics (Ranis 1992: 54, 61). After the 1980s, trade unions began to re-negotiate the terms of engagement with the political system. Indeed, trade unions assumed an increasingly independent role, and they were able to establish collective bargains in more localized fashion, as organs standing outside the structure of the state (Murillo 1997: 431, 440). This meant that, over a longer period of labour-law reform, economic legislation could be introduced without inevitably giving rise to unsettling politicization of labour conflicts within the state (Wylde 2011: 442).

Other, less prominent, examples of this structure-building function of rights can easily be found. Generally distinctive in such processes, however, is the fact that the supervision of legislation by courts applying international rights norms creates a clearer partition between formal and informal power. The use of singular rights to justify legislation establishes a structural split between the state and collective organizations, and it allows the state to extract, above society, a relatively stable public construction of its obligations and its legitimacy. In each case, this tends to preserve a specific distinction between political and non-political functions in society, and, under certain conjunctures, it augments the basic autonomy both of the state and of the collective bargaining associations traditionally vying for influence within the state. At the heart of these processes is the fact that rights, derived from the international legal domain, can be used by national states to depoliticize the sources of their legitimacy. Rights allow states to legislate, and to give legitimacy to legislation, without constant envelopment in conflict between existing organized groups. This in turn marks a precise delineation between the political system in its eminent political character and the state in its to-day-day legislative interactions, and, in separating the state’s normative foundations from its legislative acts, it helps to distil the structural autonomy of the political system as a whole. Second, we can observe the structure-building outcome of international human rights law in the fact that the assimilation of international human rights in national polities means that judicial institutions provide the elementary code of legitimacy for the political system, setting out norms from which all legislation derives validity. This has the beneficial result, as discussed, that basic principles of legitimacy are separated from the complex processes of everyday legislation, and socio-legitimational emphasis is deflected away from legislatures. On each count, this insulates procedures for the production of law from potentially unsettling societal conflicts. Indeed, the fact that, owing to the rise of the

14

transnational constitutional design, most states develop powerful Constitutional Courts means that states acquires institutions that are able, alongside established legislative bodies, to act as parallel legislators or even as super-legislators, and this usually stabilizes the position of the national political system in a given society.

We can see numerous examples of this. The classical example of Germany is again helpful in this respect. In post-war West Germany, the newly established Bundesverfassungsgericht (BVG), founded with specific obligations for rights-based review of statutes, progressively utilized the grammar of international human rights law to emphasize and solidify the state’s monopoly of normative force. Indeed, the state’s assertion of inclusionary societal control was ultimately conducted, not through a legislature legitimated by external conflict resolution, but by the BVG. As underlined by the famous Lüth-Urteil of 1958, this judicial arrogation of normative power was explained and enforced through the register of rights.15 Post-Franco Spain is also illuminating in this regard. In Spain after 1975, a constitutional order was created, in which international human rights norms were given unusually high prominence, and a Constitutional Court was established which was required to ratify and legitimate new laws through reference to elevated rights norms (Peces-Barba Martínez 1988: 36). This provided a framework in which it was possible for the court to project overarching normative principles for the direction of polity and economy as a whole. This meant that some clear principles of legitimacy could be extracted from the everyday dynamics of democratic transition and established as supra-positive points of political orientation. These principles were then used to underscore agreements and promote overlapping basic consensus between potentially factious social groups, and ultimately to stabilize the new democratic polity (Encarnación 1997: 390, 412). In the democratic transition in South Africa in the 1990s, analogously, the newly founded Constitutional Court, acting as a repository of internationally derived rights norms, assumed the role as ultimate arbiter of new legislation and even as de facto focus of sovereign power. The fact that the court could be called upon to pronounce over questions of legitimacy meant that, in an otherwise highly polarized landscape, some basic elements of shared order could be invoked as binding premises for law making, and the transition as a whole could be protected against unmanageable levels of contest and politicization (Habib 1997: 62). In fact, in South Africa, the interim constitution of 1993 was placed in the safekeeping of the court, and in many respects the court acted as a surrogate constituent power for the final democratic constitution of 1996. Related processes can be seen in transitional Hungary, in which legislation was at times immediately initiated by the newly created Constitutional Court, and international human rights were invoked as a supra-constitutional, supra-conflictual dimension of the legislative process. In the longer period of transition in Argentina, similarly, ten international law treaties were simply incorporated in domestic constitutional law (1994). Although the implications of this incorporation are disputed, this process raised the standing of the judicial branch, it clearly extracted principles of legitimacy from everyday political functions, and it created a normative sphere of relative autonomy for the emergent democratic state.

15 For brilliant commentary see Vorländer (2006).

15

In each of these cases of polity building, the direct penetration of international law into national polities via the mediating link of a national Constitutional Court (or at least, as in Argentina, a powerful Supreme Court) meant that the national state could project for itself a supra-positive, even hyper-constitutional, basis for the normative authorization of laws, which it could use to support the transmission of law across society. In each case, this meant that the expectations for legitimacy production directed towards single state institutions could be curtailed, and the state was able to project a foundation for law making not derived from the immediate resolution of external structural conflicts. This helped to guarantee a basic degree of autonomy for legislative processes, it reduced the immediate convergence of society, organized in professional and political bodies, around the political system, and it counteracted unsettling tendencies towards hyper-politicization. In addition, notably, this hyper-constitutionalization of the political system through the nexus between national courts and international human rights law meant that an alternative system of corporate economic co-ordination could be established. Significantly, in each of the societies mentioned, the court-led transitions to democracy quite clearly did not bring an end to the presence of corporate intersections between state and society. On the contrary, in each of these cases a quasi-corporate system of economic co-ordination persisted. However, because the normative spine of the state was extracted from society by Constitutional Courts, these transitions usually created political/economic systems structured around more pluralist or societal patterns of corporatism. In each of these polities, pacts between the state and powerful economic groups played a key role in governmental direction and social stabilization. However, these pacts did not entail a full systemic internalization of labour disputes, and, despite the state’s general corporate bias, organs of the state were able to interact with interest groups at a diminished level of intensity (see for example Martinez-Alier and Jordi Roca 1987: 74; Pérez Yruela and Salvador Giner 1988: 144; Acuña 1995: 391, 401). In each case, this shift to less state-centred corporatism led to a reform of labour legislation, in which the strongly integrated position of trade unions was re-defined, and in which concepts of collective bargaining were applied to ensure that union activities were located largely outside the state, based in horizontal interactions with industrial associations and political office holders. In many instances of partial de-corporatization, in fact, the factual strength of unions increased palpably (Uprimny Yepes 2006: 142; Cook 1988: 330). In general terms, through the rise of rights, corporate organizations were allocated the role of mediating actors, which had responsibility for producing, or at least influencing, single acts of legislation. But the responsibilities of such organizations for producing primary reserves of legitimacy were diminished. The production of legitimacy was transferred to the more stable, systemically internalistic construction of rights norms, applied and preserved primarily by courts, and derived originally from the relatively de-politicized domain of international law. In the public economy which emerged from this, the state was able to retain a strict distinction between legitimization and legislation, preserving some degree of differentiation and relative autonomy vis-à-vis private organizations, and restricting its destabilization through class conflicts. Generally, therefore, the transition from state corporatism to societal corporatism is integrally connected to the absorption of international rights in domestic law, and the re-positioning of legitimacy which this induces.

16

In both these respects, the structure-building effect of international human rights law is manifest in the fact that, in using international law and international judicial norms, states are not required endlessly to politicize their own legitimacy in the creation of laws for society. The increasing integration of national political systems within a transnational judicial/political system means that state institutions are able to utilize already generated reserves of legitimacy to support patterns of legal inclusion: they can legitimize laws through principles which they do not have to manufacture through concrete – either coercive or consensual – engagement with society, and which they can simply borrow and internalize from transnational legal domain. This means, above all, that states avail themselves of patterns of legitimization in which the source of legitimacy (rights) is not identical with the purpose of legislation (conflict resolution), in which legitimacy is consumed: the origin and consumption of legitimacy remain distinct. Through the extraction of legitimacy from the international domain, in seeming paradox, the source of legitimacy is moved from a location outside to a location inside the political system, and legitimacy is stored, in the form of rights, as a constantly available set of principles by which laws can be authorized. The absorption of rights norms within national polities thus gives rise to an effective de-politicization of legitimacy. Of course, this does mean that legitimacy is de-politicized in its entirety. But some component of the legitimacy required for each law already exists before a law is made. This has the result that laws become less controversial, there inheres an apolitical normative residue in all law, and the societal requirement for legislation does not lead to a constant a hyper-consumption of legitimacy. This in turn means that states can interact more autonomously with socio-economic interest groups positioned outside their own structure, they can maintain normative consistency in law making over longer temporal sequences, and they can dictate the basic constitutional foundations for acts of legislation. The internalization of legitimacy thus becomes a vital source of autonomy for the contemporary national political system, and it makes it possible for the political system to address material pressures in society in relatively consistent, autonomous, inclusionary procedures.

ConclusionWhatever the factual driving force behind its construction, the rise of international law is shaped, at an inner-societal sociological level, by the fact that it allows states to obviate their exposure to inclusionary pressures which, in their national histories, they often found chronically unsettling. National states were historically positioned as actors within a patchwork political landscape, and they usually both depended on, and at the same time both contested and shared power with, rival bodes – first, for example families, corporations; latterly, enterprises, organizations, unions – which were often of essentially private character. Few national states enjoyed a ‘sovereign’ monopoly of power in their own society and territory, and they were repeatedly forced to converge with private aggregates of interest, and to lose their differentiated constitutional position within society. Through their alignment to the judicial form of the transnational political system, however, the position of states vis-à-vis other organizations within national societies has changed dramatically, and they now generally possess a more clearly differentiated constitutional definition, and exercise more clearly circumscribed powers.

17

The rise of international law, thus, is more normally the precondition of effective state sovereignty than its limit. The cause of this is attached to the fact that, paradoxically, through their absorption of international human rights law, states now learn to derive legitimacy from sources within their own structure, and they become less reliant on factually existing external actors as legitimacy producers for single laws. As a result of this process, however, states now operate within a different patchwork political landscape, and they are commonly forced to share power with transnational organizations (especially courts and judicial commissions). In fact, transnational normative power sharing appears to be the necessary basis for the exercise of effective sovereignty by states within their national, domestic societies; normally, it is only by entering, and locking their functions into, a transnational political system that national state institutions have acquired effective sovereignty in their own societal environments. In light of this, it is even tempting to say that states, as national institutions using capacities specific to national societies, were never simply or fully sovereign actors. States developed as institutions in a social landscape populated by rival centres of private agency, and then – in a short space of time – they were transformed into institutions in a social landscape populated by rival centres of transnational agency. The period of hyper-inclusionary, hyper-politicized state corporatism was usually the transitional period between these two conditions of non-sovereign statehood, and the crisis of inclusion provoked by this led to the construction of a transnational political system from within national societies. It was only when society’s political order extended beyond its momentary homology with statehood that society began to extract a legal/political system equal to the demanding inclusionary pressures that it produces and encounters.

18

Bibliography

PublicationsAbelshauser, Werner (1984), ‘The First Post-Liberal Nation: Stages in the Development of Modern Corporatism in Germany.’ European History Quarterly 14: 285-318.

Acuña, Marcelo Luis (1995), Alfonsín y el poder economico. El fracas de la concertación y los pactos corporativos entre 1983 y 1989. Buenos Aries: Corregidor.

Bates, Ed (2010), The Evolution of the European Convention on Human Rights. From its Inception to the Creation of a Permanent Court of Human Rights. Oxford: Oxford University Press.

Böhm, Franz (1933), Wettbewerb und Monopolkampf. Eine Untersuchung zur Frage des wirtschaftlichen Kampfrechts und zur Frage der rechtlichen Struktur der geltenden Wirtschaftsordnung. Berlin: Carl Heymann Verlag.

Bradley, Anthony (2011), ‘The Sovereignty of Parliament – Form or Substance?’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution, 7th edition. Oxford: Oxford University Press, pp. 35-69;

Brauchitsch, Isabelle von (1990), Staatliche Zwangsschlichtung. Die Aushöhlung der Tarifautonomie in der Weimarer Republik. Frankfurt am Main: Peter Lang.

Brunkhorst, Hauke (2014), Critical Theory of Legal Revolutions – Evolutionary Perspectives. London: Continuum.

Brysk, Alison (1994), The Politics of Human Rights in Argentina. Protest, Change, and Democratization. Stanford: Stanford University Press.

Callaghy, Thomas M. (1988), ‘The State and the Development of Capitalism in Africa: Theoretical, Historical and Comparative Reflections’ in Donald Rothchild and Naomi Chazan (eds), The Precarious Balance. State and Society in Africa. Boulder, CO.: Westview, pp. 67-99.

Cavarozzi, Marcelo (1994), ‘Politics: A Key for the Long Term in South America’ in William C. Smith, Carlos H. Acuña and Eduardo A. Gamarra (eds.), Latin American Political Economy in the Age of Neoliberal Reform. Theoretical and Comparative Perspectives for the 1990s. New Brunswick: Transaction, pp. 127-155

Chalmers, Douglas A. (1977), ‘The Politicized State in Latin America’ in James M. Malloy (ed), Authoritarianism and Corporatism in Latin America. Pittsburgh: University of Pittsburgh Press, pp. 23-46;

Cook, Maria Lorena (1998), ‘Toward Flexible Industrial Relations? Neo-Liberalism, Democracy and Labor Reform in Latin America.’ Industrial Relations 37(3): 311-336.

19

Cook, Maria Lorena (2007), The Politics of Labor Reform in Latin America. Between Flexibility and Rights. University Park, PA.: Pennsylvania State University Press.

Encarnación, Omar G. (1997), ‘Social Concertation in Democratic and Market Transitions: Comparative Lessons from Spain.’ Comparative Political Studies 30: 387-419.

Englebert, Pierre (2000), ‘Pre-Colonial Institutions, Post-Colonial States, and Economic Development in Africa.’ Political Research Quarterly 53: 7-36.

Erro, Davide G. (1993), Resolving the Argentine Paradox. Politics and Development, 1966-1992. Boulder, C.: Lynne Rienner.

Fanno, Marco (1935) Introduzione all studio della teoria economica del corporatismo. Padua: CEDAM.

Farber, Daniel (2002), ‘Rights as Symbols.’ Journal of Legal Studies 31: 83-98.

Feldman, Gerald D. (1993), The Great Disorder: Politics, Economics, and Society in the German Inflation, 1914-1924. New York: Oxford University Press.

Gerchunoff, Pablo (1989), ‘Peronist Economic Policies, 1946-55’ in Guido di Tella and Rudiger Dornbusch (eds), The Political Economy of Argentina, 1946-83. Pittsburgh: University of Pittsburgh Press, pp. 59-85.

Ginsburg, Tom (2003), ‘Introduction: The Decline and Fall of Parliamentary Sovereignty’ in Tom Ginsburg (ed), Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press, pp. 1-20

Grimm, Dieter (1991), Die Zukunft der Verfassung. Frankfurt am Main: Suhrkamp.

Habib, Adam (1997), ‘From Pluralism to Corporatism: South Africa’s Labour Relations in Transition.’ Politikon: South African Journal of Political Studies 24(1): 57-75.

Henkin, Louis (1999), ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera.” Fordham Law Review 68(1): 1-14.

Hirschl, Ran (2004), Towards Juristocracy. The Origins and the Consequences of the New Constitutionalism. Cambridge, Mass.: Harvard University Press.

Hirschl, Ran (2007), ‘The New Constitutionalism and the Judicialization of Pure Politics Worldwide.’ Fordham Law Review 75: 721-753.

Horne, John N. (1991). Labour at War. France and Britain 1914-1918. Oxford: Clarendon.

20

Kelsen, Hans (1944), ‘The Principle of Sovereign Equality as a Basis for International Organization.’ The Yale Law Journal 53(2): 207-2020;

Kühn, Friedrich (1933), Die Schlichtungsstreitigkeit. Weimar: Böhlau.

Lemarchand, René (1988), ‘The State, the Parallel Economy, and the Changing Structure of Patronage Systems’ in Donald Rothchild and Naomi Chazan (eds.), The Precarious Balance. State and Society in Africa. Boulder, CO.: Westview, pp. 149-170.

Loughlin, Martin (2009), ‘In defence of Staatslehre.’ Der Staat 48(1)1-27.

Lutz, Ellen L. and Sikkink, Kathryn (2000), ‘International Human Rights Law and Practice in Latin America.’ International Organization 54(3): 633-659.

Martinez-Alier, J. and Roca, Jordi (1987), ‘Spain after Franco: From Corporatist Ideology to Corporatist Reality.’ International Journal of Political Economy 17(4): 56-87.

Masterman, Roger (2005), ‘Taking the Strasbourg Jurisprudence into Account: Developing a ‘Municipal Law of Human Rights’ under the Human Rights Act.’ International and Comparative Law Quarterly 54(4): 907-931

Mayer-Tasch, Peter Cornelius (1971) Korporativismus und Autoritarismus. Eine Studie zu Theorie und Praxis der berufsständischen Rechts- und Staatsidee. Frankfurt am Main: Anthenäum.

Munck, Gerardo L. (1998), Authoritarianism and Democratization. Soldiers and Workers in Argentina, 1976-1983. University Park, PA.: Pennsylvania State University Press.

Murillo, M. Victoria (1997), ‘La adaptación del sindicalismo argentino a las reformas de Mercado en la primera presidencia de Menem.’ Desarrolo Económico 37(147): 419-446

Peces-Barba Martínez, Gregorio (1988), La elaboracíón de la Constitución de 1978. Madrid: Centro de Estudios constitucionales.

Nautz, Jürgen P. (1985), Die Durchsetzung der Tarifautonomie in Westdeutschland. Das Tarifvertragsgesetz vom 9. April 1949. Frankfurt am Main: Lang.

Neumann, Franz (1944). Behemoth. The Structure and Practice of National Socialism 1933–1944. New York: Harper and Row.

Rabkin, Jeremy A. (2007), Law without Nations? Why Constitutional Government requires Sovereign States. Princeton: Princeton University Press.

Ranis, Peter (1992), Argentine Workers. Peronism and Contemporary Class Consciousness. Pittsburgh: University of Pittsburgh Press.

Raynaud, Barthélemy (1921), Le contrat collectif en France. Paris: Rousseau.

21

Rebentisch, Dieter (1989), Führerstaat und Verwaltung im Zweiten Weltkrieg. Verfassungsentwicklung und Verwaltungspolitik 1939-1945. Stuttgart: Franz Steiner.

Remmer, Karen L. (1989), ‘Neopatrimonialism: The Politics of Military Rule in Chile, 1973-1987.’ Comparative Politics 21(2): 149-170.

Renoux, Thierry S. (1994) ‘Le Conseil constitutionnel et le pouvoir judiciaire en France dans le modèle européen de contrôle de constitutionnalité des lois.’ Revue internationale de droit comparé 46(3): 891-899.

Rodríguez-Garavito, César (2011), ‘Toward a Sociology of the Global Rule of Law Field: Neoliberalism, Neoconstitutionalism, and the Contest over Judicial Reform in Latin America’ in Yves Dezalay and Bryant G. Garth (eds), Lawyers and the Rule of Law in an Era of Globalization. Abingdon: Routledge, pp. 156-182.

Rütten, Wilhelm (1996), ‘Gewerkschaften und Arbeitsrecht nach dem Zweiten Weltkrieg (1945–1950/52)’ in Bernhard Diestelkamp, Zentarô Kitagawa, Josef Kreiner, Junichi Murakami, Knut Wolfgang Nörr and Nobuyoshi Toshitani (eds), Zwischen Kontinuität und Fremdbestimmung. Zum Einfluß der Besatzungsmächte auf die deutsche und japanische Rechtsordnung 1945 bis 1950. Tübingen: Mohr, pp. 149-166.

Schell, Veit (1994), Das Arbeitsrecht der Westzonen und der jungen Bundesrepublik. Bayreuth: P.C.O.

Schmitt, Carl (1995 [1938]). Der Leviathan in der Staatslehre des Thomas Hobbes. Sinn und Fehlschlag eines politischen Symbols. Stuttgart: Cotta.

Schneiderman, David (2008), Constitutionalizing Economic Globalization. Investment Rules and Democracy’s Promise. Cambridge: Cambridge University Press.

Schulz, Gerhard (1974), Die Anfänge des totalitären Maßnahmenstaates. Frankfurt am Main: Ullstein.

Sikkink, Kathryn (1991), Ideas and Institutions. Developmentalism in Brazil and Argentina. Ithaca: Cornell University Press.

Sinzheimer, Hugo (1916). Ein Arbeitstarifgesetz. Die Idee der sozialen Selbstbestimmung im Recht. Munich: Duncker & Humblot.

Uprimny Yepes, Rodrigo (2006), ‘The Enforcement of Social Rights by the Colombian Constitutional Court: Cases and Debates’ in Roberto Gargarella, Pilar Domingo and Theunis Roux (eds), Courts and Social Transformation in New Democracies. An Institutional Voice for the Poor?. Farnham: Ashgate, pp. 127-152.

Valenzuela, Arturo (1978), The Breakdown of Democratic Regimes: Chile. Baltimore: Johns Hopkins University Press.

22

van de Walle, Nicolas (1994), ‘Neopatrimonialism and Democracy in Africa, with an Illustration from Cameroon’, in Jennifer Widner (ed), Economic Change and Political Liberalization in Sub-Saharan Africa. Baltimore: London, pp. 129-157.

van de Walle, Nicolas (2001), African Economics and the Politics of Permanent Crisis, 1979-1999. Cambridge: Cambridge University Press.

Vorländer, Hans (2006), ‘Deutungsmacht – Die Macht der Verfassungsgerichtsbarkeit’ in Hans Vorländer (ed.), Die Deutungsmacht der Verfassungsgerichtsbarkeit. Wiesbaden: Verlag für Sozialwissenschaften, pp. 9-36

Wheare, K.C. (1955). Government by Committee. An Essay on the British Constitution. Oxford: Clarendon.

Wieacker, Franz (1952), Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung. Göttingen: Vandenhoeck und Ruprecht.

Williams, Andrew (2011), ‘Burying, not Praising the European Convention on Human Rights: A Provocation’, in Neil Walker, Jo Shaw and Stephen Tierney (eds), Europe’s Constitutional Mosaic. Oxford: Hart, pp. 75-96.

Wylde, Christopher (2011), ‘State, Society and Markets in Argentina: The Political Economy of Neodesarollismo under Néstor Kirchner, 2003-2007.’ Bulletin of Latin American Research 30(4): 436-452.

Young, Ernest A. (2003), ‘The Trouble with Global Constitutionalism.’ Texas International Law Journal 38: 527-546.

Yruela, Manuel Pérez and Giner, Salvador (1988), ‘El desarrollo del corporatismo in España (1975-1987)’ in Manuel Pérez Yruela and Salvador Giner (eds), El corporatismo en España. Barcelona: Ariel, pp. 125-150.

CaseWilson v First County Trust (No 2) [2003] UKHL 40.

23