Community based on autonomy

Columbia Journal of Transnational Law

Volumn 36, Issue 1-2, 1997, Pages 41-64

  Franck, Thomas M ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b Center for International Studies

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26244465755     PISSN: 00101931     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (70)

1. By identity I mean each person's answer in associational terms to the question "Who am I?": an answer, as Locke has pointed out, conditioned by consciousness and memory. See JOHN LOCKE, ESSAYS CONCERNING HUMAN UNDERSTANDING, Bk. 2, Ch. 27, 333-35, at ¶10 (23d ed. 1817).
2. See IMMANUEL KANT, KANT'S POLITICAL WRITINGS (Hans Reiss ed., H.B. Nisbit trans., 1970).
3. Discussing the European state as community during the Victorian era, one observer remarks: "By gathering up communities of insiders, they revealed - only too often invented - a world of strangers beyond the pale, individuals, and classes, races and nations, it was perfectly proper to contradict, patronize, ridicule, bully, exploit or exterminate." PETER GAY, THE CULTIVATION OF HATRED 35-36 (1993). This Victorian sense of community was constructed of a xenophobia that "constituted licenses to unleash feelings of aggression...." Id. at 36. Gay points out, however, that the Victorian decades also saw the flowering of social conscience and "the stem call for self-control, especially among the respectable middling orders of society . . . ." Id. at 37.
4. See id. at 37-39.
5. Peter Gay credits not Darwin but his predecessor, the English philosopher Herbert Spencer, for the ideas celebrating the triumphant aggressor explicit in his phrase, coined in 1862, "the survival of the fittest." Id. at 41. He also notes Spencer's repudiation of its implications. See id. at 44-45.
6. T.S. ELIOT, AFTER STRANGE GODS: A PRIMER OF MODERN HERESY 19-20 (1934).
7. GAY, supra note 3, at 68.
8. See Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions, 18 THE WASH. Q. 45 (1995).
9. Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions, 18 THE WASH. Q. Id.45 ( 1995).
10. See LAWRENCE H. FUCHS, JOHN F. KENNEDY AND AMERICAN CATHOLICISM 172 (1967).
11. This development is surveyed in Thomas M. Franck, Clan and Superclan: Loyalty. Identity and Community in Law and Practice, 90 AM. J. INT'L L. 359, 378-82 (1996).
12. CITIZENSHIP AND IMMIGRATION CANADA, DUAL CITIZENSHIP 2 (1991).
13. See THE NEW YORK TIMES MAGAZINE, Nov. 26, 1995, at 49 (discussing candidacy of Bruce Daniels).
14. MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENTS (1996).
15. See id. at 13-90.
16. GAY, supra note 3, at 186.
17. Id. at 187.
18. Before the emergence of autonomy, especially in the form of voting rights for the middle class male, it was accepted dogma of governance "that constituted authority alone understands, and alone acts to realize, the true needs of society. Almost by definition, kings - or, in republics, magistrates - serve their state; factions only serve themselves. Hence, down to the eighteenth century - and into the nineteenth - opposition implied intrigues, conspiracies, even the threat of insurrection. [It was] cast in the lurid light of selfishness or treason." Id. at 215.
19. PAUL R. ABRAMSON & RONALD INGLEHART, VALUE CHANGE IN GLOBAL PERSPECTIVE 1 (1995).
20. See, e.g., International Covenant on Civil and Political Rights, done Dec. 19, 1966, 999 U.N.T.S. 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, done Nov. 4, 1950, 213 U.N.T.S. 221, EUROP. T. S. 5, amended by Protocol 3, EUROP. T. S. 45, Protocol 5, EUROP. T. S. 55, and Protocol 8, EUROP. T. S. 118; American Convention on Human Rights, done Nov. 22, 1969, 1144 U.N.T.S. 123.
21. "[E]ven though ethno-national groups are thought to lack any formal legal personality, they are now treated with increasing frequency as the political equals of the governments they oppose, at least in international efforts at conflict resolution." David Wippman, Hearing Voices Within the State: Internal Conflicts and the Claims of Ethno-National Groups, 27 N.Y.U. J. INT'L L. & POL. 585, 589 (1995).
22. Spiro, supra note 8, at 53.
23. For a discussion of substatal actors as participants in the global legal discourse, see Peter J. Spiro, The States and Immigration, 35 VA. J. INT'L L. 121, 174-78 (1994).
24. See J.H.H. Weiler, Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision, 1 EUR. L.J. 219 (1995).
25. Id. at 244.
26. Id. at 249.
27. Id. at 250.
28. Id. at 251.
29. Id.
30. This would be equally true of a community constituted exclusively by persons who valued above all else, or even to the exclusion of all competing factors, the particular genetic, cultural, linguistic, and religious aspect of their identity, so long as the community did not preclude persons possessing these identity factors from freely choosing to affiliate with communities based on other affinities. Such a voluntarist ethno-cultural demos could choose to coexist with other demoi of which membership is based on shared civic and political values rather than ethno-cultural ones. In practice, however, the nation-based ethno-culturally exclusive community rarely adopts a benevolent live-and-let-live attitude to those of its members who choose another affiliation or towards other affinity groups. It tends to resist especially the notion of individual multi-loyalty, perhaps, as Professor Weiler has suggested, it "rests . . . in a normative view which wants national self-identity - identified with the State and its organs - to rest very deep in the soul, in a place which hitherto was occupied by religion." Id. at 255. It may be ventured, however, that the momentum of the modern age is not with such an absolutist quasi-theological view of the state (nor, for that matter of religion itself).
31. See THOMAS AQUINAS, 57 SUMMA THEOLOGIAE, Pt. 3, Question 68 art 7 (J. J. Cunningham trans., 1975).
32. Dieter Grimm, Does Europe Need a Constitution? 1 EUR. L. J. 282, 296 (1995).
33. Id. at 297.
34. Id.
35. Jurgen Habermas, Remarks on Dieter Grimm's 'Does Europe Need a Constitution?', 1 EUR. L.J. 303, 305 (1995).
36. See id. at 306-07.
37. Id. at 307.
38. BENEDICT ANDERSON, IMAGINED COMMUNITIES 42-43 (rev. ed., 1991).
39. Alexander Wendt, Collective Identity Formation and the International State, 88 AM. POL. SCI. REV. 384 (1994).
40. Id. at 390. Although Wendt is speaking, here, of the formation of a global community of socialized states, his observation is equally applicable to the formation of transnational nongovernmental interest groups or factions that could be seen as the building blocks of a genuine international community or demos. See also THOMAS M. FRANCK & EDWARD WEISBAND, WORD POLITICS 129-47 (1972).
41. ABRAMSON & INGLEHART, supra note 19, at 3.
42. ID. at 7.
43. Id. at 111 (emphasis added).
44. ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITIONS AND PRACTICE 47 (1991).
45. Id. at 63 and authorities therein cited. The New York Times has continued to report on the "mutawwi, the religious police, who roam Saudi Arabia looking for violations of cultural and religious standards, including inappropriate dress, restaurants or shops open during the period for prayer five times a day, women smoking in public, women driving automobiles, women in public with men not their husbands or brothers, and even women who catch men's eyes." Steven Erlanger, Americans in the Desert Now Wonder How Long They Will Stay, N.Y. TIMES, June 29, 1996, at A5.
46. Erlanger, supra note 45, at A5.
47. GEORGE MOYSER, POLITICS AND RELIGION IN THE MODERN WORLD: AN OVERVIEW 12 (George Moyser ed., 1991).
48. Id. at 12-13. See also DAVID LITTLE ET AL., HUMAN RIGHTS AND CONFLICT OF CULTURES 17 (1988).
49. "There is increasing evidence that Williams' application of Christian teaching provided an important part of the intellectual framework and fundamental principles according to which the American doctrine of liberty of conscience and religion was worked out in the eighteenth century by Thomas Jefferson and James Madison. Jefferson's Statute for Religious Freedom, adopted by the Virginia Legislature in 1786, and Madison's Memorial and Remonstrance against Religious Assessments, published in 1785 in indirect support of the Statute, cannot be understood apart from the arguments so forcefully articulated by Williams and picked up and conveyed to Jefferson and Madison by figures like John Locke and, later, the Separate Baptist Isaac Backus." MOYSER, supra note 47, at 24.
50. Id. at 25.
51. ERNEST GELLNER, THOUGHT AND CHANGE 169 (1964).
52. ERNEST GELLNER, THOUGHT AND CHANGE Id.169 ( 1964).
53. See Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG. 1, 2 (1992).
54. See WILMSEN & MCALLISTER, THE POLITICS OF DIFFERENCE 17 (1996).
55. See Franck, supra note 11, at 360 (discussing this point).
56. For example, U.S. law has greater constitutional tolerance for refusals to salute the flag, recite the pledge of allegiance and even for flag burning. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (refusal to salute the flag).
57. HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE ELECTRONIC FRONTIER 5 (1993).
58. Id. at 62.
59. Id. at 264-65.
60. Stephen G. Jones, Understanding Community in the Information Age, in CYBER SOCIETY: COMPUTER MEDIATED COMMUNICATION AND COMMUNITY 10, at 16 (Steven G. Jones ed., 1995).
61. Id. at 18. See also EDWARD W. SOJA, POSTMODERN GEOGRAPHIES: THE REASSERTION OF SPACE IN CRITICAL SOCIAL THEORY (1989).
62. HAROLD K. JACOBSON, NETWORKS OF INTERDEPENDENCE: INTERNATIONAL ORGANIZATIONS AND THE GLOBAL POLITICAL SYSTEM 10 (1984).
63. Id. at 14.
64. See ELISE BOULDING, BUILDING A GLOBAL CIVIC CULTURE 35 (1988).
65. Robin Wright, World Report, L.A. TIMES, Oct. 12, 1993, at 1 (citing U.N. Human Development Report (1993)).
66. See Elizabeth Venant, Call to Duty, L.A. TIMES, Jan. 6, 1992, at E1.
67. See Union Body to Fight for Workers ' Rights in Trade Pacts, REUTER BUS. REP., June 14, 1996, available in LEXIS, NEXIS News Library, Curnews file.
68. See JACOBSON, supra note 62, at 10.
69. See id.
70. Id. at 13.