1
[A Trio of Seminars—Short Version: Seminar One: 15.iv.13]
A Trio of Seminars on Sovereignties: Seminar One*
The First Sovereignty Seminar: The Political
Peter McCormick
Political Sovereignties
Overviews
§4. Political Sovereignties: A State Sovereignty Account
4.1 A Contemporary Account
4.2 The Sovereign States System
4.3 Presuppositions and Critical Questions
Discussion Seminar One §4 and Concluding Remarks
§5. Political Sovereignties and Signs of Power
Funereal Masks and Mycenae’s “King Agamemnon”
5.1 Mycenaean Civilization
5.2 Golden Masks
5.3 After the New Archeologies
5.4 Status Burials
Discussion Seminar One §5 and Concluding Remarks
*Copyright C 2013 by Peter McCormick. All rights reserved.
Draft Only: not authorized for citation in present unrevised form.
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§6. Burials, Institutions, and Cultural Meanings
6.1 Evolutionary Development and Decline
6.2 General Institutional Balance
6.3 Relative Cultural Pre-eminence
Discussion Seminar One §6 and Concluding Remarks
§7. Philosophical Significance: Law and Limited Political
Sovereignties
7.1 Rules, Laws, and Political Limits
7.2 The Rule of Law and the Nature of Law
7.3 Law and the Limits of Political Sovereignties
Discussion Seminar One §7 and Concluding Remarks
§8. A First Set of Interim Conclusions:
Bounded Sovereignties I
8.1 Kinds of power
8.2 Forms of political life
8.3 Results of developing dependencies
Concluding Remarks and Transition
3
In Brief

One influential account of sovereignty today1 in the history of
ideas focuses sharply on the nature of political sovereignty in
particular.

Besides providing both a series of distinctions between different
types of political sovereignties and an extensive historical
presentation of the development of political sovereignties since
the late 16th and early 17th centuries, this account highlights the
key notion of state sovereignty.

State sovereignty here is to be understood in the jurisdictional
sense according to which the bordered territories of states “are
spheres of authority exclusive to themselves.” 2

Historically, European nation states have developed a system of
state sovereignty that has several distinguishing features. This
system today has become globalized and, despite the challenges
of some alternative state systems such as those based not on
political sovereignty but on the checks and balances model, the
sovereign states model remains the major international geopolitical framework today.

Like every such overarching conceptual framework, the
globalized sovereign states system has a number of
presuppositions.

These presuppositions raise a series of critical questions. They
also suggest as well the interest of renewed historical inquiry
into the origins of European culture in the Aegean Bronze Age
1
See R. Jackson 2007.
2
Ibid., p. 149.
4

especially where much recent work has provided new
archeological, cultural, and philosophical understanding.
Inquiry into the earliest European backgrounds for an enlarged
understanding of today’s overly narrow interpretations of
sovereignty as almost exclusively political sovereignty focuses
on the idea of state sovereignty as a limited sovereignty.

Proto-European Mycenaean culture in roughly the second half of
the Aegean Late Bronze Age (ca. 1600-1200 BCE), despite its
conquest of the Minoan culture of Crete and the destruction of
the culture of Troy in Asia Minor, arguably reached its zenith in
Mycenae itself ca. 1500 BCE.

The symbolic representations of this highpoint of Mycenaean
culture may be found especially in the golden funereal masks
entered with the bodies of the highest of Mycenae’s several
leaders in the shaft graves of Mycenae’s grave circles.

Archeological interpretations of these artifacts point to a unique
institution in Mycenae at its zenith not of a king as such but of a
king-like figure called a wanax.

Mycenae’s wanax enjoyed extraordinary political sovereignty
over his own fortified town as well as over virtually all the
Mycenaean towns of the southern Greek mainland Argolid.

Nonetheless, this political sovereignty, however extraordinary,
was clearly limited by at least two rather distant and rival
centers of political sovereignty, Pylos in Messenia and Thebes in
Boitia.3
 Reflection on the character of this limited political sovereignty
indicates the importance of three of its key elements:
For putting Greek expressions into English I follow throughout the “usual messy-ish
compromise” (Osborne 2008). “The usual messy-ish compromise,” Osborne writes,
“has been made in turning Greek words into English, opting sometimes for the
traditional form, sometimes for the strict transliteration” (p. viii).
3
5
evolutionary development and decline, general institutional
balance, and relative geo-political equilibrium.
§4. Political Sovereignties: A State Sovereignty Account
In this section we take up the first of the three types of
sovereignties that these seminars will be considering in detail,
political sovereignties. We start with an influential contemporary
account from mainly a political science perspective of the meaning of
political sovereignty in its current worldwide form of the system of
state sovereignties.
4.1 A Contemporary Account
For some years now, the distinguished Canadian political
scientist and historian of ideas, Robert Jackson, has been developing a
nuanced and widely influential account of state sovereignty.4 With
others, he has underlined the fact that political sovereignty in its
modern form derives mainly from the political settlements in Europe
after the Peace of Westphalia ended the terrible catastrophes of the
Thirty Years War.
5
In this historical sense, then, political sovereignty
as we know it today is “a specifically European innovation."
6
But today
sovereignty is no longer just a European concept but now also a
globalized concept as well. “The European way of government,”
Jackson 1990, Jackson 2000, and the relevant chapters in Jackson and Sorensen
2013.
4
See for example the historical account of Philpott 2010, partially cited in the
Endnotes below, and his earlier discussions in Philpott 2001.
5
Jackson 2007, p. 144. See Jackson’s summary historical sketch of the
developments of the notion of sovereignty from the Tudor monarch Henry VIII’s 1534
Act of Supremacy to the 2005 French and Dutch rejection of the European
Constitution (pp. 2-5) which he then elaborates in three chapters, pp. 24-113.
6
6
Jackson writes, “became a global system, and the only one known to
history. The entire planet was enclosed by it.”
7
4.2 The Sovereign States System
A review of modern European history from the perspective of the
history of political ideas shows the rather constant development of
democracies from monarchies. Although there have been many
intervening stages between the early modern dominance of
monarchical forms of government to contemporary forms of
democracy,8 the number of sovereign states has continued to multiply
to our own day. This fact of increasing sovereignty has brought with it
increasing homogeneity among different populations.
Thus, “populations have been shaped into peoples, knitted
together by transportation and communications networks, political and
military mobilization, public education and the like. . . . Parliaments
have been elected by an ever widening and now universal franchise.
Aristocratic and oligarchic political factions have become political
parties.”
9
Still, however new in its continuing historical developments, the
phenomenon of state sovereignty has preserved its old foundations.
That is, the European nation states making up the European system of
state sovereignty today continue to insist on their absolute state
authority. While cooperating with the United Nations and other
international organizations, these states recognize finally no higher
governing authority than their own. In a word, there is no world
7
Ibid., p. 144.
8
Ibid., pp. 144-150.
9
Ibid., pp. 148-149.
7
government to which the sovereign authority of European nation states
is subordinated.
Although European constitutions vary widely, whether written or
unwritten and so on, nonetheless we can put this idea of the absolute
sovereign authority of those European nation states making up the
state sovereignty system in constitutional terms. Thus, European
states “continue to possess constitutional independence, which is the
liberty to enact their own laws, to organize and control their own
armed forces and police, to tax themselves, to create and manage
their own currencies to make their own domestic and foreign policies,
to conduct diplomatic relations with foreign governments, to organize
and join international organizations, and in short to govern themselves
according to their own ideas, interests, and values.”
10
It is of course true that these European sovereign states appear
to have ceded some at least some of their otherwise absolute
sovereignty to the still emerging EU. Thus, the EU’s various instances
have been authorized to sign certain agreements with non-EU states
on behalf of all the EU member states. But this authorization has not in
any way replaced the persisting sovereign powers of individual
member states to sign other agreements with non-EU states in their
own names regardless of the EU. Moreover, while certainly according
in some matters the priority of EU law over national law, EU nation
states nonetheless still reserve the priority of their own national law
over many of the most areas of state sovereignty, such as budgetary
control and defense matters.
Thus, the ongoing development of the EU as a supranational
organization does not so far entail any major cessions of state
sovereignty, as the February 2013 contentious quarrels over the next
EU five year budget demonstrated. Whether this will remain the case
over the near to mid-future seems relatively certain.
10
Ibid., p. 149.
8
The European state sovereignty system then is to be understood
today and for the indefinite future as an almost absolute form of state
sovereignty. This form can be understood relatively easily in both
jurisdictional and constitutional terms. Whether there may be good
reason for anticipating some more advanced forms of limited state
sovereignty in the European cultural values eventually to be
entrenched in a new European constitution remains unclear. For the
presuppositions of the actual European state sovereignty system
remain for the most part unaddressed in any sustained critical form.
4.3 Presuppositions and Critical Questions
What then are these presuppositions?
One effective way to identify many if not all of the
presuppositions of the actual European state sovereignty system is to
enumerate some of what most citizens in these European states
appear to assume with respect to proper government.
Thus most European citizens today live on the working
assumptions that the state in which they are citizens has clearly
defined borders. This is especially the case after the extremely
consequential following the First World War in 1922 and then those
following both the agreements among the victorious allies close to the
conclusion of the Second World War at Potsdam and the informal
adjustments following upon the reunification of Germany in 1991 and
the collapse of the Soviet Union in 1993.
After such unparalleled experiences as what some have called
“The European Civil Wars,” European state borders became sacred –
they could no longer be modified. A first presupposition of the
9
European state sovereignty system then might be called “The
Unchangeable Borders Assumption” (say, the BA assumption)
11
Most citizens also assume that there highest political
responsibilities and obligations are those deriving from their own
national governments. These governments are the highest political
authorities for the citizens of European states. Citizens’ rights and
responsibilities do not derive either from a political party, or from the
EU, or from the UN, or from any other political instance whether
European or global. We might call this second presupposition “The
Highest Political Authority Assumption” (say, the PA assumption).
Still another presupposition of the citizens of those states
forming part of the European state sovereignty system is that the laws
of their own country are those that directly apply to their activities and
that the laws of other countries have no proper bearing on those
activities. If there are EU laws, then citizens assume that only those
EU laws that are recognized by their own country’s highest legal
instances are in force. And those EU laws are in force not because of
any EU higher legal authority but only because their own particular
state has in its own right carried over these laws into their own
national sphere. Perhaps this third presupposition we might call “The
Highest Legal Authority Assumption” (say, the LA assumption).
A final presupposition for our purposes is the assumption on the
part of most citizens in their own state that, just as their own European
sovereign state is composed of citizens, so other European states are
also composed of citizens. The idea that one’s own state may also
include persons who are not citizens, or who are merely transient, or
In current international law this assumption is called, somewhat obscurely, “The
uti possidetis Principle” (“as you have, so may you hold”). This principle applies both
to a colony’s borders when it becomes a state as well as to a state’s retaining any
moveable public property “in its possession on the day hostilities ceased” ( Oxford
Dictionary of Law 2009).
11
10
who are citizens of more than one state, or who are also citizens of the
EU (as the passports of member states of the EU show on their
covers), does not ordinarily come to mind for most European citizens.
Here then is a fourth presupposition of the European sovereign state
system, one we might call “The Citizenship Assumption” (CA).
Now each of at least these four working assumptions point to
certain presuppositions of the European state sovereignty system.
Thus, this system presupposes that all actual European nation states
are territorially sovereign in the sense that their borders can no longer
be modified. Further, the system presupposes that legitimately elected
European nation state governments enjoy quasi-absolute political
sovereignty in the sense that there are no higher political authorities
to which its citizens are properly to be subjected.
Moreover, the system also presupposes similarly that a European
nation state’s legal institutions are completely sovereign in the sense
that the code of laws they administer are subject to no other code of
laws elsewhere. And finally the European system of state sovereignty
presupposes that a European nation state’s citizenship is sovereign in
that it takes absolute priority with respect to rights and
responsibilities over any other membership or citizenship in another
state or states.
But even when charitably taken together instead of interrogated
one by one, these presuppositions of the actual European state
sovereignty system raise serious issues that invite further reflection.
For as a whole these presuppositions confront reflective persons with
the basic issue of the extent of political sovereignty as such.
Can political sovereignty, under its present working
understandings in the nation state of the European state sovereignty
system, be properly understood as absolute, as quasi-absolute,or a
relative? And if relative, as arguably is the case, then to what extent
relative?
11
Concluding Remarks
Are we finally to understand at the end of these reminders from
the domains of political science and the history of ideas that political
sovereignty is in some strong sense not absolute but limited
sovereignty? Moreover, if political sovereignty is limited sovereignty,
are there good enough reasons for holding after further reflection that
political sovereignty is, necessarily, limited?
To try to get some critical distance on such issues that arise
from certain presuppositions of the European state sovereignty system
I would now like to put into discussion a historical case study. The
case in question will be one of three that I will select from the very
origins of European culture where questions of sovereignty whether
absolute or limited took a very different but nonetheless very
consequential form for our own continuing reflections today. We do
well then I believe to look for a moment at the related ideas of political
power in Mycenaean culture in the Aegean Bronze Age.
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§5. Political Sovereignties and Signs of Power
Funereal Masks and Mycenae’s “King Agamemnon”
We begin our concerns here with enlarging current overly
political understandings of sovereignties by recalling culturally
meaningful and philosophical significant features of some of the most
important artworks from the origins of European civilization today in
the formative Aegean Bronze Age (ca. 3000 to 1200 BCE).i
We first take up several salient features only of the manifold
cultural meanings of the appearance in the middle and late second
millennium BCE of the embossed golden funerary masks of the Middle
Helladic Period Mycenaean civilization (ca. 1800-1500 BCE). The
objects come from the Argolid peninsula on mainland southern Greece
and its natural sub-regions of low mountains and valleys south of
Corinth and off the Saronic Gulf opposite the island of Aegina and
Salamis near Athens.
In order to bring out some of the philosophical significance and
not just cultural meaningfulness of these extraordinary funereal
masks, we will draw on several suggestive discussions today in both
contemporary archeological approaches to understanding the Aegean
Bronze Age and in contemporary moral and political philosophy. In the
case of archeology we will take our bearings from recent interpretive
approaches that have followed on the diversification of archeological
theorizing at the outset of the new millennium.
And in the case of moral and political philosophy, which we have
not yet written up here for these preliminary seminars, we will take our
bearings from debates about the nature of those ethical and political
values at issue in the quite important ongoing discussions between
two internationally distinguished philosophers of law, Ronald Dworkin
and Scott Shapiro, about, in particular, political sovereignties.
13
We will come to find that an historically representative preamble
to any eventual EU constitution would do well to make room for
incorporating at least some of the ethical and political values of norms
and lawfulness that may emerge from fresh interpretative reflection on
several of the deeply suggestive Mycenaean origins of Europe today.
5.1 Mycenaean Civilization
We may begin by stepping back from the well-known
catastrophes of the Persian Invasions of mainland Greece of 490-480
BCE to an earlier and less well-known set of catastrophes in roughly
the mid-1500s BCE. These events took place quite close to the very
cultural beginnings of Europe that began to terminate the most
successful period of Mycenaean Civilization at the end of the Early
Palatial Period.ii And it is just here that we come upon some of the
most extraordinary artworks of that civilization.
Archeologists have uncovered these buried artworks and those
like them within fortified citadels and various kinds of graves in the
Argolid at Mycenae, Epidaurus, Argos, Tiryns, Nauplion, Asiné, and
Midea and at Lerna on the Argolic Gulf across from Nauplion. They are
dated to roughly the late sixteenth century BCE.
What archeologists today call “Mycenaean Civilization”
12
encompasses a variety of quite different sites and finds first centered
mainly in the hilly Argolid region on the north-east corner of the
Peloponnese. Later in their history, the mainland Mycenaeans invaded
many of the Aegean Islands as well as Crete (from about 1450 BCE).13
In general, for Mycenaean civilization see Bintliff 2012, pp. 181-205, with
bibliographies, Chadwick 1976, Shelton 2010, pp. 139-148, Wright 2008, and Crowley
2008. For the Greek texts see especially Duhoux and A. Morpurgo Davis 2008-2011.
12
14
Some hold that, in alliances with other cities of Achaia and the
Peloponnese, they also besieged Troy,14 the Ilios of Homer15 (who
refers to “Asiné” but once), on the Anatolian or Ionian coast.iii In
central and eastern Crete they established a thriving province of its
own centered on the much older conquered palace city of Knossos.
Mycenaean culture reflected closely the contemporaneous
somewhat severe high palace cultures on the Greek mainland. But the
more developed Cretan palace cultures continually enriched the later
Mycenaean culture that conquered them. For multiple reasons,
however, and very much like other cultures in the very late Aegean
Bronze Age, Mycenaean civilization itself collapsed roughly in the
period from 1200-1150 BCE.16
Each of these archeological sites on Greece’s southern mainland
of course has its own history, and several have their own archeological
museums.iv But the major part of the most important artifacts
discovered in the later Argolid Mycenaean cities such as in Mycenae
itself as well as in Epidaurus,17 Argos,18 Tiryns,19 and others, are still to
be found in the extraordinary collections of the National Archeological
Museum in Athens.20
13
Morkot 1996, pp. 26-27.
14
Jablonka 2010.
15
See Morris and Powell 1997.
See the nuanced discussion in Bintliff 2012, pp. 184-185. For the collapse of the
Aegean Bronze Age generally see Deger-Jalkotzy 2008.
16
17
See Finley 1977, pp. 160-161.
18
See Finley 1977, pp. 158-159.
19
Maran 2010.
15
Here, we may consider briefly the Mycenaean masks and crowns
found in the so-called “Treasury of Atreus”
v
at Mycenae,21 the place
that Homer, in one of his many memorable epithets, called “rich in
gold.”
5.2 Golden Masks
Perhaps the most important of the several embossed golden
masks from Mycenae and from other related sites in late Helladic
Period Greece is the so-called “Mask of Agamemnon,” now on view in
the outstanding Mycenaean Collection of the National Archeological
Museum of Athens.22
In the 1870s, when Heinrich Schliemann discovered this quite
beautiful artifact used to cover the face of an immensely wealthy royal
personage, he believed that the mask was the death mask of
Mycenae’s historical but also much fabled King Agamemnon.23
Accordingly, Schliemann thought that the mask was to be dated from
sometime in the thirteenth century BCE. Later examination, however,
demonstrated that the mask was to be dated more accurately from the
mid-sixteenth century and hence could not be Agamemnon’s. But the
name Schliemann gave the mask remains to this day.
Schliemann uncovered the “Mask of Agamemnon” in Grave V of
20
Zafiropoulou 2009.
21
See French 2002, and French and Iakovidis 2003.
Demakopoulou 2009. Colour photographs of selected Mycenaean materials can be
seen in Iakovidis 1979, pp. 54-65, and in Demakopoulou 2009, pp. 17-23.
22
23
For the history of archeology see Trigger 1995.
16
Grave Circle A of the royal shaft graves24 of the Mycenaean royal
leaders or “kings” in the fortified acropolis of Mycenae in the Argolid
dominating the Argos plain to the south-east. The golden mask was but
part of the many luxurious funerary objects25 which Schliemann
discovered in 1877 in the six tombs of Grave Circle A dating from ca.
the 1500s. Very much later, in 1951, archeologists discovered many
other richly fabricated grave goods in the still earlier tombs of Grave
Circle B.26
Besides the so-called Mask of Agamemnon in Grave V of Grave
Circle A, Schliemann also discovered two other gold embossed
funereal masks in Grave IV of Grave Circle A. Accompanying the two
masks from Grave IV were a golden drinking vessel, called a rhyton,27
in the form of an lion’s head and a silver rhyton in the shape of a bull’s
head. Also found in Grave IV and in Grave V accompanying the Mask of
Agamemnon were bronze dagger blades elaborately but rather severely
inlaid with gold, amber, and a black precious filling called niello.28
These items were deposited with the bodies in the royal tombs as
part of elaborate funeral services whose details have only very
gradually come to light.29
A recent and brief overview of the peculiar nature of these shaft graves and the
two shaft grave circles (Shaft Grave Circles A and B) is in Bintliff 2012, pp. 171-172.
24
Photographs are in Higgins 1997, p. 153 and pp. 138-139; Preziosi and Hitchcock
1999, p. 151; and in Iacovidis 1979, pp. 60-65.
25
This tomb circle is called “Grave Circle B” instead of “Grave Circle A” because of
its discovery only after the discovery of the chronologically later Grave Circle A.
26
A rhyton is “a type of drinking vessel, often in the form of an animal’s head, with
one or more holes at the bottom through which the liquid can flow” (ODE).
27
Niello is “a black composition of sulphur with silver, lead, or copper, for filling
engraved designs on silver or other metals” (ODE).
28
17
While keeping in mind the artifacts that daggers accompanied in
these royal graves, comparing and contrasting briefly the three golden
funerary masks with each other is instructive. Since archeologists
consider the Mask of Agamemnon from Grave V to be perhaps the most
expressive of these objects, we may best begin with the two other,
reputedly less expressive masks from Grave IV. But first we need to
recall the situation of Aegean Bronze Age archeology today.
5.3 After “The New Archeology”
How are we to understand these extraordinary artifacts in
general and in particular the golden funerary masks and warrior arms?
Methodological approaches in archeology have developed very
greatly since the 1960s when traditional methods dating from the late
nineteenth century continued largely unchanged after the First World
War.30 Some of these newly developed approaches became so
important as largely to merit the name, “The New Archeology.”
Most archeologists began to use this expression to denote mainly
the characteristic and persistent application of recent scientific
developments and instrumentation, including information technology,
not just to the description but also to the explanation and
understanding of archeological artifacts.
The New Archeology, however, quickly inspired a reaction among
some more strictly historically oriented archeologists. Many of them
argued that, however helpful and often even necessary new scientific
methods and technologies might be, such approaches were not
29
See Cavanaugh 2008, pp. 337-339, and Bintliff 2012, pp. 192-194.
30
Cf. Johnson 2010 and Hodder 2012.
18
sufficient in themselves to elucidate adequately many archeological
items. On their view, exclusively scientific approaches could not deal
fully satisfactorily with many of the cultural and symbolic aspects of
the artifacts, assemblages, features, and sites that archeology studies.
The result was the emergence recently of more nuanced
approaches, at least to the interpretation of many artifacts if not to
their scientific descriptions and functional explanations. Studies
especially of the symbolic aspects of artifacts have led to still further
development of such rather traditional subsections of archeology itself
as social archeology31 and archeology and anthropology.32 Moreover,
these studies have led even to the relatively new subdivisions of
cognitive and even neuro-scientific archeology.33
When we return then to trying better to understand the artifacts
at issue here, the golden funerary masks and military arms of the
heyday of mainland Mycenaean civilization in the Argolid as well as
other artifacts we will be considering below, I think we do well to
consider briefly their cultural meaningfulness under the various
headings of the newer, more interpretive, or so-called “postprocessual”
vi
kinds of contemporary archeology.34
We may then leave for the professionals some of the importance
and interest of the many controversial chronological issues,
geomorphological, chemical, and paleo-botanical problems, and here
the metallurgical details as well. And perhaps we may focus more
broadly on the general elucidation of the architectural contexts and
cultural indices surrounding the find sites of these artifacts.
31
Cf. Renfrew and Bahn 2012, pp. 169-222; cf. Insoll 2011.
32
See for example Flannery and Marcus 2011 and the review by Turchin 2013.
33
Renfrew and Bahn 2012, pp. 381-420; cf. Renfrew and Zubrow 1994.
34
Renfrew and Bahn 2012, pp. 43-45.
19
5.4 Status Burials
As we have noted already, these artifacts are found in several
Mycenaean tombs dating from roughly the middle of the sixteenth
century BCE. The tombs are of a special sort. They are found inside a
special construction. That construction is situated at a special place.
And the site itself is to be found in an unusual locale. We may take
these briefly in reverse order.
Archeologists unearthed these particular funerary artifacts at
Mycenae at the northern edge of the Plain of Argos in the Argolid
Peninsula. Mycenae was but one of four Mycenaean settlements there,
each situated at one of the respective cardinal points of the Plain of
Argos, which also included the settlements of Argos itself as well of
Tiryns and Midea.35
For some time, however, until it came to surpass Argos itself as
the most important settlement bordering the Plain of Argos, Mycenae’s
relative status among the other Plain of Argos settlements remained
unclear. Moreover, when Mycenae finally did achieve political
preeminence over Argos, whether Mycenae became then merely a first
among equals or the clear leader in “a four-tier settlement hierarchy”
36
remains unclear even today.
But what does seem rather evident is that Mycenae achieved a
leadership position as a state-run palatial redistributive economy amid
the Argolid Mycenaean settlements. And this was the case even if the
very important Mycenaean settlements at Pylos in Messenia and
Thebes37 in Boeotia38 continued to be its rival.39
35
Marzolf 2004.
36
Bintliff 2012, p. 186.
37
For Thebes see Dakouri-Hild 2010b, esp. pp. 694-696.
20
The major index that shows the political pre-eminence of
Mycenae at this period is the rather sudden appearance of the
prestigious, very high status type of tomb called the tholos tomb. The
tholos tomb occurs first in Pylos in Messenia. But the buried objects
from Mycenae are not just in tholos-type tombs but in the still more
distinctive shaft-grave sub-type of tholos tomb.
The shaft-grave sub-type of tholos tomb has the highest status
level of all the Mycenaean tombs of this period, from the archaic pit
and cist graves, to the most common chamber tombs, to the tholos
tombs themselves. 40 The archeological record shows that at one point
elites in Mycenaean Pylos41 in Messenia in the southwest of the
Peloponnese ceased to build such tombs. But subsequently the
building of such tombs first became the prerogative of the wealthy and
powerful Mycenae elite and finally the privilege of “the uppermost
princely dynasties” in Mycenae alone.42
Later, the wealthy and powerful in Tiryns, Lerna,43 and Asiné
seem to have imitated these tombs.44 But, to date, the nine tholos shaft
tombs found at Mycenae are the highpoint of Mycenaean status burial
sites. This evidence of high status burial sites becomes one of the
bases for the archeological view that sees Mycenae reaching the peak
38
For Boeotia see Dakouri-Hild 2010b, esp. pp. 617-619.
39
Bintliff 2012, pp. 185-186, and 193.
40
Cananagh and Mee 1998, and Mee and Cavanagh 1990.
41
Davis 2010, esp. pp. 683 and 697.
42
Bintliff 2012, p. 193.
43
Wienke 2010, esp. pp. 664 and 667.
44
Ibid. See also Voutsaki 2010, pp. 603-604.
21
of its power with the construction of the shaft grave burials with their
extraordinary golden artifacts.
A further point in favor of this hypothesis is that the particular
shaft graves in which these objects are found at Mycenae, Shaft
Graves IV and V, are among those to be found inside and not outside
the so-called “Grave Circle A” that Schliemann first uncovered on the
west side of the Mycenae acropolis. The Mycenaean elites constructed
Grave Circle A and the somewhat earlier circle45 Grave Circle B that
encloses these shaft graves at the summit of the acropolis as
presumably a place of quite special dignity reserved for their very
highest leaders.46
These leaders must have been particularly resourceful. For “the
extension of the citadel to the west to enclose the Grave Circle and
the Cult Center,” as one specialist has written recently, “was a very
considerable enterprise and must have commanded the city’s full
resources. The plan included changing the approach, constructing a
monumental gate (the Lion Gate . . .) and completely altering and
refurbishing the Grave Circle . . . at a higher level to make a singularly
impressive sight to one entering the walled acropolis.”
47
The person
who issued such commands must have been the leader himself of a
settlement, the settlement having now become perhaps the leading
city of the Mycenaean culture itself.
This person or his immediate predecessors or followers were
those who were buried in Shaft Graves IV and V with the golden
As already noted, these tombs were discovered later and hence called according,
to the order of discovery and not to the chronological order, “Grave Circle B.”
45
Cf. French 2010, p. 673. French reproduces annotated maps of both Greater
Mycenae and Mycenae from the Mycenae Archive resources available to scholars.
46
47
Ibid., p. 675.
22
funereal masks and the warrior arms. Such a person was the leader of
Mycenae. He was no longer merely a chieftain, or a so-called “Big
Man,” the leaders of earlier much less developed settlements.
Who was this person? He was perhaps a king-like figure. Most
probably this person was what the Mycenians themselves called not a
“lawagetas” or “leader of the people,” but a “wanax” or “supreme
leader.” This is what Homer had in mind when he called Agamemnon
the “wanax” or “lord of men.”
48
What we need to note in particular, however, is that the sixteenth
century Mycenaean king-like figure, or wanax, could not have at that
time exercised absolute political sovereignty over the Mycenaen
civilization. For there were members of his own presumably dynastic
family to consider. There were also the leaders of the rival cities of the
Plain of Argos, especially of the Argos elites who wanted to reassert
their earlier dominance.
Farther away to the southwest were the elites of Homer’s “sandy
Pylos” who were still developing their own power, perhaps more
intermittently than those of Mycenae but nonetheless rather steadily.
And there were above all the elites of Mycenaean Thebes not so far
away to the northeast whose appetites for eventual absolute
sovereignty49 were still tempered by their rivals in Orchomenos.50 That
is to say, the political sovereignty of the Mycenaean lord or wanax was
not an absolute but a truly limited political sovereignty.
48
Shelmerdine and Bennett 2008, pp. 290, 29O, and 292 respectively.
Partially evident perhaps in their construction of the island fortress, Gla, at the
northeast of Lake Copias in central Greece. See Bintliff 2012, pp. 190-191 and the
aerial photograph reproduced from Schoder 1974.
49
Cf Bintliff 2012, pp. 192-199. Note that Mycenaean Linear B tablets do not include
any political and diplomatic archives. See Palaima 2010, esp, pp. 358-359.
50
23
We need then to investigate first just what such a limited political
sovereignty might mean in itself, and then second to specify if we can
the philosophical significance of such a limited political sovereignty in
the contexts of an eventual prelude to an EU constitution.
24
§6. Burials, Institutions, and Cultural Meanings
6.1 Evolutionary Development and Decline
When from the perspective of our concerns with enlarging today’s
rather constricted understandings of sovereignty as almost exclusively
political or state sovereignty, we look back over these brief reminders
about Mycenaean culture at the origins of European civilization,
several considerations are salient. Perhaps foremost is the idea of a
culture’s rise and fall.
Mycenaean culture, like the several major Aegean Bronze Age
cultures that preceded it, namely the Minoan culture and the still
earlier Cycladic culture, developed in what might be called, rather
roughly,51 an evolutionary fashion.
52
The importance of this general point is that any attempt to
interpret not unsatisfactorily such material remains of this culture as
the golden artifacts of the high status burials in Mycenae must always
struggle with difficult matters of dating and chronology. For the
cultural meanings53 of such artifacts are necessarily rooted in a
particular moment of that culture’s development. Thus, the dating of
the burial of the so-called golden mask of Agamemnon matters much.
This is very important qualification given the notable failings of “cultural
evolutionism” dating from E. B. Tayor’s nineteenth-century work on the so-called
“cultural evolution” of religious beliefs. Some of these failings appear to be still
prevalent in several otherwise distinguished anthropological works today. See for
example the critical comments of Bashkow 2013 in his review of Diamond 2013.
51
“The idea of evolution has been of central significance in the development of
archeological thinking” (Renfrew and Bahn 2012, p. 27.). See for example White 1959.
52
53
On cultural meanings and archeology see Renfrew and Bahn 2012, pp. 381-420.
25
For if such an elite burial dates from a period in the particular
history of the settlement at Mycenae that is contemporaneous with the
elite burial practices of the Mycenaean settlement at Pylos, then one
might reasonably find in it much less cultural meaning than if it dates
from a later period when the elite burial practices at Pylos had already
ceased. In the first case, the golden artifacts found in the Mycenaean
elite burial sites would have to be compared with other fine artifacts
found in the Pylos sites. In the latter case, however, the Mycenaean
golden artifacts, with all their implications of not just high but perhaps
even of royal status, would have rather different cultural meanings.
Archeologists today are reasonably sure that the dating of the
Mycenaean artifacts are subsequent to the dating of the Pylos
artifacts. Accordingly, there are reasonable grounds for thinking that
the Mycenaean artifacts had a particularly strong cultural meaning in
terms of political leadership. Indeed, some would argue, as we have
noted, that Mycenae at this period was not just first among equals
amidst the three other major Mycenaean Argolid settlements; it was
pre-eminent. That is, Mycenae at this period exercised pre-eminent
political sovereignty over the Argolid.
6.2 General Institutional Balances
Looking back through the reminders we have assembled above
about Mycenaean culture, however, we come quickly upon another
salient point. This point is a linguistic one.
We recall the hesitations some archeologists still entertain about
the difficult issue of how exactly to characterize the pre-eminent
leader or leaders of Mycenae. Where Homer appears to have had no
doubts about the status of Agamemnon as King of Mycenae, today’s
archeologists hesitate to speak of Mycenae’s rulers as kings and
26
royalty.
Perhaps these hesitations are not fully grounded. Nonetheless,
even so astute an archeologist as Schliemann himself jumped all too
quickly to the rash conclusion that the golden mask he had uncovered
was the mask of King Agamemnon. Yet when the specialists had
finished their scientific investigations it turned out that the mask in
question was much older than any mask of the historical King
Agamemnon could have been. So the question arose as to whether at
that particular period in the development of Mycenaean culture the
indisputable elite burials were the burials of kings and royalty properly
speaking, or rather of pre-eminent leaders to be identified in other,
perhaps related but still quite different terms.
In these contexts the proposal arose that the elite burials in the
Mycenaean Shaft Graves of this period contained the remains of at
least several individuals who during their lives were not known
precisely as “kings” but as wanax. And once again, just as in the case
of the contemporaneity or not of the elite burials at Mycenae and
Pylos, the question arose as to whether, unlike a city-state’s king, a
Mycenaean settlement could have at one time more than one wanax.
Of course we cannot predict the future results of further
investigations of the Mycenaean settlements in the Argolid, in
Messenia, or in Boiotia. Perhaps further discoveries will resolve this
question definitively one way or another.
But right now we can already see that if the political structure of
Mycenae allowed of more than one wanax at the same time, then
however extensive the political sovereignty of a wanax was, it was
certainly not unlimited. That is, Mycenaean political sovereignty in the
period under discussion was perhaps limited not just regionally, as the
still controversial relative datings of the Pylos elite burials might
suggest. Perhaps Mycenaean political sovereignty was also limited –
27
and this is the second point -- with respect to any claim to individual
uniqueness.
6.3 Relative Cultural Pre-eminence
Reviewing still further the brief reminders of several of the most
remarkable features of Mycenaean culture when Mycenae itself was
arguably at the apogee of its cultural development brings into view a
third and for now final point. For whatever the indisputable military
powers of Mycenaean culture that enabled this mainland settlement to
project its interests to Crete and even to install that power at some of
the very culminating sites of Minoan culture such as Knossos,
Mycenae seems to have enjoyed even at its greatest extent less than
any properly speaking absolute political sovereignty.
Recall that Mycenae certainly gradually developed its own
cultural identity in the Argolid in conjunction with the other key
Mycenaean settlements there. Perhaps Mycenae was also able to rise
to a position of at least first among equals if not pre-eminence before
the consolidation of its commanding positions in Crete.
Still, archeologists have not had great difficulty in demonstrating
that much of Mycenaean culture generally in this period betrays the
almost overwhelming influence of Minoan culture on the Mycenaeans.
Although the historical situation of the Mycenaean occupation of
Knoss, for example, must certainly have evolved over time,
nonetheless the general cultural relationships between Mycenae and
Knossos seem to have been rather stable. What were those
relationships?
The Mycenaeans who establish themselves by conquest at
Knossos were certainly not to be understood as military barbarians
without any culture of their own. We have already seen just how varied
28
and extensive Mycenaean culture was before the spreading to Crete.
That culture we know was far more extensive than simply the
construction of elite tombs. The architecture, the social organisations,
the complex diplomatic relations among the different Argolid
settlements, and so on – all testify to an extensive indigenous culture.
Still, many archeologists have come to believe that, however
extensive their own culture was and however dominant their own
position as conquerors was in Crete, the Mycenaeans who came to
Crete fell quickly under the cultural influence (some would say
dominance) of the Minoans. For the Minoans represented not only an
older culture than the Mycenaean; the Minoans had developed that
culture to a greater degree than the Mycenaeans had developed their
own.
The evidence stood before the eyes of the Mycenaeans when
they occupied the palace at Knossos with its truly extraordinary
architecture, spaces, frescoes, and so on. Moreover, even more
impressive to the Mycenaeans was the testimony to a higher cultural
achievement of the conquered Minoans furnished by their now written
languages. For, in settling themselves comfortably at Knossos and
perhaps also at Phaistos, the Mycenaeans came upon not only Linear A
and Linear B scripts; they also came upon the so-called pre-palatial
Archanes script.
54
What very much seems to be the case, then, is that Mycenaean
political sovereignty was not only limited individually and regiona lly
but even more so in terms of the larger world. No Mycenaean leading
political figure visiting the conquered territories of Crete could neglect
the evidence of his eyes. However powerful his armed forces, that
leader’s cultural pre-eminence could no longer be simply assumed. For
the extraordinary extensiveness of Minoan cultural developments
54
See Tomas 2012 in Cline 2012, pp. 342-343.
29
clearly demonstrated that the political sovereignty was now limited in
at least a third and truly significant way. Mycenaean political
sovereignty seems to have also been limited culturally.
30
§7. Philosophical Significance: Law and Limited Political
Sovereignties
When we look back through the analyses of sovereignty in the
almost exclusive terms of political state sovereignty, and then the
descriptions and apparent cultural meanings of the signs of Mycenaean
political powers, we come upon the realities of definite limits. In this
final section of Seminar One we now need to reflect on the nature of
these limits on both the historical realities of Mycenaean power
politics and their philosophical suggestiveness with respect to the
nature of limited political sovereignties.
7.1 Rules, Laws, and Political Limits
Both the history of the European early modern period at the time
of the Peace of Westphalia after the Thirty Years War of 1618 to 1648
and the history so much earlier towards the end of the European
Aegean Bronze Age of the Mycenaean ascendancy from roughly 1500
to 1200 BCE, show the omnipresence of regulations and rules. For each
widely separate period in European history in however different ways
shows many of the hallmarks of the political state. Above all, there is
the centralization of economic, social, and individual power based
upon a relative monopoly of military dominance.
Contemporary political science and social theory, however, have
taught us rightly that such degrees of centralization are impossible
without the imposition of strict behavioral guidelines, regulations, and
rules for governing groups of people with individual needs, interests.
Moreover, whatever the differences in both the Westphalian and the
Mycenaean cases, the imposition of such different kinds of effective
governance rules is physically enforced. And in both cases the
31
instruments of physical enforcement are various forms of military
force.
The evidence of such enforced regulation is of course quite
different in each case. For the order that the European state leaders
imposed on their peoples at the end of the Thirty Years War we have,
most notably, fully preserved written evidence in the form of the Treaty
of Westphalia. For the order, however, that the Mycenaean leaders
imposed on their peoples at the zenith of their hegemony over the rival
towns of the Argolid we have but partially preserved monumental
evidence in the form of extraordinarily made ashlar fortifications and
golden funerary artifacts. But, however different the character of this
evidence, in each case such evidence could not exist without the
conditions of rule-governed political, social, and individual behaviors
having been fully met.
The central point here then becomes apparent. For groups of
people to succeed in organizing their lives with sufficient security and
well-being, rules of some sort and their physical enforcement are
necessary. What forms these rules and their enforcements take,
however, are contingent on various factors such as climate,
geography, demography, and so on. But among the most important
factors shaping these contingent forms of regulation and enforcement
is the relative social development of the groups in question. And to
some important degree this social development can be measured.55
In some but not all cases of socially developed societies the
necessary rules for the governance of complex groups assume the
form of laws. In the history of European civilization, rather
compendious lists of inscribed laws appear quite early, for example in
the law codes56 of Hammurabi in Babylon or in the early Israelite law
55
Morris 2010, pp. 623-645, and Morris 2013, pp. 1-52.
56
In general see Grandpierre 2010, pp. 275-285 and in particular Roth 1997.
32
codes in the Hebrew Bible’s books of Leviticus and Numbers.57 But
before such inscriptions of law codes, oral rules surely most have been
prominent. And, as the Israelite sources show, some of these oral
prescriptions were surely law-like.
Thus, effective social groupings, the archeological and historical
records show, required kinds of organized rules and regulations, that
properly enforced, sometimes assumed the form of inscribed or written
laws that governed and thereby limited both individual and social
behaviors.
If we now narrow our concerns to the nature of the law itself, we
may come to understand somewhat better just how not just rules and
regulations but also and pre-eminently laws themselves necessarily
limit sovereignties.
7.2 The Rule of Law and the Nature of Law
The major principle of social organization in both the Aegean
Bronze Age Mycenaean societies and in the Early Modern European
societies, one might be tempted to say, was one that both held in
common, although in different forms. This major principle was finally
“the rule of law.” In the case of Mycenae, the rule of law was
effectively what the ultimate leader, the wanax, wanted; in the case of
the Westphalian polities, the rule of law was effectively what the
treaty codifed.
This view however would be mistaken. For although so-called rule
of law in so far as it specifies rules and regulations, penalties and
punishments that allow for the effective governance of social groups
whether in the Bronze Age or in Early Modern Europe, might appear to
57
In general see Knight 2011 and in particular Coogan 2010; pp. 141-245.
33
be a common European cultural inheritance, in fact the rule of law is
an expression that is rife with ambiguities.58 Moreover, the rule of law
is opposed to the rule of despots which could arguably have been the
case in either Mycenae or in one of the Westphalian states.
The discussion today of just what constitutes the rule of law goes
back mainly to the important work of the late nineteenth century,
Oxford Professor of Law, A. V. Dicey.59 And commentators today
continue to interpret both the matter itself as well as Dicey’s own
views in remarkably different ways.60 One of the most authoritative and
recent works on the concept of the rule of law summarizes the core of
this notion as currently understood: “all persons and authorities within
the state, whether public or private, should be bound by and entitled to
the benefit of laws publicly made, taking effect (generally) in the future
and publicly administered in the courts.”
61
Now such an understanding will not fit either the Westphalian or
the Mycenaean cases, for neither could satisfy at once all the
conditions here, however few. The rule of law on current understanding
then is “not comprehensive and not universally applicable.”
62
Nevertheless, once the expression is examined carefully, one comes
upon a more elaborate representation of the rule of law that can help
us see the differences between the ancient and the modern
Cf. a standard definition of “the rule of law” as “A system of governmental behavior
and authority that is constrained by law and the respect for law in contrast to
despotic rule” (Bedau 2005).
58
59
Dicey 1945.
60
See Bingham 2010, pp. 3-5.
61
Ibid., p. 37.
62
Loc. cit.
34
understandings of the regulatory nature of the effective governance of
human societies.
On the same distinguished reading this elaboration of the rule of
law involves at least eight major claims that we may cite as follows.63
“The Accessibility of the Law (1) The law must be accessible and
so far as possible intelligible, clear and predictable” (p. 37).
Here, if intelligibility and clarity are reasonably to be found in both of
our test cases, predictability is problematic in the ancient one.
“Law not Discretion (2) Questions of legal right and liability
should ordinarily be resolved by application of the law and
not the exercise of discretion” (p. 48).
Here, both the early modern and the ancient cases would seem to
award a strong place to discretion.
“Equality Before the Law (3) The laws of the land should
apply equally to all, save to the extent that objective
differences justify differentiation” (p. 55).
Here, it is difficult to see how such equality before the law could hold
the case in either case.
“The Exercise of Power (4) Ministers and public officers at
all levels must exercise the powers conferred on them in
good faith, fairly, for the purpose for which the powers were
conferred, without exceeding the limits of such powers and
not unreasonably” (p. 60).
Here, assuming we are talking about honest ministers, then this aspect
of the rule of law does seem applicable in both cases.
63
Bingham 2010, pp. 37-129.
35
“Human Rights (5) The law must afford adequate protection
of fundamental human rights” (p. 66).
But the notion of human rights is absent in the ancient case and
present only very implicitly in the early modern one.
“Dispute Resolution (6) Means must be provided for
resolving, without prohibitive cost or inordinate delay, bona
fide civil dispute which the parties themselves are unable to
resolve” (6).
Both the early modern and the ancient case appear to incorporate this
notion.
“A Fair Trial (7) Adjudicative procedures provided by the
state should be fair” (p. 90).
Historical evidence appears to show that neither the early modern nor
the ancient instance could satisfy this notion.
“The Rule of Law in the International Legal Order (8) The
rule of law requires compliance by the state with its
obligations in international law as in national law” (p. 110).
Here, the evidence appears to show that in the ancient case this
aspect did not apply whereas in the early modern case, owing to the
international character of the treaty, this aspect did apply.
Now, when we go through the results of this attempt to
understand more fully the nature of the constraints the various rules
and regulations, punishments and penalties that comprised effective
governance in both the ancient and the early modern examples, we
come upon two important points. First, the greatly ambiguous notion of
the rule of law, even when elaborated in detail, does not allow of
sufficient generalization to account for the practices in both the early
modern state and the ancient one. And, second, the notion of law that
36
the polyvalent expression “the rule of law” incorporates requires
elucidation. We will now take up that elucidation in the following subsection.
7.3 Law and the Limits of Political Sovereignties
Unsurprisingly, contemporary philosophers of law disagree about
just what the law is. Looking at one of the major disagreements today
about what law is will bring us to a fuller appreciation here of just what
the limits of political sovereignty come to.
The majority contemporary view on the nature of law in Englishlanguage philosophy of law (also called legal philosophy)vii comes down
from the work of the Oxford philosopher of law, H. L. A. Hart (19071992), especially from his most prominent work, The Concept of Law
(1961) and Law, Liberty and Morality (1963).64 Hart’s most illustrious
student, successor at Oxford, and prolific critic was the American
philosopher of law, Ronald Dworkin (1931-2013) whose most important
works were probably the two books, Law’s Empire (1986) and Justice
for Hedgehogs (2011).65 Hart’s later student and successor at Oxford,
defender, and critic of Dworkin is Joseph Raz (1941 -- ). His most
important works include The Authority of Law (1979), Practical Reason
and Norms (1990 [1975]),66 and The Practice of Value (2003).
In the philosophy of law today it is customary to distinguish
between analytical and critical philosophy of law.67 Roughly speaking,
64
See Hart 1994, Coleman 2001, and Hart 1963. On Hart cf. MacCormick 2004.
See also Dworkin 1978, Dworkin 1985, and Dworkin 2000. On Dworkin cf. Guest
2013.
65
66
See also Raz 1986 and Raz 2009. On Raz cf. Marmor 2011, pp. 60-83.
67
See Finnis 2005 in Honderich 2005, pp. 500-504.
37
analytical legal philosophy treats, among other matters, the definition
of law and of legal concepts, while critical legal philosophy treats, also
among other things, the evaluation of laws and legal systems.viii In
analytical works we find a variety of accounts of the nature of law.
Two of the most recent and distinguished deserve our attention here.
The first, Scott Shapiro’s Legality (2011) is strongly in the tradition of
Hart and Raz, while the second is the final magisterial work of Dworkin
himself, Justice for Hedgehogs (2011).
Roughly, for Shapiro what determines the nature of law is society
and in particular social facts; what specifies those social facts is
empirical description. 68 In contrast, for Dworkin what determines law’s
nature is morality and in particular moral values; and what specifies
social facts is not description but moral evaluation.69 “Dworkin clearly
believes,” his most accomplished commentator writes, “that the
rightness of an interpretation is a matter of the moral evaluation of
actual or imagined facts of legal practice, not a matter of a description
of those facts.”
70
In these terms, of course, the contemporary debate about the
nature of law seems to be a version of the Humean doctrine of a strict
separation between facts and values, here between social facts and
moral values. Thus, on Dworkin’s view “no fact contradicts any
judgment of value. Hume’s principle governs completely. That means
Shapiro’s has been so far less prolific than Dworkin. Besides his major 2011 work
see however his joint collection, Coleman and Shapiro 2004, and his article,
“Authority,” in that collection, pp. 382-439.
68
For an up-to-date bibliography of Dworkin’s extensive writings see Guest 2013, pp.
271-286.
69
70
Guest 2013, p. 58.
38
that social facts have legal meaning only insofar as they are explained
or justified, or nested within judgments of moral value.”
71
There is, however, more than a nuance here that we need to
underline. The distinction between these two views about what
constitutes the nature of law is not between social facts on one side
and moral values on the other. Rather, the disagreement is between
those who hold that only social facts determine the nature of law, and
those who hold that both social facts and moral values determine law’s
nature.
72
This nuance has important consequences. For, “if the positivist is
right [for example, Hart 1961] and the existence and content of legal
systems are ultimately determined by social facts alone, then the only
way to demonstrate conclusively that a person has legal authority or
that one is interpreting legal texts properly is by engaging in
sociological inquiry . . . . [but] if the natural law theorist [for example,
Finnis 1980] is right and the existence and content of legal systems
are ultimately determined by moral facts as well, then it is impossible
to demonstrate conclusively what the law is in any particular case
without engaging in moral inquiry.”
73
We need not here enter into the discussion of just what defines a
legal positivist theorist or a legal natural law theorist before grasping
the major point here. Dworkin and those who follow his views on the
nature of law believe that the law is through and through moral – “law
is a branch of politics, which is a branch of morality.”
71
Loc. Cit.
72
Cf. Shapiro 2011, p. 29.
73
Ibid., pp. 29-30.
74
Guest 2013, p. 58.
74
Shapiro and
39
those who follow his views believe that the nature of law is not
through and through moral.75
In particular, Shapiro holds that “social science cannot tell us
what the nature of law is . . . [because] social scientific theories are
limited . . . being able to study only human groups and hence cannot
provide an account about all possible instances of law.”
76
The only
example he gives, however, of other non-human instances of law are
those he takes from, of all things, science fiction.
77
On these rather shaky grounds Shapiro goes on to reject the view
of many other legal theorists who argue that analytical legal
philosophers in their attempts to understand the nature of law must
consult the social sciences, since part of the tasks of the social
sciences is to study social institutions, and law is certainly at least
partly a social institution.
Accordingly, Shapiro tries to explain away Hart’s explicit
statement that his own work in legal theory was “an exercise in
descriptive sociology”
78
in order to claim Hart as effectively holding
his own views, he writes, “My own view is that Hart was right with
respect to the concept of law.”
79
But that can be the case only on
appeal to his own revisionist interpretation of what Hart himself
actually wrote. For Shapiro’s interpretation appears to stand on no
steadier evidential bases than on science fiction ones.
The matter here in fact is more general than may at first appear. The issue is how
to account for social dependence of values without falling into cultural relativism. Cf.
Raz 2003, pp. 15-36 and 121-156.
75
76
Shapiro 2011, p. 407.
77
Ibid.
78
Hart 1961, p. vi; cited in Shapiro 2011, p. 406.
79
Ibid.
40
In the end, Shapiro comes back to a more stable understanding of
the nature of the law. Regardless of the difficult matter of the extent to
which the nature of the law is independent or not in some strong
senses of what social facts are taken to be, Shapiro insists “that it is
part of our concept of law that groups can have legal systems provided
they are more or less rational agents and have the ability to follow
rules.”
80
And legal systems here are understood as fundamentally
certain systems of rules.
Dworkin disagrees. The nature of law, he argues is not to be
understood as a function of systems of rules of whatever kind. For law
consists of much more than rules arranged in some systematic order.81
To see why Dworkin thinks this, we need to note above all his
programmatic objective to replace what he calls the ordinary, orthodox
picture of law and morality forming two separate systems of norms
with his own, reformed picture of law and morality forming but one.82
The orthodox belief, Dworkin thinks, is that law “belongs to
communities, that it is made by people, that it is contingent.”
Moreover, many philosophers, whether “conventionalists or relativists
or skeptics of some other form” think that, just like law, morality too
belongs to communities, is made by people, and is contingent.83 In
short, although there may be questions about how these two systems
interact, on an orthodox account systems comprise very similar
although not identical kinds of norms.
Ibid., p. 407. Note, however, several questions in Marmor 2013 about the
appropriateness of conceptual analysis only for the explanation of the nature of law.
80
81
Dworkin 1978, chapter one.
82
See McCormick 2012, pp. 99-107.
83
Dworkin 2011, p. 401.
41
Dworkin rejects the orthodow view. He thinks law and morality,
although similar in being collections of norms, are fundamentally
dissimilar in collecting very different kinds of norms. And this nonidentity of kinds of norms is perhaps the most important feature that
makes the systems of law and morality themselves non-identical.
Thus, morality, unlike law, does not belong to a community,
because morality “consists of a set of standards or norms that have
imperative force for everyone.”
84
Further, morality, unlike law, “is not
made by anyone (except, on some views, a god). . . .”
85
Still more,
morality, unlike law, “is not contingent on any human decision or
practice.”
86
But if Dworkin is right, then he must answer satisfactorily a
central and difficult question. For if indeed there are two systems of
very different kinds of norms, how exactly are they related?
By way of response Dworkin highlights two approaches to this
question. One he calls, without qualification,87 the “legal positivism”
approach, the other the “legal intrepretivism” approach. The first,
presumably, is that of Hart and his followers including Shapiro, who
hold for a complete independence between the two systems of norms.
84
Ibid., p. 400.
85
Loc. cit.
86
Loc. cit.
Here, unlike Shapiro 2011, pp. 269-277, Dworkin does not distinguish between
inclusive legal positivism (the view that social facts ultimately determine legal facts)
and exclusive legal positivism (the view that social facts alone determine legal
facts). More explicitly, exclusive legal positivism holds that “not only do social facts
determine the content of the law at the highest level, but they do so at every point in
the chain of validity. Under no conditions may the truth of a legal proposition depend
on the existence of a moral fact” (p. 269). Cf. Waluchow 1994, Himma 2004, and
Marmor 2004.
87
42
This is the orthodox and indeed majority position. And the second is
his own, the reformed and minority position, which denies that the two
systems are completely independent.
On the legal positivist account, “what the law is depends only on
historical matters of fact: it depends finally on what the community in
question, as a matter of custom and practice, accepts as law.”
88
By
contrast, on the legal interpretivist account, what the law is depends
“not only [on] the specific rules enacted in accordance with the
community’s accepted practices but also [on] the principles that
provide the best moral justification for those enacted rules.”
89
What stands behind the interpretivist account is a particular
understanding of the polyvalence of Hart’s expression, “the concept of
law.” Dworkin thinks that there this expression confounds three
different senses of “the law.” There is what he calls the sociological
sense of the law “as when we say that law began in primitive
societies,” what he calls the aspirational sense “as when we celebrate
the rule of law,” and what he calls the doctrinal sense that “we use to
report what the law is on some subject.
90
Although both positivism and interpretivism both consider the
concept of the law in its doctrinal sense, each takes the concept of
law in a different way. For the positivist, the concept of the law is a
criterial concept, that is, a concept that satisfies “the tests of pedigree
that lawyers . . . share for identifying true propositions of doctrinal
law.” For the interpretivist, the concept of law is an interpretive
concept, that is, a concept that “treats lawyers’ claims about what the
88
Ibid., p. 401.
89
Ibid., p. 402.
90
Loc. cit.
43
law holds or requires on some matter as conclusions of an interpretive
argument. . . .”
91
Now, this interpretivist picture of the two systems of law and
morality as collections of very different kinds of norms which Dworkin
first sketched out in 1977 is, he went on in 2011 to argue surprisingly,
fatally flawed. “The two-systems picture . . . faces an apparently
insoluble problem: it poses a question that cannot be answered other
than by assuming an answer from the start.”
92
How so?
“Once we take law and morality to compose separate systems of
norms,” he writes in 2011, “there is no neutral standpoint from which
the connections between these supposedly separate systems can be
adjudicated.”
93
That is, we cannot adjudicate in any neutral way any
answer to the question whether one view or another is the more
accurate. For that question itself – “Which is the more accurate view of
the law, the positivist or the interpretivist?” – raises the more
fundamental question – “But what kind of a question is that, a legal one
or a moral one?” Dworkin goes on to demonstrate that answering the
second question either way turns out necessarily to be viciously and
not virtuously circular.
94
Still, once we concede that law is not a criterial but an
interpretive concept, a notion Dworkin explores at some length,95 then
Dworkin believes there is a persuasive approach to handling the
circularity issue if not a finally demonstrative one. That approach
91
Loc. cit.
92
Dworkin 2011, p. 403.
93
Ibid., pp. 402-403.
94
Ibid., p. 403.
95
Ibid, pp. 157-158.
44
involves spelling out just how we come to understand what an
interpretive concept like the concept of law comprises.
We begin an analysis of the concept of law then in a quite
particular way. We begin, he writes, “by identifying the political,
commercial, and social practices in which the concept figures. . . . We
[go on to] construct a conception of law . . . by finding a justification of
those practices in a larger integrated network of political value. We
construct a theory of law, that is, in the same way that we construct a
theory of other political values – of equality, liberty, and democracy.
[And he adds:] Any theory of law, understood in that interpretive way,
will inevitably be controversial, just as those latter theories are.”
96
This is the approach to the concept of law as an interpretive kind
of concept rather than as a criterial kind that brings Dworkin to his
conclusion. Law is not to be treated as separated from political
morality, as in the orthodox two-system picture. Rather, in the
reformed one-system picture, law is to be “treated as a part of political
morality.”
97
More fundamentally, on Dworkin’s interpretivist account of law,
law has its proper place in what he calls “a tree structure.” Thus, law
is a branch of political morality.98 Political morality itself branches from
personal “morality” in Dworkin’s special sense of how we should act
towards others. And personal morality branches from what Dworkin
calls “ethics” in his special sense of how we should live.99
96
Ibid., pp. 404-405.
97
Ibid., p. 405.
On Dworkin’s complicated views on the relations between law and morality see
Marmor 2011, “Is Law Determined by Morality,” pp. 84-108.
98
Ibid., pp. 13-15 and 191; see Guest 2013, pp. 160-163. Still other “branches” of
Dworkin’s tree structure can be glimpsed in an excerpt in The New York Review of
99
45
What comes clear in this opposition between a legal positivist
criterial concept of law and a legal interpretivist conception of law is
the fundamental limiting role of law on political sovereignties. No
political sovereign, whether in a Westphalian system or in a
Mycenaean system, can dispense with the absolutely fundamental role
of rules. For without rules no system of government is possible.
But rules make up a collection. And whether we conceive of that
collection in general as something so historically developed as “the
rule of law” or as something much more ancient as say “the rules of
the leader” whether a wanax or a king, these collections of governance
rules are of their very nature constraints on political sovereignty.
In most of the much later European cases they are constraints
imposed by social communities on their rulers whether chosen or not.
And in most of the much earlier European cases they are constraints
imposed by the sovereign on himself. In the first instance, these
constraints cannot be easily changed; in the second, they persist at
the whim of the sovereign himself.
Still, even in the very early case of Mycenaean polities one basic
reason for the as yet undetermined nature of the political leader, the
wanax, is persisting uncertainty as to the role of other quasi-royal
elites. For Mycenae concealed more than the so-called grave and mask
of Agamemnon. But these other political elites could not be what they
were without having the powers to exercise some kinds of constraints
on the wanax himself. Otherwise, they could not have held the
privilege of enjoying like the wanax the highly distinctive right to shaft
grave burials in tholos tombs.
Rules, the rule of law, law itself – all necessarily involve
constraints on political sovereignty of whatever kind. Finally, the
Books, April 4, 2013, “Religion Without God,” taken from his forthcoming book of the
same name.
46
arguments here converge on the idea that there can be no political
sovereignty without constraints of some kind. No political sovereignty
therefore can be absolute. In short, political sovereignty is always
limited; political sovereignty is necessarily bounded sovereignty.
Concluding Remarks and Transitions
§8. A First Set of Interim Conclusions:
Bounded Sovereignties I
A brief case study of the archeological findings of the Mycenaean
shaft graves in an historical and cultural period close to the beginnings
of European civilization in the Aegean Bronze Age suggests for further
critical discussion about the values to be entrenched in the Preamble
to any eventual EU constitution at least three major points about the
nature of political sovereignties.
8.1 Political sovereignties are limited with respect to major
kinds of political power that exist within the same geo-political realm.
8.2 Political sovereignties are also limited with respect to
major forms of political life that exist in other, more developed polities,
and with respect to the ineluctable dependencies that various kinds of
economic, military, and social change bring about.
8.3 Political sovereignties are limited still more with
respect to the very nature of rules, laws, and the rule of law on which
every polity must depend.
After our brief investigations here, then, of the limited nature at
the outset of European civilization of political sovereignties at a
47
highpoint of Mycenaean culture, we need now to narrow our focus to
the nature of social sovereignties with the help of a further reflective
step back into the reaches of the still earlier Minoan cultures of the
Aegean Bronze Age.
If both political sovereignties can be properly described only as
limited sovereignties, our question now will be whether, nonetheless,
social sovereignties may in some senses still be properly taken as
unlimited. Trying to deal not inadequately with that question will be
our main task in the second seminar.
48
Endnotes
With simplifications and adaptations, for the Mycenaean Civilization I
use here Bintliff’s 2012, p. 181 calibrated Carbon 14 dated
chronologies (that is, “including corrections to direct dates to allow for
atmospheric carbon fluctuations”: p. 46) and abbreviations as follows
(dates give the approximate beginnings of the BCE periods):
Bintliff 2012, p. 181.
i
1800/1700-1500: LH 1, or Late Helladic 1
1500-1400: LH 2
1400-1250/1200: LH 3A-B
1250-1200: LH 3 C
Note that on the Greek mainland the Aegean Bronze Age is called “The
Helladic Period” (see Table 1 in Kline 2010, p. xxx).
Except where otherwise indicated, throughout this essay I follow
the general (p. 6) and particular (passim) chronologies in Bintliff 2012
and more specifically Manning 2010, while consulting the
“Approximate Chronology” of Kline and Voutsaki in Cline 2010, p. xxx,
the chronologies in Shelmerdine 2008, pp. 4-5, and the careful
observations of Deger-Jalkotzy 2008. Note the technical debates
between those like Manning et al. 2006 who favor a so-called “High
Chronology” and those like Warren and Hankey 1989 who favor a “Low
Chronology.” For the difficult matter of relative chronologies (that is,
“the temporal ordering of objects and events relative to each other”)
versus scientific or science-based chronologies (that is, the allocation
of “Western calendar timescale [thus dates AD/CE or BC/BCE] to
archeological contexts, objects, or discussions”) see Manning 2012 in
Kline 2012, pp. 11-28, Tables 2.1 and 2.2, and the extensive
bibliography. (The citations above are from Bintliff 2012, pp. 12 and 18
respectively.)
Keeping in mind one archeologist’s remark is essential. “The
Egyptian records,” this expert writes recently, “are, for the most part
49
contemporaneous with the events they describe (and date). Modern
scientific dating techniques, however sophisticated, still represent
modern attempts to reconstruct a chronology for events that happened
three or four thousand years ago. The more we work with the range of
scientific dating techniques available to the modern scholar the more
we come to realize the complexities of each technique and the number
of variables that have to be understood and accounted for” (Muhly
2010, p. 7).
This terminology is derived from the application to continuing
excavations of Mycenae on the mainland of the currently more reliable
Cretan periodization into Early Palatial, Palatial, and Postpalatial
periods. See French 2010, pp. 672-673, and Preston 2008, pp. 319-310,
note 1.
ii
The main evidence comes not from the multiple excavations at Troy
beginning already early in the nineteenth century but from mentions of
Mycenaean attacks in Hittite cuneiform archives from the Hittite
capital, Hattusa that refer to “Ahhiyawa” (“Achaioi” or the Greeks)
which most scholars today identify with Mycenaean Greece (Jablonka
2010, pp. 857-858).
iii
For a selection from different museums in the Argolid see Iakovidis
1979. Mycenae’s relatively new museum exhibits a model of the site of
Mycenae and a copy of the “Mask of Agamemnon” together with an
extensive collection of funerary objects from the “Treasure of Atreus”
and the tomb circles.
iv
“The Treasury of Atreus” is the most important of the nine tholos or
elite beehive tombs uncovered in Mycenae so far. Prestigious tholos
tombs generally advertise wealthy and powerful families, and Mycenae
gradually achieved a monopoly in their use (see Bintliff’s 2012
discussion, pp. 192-194). The fabled family of King Atreus, the first of a
royal dynasty, included the famous figures of Atreus’s brother,
Thyestes, Thyestes’s son, Aegisthes who assassinated Atreus, and
Atreus’s his own sons, Menelaus and Agamemnon. Agamemnon
sacrifices his daughter, Iphigeneia, and, on his return to Mycenae from
v
50
the conquest of Troy, is murdered by his wife, Clytemnestra. Her son,
Orestes, later murders her and her paramour, Aegisthes, and, after
placating the goddesses (the Erynyes), becomes king of Mycenae and
of Argos. Homer and the tragedians tell their stories.
According to the SOED, the rather recent mid-twentieth century
word, “processual,” means “pertaining to a social or linguistic
process.” Renfrew and Bahn’s Glossary entry on “processual
archeology” reads: “An approach that stresses the dynamic
relationship between social and economic aspects of culture and the
environment as the basis for understanding the processes of culture
change. Uses the scientific methodology of problem statement,
hypothesis formulation, and subsequent testing. The earlier functionalprocessual archaeology has been contrasted with cognitive-processual
archaeology, where emphasis is on integrating ideological and
symbolic aspects” (p. 582).
vi
Note that a distinction holds between legal philosophy or philosophy
of law on the one hand, and, on the other, legal theory and
jurisprudence. Legal philosophy “attempts to unravel the sort of
problems that might concern moral or political philosophers,” whereas
legal theory “is often used to denote theoretical theories about law ‘as
such’ that extend beyond the boundaries of law as understood by
professional lawyers (e. g. the economic analysis of law). . . .” (ODL)
Jurisprudence may be distinguished from both legal philosophy and
legal theory “by its concerns with those questions (e. g. about the
nature of a particular right or duty, or a particular line of judicial
reasoning) that arise within or are implied by substantive legal
disciplines” (Ibid.)
vii
On these definitions, our concerns here to specify what is at
issue in a major disagreement today on the nature of law itself appears
not to be a jurisprudential inquiry for it is more general. Our concerns
then might seem to be more a matter of legal theory than of legal
philosophy. For the theories we are concerned with appear to be
“theories about law ‘as such’ that extend beyond the boundaries of law
as understood by professional lawyers.”
51
But the theories we are concerned with here also seem to be
“attempts to unravel the sort of problems that might concern moral or
political philosophers.” For these theories about the nature of law
certainly do concern both kinds of philosophers. So let us say that in
pursuing what separates two distinguished contemporary views on the
nature of law we are looking into a matter that has its place in both the
legal philosophy and legal theory. This stipulation will allow us to
formulate our conclusions perhaps with somewhat more flexibility than
were we to stipulate our inquiries more narrowly as either legal
philosophy or legal theory.
“Legal philosophy is often (e. g. John Austin, H. L. A. Hart, Joseph
Raz) divided into analytical and critical. Analytical jurisprudence is to
consider the definition of law, the theory of legal system, the analysis
of legal concepts such as duty, transaction and intention, and the
theory of legal reasoning, especially in adjudication. Critical philosophy
of law is to evaluate law and legal obligation, the minimum substantive
content of legal systems, the interlocking virtues called the rule of law,
etc. But against such a division, and the similar recent division
between conceptual (or explanatory) and justificatory, it can be said
that legal systems are created and maintained for reasons, and these
like every reason for action presuppose and / or propose evaluation(s).
Any general account of legal systems (or of the concept of law and
legal system) must identify those shaping evaluations” (Finnis 2005, p.
500).
viii