But because it is precisely from the progress of social production and the international division of labor that the principle of nationality emerges, it is soon confronted by its own limits. Already within capitalist society, ever-closer interaction links the different states; a generally valid form of regulation of this interaction becomes even more necessary, a legal system the validity of which extends beyond the borders of the individual states. The increased interaction between states resulting from the development of the capitalist economy, the emergence of the great modern states, and the expansion of the power of the European nations over the colonial territories abroad has given rise to international law. In the first instance, the states regulate their relations through treaties. To the old pacts of alliance and peace are added agreements concerning the laws of land and naval warfare. Economic relations also gradually come to be regulated by agreements between states. Thus emerges the diverse system of treaties that constitutes the foundation of modern international law: agreements concerning inland and maritime shipping, trade and customs duties, railway traffic, postal and telegraph systems, and measures, coinages, and weights. But international law soon reaches beyond the sphere of immediate economic interests. Thus, today agreements between states regulate the policing of sanitary conditions, in particular in regard to the struggle against epidemics, and the struggle against both the white and black slave trade; thus, there is the attempt to initiate through agreements parallel systems of regulating civil and procedural law.
Out of all these agreements there emerges a series that creates a quite new structure, the international authority. Wherever the foundation of common administrative activity is to be established, the states create a common organ, an authority that, by virtue of its international mandate, is permanently to fulfill the tasks assigned it by the treaties between states. Such a character is borne by the international health commissions, the international commissions for the monitoring of the financial administration of individual states, the international rivers commissions. These are granted rights that are otherwise accorded to sovereign states and that even the theory of the state has therefore attempted to construe as a particular form of the state, as riverstates.
But by far the most important among the international authorities are the so-called administrative communities. These have been emerging since the 1860s and are based on agreements to which every state is in principle free to accede. Among them are, for example, the International Postal Union, the International Telegraph Union, the Community of States for the Protection of Commercial Property, the Association of States for the Protection of Literary and Artistic Works, the Union of States for the Struggle Against the Seizure of Slaves, the Central Office of International Transport, the Office of the Standing Sugar Commission, and so on. Some of these authorities have already been granted judicial power, for example, the Health and Rivers Commissions, the offices of the International Postal Union and the Community of Railways; in addition, since 1899 The Hague has housed the permanent Court of Arbitration.
As imperfect as these individual structures are, they carry within them the healthy seed of new social organisms. The interaction between the different states has already become so close that the law and organs of the state are proving to be no longer enough. The direction of development is toward a legal system that stands above state rights and binds the states themselves; it is creating organs the activities of which will no longer be hindered by any state frontier. State treaties and international authorities today satisfy this need. But they are beset by an internal contradiction. The community of international law has statutes and organs, but has not itself yet been constituted as a legal entity. We have statutes and are ignorant of the collective will that establishes them and whose power guarantees them; we have international organs and are ignorant of the body whose organ they should be.
In socialist society, the agreements between the polities and the international organs will without doubt rapidly grow in number. At the same time, the increasing interaction between the different polities will in the first instance compel the implementation of the international division of labor.
However, international regulation to a far greater extent will become possible and necessary only when the social processes that are today composed of innumerable decisions and actions of individuals are consciously regulated by the different polities. For example, large migrations will be possible only on the basis of international treaties. Finally, in socialist society the planned regulation of international interaction will also be necessary due to the fact that every disappointed expectation, every inappropriate calculation affecting the individual merchant, the individual emigrant, will quite directly affect the whole society. One can imagine, for example, the consequences when a socialist polity organizes itself for the production of a good that is to be exchanged against the products of the other nations and finds this expectation disappointed. The international division of labor is impossible if the exchange of goods and interaction is not directed and regulated on an international basis.
Interstate agreements and administrative communities will thus ultimately not be able to meet the needs of the society of the future. Statutes that are not guaranteed by an organized collective will and organs that cannot be regarded as the organ of any entity will not suffice for this society. It will ultimately have to constitute the community of international law as a legal entity and provide it with permanent representatives. This will come about the day the national polities establish an international office to which they entrust supreme authority over the exchange of goods between the polities and thereby indirectly also supreme authority over the production within every polity. Just as the development of capitalist commodity production linked the manorial estates and the towns isolated during the Middle Ages to form the modern state, so too will the international division of labor create in socialist society a new type of social structure above the national polity, a state of states, into which the individual national polities will integrate themselves. The United States of Europe will thus be no longer a dream, but the inevitable ultimate goal of a movement that the nations have long since begun and that will be enormously accelerated by forces that are already becoming apparent.-Otto Bauer (1907 [1924]) The question of Nationalities and social democracy, [Die Nationalitätenfrage und die Sozialdemokratie]. translated by Joseph O'Donnell, University of Minnesota Press pp. 412-414 (emphases in original).*
A few months ago Christopher Brooke alerted me to the significance of Bauer's work, and the passage above in particular, in the context of a series of posts on the historical and conceptual roots of modern federalism and its complex relationship to modern imperialism. When the book appeared Bauer was not yet a leading political figure and much of the excitement and turmoil of his life was still ahead. He was not, however, obscure, because Lenin makes a point of alerting his reader to the fact Bauer is one of his targets as one of “most prominent theoreticians” of the (bankrupt) Second International in his Preface to the French and German Editions Imperialism, the Highest Stage of Capitalism A Popular Outline.
It is noticeable that Bauer does not mention Hobson's Imperialism because there are many striking similarities in their analysis of the economic roots of (nationalist forms of) imperialism (recall here; here). And while Bauer is clearly marxist/socialist (as Hobson is not), not unlike Hobson, he sees in imperialism the possible seeds of something better. And in so doing Bauer articulates what we may call a functionalist account of the rise of federalism. And such functionalism is one of the ongoing, ruling commitments of the political and bureaucratic class of the EU. (I am unsure how well known Bauer's influence on this is--feel free to send literature my way!) So, it is worth taking a look at.
Bauer's book has its roots in Bauer's PhD in law at the University of Vienna. And this is visible in the crucial passage quoted above. Internal law is rooted in capitalist development which gives rise to international trade. International trade generates the demand for international law along multiple dimensions (regulation of warfare and commerce). And with growing commerce, including commerce as a consequence of imperial conquest (this is part of Bauer's larger argument in the book), the range and complexity of international commercial law expands.
Interestingly enough, it is the complex nature of some of modern commerce that gives an impulse to new forms of international collaboration, a "new structure, the international authority. Wherever the foundation of common administrative activity is to be established, the states create a common organ, an authority that, by virtue of its international mandate, is permanently to fulfill the tasks assigned it by the treaties between states." These international authorities have important characteristics: (i) they are created by states (ii) who create or delegate juridical authority to them; (iii) they are functionally, that is domain specific, organized; (iv) they are technocratic in character, that is, a place where under the guise of authoritative law experts meet to solve coordination and standard setting problems; (v) they rely on the member states (with juridical/military power) for enforcement; (vi) they are heterogenous in character (not all have the same juridical power and internal structure). And (vii) in virtue of their existence, the character of states and their self-conception (that's the point of some turning into 'riverstates') and state sovereignty changes.
Crucially, for Bauer, the effect of (vii) is also to make room for, (viii), that is, there is a teleology toward both (a) a larger edifice of international law built into these new structures and (b) a (minimalist) federal state. It is pretty clear this directedness is a consequence of the economic forces of capitalism as it has turned into globalization and imperialism.
Strikingly, the teleology is not automatic. For while, a spontaneous order ("innumerable decisions and actions of individuals") gives rise to the need for coordination and standardization, political guidance is needed for the organization and transformation of the state system ("consciously regulated by the different polities.") And what he has in mind is not just more treaty-making, but the establishment of a political (and federal) representative structure ground in international law ("constitute the community of international law as a legal entity and provide it with permanent representatives.")
If I understand him right this higher authority is also limited in character. Its jurisdiction is fundamentally economic ("the exchange of goods"). Now, the glue that would hold such a limited European Union together is, on the one hand, socialism, and, on the other hand, economic-juridical integration.
What's striking about Bauer's approach is that it is quite clearly not wholly modeled on (say the way Kant and Adam Smith are inspired by) The United States of America, where republican/representative government comes conceptually first (or close to first alongside commercial connectedness). In Bauer's approach, politics remains in a sense nationalist (and socialist), but integrated in (and subordinated to) a larger juridical structure devoted to coordination and problem solving. (Kind of what Austrian liberals were hoping from the empire.) I use 'in a sense' because in socialism there are no incompatible ends, so it (the higher authority) need not do more (and certain kinds of politics are abolished). In addition, although this is not explicit in Bauer, socialism provides a common civic religion that ties the whole together.
It would be worth exploring what the pre-history of Bauer's ideas are. Brooke has given me hints to suggest that Cobden may be very important for this part of the story. But I close with the thought that one way to understand the present tragedy of the EU is that even more than Hayek (recall here; and here) or Mises (recall) and Kautsky (here; and recall Luxemburg's criticism) it has de facto adopted Bauer's vision (he died in 1938) without a glue like socialism that can help coordinate ends and act as a civic religion.
*The book first appeared in 1907. But the translation is from the second (1924) edition, which has a new preface.
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