[Editor's Note: Due to its large size the HTML version of this article (this version) is published in two parts in the same issue. This is part I/II.]

"Pour Charybde éviter tu tomberas en Scylle,

Si tu ne sais nager d'une voile tout vent."

A. Introduction+

As Europe forges its legal order, constitution, and self-understanding, many appear to believe that identifying and enacting laws and a legal framework that correspond to shared concepts of justice and human rights will solve the problem of legalized barbarism which once plagued Europe and which has been a recurrent feature throughout time and across the globe. The historical propensity of courts, even in democratic states, to legitimate and enable policies of persecution and discrimination provides compelling evidence that the current level of faith in law is misplaced.

This article argues the limitations of law and legal theory, contesting the view that, on their own, they will have more than a minimal impact on society and even on courts. No matter how good they are in conception, how correctly they embody contemporaneous understandings of universal human rights, or how flawlessly they may be phrased to connect the signifier of legal language to the signified concepts that language purports to represent, law and legal theory can only be a small part of the elements that would fashion judiciaries into a bulwark against ideologies and practices of repression.

Socio-historical research of recent years suggests that the greatest dangers to constitutional rights and freedoms may come from structures inherent in modern nation states. It has been argued that, since the French Revolution, nation states have developed an inner structural logic which is independent of substantive political ideology, and which facilitates a society's turn to discrimination, persecution, and even mass murder, when substantive ideology becomes degraded and democracy eroded.

This theory is consistent with my view that law and legal theory cannot represent a safeguard against the abrogation of fundamental human rights. Thus, Europe's attention should be...