A couple of weeks ago, I heard Akbayan Rep. Walden Bello speak at an event marking the International Day of the Disappeared of a Janus-faced State with “hard” and “soft” faces, by which he apparently meant that the State has a Dr. Jekyll-and-Hyde nature. One part of the State is good but there is that part, represented by the security forces, that does evil. Which is why, according to him, we need human rights laws to rein in the apparently inherently evil part of the state. Subsequently, an essay of his on the same question appeared on his online column for the Philippine Daily Inquirer (“Restraining Leviathan” 9/4/13 – which title, I hasten to add, echoes a leading work of a philosopher of absolute power, the Englishman Thomas Hobbes).
Neither his talk nor his column mentioned any reference but if I may hazard to guess, he might have drawn his theory of a dual-faced State from the work of the German political theorist Ernst Fraenkel, who fled to the US in 1939 to flee Nazism. In 1941, he came out with the book The Dual State: A Contribution to the Theory of Dictatorship, where he described two contradictory features of Hitler’s government: a “Normative State” characterized by the existence of formal constitutional norms for civil and political rights, and a “Prerogative State”, defined as a State with a predilection for arbitrary and unchecked exercise of power (curiously, the Prerogative State echoes the definition given by the acknowledged chief architect of Nazi constitutional thought, Carl Schmitt, who defined the true sovereign as someone who has the sole prerogative to decide what is the exception).
In any case, Rep. Bello’s dualistic conception of the state raises key theoretical and practical problems. I mention here only three of several possible points. First, in both constitutional law and international law, the state is understood to be composed of a unity of people and government, regardless of its particular form (let us remember that according to the Montevideo Convention the elements of a state are government, people, territory and capacity to enter into international relations).
This gives rise to the question: so which part here answers to the soft side and which one answers to the hard part, if the state is one such unity?
Second, he seems to define evil chiefly in terms of human rights violations. What about graft and corruption, which, today seems to plague all sectors of society, and not just government? It is obvious that other branches of government are afflicted with this societal/cultural disease, and not just the security sector, not to mention that in the Napoles pork barrel scam, we have seen an entirely different type of Public-Private Partnership.
Third, he speaks of a hard face of the state as if it were something that is already a given, or inherent. This is a point in political theory with a long and distinguished history, beginning with the first anarchists, the Anabaptists (the predecessors of today’s Mennonites), who, in the Christian tradition, rejected the state as an institution of the Devil, and all the way to contemporary Marxists and Anarchists who speak in varying ways of the “overcoming of the state.” There too are the debates between the Roman Catholic Thomists and the Protestant Augustinians: in opposition to the former, the latter believed that the power of the sword – the very thing the Anabaptists considered to be evil– was an essential part of the state’s structure from creation (now, would that make Rep. Bello some sort of a secular Augustinian?)
One wing of the Augustinian tradition identified with the Dutch Christian philosopher Herman Dooyeweerd rejects dualistic views of the state and insists that it is a unity of power and justice; in this view, power is foundational to state creation. The monopoly of the sword is necessary for the enforcement of public law. Without such power, ensuring even a modicum of public order is impossible. Public laws that lay down the rules of integration of society into a public legal community will remain laws on paper and civil law proper itself cannot be established and sustained.
Yet there is an unbreakable coherence between power and the state’s qualifying normative task expressed in norms of public justice. In other words power, while foundational to it, may not be exercised arbitrarily by the state. In other words, this Christian tradition in political thought professes that there is a God-designed structure for the State, but human acting and willing determine the direction it will take — for or against the side of justice.
Thus, while agreeing that the state’s duty is toward the whole society, Dooyeweerd restricts state power not by some supposedly external limit set by another institution – as in the case of human rights laws -but by the very nature of the state itself, which is a unity of power and justice.
Indeed, there is much in the Christian tradition that commends itself to contemporary debates on the origins and aims of the State but it is one often elided in what Schmitt himself would call the secularized “political theology” of the State.
For how the Christian tradition may address the question of the origins and aims of the state, see the first three chapters of my master’s thesis, downloadable here.