Monthly Archives: June 2020

The limits of Stare Decisis

Here’s Adrian Vermeule critiquing the US Supreme Court’s decision in June Medical Services, or to be precise, the judicial philosophy of Chief Justice Roberts, who provided the swing vote to the majority decision.

Now if I were a Philippine Supreme Court justice, what would be my approach to resolving contentious constitutional questions?

I’d say stare decisis is good and holds, until we have a better, and deeper and deepened insight into the law and the constitution; but then again, such insight is always founded on certain first principles, and in my case, such first principles are best rooted in the recognition of societal pluriformity (the juridical delimitation of public justice and the common good, and the recognition of differentiated responsibility and distinctive integrity of different societal spheres) — really our best defense against totalitarian systems of the Left and of the Right.

So on Vermeule’s approach, I’d say it is really just a procedural delay of the inevitable, albeit to be fair, he is certainly just looking at the notion of precedent defended by Chief Justice Roberts here. His approach calls for a “thick” appreciation of precedent, and not a “thin” one where one case is already held to be determinative of established precedent.

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Filed under Common Good, Constitution, Constitutionalism, legal theory, Principled Pluralism, Privacy, Public Interest

Reading between the lines of Duterte’s VFA half a turnaround

By Romel Regalado Bagares

Was all of President Duterte’s  kicking and cursing about the Visiting Forces Agreement (VFA) in February – to borrow from the Bard –really just all bluster, “told by an idiot/ full of sound and fury,/Signifying nothing”?

The question arose after President Duterte suspended for the time being an earlier notice he had sent to the Trump administration that  the Philippines was terminating the country’s VFA with the United States.

Foreign Affairs Secretary Teodoro Locsin Jr announced late Tuesday night the stay on the abrogation of the treaty via a tweet – well, at least, for the next six months.

But the clue lies in the conditional nature of the not-quite complete reversal of policy: per Locsin, the suspension of the process of abrogation took effect on June 1, and  “shall continue for 6 months” and may even be extended for an equivalent period.

Under article 9 of the VFA, the notice of termination was to become effective “180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.”

But the big conditional points to a pending purchase by the Philippines of  six advanced combat helicopters, which had already been cleared by the US State Department but is being opposed by Philippine and American human rights groups.

The purchase, with a price tag ranging from US $450 million to US $1.5 billion, depending on the helicopter make and model  that will eventually be sold, still needs US congressional approval.

And that’s the reason why Mr. Duterte is being segurista. He doesn’t want to fully commit yet to the restoration of the VFA, because he’s leery of what the US Congress will do when the proposed sale is formally presented to it for approval. 

 “The Philippines is considering either the AH-1Z or the AH-64E to modernize its attack helicopter capabilities,” a note on the website of the US Defense Security Cooperation Agency (DSCA) states, as quoted by Defense News. “The proposed sale will assist the Philippines in developing and maintaining strong self-defense, counterterrorism, and critical infrastructure protection capabilities.”

The DSCA is a US Department of National Defense unit dealing with security cooperation with American allies. 

To begin with, the approval by the US State Department should not have happened, given the very reason  for Mr.  Duterte’s decision to end the VFA – yet another cautionary example of American regional realpolitik.  They like to wear the human rights hat when it suits them, but they could just as quickly ditch it in the name of US national interest.

In late January this year,  Mr.  Duterte explored in anger over the reported cancellation by the US of the American visa issued to a key ally in his deadly drug war, Senator  Rogelio “Bato” Dela Rosa, because of the role he played as chief implementor of Oplan Tokhang when the latter was chief of the Philippine National Police (PNP).

What really angered  Mr. Duterte was that the visa cancellation was apparently the consequence of the Asia Reassurance Initiative Act (ARIA), signed by US President Donald Trump in December 2018.

ARIA advances a “Free and Open Indo-Pacific” policy based on national security interest of the United States to promote “human rights and respect for democratic values in the Indo-Pacific region.” The law specifically references the Philippines over “disturbing reports of extrajudicial killings.”

It complements the older Magnitsky Act, a law authorizing the US government to sanction those who it sees as human rights offenders by freezing their assets, and banning them from entering the U.S. 

ARIA authorizes the American president to impose “targeted financial penalties and visa ban sanctions, in accordance with applicable law and other relevant authorities, on any individual or entity that–(1) violates human rights or religious freedoms; or (2) engages in censorship activities.”

It specifically provides that the US government may not provide counter-narcotics assistance to the PNP unless the Philippines adopts a strategy “consistent with international human rights standards, including investigating and prosecuting individuals who are credibly alleged to have ordered, committed, or covered up extrajudicial killings and other gross violations of human rights in the conduct of counternarcotics operations.”

ARIA is also tied to the US Asia pivot to contain China’s growing influence in the Asian region, as it authorizes US forces to “conduct, as part of its global Freedom of Navigation Program, regular freedom of navigation, and overflight operations in the Indo-Pacific region, in accordance with applicable international law; and (2) to promote genuine multilateral negotiations to peacefully resolve maritime disputes in the South China Sea, in accordance with applicable international law.”

This makes Mr. Duterte, who has brought the Philippines closer to China more than any other Filipino leader, a prime target of US sanctions under ARIA.

This also explains Mr. Duterte’s decision to go after the VFA, despite protestations from the Philippine defense establishment. 

As they say, there’s an opportunity in every crisis.

For the Americans, the hefty price tag  that the pending sale of defense articles comes with is only icing on the cake, if it pushes through. After all, it will be the single biggest sale of brand new US defense materiel to the Philippines in recent memory.  More than that, it is a chance to re-establish ties with the Philippine military establishment, and even to re-commit the latter into the US regional agenda.

For Mr. Duterte, it’s an opportunity to placate a restive military unhappy with his pro-China policy direction on the South China Sea. It’s also face-saving for him (look, Trump blinked!), even if in reality, he actually fell for the trap laid down by the Americans for Mr. Duterte when they pushed the ARIA button to get him back to talking with them. 

For the military, it is only too happy to take any chance it gets to upgrade its puny  capabilities (yes, it’s true plenty of them do care about the defense of our national patrimony). Yet  it also highlights for its own constituency the key role the military continues to play under the Duterte administration – for or against.

What we don’t know is if a successful sale will mean Senator Dela Rosa will get back his US Visa. Maybe not.

—————-

This was earlier published by Vera Files and news.abs-cbn.com on June 4, 2020.

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Filed under Duterte, Human Rights, International Law, Public Interest, US Pivot

Unpopular opinion: the State of Exception and the True Sovereign in Grotius

Herman Dooyeweerd, on the antinomy between the primacy of the will and natural law in Hugo Grotius

Characteristic of the humanist theory of natural law since Grotius is that, on the one hand, it took the element of the will in positive law and carried it through to the strictest consequences imaginable, while on the other hand it juxtaposed a rigid mathematically deduced system of natural law as an unbreakable code of immutable rules. Natural law was there to serve as the brake on the arbitrariness of absolutistic political authority. Pacta sunt servanda, the inviolability of contracts initially proclaimed as the natural-law basis for the binding character of positive law, had turned out to lead directly to sanctioning royal absolutism. Over this royal absolutism, as we saw earlier, fell the dark shadow of raison d’état. In any consistent elaboration of these two unresolved and basically antithetical principles, the inherent antinomy between human- ist natural law and humanist raison d’état could only be felt with increasing severity. 

This conflict is doubly tragic in Grotius, since his entire work was intended as a passionate protest against the doctrine that utility or interest is the only criterion of law. His entire construction of a system of unbreak- able, eternal natural law and of a system of unbreakable rules of interna- tional law, based on natural law and the tacit agreement of civilized peo- ples, was to oppose that doctrine. Yet he reinstated the very principle of utility for positive law. “Utility has occasioned the making of positive law; for the social contract or the communal subjection to some authority, of which we spoke just now, took place originally for the sake of a certain advantage.”1 

Given all that we have shown thus far, we need not elaborate why this is not the Aristotelian-Thomist doctrine that every creature by nature seeks its own good, its perfection. How can a rigid system of natural law as set forth by Grotius peaceably coexist with such a utilitarian conception of 

Even though Grotius, as we noted, looked at natural law in its institu- tional character, yet he totally failed to place positive law itself on the firm footing of legal institutions. Positive law and natural law have no other point of contact in Grotius than in the principle of the inviolability of con- tracts, a principle that is constantly undermined by the principle of the will. For the rest, Grotius is content to view natural law as an external limit, not as an intrinsic principle of positive law. The inner antinomies of the entire humanist system, not surprisingly, soon come to light. 

The first concession which for the sake of the raison d’état of positive law restricts the area of natural law is that natural-law liberty is unreserv- edly sacrificed to the principle of the will. Positive law can forbid what- ever is permitted by natural law or allow it only under certain circum- stances. Only what natural law strictly enjoins or prohibits constitutes a boundary, a limit for the arbitrariness of the lawgiver. 

More dangerous is the second concession Grotius must make to raison d’état. He writes that even if positive law does not violate the imperative rules of natural law, it can nullify them by suspending the conditions un- der which alone natural law holds. As an example of such a suspension of natural law by positive law he refers to the act of the creditor who forgives a debt, thus relieving the debtor of his natural-law duty to honor his con- tract. Such a waiver may have been provided for by some prior “arbitrary” rule of positive law.1 Grotius adamantly rejects the charge that in this way he delivers up natural law to the arbitrariness of positive law. 

But, we may ask, when we draw out the consequences of his train of thought does it not lead directly to putting all natural law on hold, owing to the principle of the will in his contract theory? Of course one can hardly object to the case of the creditor who waives a debt; a noble ethical motive may well be the reason for such a remission. But when the naked, brute principle of the will, removed by Grotius from every ground of morality or equity, may even be mobilized, by analogy, against strict natural law, then the whole code of natural-law rules can indeed be reduced to scrap paper. 

Do consider that Grotius takes pacta sunt servanda in such a formal sense that even a promise immorally motivated (for instance, the promise ted, and also, in general, that a promise does not require a cause.1 

In his treatment of the natural-law rules of the law of war, Grotius him- self provides us with a sample of the elasticity of the principle of the will even within the area of strict natural law. According to natural law, a state that engages in warfare without being able to point to a legal ground for its declaration of war commits an unjust act deserving of punishment. Inter- national law, however, denies a party the right to punish its opponent for acts of war. That does not justify such acts of war, but the nations have mutually decided, and are obligated by a tacit agreement of wills, to cede the rights they would otherwise have had on grounds of the unjust charac- ter of those acts.2 

When we recall how Grotius started out by declaring that punishment for actions committed in violation of strict natural law was itself a rule of strict natural law, then this example is enough to show how in this train of thought the principle of the will undermines strict natural law. 

Finally, Grotius makes a third concession to the doctrine of raison d’état, and here the modern meaning of the concept of the “public good” in humanist legal theory is unmistakably evident. In treating of the legal force of a sovereign’s promises, contracts, and oaths, Grotius introduces his famous distinction between actions which the king does as king and actions which he does as a private individual. What the king does as king must be considered actions of state. Since the laws of the state do not hold for such actions because the state cannot bind itself to its own laws, the same goes for the laws which the king has decreed. For example, with re- gard to contracts, promises, and oaths entered into by the king as king, restitutio in integrum is not possible since that is a privilege of a private individual based exclusively on positive law. In line with Grotius’ entire train of thought, the above is of course true only of the absolute sovereign, not of the ruler whose sovereignty is restricted by laws. 

Whatever the king does as a private individual must be viewed, not as an act of state, but as an act by one of the private citizens, and hence done with the intention to adhere to the normal rule of law. The king himself may determine whether he wishes his action to be viewed as an act of state or as a private act. The determination of his intention must take the cir- cumstances into account. If the act was intended as an act of state, then he enjoys dispensation ipso jure from positive law and the validity of the of a reward to a hired killer) must be kept once the crime has been commit- ted, and also, in general, that a promise does not require a cause.1 

In his treatment of the natural-law rules of the law of war, Grotius him- self provides us with a sample of the elasticity of the principle of the will even within the area of strict natural law. According to natural law, a state that engages in warfare without being able to point to a legal ground for its declaration of war commits an unjust act deserving of punishment. Inter- national law, however, denies a party the right to punish its opponent for acts of war. That does not justify such acts of war, but the nations have mutually decided, and are obligated by a tacit agreement of wills, to cede the rights they would otherwise have had on grounds of the unjust charac- ter of those acts.2 

When we recall how Grotius started out by declaring that punishment for actions committed in violation of strict natural law was itself a rule of strict natural law, then this example is enough to show how in this train of thought the principle of the will undermines strict natural law. 

Finally, Grotius makes a third concession to the doctrine of raison d’état, and here the modern meaning of the concept of the “public good” in humanist legal theory is unmistakably evident. In treating of the legal force of a sovereign’s promises, contracts, and oaths, Grotius introduces his famous distinction between actions which the king does as king and actions which he does as a private individual. What the king does as king must be considered actions of state. Since the laws of the state do not hold for such actions because the state cannot bind itself to its own laws, the same goes for the laws which the king has decreed. For example, with re- gard to contracts, promises, and oaths entered into by the king as king, restitutio in integrum is not possible since that is a privilege of a private individual based exclusively on positive law. In line with Grotius’ entire train of thought, the above is of course true only of the absolute sovereign, not of the ruler whose sovereignty is restricted by laws. 

Whatever the king does as a private individual must be viewed, not as an act of state, but as an act by one of the private citizens, and hence done with the intention to adhere to the normal rule of law. The king himself may determine whether he wishes his action to be viewed as an act of state or as a private act. The determination of his intention must take the cir- cumstances into account. If the act was intended as an act of state, then he enjoys dispensation ipso jure from positive law and the validity of the contract must simply be judged according to the rules of strict natural law. In that case, too, the creditor has a claim against the king, but only to de- clare his right, not to bring an action in a court of law, since a subject can- not compel his sovereign.1 

All this seems to strictly favor the natural-law rule of the inviolability of contracts, and accordingly Grotius engaged in polemics with Bodin, whose conception he considered to be too elastic in this regard. But even this principle of natural law, which Grotius otherwise insists upon quite part from all higher considerations of justice and equity, in the end suffers shipwreck on the rocks of the merciless logic of raison d’état.2 Immedi- ately following the above expositions, Grotius gives us this telling warn- ing:

One must of course consider that even when the subjects have acquired a right, the king can deprive them of it in one of two ways, either as a penalty or by virtue of his supreme ownership (dominium eminens), on condition of course that he make use of this latter right only when the interest of the state demands it, and that, if possible, the subject who suf- fers loss in consequence be indemnified from the public treasury. 

And if this is the case for other matters, then it must also be considered valid for “rights which the subject acquires by way of contract or prom- ise.” For good measure Grotius adds that it makes no sense to distin- guish between rights obtained by virtue of natural law and those ac- quired exclusively on grounds of positive law. “For the power of the sovereign extends equally over both kinds of rights, and the latter can no more be denied without cause than the former.”3 

And then follows a much more limited formulation of the natural-law rule of mine and thine than that presented in the Prolegomena. For natural law itself, Grotius observes, requires that one not be deprived of one’s property, or any other right lawfully acquired, without cause. In other words, even pacta sunt servanda is a rule whose validity for the state in the end depends entirely on raison d’état. Predictably, within the framework of the humanist doctrine of absolute authority it is the sovereign alone who decides what is required by raison d’état in any given case. Yet again Grotius impresses upon his readers that against one’s sovereign, even though he act in obvious conflict with natu- ral law in applying raison d’état, one can never make any instrument of law stick. The sovereign judges each of his subjects but he himself is judged by no one.1 When one considers, moreover, that Grotius is far from identifying the interest of the state with the welfare of the subjects (wit- ness his view of patrimonial states), then the tragic result of the inner antinomy in his humanist system of natural law appears to be that natural law, developed in such detail, stands powerless before the principle of rai- son d’état which respects no restrictions by natural law.

This antinomy is inescapable and irresolvable, since on the one hand humanist natural law as an isolated individualistic principle was cut loose from the coherence of all law-spheres in the Christian law-idea, while on the other hand the humanistically conceived raison d’état is not steeped in natural law but instead inundates the whole of life, washing over and sweeping away all sovereign limits of law. 

Only the truly Calvinist principle of sphere-sovereignty is able to ground “raison d’état,” in its only rightful sense, in natural law itself, as well as to restrict the absolutism of the “public good” in keeping with the divine boundaries of the other sovereign spheres of law.’

 in The Struggle for a Christian Politics (The Collected Works of Herman Dooyeweerd, Series B, Vol. 17, trans. 2012, Paideia Press) 232-236

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Filed under legal theory, martial law, political theology, Public Interest, reformational philosophy

A democratic biopolitics, anyone?

The notion of biopolitics – democratic or otherwise –often enough proceeds from the assumption that there really is no such thing as a jurally-delimited “public interest” that the state is supposed to pursue; such delimited public interest recognizes that there are a great many human responsibilities/relations/communities/associations that are outside the sphere of the political, and that are ontologically distinct from that occupied by the state.

Leftist/Marxist accounts of the state begin by expressly rejecting any notion of a telos for the political, only to proceed with a critique of the state that implicitly assumes there is such a thing. Dooyeweerd calls this “a state without a state-idea.”

Just consider the deployment of the democratic as a proposed curtailment of biopolitics.

In any case, a jurally delimited notion of the public interest would critique biopolitics as a reductionist, if expansive, sphere of the political (defined as state power). In reformational philosophical terms, the human is not/cannot be defined by any of its relations; the human transcends all of the aspects of reality. The human is only defined by its relation to the Origin.

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Filed under Agamben, Carl Schmitt, COVID-19, legal theory, political theology, Politics, Principled Pluralism, Public Interest, reformational philosophy, State