Category Archives: legal theory

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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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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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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On Law and History beyond Historicism

It is a trivial truth that legal history is not economic history or art history.

For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.

Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific concept that depends on theoretical analysis of the different modal aspects of society. Popular conceptions of what is just and unjust are not theoretical concepts about the juridical nature of legal life. Even if it were the case that a given legal system had originated from popular convictions, this could not in any way be true of the modal structure of the law itself.

Besides in the second place reference to different popular standards of what is just and unjust, presupposes the legal historian has a concept of law that he could not have derived from those popular conceptions. Only with the help of his law concept can the legal historian distinguish the legal opinions of a people at a given time from their economic, moral or credal convictions, because in the relatively problematic popular consciousness they are never theoretically differentiated from legal convictions.

– From Law and History, Herman Dooyeweerd

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A common good constitutionalism?

Here’s a libertarian originalist response to Adrian Vermeule’s catholic integralist common good constitutionalism, which may be summarized in the following lines of the essay –
“That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the ‘wrong’ judges get in power.”

I for one do not believe in a theory-less constitutional interpretation;the constitution is a battleground of ideas of the ideal political ordering on many levels.  The very question of what constitutes the common good invites a clash of perspectives.

Our constitution itself is an interesting mishmash of liberal, social, and Christian ideas of constitutional ordering.

Yet it is true that more often than not, theory only goes to the foreground in the big order questions (the “construction zone” referred to in the essay); otherwise, constitutional interpretation is run-of-the-mill textual reading in the “zone of interpretation”– and this doesn’t mean theory is not involved in the deliberations. It is, but only in the background (though I won’t consider the issue of whether the President can make midnight appointments a simple textual exercise).

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Media pluralism and Free Expression

This was my concluding remarks in a legal assessment of media ownership  in the Philippines  that I wrote for a project by Verafiles with the Reporters Sans Frontieres (RSF) 

Formal legal and constitutional protections on free expression abound in contemporary Philippines. But these have largely been pursued along the lines of an individualistic stress on the Bill of Rights, framed as guarantees against state encroachments into individual spheres of freedom.

But this is really to be expected from a dominant discourse of liberal political and legal theorizing on rights as inhering only to individuals; this is not to disparage individual rights, which are important as they are.

The Philippine Supreme Court has acknowledged the Bill of Rights’ debt to the Enlightenment idea of reason as a mode of discovering the truth in its different facets. But more than that, it frames the Bill of Rights, where the constitutional protections against restraints on free speech and free expression are embodied as a hedge around the state, as it were. Perhaps, one of the most eloquent and explicit declaration about the purpose of the protections it accords to the citizen has been made by constitutional scholar Joaquin Bernas, S.J. who, in explaining the intent of the provisions found in the Bill of Rights of the 1987 Charter, said:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.[1] [italic ours]

But batting for media pluralism as a good state of affairs will not be helped by such a narrow frame of argumentation. This then will require a closer and creative reading of the Constitution and other legal sources, to be able to better account for why as a matter of state policy, a plurality of media sources in contemporary Philippine society would augur well for a vibrant public life.

There is, as the political philosopher Jonathan Chaplin remarks, borrowing from the legal philosopher Mary Ann Glendon, a missing dimension of “sociality” in much of liberal theorizing on institutional rights, which has been decidedly individualistic in orientation. “Because contemporary liberalism lacks an adequate notion of sociality,” says Chaplin, “liberal legal, constitutional, and political [theories] have proved unable to generate a convincing account of the reality and character of the legal rights of institutions”.[2]

As Chaplin argues, “[t]he empirical observation that many social institutions themselves do have positive legal rights is indisputable, yet liberal individualism seems unable to offer much beyond an implausible contractualist explanation of their origin and status”[3] Liberal theorists tend to construe the phenomenon of institutional rights as merely derived from the rights of associating individuals rather than as having some independent foundation and status not finally reducible to individual rights.

In practical terms, what this means is that the state ought to recognize the proper place of a plurality of institutions – in our case – of media institutions, in a democratic deliberation. Along that line, free expression as a right best flourishes with a legal framework where such a structural or an associational plurality is also promoted and pursued.

There are ample constitutional sources for safeguarding and ensuring media pluralism:

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. [CONST. art. XVI, sec. 11(1)]

 The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.” [CONST. art. XII, sec. 19]

 The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press[ CONST. art. XVI, Sec. 10]

 The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good [CONST. art. XIII, Sec. 2]

These constitutional provisions hammer the important point about “structural pluralism” as a corrollary to “viewpoint pluralism”, that for individual freedoms to flourish, they as well require the flourishing of various supporting institutions.

It is now a given that the right to free expression and the right to information are two sides of the same coin. One is the corollary of the other. The theory is that a better, rational, discussion of public matters is best achieved when citizens have at their disposal information pertinent to the issues at hand. The quality of such public discussion is only as good as the pertinent information made available to citizen-discussants.

An early theory of American constitutional design, expressed in an oft-quoted concurring opinion of J. Brandeis –a master of legal aphorisms – holds that:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of…. government.

They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[4]

Explicit in the necessity of providing citizens “an opportunity to discuss freely supposed grievances and proposed remedies” so as to build that “path to safety” towards a stable society is the requisite means – free speech and assembly; implicit in the process is the need to broaden the opportunity for public discussion by assuring a wide variety of avenues for it.

The legal and jurisprudential support for individual rights to free expression and right to information is robust and well developed in Philippine experience. But viewed in Glendon’s – and Chaplin’s – sense of sociality, the right to free expression and the right to information are now to be understood in a broader sense; that is, that the individual exercise of such rights must be correlated with institutional or associational support.

It is important that the news media maintain credible internal checks against the encroachment by the crass business bottom-line into the editorial room. Having said that, these internal checks guaranteed by the strict separation between the advertising room and the newsroom should be matched by external checks against a situation where a single dominant player in the media market controls both access to news and the news content.

The former is a function of how media owners understand the grand traditions that make good journalism work the way it should. The latter is a function of how the government understands the idea that a proliferation of independent news media assures the polity of a vibrant public discourse crucial to a functioning democracy. This is a question of extreme urgency, given contemporary trends in politics here and abroad about widespread distrust towards mainstream media and the rise of social media is the principal source of information for many.

Social scientists have a name for it: triangulation. The more independent media outlets reporting about the same issue or event, the more confident we are that we are getting all possible angles to the news of the day. The implications of just one or two giant business interests gatekeeping what gets to be reported as news by various media outlets should give us pause.

Media companies are a-typical in the sense that while on the one hand, they are supposed to serve the public interest in some way, the model that has so far proved sustainable, if barely for most, is that of a profit-driven, business enterprise. Therein lies a seemingly irreconciliable dialectic. In Philippine experience at least, we have not seen much of a media enterprise that is not just one of many interests across different business sectors owned by the same business empire, family-owned or otherwise.

This all the more drives home the point about the necessity of the state itself stepping in by setting up an effective system of checks and balances against media monopolization. In any case, as the discussion has already shown, it is not just a legal duty but a constitutional one for the state. While we have benefitted greatly from the earnest cultivation of individual freedoms, we have however neglected that other set of constitutional protections against media concentration that also threatens the same freedoms, if in a more insidious way.

In much of theorizing on structural pluralism in relation to civil society, the plurality of non-state actors participating in public discourse is seen as a normative goal; it presents a buffer to state overreach, and primordially, a mediating layer between individuals and the state.

In another, though, relevant context – on the question of the regulation of political advertising, that is – J. Mendoza has written about the constitutional command against political inequalities that justifies government regulation and the deep principle he refers to rings through for our concern as well:

The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact an animating principle in the document. Indeed, Art. IX-C [Sec. 4] is not the only provision in the Constitution mandating political equality. Art. XIII, [Sec. 1] requires Congress to give the `highest’ priority to the enactment of measures designed to reduce political inequalities, while Art II, [Sec. 26] declares as a fundamental principle of our government ‘equal access to opportunities for public service.’ Access to public office will be denied to poor candidates if they cannot even have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality?[5]

A side remark: in the latest case of GMA v. Comelec, the Supreme Court has unfortunately made a counter-intuitive ruling that defeats the purpose for which the Fair Elections Act was passed in the first place; the ruling practically gives the moneyed candidates more room to wiggle and reverses Osmena in the result, even if it upholds its original intent. But perhaps, this situation only points to the fact that we need more than regulation of political advertising if we want wide-ranging electoral reforms: we have to look at the necessity of campaign finance and party system reforms, to begin with.

Media monopolization courts the danger of speech being shaped by and directed towards a dominating commercial interest.

In the language of jurisprudence, it is in the “substantial interest” of government to regulate media monopolization precisely for that reason.

Yet, as this study has shown, we face multiple challenges to establishing media pluralism.

To begin with, there are various structural issues that require our immediate attention.

First, there is the seemingly incoherent system of rules concerning the intersection of mass media and public utilities. Such incoherence has often resulted in lax or incompetent regulation.

Second, there is the lack of a dedicated media authority that specifically deals with monopolistic arrangements. What obtains is a system of several overlapping institutions that deal separately with franchise, standards and competition. What this means is that it is difficult to develop administrative competence with a deep appreciation and respect for media pluralism and freedom where the authority to regulate is widely dispersed. The current system also requires close coordination between and among regulatory agencies but this coordination depends to a large extent on a proactive and enlightened regulators.

Third, there is the ever-present specter of regulatory capture. Constitutional and legal requirements on ownership of public utilities and media outfits have been ostensibly rendered ineffective by half-hearted regulation. This regulatory failure has a direct effect on the form and shape of the Philippine media landscape.

Fourth, related to this is the lack of legal safeguards against conflicts of interest of regulators. Very little legislation has been made to address this “revolving door” – the quick transition of individuals from working as a public officer to a private employee, and vice versa.

In this situation, public officers often have to deal with the moral hazard of exercising discretion in a manner that may unduly benefit private companies with the expectation that they may eventually exploit such benefits as a potential hire in the future. Similarly, newly elected or appointed public officers from the private sector may unduly use insider information obtained in their prior employment to create unfair advantages for their industry or company.

To date, only the PCC’s enabling law has a meaningful set of qualifications required of its commissioners designed to avoid such situations of conflict. This calls for a wide-ranging legislative reform. 

Fifth, there is the issue of media ownership transparency. This exercise in legal assessment has also shown how current rules on corporate disclosure are inadequate to address the established phenomenon of corporate lawyering. Even anti-dummy legislation appears inadequate to address the problem, precisely because corporate layering requires active investigation beyond what is available on the face of corporate papers filed with the Securities and Exchange Commission. At the same, as seen in the Gamboa ruling, regulatory agencies themselves appear to be remiss in their legal duty to enforce regulation. Transparency is important, given the strong tendency we see of interlocking ownerships of media businesses in the Philippines.

To close: the current hype given to the “convergence” of public utilities, mass media and new media promises to present a greater challenge to the cause of democratizing media, if we follow Tiglao’s pointed allegations about the vertical and horizontal reach of the Salim empire in the Philippines.

Winthrop Yu, the President of the Philippine chapter of the Internet Society, has shared with me in an online conversation a thought experiment – that is, posit a contest between two teams consisting of the existing “duopolies”, PLDT and Globe v. GMA and ABS-CBN. “If the barriers between media and telcos were lowered, which doupoly would prevail and eventually dominate the medium and the message?” he asks.

He said he would place his bet on PLDT and Globe. “Thus, the threat to democratic space.”

I think he is not in the wrong, if we consider that there are now probably more smartphones than television units in the country. If Internet penetration reaches more Filipinos in the next few years, such a “convergence” will rule the day.

[1]Sponsorship speech of Commissioner Bernas, Record of Constitutional Commission, Vol. 1, p. 674, July 17, 1987.

[2] Jonathan Chaplin, Towards a Social Pluralist Theory of Institutional Rights, (3) Ave Maria Law Review 147-149 (2005).

[3] Id. At 148.

[4] Whitney v. California 274 U.S. 357 (1927)

[5] 288 SCRA 472, 473 (1998). CONST. (1987)

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Void ab initio: A legal history

“He who has real power is also capable of determining concepts and words,” wrote Nazi constitutional theorist Carl Schmitt. “Caesar dominus est supra grammaticam (Caesar is also the lord of grammar).”

Schmitt is studied not as a grammar Nazi but for the import of his most famous words in the very first line of his “Political Theology” (1922): “Sovereign is he who decides on the exception.” A true sovereign wields unchecked power to name friends and enemies of the state.

Solicitor General Jose Calida may not have read Schmitt in law school, but his use of the Latin maxim void ab initio in Sen. Antonio Trillanes IV’s amnesty case is textbook Schmittian grammar. It is what the President says it is.

In 1941, the German Jewish émigré Ernst Fraenkel published in the United States his book, “The Dual State,” showing how the Nazis applied Schmitt’s ideas to seize control of German administrative and judicial bodies.

The legal scholar described two contrary features of Hitler’s government: There was the “normative state,” the formal constitutional norms for civil and political rights, and the “prerogative state,” with its arbitrary exercise of power. Fraenkel’s study shows the gradual surrender of the normative state to the prerogative state by German lawyers, legal scholars and judges after Hitler declared martial law on Feb. 28, 1933.

For one, German courts considered martial law a political act outside their jurisdiction. Schmitt argued that the grounds for martial rule in Article 48 of the Weimar constitution cannot limit the Führer’s own prerogatives. If the constitution provides but two grounds for martial law—rebellion or invasion—he may disregard it. Or he may hold that terrorists who lay siege to Berlin are committing rebellion, even if it means treating them as a political group, as long as he gets his martial law.

Hitler had argued that he is the societal order. Thus, he who opposes the president opposes law and justice. Yet many believed him. Every governmental action must align with the goals of National Socialism, a “religion without a god.”

In 1929, professor Carl Bilfinger wrote that international law is limited by reservations on national security. Schmitt agreed, saying the reservations are more important than the treaty. Both scholars would be fine with the Philippine withdrawal from the International Criminal Court as a sole executive prerogative.

There was only muted resistance to this system, like a lower court ruling that a composer is entitled to royalties for his music aired by radio stations, rejecting arguments that the stations — since they also aired Nazi propaganda — were exempt from royalty fees.
Otherwise, democratic institutions toed the line. Across Germany, the prerogative state reduced the rule of law to its arbitrary and irrational diktat.

Even civil servants were denied access by the courts to their own official records in disputes with their superiors (sounds familiar?). A 1935 decision of the Prussian Supreme Administrative Court abolished Article 129, Section 3 of the constitution guaranteeing the right, as it contradicted the Nazi “leadership principle.”

The Prussian Supreme Court also held that all religious activities must meet government regulations; if not, believers may be guilty of stoking “indirect Communist danger.”
In 1938, another court convicted a minister of breaching the peace for praying for prisoners held by the Nazis. Fraenkel noted how the highest court of Bavaria erased the fundamental principle of double jeopardy, punishing anew a man who had already served his sentence for “high treason.” The principle is merely procedural, it so held.

All eyes are now on the Makati City Regional Trial Court Branch 148, and the Supreme Court: Is ne bis in idem, as the principle is said in Latin, also void ab initio, as the President says?

By 1936, “the resistance of traditional law-enforcing bodies was weakened.” We all know what happened to German Jews — they lost their right to property, and their very own lives. For, by simply being born into a race not of their own choosing, they rendered their right to exist void ab initio.

This was first published in the Philippine Daily Inquirer, October 3, 2018.

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Dante as Proto-Kuyper?

In which Kantorowicz casts Dante as originator of a proto-sphere sovereignty idea that’s apparently non-Thomistic (though he worked within the same system).Also, analogical borrowing (concept-formation in the Dooyeweerd sense) from theologians by jurists to form a “political theology.”

 

 

So you see law coming to its own more and more.

 

 

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The “public interest” and its (mis)use throughout history

 

Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.

The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)

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Aquinas on Tyrants and Tyrannicide

periander_vat2Aquinas’ De regno ad regem Cypiri (Address to the King of Cyprus, circa 13th C.) : interesting to read this short work written by Thomas Aquinas, especially the section on tyrants and tyrannicide, which I find to be a fertile source for contemporary political thought and discussion. A special note to make is that for Aquinas, a monarchy is the best political arrangement, hence the discussion is centered on the king.

Aquinas is reluctant to endorse private ventures to kill a tyrant; at the most, he appears to allow an uprising led by public authority as a last resort (I suppose, to give it a cloak of legality). Calvin follows this line, as do the Dutch Calvinists (for example, getting William of Orange to lead against Spanish tyranny), but I am not sure if Calvin et al acknowledge Aquinas as their source for their position.

Too, one thinks of the failed attempt to assassinate Hitler that was joined by the Lutheran theologian Diectrich Bonhoeffer, which seems to meet Aquinas’ requirement, as it was hatched by a small group that involved military officers and a couple of civil servants, who thus might qualify as public authorities. Yet Aquinas gives sufficient caution against such an adventurism, citing Roman examples when the ouster of a tyrant led to worse tyrannies. (Think of Pol Pot too!)

He also appears to provide a basis for later social contract theories here: ” If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power. It must not be thought that such a multitude is acting unfaithfully in deposing the tyrant, even though it had previously subjected itself to him in perpetuity, because he himself has deserved that the covenant with his subjects should not be kept, since, in ruling the multitude, he did not act faithfully as the office of a king demands.”

As earlier stated, Calvin and the Dutch Calvinists appear to echo this Thomist idea of revolt led by public authority; The English Puritans also argue that the governed have the right to revolt against unjust leaders. The American revolutionaries who rose up against the British re-state the same idea, by way of the English social contractarians, notably John Locke.

Ideas have legs, indeed? (Also serves to show Ecclessiastes is right — there is nothing new under the sun. Human nature, being what it is, often falls victim to the same weaknesses and bad habits). Hence the relevance of the battle cry — ad fontes!

Finally, Aquinas allows that tyrants may have been allowed by God to rise to power as punishment for the sins of the people. Now we Filipinos should start asking ourselves whether the present darkness is a punishment or a reward.

 

(photo of the Tyrant Periander of Corinth’s  source)

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