Category Archives: political theology

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

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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Filed under Common Good, Constitution, Constitutionalism, Free Expression, Freedom of Religion, Legal History, legal theory, martial law, Philippines, political theology, Politics, Principled Pluralism, Public Interest, Uncategorized

A (post)modern-day Vandal contra the Church

President Rodrigo Duterte’s vituperation against the Roman Catholic Church is unprecedented in recent Philippine political history. Not even the late dictator Ferdinand Marcos’s record matches it.Yet, in a predominantly Catholic country, his outrageous display of irreligiosity appears to perturb only a few.

His harangue hits at the heart of Orthodox Christianity: the doctrine of the Trinity and the crucifixion of Christ. It highlights the biggest catechetical challenge as yet to the Filipino Church, even as it finds itself in yet another crossroads.

In the broader context, the Francis Papacy has exposed seismic rifts between Church progressives and traditionalists. His “Amoris Letitia” threatens to tear the very fabric of the Church’s existence; indeed, conservative Catholic leaders see his exhortation as an immoral rewriting of marriage, and a door through which liberal ideas are smuggled into the Church.

Too, the epidemic of pedophilia in the American Church and elsewhere that has devoured thousands, and Francis’s failure to decisively address it, has served to further undermine the global Church’s integrity as a clear moral voice amidst a postmodern amoral wilderness.Worse, the Vatican itself has been wracked by revelations of high immorality that would make even libertines blush.

Here, post-EDSA 1986 politics saw Catholic bishops playing footsie with the powers-that-be (think Pajero bishops!). This, even as they actively opposed the government’s program to promote family planning in the country and prosecuted such a harmless soul as Carlos Celdran for his schoolboy antics.

All we see now is a Catholic Bishops’ Conference of the Philippines reluctant to speak a common voice of conviction, not a body of believers a prophetic Cardinal Sin once led, although the recent bombing of the Jolo Cathedral, which killed 21 Catholic faithful and wounded nearly a hundred others,has forced them to issue a pastoral letter decrying the “cycle of hate” that has gripped the country.

The pastoral letter, issued at the close of the CBCP’s 118th plenary assembly, also made an oblique reference to the President’s anti-Catholic vitriol, but said they are responding to it with “silence and prayer.” At least, for now.

To my Protestant eyes, what we have is a Filipino Church at its politically weakest.

An astute politician, the President knows this. Like Arian Vandals besieging St. Augustine’s beloved city of Hippo and its Latin Christian culture, he is exploiting the crises facing the Church to whittle away at the foundations of what is potentially the sole unified opposition to his bloody drug war, and yes, his vision of the future.

He also understands that this is no longer the time of Thomas Aquinas, who, at the height of Christendom in Europe, taught that the Church has a moral right to excommunicate and depose from power a ruler who is leading the faithful away from the gospel.

But it is beautiful to see such weakness of the Church typified by Caloocan Bishop Pablo Virgilio David, a soft-spoken French-trained bible scholar who has chosen to walk with the poor and the powerless of his diocese.

Or by Sister Maria Juanita Daño, RGS, who has lived through the horrors of Oplan Tokhang in San Andres, Bukid with her fellow parishioners. Bishop Ambo and Sister Nenet exhibit the poverty of spirit of the Sermon on the Mount.Or by the Vincentian fathers who have given refuge to the families of victims of the deadly scourge of tokhang that has decimated scores of lives in urban poor communities in Quezon City.

They also reaffirm a central message delivered by Pope Pius XII from the Vatican on Christmas Day, 1942. In his address, Pius XII said every human power has a duty to give back to the human person “the dignity given to it by God from the very beginning.” This, said Pius XII, is only possible where people once again recognized a divinely instituted juridical order, one “which stretches forth its arm, in protection or punishment, over the unforgettable rights of man and protects them against the attacks of every human power.”

These brave words said at the height of the Nazi onslaught was “a critical turning point” for the idea of universal human rights, subsequently defining postwar history and shaping governments in Europe, argues Harvard law professor Samuel Moyn’s book “Christian Human Rights”(2015).

In 1945, diplomats drafted a Universal Declaration of Human Rights that echoed Pius XII’s words, saying the Declaration intends “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.”

The Filipino Church badly needs to rediscover this legacy for such a time as ours.

This essay was first published by Verafiles  on January 31, 2019 here.

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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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Filed under Carl Schmitt, Ernst Fraenkel, Human Rights, Impunity, legal theory, martial law, Nazi War Crimes, political theology, Public Interest, Supreme Court

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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