Category Archives: Public Interest

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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Filed under Free Expression, legal theory, Media Ownership, Principled Pluralism, Public Interest, Uncategorized

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

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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Filed under Dooyeweerd, Human Rights, International Law, legal theory, Public Interest, reformational philosophy

The True Politician according to Max Weber

Here is H.H. Bruun, in his book Science, Values and Politics in Max Weber’s Methodology (1972) writing of how a true politician would conduct himself according to Weber:

…[T]he precondition which Weber establishes for action in conformity with the ethic of politics is the fundamental willingness to let oneself be guided in certain cases by the value axioms of other spheres than the political one. Only those who can have “Beruf zur Politik” who do not only have this “Beruf”, who in particular situations are able and willing to submit to other value systems.

This precondition again implies that the political ethic as defined by Weber does not only demand knowledge of the laws and regularities of the political sphere; in other words, the “true” politician must not only be aware of the teleological system
surrounding his political goal, but also of the axiological (value or ethical system) one.

But this awareness again destroys the possibility referred to above of a relative harmony inside the political sphere. The possibilities of axiological conflict which were in the first instance absorbed by the definition of power as an instrument of politics, are resuscitated by Weber’s demand that the politician should be aware of the relationship between political calculation of ends and means and those of the non-political value spheres.

Axiological value analysis becomes necessary to the politician. On the one hand, Weber’s description of the responsible ethic of conviction means a rejection of the pure ethic of conviction, where the axiological analysis is the only relevant one: the acceptance of the responsibility for the consequences of one’s actions demanded by the responsible ethic of conviction implies a knowledge of the consequences for which the responsibility is taken, i.e., a need for teleological value analysis.

A person committed to the responsible ethic of conviction, whether his actions be guided by the axioms of the political or of other value spheres, i.e., whether they be guided by the teleological or by the purely axiological considerations, should know the “cost” of these axioms (in the form of tensions arising in relation to other spheres).

He has to make it clear to himself what ethical (religious,aesthetic, etc.) norms he is violating by, for instance, declaring war in the name of (political) national interest; and conversely, he must know what political demands he neglects by refusing on (for instance) ethical grounds to declare war or to use force at all in the situation. Since he is a politician, it is natural to assume that his starting point is political, i.e., that he is striving to attain a supraindividual goal.

But even inside this chain of ends and means, he must constantly try to supplement the teleological relations, i.e., that he is not justified in assimilating the axiological  system to the teleological one;  this acknowledgment will force him to examine the intrinsic axiological value of the means, the side effects and the goal according to the value system or systems to which he also remains committed outside the political sphere; and finally, he must recognize that his knowledge cannot reach beyond a certain point: that the paradox of consequences attaches to both end and means.

Only after having elucidated all these points may he decide whether he can still accept working within the political sphere and submitting to its demands; only then can he take the responsibility for his decision and claim to have fulfilled the demands of the responsible ethic of conviction ( italics in the original, pp. 284-285)

Well, sounds like a Dooyeweerdian modal analysis of the intersection of the political with other spheres, right? (with some amendments because of sphere sovereignty)

*inset photo of Weber from this blog.

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Filed under Politics, Principled Pluralism, Public Interest, reformational philosophy, Sociology

Republic’s Interregnum: Legal Lacunae in the State of Exception

Going over Republic v. Sandiganbayan’s ponencia by J. Carpio in class last night, I was struck by the abnormal situation it had to cope with and the way in which the Court dealt with it. For one, we have to realize that the 1987 Charter is a constitution that expressly carves out a state of exception for a series of acts committed by the revolutionary government — through Jovito Salonga no less! –in the constitutional interregnum.

The interregnum was our Schmittian moment in a deeply paradoxical way: we ousted the martial law regime but resorted to some of its tactics to make sure the political gains already won will not be lost again. Indeed, in the 1987 Charter, we have a constitution that expressly sanctions unconstitutional acts committed in the space of the interregnum s when there was no operative constitution!

Section 26, Article XVIII,  states:

SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

As it were, it co-exists happily with Art. III, the Bill of Rights.

Second, the way in which J. Carpio directly applied international law into a domestic question of unreasonable search and seizure, purportedly because there was no Bill of Rights to speak of, with the throwing out of the 1973 Marcos constitution by the People Power Revolution.

It’s as if –among other things — nearly nine decades of jurisprudence laying down due process protections did not exist, the doctrine of stare decisis ceased to apply,  and Art. 8 of the Civil Code also went out the window along with the 1973 Constitution. Dean Magallona’s critique of this decision was spot on, if only it wasn’t cryptic in parts. Nevertheless, that offending clause in the 1987 Charter is more Agamben than Schmitt to me.

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Filed under Human Rights, Impunity, International Law, martial law, Philippines, Public Interest, State, Tyranny

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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The state, human rights and the simultaneous realization of norms

human-rightsThe Guardian recently published an essay by the American legal scholar Eric Posner on the failure of human rights to live up to its utopic promise. Posner flails at the top-down approach the UN human rights system has propagated around the world, despite the ambiguities and contradictions that the complex of human rights laws are stricken with. He concludes his essay with a plea for a new approach, thus:

It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological. Human rights advocates can learn a lot from the experiences of development economists – not only about the flaws of top-down, coercive styles of forcing people living in other countries to be free, but about how one can actually help those people if one really wants to. Wealthy countries can and should provide foreign aid to developing countries, but with the understanding that helping other countries is not the same as forcing them to adopt western institutions, modes of governance, dispute-resolution systems and rights. Helping other countries means giving them cash, technical assistance and credit where there is reason to believe that these forms of aid will raise the living standards of the poorest people. Resources currently used in fruitless efforts to compel foreign countries to comply with the byzantine, amorphous treaty regime would be better used in this way.

Those familiar with contemporary discussions of the role of international law in the promotion of democratic ideas will recognize many valid concerns in Posner’s essay. Indeed, democratic theory in international law — by extension includes human rights theory — has often drawn criticisms that it is fundamentally a Western, liberal democratic imposition. For example, the Finnish scholar Martii Koskenniemi rejects the universal claim of international law (specifically democratic theory) as rooted in a European tradition and should not and could not speak for humanity.

He warns that such a tradition of liberal democracy may yet end up as another hegemonic imposition on non-Western states, reminding us of his arguments in his book the Gentler Civilizer of Nations about the international lawyers of an earlier era who thought none of the contradictions that came with assigning to international law a civilizing task and at the same time using it as justification for colonialism:

As international lawyers, the only arguments open to us are those provided by our tradition: jus cogens, obligations erga omnes, and all the legal paraphernalia produced by treaties, customs, international institutions. They do not automatically express anything universal: indeed, more often than not they are used as instruments in hegemonic struggles. As soon as we lose sight of this, they turn into kitsch.

For Koskenniemi, there is nothing special about the modern state, or its democratic aspirations. Yet at the same time, he is not about to celebrate the indigenous that easily either. Indeed, Koskenniemi’s has remarked that : the state can either be used for good or bad. But towards the end of his book’s chapter on sovereignty and international law’s supposed civilizing mission, he says that while indeed it may often be suggested from history that “it is better to live in a political society whose administrators speak our language, share our rituals and know our ways of life,” he quickly adds that “there is no magic” about these relationships. Lest we forget, “communities that are closed to outsiders will rot from the inside.”

For me, this somehow stresses Dooyeweerd’s point first of all about the nature of the state as a differentiated public legal community.

Koskenniemi and all his kindred spirits are correct in locating ideas of democracy in the Western tradition. Dooyeweerd’s own account of the development of the theory of the state in its different stages draw from the Western, if largely European experience (with certain Dutch emphases).

A differentiated society, in Dooyeweerd’s systematic philosophy, could only arise from the disclosure of societal structural principles by human positivation. It is a process that is distinctive for its historical embedded-ness. A society could be closed, so that differentiation could not take place. (Koskenniemi seems to realize this as he remarks about the decline communities slide into if they remain in autarkic existence. For all his hesitations, Koskenniemi has implicitly cast his lot with the comfortable choice, that is, his own Western tradition, warts and all. )

We must not lose sight of Dooyeweerd’s argument from history and the directionality of positivations.

The development of a public legal community is so closely bound up with societal differentiation itself that we cannot measure the rest of the world’s pace against the Western experience (or let alone consider the tragic injustices that most of them have suffered in the era of colonization). Skillen had long ago noted that human rights “are tied in with the very meaning of justice and injustice in states and thus cannot be protected or enhanced in abstraction from actual state and interstate structures.”

In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure.

There then, is a certain realism to Dooyeweerd’s theory of the state: differentiation is an historical process that demands public commitment. At the same time we must also realize that Dooyeweerd’s theory of differentiation also shines through with a fundamental Christian conviction about the direction societal structures may take: differentiation by itself is not to be equated with development. An integral part of the state’s historical task of disclosure is what the kindred philosopher and economist Bob Goudzwaard has  long called the “simultaneous realization of norms,” following his mentor, Dr.  T.P. van der Kooy.

This means that the realization of one norm cannot be separated from the others. It also means that the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, independently of the others. The state will have to consider as well considerations of justice and mercy, for example. (For those interested, Goudzwaard discusses the need to simultaneously disclose economic norms with others in his first full-length work, a critique of the Western ideology of progress as embodied in Capitalism, here).

Perhaps, this is Dooyeweerd’s answer to Koskenniemi’s worries that international law is turning into kitsch, (by which he means an imperialistic and racist instrumentalism that looks at the Other as the savage, and the Western self as the epitome of human rights and civilization).

And this does not in any way let off the hook the formers of the cultural way of being from the historical task of building a public legal community. They can only hold it off at the risk of grave injustices to their own constituencies.

The normative view of the state is in fact a strong critique of the supposedly “civilizing” purpose of colonialism. The continuum between power and justice found in Dooyeweerd’s theory of the state suggests that much. No political project can disregard the requirements of justice without risking its adverse consequences. While power is foundational to the state – the monopoly of the sword – it simply cannot survive on that count alone. Power must reach, or anticipate, justice. Power must open up to, and be deepened by, justice.

*human rights themed image  taken from the oxfam website.

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