Category Archives: Public Interest

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

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic, advanced unedited version – CCPR/C/128/2, April 24, 2020
1. A number of States parties to the International Covenant on Civil and Political Rights have notified in recent weeks the Secretary General of the UN pursuant to article 4 of the Covenant about emergency measures they have taken or are planning to take with a view to curb the spread of the Coronavirus pandemic (COVID-19), in derogation from their Covenant obligations. It has been brought, however, to the attention of the Committee that several other States parties have resorted to emergency measures in response to COVID-19 in a manner seriously affecting the implementation of their obligations under the Covenant, without formally submitting a notification of derogation from the Covenant. The Committee calls on all State parties which have taken emergency measures in connection with the COVID-19 pandemic that derogate from Covenant obligations, to comply without delay with their duty to provide immediate notification to the Secretary General of the UN, if they have not done so yet.
2. The Committee is of the view that in the face of the COVID-19 pandemic, States parties must take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and it recognizes that such measures may result in certain circumstances in restrictions on the enjoyment of individual rights guaranteed by the Covenant. Furthermore, the Committee acknowledges that States parties confronting the threat of widespread contagion may resort, on a temporary basis, to exceptional emergency powers and invoke their right of derogation from the Covenant under article 4, provided this is required to protect the life of the nation. Still, the Committee wishes to remind States parties of the requirements and conditions laid down in article 4 of the Covenant and explained in the Committee’s General Comments, most notably in General Comment 29 on States of Emergency (2001), which provides guidance on the following aspects of derogations: (1) official proclamation of a state of emergency; (2) formal notification to the Secretary General of the UN; (3) strict necessity and proportionality of any derogating measure taken; (4) conformity of measures taken with other international obligations; (5) non-discrimination; and (6) the prohibition on derogating from certain non-derogable rights. In particular, States parties must observe the following requirements and conditions when exercising emergency powers in connection with the COVID-19 pandemic:
(a) Where measures derogating from the obligations of States parties under the Covenant are taken, the provisions derogated from and the reasons for the derogation must be communicated immediately to the other States parties through the Secretary-General of the UN. Notifications by States parties need to include full information about the derogating measures taken and a clear explanation of the reasons for taking them, with complete documentation of any laws adopted. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally to the termination of the derogation. The Committee considers the implementation of the obligation of immediate notification essential for the discharge of its functions, as well for the monitoring of the situation by other States parties and other stakeholders.
(b) Derogating measures can deviate from the obligations set out by the Covenant only to the extent strictly required by the exigencies of the public health situation. Their predominant objective must be the restoration of a state of normalcy, where full respect for the Covenant can again be secured. Derogations must be limited, as much as possible, in respect of their duration, geographical coverage and material scope, and all measures taken, including sanctions imposed in connection with them, must be proportional in nature. Where possible, and with a view of the need to protect the life and health of others, States parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to take place, while subjecting them to necessary public health requirements such as physical distancing.
(c) States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions.
(d) States parties cannot resort to emergency powers or implement derogating measures in a manner that is discriminatory, or which violates other obligations they have undertaken under international law, including under other international human rights treaties from which no derogation is allowed. Nor can States parties deviate from the non-derogable provisions of the Covenant – i.e., article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion) – or from other rights which are essential for upholding the non-derogable rights found in the aforementioned provisions and for ensuring respect for the rule of law and the principle of legality even in times of public emergency, including the right of access to court, due process guarantees and the right of victims to obtain an effective remedy.
(e) In addition, States parties cannot derogate from their duty to treat all persons, including persons deprived of their liberty, with humanity and respect for their human dignity, and they must pay special attention to the adequacy of health conditions and health services in places of incarceration, as well as to the rights of individuals in situations of confinement, and to the aggravated threat of domestic violence arising in such situations. Nor can States parties tolerate, even in situations of emergency, the advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence, and they must take steps to ensure that public discourse in connection with the COVID-19 pandemic does not constitute advocacy and incitement against specific marginalized or vulnerable groups, including minorities and foreign nationals.
(f) Freedom of expression, access to information and a civic space where a public debate can be held constitute important safeguards for ensuring that States parties resorting to emergency powers in connection with the COVID-19 pandemic comply with their obligations under the Covenant.

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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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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

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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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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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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