Category Archives: Public Interest

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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Filed under Aquinas, Human Rights, legal theory, Public Interest, Religion, Tyranny, Uncategorized

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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Akbayan Rep. Walden Bello on: The Janus-faced State

janus

 

A couple of weeks ago, I heard Akbayan Rep. Walden Bello speak at an event marking the International Day of the Disappeared of a Janus-faced State with “hard” and “soft” faces, by which he apparently meant that the State has a Dr. Jekyll-and-Hyde nature.  One part of the State is good but there is that part, represented by the security forces, that does evil. Which is why, according to him, we need human rights laws to rein in the apparently inherently evil part of the state.   Subsequently, an essay of his on the same question appeared on his online column for the Philippine Daily Inquirer (“Restraining Leviathan” 9/4/13 – which title, I hasten to add, echoes a leading work of a  philosopher of absolute power, the Englishman Thomas Hobbes).

Neither his talk nor his column mentioned any reference but if I may hazard to guess, he might have drawn his theory of a dual-faced State from the work of the German political theorist Ernst Fraenkel, who fled to the US in 1939 to flee Nazism. In 1941, he came out with the book  The Dual State: A Contribution to the Theory of Dictatorship, where he described  two contradictory features of Hitler’s government: a “Normative State” characterized by the existence of formal constitutional norms for civil and political rights, and a “Prerogative State”, defined as a State with a predilection for arbitrary and unchecked exercise of power (curiously, the Prerogative State echoes the definition given by the acknowledged chief architect of Nazi constitutional thought, Carl Schmitt, who defined the true sovereign as someone who has the sole prerogative to decide what is the exception).

In any case, Rep. Bello’s dualistic conception of the state raises key theoretical and practical problems. I mention here only three of several possible points. First, in both constitutional law and international law, the state is understood to be composed of a unity of people and government, regardless of its particular form (let us remember that according to the Montevideo Convention the elements of a state are government, people, territory and capacity to enter into international relations).

This gives rise to the question: so which part here answers to the soft side and which one answers to the hard part, if the state is one such unity?

Second, he seems to define evil chiefly in terms of human rights violations. What about graft and corruption, which, today seems to plague all sectors of society, and not just government? It is obvious that other branches of government are afflicted with this societal/cultural disease, and not just the security sector, not to mention that in the Napoles pork barrel scam, we have seen an entirely different type of Public-Private Partnership.

Third, he speaks of a hard face of the state as if it were something that is already a given, or inherent. This is a point in political theory with a long and distinguished history, beginning with the first anarchists, the Anabaptists (the predecessors of today’s Mennonites),  who, in the Christian tradition, rejected the state as an institution of the Devil, and all the way to contemporary Marxists and Anarchists who speak in varying ways of the “overcoming of the state.” There too are the debates between the Roman Catholic Thomists and the Protestant Augustinians: in opposition to the former, the latter believed that the power of the sword – the very thing the Anabaptists considered to be evil– was an essential part of the state’s structure from creation (now, would that make Rep. Bello some sort of a secular Augustinian?)

One wing of the Augustinian tradition identified with the Dutch Christian philosopher Herman Dooyeweerd rejects dualistic views of the state and insists that it is a unity of power and justice; in this view, power is foundational to state creation. The monopoly of the sword is necessary for the enforcement of public law. Without such power, ensuring even a modicum of public order is impossible. Public laws that lay down the rules of integration of society into a public legal community will remain laws on paper and civil law proper itself cannot be established and sustained.

Yet there is an unbreakable coherence between power and the state’s qualifying normative task expressed in norms of public justice.  In other words power, while foundational to it, may not be exercised arbitrarily by the state.  In other words,   this Christian tradition in political thought professes that there is a God-designed structure for the State,  but human acting and willing determine the direction it will take — for or against the side of justice.

Thus, while agreeing that the state’s duty is toward the whole society, Dooyeweerd restricts state power not by some supposedly external limit set by another institution – as in the case of human rights laws  -but by  the very nature of the state itself, which is a unity of power and justice.

Indeed, there is much in the Christian tradition that commends itself to contemporary debates on the origins and aims of the State but it is one often elided in what Schmitt himself would call the secularized “political theology” of the State.

For how the Christian tradition may address the question of the origins and aims of the state, see the first three chapters of my master’s thesis, downloadable here.

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The unraveling of Chief Justice Renato Coronado Corona

By Romel Regalado Bagares

Whatever public  sympathy Chief Justice Renato Coronado Corona may have won by his unprecedented testimony in his defense at the Senate convened for his impeachment trial  Tuesday, he promptly lost by his tu quoque  plea – and yes, his unceremonious walkout.

Addressing the all-important question of  his dollar accounts, the Chief Justice dramatically signed a waiver  allowing access to all his assets,  only to say in the next breath that he will submit it to the court if and only if the 188 congressmen who  signed the impeachment complaint against him and Senator Franklin Drilon did likewise.

That said, he excused himself, and without waiting for Senate President Juan Ponce Enrile to discharge him from the witness stand, headed for the door, followed by his loyal and faithful servant Midas Marquez and members of his family.

A quick thinking Enrile, though he took about 15 seconds to realize Corona had already left the witness stand and was already out of the session hall, promptly ordered Senate security to seal all exists from the Senate building.

His escape thus blocked, the Chief Justice came back in a wheelchair feigning an episode of hypoglycemia – an all too-familiar play.

It all had the tell-tale marks of a stage-managed performance, captured on television cameras for posterity:

First, in his long-winding speech, he repeatedly referred to himself as a diabetic, as if to prep people on what will happen next.

Second, he read a prepared speech, and he was evidently reading its last line when he uttered, “the Chief Justice of the Republic of the Philippines wishes to be excused” before heading for the door without leave of court.

Third, the cameras showed members of his entourage rising from their seats as if on signal as soon as Corona stepped down from the witness stand, and following him to the door of the session hall.

Fourth, he did not so much as raise a whimper that he was not feeling well. He could have told his lawyers to make the manifestation for him but did not. In fact, cameras caught him in a brief chat with defense counsel Judd Roy as he was on his way out.

Fifth, the speed with which he made for the door belies the claims of someone who was sick.

Sixth, from media reports, it appears that he was intent on leaving the premises of the Senate and only headed for the clinic when he was prevented from taking an elevator on his way out by Senate security personnel.

Evidently he had no plans to submit himself to a cross-examination; his plan all along was to say his piece at the senate and, knowing that his tu quoque – “you too” argument – will not be answered, he will then say he does not anymore expect a fair trial at the senate, and then play the health issue card for good measure.

Brilliant, except that the ploy didn’t work.

For a moment, I thought the moment of truth had come, as he waved for all to see a general waiver allowing access to all his assets; but when he dared Senator Drilon and the members of the House of Representatives who had impeached him to sign a similar waiver, I knew then and there that he did not have any intention to open himself to public accountability.

It was an insult to the Senate impeachment court as much as it was an assault on the bedrock constitutional principle that a public office is a public trust. Public office is not an entitlement that one may wager for one’s personal benefit.

For all his protestations to innocence and personal courage in the face of unjust adversity, he only proved to be a hollow man, bereft of the kind of moral courage befitting the primus inter pares of the Highest Court of the realm.

He does not deserve to remain in office a second longer.

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Filed under Impeachment, Public Interest, Supreme Court