Exactly my thoughts on Our Lady of Guadalupe v Morrisey-Beru (US Supreme Court, 2020):
“As the new ethical liberalism fails to take conscience seriously, it also risks undermining the claims of community. It is at least arguable that the central idea of liberalism is not even the free individual, but the community of persons committed to the collective pursuit of truth, goodness, and beauty, free from the coercive orders of politics and law. This idea reaches back behind the second more individualistic wave of liberalism, associated with the Enlightenment and the values of the French Revolution, to what Böckenförde—and others such as Harold Berman and Larry Siedentop—identified as the first step towards the liberal secular state in the 11th century Gregorian reforms and the emergence of the Church as a competing authority to kingly rule But it is also present in 19th century struggles to disentangle church from state both to purify the former and to confine the latter. Böckenförde would go even further and argue that it is the unavoidably contestable nature of the boundary between “church” and “state” and its consequent fluidity, subject to perpetual negotiation under the influence of the concrete and practical implications of the “Christian message of salvation,” which is an important guarantor of the liberal society. The focus here is not on individual identity and diversity, but on a diversity of distinctive communities and institutions. In short, a better reading of the liberal tradition is pluralist rather than merely individualist, not least because a liberal pluralism of institutions can guard against the destruction of a free civil society in the name of a homogenizing defense of the individual against competing communities of conviction.”
-Julian Rivers, Counter-Extremism, Fundamental Values and the Betrayal of Liberal Democratic Constitutionalism, Special Issue, “Böckenförde Beyond Germany,” German Law Journal (2019)
Category Archives: State
Exactly my thoughts on Our Lady of Guadalupe v Morrisey-Beru (US Supreme Court, 2020):
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.
We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.
Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).
I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).
The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.
After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.
I will expound on this approach in another post.
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.
by Harry Roque and Romel Regalado Bagares, counsel for the Malaya Lolas
Why is Japan settling the Comfort Women issue only with South Korea and not with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?
Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?
And what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?
We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.
According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.
While we would like to see details of this agreement show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.
It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.
The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on their faces.
They should not be used as pawns by states in the geopolitical controversies of the day, as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.
Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.
But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.
Background to the Malaya Lolas case
In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.
The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.
A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”
On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.
Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.
In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.
Excerpts from a chapter of my long essay: In the modern era, the marked influence of nominalism in theorizing about sovereignty can be seen in the thought of the controversial German constitutional scholar Carl Schmitt, who, following Bodin, postulated that sovereignty is not a function of the general rule but of the exception; that is, that it is primarily a question of who exercises the power to make exceptions. Thus the famous first sentence in his short but illuminating treatise on political theology: “Sovereign is he who decides on the exception.” For Schmitt, at the heart of the issue of who is the true sovereign is this:
the concrete application, and that means who decides in a situation of conflict what constitutes the public interest of the state, public safety and order, le salut public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.
Thus, when Schmitt says that the test of the existence of a state of necessity, of an emergency in fact “involves a specifically juristic element,” he means exactly that – there can be no law limiting the discretion of the ruler to decide the point, or to declare who is an enemy of the state and who is not; in other words, the ruler is the law herself.
This indivisibility of the power to decide the exception from the power to decide what is lawful sets itself against the liberal constitutionalism of Schmitt’s day – one can immediately think of the doomed Weimar Republic – which sought to set in place a system of checks and balances in government designed to curtail the arbitrary exercise of power by the ruler.
Schmitt deploys the thought of Bodin and other seventeenth-century natural law scholars against that system, saying that sovereignty cannot tolerate a situation where at times it is the prince that rules and at others, the people (as when the prince must first consult the people before deciding in a situation of extreme urgency). Indeed, in his argument that only the sovereign has the “monopoly to decide,” Schmitt echoes the nominalistic voluntarism of an earlier era founded on a revolutionary theological conception of the Divine Will: All law is “situational law.”
The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the essence of the state’s sovereignty, which must be juridically defined correctly, not as the monopoly to coerce or to rule, but as a monopoly to decide. The exception reveals most clearly the essence of the state’s authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.
Thus Schmitt cites Hobbes in his formulation of sovereignty as pure and unbridled “political decisionism”: autoritas, non veritas facit legem. Indeed, it was Schmitt who postulated that
[a]ll significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent law-giver – but also because of their systemic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed into the last centuries.
The omnipotent God become the omnipotent law-giver. It was, in Schmitt’s terms, a turn from the theological to the secular, but one that Milbank would say, was actually occasioned by the nominalistic turn in theological thinking itself, beginning with the Middle Ages, in the voluntaristic thought systems of Scotus and Ocham.
In an insightful and important piece exploring the theological roots of the concept of sovereignty Govert Buijs revises Schmitt’s original secularization thesis, saying that while indeed, the justification used for the political order shifted from the theological to the secular, sovereignty itself was not a “secularised” theological concept or rather “there seems to be a kind of back and forth between theological and political experiences.” 
The over-all result may well be a secularized political order, but while this secularization is in some respects theologically grounded, in other respects it is an unintended consequence of certain theological insights, and in still other respects a result of a quite purposive process of secularization. Implicitly following Milbank’s own intellectual trajectory, Buijs outlines how as a concept sovereignty was deployed to carry out the secularization of the political sphere.Buijs’ “archeology of sovereignty” uncovers the following “layers of meaning”:
The first element concerns unifying a realm and organising it into one political entity. The second element is the presence of one subject, one representative centre of power, one agent, who has his/her place vis-à-vis this entity, for example to issue laws. The third element of the concept of sovereignty concerns its voluntaristic overtones. Sovereignty is mostly couched in terms of a will, of an almost personal character. The fourth element is the territorial limitation. Compared to older symbolisms like the Sumerian King List…the modern notion of sovereignty seems rather awkward: the highest power, but only in a limited territory. It is somewhat like calling a person “world famous” in his own village.
Here, again, nominalism identified with the theological thought of Scotus and Ockham has had three important implications on the spread of secularization in Western society. The first is that nominalism led to a voluntarist conception of law and government, where both, formerly regarded as a reflection of divine reason, now came to be considered as matters based solely on an essentially arbitrary decision (quia voluntas est voluntas).
This voluntarist element is fully present in the systems of Bodin and Hobbes, says Buijs. The consequences of the nominalistic outlook is especially “weighty” in the author of the Leviathan, whose universe seems to be characterized entirely as a clash of wills now given absolute freedom.
This freedom expressed in unfettered will, Buijs notes, was previously unthinkable, inasmuch as the universe before them was conceived of as a closed rational order. Second, there is now no avenue for appeal beyond the lawgiver. In Bodin, this is especially prominent. While the human lawgiver is still bound by the laws of nature and divine law, he has become the only available standard, inasmuch as God has been turned into an inscrutable higher being to whom there can be no access. While nominalism made possible the criticism of the established order, it can only do so without an available higher standard to measure the existing order. Hence:
The potentia absoluta does not provide for a standard to measure the actual order. He who has the power at the same time has the ius non appelandi. Hobbes, a self-proclaimed nominalist, articulated this in the very concise formula auctoritas, non veritas facit legem. So doubt about the existing order is the only thing left without there being a basis for this doubt in the (inner) experience of a superior order.
The third consequence of nominalism is the rise of contractualism. While the theological version of nominalism still held to the covenant as an all-encompassing ontological category, its appropriation by Hobbes et al., called for its radical transformation involving the contract as a substitute. While in the Judeo-Christian covenant, trust is the basis, in contract, fear of the consequences is the primary motivation. “So the contract symbol is the nominalist covenant washed in late-medieval and early modern fear. It is the mutually agreed ceasefire between otherwise inscrutable wills.”
Buijs quotes Hobbes thus: “Fear and I were twins.”
The sovereign exercises his rule “in the name of…(something higher)…” However, the distance between the sovereign and this higher authority is virtually abandoned, for no one else has access to this higher authority in order to “check” the claims of the lawgiver. God has become inscrutable, legibus solutus; He hides in the darkness of his potentia absoluta. He cannot be appealed to – and the same applies to the sovereign.
Buijs’ account provides a philosophical explanation to Koskenniemi’s “pre-history” of international law, which challenges the standard account that puts the birth of modern international law in 1870 as a mere continuation of earlier efforts by the first thinkers and practicioners of the craft, “namely, to bind European sovereigns to a universal rule of law” by developing a new idea of statehood opposed to the absolutist raison d’etat.
In this prehistory, read at a commemorative colloquium on the Italian thinker Alberico Gentili, Koskenniemi continues the reconstructionist historical project inaugurated by his book The Gentle Civilizer; in fact, in this essay, the Finnish scholar argues, following a detailed study of French and German writers who theorized on the limits of the power of the Sovereign Prince or King, that contrary to standard histories,
[N]o continuous tradition of international legal thought existed from early modernity – Gentili, Vitoria, Grotius, Pufendorf, Vattel, however one wants to date the moment of inception – to the 20th century. What we read in standard histories, is a myth. Nineteenth international lawyers imagined a history to what they were doing because that was the habit of a historical age. What we have, instead, is a literature on the government of modern states that occasionally deals with the external aspects of government – war, treaties and diplomacy.
`But these are not understood as a “legal system” somewhere outside statehood, with the point and purpose of limiting the negative effects of State policy. Instead, they are part of a functional notion of territorial rule the point of which varied over [time] from “conservation” of the realm to the “perfection” of its people. The “functional” notion of sovereign power implied the presence of epistemic limits to State policy that provided ample room for debates about wise policy. But it did not presuppose (but rather rejected) the existence of an international normative order from which those principles could be deduced.
Hence, Koskenniemi could also write that for the great German natural lawyer of the period, Samuel Pufendorf, the sovereign is simultaneously free of the law and bound by it at the same time. For Pufendorf, writes Koskenniemi, positive law as decreed by humans are but rules of the supreme sovereignty concerning the very things that subjects are bound to observe as matters of the welfare of the state. Meanwhile, the sovereign is also answerable to natural law, to promote the good of the people by creating the social conditions that make it possible for individual pursuits to be realized – a duty that is inherent to the meaning of sovereignty. Koskenniemi explains further thus:
For Pudendorf and the whole system of reason of state, positive law cannot possibly constrain the ruler in his pursuit of salus populi. It is part of the definition of positive law to be an assessment by the sovereign of what is needed to bring it about. The potential danger of princely arbitrariness is met by Pufendorf through the distinction he makes between the prince’s private and his public will, and the way he reads the latter as normative because representative of the (enlightened) will of the population. This allows the social collectivity to emerge as the State at the centre of analysis, as the manifestation of sociality in political life.
As Pufendorf has written, “it seems most suitable to define the state as a composite moral person whose will, a single strand woven out of many people’s pacts, is considered the will of all, so that it can use the strength and the faculties of individuals for common peace and security.” Read from the lens of Buijs’ account of nominalism, this pre-history of international law simply meant this: whatever limits early thinkers placed upon the power of the Sovereign were what natural and divine law called for; yet it appeared that it was up to the Sovereign to say what these limits were.
Hence the Finnish scholar can validly argue that the French raison d’etat thinkers, far from arguing against the legal, actually believed that the Sovereign Prince was bound by it; except that the legal was identified with the Sovereign Prince, as expressed in Bodin’s firm belief that the ruler rises above custom and the fundamental laws of the realm, which he considered to be a higher constitutional principle. 
The Sovereign Prince was subject to one else but to the demands of his office and above all to God (and therefore to both divine and natural law, both of which are anyway emanations of the Divine, according to the theologies of the day). True, no else was above the Sovereign except God; but since God had become inscrutable, it was up to the Sovereign to say exactly what God demanded of the ruler. In other words, justice is what the Sovereign thought it was.
With the shift to a supposedly scientific, neutral and objective (but ultimately stoic) natural law that subsequent thinkers espoused, the notion of state sovereignty would become effectively “naturalized” and yes, “secularized.”
In fact, by the time of Louis XIV, Koskenniemi argues, jurists, “reaffirmed the divine right in a way that did away with their ability to articulate limits to Royal authority. Even as they followed Bodin by limiting absolute authority by reference to its function – the sovereign’s duty was to God and to his office – they rejected any institutional oversight as incompatible with it.” This line of thought would serve as the foundation to legal ideas that put up the State as a distinct political entity, and the notion of “State interest” as an “overruling political ratio – a confessionally neutral justification for governmental action, connoting the interest of the system of territorial government itself.”
(photo inset: the original graphic to Thomas Hobbes’ famous political treatise, The Leviathan) __________________________________
 Carl Schmitt, Political Theology: Four Chapters on Sovereignty 5(George Schwab, ed. 2006).
Id. at 6.
Schmitt, supra note 299 at 13.
 In fact, we can say Koskenniemi’s discussion of the pre-history of international law echoes the assertion by Schmitt that “ the seventeenth –century authors of natural law understood the question of sovereignty to mean the question of the decision on the exception.” Id., at 9. See IV Koskenniemi, Prehistory, infra note 319.
 Schmitt, supra note 299 at 13.
 Id. at 33
 Schmitt, supra note 299 at 36. That is, what is lawful is decided by the one who has the authority (the power ) and not by the one who possesses the truth (the lawful sovereign). On this point, see the essay of the independent Islamic scholar S. Parvez Manzoor at http://www.algonet.se/~pmanzoor/CarlSchmitt.htm <last visited Aug. 27, 2008).
 Govert Buijs, “Que les Latin appellen maiestatem”: An Exploration into the Theological Background of the Concept of Sovereignty” in Sovereignty in Transition 235 (Neil Walker, ed. 2003) [hereinafter, I Buijs, Concept of Sovereignty]. But Derrida follows Schmitt’s formulation. He says: It was in the beginning, a religious concept, that is, God, the Almighty, is sovereign…So here you have a concept which is in principle secularized, but for which the secularization means the inheritance of theological memory. It is a theological phantasm or concept. When for instance Carl Schmitt says that all the political concepts, all the concepts of the political, in the Western society are theological concepts secularized, that is what he means: that our culture lives on secularized sacred concepts, secularized theological concepts. Jacques Derrida, A Discussion with Jacques Derrida, 5 Theory and Event 49, (2001), quoted in Peter Fitzpatrick, “Gods Would Be Needed…”: American Empire and the Rule of (International) Law, 16 LJIL 434-435, (2003)
 I Buijs, Concept of Sovereignty, supra note 299 at 236-237.
Id. at 235.
 Id. at 251.
Id. at 248, citing Louis Dupre, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (1993).
 As Van Creveld says of Bodin’s intellectual project: “In a world where God is no longer capable of providing a consensual basis for political life, Bodin wanted to endow the sovereign with His qualities and put him in His place, at any rate on earth and as pertained to a certain well-defined territory.” Martin Van Creveld, The Rise and Decline of the State 177 (1999), quoted in I Buijs, Concept of Sovereignty, supra note 299at 232.
 I Buijs, Concept of Sovereignty, supra note 299at 252.
 Hence, the international legal order of states could then be described in nominalistic terms as the state of nature characterized by a certain agonistics – or struggle – between and among the wills of monadic individual states. This is a constant theme in realist accounts of international relations.
IV Marti Koskenniemi, International Law and Raison D’Etat: Rethinking the Prehistory of International Law 1 (March 2008) [hereinafter, IV Koskenniemi, Prehistory].
IV Koskenniemi, Prehistory, supra note 319 at 2.
 Id. at 25
IV Koskenniemi, Prehistory, supra note 319 at 2.
 Id, quoting Punfendorf DJN Bk VII Ch 6 § 2.
 Id. at 5.
 Id. at 8. Koskenniemi cites the period’s most prominent natural lawyer, Jean Domat (1625-1695), who held that all human beings, including the King, was bound by certain universally valid principles of divine and natural law, yet also believed that this in no way conflicted with the view that the French King was absolutely superior to any secular authority. Id. at 9.
 IV Koskenniemi, Prehistory, supra note 319 at 5.
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.