It is a trivial truth that legal history is not economic history or art history.
For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.
Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific concept that depends on theoretical analysis of the different modal aspects of society. Popular conceptions of what is just and unjust are not theoretical concepts about the juridical nature of legal life. Even if it were the case that a given legal system had originated from popular convictions, this could not in any way be true of the modal structure of the law itself.
Besides in the second place reference to different popular standards of what is just and unjust, presupposes the legal historian has a concept of law that he could not have derived from those popular conceptions. Only with the help of his law concept can the legal historian distinguish the legal opinions of a people at a given time from their economic, moral or credal convictions, because in the relatively problematic popular consciousness they are never theoretically differentiated from legal convictions.
– From Law and History, Herman Dooyeweerd
Tag Archives: Dooyeweerd
Leslie Green continues his critique of his Oxford colleague John Gardner on the relation between law and morality. Here he engages Gardner’s point about the “inescapability of morality” in relation to law — that law is judged by morality, if law isn’t in some way, a moral norm by itself, or a “near natural law.”
The discussion echoes but couldn’t quite identify, the multi-aspectual view, where “positive law” in fact functions in all aspects of reality — it has a moral, social, economic, aesthetic, lingual or historical sides, and so on.As Alan Cameron, who edited the first volume of HD’s Encyclopedia of the Science of Law, put it to me recently, the process of law forming “is not merely the positivisation of a jural norm. It also requires the positivisation of analytical, lingual, social, economic and possibly aesthetic norms. An individual law has it own ‘individuality’ structure – it is some “thing” jurally qualified but displays all the modal aspects (subjectively and objectively).”
Thus a contract is not merely a legal document, it also has a social dimension, or functions in the social realm, as it has a certain history and an economic value (as the sociologists of law have been trying to show).
It should be interesting to note that in HD’s modal scale, the ethical (moral) aspect comes after the legal aspect. Law is prior and foundational to, and anticipates, morality. So there is some correspondence between HD’s and Gardner’s notion of morality, as the former in fact says that the ethical aspect deepens the legal aspect in the process of disclosure.
1. Political theology is understanding how theological concepts are de-sacralized and then re-sacralized in an analogous/analogical sense (not the Thomist kind, mind you!) by politics and/or the study of statecraft.
2. Political theology is NOT public theology as it is popularized today.
3. One can really sense E. Kantorowicz engage Carl Schmitt here as a conversation partner (well, not in the literal sense, since they weren’t contemporaries). Having read Schmitt ahead of E. Kantorowicz eight years ago, the infamous Nazi constitutional theorist makes more sense to me now. I also understand Dutertismo better, seen from the lenses provided by E. Kantorowicz, Schmitt and Giorgio Agamben (ha!)
4. Reading through E. Kantorowicz’s chapters on the Christ-Centered Kingship, the Law-Centered Kingship and the Polity-Centered Kingship: Corpus Mysticum, I can argue from Dooyeweerdian eyes that what he discusses in these chapters is really what we mean by disciplinary differentiation, if in a rough way. Thus:
Ch. 1: the phrase ‘body politic’ often used by later philosophers (Locke and Hobbes, for instance) apparently finds root in the metaphysical theory of the King’s two bodies familiar to Tudor jurists — the indivisible body natural and the body politic. The theory itself developed out of the Christian doctrine of the incarnation of Christ and the Athanasian two natures. The King is dead, long live the King!
Ch 2. Shakespeare’s King Richard II illustrates the tensions and breakdowns of the theory in a subversive era.
Ch 3. In the Norman tracts, the theory gets further traction, the King becoming, as it were, an imitation of Christ on earth, under the notion of germina persona (something like the Lord President today who could do no wrong for that reason!). It is a liturgical kingship, the earthly ruler as christomimetes, the impersonator and actor of christ no less than priest or bishop celebrating the Eucharist.
Ch. 4 It gets more interesting for lawyers like me — the ground now shifts from liturgy to law, as the King becomes the epitome of equity and justice (as the canon lawyers take over, with their familiarity with Roman and ecclessiastical law). Thus the maxim the King is above the law, but is neverthless servant of the Law. The terms necessarily change –it is now a discussion between privata voluntas and persona publica (or private will as against public person).
Frederick II is its poster boy.
So this secularization is to be taken mostly in a positive sense, also pace Casanova (secularization as societal differentiation, marking out distinct boundaries for each sphere that is sovereign in its own orbit (Kuyper’s sovereignteit in eigen kring). So theologians shouldn’t take it out on jurists/political scientists/philosophers if their ideas were used by the latter in ways different from theirs. Also, they really shouldn’t wish things were back to the time when theology was the Queen of the Sciences.
5. This is what we otherwise understand to be the analogical moments that Dooyeweerd speaks of in the formation of disciplinary concepts as the various spheres open up in the process of societal differentiation (disciplines borrow from other disciplines in forming concepts, without transgressing the integrity of their own disciplinary concerns).
6. If we follow E. Kantorowicz (who was an atheist, by the way) –and now that we’re marking the 500th year of the Protestant Reformation — there’s not much to the often-repeated thesis that modernity (read as BAD secularization) is the fault of Protestants. Well, he does mention the nominalists here, but only in a very tangential way (take that, Milbank et al.) You can blame Dante for that. Or Marselius de Padua, or the Roman jurists. Or Frederick II. Or Paul of Tarsus. Take your pick. Heck, Roman Catholicism could very well have bred the seeds of secularization, if we follow Kantorowicz’s account! (For an alternative reading of secularization in the BAD sense, see Dooyeweerd’s essay on the Secularization of Science).
7. I wish this book were one of the assigned texts, along with Harold Berman’s two volumes on the development of law in the Western tradition, when I was reading legal history in law school.
(Nota bene: This is a slightly revised version of a post I earlier made on my Facebook account).
…[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.
The 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.
By Romel Regalado Bagares
As a former journalist, I know intimately the terror of being made to face a criminal complaint that may eventually lead to a jail sentence: libel.
I was barely a month into my new job as a newspaperman in 1995 when I was slapped with a P5-million libel complaint before the Office of the Prosecutor in Pasay City. The complainant was a former Supreme Court justice, valedictorian of the illustrious Class of 1939 of the University of the Philippines College of Law and favored classmate to its most (in)famous alumnus the late strongman Ferdinand Edralin Marcos.
I had earlier reported on an entirely different complaint, one dealing with sexual harassment, filed with the National Bureau of Investigation (NBI) against the good justice by a young woman who worked for him as a legal researcher. The good justice – he was already 79 years old at that time – denied it of course, and his denial came on strong in the form of a libel suit against me and the legal researcher.
My first reaction when I read the subpoena from the Office of the Prosecutor was panic: I was a 20-year-old cub reporter who was earning a measly sum of P5,500.00 a month as a news reporter. All told, my assets consisted of no more than a few hundred books, most of them bought second-hand and therefore cheap, a diploma from the state university, and youthful bravado that was thinning fast as I contemplated a bleak future in jail and penury.
I remember being received at his Makati City office by one of the newspaper’s lawyers, the well-known litigator Rogelio Vinluan, for an interview that lasted an hour. A young associate lawyer took down notes. “You barely look the part, “ Atty. Vinluan chuckled when he first saw me. But he quickly calmed my fears and told me not to worry.
Indeed, I was still wet behind the ears, as old hands used to say, and already, I was facing a big libel suit. To the credit of Atty. Vinluan’s litigation prowess, the suit was eventually dismissed. A few years later, I would sit for the first time as a working student in a class on Evidence in the evening program of the UP College of Law, with Atty. Vinluan as my professor. I don’t think he recognized me as a former client nor did I dare remind him of our former association. In any case, I passed his class.
Shortly after that, his law office would defend me in yet another libel case where I was sued for my reportage on a violent fraternity-related incident on campus that took the life of an innocent bystander – a journalism student who came from a very poor family and his family’s only hope for a better life. The son of an influential family had been linked to the crime and I had duly reported on it. This time around, younger lawyers from Atty. Vinluan’s firm were assigned to defend me. Like the first one, the suit was dismissed before it could even reach the courts.
I recall this part of my eight years working as a journalist to bring home the point about criminal libel – how it seriously impairs a journalists’ work to ferret out the truth about a matter of public interest, and how helpless a journalist could be if he or she is not supported by his or her media organization when sued for libel. In my case, my newspaper, The Philippine Star, did not abandon me but hired the best lawyers to defend me.
Unfortunately, for many Filipino journalists, especially those who work away from the center, a good defense lawyer for a libel case is a luxury they cannot afford.
The Philippines, despite its democratic credentials, has kept in its statute books criminal libel. It is a colonial legacy that time and again, powers-that-be have had no qualms deploying to stifle legitimate political dissent or any comment or reportage made in pursuit of the public interest.
As the American Bar Association‘s (ABA) Country Director Scott Ciment would say, criminal libel is an abhorrent practice that should have no place in any self-respecting democratic state “because it sends people to jail simply because of the words they say or write. ”
The Dutch Christian philosopher Herman Dooyeweerd would say that a state with a deepened understanding of justice will know better than punish an act of defamation with imprisonment, or penalize those who speak the truth to power with a jail term.
One piece of good news is that the United Nations Human Rights Committee recently declared that the Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,” which pertains to the freedom of expression.
Recalling its General Comment No. 34, the UN body stressed that defamations laws should not stifle freedom of expression. “Penal defamation laws should include defense of truth,” it said. “[In] comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel.”
The UNHRC’s view was expressed in connection with a complaint filed with it by Davao City broadcast journalist Alexander Adonis, who spent two years in jail after he was convicted of libeling former Speaker of the House Prospero Nograles.
Adonis’s crime was reading and dramatizing over his popular radio program a news report that then Congressman Nograles was seen running naked in the corridors of a hotel in the city after he was caught in bed by the husband of the woman who was said to the legislator’s mistress. The incident entered the collective memory of the citizens of Davao City as the “Burlesque King” scandal.
After serving two years in prison, with the legal assistance provide by the Center for International Law, Adonis questioned, among other things, whether criminal libel is compatible with the freedom of expression protected under Art 19 of the ICCPR, to which the Philippines is a state party.
And the UNHRC‘s answer is a resounding no.
The UNHRC is a treaty monitoring body created under an optional protocol to the ICCPR with the power to declare that a State party to the Convention is in breach of its obligations under the covenant.
In the Association of Southeast Asian Nations (ASEAN), only the Philippines signed up to the individual complaint mechanism that allows its citizens to file directly with the UNHRC complaints for violations of their human rights.
While it is true that a UNHRC view is legally non-binding on an erring state, it carries persuasive weight that such a state cannot readily discount, not to mention the follow-up mechanism in the UN system that repeatedly reminds the state of its continuing breach of obligations.
In the context of Philippine experience, it is yet the most powerful condemnation by an international body of the truly scandalous nature of criminal libel: of how, all too often, those in power hold on to it by suppressing those who dare to speak truth to power, using their most readily available tool – a libel complaint.*
An earlier version of this essay first appeared in my column for the Iloilo City-based The News Today.