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The state, human rights and the simultaneous realization of norms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*human rights themed image  taken from the oxfam website.

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The nominalistic state: Bodin, Hobbes, Schmitt

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 leviathanGerman 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.”[1] 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.[2]

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,”[3] 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[4] 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.[5]

Thus Schmitt cites Hobbes in his formulation of sovereignty as pure and unbridled “political decisionism”: autoritas, non veritas facit legem.[6] 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.[7]

 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.” [8]

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.[9]

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.[10] 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).[11]

This voluntarist element is fully present in the systems of Bodin and Hobbes, says Buijs. The consequences of the nominalistic outlook is especially “weighty”[12] 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.[13] Second, there is now no avenue for appeal beyond the lawgiver. In Bodin,[14] 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.[15] 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.[16]

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.[17] 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.”[18]

Buijs quotes Hobbes thus: “Fear and I were twins.”[19]

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.[20]

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”[21] by developing a new idea of statehood opposed to the absolutist raison d’etat.[22]

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.[23]

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.[24] 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.[25]

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.”[26] 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. [27]

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.”[28] 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.”[29]

 

(photo inset: the original graphic to Thomas Hobbes’ famous political treatise, The Leviathan) __________________________________

[1] Carl Schmitt, Political Theology: Four Chapters on Sovereignty 5(George Schwab, ed. 2006).

[2]Id. at 6.

[3]Schmitt, supra note 299 at 13.

[4] 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.

[5] Schmitt, supra note 299 at 13.

[6] Id. at 33

[7] 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).

[8] Govert Buijs, “Que les Latin appellen maiestatem”: An Exploration into the Theological Background of the Concept of Sovereigntyin 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)

[9] I Buijs, Concept of Sovereignty, supra note 299 at 236-237.

[10]Id. at 235.

[11] Id. at 251.

[12] Id.

[13]Id. at 248, citing Louis Dupre, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (1993).

[14] 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.

[15] I Buijs, Concept of Sovereignty, supra note 299at 252.

[16]Id.

[17]Id.

[18] 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.

[19] Id.

[20] Id.

[21]IV Marti Koskenniemi, International Law and Raison D’Etat: Rethinking the Prehistory of International Law 1 (March 2008) [hereinafter, IV Koskenniemi, Prehistory].

[22] Id.

[23]IV Koskenniemi, Prehistory, supra note 319 at 2.

[24] Id. at 25

[25]IV Koskenniemi, Prehistory, supra note 319 at 2.

[26] Id, quoting Punfendorf DJN Bk VII Ch 6 § 2.

[27] Id. at 5.

[28] 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.

[29] IV Koskenniemi, Prehistory, supra note 319 at 5.

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