legal theory

On Persons, Individuals, and Humans

Federico Sosa Valle History, Law , , , , ,

It is only from a notion of the human, common to all men, that the concept of person can be dissolved into the idea of individual.

The relevance of the concept of person lies in its ability to describe functional relationships with its environment: sui juris or alieni juris, noble, patrician, commoner, serf or lord, father, minor, capable, incapable, etc. In pre-modern times, according to each function, a normative system exclusive to caste, position or estate, known as “privilege”, corresponded.

Rather, Modernity dissolves fixed personal relationships into an undifferentiated diagram of spheres of individual autonomy. Each human being ceases to be a person attached to a certain fixed function in the social fabric and, by the mere fact of being human, is the holder of his sphere of individual autonomy, equal to that of any other human being.

The legal system ceases to govern particular relationships between people to become a structure empty of intentions and purposes, which only determines procedures and delimits equal and predictable fields of interaction and clear methods for the resolution of disputes among the holders of the different spheres of individual autonomy.

The principle ceases to be that of difference to become that of equality. The difference becomes the exception, to be justified on a functional basis that results in a public benefit.

However, in the non-political sphere, that of civil society, the difference does not disappear, but is expressed in each of the individual exceptionalities, within each respective sphere of individual autonomy, while it is accidental and irrelevant to the legal-political system.

There are certain special situations framed within specific legal regimes, such as minority and intra-family relations, which enshrine assistance obligations, usufruct rights and a system of representation and guardianship.

Consequently, the role of the public sphere within civil society is defined by the procedure to be followed to settle the conflicts that could arise from the collision of the different spheres of individual autonomy.

From the moment in which each human being is an autonomous individual, the legitimate exercise of power in relation to the population does not consist in giving specific orders to subjects but in administering a set of procedures whose specific purpose is to serve as a means for different individuals settle their disputes peacefully.

Of course, in Modernity and in liberal democracies relations of command and political obedience subsist, but within the governmental structures themselves, which in turn incorporated procedural rules that limit discretion in the exercise of power and establish functions and hierarchies that define competencies and delimit individual responsibilities.

However, both modern government structures and the legal consecration of a social structure composed of equal individuals in dignity and respect are not the result of an invention but the consequence of a historical evolution whose becoming does not cease and whose hindrances persist in the field of the aforementioned civil society.

That the differences between people are exclusively functional and that such functions report a benefit to all the individuals involved, in such a way that none of them is used exclusively as a means, but is seen as an end in itself, is an imperative for the public sphere, but only a programmatic aspiration in the field of civil society.

In turn, that each person deserves equal consideration and respect is a discovery in the true sense of the word. Quentin Skinner in “The Foundations of Modern Political Thought” recounts the role played in the Late Middle Ages by the discussion that every person was endowed with an immortal soul, deserving of salvation, for the subsequent conceptualization that every human being is worthy also of legal protection regarding their fundamental interests, such as their life, their personal freedom, or their possessions.

Regarding the natural law doctrine of human rights, which states that human beings enjoy a certain set of guarantees and rights against the state and against other people, it is usually dismissed as metaphysical.

However, such statement can be understood more clearly if it is related to its historical evolution: the different freedoms already existed but assigned to different people according to their caste or status, who had an immediate and specific interest in their protection.

To cite an example, in the Partidas of Alfonso X of Castille, we find every detail of social life regulated: some had the right to bear arms but not to work, since they had to be available to the king in his court to eventually go to war; others had the right to exercise a certain trade or profession, excluding those who did not belong to their corporation, but they were not free to change their activity, neither in terms of their subject matter nor their geography. In the pre-modern world, the holders of freedoms had a specific interest in defending them, but their ownership depended on circumstances that, in the vast majority of cases, were out of their control and, in others, obsolete in terms of their functionality.

Given that this legal-political system had very little plasticity to adapt to changes in the surrounding circumstances, it was generally inefficient, stagnant, and unstable and, therefore, conflicts manifested themselves in recurrent revolts.

Modernity consisted in the universalization of liberties. This means that freedoms – or immunities against power – that already existed and whose entitlement was limited to reasons of belonging to certain castes or estates, to the exclusion in many cases of one another, began to be extended to all human beings by the mere fact of being such.

That is to say, there is nothing metaphysical in the natural law doctrine of human rights. It actually consists of the universalization of rights that already existed and were recognized.

The novelty that this brought is that each human being ceased to be considered as a person in relation to his family, his social status or his caste, to be considered as an autonomous individual and equal in rights to any other, holder of rights that he was actively interested in exercising as well as others whose content he hardly had any news or specific interest.

In turn, men exchanged differentiated rights that protected certain personal interests in exchange for new abstract freedoms, the same for each of the remaining individuals. As a result, each person gained potential spheres of action and saw specific regions of power restricted.

The nobleman gained a freedom to work and trade that he may or may not have an interest in exercising, but he lost the power he had over his serfs or was displaced by commoner bureaucrats in government functions. The shoemaker gained the freedom to emigrate to other cities or to change his trade to that of a blacksmith, in which he may or may not be interested, but he also received competition in his own town from other new shoemakers who emigrated from other latitudes, who effectively exercised such rights.

Such transformations and their discontents can be verified in the conservative authors of the beginnings of the Contemporary age, as is the case of Charles Dickens, among others.

That is why the universalization of fundamental rights -for the English tradition- or natural rights -for the American conception- constitutes both a discovery of intellectual research on historical evolution and a political program.

Whether such an extension is desirable and to what extent it should be continued or reversed largely defines political positioning from right to left. For this reason, historical evolution is not a legitimizing device in itself, but a process of discovery of various forms of social and political organization that is subject to a critical evaluation regarding which institutions and practices to incorporate, preserve, resist or modify.

Some Monday Links

Michalis Trepas Links , , , , , , ,

Why the Nineties rocked (UnHerd)

AV Dicey as Legal Theorist (The Modern Law Review)

Milton Friedman quoted Dicey here, so I was about to look him up, someday.

Texas Town Shuts Down Her Home Day Care After Nearby Golfers Complain the Kids Were Making Too Much Noise (Reason)

A twisted adaptation of the classic example of economic externalities: Golf club instead of serene houses, home day care in the place of noisy industrial unit.

Sumo Wrestlers In Mid-Air, A Day Of the Dead Icon, And Other Winning World Photos (Hyperallergic)

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 4 of 12)

Federico Sosa Valle Law, Liberty , , , , ,

Different degrees of law enforcement

Law enforcement systems range from ideal types of pure blind and automatic rule enforcement to pure discretion. The ideal of automatic law enforcement denies the reality of errors, the fragmentation of knowledge of special circumstances of time and place, and information costs. Meanwhile, complete discretion is the very negation of the law as abstract and general normative statements. However, defining both poles, the first factually unrealizable and the second contradictory in itself, allows us to identify the trend that characterizes the various legal systems given.

Likewise, information costs and discretion are variables that determine the degree of law enforcement. Both the criminal sanctions and the sentences to compensate damages depend to a large extent on questions of proof and evidence about the facts contained in the norm as a condition for the application of the legal solution envisaged. Likewise, the law itself imposes limits and criteria for collecting and assessing evidence, such as due process guarantees, which include the right not to testify against oneself and the inviolability of the person. Therefore, when a rule provides, for example, a fine of $1,000 – for the offender, the deterrent of said consequent depends on the degree of probability that the legal system will identify the infraction, the person responsible for the infraction and be able to prove said fact before the courts in a process supervised by the offender, who may present his defense and offer his own evidence.

Continuing with this example, if the probability of being fined is 80%, then the fine represented by the eventual offender is reduced to $ 800. Suppose then, that a driver needs to get to work on time so that the day is not deducted, which would mean a loss of $900. Then, the person in our example will maximize his choice if he violates any traffic rule, assuming the risk of losing $800 – in order to avoid the risk of losing $900. Of course, if it is discovered, your gross loss will be $1,000, but your net loss will have been reduced to $100, while if it is not discovered, your gross result will be $0, but your Net result will amount to $900, since thanks to his decision to assume the risk of being fined, he avoided losing the payment for the day of work. Therefore, given the incentive system given to the maximizing agent in our example, the most rational thing for him is to assume the risk of transgressing the norm.

This elementary example suggests several conclusions. The first one is that it should not be ruled out that society itself maximizes the utility of its resources by admitting a certain range of transgressions. However, these cases are not extra-systemic, but are justified or exempted from liability, as the case may be, within the legal system. Running a red light in order to urgently take a badly injured person to the hospital is a cause of justification. Doing it on a completely deserted street in order not to be late for work could be accepted as an acquittal. In these cases we are also faced with a certain degree of judicial discretion, in order to weigh the legal meaning of certain facts and circumstances as justifying or mitigating responsibility. But another issue related to this is to recognize that the agent himself has a higher level of information regarding his own circumstances than that of any other external observer, which allows him to make better decisions attentive to his level of immediacy with the facts. Finally, society itself also organizes itself spontaneously around a certain margin of extra-systemic regulatory breaches: in the example mentioned, society as a whole will maximize the utility of its resources if the offender arrives early at work, at the risk of paying a fee. penalty fee; while the traffic fines will have as their real destination those drivers who are not pressured by such an urgency, in which case it is more socially beneficial that they comply with the traffic regulations.

The latter brings us to another question, of singular relevance, which consists in defining the distinction between a liberal legal system and a police one. Legal systems that recognize the value of human dignity and are organized around a principle of autonomy of the will give each individual the power to decide whether to transgress certain norms at the price of assuming their consequences. Instead, police systems seek to prevent each individual from making such a decision, for the sake of certain collective values, such as security or mere compliance with the orders issued by the public powers. Of course, even in liberal legal systems, values ​​such as the protection of human life and public safety entail certain mechanisms and norms for crime prevention, but always considering that these mean an injury to individual freedoms, not an absolute public authority.

Finally, although without definitively exhausting this debate, one characteristic of particular systemic relevance deserves to be mentioned, on which it will have to be discussed in greater depth: the relationship between the decision to increase the degree of application of the norm or to increase the threat of punishment, in order to achieve a certain degree of compliance by citizens.

[Editor’s note: this is Part 4 in a 12-part essay; you can read Part 3 here or read the essay in its entirety here.]

Nightcap

Brandon Christensen Links , , ,
  1. 5 questions for undecided voters Conor Friedersdorf, Atlantic
  2. Useful libertarian idiocy Will Wilkinson, Open Society
  3. Why not randomize judges and juries? Robin Hanson, Overcoming Bias
  4. Good primer on the Armenian crisis Mark Movsesian, Law & Liberty

Nightcap

Brandon Christensen Links , , ,
  1. Adele and the local nature of social norms Lauren Hall, RCL
  2. The evolution of a legal rule (pdf) Niblett, et al, Journal of Legal Studies
  3. Covid and the counterfactual, and the longer term Eric Crampton, Offsetting Behaviour
  4. The last great theorist of history Stefan-Ludwig Hoffmann, Aeon

Nightcap

Brandon Christensen Links , , ,
  1. Collective psychiatry (communist psychiatry) Emily Baum, Aeon
  2. The virtue of judicial self-restraint William Haun, National Affairs
  3. Two roads for the new French Right Mark Lilla, New York Review of Books
  4. Where politics and theology are hard to disentangle Bruce Clark, Erasmus

Afternoon Tea: “Albert Venn Dicey and the Constitutional Theory of Empire”

Brandon Christensen History, Law, Links , , , , , ,

In the post-1945 world, constitutionalism has transcended the nation-state, with an array of transnational arrangements now manifesting constitutional characteristics — so says a growing number of scholars. This paper reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late-nineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the paper shows that, when the Empire was at the height of its power and prestige, British constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This paper focuses in particular on parliamentary sovereignty, a constitutional principle that for Dicey was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the paper rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to bring empire back into the picture.

This is from Dylan Lino, a legal theorist at the University of Western Australia’s Law School. Here is the link.

The Negative Capability of a Good Legislator

Federico Sosa Valle Law, Philosophy , , , , , , ,

In a former post, we had explored the idea of considering the law as an abstract machine which provides its users with information about the correct expectancies about human conduct that, if fulfilled, would contribute to the social system inner stability (here). The specific characteristic of the law working as an abstract machine resides in its capability of dealing with an amount of information more complex than human minds. This thesis had been previously stated by Friedrich Hayek in his late work titled “Law, Legislation and Liberty”, aimed to provide the foundations to a proposal of an constitutional reform that would assure the separation of the law from politics -not in the sense of depriving politics from the rule of law, but to protect law from the interference of politics.

Paradoxically, the said opus had many unintended outcomes that surpassed the author’s foresight. One of them was the coinage of the notion of “Spontaneous Order”, which Hayek himself regretted about, because of the misleading sense of the word “spontaneous”. At the foreword of the third volume of the cited “Law, Legislation and Liberty”, he explained why he would prefer to use of the term of “Abstract Order”. Notwithstanding its creator’s allegations, the label of “Spontaneous Order” gained autonomy from him in the realm of the ideas (for example, here).

Why better “abstract order” than “spontaneous”? Because while no “concrete order” might be spontaneous, we could nevertheless find normative systems created by human decision, besides the spontaneous ones (see “Law, Legislation and Liberty”, Chapter V). Moreover, we do not see spontaneous orders whose rules fail to provide stability to the system, because of “evolutionary matters”: such orders could not endure the test of time. Nevertheless, for the same reason, we could imagine a spontaneous order whose rules of conduct became obsolete due to a change in the environment and, thus, fails to enable the social system with the needed stability.

Spontaneity is, thus, not the central characteristic of the law as a complex order. What delimits law from a “concrete order” is the level of abstraction. An alternative name given by Hayek to designate the concrete orders was the Greek term “taxis”, a disposition of soldiers for battle commanded by the single voice of the general. Concrete orders could be fully understood by the human mind and that is why they are regarded as “simple phenomena”: the whole outcome of their rules could be predicted by a system of equations simpler than the human mind.

Notwithstanding a single legislator could sanction a complete set of rules to be followed by the members of a given society, the inner system of decision making of those individuals are more abstract that the said set of rules and, thus, the human interactions will always result in some subset of unintended consequences.

These unintended consequences should not necessarily be regarded as deviations from the social order, but indeed as factors of stabilisation -and, thus, all abstract orders are, in some sense, still spontaneous. These characteristics of the law as a complex order concern on the information about the final configuration of a society given a certain institutional frame: we can establish the whole set of institutions but never fully predict its final outcome. At this stage, we reach what Hayek called in The Sensory Order “an absolute limit to knowledge”.

We now see that the legislator could sanction a complete system of rules -a system that provides solutions for every possible concrete controversy between at least two contenders-, but he is unable to be aware of the full set of consequences of that set of rules. We might ascertain, then, that being enabled with a “negative capability” to anticipate the outcome of the law as a complex phenomenon is a quality to be demanded to a good legislator.

By this “negative capability” we want to designate some understanding of the human nature that allows to anticipate the impact of a given norm among the human interactions. For example, simple statements about human nature such as “people respond to incentives”, or “all powers tend to be abusive”. These notions that are not theoretical but incompletely explained assumptions about human nature are well known in the arts and literature and constitute the undertow of the main narratives that remain mostly inarticulate.

Precisely, as Hayek stated, every abstract order rests upon a series of inarticulate rules, some of which might be discovered and  later articulated by the judges, while other rules would remain inarticulate despite being elements of the normative system.

However, we praise Negative Capability as a virtue to be cultivated by the legislator, not by the judge. The function of the judge is to decide about the actual content of the law when applied to a particular case. It is the legislator the one who should foresee the influence to be exerted by the law upon a general pattern of human behaviour.

Notwithstanding Negative Capability could be dismissed in order of not being a scientific concept, this negative attribute is one of its main virtues: it means lack of ideology, in the sense given to that term by Kenneth Minogue. While an ideological political discourse reassures itself in a notion of scientific truth, at least a legislator inspired by common and humble ideas about human nature would be free from that “pretence of knowledge”.

Afternoon Tea: “‘Chief Princes and Owners of All’: Native American Appeals to the Crown in the Early Modern British Atlantic”

Brandon Christensen Links , , , , , ,

This paper uncovers these indigenous norms by looking at a little-studied legal genre: the appeals made by Native Americans to the British Crown in the seventeenth and eighteenth centuries. These appeals show that they were aware of (and able to exploit) the complicated politics of the British Atlantic world for their own ends, turning the Crown against the settlers in ways they hoped would preserve their rights, and in the process becoming trans-Atlantic political actors. Focusing on three such appeals – the Narragansetts’ in the mid-seventeenth-century; the Mohegans’ which spanned the first three quarters of the eighteenth; and the Mashpee’s on the eve of the American Revolution – this paper explores the way that these Native peoples in eastern North America were able to resist the depredations of the settlers by appealing to royal authority, in the process articulating a powerful conception of their legal status in a world transformed by the arrival of the English. In doing so, it brings an indigenous voice to the debates about the legalities of empire in the early modern Atlantic world.

This is from Craig Yirush, a historian at UCLA. Here is a link.

Courts as Modern Civic Churches?

Shree Agnihotri Current Events, Law, Religion , , , , , , ,

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Law, Judgement, Republicanism

Barry Stocker Liberty, Philosophy , , , , , , , , , ,

Draft material for a joint conference paper/Work in Progress on a long term project

This paper comes out of a long term project to work on ideas of liberty in relation to republicanism in political thought, along with issues of law and sovereignty. The paper in question here comes out of collaborative work on questions of law, judgement, and republicanism in relation to Turkey’s history and its current politics. Though this comes from collaborative work, I take sole responsibility for this iteration of draft material towards a joint conference paper, drafted with the needs of a blog with a broad audience in mind.

The starting point is in Immanuel Kant with regard to his view of law and judgement. His jurisprudence, mostly to be found in the first part of the Metaphysics of Morals on ‘The Doctrine of Right’, is that of law based on morality, so is an alternative to legal positivism. The argument here is not to take his explicit jurisprudence as the foundation of legal philosophy. There is another way of looking at Kant’s jurisprudence which will be discussed soon. 

What is particularly valuable at this point is that Kant suggests an alternative to legal positivism and the Utilitarian ethics with which is has affinities, particularly in Jeremy Bentham. Legal positivism refers to a position in which laws are commands understood only as commands, with regard to some broader principles of justice. It is historically rooted in the idea of the political sovereign as the author of laws. Historically such a way of thinking about law was embedded in what is known to us as natural law, that is, ideas of universal rules of justice. This began with a very sacralised view of law as coming from the cosmos and divine, in which the sovereign is part of the divinely ordained laws. Over time this conception develops more into the idea of law as an autonomous institution resting on sovereign will. Positivism develops from such an idea of legal sovereignty, leaving no impediment to the sovereign will.

Kant’s understanding of morality leaves law rooted in ideas of rationality, universality, human community, autonomy, and individual ends which are central to Kant’s moral philosophy. The critique of legal positivism is necessary to understanding law in relation to politics and citizenship in ways which don’t leave a sovereign will with unlimited power over law. Kant’s view of judgement suggests a way of taking Kant’s morality and jurisprudence out of the idealist abstraction he tends towards. His philosophy of judgement can be found in the Critique of Judgement Power, divided into parts on aesthetic judgments of beauty and teleological judgments of nature.

The important aspect here is the aesthetic judgement, given political significance through the interpretation of Hannah Arendt. From Arendt we can take an understanding of Kant’s attempts at a moral basis for law, something that takes political judgement as an autonomous, though related, area. On this basis it can be said that the judgement necessary for there to be legal process, bringing particular cases under a universal rule, according to a non-deterministic subjective activity, on the model of Kant’s aesthetic judgement is at the root of politics.

Politics is a process of public judgement about particular cases in relation to the moral principles at the basis of politics. The making of laws is at the centre of the political process and the application of law in court should also have a public aspect. We can see a model of a kind in antiquity with regard to the minor citizen assembly, selected by lottery, serving as a jury in the law courts of ancient Athens. It is Roman law that tends to impose a state oriented view of law, in which the will of the sovereign is applied in a very absolutist way, so that in the end the Emperor is highest law maker and highest judge of the laws.

As Michel Foucault argues, and Montesquieu before him, the German tribes which took over Roman lands had more communal and less rigidly defined forms of court judgement, and were more concerned with negotiating social peace than applying laws rigidly to cases. Foucault showed how law always has some political significance with regard to the ways in which sovereignty works and power is felt. That is the law and the work of the courts is a demonstration of sovereignty, while punishment is concerned with the ways that sovereignty is embedded in power, and how that power is exercised on the body to form a kind of model subjugation to sovereignty. The Foucauldian perspective should not be one in which everything to do with the laws, the courts, and methods of punishment is an expression of politics narrowly understood.

The point is to understand sovereignty as whole, including the inseparability of institutions of justice from the political state. The accountability of the state and the accountability of justice must be taken together. Both should work in the context of public accessibility and public discussion. The ways in which laws, courts, and judges can be accountable to ideas of autonomy must be declared and debate. Courts should be understood as ways of addressing social harms and finding reconciliation rather than as the imposition of state-centric declarations of law.

Nightcap

Brandon Christensen Links , , ,
  1. Why Orthodox Christian countries remain stuck Leonid Bershidsky, Bloomberg View
  2. How communist Bulgaria became a leader in tech and sci-fi Victor Petrov, Aeon
  3. Slobodian’s The End of Empire and the Birth of Neoliberalism Henry Farrell, Crooked Timber
  4. Rethinking the unitary executive in American politics Ilya Somin, Volokh Conspiracy

Role of a Citizen in Hegemonic Authoritarianism

Shree Agnihotri Law, Liberty, Philosophy , , , , ,

I want to begin a n-part series on Hannah Arendt. Why Arendt? Because I wrote a paper on her last semester and have been obsessed ever since. I will pick up one theme (or a sentence and sometimes just a phrase) from her work and try to either describe it in contemporary political terms or evaluate it against legal theories, political and moral. All this, I will do under the presumption that there are some political ideals like democracy, constitutionalism, liberalism that exist within the domain of possibility for polities irrespective of their legal culture. What I will also presume is that all political ideals function on a spectrum and it is difficult to accurately pin point exactly when something has turned from being tolerable to just plain rotten.

 

At various points in history, societies become obsessed over a political concept. Every once in a while, societies experience an onslaught of violations. Violations of their personal, maybe innate, sense of justice. I am not going to argue on the nature of this sense of justice. Instead, I will point towards our basest moral instincts. If you agree that there is such a thing as conscience that can not only exist but also develop outside of the legal system, you will see that it relates to how we think about what is wrong and what it right. Ergo, justice.

The violation of justice shakes things up enough for us to evaluate and figure out which political ideal, if protected, could have saved us. Against the Nazi regime it was the Rule of Law, for feminists it is Equality, against the Nanny State, it is liberty, and so on. In a bid to make amends, we compensate by institutionalizing it, giving it a place of honor in public discourse, and protesting all violations, big or small.  Every once in a while, the political concept finds a life of its own – growing differently in different parts of the world, becoming an essentially contested concept. After a point of time, the omnipresence of the principle starts to define the terms of the debate in matters unconnected with it.

Today, it is Authoritarianism. Not one where the ruler does not even wish to keep up the pretense of legality and justice but the kind which creeps up when no one is looking. Hannah Arendt was worried about the latter. She worried not just about the big bureaucratic state with its mechanical application of law and antipathy towards political moral ideals, but also about the citizen under such a regime who observed and obeyed and said not a word because the violations were too minor and too remote to care about.

The citizen who refuses to think is the power source of authoritarian regimes. One can ask if Arendt expects her model citizens to practice constant vigilance, continuously evaluating the judgements of their sovereign for potential violations of some sense of justice. After all, her theory of power is based on a conception of power working through communication and co-operation as opposed to the traditional understanding of power emanating from coercion and commands. ‘Power corresponds to the human not just to act, but to act in concert’, said Arendt. She challenges the notion of power having a mandatory connection with sovereignty.

We must take note of the existing political background to her writings. She, along with half the world, stood against the Soviet Union. Communism was not just a bad word, it was inherently evil. So strong was her position against Marx’s writings that she blamed ‘the social’ for the destruction of the political realm. The political realm was the place for public discourse. Deliberation helped in protecting freedom whereas the urge for leveling down of human life resulted in the destruction of democratic practices. However, what was most egregious was the tendency of communism to regularly violate the autonomy of the individuals.

The ‘social’ was not just a command of a sovereign, it was implicit in hegemonic structures through which obedience was guaranteed. Why is this relevant today? It is relevant for its implications on how we judge regimes. Are we to be satisfied with just a form of legality or do we want to prevent violations to whatever principle it is that we have chosen to hold dear, albeit for the century? If we choose the latter, then Arendt’s expectations from a model citizen do not seem too demanding. We must constantly sit in judgment, not just of the laws that govern us (plenty of people do that already) but of the tools of reasoning we use in our political discourse. It is our justifications and not just our positions in a political debate that catalyzes hegemonic authoritarianism.

Nightcap

Brandon Christensen Links , , ,
  1. France hails a martyr, but Catholicism is dying there Bruce Clark, Erasmus
  2. The misunderstood art of the Qajar dynasty Joobin Bekhrad, BBC
  3. Let’s restore judicial impeachment Greg Weiner, Law and Liberty
  4. John Paul Stevens is wrong on Second Amendment, again Damon Root, Reason

Law and Liberty: Hobbesians vs Rechtsstaaters

Federico Sosa Valle Law , , , , , ,

Individual freedoms are tethered to law, but in what sense? We could call Hobbesian the insight into law and liberty which states that norms are addressed by the sovereign power to the individuals. The Sovereign is the only one who prescribes the law, being the individuals subject to the legal obligation. Even the limitations to the power of the government in the face of fundamental rights – such as the Due Process – are not expressed in terms of limits to the sovereign power but of commands to the public servants: for example, the imprisonment of an individual without accomplishing the legal standards of Due Process allows the government’s agents to punish their unlawful colleagues. The law is always addressed, in the last resort, to an individual by the State.

Proponents of individual liberty thus advocate equality before the law, which means simply “only one state for everyone,” or “individual rights before the state.” Examples include the said guarantee of Due Process, or a system of check and balances among the branches of the government as safeguards against arbitrary coercion by the State. However, they all have a severe difficulty in defending individual liberties without recourse to an extra-system concept, such as natural law, moral duties, or political statements. The emphasis in formal legal procedures would be the utmost in coherence between liberalism and Hobbesianism, but it is easy to slide from procedures that protect individual legal rights to devices assuring the enforcement of the law – which has the individual as its last subject. It seems it is hard to restrain oneself from invoking metaphysical rights when it comes time to advocate individual liberty.

Nevertheless, it should not be surprising that every limit to political power of the State over the individual depends on metaphysical notions, since it is a tenet of the Hobbesian insight that the power of the State is absolute. Moreover, the Minimal State – a true effort to advocate individual liberty without resting on metaphysical notions – owes to Thomas Hobbes its main inspiration.

Historical evidence suggests, however, that in the relation among power, law and liberty is the other way round. The development of common law in England and the phenomenon of the reception of the Roman law in Continental Europe show that law is not necessarily created ex nihilo by the State. The State could provide enforcement to a given system of law, as it is shown in the book System of the Modern Roman Law (System des heutigen Römischen Rechts), by F. K. v. Savigny. Moreover, the States could adapt legal notions originating in private law to elaborate procedures to follow in the public sphere. The principle “venire contra factum proprium non valet” was born in private law and today is a guarantee to the individual against the arbitrary action of the State.

This is the process of rationalization of power described by Max Weber, the German concept of Rechtsstaat or the widely known concept of “Rule of Law.” In that process of rationalization, lawyers outshone the sages, the mandarins, and the humanists in the administration of public affairs by incorporating legal procedures and principles taken from private law. There might be differences among these concepts and historical events, but their common invariances allows us to get the gist.

There is, also, an evolutionary case for the relative advantages of a Rechtsstaat over the notion of sovereignty. In the former the decisions are principle-based while in the latter they are mostly taken by expediency. Since the said principle of venire contra factum proprium non valet and other legal procedures constrain rulers’ whims, government actions are more rational, in the sense of transitivity of preferences.

Thus, in the long run, the performance of the Rule of Law is higher than the Rule of Men. Lawyers outshine mandarins in government posts and, in turn, governments run by lawyers outperform governments run by mandarins. One device to switch from a given form of State to another one is, for example, immigration: people flock to countries where the Rule of Law prevails.

What we have called the Hobbesian insight into Law and Liberty is tied up with the definition of liberty as power. Thus, the equation of law and liberty becomes a zero-sum game: the more state, the less individual liberty, and the less state, the more individual liberty. On the other hand, the definition of individual liberty as absence of arbitrary coercion engages with the concept of Rule of Law: to substitute principles for expediency reduces arbitrary coercion and, thus, enlarges individual liberty.

Does this Rechtsstaat insight into Law and Liberty dissolve the question about the dimensions of the State? Not at all. But it provides a more strategic view: a big State will demand more decisions to be taken on expediency. A small state will provide two advantages to the enjoyment of individual liberty as absence of arbitrary coercion: more decisions based on principles and a larger space for the law to evolve by its own and discover new legal principles in response to the constant changes in the society.

But even if the conclusions might be the same (a smaller State), the two insights carry within them a set of premises that ineluctably will unravel by themselves when it comes the time of a deeper controversy. Then, the Hobbesian Insight will present the disjunction between Minimal State and metaphysical boundaries to the absolute power of the State. The Rechtsstaat strain, instead, will provide a humbler but subtler position.