Nightcap

  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”

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

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”

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?

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

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

  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