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Transcript of The Rule of Law and Human Virtue
WCP 2008 Proceedings Vol.40 Philosophy of Law
The Rule of Law and Human Virtue
Mehmet Tevfik Ozcan Istanbul University, Turkey [email protected]
ABSTRACT The rule of law is politico‐legal realm of the modern society that it balances human gratifications, self‐respect and prerequisites of legal order, after dissolution of the traditional society. Apart from our criticisms on the capitalist society there had been an expanding development of civic virtue of the human individual since early beginning of capitalism up to the 1980’ies when idea of self respect and the legal order relatively balanced. But, after neo‐liberalism, the development is retrieving to the unbridled individualism, detrimental to the human virtue of all humanity.
1. Introduction An overall anthropology student aware that human being does not
live in a solitary existence, anyway isolated from his or her social milieu. In this context, some features of human life must be specifically cited that comprise material conditions of social setting and non‐material cultural element how dwelt upon material requirements which either facilitate or curb material being of individual or any other corporate being. All they are intertwined through cultural artefacts which represent reified past outcomes of human creativity; subsequently they
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totally establish a human habitus1, and that this milieu is traditionally named as civilisation. Albeit, humane or inhumane memories of history of civilisation, every civilisation flourishes a certain social order with expanding role of legal rules that it occurs through diminution of traditional mechanisms of social control. Whilst political and legal sub‐systems mutually interplay in functioning, to the degree that assent of people fairly safeguards social order without any feeling of humiliation. As regards historical civilisations, religious canons implemented a peculiar equilibrium between individual conscience and voluntary obedience before modernity, but in modern society such equilibrium may only be undertaken by objective, universal and formal rules of the legal system, on the condition that rational locution, popular persuasion and calculability assembled citizens into a corporate direction. The rule of law emerged in the milieu of dissolution of monarchical
body politic in the wake of early capitalism while the social milieu pushed absolutist kingdoms to uneven and covetous combat since early years of capitalism at the 13th century onwards. As having been witnessed in the British history, the rule of law development was not consequence of a pure reflection on good society or benevolent planning of political mandates, on the contrary it is a sum total of certain consequences, featured in political conflict, where the king and other political peers established a governance with decreasing political discretion in favour of law based social order and predominance of the judiciary2. Apart from the British governance, which flourished after
1 I borrowed the term from Bourdieu. For example, see, Pierre Bourdieu, “Artistic Taste and Cultural Capital,” Culture and Society, Ed. by, Jeffrey C. Alexander and Steven Seidman, Cambridge, Cambridge University Press, 1994 (c.1990), pp.205‐215. 2 Charles Howard, McIlwain, “Magna Carta and Common Law,” Magna Carta Commemoration Essays, Ed. by, Henry Elliot Malden, (London), Royal Historical Society, 1917, pp. 122‐179. As far as I identify, Fortescue, the British Lawyer and statesman used the “governance”
Mehmet Tevfik Ozcan: The Rule of Law and Human Virtue 93
Magna Charta of 1215, French and German governments could not establish similar political scheme, i. e. very roots of the rule of law, because they could not achieve to establish governance between political sovereigns and the peers, in spite of their undue legislation policy3. Contrary to the certain sociologists, who conceive society in the paradigm of solidarity4 or some benevolent philosophers, who dreamed a social equilibrium through communicative actions or reflective equilibrium in public sphere of modern society5, society is concurrently controlled through factual mechanisms of social order that belong market relations, social hierarchies and networks 6 , which are externalised in daily life by means of politics and law. The rule of law is a societal power system of law that replaces political discretion, proportional with its minimised role in the present milieu of power allocation pattern, but cannot be transcendently planned for the sake of imaginary good society. 2. The Rule of Law and Individual The rule of law debate primarily reminds us A. V. Dicey, the pre‐
eminent British constitutional lawyer who alleged binding force of the legal machinery that upholds legal rights and freedoms of liberal
concept in the last quarter of fifteenth century. See, John Fortescue, The Governance of England, Ed. by., Charles Plummer, 2nd ed., London, Oxford University Press, 1926, passim. 3 Blandine Kriegel, The State and the Rule of Law, Translated by Marc A. LePain and Jeffrey C. Cohen, Princeton, New Jersey, Princeton University Press, 1995, p. 67 et seq. 4 Emile Durkheim, The Division of Labor in Society. Trans. by, George Simpson, Glencoe, IL, Free Press. 1947. passim. 5 Jurgen Habermas, Between Facts and Norms, Trans. By, William Rheig, Cambridge, Polity Press, 1998, p. 56 et seq. 6 See, for some comprehensive essays on the social order of capitalist society: Grahame Thompson, et al, eds., Markets, Hierarchies and Networks, The Coordination of Social Life, London, Sage Publication and Open University, 1996 (© 1991), passim.
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individuals without any recourse to political action7. Dicey depicted the three essentials of the rule of law: 1. Every due punishment and redress to civil wrongs can only be sentenced when distinct breach of law assigned before ordinary courts and in ordinary legal manner (i. e. due procedure) of established laws of country. 2. Every human being, whatever his rank or condition, is subject to the ordinary law of realm and amenable to the jurisdictions of ordinary tribunals. 3. Predominance of the legal spirit must be necessary characteristic of the political realm that means, as Dicey alleged for English institutions, the constitution is pervaded by the rule of law. Perhaps, we can find miscellaneous definitions on the rule of law, but all they are constellations of Dicey’s formula8. Regarding to the three essentials, they do not stipulate or connote any form of political participation if might be democratic or undemocratic to the degree to which established in any given society. Those characteristics belong public sphere that are engendered by law which is either solely judge made law or parliamentary legislation. It reflects depoliticised daily life where interest articulation or goal attainment of individuals is fenced with law and legal apparatuses in any degree internalised through predominance of judicial power. The fencing is demarcation of legally protected sphere of civil rights that establishes meaning of individual as person in the legal system and as citizen in the certain republic. However, political system of society may encompass a king, it does not postulate indispensable rights of sovereign which is not an ubiquitous by
7 A. V. Dicey, Introduction of the Study of the Law of the Constitution, 8th ed., London, Mac Millan &Co., 1915, pp. 183‐199. 8 See, a comprehensive analysis on properties of the rule of law, Lord Bingham, “Rule of Law,” Cambridge Law Journal, Vol. 66, No:1 (March 2007), pp. 67‐85.
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definition, rather it stipulated by freedoms of the persons as in the place of citizenry as shown in Bodin’s political philosophy9. Apart from actual form of political regime, republican citizenry
stipulates voluntary submission of established legal order in any degree corresponded with his or her human gratification. Under the normal course of events, preachers of the legal order may demand supererogatory submission from citizens, unconditional for the sake of better society in the manner to which attributed it an objectified value, but individual compliance is ultimately yielding from optimality between his or her human gratification and demands of the legal order. I am aware that this point of view very congenial with sociological explanation, therefore I say that relationships between the legal order and the human individual is more complicated system which cannot be reduced to a magical formula or a golden rule. Every individual raises claims in various discourse articulations as manifestation of his or her personal will and claim of recognition from political society in locution of the rights language. As the two 19th century legal theorists (especially Kant and Puchta) posited10, individual will is outward expression that enunciates claims by means of action in common language of the law, wherefore individual expresses himself or herself as a person. In this context, contrary to liberal or libertarian assumptions, there is a frame activity that cannot display ostentation of recalcitrant individual, regardless to taken for granted personality conception of the legal
9 Jean Bodin, Six Books of the Commonwealth, Abridged and Trans. by, M. J. Tooley, Oxford, Basil Blackwell, 1955, pp. 18‐24. 10 Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence, Trans. by,W.Hastie, Edinburgh, Clark.1887, p.44 et seq. G. F. Puchta, (1887), “Outlines of Jurisprudence, as The Science of Right, A Juristic Encyclopaedia,” Outlines of the Science of Jurisprudence, Ed. and Trans by, W. Hastie, Edinburgh, T. & T. Clark, 1887 pp. 1‐134.
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system. Therefore, every claim, whilst its form is legal, invigorate individual in the terms of the legal community. Besides I enunciate person, as bearer of rights and duties that his or
her claims are manifestations of certain interests, the desire for recognition and, at least, demand for equality before law in within limits of the certain legal community. Those properties stipulate civic virtue of individual which can be evoked if only if when his or her in the condition of enlightened consciousness. I am aware that some people or population groups cannot evoke any consciousness or virtuous self‐respect in their mind, very likely to slavery or other forms of subjection, bound up with compulsory setting in spite of full citizenship. Conversely, we cannot delve into certain exhaustive criteria of civic virtue of citizenship that might be availed in every sociality or social context of civilisation where there might be either under a veil of ignorance, which the citizens might equally participated or otherwise entirely maimed in the consciousness formation. Contrary to the overall rationalism, albeit the enlightenment ideal, there is no ubiquitous property of human being that eternally and unreservedly makes him or her rational and be conscious of in every phases of life as frame rules of human communication and cooperation. Moreover, as having been in post‐modern condition, there may be an illicit mode of communication or basic personality type which might be distorted by irrational elements, religious ideas or superstitions, instead of science‐based and rational discourse formations. Consequently, personality is not a ubiquitous fact that neither civic virtue, nor its necessary condition can inevitably unravel human being from his or her social bonds for voluntary participation, as mechanical processes, reducible to the overall human condition. Consequently, the rule of law is a sui generis and a narrow conciliation between those facts. We must look into again civic virtue, as individual state of mind that
ideally manifests itself in the claim for recognition, but not a solitary
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desire at ostentation or otherwise is not manifestation of pure instincts. As many criticisms on postmodernism pointed that the consumerism entangled individual to the desire for ostentation, as incited the rootless realm of emotions detrimental to the rational choice. As Taylor’s criticisms, the communitarian philosophers of post‐modern age express that the taken for granted liberal individual is rootless, therefore they aimed to redefine individuality in the milieu of recognition by others11. We indebted much gratitude to the communitarian philosophies that they clarified ethical roots of individuality with reference to achieving virtue12 and the very roots of distribution of self‐respect in a political community13, but they consciously or unconsciously omitted production process, namely the factual bases of social formation and consequently material conditions of human being (i. e. the relation of production) in struggle for survival. In this context, the desire for recognition is not free from material exigencies of the actual life where the material conditions such as, visibly manifest themselves or are, at least, connoted in the very bearings of political claims. The rule of law depoliticises individual claims, goal achievement and interest articulation to the degree to which they are recognised by legal order, but not solely consolation of the desire for ostentation. Despite some contractual dreams for better society, for example as
expressed by Rawls14, the political system is a fact whether or not prefer to meet legally articulated claims or otherwise political pressure
11 Cf., Charles Taylor, “The Politics of Recognition,” Multiculturalism: Examining the Politics of Recognition, Ed. By, Amy Gutman, Princeton, NJ, Princeton University Press, 1994, pp. 25‐73. 12 See, Alasdair Macintyre, After Virtue, 2nd ed. London, Duckworth, London 1992 (c. 1985), passim. 13 Iris Marion Young, Justice and the Politics of Difference, New Jersey, Princeton University, 1990, passim. 14 John Rawls, A Theory of Justice, Cambridge Mass., Harvard Uni. Press, 1971.
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channel it to do so. The rule of law is a politico‐legal frame that gives legal remedies to the individuals in order to express their claims, which generated from both of the two sources as interest articulation and self‐respect. Naturally, the quest for recognition may democratise political society, but democratisation is not inescapable consequence of the rule of law. Moreover, we must presume that the rule of law is a confluence of the legal order and individual claims to the degree that they met in a yielded balance between virtuous individuality and legally channelled claims. 3. The Three Stages of the Rule of Law Development Dicey’s three criteria, aforementioned, conceal the scope and
purposes of the rule of law that it corresponds with the liberal society where judge‐made law occupies predominant place. According to liberal credo, which depicted by Locke, it encompasses three essential rights (i. e. legally recognised form of individual will), as life, liberty and property15. Apart from conjectural history of the social contract, those fundamental rights are postulates the liberal legal order that demarcate the bonds of political legitimacy. The eighteenth and nineteenth centuries British liberalism was the peak of the liberal political development that encompassed not only super structural components of the competitive capitalism but also resumed outcomes of vested rights of political struggle in order to decrease absolutist sovereignty of the British throne, since Plantagenet dynasty. Some liberal thinkers eulogise the first epoch of the rule of law development that bases on a sublime concept of freedom and that makes it basement of human virtue16, but their scope are very limited with equality before law, approval of private property and freedom of contract in a given limits of political participation between the king and political mandates. In this
15 John Locke, Two Treatises of Civil Government, Introduction by, William S. Carpenter, London, Everyman’s Library, 1966, pp.154‐164. 16 For example, see, Kriegel, loc. cit.
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context, as Dicey’s criteria postulated, political discretion of the sovereign had been withdrawn from the social space of individual freedoms that the legal means divorced from politics and became common guarantee of the society. Therefore, the rule of law became a bulk of procedural stakes that depoliticised their substantive contents by way of legal provisions which were considered as a matter of the judge made law, as fair expression of the customs. The procedural rule of law enlarged the social space of human dignity that not only made immune law from political discretion, but also made it a self‐sufficient sub‐system out of politics, after Magna Carta. By the way, a serious problem remained that working class people was still kept out of citizenry as frankly expressed by John Locke while he was member of the Trade Commission on 169717. Locke, as the prominent speaker of liberalism, frankly said that working class people had no capacity of rationality and moral virtue, consequently there was hardly ever an equal footing before law for working class individuals, comparatively to the members of propertied classes. Early history of the rule of law had been working as bourgeois
freedom and procedural fairness until mid nineteenths when political legitimacy purported society of taken for granted individuals that, as Tawney called, the society was very likely to joint‐stock company which belonged to the shareholders18. The ideological arsenal of liberalism was mainly entrenched along with inborn rights and liberties of individual in the presumed milieu of the pursuit of happiness, but an ancillary legitimisation was set forth that, as Locke alleged, apart from the civil laws of political society in order to protect liberties, which determine punishment to the criminal acts, there is another group of the
17 C. B. Macpherson, “The Social Bearings of Locke’s Political Theory,” Locke and Berkeley, London, Macmillan, 1968, pp. 206‐208. 18 R. H. Tawney, Religion and the Rise of Capitalism, London, John Murray, 1936 (c.1926), p. 184.
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unwritten laws which compartmentalise human acts as vice and virtue, according to the public opinion or reputation19. Regarding to the bourgeois revolutions of 1640 and others, “opinion” was key factor to measure political legitimacy whether or not to assent pre‐established political sovereignty or to dethrone it by way of revolution. After the establishment of liberal politics and subsequent structuring the procedural rule of law, the disciples of liberalism incrementally apply to recourse, depending on the merit of status quo that the “good” citizens anyway approved. Therefore, we see that David Hume reduced all legitimacy discourse to the “opinion” in the milieu of factuality of power, in his posthumously published essays20. “Opinion” or with more familiar saying “public opinion” is a Janus‐
faced conception that it on the one hand it epitomises normal state of mind of human individuals to the extent that it is conceived by way of robust communication, on the other hand it may be overtly a bulk of distorted ideas which was engendered by the brain washing technology of government‐driven (also owned by monopoly capitalist companies) mass media. Let we set aside to deliver some criticisms about how robust communication between human individuals; I shall shortly glance at the changing role of the public opinion in 19th century. There was a great convulsion in the British society (other Western societies, as well) after the industrial revolution where social fabric of the society dramatically changed. Therefore, social setting of working classes was inadvertently metamorphosed since the early beginnings of century that they gradually became a potential of conflict, and that began to
19 John Locke, An Essay Concerning Human Understanding. London, George Routledge and Sons, 1894, pp.280‐287. 20 Hume, David, 1987, Essays Moral, Political, and Literary, Ed. by., Eugene Miller, Indianapolis, Liberty Fund, (1985 c.), pp. 32‐36.
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manifest themselves as anew‐political figures21. Contrary to the liberal philosophers who allegedly relied on liberal values and human dignity, liberalism was unenthusiastic for working class political claims in actual politics, not only with demeaning them submerged into the mundane matters of interest articulation, but also for their claims on civic virtue, especially as in their claim for universal suffrage22. After a series of political debates and fervent militancy, lower class manifestation in politics and legal policy began after 1840 that policy concern of the legal system clung to the social and economic rights by way of legislation23, in spite of the liberal night watchman state and the legislative quiescence. The new social milieu cannot be narrated in a very humble space of this paper, but I have to say that whereas the development was congenial to human dignity of greater majority of people, it was willy‐nilly adjusted power structure of monopoly capitalism and the mass society. Anyway, content of the rule of law shifted from procedural requirements toward responding substantive claims of working‐class or subaltern peoples that we summarily say the “welfare state”. Lastly we glance at present neo‐liberalism epoch after 1980 that has
some crucial characteristics in economy and politics. Neo‐liberalism is not a new idea that must be considered a dormant attitude, aspirant to the nineteenth century liberalism during all epoch of the welfare state.
21 See, for a comprehensive history of working‐class political formation in England: E. P. Thompson. The Making of the English Working Class, New York, Vintage Books, 1966 (c. 1963), passim. 22 See, Jeremy Bentham, A Fragment on Government, Oxford, Clarendon Press, 1891, pp 182‐199; John Stuart Mill, Considerations on Representative Government, New York, H. Holt and Co., 1890, pp. 156, 160‐164, 173‐174, 197, 228. 23 A. V. Dicey, Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century, London, MacMillan and Co, 1905, p. 258, et seq, et passim.
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As shown by Austrian school liberals since thirties24 It fused with obliteration of vested rights of the working‐classes, revisiting to the idea of night watchman state and re‐globalising the world market but it reveals that it steers non‐existence of social justice and embarks on localisation or glocalisation25 for the poor, and that radicalising class inequalities in devoid of the working class political opposition. In this context the globe means an unrestrained space of capitalist market relations in which the global companies are at the fore with their unbridled selfishness and bigoted hegemony26. In this context, some humanitarian reminiscences emerged from the benevolent communitarians who seemed specifically eager for revalidating human dignity, but their achievement is maimed by the lack of a substantive scheme. Human being may feel betterment by means of the brethrens, which might be arranged according to the line of ethnicity, religious belief, gender, hobby, entertainment or any other special settings, but such communities are incapable to remove the human deterioration and cultural degradation. In this context the rule of law became decorum to the degree that the legal spirit transformed to a dreadful ghost where recalcitrant individualism overcame the public space of society. 4. Conclusions
24 Ludwig von Mises, Liberalism in the Classical Tradition, Trans. by, Ralph Raico, New York, The Foundation for Economic Education and Cobden Press, 1985 (c. 1927), pp. 7‐17, et passim.; F. A. Hayek, Law, Legislation and Liberty, Vol. I, London, Routledge & Kegan Paul, 1977 (c.1973), passim. 25 Zygmunt Bauman, “On Glocalization: or Globalization for Some, Localization for Some Others,” Thesis Eleven, No: 54 (August 1998), pp. 43‐44. 26 See, Barbara Emadi‐Coffin, Rethinking International Organization: Deregulation and Global Governance, London, Routledge. 2002, passim.
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The rule of law is a status quo that gives procedural remedies and substantive solutions in favour of the citizens in the depoliticised public realm to a degree that in certain equilibrium on political power allocation. A human being, as a citizen and as a person, eager to manifest himself in terms of legal remedies, that’s only way to compromise between human dignity and legitimate sovereignty of the government. Human dignity had been empowering from early times of capitalism up to the present era of neo‐liberalism whereupon citizenship, civic virtue and democratisation extended from relatively small number of individuals to the all‐adult citizens in the political society. The last stage, the neo‐liberalism has overtly favoured capital interest with the lack of public concern in the milieu of political disability of the working class people. Apart from criticism on the neo‐liberalism, weighted pros and cons, the neo‐liberalism halted the historical achievement for expanding human virtue that it is a ruthless reversal of human history.
References
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