Global Harmony and the Rule of Law: Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009, Volume I 3515100814, 9783515100816

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Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume I Edited by Thomas Bustamante and Oche Onazi

ARSP Beiheft 130 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Global Harmony and the Rule of Law Edited by Thomas Bustamante and Oche Onazi

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 130

Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume I Edited by Thomas Bustamante and Oche Onazi

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2012 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-10081-6 Nomos Verlag: ISBN 978-3-8329-7429-9

TABLE

OF

CONTENTS

Thomas Bustamante / Oche Onazi Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

I ETHICAL DIMENSIONS OF THE RULE OF LAW Christoph Lütge Fundamentals of Order Ethics: Law, Business Ethics and the Financial Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Katya Kozicki Law, Radical Democracy and Justice: The Tension between Democracy and Constitutionalism . . . . . . . . . . . . . . . . . 23 Patricia Mindus Global Harmony and Rule of Law: An Empirical-Analytic Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Zeynep Ispir Toprak Legal Ethics: What Does It Demand From Lawyers? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Soren Stig Andersen Why and how does proximity matter in litigation: a Levinasian approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Vaidotas A. Vaičaitis Concept of law in Biblical narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Hirohide Takikawa Universal Political Obligation and Particular Legal Duty . . . . . . . . . . . . . . . . . 75 II HARMONY, RULE OF LAW, AND CHINESE LEGAL PHILOSOPHY Zhou Yun Civic Spirit: the Political-Legal Cultural Basis of Rule of Law and Harmony . . . . . . . . . . . . 85 Sun Xiaohong / Zhu Liyu Concept of Overall Situation, Rule of Law and Social Harmony . . . . . . . . . . . 91

6

Table of Contents

Hiang Jianwu Rule of Law: The Value of Legal Formalism in Contemporary China . . . . . . . . . . . . . . . . . . 103 Qian Xiangyang Legal Positivism as Interpreted with the Traditional Chinese Philosophy . . . . . 119 Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

THOMAS BUSTAMANTE / OCHE ONAZI INTRODUCTION In this volume, which contains the 1st issue of the Proceedings of the 24th IVR World Congress, held in Beijing in the year of 2009, the reader will find a selection of papers presented at that International Congress on the general theme of “Global Harmony and the Rule of Law.” Even though these papers share a general topic, each of them will approach it in a different way. Under the first subsection, Ethical Dimensions of the Rule of Law, the reader finds a selection of eight papers. Leutge’s paper proposes to understand the interface between law and business according to a model of “order ethics” which describes the spheres of law and business as complementary and mutually dependent. Kozicki, in turn, explores the potential tension between radical democracy and constitutionalism in contemporary societies, and suggests a theoretical model to overcome or at least minimize this tension. Mindus’s paper, in turn, offers an empirical-analytic model to build up a genuinely intercultural model for mutual cooperation between Western and Eastern legal cultures on the basis of the idea of Global Harmony and the principle of the Rule of Law. Toprak’s paper, on the other hand, focuses on the relationship between law, professional ethics and morals, taking the works of Ioanna Kuçuradi as a theoretical premise. Andersen’s paper, taking a slightly different approach, is worried about the principle of “proximity”, understood as “nearness in the legal proceedings before the court” in litigation, with a view to understand the role played by such principle in juristic argumentation. Vaičaitis, in turn, analyses the idea of law as it is understood in Biblical narratives, in an attempt to demonstrate that the conception of legal system accepted in today’s theoretical accounts was also present in such narratives. Finally, Takikawa’s paper explains how particular political obligation refers to universal legal duties, showing us that the duty to obey the law cannot be read as necessarily particular. The second section, on the topic Harmony, Rule of Law and Chinese Legal Philosophy, is dedicated to deal with some of the most significant challenges for contemporary jurisprudence in China. Firstly, Yun’s paper deals with the notion of Civic Spirit and its function as a cultural basis for the idea of Harmony in contemporary China. Secondly, Xiaohong and Liyu’s paper explains how the idea of “overall situation” makes sense in the context of the Chinese society and legal practice. Thirdly, Jianwu’s paper is concerned with the idea of legal formalism, which appears to play an important role to secure the certainty and stability under the Rule of Law. And finally, Xiangyang’s paper is interested in the theoretical implications of the distinction between ‘is’ and ‘ought’ in the context of a legal-philosophical debate. By analyzing these notions, he is able to unveil the significance of legal positivism in the Chinese legal culture. The editors would like to thank the authors of the contributions compiled in this volume for the help in the revision of the manuscripts of their papers, as well as Prof. Zenon Bankowski and the dedicated members of the Chinese Law Society, who worked very hard to select the papers comprised in this volume amongst hundreds of papers received for this publication.

I ETHICAL DIMENSIONS

OF THE

RULE

OF

LAW

CHRISTOPH LÜTGE FUNDAMENTALS OF ORDER ETHICS: LAW, BUSINESS ETHICS AND THE FINANCIAL CRISIS INTRODUCTION The relation between law and business ethics is usually seen as something not quite unproblematic. Is what is legal also just? Is what is unjust also illegal? The different approaches to business ethics hold quite different views in this regard. Many approaches see the two rather as distinct enterprises: Business ethics, according to them, starts where the law ends.1 By contrast, the order ethics approach, which will be laid out here, regards law and business ethics as complements: Many laws and institutions themselves already incorporate ethical lessons. For example, antitrust laws serve an important ethical purpose, i.e., to prevent the rise of monopolies and oligopolies, which leave every individual worse off – even the monopolist or the oligopolists’ themselves, in the long run, and in particular as consumers. In this way, an ethics of the market economy has been formulated, which after the downfall of communism lent an ethical rationale to the only economic model left.2 The financial crisis has, in the views of many, changed this picture. All of a sudden, those market critics that seemed muted are back on the scene. Governments that until recently were very much in favour of market self regulation and cutting down on government shares are now spending hundreds of billions for stabilising financial institutions, but also other industries deemed crucial for the economy. Suddenly all those pledges of reducing debt and of decreasing government seem forgotten. Keynesian deficit spending seems to be back – and once the floodgates have been opened, it gets very difficult to find any rational justification for restricting government money to only specific utilisation. Sometimes it even becomes difficult to rationally argue about markets and capitalism at all, as if the results of decades of economic research have been rendered invalid all at once. In this article, I will lay out fundamental ideas of the order ethics which employs economics as a key theoretical resource and which focuses on institutions for implementing moral norms. In the course, it will become clear that this ethics of the market economy has not ceased to be of value after the financial crisis.

1 2

See, for example, Andrew Crane / Dirk Matten, Business Ethics: A European Perspective, 2003, 9. Cf. Christoph Lütge, Economic Ethics, Business Ethics, and the Idea of Mutual Advantages, Business Ethics: A European Review 14(2) (2005), 108–18; Karl Homann / Christoph Lütge, Einführung in die Wirtschaftsethik, 2005; Ingo Pies / Markus Beckman / Stefan Hielscher, Moral Commitments and the Social Role of Business, Business Ethics Quarterly 19(3) (2009), 375–401.

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I ORDER ETHICS Order ethics highlights the importance of rules, which in the case of the banking system means the (global) rules for financial markets. In this regard, order ethics (“Ordnungsethik”) is the complement of the German conception of ‘Ordnungspolitik’ which also stresses the importance of a regulatory framework. This framework is needed not to tame the market, but to make it more profitable in the long run. Philosophically, the conception of order ethics relies heavily on contractarianism.3 The idea of justifying normative statements in a contractarian approach goes back to origins in Plato’s Crito. It has been elaborated in the classic contractarian tradition of Hobbes, Hume and Spinoza, and in the contemporary works of John Rawls and James Buchanan.4 The basic idea is that society is seen as a cooperation for mutual self-interest. The rules of a society, and of its economy, are agreed upon by the participants in a situation like Rawls’ “original position”5. In accordance with Rawls’ principles of justice, it will be in the mutual interest of all to devise rules that will improve everyone’s position, and in particular, that of the least well-off. This idea is taken up in the order ethics conception, which focuses on the order framework of a society as a means for implementing ethics within the economic world. I will present the basic logic of the order ethics approach, starting with its treatment of social conditions, including the law and competition. Second, I will explicate the distinction between action and rules, and third, the role (mutual) advantages play in its treatment of ethical norms. 1.1 COMPETITION AS A SOCIAL CONDITION Unlike many other conceptions of ethics, order ethics does not start with an aim to achieve, but rather with an account of what the social world – in which ethical norms have to be implemented – is like.6 And most important: The modern social world differs strongly from the pre-modern one. Pre-modern societies played zerosum games in which people could only gain significantly at the expense of others. This view of a “zero-sum society”7 is concisely expressed in the words of the successful 15th century Florentine merchant Giovanni Rucellai: “by being rich, I make others (which I might not even know) poor”8. Modern societies, by contrast, are societies with continuous growth. This growth has only been made possible by the modern competitive market economy which 3 4

5 6 7 8

For the classic contractarian tradition, cf. John W. Gough, The Social Contract. A Critical Study of Its Development, 1967. Cf. Thomas Hobbes, Leviathan, ed. by R. Tuck, 1651/1991; David Hume, A Treatise of Human Nature, 1739–40/1978; Baruch Spinoza, The Political Works, ed. by A. Wernham, 1670–77/1965; John Rawls, Political Liberalism, 1993; Lütge (Fn. 2), 108–118; Christoph Lütge, An Economic Rationale for a Work and Savings Ethic? J. Buchanan’s Late Works and Business Ethics, Journal of Business Ethics 66(1) (2006), 43–51. Rawls (Fn. 4), 22 ff. Cf. Lütge (Fn. 2), 108–118; Homann/Lütge (Fn. 2). The term has been made popular – in a slightly different sense – by Lester C. Thurow, The ZeroSum Society: Distribution and the Possibilities for Economic Change, 1980. Rucellai 1772 (written about 1450).

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13

enables everyone to pursue their own interests within a carefully devised institutional system. In this system, positive sum games are played, which makes it in principle possible to improve the position of every individual at the same time. Most kinds of ethics, however, resulting from the conditions of pre-modern societies, ignore the possibility of win-win-situations and instead require people to be moderate, to share, to sacrifice. Indeed, this would have been functional in a zero-sum society: The types of ethics still predominant today have been developed within pre-modern zero-sum societies. And these conceptions distinguish – in more or less strict ways – between self-interest and altruistic motivation. Self-interest is seen as something evil. Such an ethics is not functional in modern societies. Ethical concepts lag behind. Within zero-sum games, it was necessary to call for temperance, for moderate profits, or for a condemnation of lending money at interest. Within positive-sum games, however, the morally desired result of a social process cannot be brought about by changes in motivation, by switching from ‘egoistic’ to ‘altruistic’ motivation. Instead, in the modern world, the individual pursuit of self-interest promotes traditional moral ideals in a much more efficient way: These ideals are implemented in the order framework of a society. They govern the market, and via competition on the market, the position of each individual can be improved: the positive sum results. And this positive sum is visible in the form of innovative products at good value for money, of jobs, of income, of taxes and so on. So within the positive sum games of modern societies, the individual pursuit of advantages is in principle compatible with traditional ethical ideas like the solidarity of all. Competition is pivotal in this picture: Order ethics emphasizes the special role competition plays in a society which is characterized by market interactions throughout. Competition has positive and negative aspects: It fosters innovation, the spreading of new ideas and it tends to erode positions of power (for example, those of former monopolists).9 It has, however, negative aspects too: The outcomes of a competitive situation are efficient, but not necessarily just. Moreover, luck plays a role, not only merit. But most important for ethics is that in competitive situations, morality is constantly in danger of getting crowded out. The prisoners’ dilemma10 is the classic model for highly competitive situations which can work against morality, but which can also work in favour of morality if the rules of competition are set adequately. In particular, the incentives set by the rules should not thwart what is deemed ethical. As an example, if corruption is seen as unethical, then rules which allow for corruption (for example, allowing bribes to be deducted from tax) will promote unethical behaviour – no matter what public calls for morality are being launched. Therefore, order ethics aims at changing the order framework of a society rather than at appealing to moral behaviour. This does not imply that people cannot behave ethically, but rather, that ethical behaviour must not get punished by the incentives. The role of rules will be made more explicit in the following section.

Cf. Friedrich A. von Hayek, Competition as a Discovery Procedure, in: F.A. v. Hayek: New Studies in Philosophy, Politics and Economics, 1978. 10 Cf. Robert Axelrod, The Evolution of Cooperation, 1984.

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1.2 ACTIONS AND RULES The second theoretical element introduced by order ethics is the distinction between actions and rules. Traditional ethics concerns actions: It calls directly for changes in behaviour. This is a consequence of pre-modern conditions as reconstructed before: People in the pre-modern world were only able to control their actions, not so much however the conditions of their actions. In particular, rules like laws, constitutions, social structures, the market order, and also ethical norms have remained stable for centuries. In modern societies, this situation has changed entirely. The rules governing people’s actions have increasingly come under control. In this situation, ethics has to focus on rules. These rules itself cannot however be recognized by pragmatic or common sense approaches to business ethics. Morality has to be incorporated in incentive-compatible rules. Direct calls for changes in behaviour without changes in the rules lead only to an erosion of compliance with moral norms. Individuals that continue to behave ‘morally’ will be singled out, because the incentives have not been changed. More precisely, there are three problems here: First, only changes in rules can change the situation for all participants involved at the same time. Second, only rules can be enforced by sanctions – which alone can change the incentives in a lasting way. Third, only by incorporating morality in the rules can competition be made productive, making the individuals’ moves moral-free in principle. With the aid of rules, of adequate conditions of actions, competition can realize advantages for all people involved. In this way, Adam Smith’s classic idea of the market promoting the interests of all can be (re-) captured: If the rules are set adequately, self-interest as the dominant motive in actions can bring about the ethically desired results.11 Thus, rules open up new opportunities in actions. But there is an even more important lesson to be learnt from this theoretical perspective: Rules and actions must be prevented from getting into opposition with one another. Ethical behaviour on the level of actions can only be expected if there are no counteracting incentives on the level of rules. In the classic model of the prisoners’ dilemma, the prisoners cannot be expected to cooperate, because the conditions of the situation (the ‘rules of the game’) are such that cooperation is punished by defection on the part of the other player. In other words: In PD situations, actors are permanently faced with the possibility of being ‘exploited’ by others if behaving cooperatively, and therefore they stop cooperating themselves pre-emptively.12 This leads to a situation where rational, self-interested actors end up with a result that leaves all worse and no one better off: Morality gets crowded out. Actions are governed by rules, but what about rules themselves? In the order ethics picture, rules are governed by other rules of higher order. Higher order means Cf. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. by R. Campbell / A. Skinner, 1776/1976. 12 This is an alternative interpretation to the popular view that in these situations, we observe a decline in morality. For a recent example, cf. Susanne Karstedt / Stephen Farrall, The Moral Economy of Everyday Crime. Markets, Consumers and Citizens, British Journal of Criminology 46 (2006), 1011–1036. What Karstedt and Farrall interpret as a current decline of morality in Germany, can rather be seen as a pre-emptive counter-defection by large parts of the population aiming to protect themselves. 11

Fundamentals of Order Ethics

15

that there is a greater degree of consent needed to put these rules in effect or to change them – as is the case with laws and constitutional rules, for example.13 Ultimately, the only normative criterion that is needed here is consent – the core criterion of the contractarian tradition. 1.3 IMPLEMENTATION AND ADVANTAGES The relation between implementation and justification in order ethics is different from the one in many other ethical theories: Most ethical theories, whether consequentialist or deontological, proceed by first giving a justification for their norms and then looking for ways of putting these norms into effect. The problem here is that the social conditions for implementation, especially in modern societies, are taken into consideration only after a justification has already been established. In this way, there is no room for the idea that a norm may not be justifiable because there is no way to implement it: Ought implies can. It must therefore be clear that moral norms which are to be justified cannot require people to abstain from pursuing their own advantage. People abstain from taking ‘immoral’ advantages only if adherence to ethical norms yields greater benefits over the planned sequence of actions than defection in the single case. Thus ‘abstaining’ is not abstaining in the long run, it is rather an investment in expectations of long-term benefits. By adhering to ethical norms, a person becomes a reliable partner for interactions. The norms do indeed constrain her actions, but they simultaneously expand her options in interactions. And people consent to rules – in the sense outlined in the previous section – only if these rules hold greater advantages for them, at least in the long run. In general, ethics cannot require people to abandon their individual calculation of advantages. However, it may suggest improving one’s calculation, by calculating in the long run rather than in the short run, and by taking into account the interests of their fellows, as one depends on their acceptance for reaching an optimal level of well-being, especially in a globalized world full of interdependence. The problem of implementation can now be placed at the beginning of a conception of order ethics, justified with reference to the conditions of modern societies sketched above. Under the conditions of pre-modern societies, an ethics of temperance had evolved that posed simultaneously the problems of implementation and justification. The implementation of well-justified norms or standards could then be regarded as unproblematic, because the social structures allowed for a direct face-to-face enforcement of norms. Pre-modern societies not only favoured an ethics of temperance, they also had the instrument of face-to-face-sanctions within their smaller and non-anonymous communities. 14 This instrument is no Cf. James M. Buchanan, The Limits of Liberty. Between Anarchy and Leviathan, 1975; Geoffrey Brennan / James M. Buchanan, The Reason of Rules. Constitutional Political Economy, 1985. For the ethical dimension of Buchanan’s work, see Lütge (Fn. 4), 43–51. 14 See Christian Meier, Athens. A Portrait of the City in its Golden Age, 1998, for how this instrument was used in ancient Athens. Meier clearly shows that Athens was not a democratic state in the modern sense, mainly as public and political participation was required and enforced in quite other ways than today.

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longer functional in modern anonymous societies,15 and so the problem of implementation has to faced right at the start of a modern ethical conception. Simultaneously, an order ethics relies on the implementation of sanctions for enforcing incentive-compatible rules. In modern societies, rules and institutions, to a large extent, must fulfil the tasks that were, in pre-modern times, fulfilled by moral norms, which in turn were sanctioned by face-to-face sanctions. Norm implementation in modern societies thus works by setting adequate incentives in order to prevent the erosion of moral norms, which would happen if ‘moral’ actors were systematically threatened with exploitation by other, less ‘moral’ actors. This means that neither is altruism equal to moral behaviour nor egoism to immoral behaviour. The demarcation line can be found rather between unilaterally and mutually beneficial action: In order to act morally, an actor should be pursuing her advantage in such a way that others benefit as well. II ORDER ETHICS

AND

INCOMPLETE CONTRACTS

Order ethics does not deal only with those rules which are incorporated in the law, but with rules on other levels as well. This includes, in particular, agreements at branch level and also self-constraining actions of individual corporations, and leads into the area of Corporate Citizenship and Corporate Social Responsibility (CSR).16 The underlying economic idea of mutual advantages, however, stays the same: To aim for a win-win situation. According to M. Friedman’s famous dictum, “the social responsibility of business is to increase its profits”17, corporations would have – at most – responsibilities for the order framework of the market. However, corporations are in fact doing much more, like providing social welfare, engaging in environmental protection, or in cultural and scientific affairs. There are several possible reactions to this: A stakeholder approach would explain these observations by insisting that a corporation has to take into consideration not only shareholders, but other groups as well. If one takes the order ethics perspective seriously, however, then it is difficult to justify why the claims of stakeholders, which are already incorporated in the formal rules – as taxes, salaries, interest rates, environmental and other restrictions – should be incorporated a second time in the actions of corporations. This is not to say that corporations should not account for stakeholder interests at all, but rather that the justification given is not strong enough. A suitable justification for a greater political role of corporations can be developed along the lines outlined in the rest of this section. It is consistent with the order ethics conception, especially in view of two points: Ethical norms must (1) be implemented in an incentive-compatible way and (2) be built on (expected) advantages and benefits. Cf. Niklas Luhmann, Ethik als Reflexionstheorie der Moral, in: Gesellschaftsstruktur und Semantik, Vol. 3, 358–447. 16 Cf. Pies/Beckmann/Hielscher (Fn. 2), 375–401. 17 Milton Friedman, The Social Responsibility of Business is to Increase Its Profits, The New York Times Magazine, 13th Sept. 1970, 32 f.; 122–126

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Fundamentals of Order Ethics

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Order ethics proceeds by extending the concept of ‘order’ to other, less formal orders. It therefore introduces another theoretical element, again from economics: the theory of incomplete contracts. In reality, contracts are most often not completely determined by rules. They are not completely fixed in terms of quality, date, or content, for any possible circumstances in the future, and despite any difficulties in enforcing these contracts. In more detail, it can be said that incomplete contracts are contracts in which one or several of the following conditions apply:18 (1) The obligations of each party resulting from the contract are not specified exactly, in view of changing conditions such as flexible prices of raw goods. (2) It is difficult and/or expensive to determine whether the contracts have been fulfilled. External consultants have to be employed. (3) The enforcement of the contract is very difficult, very expensive, or even downright impossible, due to insufficient systems of law in a number of countries. The globalized world is indeed full of such incomplete contracts, like work contracts, long-run cooperation contracts, insurance contracts, and many others. In dealing with these contracts, there is a major problem of interdependence of the partners’ actions: A partner that is honest and fulfils her part of the contract cannot automatically be sure that the other partner does the same. The other one might point to gaps within the contract, may propose differing interpretations, or it may be too expensive to enforce a claim. A rational actor faced with these kinds of contracts would rather not sign them, especially when being risk-averse. However, if these contracts promised high benefits, the actor could try to rationally deal with the incompleteness. Making incomplete contracts complete is no way to go: Not only is it impossible to specify all scenarios in advance, but this would also greatly reduce the flexibility which is the main advantage of the incompleteness. Incomplete contracts can be made quite productive, as the parties involved can adapt their agreements to different frameworks more easily. In order to exploit the benefits of incomplete contracts, however, trust, fairness, integrity, and good will are needed, in short: ethics. If contracts are becoming increasingly incomplete, both an ethics for the interior relations of the company (workers and management) as well as an ethics for the exterior relations to customers, banks, suppliers, and the public, become a necessity. It is rational for a company to invest in these ethical categories, as it contributes to the company’s success in a way that directly affects shareholders. So if rules are incomplete or if there are no rules for a specific situation, economic theory suggests relying on substitutes: Corporations, as partners in interactions, have the opportunity to commit themselves to certain policies, to mechanisms of trust and fairness, for example. This commitment has to be made credible through organizational measures and must be signalled to others. In this way, actors create by themselves the very reliability that would normally be expected from formal rules. They create a reputation, which especially under conditions of globaliza-

18

Cf. Oliver D. Hart, Incomplete Contracts, in: The New Palgrave. A Dictionary of Economics vol. 2, J. Eatwell et al. (eds.), 1987; Oliver D. Hart / Bengt R. Holmström, The Theory of Contracts, in: Advances in Economic Theory, T.F. Bewley (ed.), 1987.

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tion is a necessary prerequisite for success in the long run. This commitment must be signalled, and thus becomes an asset for the company. So from a theoretical perspective, order ethics can now provide an integrative view on both situations, those with well-established and those with incomplete rules. In both cases, incentives and sanctions are key issues. In the first case, incentives are set by formal rules, while in the second case, this role is taken up by informal rules in the shape of ‘soft’ factors like ethics and reputation. The current situation where corporations are taking on a greater political role can be seen as a tendency towards a greater role of incomplete contracts. III RESPONSIBILITIES

OF

CORPORATIONS

IN THE

GLOBALIZED WORLD

In a world where incomplete contracts play a vital role, corporations have responsibilities that can be differentiated into three dimensions:19 1) Corporations are responsible for their actions and the immediate consequences resulting from them. This can be defined as their action responsibility. Corporations must comply with laws, and they are responsible for entities like their products, their marketing methods, their employment policy, their corporate culture, and so on. Also, philanthropic activities fall in this category. In an extended sense, action responsibility also encompasses activities that go beyond the traditional, rather passive meaning. Here, investing in educational programs, fighting directly against corruption and discrimination or founding trusts can be located. These are important activities in the globalized world. However, they have mostly (a) local or regional character, and they are (b) mostly uncoordinated, because corporations hesitate to cooperate in this field with others who are normally their competitors. Thus, the structural problems of the world like hunger, poverty, terrorism and destruction of the environment are not dealt with systematically. 2) In a second step, corporations are responsible for the social and political order framework. In the national setting, this framework is easily identified. But in the global setting, it does not (yet) exist, and there is not much reason to suggest that it will come into existence in the near future. Thus, there is room for the order responsibility of corporations, which can have much greater impact than their action responsibility. The main task is to help in establishing basic human rights, a trustworthy judicial system, property rights and so on. This in turn improves the conditions for future, long-term company benefits. However, the main criticism here is that corporations that take their order responsibility seriously are simply engaging in lobbyism. 3) This leads directly to the third and most important, yet often overlooked element – which may also create a bridge to the discourse approach.20 People have “Mental models”21 that greatly influence their actions. They can block necessary 19 20 21

I am following an idea by Karl Homann here. Cf. Andreas G. Scherer / Guido Palazzo / Dorotheé Baumann, Global Rules and Private Actors. Towards a New Role of the TNC in the Global Governance, Business Ethics Quarterly 16(4) (2006), 505–532. Arthur T. Denzau / Douglass C. North, Shared Mental Models. Ideologies and Institutions, Kyk-

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reforms and create vehement opposition to globalization. Many people even regard it as their moral duty to oppose ‘neoliberalism’ and the market. These people can however not be convinced by ‘economic’ benefits, narrowly understood, by improving factors like GNP and others, but only by engaging in a discourse about the social and economic structures and factors that shape the world. From the perspective of order ethics, e.g., it can be shown that many traditional moral ideals are better served by intensifying, not by slowing down competition within an adequate institutional framework. But this must be convincingly shown, by way of argumentation. What is called for is the discourse responsibility of corporations. Corporations must engage in (public) discourse about the social and political order of the global society. People who cannot reconcile this social and political order with their own normative self-image, with their moral or ethical views, will stand in the way of many mutually fruitful and productive cooperations. And in several cases, these people are indeed reinforced in their opinions by bad arguments in favour of the market: For example, if the market is justified by calling it an expression of human freedom – the classic M. Friedman view22 –, this creates immediate opposition by many people who daily experience otherwise. As the figures cited in section 2 show, people in Germany (taken just as one example) see a growing danger in globalization and in the activities of corporations. Many people who are out of work, and many more who are afraid of losing their jobs, experience mainly pressure from competition, not freedom. It is therefore vital to stress that freedom and pressure always go hand in hand in the market economy: Pressure on suppliers creates freedom of choice for consumers. Another popular argument, used, e.g., in virtue ethics, is that the market is not as bad as some think – because the market also provides a place for virtues like reliability or loyalty. This in turn reinforces the view that, as a general rule, the market is bad and immoral indeed. Virtues are only there to remedy the general immorality of the market. Moreover, reliability and loyalty can also be found in organized crime.23 Finally, the last example is again a German one. The German system of the “Social Market Economy” is quite often justified – or equally criticized by others – by stating that the role of the ‘social’ is to correct the ‘anti-social’ consequences of the market. In this picture, the market in itself is regarded as morally dubious, to say the least. A better view, and one that the discourse responsibility of corporations should find it worthwhile to take into consideration, would be that the word ‘social’ can only mean to create a better, more productive and thus ethically more desirable market. This argument would proceed by showing that people can take more risks as market competitors if they know that the social system will support them. If the concept of a social market economy is to make sense at all in the globalized world, then this strategy of argumentation should be followed. Of course, corporations cannot fulfil their discourse responsibility on their own. Here, business ethics can be of help in developing, shaping and promoting ethical ideas about business.

22 23

los 47 (1994), 3–31. Cf. Milton Friedman, Capitalism and Freedom, 1962. Cf. Diego Gambetta, The Sicilian Mafia. The Business of Private Protection, 1993.

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However, two major criticisms are raised regularly against the political activities of corporations: 1) The first one is that corporations are ‘only’ maximizing their profits and are therefore ‘only’ following their own interests. In the political sphere, this is supposed to amount ‘only’ to lobbyism. The status of profit maximization has been discussed in sections 4 and 5,24 and it has been made clear that this cannot be used as an argument against corporations. But what about the charge of lobbyism? Certainly, no corporation cannot control the global social order on their own. They have to justify their actions in public, and that is not the only means of controlling companies. This leads to the second criticism: 2) It is often alleged that corporations lack democratic legitimation, as CEOs and managers are not elected ‘democratically’. This argument presupposes that democracy can be reduced to elections and to the vote of the majority – in a Lockean sense.25 However, following authors like K. Popper,26 the main function of democracy is not majority vote, but control. In a democracy, control is exercised through many mechanisms, of which voting is only one. Others include competition on markets, public discourse, but also control of politics through corporations: Bad politics must reckon with the possibility of being ‘punished’ on capital markets.27 These control mechanisms exist likewise in a global setting, with the addition of NGOs – who are of course no better ‘democratically’ elected (in the traditional sense) than corporations. The democratic legitimation of corporations depends on these control mechanisms being in place. By making their activities more transparent, corporations can enhance their acceptance and equally their democratic legitimation. This is in their own interest – and not simply a moral duty for a ‘good corporate citizen’. IV THE FINANCIAL CRISIS REVISITED The financial crisis of 2008/09 has certainly shed a new light on many of the issues mentioned here. I will discuss two of them in turn: first, the question of the scope of corporate responsibilities, and second, the question of necessary institutional reform. (1) Regarding the scope of CSR and Corporate Citizenship measures, I believe that in the recent past (before the crisis), there may have been too much focus on them. Too much confidence has been placed in the abilities of large corporations in the financial sector to guide and channel their own behaviour. For example, too Cf. also Brad Hooker, Self-Interest, Ethics, and the Profit Motive, in: Business Ethics. Perspectives on the Practice of Theory, C. Cowton / R. Crips (eds.), 1998, 27–41. 25 Cf. Peter Danielson, The Lockean Provison, in: Contractarianism and Rational Choice, P. Vallentye (ed.), 1991, 99–111. 26 Popper famously wrote that the main advantage of democracy is to be able to get rid of its governments “without bloodshed – for example, by way of general elections” (Karl R. Popper, The Open Society and Its Enemies, 1945, Vol. 1, 124, my italics). Note the wording ‘for example’. 27 For a recent account of ethics on financial markets, cf. Peter Koslowski, Business Ethics in Globalised Financial Markets, in: Globalisation and Business Ethics, K. Homann / P. Koslowski / C. Lütge (eds.), 2007, 217–236. 24

Fundamentals of Order Ethics

21

much leeway has been given to credit rating agencies, with (at least) two bad consequences: First, an oligopolistic market emerged, with only three major international players. And second, the independence of ratings could not be established, as competition between the agencies could not begin to work as a controlling mechanism. So I believe CSR mechanisms and similar ones that build on voluntary commitments of corporations should – at least in the financial sector – be scrutinized much closer. It might turn out that more formal rules will eventually be required, in particular for the global financial markets. (2) Such rules – which are currently being discussed and which are entirely consistent with the order ethics approach – would aim at the following targets, for economic and ethical reasons (of course, these are only meant as tentative examples): • Increased transparency: better information for investors, clearer rules for banks and financial service providers; • International Regulation: for certain financial instruments like hedge funds; this could eventually lead to B. Obama’s proposed ‘transparent financial system’ • Improved incentives: for example, for employees of rating agencies, the incentive structure has to be improved, in order to make their ratings more independent of financial pay. The original idea behind the civil service system was exactly that – to create a service that delivers services independent of private ownership. Something functionally similar must have to be devised for the rating system. In a similar vein, there will be discussion of improving incentives for managers in general, to get them into a stronger medium- and long-term orientation, by various ways of devising adequate stock options. V CONCLUSION Business Ethics cannot sensibly be conceptualized independently of its social conditions, which include most notably the law. The market’s order framework is crucial for setting incentives that can work in favour of – or against – the implementation of ethical norms. Consequently, the conception of order ethics focuses on the order framework and aims at solving ethical problems and dilemmas at this level. Certainly, such a framework leaves much room for additional action on the corporate and branch levels, some possibilities for which have been mentioned here. However, the recent financial crisis has made the limitations of legally not binding measures painfully visible.28 In the globalized world, there is still both a need as well as a demand for adequate order frameworks.

28

Cf. Daron Acemoglu, The Crisis of 2008: Structural Lessons for and from Economics (Working Paper), 2009.

KATYA KOZICKI LAW, RADICAL DEMOCRACY AND JUSTICE: THE TENSION BETWEEN DEMOCRACY AND CONSTITUTIONALISM “Have you ever asked yourselves sufficiently how much the erection of every ideal on earth has cost? … if a temple is to be erected a temple must be destroyed: that is the law …” (Nietzsche)

I INTRODUCTION This paper discusses the tension between constitutionalism and democracy as well as some contemporary human rights issues related to the concept of justice. From the standpoint of liberal democracy, there is currently a clash between two different sets of ideals: one is the ideal of a government constrained by law and a universalistic perspective on individual rights (constitutionalism), and the other is the ideal of popular sovereignty (democracy). As Frank I. Michelman puts it: “Democracy appears to mean something like this: Popular political self-government – the people of a country deciding for themselves the contents (especially, one would think, the most fateful and fundamental contents) of the laws that organize and regulate their political association. Constitutionalism appears to mean something like this: The containment of popular political decision-making by a basic law, the Constitution – a ‘law’ of ‘law-making’, we shall sometimes call it – designed to control which further laws can be made, by whom, and by what procedures”.1 According to Michelman’s definitions, there is a paradox in the core of constitutional democracy that cannot be neglected. It is necessary to rethink the foundations of liberal democracy in order to achieve a new perspective on this subject: a perspective that instead takes the paradox as constitutive of liberal democracy. II SOME PROBLEMS

CONCERNING

DEMOCRACY

AND

CONSTITUTIONALISM

First, it is necessary to question the rational framework of liberal democracy and its universalistic perspective. Is the model of liberal democracy, or rather, constitutional democracy, the only or the best form of organizing human coexistence?2 Is the set of individual rights adopted by western democracies really universal? If so, how should they be interpreted? Yet, another question can be put: if one takes the

1 2

Frank I. Michelman, Brennan and Democracy. Princeton: Princeton University Press, 1999, p. 5–6. See Chantal Mouffe, Rights, Political Theory and Democracy. Paper presented at Centre for the Study of Democracy, University of Westminster, London. As she correctly asks (p. 2): “Does it (liberal democracy) therefore embody the just society, the one that should be universally accepted by all rational and reasonable individuals? Or does it merely represent one form of political order among other possible ones?”

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“other” and pluralism seriously, how is it possible to conciliate different concepts of justice? First of all, it is necessary to take into account the debate between contextualism and universalism with regard to the concept of justice. This paper challenges the ongoing project of a post-Kantian universalization of morality based on the certainty of reason and logic, which claim to be self-evident and to command universal validity and consensus. Instead, this paper discusses the way justice in law leads to the clash between universal and singular, abstract and concrete, which is inherent in pluralistic societies where different conceptions of the good compete. Contemporary societies are intrinsically complex and such complexity requires, in order to comprehend it, the acceptance of pluralism and the recognition of the indetermination of sense that constitutes the individual identity as well as collective identities. In this sense, the subject and collective identities are always contingent and not natural. Despite contemporary democracies being reasonably able to tolerate diversity (and for that, they appeal to artifices such as the creation of the impersonal figure of legal subject, conceived in an abstract and formal way: “to be free and equal before the law”), they do not really recognize the other, making diversity of no value. That is, diversity is to be tolerated once they cannot be assimilated by the liberal spirit of respect and tolerance. Pluralism has a central role in modern democracy; it is necessary to seriously consider this principle. As I have already said, liberalism accepts diversity only with tolerance. Thus, it does not really recognize the fundamental role of pluralism in contemporary societies. In this sense, differences are relegated to the private sphere, and the public space must remain neutral. Liberal neutrality presupposes an agreement on a set of procedures and an alwayspresent attempt to neglect conflict and disagreement. According to Carl Schmitt, liberal democracy denies the moment of the political. For him, that which is specific about the political is the distinction between friend and enemy: “The political must therefore rest on its own ultimate distinction, to which all action with a specifically political meaning can be traced. Let us assume that in the realm of morality the final distinction are between good and evil, in aesthetics beautiful and ugly, in economics profitable and unprofitable. (…) The specifical political distinction to which political actions and motives can be reduced is that between friend and enemy.”3 Today, the other is not the enemy. Yet it is never completely recognized in the liberal framework of tolerance. There are multiple language games inside a political community and they imply the exclusion of those who do not accept the community’s political principles. Building on Schmitt’s ideas, Chantal Mouffe states that there is always a logic of inclusion/exclusion in western constitutional democracies and an implicit logic of violence, which can never be eradicated.4 This violence, which cannot be eradicated in its symbolic sense, sets the political moment, generating the need for rules, conventions and power acts, which are within themselves acts of stabilization. Such stability can be articulated through social institutions and the consensual way political institutions operate. Stability can be of a great duration or short duration and “(…) this means that they are stabi3 4

Carl Schmmit, The concept of the political. Chicago: The University of Chicago Press, 1996, p. 26. Chantal Mouffe, The return of the Political. London: Verso, 1993.

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lizations of something essentially unstable and chaotic.”5 In other words, stability is not natural but artificial; it is a device forged by men to create and to sustain a legalpolitical order, which, in fact, is characterized by difference and antagonism involving violence and exclusion. This is the picture of contemporary liberal democracies after the Second World War, that is, an international order articulated around a consensus on matters that are not consensual, such as democracy itself, constitutionalism and justice. The question of reconciliation thus remains, how is justice possible in the conflict between singularity (the other) and universality (the necessarily general form of law as norm)? This allows us to think of a contingent criterion of justice that amounts to decisions at law that are always provisional to the extent that justice (in the present) is never complete or perfect. Accepting Jacques Derrida’s discussion on justice as an aporia, I assume the difficulty of achieving a unique concept of justice as well as thinking of justice in the sphere of international law, and furthermore, the problem of ensuring human rights in a multicultural global order. As he points out: “An aporia is a non-road. From this point of view, justice would be the experience that we are not able to experience. (…) I think that there is no justice without this experience, however impossible it may be, of aporia. Justice is an experience of the impossible. A will, a desire, a demand for justice whose structure wouldn’t be an experience of aporia would have no chance to be what it is, namely, a call for justice.”6 Considering that there are other forms of “just” political societies, I agree with Mouffe when she says that “Liberal democracy should renounce its claim to universality” and that “[w]hat it requires is envisaging a plurality of legitimate answers to the question of what is the just political order”.7 From the perspective that rights are always historical, contingent and contextbased, the balance between constitutionalism and democracy is not a given, as liberal democracy always suggests. It is not strong either, as it wants us to suppose; rather, it is fragile and in permanent construction. In the international order, it is necessary to criticize a universalistic perspective of human rights to the extent that it has been not able to answer the questions asked by contemporary complex and pluralistic societies such as questions of religious convictions, faith, sexual orientation etc. … It is noteworthy that the legal sphere has been playing a fundamental role today concerning not only the application of law but also the debate about rights and moral claims that I mentioned above. Perhaps it has been playing this role more than ever in the scenario of human coexistence to the extent that it became a sensible and committed way of conflict resolution. Therefore, another balance has to be sought, that is, the one between democracy and law. Chantal Mouffe through her idea of radical democracy affirms the necessity to re-think the balance between democracy and law. According to her, there is currently a hegemony of legal discourse (which has an agonistic dimension) whereas 5 6 7

J. Derrida. Remarks on deconstruction and pragmatism. In: MOUFFE, Chantal (Ed.). Deconstruction and pragmatism. London: Routledge, 1996, p. 83. Jacques Derrida, Force of law: the “mystical foundation of authority”, in Deconstruction and the Possibility of Justice. New York: Cardozo Law Review, volume 11, july/aug. 1990, p. 946. Chantal Mouffe, Rights, Political Theory and Democracy, p. 2–3.

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the democratic public space is becoming less important.that should be distinguished from the democratic public space, which is becoming less important. As a consequence, law (and not politics) is the main form of conflict resolution.8 Western democracies have been more and more multiethnic and multicultural. The set of rights that is at the center of their legal orders has to be interpreted in a dialogical sense, one that assumes difference and plurality as its starting point. Such an interpretation is easily conceived in political dialogues, yet it is not visible in legal ones. In face of the plurality of conceptions of the good and the impossibility of establishing a unique concept of justice, it is necessary to re-create a democratic sphere where disagreement and conflict can be experienced. At the same time, the legal order needs to ensure individual and group rights against a majority’s dictatorship. As you can see, the main goal of this paper is to re-think the articulation between constitutionalism and democracy in a multicultural scenario in which it is not possible to have only one criteria of justice and in which diversity and pluralism are envisaged as values themselves. III IDENTITIES

AND

SOCIAL FIGHTS: OPENING

AND

CLOSURE

There is not a complete unification of identities and social struggles, so their complete fragmentation is impossible. Liberal democracy contains a tension between these two forces: democratic claims for identity and closure. Furthermore, liberalism’s claims to pluralism and openness are impossible to overcome. It is this tension that sets and defines a radically democratic and plural politics. Such politics implies the reconciliation between equality and diversity, and between the public and the private. It also results in the creation of mechanisms, such as the right to vote (universal suffrage), that generate consensus as well as a sense of closure. These mechanisms makes it possible for democracy to coexist with diverse individuals, and with the conflicts they simultaneously face. However, every moment of closure is temporary, subject to new meaningful constructions and new ways of articulation. If radical and plural democracy is meant through acts of exclusion, which are constitutive of it, every attempt to fix its meaning will always be partial. In recognizing the overwhelming tension that constitutes the democratic logic lies one of the main tasks of democratic politics, that is, to manage antagonistic forces through a permanent movement of opening and closure, and of disagreement and consensus. Politics and democratic politics involve decisions and closures, that is, distinct forms of stabilization that are, in fact, temporary. One of the fundamental values of democracy rests in recognizing the infinite language games that exist in a commu8

See Chantal Mouffe, The Political, the moral and the juridical. Paper presented at Centre for the Study of Democracy, University of Westminster, London, p. 2. “Today, because of the lack of democratic political public spaces where the agonistic confrontation can take place, it is increasingly the legal system which is seen as being responsible for organizing human coexistence and for regulating social relations. Given the growing impossibility of envisaging the problems of society in a political way, there is a marked tendency to privilege the juridical terrain and to expect the law to provide solutions for all types of conflicts.”

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nity and recognizing the importance of listening to “the other’s voice” (in Lévinas’ terms9). However, democracy also generates the exclusion of those who are intrinsically against its logic because it is necessary to demarcate the borders that define the democratic space and the grammar of the present political game. And it is precisely in this universe that law may serve as an important instrument to the accomplishment of democratic politics, producing stabilization of social conflicts and the necessary sense of closure between distinct identities and social fights. In other words, legal systems exist to render stable what is not stable, that is, tensions, conflicts, and uncertainties that are constitutive of us, of our lives, and of the very idea of law. As I have said before, this stability is not natural but is produced by men in an environment of diversity and dissension (violence and exclusion). On the side of the application of the law (within the legal system) there is a claim to produce stability, that is, the judge must decide. However, this decision is always contingent, and in being contingent, is always transitory yet not necessarily just. Thus, law provides a provisional stability, but this does not resolve either the contradictory origin of law or the question of justice.10 In fact, the question of justice is not in the enforcement of law, but beyond it. However, some complex problems arise. First, how does one articulate a legal order (the law) in the domain of international community (or even in the domain of a sovereign state) in order to appease the tension between distinct identities and resolve social fights? Second, does that legal order grant the accomplishment of justice? The provisional answer I propose is that a new form of articulation between constitutionalism and democracy is necessary. IV THE LEGAL ORDER

BEYOND

FRONTIERS

If the relationship between democracy and law is still problematic, the same can be said of the relationship between law and justice in the realm of western democracies. Actually, I assume that justice is something beyond or outside of the law. Thus, we cannot use these terms (justice and law) as synonyms or reduce the meaning from one to another. There is a complex relation between the two, which must be considered in order to avoid misunderstandings or simplifications concerning the discussion on human rights. Taking Jacques Derrida’s11 concerns on the possibility of justice, I affirm that there is an opposition between law (or convention or institution) and the very sense of justice. Justice is not necessarily law or, in reverse, law is not justice only because

Emmanuel Lévinas. Thinking-of-the-other. New York: Columbia University Press, 1991. For more details on this matter, see Katya Kozicki, A política na perspectiva da diferença. In Manfredo Oliveira et alli (eds.). Filosofia Política Contemporânea. Petrópolis: Vozes, 2003, p. 141– 160. 11 Jacques Derrida, Force of Law: The “Mystical Foundation of Authority”, p. 947: “Law (droit) is not justice. Law is the element of calculation, and it is just that there be law, but justice is incalculable, it requires u to calculate with the incalculable; and aporetic experiences are the experiences, as improbable they are necessary, of justice, that is to say of moments in which the decision between just and unjust is never insured by a rule”.

9 10

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it is law. Thus, the international order is not necessarily just because it is a legal construction or a system of law. However, how can one speak about a just system of law if there is not a single meaning for the word just? How can one intend to universalize human rights if the very sense of what human nature is, or what rights are, is very problematic? Is it actually possible to conceive of an international order that protects human rights if we are not able to agree about the meaning of these rights or how to interpret them? This raises questions about the problem of universalism and relativism in the field of human rights. Considering that there is not a final answer to this question, my effort in this paper is, above all, to shed (directly or indirectly) some light on it. After the Second World War, the world was faced with the evil that had arisen from the Holocaust. At that time, international law was no longer able to cope with the fact that men can always go beyond reason and threaten the very concept of humanity and the meaning of human rights. At that time, it was necessary to establish a new world order to prevent this type of event from happening again. Mainly, it was necessary to build a certain consensus on the meaning of human rights and to create practical conditions to enforce those rights. Therefore, international law gained a new role in the post-war context, raising the question about universalism. In light of this history, it is possible to affirm that the whole issue of universalism is rooted in the body of international law, which, in its turn, must be endorsed by the “whole” world. The human rights movement certainly has improved after Nuremberg and it has been deeply concerned with universalism. It is also true that the movement’s aspiration to a universal validity has been a way to avoid the problems related to multiculturalism and identity. Advocates of universalism claim that there are rights that are absolute and that they are and must be the same everywhere12. From this standpoint, instruments forged by the human rights’ movement have always had a pretension to universality. The main instrument is the Universal Declaration of Human Rights, and the word universal in this formulation is not accidental. However, the universality of these rights is clearly a presumption. There is no concession to cultural variation or to differences, such as religious background. One cannot deny that instruments such as the ‘Declaration’ and their pretension to universality follow a western tradition, which, as matter of fact, is constitutive of them. The discourse of human rights, which was and has been built inside this tradition, takes liberalism as the primary political ideology and Christianity and/or Judaism as major religion faiths. Nevertheless, western democracies have always challenged the possibility of other kinds of political arrangement and different conceptions of the good. There clearly is an attempt to homogenize the sphere of international law and even the realm of sovereign states that sets out the basic individual rights. In contrast, relativism points toward a different understanding of rights and even a different set of them. I must admit that there is no neutrality concerning universalism and relativism in the debate on human rights. I must also admit that the concept of human rights is not universal. Every concept is formulated inside a determinate framework and one can only picture its meaning if one assumes this framework. I am not saying 12

For more details see Henry Steiner and Philip Alston, International Human Rights in Context. Law. Politics. Morals. Oxford: Oxford University Press, 2000.

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here that we cannot extend the concept of human rights to other contexts (and maybe this would be a possible answer to the problem of universality). I cannot deny either that the expression “human rights” has numerous meanings. However, I believe that it would be possible to establish a set of rights pretending to be universal if we admit that they can be understood in different ways, according to cultural values and religious faith. Charles Taylor says that we could establish a world consensus on human rights but admit that the interpretation of those rights could vary. In his words: “That is, different groups, countries, religious communities, civilizations, while holding incompatible fundamental views on theology, metaphysics, human nature and so on, would come to an agreement on certain norms that ought to govern human behavior. Each would have its own way of justifying this from out of its profound background conception.”13 In this manner, I think that international law – and law itself – conceived in others terms than those of a strict universalism could be able to help us to achieve some sort of agreement concerning identities and multiculturalism. We cannot deny differences, but we must recognize them without threatening our common existence. V DEMOCRACY

AND

LAW

Considering the bulk of law, it is worth thinking about whether, for law to serve democratic politics, it is necessary to rethink its interpretation and application. Thus, it is necessary to “unbuild” the way law has been interpreted and applied in order to “rebuild” a new, radically democratic way. Legal rules endowed with impersonality and generality serve as parameters not only for the people’s behavior, but also for the resolution of conflicts and the establishment of public politics itself. From this perspective, rules and their application by courts may constitute themselves as a kind of horizon to the democratic existence. The problem that is posed here is related to a theory of legal interpretation and legal application that is able to better articulate the legal and the political without turning one into another. Every legal rule needs interpretation and, in fact, the meaning of a rule is given by the interpretative act itself. Each understanding of a practical situation and the choice of a legal rule as a regulatory instrument represents one possibility among many different possibilities. In other words, a certain interpretation is adopted to the detriment of others. If political decisions are not neutral, in the sense of choosing among opposing values, the same applies to legal decisions. It is not possible for a person in charge of the application of law to choose from various interpretations from a neutral, apolitical point of view that is divorced from his/her personal convictions. The law is always a result of a decision: an act of power since its origin, which endures itself through time. At the present stage of the development of legal science, it is not possible to believe in the myth of neutrality or in the myth of the absolute sense of legal rules. However, the perspective that “everything is political” and that court deci13

Charles Taylor, A World Consensus on Human Rights? In Patrick Hayden (ed.), The Philosophy of Human Rights. St. Paul: Paragon House, 1965, p. 409.

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sions are based on the personal wishes of the judges, is no less disingenuous and is dangerous to democracy. Calling one’s attention to so-called judicial neutrality does not imply reducing law into politics. A theory of the interpretation and application of law that is truly democratic must unveil the myth of neutrality. This is even truer regarding international law and its range of diversity, with reference to values that are cultural, political, religious, moral, sexual, etc. Liberal democracy is always attached to this idea of neutrality. Liberal neutrality (meaning a neutrality bounded by liberal principles), in assuming that it is not possible to affirm just one conception of good life, confronts us with the challenges of tolerance and equal respect. Even if pluralism is constitutive of liberal democracy it is necessary to recognize that we cannot accept everything or there are no criteria to judge what is good or bad. It is always necessary to put some boundaries around what we can tolerate in our communities. This is even truer with respect to human rights. There is no neutrality concerning human rights protection (and should be no neutrality) even if there are multiples meanings for human rights. As I have already said, the process of universalizing human rights increased after Second World War. Although I can rightly put into question the universal character of these rights, I should not adopt a certain type of cultural relativism where tolerance, respect for particularities, and respect for the right to self-determination precludes cross-cultural normative judgments. I cannot choose neutrality when talking about human rights even if I accept multiculturalism. I completely agree with Jacques Derrida when he says that justice is always the experience of the impossible or the experience of what cannot be experimented. But the search for justice is always necessary. In the field of international law, this means that even if it was impossible to establish one meaning for justice or to reduce the plurality of conceptions of good I cannot be neutral about enforcing human rights. International order is not just solely because of its legal character and, thus, it is necessary to try to improve it continuously. I cannot use cultural relativism to accept the violation of rights. Even recognizing the multiplicity of traditions and cultures, I cannot be neutral when talking about the need to enforce human rights in every possible situation. My point here is that there is no correct answer for democracy, exactly as there is no correct answer for law. I cannot overcome multiculturalism, and the attempt to reduce identities into a universal concept is condemned to fail. However, I cannot excuse myself in face of the task of searching for justice. To rethink the interpretation of law here means to build a theory of interpretation in which I recognize diversity and pluralism, but not at the cost of the violation of human rights. Following Derrida’s14 work, I believe that there is not a single or final answer for the question of justice – and for the question of democracy. If I understand justice and democracy as something to come (as I do), justice cannot be reduced to law or 14

As Derrida says: “This happens in the singular event of engagement, and when I speak of democracy to come (la démocracie à venir) this does not mean that tomorrow democracy will be realized, and it does not refer to a future democracy, rather it means that there is an engagement with regard to democracy which consists in recognizing the irreducibility of the promise when, in the messianic moment, ‘it can come’ (‘ça peut venir’), in J. Derrida, Remarks on deconstruction and pragmatism, p. 83.

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pretend that there is an equivalence between what is legal and what is just. However, mainly in the field of international law, it is necessary to create some boundaries regarding what is possible and acceptable and what is not, meaning that the international legal order – in which some principles have become settled – is necessary to forge better conditions to live in the world, even putting into question the set of rights it establishes and the meaning of those rights. I cannot deny multiculturalism and pluralism, but it is necessary to have a minimal consensus about what can be tolerated in our common lives. The very idea of individual rights is a discursive one and it is related to a specific form of understanding rights and moral claims. In the same way, the process of lawmaking is related to a specific conception of society – one that is unequivocally linked to democracy in western societies. To obtain a better balance between law and democracy, it is necessary to open room for a pluralistic conception of society and to accept the idea that there are multiples forms in which one can think about rights and their interpretation. Today, courts have an unprecedented amount of power, and in some places in the world, one could say that democratic channels of expression are becoming less and less important. From this standpoint, every question and social problem is justiciable. As Ran Hirschl puts it: “The belief that judicially affirmed rights are a force of social change removed from the constraints of political power has attained nearsacred status in public discussion. National high-courts and supranational tribunals have become increasingly important, even crucial, political decision-making bodies.”15 Democracy is no longer conceptualized only as rule by the people; the very idea of majority rule should be re-interpreted. My view is that, in a constitutional democracy, minorities should be protected against majority rule through constitutionalization and judicial review. The scholars who share this opinion consider that democracy is protected and guaranteed by courts and believe that the fact that the judiciary has the final authority to interpret the law, including abstract constitutional clauses, is not anti-democratic. It is worth noting that there is a tendency to consider constitutionalism from the framework of American constitutionalism, which is the main discourse in this arena. Contemporary constitutional theory is rooted in the American version of judicial review and countermajoritarian decisions. The way that democracy and constitutionalism are related in the United States is not easily transferable to other countries or cultures. The balance struck in the United States Constitution has its own origins and political consequences. In other legal contexts, it would have come to completely different results. In my own experience, that is, Brazil’s legal context after 1988’s Constitution, this relationship is very controversial. After two decades of an authoritarian political experience (military dictatorship) the process of reconstructing democracy and constitutionalism in Brazil and the interplay between them demands a more specific or local perspective than the one in which they are usually seen.

15

Ran Hirschl, Towards Juristocracy. The origins and consequences of the new constitutionalism. Harvard: Harvard University Press, 2007, p. 1.

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Katya Kozicki

In modern-day Brazil, there is a democratic deficit. The public sphere was deconstructed during the authoritarian period and the recent process of democratization is far from being consolidated. Despite the development of strong democratic institutions in the country, the Brazilian people have shown little interest in participating in a more effective way in the public sphere. Democratic participation for the majority of people ends with suffrage. It is important to note that participation in suffrage is, at the same time, a right and an obligation. Poor economic conditions, the lack of democratic forms of identification, and a poor process of public deliberation have been responsible for political apathy. At the same time that the country is experiencing the empowerment of the judiciary, the political sphere – mainly the parliament – is suffering from a lack of public trust. Meanwhile, courts have been asked to handle a large caseload due to parliamentary negligence and/or omission. In conclusion, there is no democracy without constitutionalism and no constitutionalism without democracy. These terms are not contradictory but intrinsically connected, or rather, each constitutes the other.

PATRICIA MINDUS GLOBAL HARMONY AND RULE OF LAW: AN EMPIRICAL-ANALYTIC APPROACH I INTRODUCTION I take humans to basically strive toward a condition of peace enabling human flourishing. Yet human groups and individuals alike have an extraordinary wide range of understandings of such a condition, subject to variation in time and space. So if hope for lasting peace and joint cooperation is to emerge from rule of law or otherwise underpin global harmony, first these very concepts need to be unpacked in proper detail. Given the remarkable diversity of legal practices across societies, simply looking at our own will prove insufficient. “Global Harmony and Rule of Law” is not a topic easily addressed from the prevailing view of a single “school of thought.” Thus a premise is required. Discourse analysis provides a valuable toolkit for investigating the prevailing lexis and avoiding the pitfalls of buzzwords. Yet these tools, that emerged in 20th century legal theory as a legacy of Wittgenstein and the linguistic turn in philosophy, were far too often reduced to just another occasion for entrenching into one’s own legal (and generally speaking, cultural) tradition. To address the pressing issues of our day, we need to take a step further and extend our exploration. An effort has been made here to choose worldwide references from both the Eastern and Western traditions of thought to reflect a cosmopolitan culture needed to innovate thinking. The methodological choice is to combine comparative philosophy and the “empirical-analytical method.”1 I aim to clarify the concept of rule of law (ROL) that appears to be equivocal and often (covertly) valueladen both in ordinary language and scholarly literature. Prima facie, the case of harmony seems different. The contemporary Chinese policies of the “harmonious society” (hexie shehui2) suggest a more careful reading. The fundamental premise of epistemology that sets the background of the present work is that abstract or theoretical language is inevitably composed by conventional terms that cannot be subjected to a judgement of truth or falsity. This, however, is not the case of the theoretical theses that claim to build on these simple or “primitive terms.” The theses need to be assessed on the ground of their consistency with the premises and in relation to their explicative scope, their capacity of grasping the phenomena they refer to. This methodology sets out the theoretical position the paper argues for. A fruitful way of establishing a wider and deeper discussion of these crucial topics in legal 1 2

As developed by the Italian legal theorist Norberto Bobbio, conceptual analysis must be coupled with the attention towards real world factors (Teoria generale della politica, Einaudi, Torino 1999, 39). This paper uses the pinyin system of Romanization of Chinese. Ideograms have been generally avoided for the benefit of the English-speaking reader. The same choice, which is practical but discussable, has been applied to ancient Greek terms where I use the Oxford standard transliteration system.

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theory is to listen to those who do not embrace the prevailing (and often superficial) views, regardless of the fact that – at a later stage – there might be arguments for rejecting such alternative conceptions. My claim is that a theory – intending to frame all the facts that have been thrown up in the air with our entry into the global age – would need to construe a cross-cultural and transnational concept of justice. The arguments presented here aim at demonstrating this necessity. This paper is divided into three sections: First, we focus on rule of law. Is it a likely candidate to set the legal framework of cooperation in a globalized world? A promising start is to go beyond the consensus omnia of international declarations and shed light on the arguments of those who do not estimate that ROL enhances concord. Essentially chameleonic, it stimulates criticism of everyday practice, while its technical use proves to be far from neutral. Secondly, the concept of harmony needs better understanding: The arguments of those who disbelieve the emancipating strength of harmony have to be addressed. In particular, we look at why Western legal tradition is so reluctant to admit “harmony” into legal discourse and examine some Chinese practices of “harmonious society.” I will draw some concluding remarks in section three on two lessons to be learnt if we want to overcome the cultural divides of the West-östlicher Diwan (Goethe). II RULE

OF

LAW: A LIKELY CANDIDATE

FOR

GROUNDING GLOBAL HARMONY?

1 AN IMPLAUSIBLE CONSENSUS Looking at the meaning that “rule of law” has acquired within a broad range of fields (legal theory, law and jurisprudence, political philosophy, political science, international relations, sociology and social theory), the first striking aspect is that it does not seem – at least any longer – to be the monopoly of narrow, technical definitions, focusing on the principles of legality and impartiality. Historically, the appeal of ROL derives from the distinction between “empire of laws” (rule by law) and “empire of men” (rule under men).3 This first sense includes both gubernaculum per leges and sub lege, the latter tending to get confused with constitutionalism.4 Today, however, both practitioners and scholars refer to ROL as an aggregate of legal rules and institutions, but also as a variety of informal discursive practices aimed at legitimising those rules and institutions. It is therefore almost trivial to observe that there are competing definitions of ROL, but less noticed is that it is one of the world’s most intriguing forms of consen3

4

This classical topos was developed in Plato’s Statesman. See Platonis Opera, ed. John Burnet, Oxford University Press, Oxford 1903, 294a (here in Benjamin Jowett’s trans.): The Stranger, says “in a sense, however, it is clear that law-making belongs to the science of kingship; but the best thing is not that the laws be in power, but that the man who is wise and of kingly nature be ruler.” The English formula is from Encyclopedia Britannica (Edinburgh 1771). More conventionally, “a government of laws and not of men” is from Marbury vs. Madison, 5 US 137, 163 (1803). As known, Edward Coke used the concept in early 17th century England to foreclose the participation of the King in deliberations of the common law courts. Cf. the case “Prohibition del Roy”, 1608 12 Coke Rep 63. For the early origins of the expression and evolution in common law, see Theodore Frank Thomas Plucknett, A Concise History of the Common Law, Little, Brown & CO, Boston 1956, 48.

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sus omnia,5 transcending left and right (embraced by both the World Social Forum and the World Bank). But what exactly are we all supposed to agree upon? One-size-fits-all definitions can obviously be found, but they suffer from tremendously high levels of generality. Moreover, the “level of governance” concerned by ROL is indefinite: Leaving aside the domestic analogy, on a global scale, it is far from clear whether “ROL” is (1) a principle setting the relations between international (State) actors, therefore building on the tradition of ius gentium and ius cogens (including measures of ius in bello and perhaps even ius ad bellum theories); or rather, if (2) it imposes the primacy of what we might call “transnational human rights law” as it is often claimed to be the case within the European Union; or if (3) it denotes a cosmopolitan normative regime.6 Once we acknowledge the need for distinctions, we find too many. The formula is not even specific in the lawyer’s lingo: The long-standing distinction between thin (or procedural) and thick (or substantive) conceptions of ROL has been debated at great length, as has the difference between rule of law, rule by law etc.7 At this point there is little to be gained by further restatements of these basic distinctions. However, abandoning this debate will not reduce the number of competing conceptions: Rechtsstaat, État de droit, Estado de derecho. “Used promiscuously, their conceptual equivalence is far from being straightforward. Their terminological differences and the ensuing well-known translation problems, epitomize the diversity of cultural contexts.”8 The continental civil law tradition also developed other concepts that are smeared into the Anglo-Saxon formula, including certezza del diritto, sécurité juridique, etc. We should also ask whether Chinese fazhi is a Far Eastern equivalent.9 The great variety of rules of law, even within the sole Western legal tradition, risks fragmenting the concept. Is the notion doomed to implode because of historically and culturally stratified empirical referents? Or because of the increasing complexity of contemporary legal systems? The most recent legal literature delves into innumerable normative assumptions, internally incoherent or unsystematic, considered to be prerequisites. If every legal system has developed (or intends to develop) its own ROL, we risk a regressio ad infinitum, needing always more comprehensive notions to grasp the commonalities of different standards. 5

6

7

8 9

In September 2005, all member states of the United Nations acknowledged the need to “universal adherence to and implementation of the rule of law.” See World Summit Outcome Document 2005, UN Doc. A/RES/60/1 (16 September 2005), available at http://www.un.org/summit2005 (§ 134). The formula refers to Kant’s Weltbürgerrecht (for a recent evaluation of the Kantian legacy, Seyla Benhabib, Another Cosmopolitanism, Oxford Univ. Press, Oxford 2006), but it also refers to the trend of global administrative law: Benedict Kingsbury et al (eds.), The Emergence of Global Administrative Law, Law and Contemporary Problems, 68:3 (2005), 15–61. The opposition builds on Bernard Williams’ distinction between thin/thick conceptions (originally elaborated within moral philosophy and in contrast to non-cognitivism). But it is also reminiscent of the opposition between procedural and substantial democracy that responds to a long line of though in political philosophy that I shall not comment on here. For a discussion of the pros and cons of the formal approach, see Robert S. Summers, A Formal Theory of Rule of Law, Ratio Iuris, 6:2 (1993), 127–42. Danilo Zolo, The Rule of Law: A Critical Reappraisal, in: The Rule of Law, Pietro Costa, Danilo Zolo (eds.), Springer, Dordrecht 2007, 3. Deborah Cao, “Fazhi” vs/and/or Rule of Law? A Semiotic Venture into Chinese Law, International Journal of Semiotics of Law, 14:3 (2001), 223–247.

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Furthermore, many “working definitions” of ROL suffer from circularity: The same term appears both as definiendum and definiens. Many measurement tools construe ROL in such a way that the ends which it is meant to achieve are the elements of the definition, mudding the waters of causal explanation. Practical prescription lists and scientific literature suggest that ROL can be measured by protection of property rights or a specific form of property such as intellectual property rights or creditor rights in bankruptcy proceedings. Another widespread claim is that ROL can be measured by low crime rates or access to justice. Here, too, the definition hinges on normative goals. Yet another option for many off-the-shelf ROL toolkits is to link it to other “essentially contested concepts” of which, unsurprisingly, democracy seems to be the champion.10 This makes it even more puzzling when it is affirmed that many democracies have legal systems that fall short of ROL. “Despite a growing empirical literature, there remain serious doubts about the relationship, and often causal direction, between ROL and the ever-increasing list of goodies with which it is associated, including economic growth, poverty reduction, democratization, legal empowerment and human rights”.11 The less than spectacular results of the international ROL movement have called into question the role and influence of foreign actors, as well as the assumption that the best way for the so-called developing world to achieve ROL is to base reforms on ‘international best practices’ – when not Euro-American institutions – that seldom come without strings (values and beliefs) attached to them. Even admitting, for the sake of argument, universal agreement on our need for the ROL, we still lack a clear referent. This apparent consensus originates from the positive connotations that the expression evokes, at least since Dicey famously held British liberal constitutional civilization, defined by ROL, as opposed to the French authoritarian tradition based on administrative law. Such positive connotations have now been so embedded into the formula that it has become part of the dimension that Polanyi described as “tacit knowledge.”12 These considerations should be sufficiently convincing to justify why we need to listen to those who do not believe any lasting condition of peace can derive from ROL.13 2 THREE CRITICISMS OF RULE OF LAW One criticism holds it to be a case of law-fare: It “has faithfully served plunder through history” and “justifies looting to the paradoxical point of being itself illegal.”14 “An early tool used by lawyers to claim special professional status as guard10 11 12 13

14

Jürgen Habermas’ thesis on the consubstantiality of democracy and rule of law is famous. For a framing of this issue, see Luc Heuschling, De la démocratie et de l’Etat de droit. Une étude théorique, in: Etat de droit, Rechtsstaat, Rule of Law, Dalloz, Paris 2002, 573–608. Randy Peerenboom, The Future of Rule of Law: The Challenges and Prospects for the Field, Hague Journal on the Rule of Law, (2009) 1, 1. Karl Polanyi, The Tacit Dimension, Peter Smith Publisher, Magnolia 1983. See moreover Judith N. Shklar, Political Theory and the Rule of Law, in: The Rule of Law: Ideal or Ideology, Allan C. Hutchinson, Patrick J. Monahan (eds.), Carswell, Toronto 1987. For a discussion, see Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept?, Law & Philosophy, 2002, 21-2, pp. 137–164. See Ugo Mattei, Laura Nader, Plunder. When the Rule of Law is Illegal, Blackwell, Oxford 2008, 24

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ians of the government of laws”, ROL has become “the instrumental backbone of the ideal market economy.”15 The argument is that one of the cornerstones of ROL is to secure property rights against governmental taking and guarantee contractual obligations. The line of argument points to systems where property rights are worshipped but that are still governed by ruthless and unrestricted leaders. Looking back, ROL ideology was the “key to colonial and imperial projects.”16 The terra nullius doctrine hinged on the lack of individual property – an element of natural law’s conception of ROL – and enabled “legal” acquisition of American Indian lands, deemed vacant by newcomers. International law, ius gentium and, more specifically, the ideas of ius peregrinani et degendi (transit), ius commercii (trade) and ius migrandi (migration) were conceived to privilege Western colonizers. Not a mere technical device, ROL is rather as an instrument for hegemony (Gramsci). Another criticism, partially in line with the previous argumentation, holds ROL to be a Western invention, but in contrast to the first line of argument it is not considered to be the hegemonic instrument of capitalism, but of “Occidentalism.”17 “As there is a literary canon that establishes what is and what is not literature, there is also a legal canon that establishes what is and what is not law.”18 So, the argument of “legal orientalism” is that the yardstick for what qualifies as law has been Modern Western law as responding to formal legal rationality (Weber).19 This has led to the claim made by many Western observers that, e.g., China lacks an indigenous tradition of “law.” Classic Chinese law focused on criminal regulations and sanctions, whereas civil law is construed as the distinctive character of (true) law. Without assessing the multiplicity of meanings that ROL has acquired in nonWestern contexts (such as the Chinese20), what is being questioned is not a specific

and 3 respectively. loc. cit., 12–14. loc. cit., 1. The formula indicating “a passage westwards of all cultures” is particularly present in neoLatin speaking countries: Serge Latouche, L’occidentalisation du monde. Essai sur la signification, la portée et les limites de l’uniformation planétaire, La Découverte, Paris 1989; Bertrand Badie, L’état importé: L’occidentalisation de l’ordre politique, Fayard, Paris 1992; Giacomo Marramao, Passaggio ad Occidente. Filosofia e globalizzazione, Bollati Boringhieri 2003. But can also be found in the East: e.g., Chen Xiaomei’s Occidentalism: A Theory of Counter-discourse in Post-Mao China, Oxford University Press, Oxford 1995. The phenomenon is also known under the neologism mondialatinisation: See Jacques Derrida, Foi et savoir, Seuil, Paris 1996. 18 Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science, and Politics in Paradigmatic Transition, Butterworths-LexisNexis, London 1995, 473. 19 See from within the Critical Race Theory movement, Kenneth B. Nunn, Law as a Eurocentric Enterprise, (1997) now in: Critical Race Theory, ed. by Richard Delgado, Jean Stefancic, Temple Univ. Press, Philadelphia 1999, 429–437. 20 On the multiplicity of meanings of ROL in China there is abundant literature, of which: Randy Peerenboom, Ruling the Country in Accordance with Law: Reflections on the Rule and Role of Law in Contemporary China, Cultural Dynamics, 11:3 (1999), 315 ff.; Michael Dowdle, Heretical Laments: China and the Fallacies of “Rule of Law”, Cultural Dynamics, 11:3 (1999), 287–314; Albert H.Y. Chen, Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law, UCLA Pacific Basin Law Journal, 17 (1999), 125–165; Carol A.G. Jones, Capitalism, Globalization and Rule of Law: An Alternative Trajectory of Legal Change in China, Social Legal Studies, 3 (1994), 195–221. 15 16 17

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set of institutions that may, rightly or wrongly, be identified as ‘Western (rule of) law’. The challenge goes deeper and concerns the epistemological status of law itself. A third criticism comes from “global constitutionalism.”21 ROL is neither a ‘perilous transplant’ introducing lex mercatoria, nor a Trojan horse in the non-Western world. The ideal of rule of law is not questioned as much as the way it is currently practiced: Since it lacks effectiveness, it is unsatisfactory. Given that constitutionalism, at state level, implied that constitutions (foremost ‘rigid’ ones) made legislative power respect the constitution, advocates of international constitutionalism calls for such a paradigmatic change in the international arena. While previously the exclusive criterion for identifying validity was the principle of formal legality, in ‘constitutional ROL’ the principle of substantial legality is added. Following procedures is not enough to confer validity: Law needs to be consistent with the “coto vedado”22 of constitutional norms, not at the disposal of majority rule or political will. On the normative level, this implies that the traditional treaty-based regime of international relations should develop into a supranational legal system, containing both formal and substantial norms limiting the internal sovereignty of states. However, fundamental rights have no adequate guarantees of enforcement and there is no court subjecting domestic law to judicial review testing its consistency with global constitutional norms. Wars and misery around the planet can thus be construed as illegal, not generically unjust. Infringements of fundamental rights are due to antinomies (inconsistencies between supranational and national norms) and cases of vacuum lex (absence of guarantees logically required to confer effectiveness to fundamental rights).23 The hiatus between what is and what ought to be does not invalidate the 21

Global constitutionalism makes the (descriptive) claim that there is already an embryo of “global constitution” emerging chiefly from international charters such as the 1945 UN Charter, the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights along with international criminal law; and the (normative) claim that international law should be subjected to “juridification” and/or “constitutionalisation.” See e.g. Jochen A. Frowein, Konstitutionalisierung des Völkerrechts, Berichte der Deutschen Gesellschaft für Völkerrecht, 39 (2000), 427 ff.; Christian Walter, Constitutionalizing (Inter)national Governance, German Yearbook of International Law, 44 (2001), 170 ff.; Ernst-Ulrich Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law, Higher Education Press, Beijing 2004; Anne Peters, Global Constitutionalism in a Nutshell, in: Weltinnenrecht. Liber Amicorum for Jost Delbrück, Duncker & Humblot, Berlin 2005, 535 ff.; Bardo Fassbender, The Meaning of International Constitutional Law, in: Towards World Constitutionalism, R. St. John Macdonald, Douglas M. Johnson (eds.), Brill, Leiden 2005; Armin Bogdandy, Constitutionalism in International Law: Comment on a Proposal from Germany, in: Harvard International Law Journal, 47 (2006), 223; Paul Kennedy, The Parliament of Man: The United Nations and the Quest for World Government, Allen Lane, London 2006; Erika de Wet, The International Constitutional Order, International and Comparative Law Quarterly, 55 (2006), 51 ff.; Stefan Kadelbach & Thomas Kleinlein, International Law: A Constitution for Mankind?, German Yearbook of International Law, 50 (2007), 303 ff. 22 The expression coto vedado or prohibited territory, indicates the sphere of policies that are offlimits for collective decision-making and concerns fundamental rights. The formula was coined by Ernesto Garzòn Valdès who drew the inspiration from Juan Goytisolo: Algo Mas Acerca del Coto Vedado, Doxa, 6 (1989), 209–218. 23 There are various versions of this outlook, e.g. for Habermas, the organizing, sanctioning and executive powers of the constitutional state are “not just functionally necessary supplements to the system of rights but implications already contained in [these] rights” (Between Facts and

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principles themselves, rather, from the normative perspective of global constitutionalism, the lack of effectiveness of fundamental rights, the absence of overarching judicial institutions, etc. are all good arguments for claiming that ROL, foremost in its relation to the principle of formal legality, is necessary yet insufficient in providing for peace. There are several ways to refute these three arguments, but they show that ROL is no ‘magic bullet’ and no likely candidate for building global concord. The banner of rule of law was used as a synonym for judicial reform, often narrowed-down to equal an independent judiciary. “When this approach came up short, the scope of reform was expanded politically to include democracy, civil and political rights, freedom as an end of development, a robust civil society, increased political participation, and now the new governance of the post-regulatory state with its emphasis on (…) private-public hybrids.”24 This conceptual overstretch explains why ROL is not likely to promote global concord. III HARMONY: A SOURCE

OF

CULTURAL ANTAGONISM?

Can harmony condense the quest for human flourishing? Prima facie, ‘harmony’ has much higher odds for being a building block (or at least a stepping stone) for erecting a condition of lasting peace on the planet: Hardly a key phrase of international politics, it is not liable to Euro-centrism. 1 A COMMON CONCEPT OF HARMONIOUS ORDER The concept has figured prominently in both Chinese and Western philosophical traditions, indicating concord, equilibrium between forces resulting in peace, in contrast to disorder (chaos in the Greek tradition and luan in the Chinese tradition). A sweeping look at the ancient Chinese and Greco-Roman classics confirms this. The major classical Chinese schools of thought – Confucian, Taoist, Legalist, and Buddhist – consider he/hexie25 in the general meaning of “getting along” as a fundamental value. The saying attributed to Kongzi, “harmony is most precious – peace is to be cherished” (hé wéi guì), clearly frames the homonymous character of harmony and peace.26 In the Western hemisphere, ‘harmony’ – from the Greek term Norms, Polity Press, Cambridge 1996, 134. See also The Divided West, Polity Press, Cambridge 2006; cf. the special issue of the German Law Review on The Kantian Project of International Law, 2009:1. The Italian scholar Luigi Ferrajoli has elaborated a systematic framework for the claims of global constitutionalism, making the case for the “constitutionalisation” of social rights and public goods: Principia iuris. Teoria del diritto e della democrazia, Laterza, Roma 2007, vol. I-II. 24 Peerenboom (note 11), 9. 25 The Chinese character for harmony, he, (和) that gives harmony, hexie (和谐) consists of two components, i.e. mouth and millet, evoking the idea that everyone has food to eat; where the xie (谐) character indicates that there are words to speak one’s mind. 26 Confucians in particular emphasized the single-character term he, which appears in all of Confucianism’s Five Classics and three of the canonical Four Books. The most forceful articulation of this concept of personal and collective harmony can be found in the Doctrine of the Mean, defining harmony as a state of equilibrium. In the Analects, Kongzi insists that “with equality,

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for ‘joint’ or ‘shoulder’ – has a long-standing tradition stemming from the pre-Socratic philosophers.27 In Greek, άρμονία had a generic meaning of ‘order’ but, in time, the word assumed the significance of ‘musical order’.28 Later, the Romans literally transposed the term into concordia. The order emerging from harmony is a composition of differences and not merely a sum of unities. This is particularly clear in the Heraclitean theory of kalliste harmonia as equilibrium between opposites (Diels-Kranz B8, B60). This key understanding returns in Qian Xun’s idea of harmony without uniformity (hé ér bùtóng) opposed to the unification of thought (pensée unique). Hence, ‘order’ is a crucial component of ‘harmony’ but so is also difference. On a social level, harmony is a relational concept and hints to concert or absence of contradiction in relationships between individuals and/or groups. Contrarily to ROL, we do not deal with an essentially contested concept: its structure (as a spontaneous or self-imposed order, a string of dissimilar components, etc.) is not seriously questioned. In other words, what is undisputed is the meaning of the term; I am not implying that the organisations that have historically been described hereby have not been challenged, or that the possibility of an ultimate harmonious order has not been doubted. Well captured in Plinius’ classic formula concordia discors, the concept is nonetheless perfectly understandable in the East as in the West. 2 A CLEAR REFERENT The ‘harmonious society’ is of particular interest to us because of China’s significant role and population size in the globalized era. It figures prominently as 和谐社会 (hexie shehui) or ‘harmonious society’ in public debate and government ideology of the Hu Jintao administration. In its broad meaning the formula refers to the reduction of social inequalities, growing employment, improved equity and justice procedures, eradication of corruption, preservation of security and order, protection of environment. In China’s era of ‘reform and opening-up’ (kaifang gaige) initiated by Deng Xiaoping, the introduction of new concepts into official discourse has included the “three represents” (sange daibiao) and “scientific development” (kexue fazhan guan) grounded in the principle of dangnei hexie (harmony within the Party), “socialist rule of law” (shehui zhuyi fazhi guojia29) and, most importantly, the “harmonious society” there is no poverty; with harmony, there is no scarcity; with security, there is no rebellion.” (Confucian Analects, The Chinese Classics, trans. by James Legge, vol. I, Dover Publ., NY 1971). See also Roger T. Ames, Henry Rosemont, The Analects of Confucius: A Philosophical Translation, Ballantine Books, New York 1998. 27 The width of meanings that have been associated with the term harmony in Western thought is strictly correlated to cosmologic speculations of the so-called Pythagoreans from the 6th century BC who developed a numerical representation of the universe. 28 Harmony came to represent the art of combining simultaneously different sounds. Until the 4th century AD it was still a speculative term. It entered the technical vocabulary of music only after the work of Jean Tinctoris and Franchino Gaffurio. 29 See Liu Hainian, Yifa zhiguo: zhongguo shehuizhuyi fazhi jianshe de lichengbei (Ruling the Country According to Law: A New Milestone in the Construction of China’s Socialist Legal System), Faxue Yanjiu, 3 (1996), 24–36; Li Buyun, Zhang Zhiming, Kuashiji de biaojun: yifa

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(shehui zhuyi hexie shehui). These notions form the road map to achieve a “moderately prosperous society” (xiaokang30) by 2020. The CCP’s commitment to ‘building a harmonious society’ was officially announced in 2002. Adopting a global perspective, Wen Jiabao declared in 2006: “We call for and promote the building of a harmonious world, which is in line with the trend of the times in the world today and reflects the common interests and aspirations of people across the globe.”31 At the end of the CCP’s 6th session of the 16th Central Committee, the Resolution on the Main Aspects of the Construction of a Harmonious Socialist Society was set at the centre of the integrated plan of the CCP for the 21st century, and hexie shehui was added to the basic line in its constitution in 2007. “It is under the leadership of Hu, who in 2005 formulated what is known as the ‘theory of three harmonies’ (heping, hejie, hexie), that some key terms of clear Confucian connotations are incorporated into the official ideological discourse (…). The ‘socialist harmonious society’ has gradually taken a leading role between 2004 and 2007.”32 The abovementioned Resolution has even been understood as “the most important milestone of China’s Harmony Renaissance”33 that some observers trace back to the 1958 Manifesto on Chinese Culture to the Scholars of the World (Wei Zhongguo wenhua jinggao shijie renshi xuanyan), offering New Confucianism34 as a key contribution to world harmony. In Mainland China, many intellectuals have since dwelled on the concept of hexie.35 The hexie shehui policy is all the more interesting, from the global perspective, given that ‘harmony’ has been viewed as one of the most valuable elements of Confucian heritage; e.g. for Kang Ouyang, it is about “harmony among peoples, insofar as harmonious relationships between human beings is to be based on the common understanding of virtues.”36 Even more explicitly, Wang Hui, an important leftwing intellectual affirms that “most Chinese intellectuals under-

30

31 32

33 34 35 36

zhiguo, jianshe shehuizhuyi fazhi guojia (The Cross-Century Target: Ruling the Country According to Law, Establishing a Socialist Rule of Law State), Zhongguo faxue, 6 (1997), 18–25; Li Buyun, Shixing yifa zhiguo jianshe shehui zhuyi fazhi guojia (Establish a Socialist Rule of Law State by Implementing Ruling the Country in Accordance with Law), in: Zhonggong Zhongyang fazhi jiangzuo huibian, Ministry of Justice (ed.), CCP Poliburo Legal System Symposia Collection, Law Publishing Company (Falu Chubanshe), Beijing 1998, 133–155. The term xiaokang shehui is inspired by Confucius and goes back to the Evolution of Rites (Liyun) and the Book of Rites (Liji) where three ages are distinguished: The golden age of Datong, the current age of troubles and in-between xiaokang as “the period of minor peace” (trans. by Yutang Lin, The Wisdom of Confucius, Random House, New York 1943, 158). J.B. Wen, Report on the Work of the Government, 4th session of the 10th National People’s Congress, retrieved from http://english.gov.cn/official/2006-03/14/content_227248.htm. José Solé-Farràs, Harmony in Contemporary New Confucianism and in Socialism with Chinese Characteristics, China Media Research, 4:4 (2008), 19–20. Strong criticism has been directed against the project of Confucianizing China: Zhang Shibao (ed.), Dalu xinrujia pinglun (Critical Analysis of Contemporary Chinese Continental Confucianism), Xianzhuang shuju, Beijing 2007. Francis C.W. Fung, Chinese Harmony Renaissance: What the World Must Know, World Harmony Organization, San Francisco 2006, 8. New-Confucianism (Xiandai Xinruxue) is different from the much more restrictive Neo-Confucianism (Dangdai Xinrujia), the philosophical movement initiated by Xiong Shili. For a detailed description, see Umberto Bresciani, Reinventing Confucianism: The New Confucianism Movement, Taipei Ricci Institute for Chinese Studies, Taipei 2001. Ouyang Y. Kang, Contemporary Development of Marxist Philosophy in China, Socialism and Democracy, 2001, 30(15) retrieved from http://www.sdonline.org/30/kang.htm

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stand globalization within the context of the Confucian ideal of universal harmony.”37 So, why would not the hexie shehui policy offer a framework for the problem setting of a global harmony? 3 UNDERSTANDING WESTERN RELUCTANCE In the overwhelmingly majority of cases, Western legal scholars are unwilling to recognize the legitimacy of the notion within contemporary theory of law. A quick look at indexes in some of today’s most used textbooks demonstrates this by absence of reference. While Chinese thought seeks for continuity throughout four millennia, modern Western political and legal thought increasingly pulled up the idea of harmony, in parallel with its embracing of individualism; a change of view ultimately dependant on the relationship between law and morals. There seem to be two well-rooted reasons behind Western reluctance.38 3.1 Two Reasons First, harmony is held to be intrinsically linked to a strong metaphysical stance, ultimately implying a world order that cannot be rejected on empirical grounds, let alone scientifically proven. This line of argument is connected to the legal positivist’s objection: Harmony is a notion borrowed from the iusnaturalistic tradition; i.e., it amounts to natural law-talk that suffers, ultimately, from abusing Hume’s principle. The second line of argument can be referred to as the criticism of the liberal democrat: Let aside the epistemological and theoretical nature of the concept, in the realm of practical reason harmony implies an essential (and fix) hierarchy of people that will inevitably lead to autocratic political regimes. In order to support these objections, it is enough to remember how the reference to harmony – like the thread of Ariadne – stretches through Western cultural history from the Pythagoreans who stipulated world harmony in a way that survived in Plato, Ptolemy, Cicero, Kepler, and Athanius Kircher down to the ‘pre-established’ harmony in the German lawyer and philosopher Wilhelm Gottfried Leibniz. The main reason why Western thought moved away from this universal harmony can be attributed to the “process of (…) secularization” and “the growth of analytical rationalism and segmentary, fragmentary, materialistic and positivistic view of the world.”39 Universal harmony, in stark contrast to the autonomous realms of Quote from Hui Wang, China’s New Order: Society, Politics and Economy in Transition, Harvard Univ. Press, Cambridge (Mass.) 2006, 183. 38 There is, of course, abundant literature suggesting that incompatibility between Chinese harmony and Western legal and political liberalism is based on the reference to democracy, human rights, and rule of law. Such material has been disregarded because it uses immediately normative definitions of democracy and rule of law that would require further deepening if they are to avoid the suspicion of being construed sic et simpliciter against “Oriental despotism”. In my opinion, there is no particular interest in stopping at the first level of analysis by registering that we are confronted with different and opposed normative discourses. 39 Leo Spitzer, Classical and Christian Ideas of World Harmony, John Hopkins Press, Baltimore 1963, 138. 37

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knowledge typical of modern science, was indeed comprehensive: The scala naturae of natural order, that social order was but to emulate, was grounded in the principle of plenitude, continuity and the principle of sufficient reason.40 Therefore, it is not surprising that harmony has been connected to natural law theories in the Western tradition. In the words of the most famous advocate of pre-established harmony, Leibniz: “Perfection is the harmony of things, or the state where everything is worthy of being observed, that is, the state of agreement [consensus] or identity in variety.”41 Harmony seems to imply the existence of a natural order that is in itself complete. The variety of existence as such has an inherent and supreme value that law must succour. The emulation or mimesis of the scala naturae in the realm of social relationships is the other reason why Western thought turned away from harmony: It implied an immutable hierarchy between all individuals (i.e., principle of gradation). Non essent omnia, si essent aequalia (De div. nom., IV, 10) – If all things were equal, all things would not be: The six word epigram of Augustine is clear. “A rational world then (…) must exhibit all degrees of the imperfection which arises from the specification of differences among creatures through distinctive limitations. It is therefore absurd for man to claim more qualities than he has received.”42 The Chain of Being defines man’s place in the cosmos with precise psychological, moral and even political implications; e.g., in the Enneads, Nature’s intrinsic harmony is allegedly sufficient reason to conclude: “The cities which have the best governments are not those in which all citizens are equal.”43 This hierarchy leaves the individual with a residual ‘liberty’ of merely accepting one’s role in this great scale; a view of freedom that famously left Voltaire baffled. This hierarchical element ultimately contrasts with modern Western legal thought which is grounded in ethical individualism and on the assumption of human beings as free moral agents. The claim is that the introduction of the concept of harmony – jeopardizing the hypothesis of the state of nature in the logic of the social covenant – will inevitably lead to authoritarian political models: The harmonious order does not take controversy seriously. Rather, it implies elimination of conflict within society; contradictions have to be eradicated or hidden in order to promote (apparent) stability. Harmony would then only amount to a cover-up status qvo, based on manufactured consensus. 3.2 Harmonious Policy Making at Odds with Western Thought We are now able to grasp what features of the Chinese ‘harmonious society’ are at odds with modern Western thought. The potential hypostatisation of harmony is a source of (cultural) antagonism. Two aspects of the current hexie shehui policy should thus be stressed: 40 41 42 43

Arthur O. Lovejoy, The Great Chain of Being. A Study of the History of an Idea, Harvard Univ. Press, Cambridge (Mass.) 1942. Gottfried W. Leibniz, Philosophical Essays (trans. by Roger Ariew and Daniel Garber), Hackett Publishing Company, Indianapolis (IN) 1989, Letter to Christian Wolff on the 18th of May 1715, 233–4. Lovejoy (note 39), 65. Enneads, VI, 6, 17–18; R. Volkmann (ed.), Teubner, Leipzig 1884, II, 176.

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First, law is conceived to be the framework within which morality can bloom.44 It is in such a context that we should place Hu’s list of Eight Honours and Disgraces, as well as the identification of many new ‘moral models’. The procedural aspects of law, as a set of formal rules, would not be sufficient without the stronghold of morality that can only grow out of appropriate education. “We are here at the heart of a theoretic framework that makes law the principle of discipline for erecting morals in society.”45 Hence, the first aspect that makes Western legal thinkers suspicious is that harmony has a substantial and not merely procedural element: If we think of social interaction in terms of harmony then “rather than a neutral state, the Party in its role as vanguard sets the normative agenda for society.”46 Whereas Western liberal constitutions, reflecting their origins in Enlightenment theories of social contract, emphasise a limited government and separation between state and society, in the world based on ‘harmony’ – whether classical Western or contemporary Far Eastern – solidarity trumps individual freedom. Society legitimately sets the moral agenda.47 This in turn, it is feared, entails many ‘pre-modern political elements’ as the priority of duties over rights, and the supremacy of the collective (family, community) over the individual. Unsurprisingly, some observers of the hexie policy claim that “the avoidance of conflict through moral discipline belongs to a pre-political vision of modernity.”48 A second aspect that disturbs many Westerners in the Chinese insistence on harmony is the reliance on informal mechanisms for resolving disputes.49 The insistence on mediation (hejie) is often associated with harmony: A progressive slip towards mediation for conflict resolution as a substitute of lawsuits has been taking place. This procedure is conceived as alternative to dispute resolution in courts, and especially in relation to administrative law.50 The cases mostly concerned by extrajudicial conflict-settlement are issues related to expropriation, pollution, and restructur44

45 46 47 48 49 50

Recent debates within the Congress and elsewhere confirm the crucial connection between law and morals in the call for a combination of government by law (yi fa zhi guo) and government by virtue (yi de zhi guo). In 2002, a Citizen’s Code of Conduct was adopted through which Zhu Rongji hoped people would develop “basic virtues” like courtesy, honesty, solidarity, friendship etc. Leila Choukroune, Antoine Garapon, Les normes de l’harmonie chinoise, Perspectives chinoises, 3 (2007), 39. Randy Peerenboom, Competing Conceptions of ROL in China, in: Asian Discourses of the Rule of Law. Theories and Implementation of Rule of Law in 12 Asian Countries, France and the US, Routledge, New York 2004, 122. For an overview of these issues, see Th. Metzger, A Cloud Across the Pacific. Essays on the Clash between Chinese and Western Political Theories Today, The Chinese Univ. Press, Hong Kong 2005. See Choukroune, Garapon (note 44), 40. For an analytic and comprehensive systematization of the so-called Aristotelian and Hobbesian models, see Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition, University of Chicago Press, Chicago-London 1993. It should be noted that the notion of “harmonious society” has appeared in law-related debates also in the West: e.g., the Alternative Dispute Resolution movement has been presented as a harmonizing remedy against the “excesses of litigation.” See Pitman B. Potter, The Administrative Litigation Law of the PRC: Judicial Review and Burocratic Reform, in: Domestic Law Reforms in Post-Mao China, Sharpe, New York 1994, 270–304; Kevin O’Brian, Lianjiang Li, Suing the Local State: Administrative Litigation in China, The China Journal, 51 (2004), 75–96; more generally, Stanley B. Lubman, Bird in A Cage – Legal Reform in China after Mao, Stanford Univ. Press, Stanford 1999.

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ing of state enterprises. The Supreme People’s Court has endorsed these harmony promoting practices.51 The main argument against these settlements is that “the conflict is here downturned or ignored to the benefit of a fiction of harmonious unity in a people held together by its common ideal of stability.”52 Pushing for an extrajudicial resolution represents a step away from the model of modern Western law as the key pacificator in society: Suffice to say that Locke’s introduction into his contract theory of the judge as the ‘impartial third party’ assures the exit from the state of nature and its downward spiral into open conflict. Moreover, the turn towards non-court mediation jeopardizes the ideal – central in many modern Western theories – of law as a tool for emancipation. Clearly in alternative dispute settlements, as in all informal negotiations, the risk is that the strong party will prevail over the weak because of structural inequality in pressure capability. Justice will then not be done, but an apparent harmonization will take place as the weak party draws back the charges. IV LESSONS

TO

LEARN

From what we have said, it shall now be clear that rule of law, ubiquitous in the Western tradition of justice, does not constitute a clear referent as far as institutional arrangements and legal rules are concerned. Essentially chameleonic, the rule of law is likely to be accused of covertly smuggling in values and to be all the more questioned by non-Westerners as it becomes a catchword. Conversely, harmony – although not essentially contested – is suspected of inadmissibility into (Western) legal discourse, because of historically profound reasons that are not likely to dissolve over night. Following Donald Davidson’s idea that a belief is identified by its location in a pattern,53 there is little hope that the notion of harmony, in Western legal thought, can be extrapolated from its metaphysical set of correlated and outdated notions that made the Enlightenment refute it in the first place. None of the concepts can plausibly be the cornerstone of a 21st century shared legal framework. This analysis seems to confirm the radical views in comparative philosophy that argue for methodological incommensurability, i.e., the view that the problems, basic concepts and modes of inquiry elaborated by one tradition lack meaningfulness in another. Grounded in the assumption that vocabulary, theoretical frameworks, let alone justificatory practices differ to such an extent that we are simply prevented from thinking outside our own tradition of thought,54 incommensurability implies that there can be no cross-traditional reference to a common subject matter or to widespread ways a topic has been theorized in different philosophical traditions. Luring behind is often defiance towards universal reason. 51

52 53 54

The Supreme People’s Court issued Opinions in January 2006 with recommendations on the role of the judiciary in the construction of the “harmonious society” and two notices were published in March 2007 on the “positive role” of mediation in conflict resolution. It has been suggested to me by Alessandro Ferrara that a “Western” counterpart that would deserve our attention is the institution of the EU ombudsman. Choukroune, Garapon (note 44), 48 Donald Davidson, Thought and Talk, in: Mind and Language, Routledge, London 1980. See e.g., Richard Rorthy, Contingency, Irony, Solidarity, Cambridge Univ. Press, Cambridge 1989.

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Notwithstanding these difficulties, there is a case for engaging in a de-provincialized discourse on the legal basis of the globalized world. Both ROL and harmony present significant features that should be applied for establishing preconditions of such an order. From the rule of law, we must hence learn again the fundamental lesson of impartiality as an indispensable element in applying the principle of justice. From harmony, we must refine our understanding of the complex ways in which social cohesion is enhanced and without which no order is sustainable. The principle of impartiality, founded on the transitivity of the parties in a controversy, refers to their willingness to accept the unbiased sentencing of a third. The impartial judge is one of the few topoi that incessantly return in accounts of justice.55 However, it is not a trivial concept at all. As hard as it might be to disentangle impartiality from closely connected issues such as neutrality and disinterest, we need to rethink the momentum and institutional contents of impartiality in replacement for the current extension of the list of goodies associated with ROL (cf. 2.2). This insistence on impartiality as unbiasness is not only constitutive of Western legal thought – from the Romans until today56 – but of Chinese philosophy as well. Here some brief quotes from the Confucian tradition are sufficient to make the point. For Kongzi, the equanimity of the exemplary person (jūnzǐ) is opposed to li, biasness and excessive partiality.57 That is why, following the Analects, “in the world, the jūnzǐ is not for or against anything. What is right – this is what he accords with” (4.10). An essential element of impartiality is the transitivity of the parties based on shu, “sympathetic understanding” or “reciprocity.”58 Thus the jūnzǐ “associates openly with others” (zhou) and is not partial or one-sided (bu bi), where zhou, “associating openly” refers to the ability to “take a wider view” or “keeping the public good in mind.”59 In order to do so the impartial third “carefully examine[s] the words and demeanour of others, and always take[s] the interests of their inferiors into account when considering matters.”60 Kongzi noted that “the jūnzǐ cherishes [the fairness associated with] punishments, whereas the petty person cherishes exemptions.”61 I do not aim to show that it would be impossible to appreciate these aspects without comparing accounts from different philosophical traditions, but rather that we do appreciate them as a result of careful comparative study. 55 56 57 58

59 60 61

Brian Barry, Justice as Impartiality¸ Oxford Univ. Press, Oxford 1995. See the classic account by E. Benveniste, Pouvoir, droit, religion, Édition de minuit, Paris 1969; and more recently William I. Miller, An Eye for an Eye, Cambridge Univ. Press, Cambridge 2006. Many terms in classical Chinese have a broad semantic range and their significance is rather context-related; here it is enough to say that it is not mere “greed” but means to covet something in an unjustifiable measure, comparably to the Greek term pleonexía. Erin M. Cline, Two Senses of Justice: Confucianism, Rawls, and Comparative Political Philosophy, Dao, 6:4 (2007), 371–372: “A person who exemplifies shu regularly employs the principle of reversibility, imagining herself in the position of others as a way of sympathetically understanding and responding to them.” Kongzi (note 25), 2.14. See He Yan’s Collected Explications of the Analects, Taiwan Shangwu Yinshuguan, Taipei 1981. Kongzi (note 25), 12.20 Kongzi (note 25), 4.11. Zhu Xi comments on this passage referring to the public dimension of the jūnzǐ’s interest as opposed to the private dimension of the interests of the petty person: Collected Commentaries on the Four Books, Hunan Sheng Xinhua Shudian, Changsha 1985, 170.

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The second lesson we need to learn involves harmony and concerns the relation between the parts and the whole and more specifically the crucial role played by social cohesion, enabling integration of all members into society. The charge against Western (rule of) law has often been its individualism: the Lockean ‘owner-focused individualism’ and the Weberian ‘methodological individualism’. Against the first, it is held, and not without reason, that it would not emancipate the individual from the crude and miserable struggle for life that so many put up with everyday. Against the dominant outlook on human interaction in economic and social sciences, it is held that it tends to disregard, in explaining preferences, collective phenomena that cannot be explained on the basis of individual choice as in the case of language and, to certain extent, law. Without falling into the opposite trap of holism and organicism, the current emphasis on harmony offers the occasio, if not the ratio for rethinking the ‘reunion’ of the individuals within society. Harmony is of interest because it may shed new light on what has been called “democratic individualism”: There is the individualism of the liberal or libertarian tradition, and there is the individualism of the democratic tradition. The first form of individualism cuts the string between the individual and the organic society and sets him outside the motherly womb (…). The second form of individualism unites him with others; individuals similar to himself, that he considers his peers, so as to recompose society through their union; no longer as the organic whole from which he left, but as an association of free men. The first form of individualism calls for the individual’s freedom from society. The second form calls for a reconciliation between the individual and society, turning the latter into a voluntary agreement among free and intelligent human beings.62

A road map toward a non conflict-ridden globalized world needs therefore to include renovated and insightful reflection both on the principle of impartiality and the integration of free men and women in society. A theory aimed at founding anew the conditions of peace must start from these premises if it wishes to overcome the divides between East and West and think out of the box. Given the quagmires currently afflicting rule of law, it is necessary to return to the principle of impartiality as the founding principle of all and every institutional arrangement for future global justice. Serious attention has also to be devoted to the reconciliation of individuals and society, the requirements of social cohesion indispensable for whatever order, and distinctive of well-ordered societies. In other words, the principle of impartiality and societal integration can be considered necessary conditions in disjunction, and perhaps even sufficient reasons in conjunction for setting, if not the institutional arrangements, at least the cultural preconditions of the legal order for the coming of age of the global society. In order to flesh out such a possibility, we need to prompt reflection on a world theory of justice, building on a broader cultural and philosophical scholarship than simply home-grown. If the purpose of theory is to frame research agendas, to direct empirical research to interesting developments, and to offer comprehensive generalizations, my claim is that to ideate a positive research agenda we need to move towards a transnational and cross-cultural redefinition of justice. Very few attempts have been made.63 Yet the primary scholarly challenge today – it seems to me – is to 62 63

Bobbio (note 1), 334. Perhaps mention should be made here of Amartya Sen’s The Idea of Justice, Penguin, London 2009.

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sketch out such a discourse in contemporary legal theory, in order to capture the big picture, and allow theorists to make sense of what has been achieved thus far. Any thoughts?

ZEYNEP ISPIR TOPRAK LEGAL ETHICS: WHAT DOES IT DEMAND FROM LAWYERS? I INTRODUCTION In his paper “The Virtues and Limits of Codes in Legal Ethics” Vincent R. Johnson mentions his impressions about the legal ethics courses he took when he was a student, with the following words: “… We spent hours pondering ethical problems, discussing and debating the difficult choices that lawyers face. What should a lawyer do if a client commits perjury on the witness stand, or wants to disinherit a child, or seeks assistance with marketing a vile product, drafting a predatory lease … Or what if a lawyer knows about an unfortunate loophole in the anti-discrimination laws and a client asks for advice? … Almost a quarter of a century later, I remember the issues and I remember the discussions. But I do not remember many clear answers. Often there seemed to be multiple answers and sometimes no answers at all. Either way, solutions did not come easily …”1

Sometimes it is really hard to overcome ethical dilemmas. Johnson states a way which requires “weighty deliberation and clear, mature judgment” for solving these difficult problems and he reminds us of “lawyer’s character and skill in making moral choices.”2 But, what do we understand from the terms “moral” and “morals” and from the terms “ethical” and “ethics”? In the first part of the paper3 it will be questioned if there are any conceptual differences between the terms ‘morals’ and ‘ethics’ taking as starting point Ioanna Kuçuradi’s relevant view; and if there are, how we can use this distinction in the area of professional ethics. Legal ethics is assumed to consist of codified rules for legal professionals, as it is assumed in almost every profession. Kuçuradi advises us to deal with professional ethics not independently but in connection with philosophical ethics. To do this while they are practicing their professions lawyers have to be equipped, besides professional knowledge, with ethical value knowledge. And this also demands something beyond obeying professional codes. In the second part of the paper results of an empirical research will be discussed in relation with the answers of the question stated above, and these discussion will be used to raise new questions: What is lawyers’ understanding about legal ethics? Is it sufficient to deal with legal ethics just as an area consisting of norms? These are additional questions that we shall try to answer by means of an example at the end of the paper.

1 2 3

Vincent R. Johnson, The Virtues and Limits of Codes in Legal Ethics, Notre Dame Journal of Law, Ethics and Public Policy, vol 14, 2000, 25. Johnson, The Virtues and Limits …, 25. For theoretical categorization of the some fragments of first part of this paper I have used the way that I followed in my article titled “Meslek “Etik”leri Etikten Bagimsiz midir? (Are Legal Ethics Independent From Ethics?)” (See: Zeynep Ispir Toprak,”Meslek “Etik”leri Etikten Bagimsiz midir? (Are Legal Ethics Independent From Ethics?)” in Kamu Etigi (Public Ethics), TODAI, Ankara, 2009, 375-382.

50 II MORALS, MORALITY, ETHICS: DO

Zeynep Ispir Toprak THEY MEAN THE SAME

THING?

Sometimes the terms ‘ethics’ and ‘morals’ are used reciprocally, as if ethics has the same meaning as morals3 and this causes certain problems. The term ‘morals’ is also used in different meanings and just one of them corresponds to ethics.4 Clarifying some important distinctions among these meanings might help us to see the purpose of ethics. One of the meanings of “morals” denotes systems of different and changing value judgments and rules of conduct.5 These value judgments change from group to group, from culture to culture. This is why “this kind of value judgments cannot be used as a criterion for evaluations which lead to value knowledge – the value of individuals and their actions”.6 Kuçuradi says that these kinds of value judgments are “sets of unwritten norms”.7 The term ‘morals’ is also used in the sense of general norms of “morality”8, for example: “you should keep your promise”, “you should not torture”. These norms do not change from group to group or over the course of time.9 The word ‘morals’ in the former sense is used as a criterion of evaluation that does not enable us to make right evaluations which are very important for acting ethically.10 Also morals in the latter sense, that is to say norms which do not change 3

Harun Tepe, Bir Felsefe Dali Olarak Etik: ‘Etik’ Kavrami, Tarihçesi ve Günümüzde Etik (Ethics as a Discipline of Philosophy: The Concept of ‘Ethics’, it’s History and Contemporary Ethics), Dogu Bati, vol. 4, Ankara, 2004, 12. 4 Tepe, Bir Felsefe Dali Olarak … (Ethics as a Discipline of Philosophy …), 12. There are different distinctions about these concepts. For example, Annemarie Pieper mentions two different meanings, morals and morality, in her book Etige Giris (Introduction to Ethics) (See Annemarie Pieper, Etige Giris (Introduction to Ethics) trans.: Veysel Atayman, Gönül Sezer, Ayrinti Yayinlari, Istanbul, 1999, 29–34) Also in Law, Liberty and Morality –in which H.L.A. Hart displays his opinions about the relationship between law and morality –he indicates two different meanings of morality: “… ’positive morality’, the morality actually accepted and shared by a given social group, from the general moral principles used in the criticism of actual social institutions including positive morality. We may call such general principles ‘critical morality’ and say that our question is one of critical morality about the legal enforcement of positive morality.” (See H.L.A. Hart, Law, Liberty and Morality, Oxford University Press, London, 1964, 20). 5 Ioanna Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), Uludag Konusmalari – Özgürlük, Ahlak, Kültür Kavramlari, Türkiye Felsefe Kurumu Yayinlari, Ankara, 1988, 22. 6 Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 22. 7 Ioanna Kuçuradi, Teaching Philosophy to Students of Other Disciplines, Socrates for Everybody – Teaching philosophy to non philosophers, Ed.: Jean Ferrari, Peter Kemp, David Evans, Nelly RobinetBruyère, Librairie Philosophique J.VRIN, Paris, 2003, 12. Kuçuradi states this first meaning when she is making distinctions about the concept of ethics and says: “… ‘Ethics’ sometimes denotes system of norms –of evaluation, action, behavior or conduct– valid in a given group at a given moment, expected to determine the evaluations, actions and conduct of individuals in their relations with other individuals in the given group. These are sets of widespread, living, unwritten conceptions concerning what is ‘good’ and ‘bad’ and what one should or should not do in general, prevailing at a given moment in a given group or a given ‘culture’ …”(See. Kuçuradi, Teaching Philosophy to Students of Other Disciplines, 12). 8 Tepe, Bir Felsefe Dali Olarak Etik … (Ethics as a Discipline of Philosophy …), 13; Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 30–32. 9 Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 22. 10 The concept of “right evaluation” plays an important role in Kuçuradi’s views about ethics. Three steps which Kuçuradi foresees for right evaluation enables an evaluation of each occasion,

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from culture to culture, from time to time or from place to place, cannot provide criteria for right evaluation in every situation. With Kuçuradi’s words we can call the systems of such norms “codes of morality”.11 According to Kuçuradi, when we evaluate individual actions with general value judgments and when we express judgments like “it is bad to lie” or “keeping one’s promise is good” and use them as value criteria, in some circumstances we might meet with some problems.12 Harun Tepe points out that: “Even if they are derived from the knowledge of the value of human being, to evaluate with predefined norms might lead to dead ends those who are using them. When a person faces a particular situation which forces him to choose one of those predefined and same sort of norms, he might feel incapable to decide what to do.”13

According to Kuçuradi, if we look at examples of principles and rules which determine the actions (not the evaluations) of individuals, we can see that they are pointing to a necessity. They can be derived from two different sources: one of them is experience and the other one is the knowledge of the value of human being.14 For example, “you should not torture” is derived from the knowledge of the value of human being. This kind of principles tells us, in Kuçuradi’s words: “If a person behaves according to that principle in his relations with other persons, the probability of not hindering the actualization of certain human potentialities increases … In other words, this kind of principles tell us: if a person cannot make a right evaluation in a particular situation and if he does not want to give damage the value of the human being, it is more probable not to damage this value when he behaves according to such a principle.”15

It has to be mentioned that once the latter kind of principles of action are put forth, they are valid for every time; but we have to notice that these principles may not be

11

12 13 14 15

so the ethical action. These steps can be counted firstly, understanding; secondly, seeing the specialty – the value of an action – of an action under the specific circumstances which the action has been made and comparing with the possibilities of acting in a different way and lastly, connecting this specific action with the knowledge of value of human being. (See Ioanna Kuçuradi, Etik (Ethics), Türkiye Felsefe Kurumu Yayinlari, fourth edition, Ankara, 2006, 16–17. And see also Ioanna Kuçuradi, Insan ve Degerleri (The Human Beings and Its Values), Türkiye Felsefe Kurumu Yayinlari, third edition, Ankara, 2003). Kuçuradi clarifies this meaning and states that:“… In some other contexts the term ‘ethics’ is used in order to denote systems of written norms, or codes of norms, developed by ‘someones’ with given purposes. Such documents are constituted of norms either deduced for the purpose or selected among existing norms, agreed upon by the consensus of those involved and made valid by the appropriate procedures –still mostly without being evaluated philosophically. Typical examples of ‘ethics’ in this sense are all ‘professional ethics’, which are constituted of norms expected to determine the actions of everyone belonging to the profession. This is now the most widespread meaning of ‘ethics’ …” (See Ioanna Kuçuradi, Teaching Philosophy to Students of Other Disciplines, 12–13). Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 24–25. Tepe, Bir Felsefe Dali Olarak Etik … (Ethics as a Discipline of Philosophy …), 14. Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 27–29. Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 29–30. Kuçuradi cites that, it is more convenient to call the principles which take roots from the value of human being as principles of morality instead of moral principles. However, the concept of morals indicates the rules based on experience and value judgments. (See Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 30).

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valid in every unique situation.16 Because, in some particular situations, acting according to these principles may not protect the value of the human being, it may even give damage to this value. The third meaning, in which the term ‘morals’ is used, differs from the other two meanings mentioned above. This third meaning corresponds to ethics “as a discipline of philosophy, which deals with interpersonal relationships and their problems”17, analyzing by action is within the framework of human relations –i.e. by putting forward the elements of an action, and their possible determinants. In this meaning ethics “puts, or is expected to put, forward verifiable-falsifiable knowledge”.18 If we look at ethics from this perspective, we can see that ethics is independent from all morals. It consists of philosophical knowledge whose object are human relations, action problems and values.19 III THE

RELATION

BETWEEN ETHICS

AND

PROFESSIONAL ETHICS

Ethics, as a discipline of philosophy, analyzes value problems in human relations and puts forth knowledge about them.20 To say what should be done or to put forth norms is not the purpose of ethics.21 While evaluating present-day discussions about professional ethics Kuçuradi points that: “The questions raised in professional ethics concern what one should or should not do in general, while practicing the given profession; they are questions concerning ethical and legal norms. Their answers, if given, appear as international declarations, conventions and moral professional codes.”22

For example in one of his articles Aulis Aarnio states his view about professional ethics with these words: “I regard professional ethics as rules by means of which the aim is to determine an ideal type practicing a certain profession.”23 Kuçuradi claims that today some theories try to justify existing norms, some try to introduce metanorms, and some others attempt to connect them; yet all these theories share the view that ethics consists of problems of norms.24 When professional ethics is discussed independently from philosophical ethics and the kind of demands they bring is overlooked, it can be understood why professional ethics is considered to be an area consisting just of norms. 16 17 18 19 20 21 22 23

24

Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 30. Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 31. For details see. Kuçuradi, Etik (Ethics), Türkiye Felsefe Kurumu Yayinlari, fourth edition, Ankara, 2006. Kuçuradi, Teaching Philosophy to Students of Other Disciplines, 13. Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 34. Kuçuradi, Ahlak ve Kavramlari (Morals and Its Concepts), 34. Tepe, Bir Felsefe Dali Olarak Etik … (Ethics as a Discipline of Philosophy …), 14. Ioanna Kuçuradi, Philosophical Ethics and Professional Ethics, in: Ethics of the Professions: Medicine, Business, Media, Law, Ed.: Ioanna Kuçuradi, Springer, 1999, 2. Aulis Aarnio, Lawyers’ Professional Ethics – Do They Exist?, Ratio Juris, vol. 14, No. 1, 2000, 2. Nonetheless Aarnio makes a difference between morals and ethics in this article and also he states: “… de facto there are no particular professional ethics of lawyers beyond or above the ethical principles binding all people.” (Aarnio, Lawyers’ Professional Ethics …, 1) It seems with this ascertainment, Aarnio also relates professional ethics with philosophical ethics. Kuçuradi, Philosophical Ethics and Professional Ethics, 3.

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There are codes of conduct for almost every profession. The ethical problems dealt within, which give rise to different professional ethic“s” are not “different in kind from those faced in other areas of human endeavor”.25 They are the same kind of problems, but each of them “requires, however, also knowledge of the relevant scientific disciplines, in order to tackle them in a cognitively justifiable way and find out what one should do in a given case.”26 Once we accept this perspective we can say that professional ethics does not provide a new kind of knowledge on ethics, but in order to act ethically, in a given situation, we also need knowledge of the profession in question. One of Kuçuradi’s statements related to biomedical ethics is that: “… no sufficient consideration is given to the very simple but basic question of the ‘what for’ of these scientific human activities”27. She thinks that “[t]he ethical problems in various professions and other areas of human endeavor are related to problems of philosophical ethics and to what Aristotle calls the ‘job of the human being’”.28 Kuçuradi reminds us of that and this statement urges us to read Aristotle, who is the first ethicist in philosophy.29 In Nicomachean Ethics, Aristotle says the following about the “job” of the human being: “… if … we take the characteristic activity of a human being to be a certain kind of life; and if we take this kind of life to be activity of the soul and actions in accordance with reason, and the characteristic activity of the good person to be to carry this out well and nobly, and a characteristic activity to be accomplished well when it is accomplished in accordance with the appropriate virtue; then if this is so, the human good turns out to be activity of the soul in accordance with virtue …”30

According to Aristotle, an action is “to be accomplished well when it is accomplished in accordance with the appropriate virtue” and this requires some knowledge from individuals when they are practicing their professions, such as knowledge of right evaluation, knowledge of the related profession, knowledge of the relevant case, etc, because norms cannot help us to reach a solution in every concrete situation, which does not give damage the value of human being. If we look at Nicomachean Ethics again, we can see that Aristotle reminds us of the goal of every human activity. He says: “Since, there are many actions, skills, and sciences, it happens that there are many ends as well: the end of the medicine is health; that of shipbuilding, a ship; that of military science, victory; and that of domestic economy, wealth.”31 For law and of course for lawyers this end is justice. A lawyer who cares about legal ethics should be aware of this point any time he is representing a client. If we return to Aristotle, we can listen to his warning about the necessity of “look[ing] at what is appropriate in each case as it happens”32 This may sound pro25 26 27 28 29 30 31 32

Kuçuradi, Philosophical Ethics and Professional Ethics, 15. Kuçuradi, Philosophical Ethics and Professional Ethics, 8. Kuçuradi, Philosophical Ethics and Professional Ethics, 7. Kuçuradi, Philosophical Ethics and Professional Ethics, 15. Annemarie Pieper, Etige Giris (Introduction to Ethics) trans.: Veysel Atayman, Gönül Sezer, Ayrinti Yayinlari, Istanbul, 1999, 29. Aristotle, Nicomachean Ethics, trans. and ed.: Roger Crisp, Cambridge University Press, 2000, Book I, 1098 a, 12. Aristotle, Nicomachean Ethics, Book I, 1094 a, 3. Aristotle, Nicomachean Ethics, Book II, 1104a, 25.

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vocative, but sometimes a person can act ethically by violating a written rule in that profession’s code of conduct, so he has to consider the purpose of the rule in every case. IV AN EMPIRICAL RESEARCH The concept of “professional ethics” should be discussed in connection with philosophical ethics. This perspective demands a common standpoint for every profession, which is based on philosophical ethics. Acting ethically for lawyers, attorneys, prosecutors, judges and even academicians in law schools seems connected with this. This part of the paper is intended to investigate the implications of this theoretical framework, briefly mentioned above, for law practice, especially in the professional life of attorneys. A field survey of twenty lawyers registered to the Ankara Bar Association was used to reach an opinion regarding “what the lawyers understand about professional ethics-legal ethics” and their perceptions about “the relationship between acting ethically and obeying a code of conduct.” a) Sample: Twenty lawyers, who constitute the sample of the research, have been chosen from among attorneys who are actually working in Ankara. Ankara has the second largest population of lawyers in Turkey, after Istanbul.33 Furthermore, the Ethics Committee of Ankara Bar Association is the first and only one in Turkish bar associations. In Turkey, lawyers working for the government are legally accepted as civil servants; naturally they work under a different legal status. Because of that, civil servant lawyers have been excluded from this research. The twenty lawyers who constituted the sample of the research were divided into four groups according to their years of service – less than five years of experience, five to fifteen years, fifteen to twenty five years and finally more than twenty five years. Each group consisted of five lawyers. With this grouping, it was aimed to inquire if there is any connection between the years of service and lawyer’s perception about ethics and legal ethics. b) Method and Interviewing Technique: A qualitative method was chosen for the research and an in-depth interview technique was used. Firstly the age, sex and the length of service of the lawyers was stated at the beginning of the interviews. Then the following questions were asked: 1) How is professional ethics perceived among the lawyers, when you observe them in practice? 2) Do you think you act ethically as a lawyer when you obey the Code of Conduct for Lawyers? 3) Do lawyers obey their code of conduct adequately? 33

According to Union of Turkish Bar Associations there are 23884 lawyers in Istanbul, 8954 in Ankara and 5491 in Izmir (http://www.barobirlik.org.tr/tbb/avukat_sayilari/2008.aspx). Ankara Bar Association stated that there are 9062 lawyers working in Ankara at the time of the research. (Document given by Ankara Bar dated 24.02.2009, numbered 11-117/5301).

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4) What do you think about the sufficiency of the code of conduct in your profession? Which one of the rules of professional ethics helps you most to act ethically? Do you have any proposal concerning a principle or ethical rule which, you think, has to be added in the code of your profession? 5) Could you give an example of an event or case which, you think, was contrary to professional ethics? After the interviews, voice records of the interviews were listened to again and detailed notes were taken from them to analyze the answers. Answers were divided into groups and matched with keywords or sentences to show – if there were any – connections between the theoretical part mentioned above. Most common answers of the questions can be summarized as follows: Question 1: “How is professional ethics perceived among the lawyers when you observe them in practice?” The answers to this question could be summarized under four items: • Professional ethics is something that most lawyers do not care about. • Professional ethics is not obeyed because of economic reasons. • Professional ethics is perceived as acting according to the code of conduct and failing to act so is followed by a sanction. • Lawyers’ behaving in accordance with professional ethics depends upon the length of their service; experienced lawyers follow these rules more carefully. When I asked them “What do you think about professional ethics?” they related professional ethics with being honest, having good moral character, showing respect to other lawyers and to the profession (“because advocacy is a respectable profession” they said), and the necessity of being a good example through conduct as a lawyer and obeying the rules of conduct.34 Question 2: “Do you think you act ethically as a lawyer when you obey the Code of Conduct for Lawyers?” When we look at the answers to the second question, fourteen lawyers of twenty said that they believe they act ethically when they obey the code of conduct. Six of them thought that for acting ethically is not enough to just obey the rules, but these six lawyers gave different reasons. For example, some of them gave examples from the rules of the code of conduct which, they think, are outdated. Another lawyer said “For example I do not sleep with a clear conscience when I go to a house for domestic attachment, but I have to follow this process to protect the rights of my client.” Another one of these six lawyers stated that the code of conduct is just a written text for setting a standard and if it is obeyed it is possible to act ethically. Question 3: “Do lawyers obey their Code of Conduct adequately?” This question was asked to determine the opinions of the lawyers if the code of conduct is obeyed or not. Seventeen lawyers of the twenty answered no, and three of them answered yes. One of them who thought that the code of conduct was obeyed adequately claimed that there is a relationship between professional experi-

34

Many of the lawyers complained about public’s perception of lawyers, such as “liar, cruel”, while answering the first question.

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ence and obeying the code of conduct. (“Older lawyers obey these rules more”, he said) And the other two said “Yes it is obeyed, because there are sanctions at the end.” Question 4: “What do you think about the sufficiency of the code of conduct for your profession? Which one of the rules of professional ethics helps you most to act ethically? Do you have any proposal concerning a principle or ethical rule which, you think, has to be added in the code of your profession?” The answers to the fourth question varied. In the first step, about the sufficiency of the ethical rules, answers were: • sufficient, but it is not known • sufficient, but it is not applied • sufficient, but it has to be updated. Examples of a rule of conduct which they think they are using most are: necessity of not behaving as a side of case35, not accepting a client who is already being represented by a lawyer without giving written information36, the right to reject a case37, lawyers responsibility depending on professional liability38, prohibition from acquiring or mediating in the acquisition of contested rights39, and being bound by professional secrecy.40 There wasn’t any concrete proposal concerning the addition of a principle. Only one of the lawyers said “There should be regulations about human rights in the pro35

36 37

38 39 40

Article 6 of Turkish Code of Conduct for Lawyers (Professional Rules) about this: “The attorney’s interest will be in the legal aspect of his litigation and defense. He must remain outside any hostilities engendered by the dispute between the parties concerned.” (English translation of the Turkish Code of Conduct for Lawyers has been taken from the Union of Turkish Bar Associations website: http://www.barobirlik.org.tr/mevzuat/avukata_/avukatlik_kanunu/docs/ PROFESSIONAL%20RULES.doc). Article 39 of Professional Rules about this: “In the event that a client wishes to retain a second attorney in addition to the one with whom he/she had made the original contract, the second attorney must inform the first of the situation in writing before agreeing to render services.” Article 38 of Professional Rules about this: “The attorney may decline to render services without having to state a reason. The attorney may not be forced to disclose the reasons underlying such a decision. The attorney will not agree to render services for which his/her time and competence are not adequate. The attorney will take care to exercise his/her right to abstain from assuming and litigating a suit in a manner not prejudicial to his/her client.” Article 41 of Professional Rules about this: “The attorney may not seek to benefit from a suit at the expense of his/her client by neglecting his/her duty or abusing his/her powers.” Article 36 of Professional Rules about this: “An attorney rendering legal services for one of the parties to a dispute will be bound by the rule of not representing persons with conflicting interests.” Article 37 of Professional Rules about this: “. Attorneys are bound to professional secrecy. a) The attorney may also fall back on this rule in abstaining from testimony. The attorney will treat as secret the information he/she has received from potential clients for whom he/she has eventually decided not to render services. The attorney’s commitment to professional secrecy is indefinite. Leaving the profession will not terminate such commitment. b) The attorney will take the necessary measures to preclude conduct in violation of the rule of professional secrecy on the part of his/her colleagues in assistance, apprentices, and employees, as well.”

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fessional ethical codes”. Other answers offered some regulations which make existing regulations more effective, such as establishing an agency which might follow the implementation of the Code of Conduct for Lawyers and impose penalties for breaches. Question 5: “Could you tell me an event or case which, you think, was contrary to professional ethics?” In the last question it was required from the lawyers to share an event or a case of derogation of professional ethics. In this way it was aimed to find situations in which lawyers showed to be most sensitive and what situations they think are contrary to ethics. Almost all the lawyers shared a memory for this question. I listed them according to their prevalence. These are: • Accepting a new case which is already being held by another lawyer, without first notifying of the other lawyer. (Professional Rules, Art. 39) • Not paying or paying late the money a lawyer collected in the client’s name. (PR, Art. 42, 43) • Not waiting for a hearing the other party, even in small delays. (PR, Art. 30)41 • Talking with a client about dismissing his current lawyer in order to get the job. (PR, Art. 8)42 • Agreement between two parties to by-pass the lawyers. • Accepting a new client who is already on the opposite side in an ongoing case. (PR, Art. 36) • Over calculating interests on purpose. (PR, Art. 41, 42) • Not taking written directive. • Communicating with the other party instead of his lawyer. (PR, Art. 31) • Breach of the obligation to notify the Bar Association if the other party is a lawyer. (PR, Art. 27) • Showing disrespect to other lawyers and the egotism of older lawyers. • Not to be respected as an attorney especially in the relationships with judges. • Doing the job of advocacy as if it is just a commercial business, for example determining the attorney’s fee unfairly or breaching the prohibition of advertisement. (PR, Art. 7, 8) • Observing prejudices about lawyers in public.43 • Not being sensitive and honest in the client-lawyer relationship. (PR, Art. 3, 4, 5).

41

Second paragraph of Article 30 regulates this as: “In the event that an attorney on whom a decision of trial in absence has been entered due to his/her lateness arrives before court immediately thereafter, the attorney representing the adverse party must request the cancellation or correction of that decision.” 42 Article 8 of Professional Rules is: “The attorney must avoid all conduct in the nature of solicitation for work.” 43 About this topic most of the lawyers compared themselves to doctors: their fees, their reliability, etc.

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c) Conclusions of Empirical Research With this research, it was mainly, intended to find out by means of interviews what the lawyers understand about ethics, their viewpoints about the Code of Conduct for Lawyers, and if they see any identicalness between acting ethically and obeying the code of conduct. Because of the method chosen and the questions, sometimes the answers to a question have been found in another answer. The most striking conclusions I could reach from the data can be summarized as follows: • The answers show that there is not clear and explicit conceptual knowledge of ethics among lawyers. The concept of ethics is frequently used interchangeably with the concept of morals which indicates systems of different and changing value judgments area. For example this sentence has been taken in an answer: “Everybody has their own ethics.” • Although there are lawyers who think that obeying the rules is not enough to act ethically, the majority think that acting ethically means just obeying the code of conduct. Furthermore, the examples which the lawyers gave for almost every question, they are related to the Turkish Code of Conduct for Lawyers (as we can see above), which was developed by the Union of Turkish Bar Associations. After giving these examples, some of the lawyers particularly said: “Actually it is contrary to our Code of Conduct, too” Almost every question answered with this sentence shows that they legitimate this situation because of this reason. About this topic, I requested the lawyers to think about a fictional case. (Yet, it has to be said that giving such examples about ethical issues may be not appropriate, because of the lack of sufficient data for a proper evaluation, but I thought I may give just an example illustrating a simple moral dilemma). I asked them “think about this: while a divorce suit is still continuing, your client came to you and told you a detailed murder plan he had made for his wife. You have known this client for a long time and you are sure that he is serious. What do you do? Do you breach the rule of code of conduct which regulates secrecy?” The answers varied. Some lawyers certainly refused to disclose this information. One of them “defended” himself with these words: “I am not the police. It is police’s job catching guilty people”. I asked these lawyers “Except denouncement would you choose another way, such as resigning from the case?” Another lawyer answered this way: “If I resign, the client would go to another lawyer. So I do not do that”. Some of them claimed that it is impossible to standardize this kind of case, so it is certainly an obligation to obey the rules. By the way, there are some other answers such as: “This is actually a crime which is regulated in the Criminal Code, so it is not about ethics. It is a legal obligation to denounce it.”, “If necessary I sit with my client in my office from night to morning and persuade him not to do it.” After taking all the answers for this fictional case, I asked “Wouldn’t you evaluate a situation in itself that is without using the norm of the code of conduct?” Some of them accepted that “Every particular situation has to be taken by itself and has to be evaluated independently despite of the existence of a rule.” • Although there were some different answers which stem from life experience, there were no major difference between lawyers according to their length of service and also their sex.

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V CONCLUSION In this paper we tried to present the perception of attorneys about legal ethics on the ground of the results of a field survey. Of course this is not a final evaluation and of course it is not appropriate to make a generalization about the topic with such limited data. However, I suppose I can say for the moment, that when professional ethics is taken as rules and ethical codes, this might be insufficient to solve the problems in each case; furthermore there is a risk of damaging the value of human being. Professional ethics has to be related to philosophical ethics. This does not mean that ethical codes and rules about a certain profession are nonfunctional. They have many advantages. In literature we can easily find some answers to the question, “Why professional ethics?” For example after stating some problems about professional ethics, G.J. Rossouw answers this question under the following headings: “to protect the professional nature of legal services, to guide new entrants to the profession, to offer assistance in moral decision making, to ensure fair competition between legal practitioners, to secure the trust of clients, to discipline unprofessional behavior.”45 We might say the majority of professionals believe that codes of conduct and professional ethics are standing for the same thing, which can be seen from the answers presented above. This paper reaches the conclusion that first obeying the professional code is not sufficient, because it may prevent right evaluation in certain circumstances.46 Codes of conduct can be used as a guide when a person wants to protect the value of a human being in cases that he has not the possibility to make a right evaluation in Kuçuradi’s terms. To act ethically it is necessary not to loose sight of the goals of our jobs, to possess sufficient professional knowledge as well as philosophical knowledge of ethics, and to know how it is possible to make a right evaluation in the field in question.

45

46

G.J. Rossouw, Why Professional Ethics in The Legal Profession?, Journal of South African Law, 1998:1, 60–62. Also Johnson states that, codified ethical rules help to “protection of clients, equality of client treatment, promotion of ethical discourse, reconsideration of ethical choices” and he adds the “declarative functions of ethical codes”. (See, Johnson, The Virtues and Limits …, 29–40). Aristotle, in Fifth Book of Nicomachean Ethics, says: “… Among those liable to injustice will also be found the committing of injustice, though injustice is not found among all those who commit injustice …” (Aristotle, Nicomachean Ethics, Book V, 1134a, 92) This connotes a kind of evaluation which appears in each case.

SØREN STIG ANDERSEN WHY AND HOW DOES PROXIMITY A LEVINASIAN APPROACH

MATTER IN LITIGATION:

I INTRODUCTION Several widespread principles in litigation safeguard or enhance proximity understood as nearness in the legal proceedings before the court. Or perhaps more precisely: these principles support different aspects of proximity. Proximity in the sense of physical co-presence is supported by the principle of oral proceedings and the right of the parties to be present, and proximity understood as communication is supported by the right of a party to be heard and the right to be assisted by a translator. Communicative proximity is also supported by language policies adopted by courts aimed at using accessible and easily understood language. Less obvious examples of how proximity is supported in litigation include broad, representative selections of juries with different cultural and ethnical backgrounds – a measure which in some cases may enhance a sense of cultural proximity – and, in some countries, attempts at creating physical as well as psychological environments that do not alienate parties and other legal actors. Existing legal theory only offers sparse and limited insight into why such principles matter. Take for example Article 6 of The European Convention on Human Rights, which stipulates the right to a fair trial (see also the similar provision in Article 14 of the International Covenant on Civil and Political Rights). In numerous decisions concerning the interpretation of this provision, the European Court of Human Rights has stated that the provision entails a right for an accused to be present during the hearing of his case. The reasoning of the Court essentially amounts to the observation that this is a prerequisite of a fair trial whereas the Court is silent on why this is so. The same holds true for the extensive literature on human rights, which essentially does not step beyond the wording of the provision and the reasoning of the Court. The fact that legal scholarship does not deal with the significance of proximity in litigation is problematic for a number of reasons. Firstly, it is unsatisfying to coexist with important procedural rules without having a frame of reference for truly understanding them, let alone having an educated discussion on their limits. Secondly, our ability to adequately protect and support proximity is impaired if we do not understand why and how proximity matters. Likewise, it will be difficult to prioritize between different procedural considerations if we do not grasp the extent of their significance. Thirdly, an understanding of the why and how of proximity in litigation will help us in interpreting procedural rules concerning proximity. Thus there clearly is a need for a theoretical framework that will enable us to adequately address questions relating to proximity in litigation, and which may – in a further perspective – also lead to a more profound understanding of law and of the concept of justice. Though one can only guess as to the reason for the lack within academic legal discourse of deliberations on the significance of proximity in litigation, one decisive

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factor could well be insufficient concepts and language to develop an appropriate figure of proximity. In these present theoretical deliberations, a natural first step accordingly is to develop a concept of proximity that is relevant in this context. For this purpose, I will turn to the philosophy on proximity developed by the French philosopher, Emmanuel Levinas. I intend to do this by extracting elements of his philosophy on proximity that are particularly relevant in the context of litigation – an extract that will include the inextricably related concepts of responsibility and justice. This will be a rather simple philosophical exercise that is not comparable to more sophisticated exercises such as attempts at new interpretations or original applications of Levinas’s philosophy. After having extracted some key aspects of Levinas’s philosophy these will be imported into a socio-juridical discourse forming a basis for further deliberations on the significance of proximity in litigation. This approach is somewhat parallel to the way the Polish born sociologist, Zygmunt Bauman, uses Levinas as foundation for his ‘Postmodern Ethics’. Despite the understanding of the significance of proximity offered by the philosophy of Levinas, there are a couple of important questions that his philosophy on proximity does not answer – or at least does not answer sufficiently – so as to make it applicable to litigation: What signifies events of proximity (i.e. how do we establish whether proximity happens), and which factors may influence this? And to what extent is it the responsibility of the individual legal actor (especially the judge) to ensure proximity? These questions, whose complexity is symptomatic for the challenges facing anyone trying to apply Levinas on concrete situations, will be addressed briefly under the admittedly pompous heading ‘Conditions of proximity’. This will not constitute an actual application of Levinas but rather set the stage for such applications. Subsequently I intend to draw up some perspectives relating to the significance of proximity in regard to law in a wider sense. These deliberations will lead to the suggestion that proximity may be of fundamental importance concerning the legitimacy of law. As a further step, I intend to look at the significance of proximity in litigation in the perspective of the relationship between State and non-State. Lastly, I will briefly identify some of the challenges that face proximity as law turns increasingly international and supranational and as new technology changes the ways of litigation. These concrete challenges also serve as practical examples of issues, which adequate concepts and a philosophical framework for the understanding of proximity in litigation will help address. II LEVINAS:

A BASIS FOR A CONCEPT OF PROXIMITY

Emmanuel Levinas was one of several continental 20th century philosophers who within the phenomenological tradition concerned themselves with proximity as a condition for communication between the same and the other; the I and the altogether other. His philosophy has constituted the referential basis for investigations within manifold areas including questions relating to law. It is a fact, however, that his thoughts on law are very limited. As a consequence, the attempts to invoke his philosophy in jurisprudence often – though far from always – appear somewhat strained. This has led to frustration among philosophers of law to such an extent

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that some commentators complain about the inapplicability of his philosophy in the context of law and politics or about his misleading or naïve view on law and politics.1 Irrespective of these undoubtedly real problems facing anyone trying to apply Levinas to concrete questions relating to law, the core of his philosophy concerning responsibility and proximity is an obvious choice as a basis for developing a concept of proximity in the context of litigation. Using this approach as point of departure for the theoretical deliberations, one essentially sidesteps the political/jurisprudential discourse on Levinas and instead returns to the pivotal part of his philosophy. Levinas uses proximity to describe the situation in which a person steps into contact with another person. This contact is signified by being prior to any thematization or categorization: I do not see the other as someone with certain qualities but rather as someone incomprehensible in terms of prior knowledge and reason. Levinas thus uses the concept of proximity to describe the contact between individuals in a way that confronts descriptions based on recognition and knowledge. My contact with the other is characterized by a pre-reflective sensibility and signifies communication between individuals in an existential sense; communication prior to the exchange of words or conventional signs. Or as expressed by Levinas: the face of the other is in itself a sign. Levinas uses a 3-step approach as a basis for his investigation of proximity; an approach that only serves the presentation of his thought and that thus does not indicate any chronological sequence. First, he sees the individual as being alone in the World. It is an enjoying entity, which sees and uses the surrounding World to accommodate its needs. Its mode is for-itself. Accordingly, its view of the World is panoramic and thematizing. As a second step, the for-itself mode of the self-sufficient I is interrupted by an other. The other is an absolute other in the sense that it escapes all thematization and categories of the self-sufficient I and thereby questions my self-sufficiency. The I remains separated – otherwise there could be no other – but the contact with the other implies responsibility; a limitless and irreciprocal responsibility for the other. Consequently, it is an asymmetrical relationship where the other so to speak looks at me from above. Furthermore, it is a responsibility that I do not choose. The responsibility is an imperative response to the other, which happens to me rather than being something that I freely choose. The responsibility for the other is beyond freedom and choices; in this contact I am utterly passive. Not passive in the sense that my passivity is a choice or an attitude. It is a passivity even more passive – it is a passivity that I have no bearing on. And it is a responsibility that I cannot pass on to somebody else. It is a responsibility, which, according to Levinas, takes me hostage. It is a question of substitution of me for the other. The term, which Levinas uses to qualify this, in effect one-sided, relationship, is proximity. After moving from the I for-itself to proximity, Levinas considers the significance of third parties: “The third party is other than the neighbor, but also another neighbor, and also a neighbor of the other, and not simply his fellow. What then are the other and the third party for one another? What have they done to one another?

1

Marinos Diamantides, (ed.), Levinas, Law, Politics, 2007.

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Which passes before the other?”2 In other words, now it is no longer only a question of the other and me; I also have to take the third party into account. I would neglect my responsibility if I did not assess the relationship between my two neighbors. This is a question of justice, which, according to Levinas, requires comparison of the uncomparable and leads to the use of reason, the birth of language, and ultimately law. This does not imply that proximity and the responsibility for the other is rendered irrelevant. On the contrary, “justice is not a legality regulating human masses, from which a technique of social equilibrium is drawn, harmonizing antagonistic necessities. Justice is impossible without the one that renders it finding himself in proximity. His function is not limited to the ‘function of judgment’, the subsuming of particular cases under a general rule. The judge is not outside the conflict, but the law is in the midst of proximity. Justice, society, the State and its institutions, exchanges and work are comprehensible out of proximity. This means that nothing is outside of the control of the responsibility of the one for the other.”

Put shortly, “justice remains justice only, in a society where there is no distinction between those close and those far off, but in which there also remains the impossibility of passing by the closest.”3 It should be noted that according to Levinas, the entry of a third party is not necessarily to be construed as an empirical fact. Rather, the third party is already implicit present in my contact with the other. This ensures that the interests of “those far off ” are never left out of consideration. The Levinasian concepts of proximity, responsibility, and justice raise the following questions: How does the proximity of the other have such an existential effect on me? Here, Levinas becomes more concrete in identifying the face of the other as that, which opens up for his absolute, infinite otherness. It is the defenceless eyes that beg as well as command me. But neither the face nor the eyes should be understood in plain anatomical sense. The face cannot be reduced to physical entities. Rather, it is an epiphany of the face that has an effect on me in making me responsible for the other. At the same time, it is clear that Levinas uses the face neither as a metonymy nor as a metaphor. It is truly the face that enables me to see the other as absolute other. The identification of the face as decisive for proximity leaves Levinas with many questions, which are difficult to answer: When is a face a face? Does an animal also have a face? Etc. Such questions do not fit well into Levinasian thought and his attempts at illuminating what constitutes a face do not bring us far. It is, however, worth noting that according to Levinas proximity does not presuppose the sight of the face of the other. Other senses than sight may also lead to proximity as may – it seems – the sensing of other physical aspects than his face. Levinas’s analysis of the interpersonal relationship, which he seeks to illuminate with terms such as responsibility, proximity, and justice, and which in their turn are all ultimately linked to ‘the face’, is phenomenological in as much as it, in an epistemological sense, is based on the kind of pure experience, which William James – as pointed out by Megan Craig – called radical empiricism.4 This does not imply, 2 3 4

Emmanuel Levinas, Otherwise than Being or Beyond Essence (translated by Alphonso Lingis from Autrement qu’être ou au-delà de l’essence), 1998, 157. Ibid., 159. Megan Craig, Lights in the Dark: The Radical Empiricism of Emmanuel Levinas and William

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however, that responsibility, proximity, and justice designate private moods or sentiments. On the contrary, these concepts describe something real that is or happens. Responsibility for the other, for instance, is an effect that the other has on me that is not tangible or something that can be experienced or sensed by anybody else. In Levinasian optic it is, nevertheless, something real. The cognition and understanding offered by the text of Levinas presume the reader’s recognition, i.e., that the reader in Levinas’s text can find an accordance with his own experience. The impact that his philosophy has had testifies to his success in awakening such recognition. His philosophy has proven, though, to be difficult to apply in concrete contexts due, ultimately, to the ambiguity of his reference to ‘the face’ and the encounter with the other ‘face-to-face’ – an encounter that according to Craig “is too situational and sensible to be metaphysical and too transcendently un-experiential to be physical.”5 When attempting to apply the Levinasian understanding of proximity etc. to a concrete situation such as litigation, it therefore may be helpful to extract certain aspects of the concepts, which are relevant for this situation. For the purpose of developing a concept of proximity in the context of litigation, I will draw out the following three aspects of Levinasian proximity: 1) Proximity implies that I am not able to subsume the other individual, who is near me, in my already existing categories. The other is not a sum of measurable and categorical qualities. Instead, he surpasses all knowledge. 2) Proximity implies a responsibility for the other. This is a responsibility, which takes hold of me before any act of consciousness, and which cannot be disclaimed. Therefore it does not make sense to measure the responsibility with formal rules. Furthermore, the responsibility cannot be transferred. It concerns me in a radical sense. 3) Justice is based on proximity also with a third party. This third party may not be physically present, but in the proximity of the other I am reminded of the existence of third parties and of my responsibility also for them. Justice, then, is in proximity to assess the relationship between the other and the third party. This third point gives a hint of the significance of proximity concerning the legitimacy of law as administered by the courts. It thus appears plausible to turn this significance somewhat around into the perspective of ‘the other’ understood as the parties to the litigation. The point could then be reformulated as follows: justice is only being experienced as being done in proximity. If we hold that the legitimacy of law is inextricably linked with justice, proximity accordingly appears to be fundamental for the legitimacy of law. III CONDITIONS

OF PROXIMITY

After having laid out a Levinasian understanding of proximity, I now intend to consider more concretely how proximity develops.

5

James, Pli 18 (2007), 84–107. Ibid., 85.

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Everyday experience shows us that not every mere sensing of a face in its physical, anatomical appearance constitutes proximity in the Levinasian sense. That would make walking down a busy pedestrian street or addressing a bigger audience unbearable. Accordingly, there must be some factors, which have an effect on whether or not proximity happens – factors which, such as linguistic, cultural, and social closeness, cannot necessarily be associated with Levinasian proximity. Those factors, which influence proximity in the legal situation, are, on the one hand, the subjective attitude or disposition of the involved legal actors, not least the judge. This, I will briefly touch upon in a moment. On the other hand, there are more objective factors such as whether or not the legal actors involved are present in the same room, whether the legal actors use a common language, whether the procedure is written or oral, whether the parties and other legal actors share a common cultural background, whether they are familiar with the legal traditions, etc. The physical environment of the litigation also is significant, e.g. the furnishing of the court room and the architecture of the court house as well as the attire of the judges. Do they wear cloaks or civil – even casual – clothes? Do they wear wigs? Etc. Concerning physical co-presence, there is little doubt that physical closeness is important for proximity as sociality stems from the presence of other human beings. This certainly is also the case for Levinasian proximity, which is founded in the apparition of the face of the other. It should be noted that Levinas is not the first to realize the significance of the face. The face of the other with its ‘windows of the soul’ has always been regarded as essential for creating genuine contact. Similarly, the sound of the other’s voice is important. Not only because the voice articulates words but also due to the range of supplementary aspects such as intonation, pauses, sighs, etc., which signify beyond the mere words. The combination of seeing and hearing is particular forceful as speech and other audible signals are supplemented by gestures and mime.6 This testifies to the communicative difference between the spoken and the written word and may thus be seen as a possible reason for principles such as that of oral proceedings and the right of an accused to speak out. The possibility of communicating statements to each other is of course of paramount importance. It would be detrimental to proximity if I can see and hear the other without being able to make myself heard. As suggested by Paul Ricæur, the narrative identity is of decisive importance for our experience of having a self and our access to enter into an ethical relationship.7 For such a narrative identity to evolve, one must have access to expressing oneself. Accordingly, it will influence the significance of the presence of a party negatively if he can never be heard. Levinas emphatically puts it like this: “Justice is a right to speak.”8 Due to the importance of communication, it is essential that the legal actors understand each other’s language. This is not only a question of speaking the same national language. They must also be able to understand the particular vocabulary and jargon. The significance of this is reflected in the official language policy of the Danish courts: everyone, who is addressed by the courts, should easily be able to 6 7 8

K.E. Løgstrup, Vidde og prægnans, 1976 (in Danish). Paul Ricæur, Oneself as Another (translated by Kathleen Blamey from Soi-même comme un autre), 1994. Emmanuel Levinas, Totality and Infiniti (translated by Alphonso Lingis from Totaite et Infini), 1969, 298.

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understand all texts whether judgments, letters, or guidelines.9 The right to assistance by a translator in cases where a party does not master the language of the court obviously is important for ensuring or enhancing proximity and for the legitimacy of the proceedings. But communication through a translator can never be anything but a poor substitution for direct communication between the party and the other legal actors, including the judge. Whereas the significance of sight and hearing appears to be undisputed, the significance of physical presence in its own right is harder to establish. A significant attempt to grasp this significance was made by the phenomenologist, Maurice Merleau-Ponty. He argues that not only the sense of feeling is rooted in the body, also the other senses such as seeing and hearing cannot be understood properly without reference to the body. For one to see, one must be visible. For one to hear, one must be audible.10 In a later work, Merleau-Ponty introduces the concept of the flesh as a generalized expression of something that at the one and same time is sensing and sensible.11 In the final analysis, the body is not only present as a physical object occupying a well-defined space. It is also a presence of sensing. Other circumstances such as a common or similar cultural background and familiarity with the relevant legal culture may play significant roles in ensuring proximity. Also the legal situation itself may contribute to the proximity. Litigation thus often steps in when there is no more contact between the concerned parties whereby law creates contact in situations otherwise characterized by distance. Furthermore, to the extent that proximity evolves between each party and the judge, this will probably imply a certain proximity also between the individual parties even if proximity is not a transitive relation in a strict sense. The one question that more than any other question appears to divide the Levinasian commentators concerns the significance of the subjective attitude or disposition of the involved actors. Is the individual in some way obliged to see the otherness of the other and to let himself be influenced by – with the terminology of Levinas – the epiphany of the face? As I read Levinas, his philosophy contains or implies no such obligation. On the contrary, such an obligation would be entirely incompatible with the radical passivity in which I approach the other. It seems, however, inevitable that the context of a situation and perhaps the general mood of an individual can be decisive for whether or not he truly ‘sees’ the face of the other. In a legal context, proximity can be advanced by staging facilitating situations and to create suitable circumstances. This includes ensuring that the legal actors – especially so the judge – have the best possible prerequisites to be receptive to the other as absolute other, to proximity. In a busy urban life, people develop an ability to fence off the presence of others, especially so when their appearance offends us or we associate it with potential trouble.12 For proximity to thrive in law, it is of paramount importance that such tendencies are neutralized.

9 10 11 12

Domstolsstyrelsen, “Sprogpolitik”, Version no. 1.0, 17 juli 2008 (in Danish). Maurice Merleau-Ponty, Phenomenology of Perception (translated by Colin Smith from Phénoménologie de la perception), 1962. Maurice Merleau-Ponty, The Visible and the Invisible, Followed by Working Notes (translated by Alphonso Lingis from Le Visible et l’invisible, suivi de notes de travail), 1968. Lyn H. Lofland, A World of Strangers, Order and Action in Urban Public Space, 1973.

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IV WHAT

IS THE SIGNIFICANCE OF PROXIMITY IN LAW?

In a legal situation without proximity we would be concerned only with facts. In a hypothetical case this might include the age and profession of the parties A and B, their relation, the amount of money paid, the content of the written contract, etc. The outcome of the case would be determined by the relevant legal sources – written law, precedence, customary law, legal literature, etc. – applied in accordance with the principles of ‘legal methodology’ to the facts of the case. If, for lack of better words, we characterize this as ‘the formally and abstractly correct result’, the just result could be understood as the formally and abstractly correct result ameliorated by proximity. This would accord with the Levinasian understanding of justice as presupposing proximity, which again signifies the responsibility that happens in the contact with the other. In this view it therefore is of indispensible importance that the judge and the parties are all present during the hearing of a case and that other relevant facets of proximity are facilitated. Otherwise, we risk that justice will remain illusionary and the legitimacy of the decision will be impaired. On a more abstract level, the significance of proximity can be seen as the need for law to meet with non-law. In other words: law is confronted with – and thus enriched with – something that is not law. Within the homogeneity of the legal domain, as it would appear without proximity, such heterogeneous elements could never be understood or thematized. It is in proximity that law steps beyond being a political tool and technique and grasps the ‘real’ world. 13 The legitimacy of the law and the courts is important for the functioning of the State. On the other hand, the responsibility of the one for the other and thus the ethical basis of our actions towards each other imply an independence of the State and its reason. Actions based on proximity are not understandable in the optic of the raison d’état. The appearance of something in law that is other than law, something non-law, tends to be conceived as problematic by the State and the State inherently responds. As phrased by Zygmunt Bauman, “the organization’s answer to such autonomy of moral behaviour is the heteronomy of instrumental and procedural rationalities.” Therefore, according to Bauman, “[a]ll social organization consists […] in neutralizing the disruptive and deregulating impact of moral impulse.”14 In this perspective, the courts can be seen as openings (as the eyes of the face) of the State towards the non-State. It is in this proximity that the separated state makes contact. Even though the State may protect its reason against this contact with nonState, such proximity is essential for the State if it shall not be caught up in totality and thus become totalitarian. The courts are not the only openings of the State but in regards to the legal reason of the State, they are essential. Especially so since they, unlike the two other state powers (the legislative power and the executive power), are not – at least in principle – ultimately controlled by the representative assembly and its state apparatus. Given this exposure to the non-state, it cannot surprise that it is possible to identify numerous means by which the State attempts to exercise control over and invest state reason in the activities of the courts. 13 14

Joseph Libertson, Proximity, Levinas, Blanchot, Bataille and Communication, 1982, 10 f. Zygmunt Bauman, Postmodern Ethics, 1983, 124 f.

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As a topical example from Danish criminal law one can mention the seemingly increased use of detailed specification of what sentence should be passed in different categories of cases. Not surprisingly, however, it is within administrative law that the State has it’s perhaps most effective means of extending its reason into the domain of the courts. This is inter alia done using the fundamental principle according to which the administrative decision-maker has a scope of discretion within which the decision cannot be tried by the courts. Other examples of the extension of State reason into what could otherwise be regarded as the field of competence of the courts can be identified within family law as well as – to a surprising extent – civil law. As a – yet another Danish – example one can mention the strict liability within liability law when the defendant (i.e., the tortfeasor) has neglected to observe relevant public law regulations. V CHALLENGES

AND PERSPECTIVES IN TODAY’S LEGAL WORLD

From a Danish perspective, one can appreciate a tendency within the courts towards creating better conditions for proximity. Probably, there is a similar tendency in many other European countries. New court houses are designed to make its users feel more welcome, the court rooms are designed to create less distance between the judge and other legal actors, emphasis is placed on using an everyday language in the courts’ communication with litigants and others, etc. At the same time, however, many practices that create distance rather than proximity probably persist without any significant reason and perhaps with out any awareness of their effect. Furthermore, the concern for creating more efficient courts for the sake of lower costs has led to different resource-saving initiatives. This often happens at the expense of proximity as when, for instance, the presence of an accused is made nonmandatory in different kinds of cases and as less time is assigned for the individual case. Furthermore, there is an increased use of electronic communication by means of audio-visual equipment such as videophones, which may well have a bearing on the proximity. On the other hand, in a World where an increasing proportion of all communication takes place via electronic telecommunication and where virtual spaces are increasingly used for social activity, proximity may take on new forms. Thus, what might have been viewed as impeding proximity in the middle of the 20th century, when Maurice Merleau-Ponty reflected on perception and the flesh, may in the future – or, for younger people, perhaps already today – be perfectly consistent with proximity. And further: new technology used wisely may make proximity attainable where physical co-presence is impossible. This is particularly important in a World with great mobility and migration. Taken together, it appears that new technology can have positive as well as negative impact on proximity in the courts. The increased migration and general mobility of people has led to more multicultural societies with big minority groups. The stability of such societies depends on the State institutions maintaining their legitimacy – also in the eyes of the minority groups. This is a particular concern for the courts as lack of legitimacy may lead to the use of alternative ways of settling disputes and to a sense of injustice when criminal cases are decided. One way of trying to counteract this risk is to train judges

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and other court personal in handling cultural, ethnic, and linguistic differences. Parallel to the widespread realizations within various national police forces, the courts could consider to encourage the involvement of a representative section of the population. Finally, it should be noted that the increasing significance of international and supranational law appears to pose a distinct threat to proximity in law. In the EU, the concern for this development is reflected in Article 5 of the EC Treaty, which lays down the principle of subsidiarity. The language regime ensuring that all official national languages are also official languages of the Union likewise supports the notion of proximity. In the perspective of proximity, these principles are mainly relevant concerning EU legislation whereas the policy makers of the EU appear less concerned with ensuring proximity in relation to litigation. In the future, increased globalization and regionalization will increasingly push such questions up the agenda.

VAIDOTAS A. VAIČAITIS CONCEPT

OF LAW IN

BIBLICAL

NARRATIVE

According to Charles Montesquieu (1689–1755), who was one of the first modern legal comparativists, law and religion have very similar functions – to guarantee morality, peace and tolerance in the given society. If a religion may not guarantee all this, it has be done by law and other way around1. In the XXth century relationship between law and religion was taken into account first of all by philosophy2 and sociology (e.g. Max Weber), but in recent years also science of law had an ambition to say something about it3. Paul Ricoeur’s (1913–2005) ideas about looking for sources of evil in various narratives of ancient civilizations, including biblical stories and Greek mythology, inspired me to apply the same method in searching for the sources of the concept of law. This method helped me in better understanding the very origins of the modern concept of law and deserves to be developed further. First, it should be noted that already in the Old (or First) Testament, especially in the Torah, we can find many different kinds of rules. For instance, relying on Ex 20–23 rules may be grouped into two different categories: casuistic and apodictic. “Casuistic law” applies rules and sanctions to very concrete cases: concerning relationships with slaves, punishment for different wounds and injuries, compensation for various thefts etc. On the other hand, the Prophetic books contain some critique for static and formal application of the Torah’s casuistic rules (e.g. Ex 22, 20; 23, 9–12). The latter rules are proclaimed in the name of God and do not hold any sanctions. Frank Crüsemann considered these commands to be apodictic meta-norms or principles4. But this classification of rules does not help us to understand the very notion of law. In reconstructing the concept of law, I decided to look at the biblical story on “original sin” (Gen 3), because it is one of the oldest narratives of our civilization and rather similar narratives may be found in various different cultures. In this story we already observe the establishment of certain rules, their interpretation, violation and punishment. Thus, this narrative may also be interpreted as a legal story. In my opinion this story illustrates the very heart of the origin of the concept of law. 1. First of all, in this narrative we find certain rules of human behavior: God said, ‘You shall not eat of the fruit of the tree that is in the midst of the garden, neither shall you touch it, lest you die’ (Gen 3,3). Here we find some rules prohibiting or limiting certain behavior. These rules do not intend to regulate all possible types of human behavior, but appear when certain limits of this behavior are necessary. Moreover, these limits and prohibitions are not arbitrary but are justified by human needs – ‘you shall not eat … lest you die.’ In other words, the aim of these rules are directed to persons. Here law is not only instrumental in narrow sense, for it does 1 2 3 4

Montesquieu. Esprit des lois. Paris, librairie de Firmin Didot Frères. 1856. E.g. see an interesting collection in Annuario Filosofico Europeo. Diritto, giustizia e interpretazione. Biblioteca di Cultura Moderna. Laterza. 1998. see e.g. collection of articles “Deconstruction and the possibility of justice”. Routledge. 1992. Joseph Ratzinger. Jesus von Nazaret. Libreria Editrice Vaticana. 2007.

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not treat a human being as a mean, but serves for his/her welfare. It has to be said that the concept of law as a set of rules prevails in contemporary legal thinking (at least in civil law traditions). 2. Another feature of law, which we may grasp from the said story is authority and the legitimacy of this authority. The rules are established by God, who has the highest authority in this story and who does not need to justify his rules. ‘The serpent’ in the narrative does not have the same authority for it cannot establish the rules, but only raise questions about them. In contemporary Western legal traditions all public power has to come from the highest authority, which should have sovereignty (and which does not need to be justified) and has even some sacral features (think of the people, a parliament or a monarch). These bodies are supposed to have the highest authority through the concept of sovereignty, which in turn has theological roots. Moreover, the monarch can probably be directly related with sacral authority, but in a contemporary democracy also the parliament can be sacralized in a certain way (e.g. Lords Spiritual are members of the British Parliament). 3. Law has to be promulgated according to the said narrative. Rules are not only announced and promulgated publicly, but have to be clear and unambiguous. Therefore, the rules of human conduct are not to be only justified by the legislature, but should be rationally comprehensible. It is worth mentioning that the requirement of public promulgation of law and that law should be clear and comprehensible is among the commonly accepted principles of modern concept of law. 4. Another aspect of law, which I would like to mention is its founding nature. A new realty is founded by a word-logos: the prohibition to eat the fruit created completely new order or realty, which did not exist before and which may not later be ignored. Well-known principle nulla poena sine lege may be grasped from this act of prohibition in the narrative. At the same time a law paradoxically is beyond the time, for it appears together with human being and it is not possible to grasp the very moment of its origin. It sometimes operates retrospectively from the future perspective. This aspect of law can be seen in a newly adopted Constitution or, for instance, in a custom which does not have a clear source and a definite time of birth. This retrospective performative aspect of law was analyzed by the French philosopher Jacques Derrida (1930–2004) in his “deconstructive” theory of justice5. 5. In looking at the nature of law we also have the possibility of interpretation: the serpent interprets the prohibition to eat the fruit. Here we can see that the law is immanently related with its interpretation, for it may not be found in the same way as objects of nature. It is commonly accepted that the modern concept of law (together with the concept of justice) may not be understood without the interpretive activity of judicial power and legal scholar. Although the meaning of the rule may be seen through glasses of certain tension between different possible significances, but in all cases the interpretation of rules has to be grounded on some reasonable methods, which may not arbitrary lead to opposite meaning of the word6. The fa-

5 6

Jacques Derrida. Force of law: “The Mystical Foundation of Authority”. In “Deconstruction and the Possibility of Justice”. Routledge. New York. 1992. p. 3–29. According to Maria Gimbutas, existence of the serpent and its efforts to give different meaning towards some established rules in the said story, shows certain possible conflict between new and more ancient religious narrative. See Marija Gimbutas. Goddesses and Gods of Old Europe.

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mous idea that we have Constitution as much as it is officially interpreted by the courts is commonly accepted. 6. In the said story, law appears from one side as the rules of common behavior (Adam and Eve represent all humanity), but from the other side also contains some aspects of individual or personal responsibility and accountability. Adam and Eve are personally responsible for their activities according to the degree of their guilt. Therefore, the component of guilt-punishment is shown by the banishment from Paradise. As we see from the narrative, the punishment is closely connected with violence. Here we see the law’s efficiency and inevitable responsibility as important principles of law. But we also note a certain paradox of law: on the one hand, it creates some rules, but on the other – it also creates the very possibility to break these rules. In other words – law creates the possibility of unlawfulness. Today, nobody questions the general and universal character of law or doubts personal accountability and efficiency as indispensable parts of its character. But it is not popular today to talk about the law’s relationship with violence, especially when we are dealing with criminal law, for the latter emphasizes the re-socialization of the convicted, but not his/ her punishment. But indeed, without the recognition of punishment and violence as important characters of law we may not reach our modern objectives of criminal law. 7. Here we may also mention the law’s performative character, which can be seen in the said biblical story. Law does not function by itself, but has to be put into practice by someone. In our case – the prohibition requires not only one’s abstention from action, but also – some concrete positive action. This idea can be found in the letters of St. Paul, where he says that the “righteous before God” are not those who just hear the law, but those who obey it (Rom 2, 13). This idea is also found in Franz Kafka’s “The Trial”, where it is shown that law only functions when it is personally realized7. 8. In this narrative we also see that law is related with morals. According to Kant law (through prohibitions) determines certain limits of human behavior and establishes rules of moral minimum. I would like to note that although legal positivism still tries to detach law from morals, a majority of theories of law today recognize at least some relationship with morals. Here we may also recall Kant’s categorical imperative, which may be also explained as a moral principle justifying law: you should act only according to a maxim which at the same time could become a universal law (norm). Law’s relationship with morality is also connected with confidence towards legal order. Law may not be enforced only from above, it requires a certain degree of loyalty and good will.

7

1974. Quoted from Marija Gimbutienė. Senoji Europa. Mokslo ir enciklopedijų leidykla. Vilnius. 1996. p. 184. Franz Kafka. Der Prozess. Frankfurt am Main und Hamburg. 1960. On the other hand it is interesting to mention here one Chinese philosopher’s assertion that “passive Golden Rule” (do not do others what you would not want others to do unto you) routed in Judaism and Confucianism is more welcomed in processes of dialog than Christian-routed “active Golden Rule” (doing unto others what you would like others to do unto you). Tu Weiming. Cultural diversity, intercivilizational dialog, and harmony – a Confucian perspective. In Plenary session papers. IVR 24th World Congress in Beijing. Global harmony and rule of law. p. 43.

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9. In the said biblical story we may also observe a certain mysticism: it is not explained why the fruits of one tree are poisonous. As Montaingne has stated, the mysticism of law as a duty to follow the rules occurs not because they are just, but because they are the laws8. Moreover, every public authority tries to legitimize itself by a certain mysticism or myth: the divine concept of monarchy, a nation’s history and traditions or sovereignty of the people. Relying on Montaigne, Derrida asserts that the mysticism of law reveals itself especially in a (legal) custom: no one knows the origin of a particular custom, but everyone follows it because of the tradition. 10. In the end of this legal reconstruction of the said narrative I would like to mention that justice is one of the main aspects of law. The concept of justice, which we find in the said biblical story may be opposed with the ‘formal’ justice of Greek myths or even of other biblical stories, where the Talion principle of an ‘eye for an eye’ prevails. But the story of ‘original sin’ may be interpreted in the way, that God for the sake of mercy and compassion breaks his own law: promised capital punishment is ‘substituted’ by exile or by ‘life imprisonment’. Here we see that this kind of justice let us even to break the law or to go beyond it. In this context we may mention the act of grace born in the monarchies already in the Middle Ages, which is used even in contemporary democracies. Moreover, we can recognize the principle of re-socialization here: a man is exiled in order to be ‘re-formed’ and so that his guilt would be redeemed. In this story justice emerges as a meta or extra legal category, but its meaning is revealed rather by via negativa and not as a certain metaphysical definition. In summarizing this short survey one may note that the essential characters of contemporary concept of law are to be founded in the biblical narrative of original sin. Looking at law through the glasses of this biblical story helps us not only to note the ‘unlawful’ character of law, but also to find two extra-legal sides of law: justice as law’s interior side and violence as its exterior side. As Pascale noted, law without justice becomes arbitrary, but justice without force and violence is inefficient 9.

8 9

Cited from Jacques Derrida. Force of Law: The “Mystical Foundation of Authority”. In Deconstruction and the possibility of justice. Routledge. New York. 1992. p. 11–12. Quoted from Jacques Derrida. op. cit. p. 12–13.

HIROHIDE TAKIKAWA PARTICULAR POLITICAL OBLIGATION

AND

UNIVERSAL LEGAL DUTY1

Do we have a duty to obey the law and if so, why? Since Socrates, many attempts have been made to explain and justify our duty to obey the law. The social contract theory is one classical answer to this question. This paper aims to elucidate and examine the core of the question of whether we have a duty to obey the law. In order to identify the point of the question, this paper starts by examining political obligation. I then consider whether there is any difference between political obligation and the duty to obey the law. Finally, it is shown that there exists a moral duty to obey the law, which is not particular. I POLITICAL OBLIGATION DEFINITION Thomas H. Green once defined political obligation in his classic Lectures on Principles of Political Obligation as “intended to include the obligation of the subject towards the sovereign, the obligation of the citizen towards the state, and the obligations of individuals to each other as enforced by a political superior”.2 A. John Simmons asserted in his research on political obligation that it is “an obligation to ‘support and comply with’ (to use John Rawls’s phrase) the political institutions of one’s country of residence”.3 In simple terms, a political obligation is generally considered an obligation toward one’s polity (police), typically one’s state. The concept of political obligation is in contrast with that of moral duty. Political obligation refers to a context in which an individual who belongs to a polity has a special obligation to one’s polity or one’s fellow citizens, whereas moral duty refers to a context in which every person owes a general duty to one another. In other words, political obligation is an obligation that is owed to a state by its citizens, rather than moral persons. By way of example, on one hand, the obligation “you ought to keep a promise” is a moral duty, and every moral person has a duty to keep such a promise. On the other hand, “you ought to protect Japan” is a political obligation, and only Japanese people would owe an obligation to protect Japan. This is the dichotomy between particularity and universality.

1 2 3

This research was funded by Grants-in-Aid for Scientific Research (C) 20530010 and (C) 20530015 from Japan Society for the Promotion of Science (JSPS). Thomas Hill Green, Lectures on the Principles of Political Obligation, ed. and intro. by Dario Bagnoli. Newcastle: Cambridge Scholars Publishing, 1895 [2002] p. 1. A. Johan Simmons, Moral Principles and Political Obligations. Princeton: Princeton University Press, 1979, p. 5. Simmons upholds this definition in his new book Political Philosophy. Political obligations are normally understood by philosophers as “such general moral requirements to obey the laws and support the political institutions of our states or governments, requirements that are usually thought to bind (nearly all) citizens (and other subjects) of (nearly all) modern states” (Simmons, Political Philosophy, Oxford: Oxford University Press, 2008, p. 39).

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This contrast displays an implicit assumption about morality and politics. The moral world consists of persons, and human beings as persons belong to a moral community. The idea of universality is an essential element of morality, and one that permeates the moral world, as is typical of Kant’s categorical imperatives. Conversely, the political world consists of citizens. A fundamental distinction in politics lies between friends and enemies, or between ‘we’ and ‘they,’ as Karl Schmitt once expounded.4 In this sense, the idea of particularity is an essential element of politics. It is impossible to speak of politics without such a particularity as ‘our country’ or ‘we the people.’ Under the assumption of the discrepancy between morality and politics, theories of political obligation address the issue of whether a special duty is owed to the state in addition to a general duty to act morally. Can we justify the state as particularity by morality as universality?5 THE PARTICULARITY REQUIREMENT Simmons maintained that “we are only interested in those moral requirements which bind an individual to one particular political community, set of political institutions, etc.”6 He referred to these requirements as “the particularity requirement.”7 The requirements are elucidated by examining the principle that one has a duty to comply with the decisions made by a just state. This principle is not in reference to political obligation in a strict sense; it does not meet the particularity requirement as it implies that one owes a duty to many states as long as they are just. Simmons proceeds by stating, “we need a principle of political obligation which binds the citizen to one particular state above all others, namely that state in which he is a citizen.”8 Such an unparticularized universal principle, as mentioned above, is inappropriate as a theory of political obligation. Examining the duty to obey the law owed by aliens would clarify the scope of the particularity requirement. John Locke once wrote that “[t]hey [i.e., Laws] speak not to him [i.e., an alien], nor if they did, is he bound to hearken to them”.9 Aliens in this context refer to those who reside in a state’s territory outside of their home country. If laws aim to achieve justice, should not such laws cover also the aliens in their reign? Laws do not speak to aliens because political obligation is allegedly particular. Suppose that there are only two states, X and Y, in the world. X’s citizens owe political obligation to X; Aliens in X, i.e. Y’s citizens, have the duty to obey Y’s law, but not X’s. 4 5

6 7 8 9

Carl Schmitt, Der Begriff des Politischen. München: Duncker & Humblot, 1932. I understand that a political obligation is a kind of moral obligation (see: R.M. Hare, Essays on Political Morality. Oxford: Oxford University Press, 1989, p. 8). That is to say, we examine a political obligation as far as it is justified by a moral reason. We put aside the question of whether a political obligation is required for a prudential reason. Simmons, Moral Principles …, cit, at p. 31. Ibid. Ibid. John Locke, Two Treatises of Government, edited with an introduction and notes by Peter Laslett. Cambridge: Cambridge University Press, 1698 [1988], II, 9, p. 273.

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The particularity requirement applies to the duties owed to our compatriots, as well as to the duties owed to our state. It is commonly supposed that we have a special obligation to our fellow citizens, such as a special duty to assist ‘our’ poor people, and we must give priority to ‘our’ needy over other needy people. The particularity requirement, or at least the priority requirement, thus holds true in assistance for the poor. II THE DUTY

TO

OBEY

THE

LAW

We now examine the duty to obey the law, which I refer to as the ‘legal duty,’ though I admit that it might be more or less misleading.10 It is far from clear what a ‘legal duty’ is because it depends on what we think ‘the law’ is. At the outset, legal duty should be compared with political obligation. Are there any differences between them, and, if so, what? This question is more complex than it first seems to be. A simple answer asserts that extensions of the two concepts are the same. With this understanding, political obligation is an obligation to obey the command issued by a legitimate political authority. As far as we regard ‘the command issued by a legitimate political authority’ as the law, as the sovereign command theory asserts, political obligation is an obligation to obey the law. There remains only a slight terminological difference between legal duty and political obligation. Simmons criticizes this answer and suggests that political obligation is closely connected with the notion of citizenship, and has often been thought of as something like an obligation to be a good citizen.11 For instance, to make the effort to defend our own country is an important component of our political obligation even if not required by law. Political obligation thus includes something more than legal duty. This approach regards legal duty as a part of political obligation. Contrary to Simmons’s approach, the extent of legal duty surpasses that of political obligation in some areas. For example, the duty to obey international law, if we owe such a duty, reaches beyond obligations to a particular state. We should therefore conclude that the notions of political obligation and that of legal duty are different, though they have the same logical extensions. LEGAL DUTY BY ALIENS A question then arises: what is the difference between the two? It is in the particularity requirement that we should find the answer. In simple terms, legal duty is not particular, while political obligation is particular. The duty to obey the law does not, pace Simmons, meet the particularity requirement. Examining the legal duty by aliens, it is clear that we have the duty to obey our own country’s law. In addition, it is widely acknowledged that aliens have the duty 10 11

A “Legal duty” does not include duties stipulated by laws. Rather, it is a moral duty to obey the law. The term “legal duty” in this paper should be thought of as shorthand. Simmons, Moral Principles …, p. 5.

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to obey their host country’s law.12 None disagree with John Locke’s claim that anyone within the territories of a government has a duty to obey the law.13 For instance, a Japanese citizen has a duty to obey Japanese law as a Japanese citizen and Chinese law during a stay in China. This implies that legal duty does not meet the particularity requirement as we do not owe a special duty to our own state. Some might make an objection against my argument. Aliens comply with the host country’s law because they might be punished if they do not. They obey the law not because it is morally required but because it is prudentially compelled. Citizens have a moral duty to obey the law, whereas aliens have only a prudential reason to obey the law. This objection, however, misses the point. The fact that aliens do not have a moral duty to obey the law means that in breaching the law, they cannot be morally criticized, whereas they can be legally punished. However, those aliens who act against the law should be morally criticized, as well as those citizens who do the same thing. For example, an alien who intentionally possesses marijuana in Japan is morally blameworthy to the same extent as a Japanese citizen who does so. Even if he makes a plea of ignorance, ignorantia juris neminem excusat (ignorance of the law excuses no man) holds in principle. In some special cases where such a plea is effective, those citizens who are as equally ignorant as him are not blameworthy. This means that he is not morally blameworthy – not because he is an alien but because he is simply ignorant. We must therefore conclude that aliens also have the duty to obey the law regardless of the particularity requirement. Simmons’s argument that situates legal duty as a component of political obligation which meets the particularity requirement therefore fails. We can justify this conclusion by appealing to Kant’s legal theory. III GLOBAL JURIDICAL STATE Immanuel Kant regards ‘a state of nature (status naturalis)’ as “a condition that is not juridical, that is, a condition in which there is no distributive justice”.14 A juridical state, compared with the state of nature, is stipulated as “a relation of human beings among one another that contains the conditions under which alone everyone is able to enjoy his rights”.15 Kant argues that the law in the state of nature is private law.16 Private law in this context does not follow modern usage. The term ‘private law’ as Kant uses it does not mean the law that covers a relation among private persons (the law in this sense Philip Soper, A Theory of Law. Cambridge, MA: Harvard University Press, 1984, p. 63. Locke, Two Treatises …, II, 119. Immanuel Kant, Die Metaphysik der Sitten. Frankfurt am Main: Surkamp. 1797[1977]Ak. VI 203– 493, at p. 306. 15 Ibid. It is interesting to note that the term “a juridical state” by Kant was translated into Rechtsstaat (a legal state) by Johann Wilhelm Petersen in 1797 (see: Sharon B. Byrd and Joachim Hruschka, From the State of Nature to the Juridical State of States. Law and Philosophy 27: 599–641, 2008, at p. 607). This implies that the following argument leads us to the realms of Rechtsstaat or a rule of law. 16 Kant, Die Metaphysik der Sitten, at p. 242. 12 13 14

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is called ‘public law’ by Kant), but means the law that each individual judges and enforces on one’s own. From private law in the state of nature proceeds the postulate of public law. Kant states, “When you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a juridical state, that is, a state of distributive justice.”17 To go from the state of nature into a juridical state is our duty. Moreover, Kant makes a definite statement that “each may impel the other by force to leave this state [i.e., the state of nature] and enter into a juridical state.”18 The point is to illustrate a juridical state in a more accurate and concrete manner. Kant distinguishes the juridical state into three stages.19 Among them, a juridical state of the individuals under a constitution is called a civil state (status civilis), or simply a state (civitas).20 That it is our duty to leave the state of nature and enter into a juridical state thus means that it is our duty to enter into a civil state or a state. It is neither our liberty nor our right to make a social contract and establish a state; however, it is our duty. We do not make a social contract to maximize our own interest.21 The civil state, however, is indeterminate and incomplete. This is shown in Kant’s writings on the acquisition of land: “Even if it is solved through the original contract, such acquisition will always remain only provisional unless this contract extends to the entire human race.”22 It is insufficient to reach a juridical state with just one state. A single state is an incomplete juridical state, which might be called the state of half nature. Kant then follows: Since a state of nature among nations, like a state of nature among individual human beings, is a condition that one ought to leave in order to enter a juridical state, before one enters a juridical state, any rights of nations and anything external that is mine or yours which states can acquire or retain by war, are merely provisional. Only in a universal association of states (analogous to that by which a people becomes a state) can rights come to hold conclusively and a true state of peace come about.23

It is our duty to leave the state of half nature as is the case that it is our duty to leave the state of nature. It is after going from the state of half nature into an association of states that we can finally arrive at a complete juridical state. In summary, we cannot reach a complete juridical state within a single state. A juridical state in a civil state is incomplete. The idea of law requires a global juridical state. That is to say, legal duty is the duty to reach a universal juridical state rather

Ibid at p, 307. Ibid at p. 312. Ibid at p. 311. The other two include a law of nations (ius gentium) and a cosmopolitan law (ius cosmopoliticum). Following Kant, Hegel made a severe criticism against the social contract theory. He wrote that “a state is reasonable … Hence, supreme duty of individuals is to be a member of a state” (Georg Wilhelm Friedrich Hegel Grundlinien der Philosophie des Rechts. Frankfurt am Main: Suhrkamp 1821 [1986] sec. 258). This means that to enter into a state is not at liberty of each person but a duty based on reason. The social contract theory tries to justify the state with the logic of contract because it emphasizes individual liberty, but it causes instability of the state and exposes individual liberty to danger. 22 Kant, Die Metaphysik der Sitten, p. 266 (Takikawa’s emphasis). 23 Ibid, 350.

17 18 19 20 21

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than the duty to follow one’s own country’s law. The conclusion is that the particularity requirement does not meet legal duty. What follows from the examination above is a sharp distinction between particular political obligation and universal legal duty. Legal duty has traditionally been under the spell of the particularity requirement through Simmons’s overwhelming influence. It is now the time to break the curse and declare the universality of legal duty. IV THE STATE

FOR A

GLOBAL JURIDICAL STATE

The pivotal question is, does political obligation have no connection with legal duty at all? Does it show a writer’s insensitivity and carelessness to use the terms interchangeably? ‘No,’ would be my answer. The point is the relation between a state (a civil state) and a juridical state. Let us take Kant’s path in reverse to see this point. In order to reach a complete juridical state, it would be sufficient that all the people throughout the world reach a global social contract at once. The world state (cosmopolis) would then come into being, and each particular state would be unnecessary. Kant does not, however, argue along these lines. Rather, he admits that a state has its own significance as an intermediate stage to go from the state of nature to a global juridical state. Jeremy Waldron explains the reason why Kant does so in the following way: Since no one can afford to wait until all possible conflicts arise so that all can be definitively settled at once, the Kantian approach implies that I should enter quickly into a form of society with those immediately adjacent to me, those with whose interests my resource use is likely to pose the most frequent and dangerous conflicts.24

Since it is difficult to bring about a global juridical state at once, it is necessary to reach a civil state as a provisional juridical state. In simple terms, a state is regarded as a necessary way to reach a complete juridical state. From this argument, we can reach the conclusion that political obligation is required in order to discharge legal duty. In other words, the duty to our state is a useful means to the duty to law. Political obligation does not have its own significance, but rather it bears importance to some extent in that it is necessary to discharge the duty to reach a juridical state. This implies that there is no political obligation that contradicts legal duty. Therefore, we owe no political obligation to such a state that is inconsistent with the concept of a juridical state, i.e. a failed state which is no doubt the state of nature or a state which lacks distributive justice.25 We can put the conclusion in another way by using the contrast between ‘law’ and ‘laws.’ Ronald Dworkin once distinguished law, laws, and the law.26, in that Jeremy Waldron, Special Ties and Natural Duties. Philosophy and Public Affairs 22(1), 1991, p. 3–30, at p. 15. 25 In general, a particular duty is regarded as a useful instrument to discharge universal duty. As for the universal duty of assistance, I discuss the same lines in Hirohide Takikawa, Can We Justify the Welfare State in an Age of Globalization: Toward Complex Borders. Archiv für Rechts- und Sozialphilosophie, 92(1), 2006, p. 14–27. 26 Ronald Dworkin. Introduction, in: The Philosophy of Law, ed. R.M. Dworkin Oxford: Oxford University Press, 1977) 24

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‘law’ is a distinct and complex type of social institution, ‘laws’ are distinct types of rules or other standards having a particular type of pedigree, and ‘the law’ is a particular source of certain rights, duties, powers, and other relations among people, which are presented by propositions of law. The contrast between the former two is relevant here. We may recapitulate our argument by using the distinction: legal duty is the duty to obey ‘law’; political obligation is the duty to obey ‘laws.’ As law is an abstract idea, it therefore depends on how we elaborate upon and incorporate it. We divide into several groups and establish a state, which undertakes the task of realizing the idea of law, that is, to make laws as they can be. Laws in each state can be considered exemplifications of the idea of law. We have a moral duty to obey laws in so far as they can be understood as an illustration of the idea of law. Since each state is assumed to be an incorporation of law, we have a pro tanto reason to obey the laws. The converse is that we have no duty to obey laws that contradict with the idea of law.

II HARMONY, RULE

OF

LAW,

AND

CHINESE LEGAL PHILOSOPHY

ZHOU YUN CIVIC SPIRIT: THE POLITICAL-LEGAL CULTURAL BASIS OF RULE OF LAW AND HARMONY Ever since the May 4th Movement of 1919 China has advanced on the road to revival – which has been described by Li Zehou as ‘the double orchestra of enlightenment and salvation’1 – and made great progress, especially in the 30-year period of Reform and Opening-up. However, it is undeniably true that China as a whole is now still a developing country, or, in political terms, ‘still in the primary stage of socialism and will remain so for a long time to come’,2 which means that ‘modernization’ still remains an ‘incomplete project’ in China. Therefore, a dimension of modernization should be added to the construction of ‘a harmonious society’. In addition, as one scholar has observed, ‘Since the late Qing dynasty China had been struggling to reestablish a collapsed social moral-ethical system and had almost succeeded in this intention when the rise of market economy and consumer society as well as the influence of mercantilism defeated its purpose. Difficulties of reconstruction are real and enormous.’3 It means that it is impossible to reconstruct or revive certain culture from traditional Chinese society to make it serve as the basis for contemporary Chinese society, for the cultural basis of traditional Chinese society has already collapsed. Moreover, China should not and actually cannot for long isolate itself from the (inexorable) trends of globalization. A new culture ought to and has to be created as the cultural basis of contemporary Chinese society by drawing lessons from the experience of other countries. Thus, the meaning of the term ‘harmonious society’ presently emphasized by the contemporary Chinese government must be changed from its ancient or traditional understanding to the modern one that connotes modernity. But what is ‘modernity’? While there is certainly real and substantial disagreement about its precise meaning, most people would probably agree that the European Enlightenment, which started back in the middle ages, is one of the sources of modernity (and modernization). The essence of Enlightenment, by Kant’s muchcited definition, is ‘man’s emergence from his self-incurred immaturity’, and ‘immaturity is the inability to use one’s own understanding without the guidance of another’; therefore ‘Sapere aude![Dare to be wise!] Have courage to use your own understanding!” is “the motto of Enlightenment’4. In other words, the human basis of modernity (and modernization) is autonomy, which, of course, is based on rea1

2 3 4

This description was first given by Li Zehou and refers to the character of the transition of Chinese society since 1840. For a more detailed and careful discussion, see Li Zehou, ‘The Double Variation of Enlightenment and Salvation’ in Li Zehou, Essays on Contemporary Chinese Intellectual History, Tianjin: Tianjin Social Science Press, 2003, pp. 1–43. ‘Full Text of Hu Jintao’s Speech at CPC Anniversary Gathering’, available at http://www.gov.cn/ english/2011-07/01/content_1897641_11.htm (assessed on July 3rd, 2011). Zhao Jinghua, ‘Moral Cultivation for an Everyman’, in Reading, (No. 6, 2009), pp. 100–103. Immanuel Kant, ‘An Answer to the Question: “What is Enlightenment?”’, in Kant, Essays on Critique of History Reason, Beijing: Commercial Press, Chinese ed., translated by He Zhaowu, 1990, p. 22. The English version used here is translated by H.B. Nisbet, see Kant, An Answer to the Question: ‘What is Enlightenment?’ London: Penguin Books Ltd, 2009, p. 1.

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son. And autonomy in the context of public interaction in which political life plays an integral role means that the whole nation must have the willingness and ability to participate in political activities. Therefore, it is the spirit of participation that constitutes the cultural basis of modern (cities and) society. Also, we can say that the spirit of participation has constituted the cultural basis of ‘harmonious society’ of China, which is beginning to be a constitutional country.5 Here, it’s worth noting that the ‘participation’, which constitutes the cultural basis of modernization and harmonious society, must be based on reason or, more exactly speaking, on civic reason. And again, what do I mean by ‘civic reason’ in this context? Actually, it has the same connotation as ‘civic spirit’, whose meaning is as follows: First, it is by their respect for legal rights and their desire to keep them inviolable that citizens are actuated to participate in political life. Rudolf von Jhering, a great German scholar, who once famously suggested a motto of ‘struggle for rights’6, indicates that ‘the struggle for his right is a duty of the person whose rights have been violated, to himself ’7. But why? First of all, individual rights are supposed to be safeguarded by law and hence are related to the authority of law, and any violation of individual rights without full protection would not only damage a single individual’s interest, but also weaken the authority of law. Thus, while struggling for rights seems only to serve the interest of individuals, it also strengthens the authority of law. As a result, citizens should struggle for their individual rights which have been violated in order to strengthen the authority of law. In addition, just like an individual organ is essentially important to the health of the whole body, every specific right is inextricably related to human dignity. Therefore, the violation of any individual’s right would violate human dignity. In this regard, ‘struggling for rights’, seemingly a utilitarian goal, is actually the struggling for human dignity. Further, as citizens, not slaves, people should never expect that those who wield power would promote the interest of citizens because of the moral awareness of ‘ruling for the people’. Any such expectation is doomed to be disappointed, for power tends to corrupt the minds of its wielders, or in other words, ‘power tends to corrupt 5

6 7

The internal relation between constitutionalism and citizens’ participation might been specified most clearly and passionately by Sun Zhesheng (i.e. Sun Fo or Sun Ke, ‘Zhesheng’ was his courtesy name [zi字]), who was the former president of the Legislative Yuan (one of the five branches [called ‘yuàn’, ‘courts’] of government stipulated by The Constitution of the Republic of China) of the former Republic of China. On January 1, 1933, he addressed the Legislative Yuan in a speech entitled ‘Significance of Constitutionalism and Required Knowledge for Citizens’, in which he said: ‘The whole nation has responsibility to establish constitutionalism, and no one is an exception. Therefore, we, as citizens, must pick ourselves up and show more concern over political issues as well as expressing our opinions in a proper way. On one hand, we must guard against the evil influences of former political practice; on the other, it is extremely important to urge the government to boost the economy and welfare of its people, so that neither constitutionalism’s good name nor the original purpose of constitutionalism will be lost’. As quoted in Wu Jingxiong (John C.H. Wu), On Legal Philosophy, Beijing: Tsinghua University Press, 2005, p. 169. Rudolf von Jhering, The Struggle for Law, Beijing: Law Press, Chinese ed., translated by Zheng Yongliu, 2005, pp. 2–39. The English version used here is from Rudolph Von Jhering, The Struggle for Law, Chicago: Callaghan and Company, 2nd ed., translated by John J. Lalor, 1915, p. 31. Rudolf von Jhering, The Struggle for Law, Beijing: Law Press, Chinese ed., translated by Zheng Yongliu, 2005, pp. 2–39. The English version used here is from Rudolph Von Jhering, The Struggle for Law (Chicago: Callaghan and Company, 2nd ed., translated by John J. Lalor, 1915), p. 31.

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and absolute power corrupts absolutely’8. Moreover, people’s respect for legal rights and desire to keep them inviolable may call the decision makers’ attention to those issues which would be influenced by the policies but might have been neglected by the decision makers. Since in the real world there is no perfect decision maker, people’s participation in political activities by giving information to decision makers or by struggling for rights will lead to better policies. Therefore, in a modern society, people must have the respect for legal rights and the desire for political participation, which, of course, can only be based on such respect. Second, civic spirit involves the spirit of procedure which can be described by a Chinese proverb that ‘taking the gamble and accepting the result’: the participation of people should be in accordance with procedures, or more precisely, certain rules of procedure. As we all know, the essence of procedure or rule-governed procedure is not that it will produce certain results, such as certain contents, characteristics or attributes; instead, the only thing produce can guarantee is those factors irrelevant to the procedure will be prevented from influencing the results, while simultaneously all the procedure-related factors will be reflected in the results. Modern politics are no exception: of course you can participate as actively as possible in the process of voting or filing a lawsuit to enter legal procedures, but the results you will get may not be pleasant – in this situation, especially when the results are “bad,” as a citizen, you should accept them. In this sense, we should remember and emphasize the story of Socrates’ death: on false charges Socrates was condemned to death and then put into prison, waiting for his death; his friends bribed the jailer to let him escape, but he refused to flee. He argued that since he had come of age and still remained in the city, seeing how the laws administered justice and governed the city in other matters, and had been protected by the laws since his birth, if he fled because of fear of being punished by the laws and the city, he would commit a threefold wrongdoing: doing violence to the laws, breaking his compacts and agreements with the laws, and ingratitude. Eventually, Socrates died by drinking a cup of poisoned hemlock.9 To a large extent, a good citizen, when participating in the political activities (including the decision-making process), must have the very spirit of procedure that could be described as ‘taking the gamble and accepting the result’, which, actually, is the spirit of rule. Furthermore, the civic spirit implies this kind of spirit, which is ‘to censure freely as well as obey punctually’. In many circumstances one may find his rights and interests infringed upon by some ‘bad laws’ (for example, Public Order Administration Punishment Law of the People’s Republic of China, which presents a threat to citizens’ rights and interests) or by some ill-natured policy-makers. How should a citizen with the civic spirit face them and react in such senarios? If he gives up defending his own rights and interests, it is probably in violation of the first aspect of the civic spirit specified above; but once he decides to fight for them, it them goes against the spirit of obeying rules. It seems that this case does place a citizen in a dilemma. However, obeying rules doesn’t necessarily contradict opposing them in some circumstances if analyzed thoroughly. Jeremy Bentham, when discussing obe8 9

Baron John Emerich Edward Dalberg Acton, Essays on Freedom and Power, (Beijing: Commercial Press, Chinese ed., translated by Hou Jian & Fan Yafeng, 2001), p. 286. See Plato, ‘Crito’, (Chinese ed., translated by Zhang Xiaohui) in He Huaihong (ed.), Western Tradition of Disobedience, Changchun: Jilin People Press, 2001, pp. 1–15.

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dience of law, proposed a famous thesis. He said, ‘Under a government of Laws, what is the motto of a good citizen? To obey punctually; to censure freely’.10 It means that on the one hand we can or are obliged to criticize the laws/policies which in our own eyes are not legitimate. On the other hand, we must firmly defend the authority of organs of state power, abide by law or obey policy-makers’ decisions provided that relevant laws haven’t been lawfully abolished or government officials/ policy-makers are still performing their public duties. In other words, if threats to or infringements to citizens’ rights and interests have been caused by legislation or law, we are free to fight for these rights and interests but have to abide by the laws still in effect. For instance, during the period of ‘Deposing Chen Shui-bian’ Movement in Taiwan in 2006, the traffic was not held up by sit-ins and marches, there was no violence in public meetings, and any viewpoint was given with proofs in public speeches … It was even reported that most of the participants (both supporters and opponents) joined in this movement in their spare time, while leaving as soon as working hours began, which indicated they abided by laws and struck a balanced between the expression of political will and normal lives. As stated above, we have given detailed analysis to the connotation of the civic spirit as the basis of modernity and harmonious society. But apart from that, some other issues warrant emphasis concerning the importance of the civic spirit in the course of creating the harmonious society. First of all, the tradition of political participation based on the civic spirit, which is already part of Western society, is still novel to Chinese people even at the present time. Indeed, ancient Chinese thinkers had developed some political ideas such as the following: “The world does not belong to one single person. The world should belong to people of the world.”;11 “heaven sees as my people see; heaven hears as my people hear”;12 and “when a prince loves what the people loves, and hate what the people hate, then is he what is called the parent of the people.”13 In China’s history, ordinary people do benefit from these ideas from time to time, but the reality is more often that the proverbs are for the rulers, teaching them how to administer a society, and the ruled are always excluded from political operations. Therefore, these ideas may to a certain extent help to create a regime and political decision-making process of the people and for the people, but never by the people. Hence most of the Chinese people, after thousands of years’ of political operation of this kind, have been cultivated a habit of passivity in public or political life, especially in political decision-making.14 They are either not concerned about it at all, or See Jeremy Bentham, A Fragment On Government (Oxford: The Clarendon Press, 1891), p. 101. The Spring and Autumn of Lü Buwei, Chap. 4, V. 1. See James legge, The Chinese Classics, III: The Shoo King or The Book of Historical Documents (Taipei: SMC Publishing Inc, 1991), p. 292. 13 The Great Learning, chap. 10. 14 Obviously, decision-makers of The CPC Central Committee has become aware of the problem. Hu Jintao, Chairman of the Peoples‘ Republic of China, put forward that we must encourage and put emphasis on “citizens‘ orderly participation in political affairs”, and “mobilize and organize the people as extensively as possible to manage state and social affairs as well as economic and cultural programs in accordance with the law”, so as to construct a harmonious society and promote democratic politics. See Hu Jintao, Gaoju Zhongguo Tese Shehuizhuyi Weida Qizhi, Wei Duoqu Quanmian Jianshe Xiaokang Shehui Xinshengli er Fendou (HOLD HIGH THE GREAT BANNER OF SOCIALISM WITH CHINESE CHARACTERISTICS AND STRIVE 10 11 12

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they just focus their attention on its result rather than the decision-making procedures and processes, let alone demonstrate any enthusiasm and sense of participation, thus losing the ability to participate in political life. Secondly, the civic spirit is an essential element for modern democratic politics. Democracy is often readily equated with “the majority rule” or ‘the rule of majority among the people’, which in my eyes is only the form of democracy, rather than the substance. If we consider democracy as just majority rule, we will inevitably conclude that even the ‘tyranny of majority’15 cannot be said to be against the democratic spirit. But it is obvious that in such circumstances, democracy, which was originally designed to protect everyone’s legal rights and interests, would become a ‘legitimate’ way of violating the human rights of the minorities. So in addition to democracy’s problematic form, we should also reveal its spiritual substance, that is, in a word, the restriction of power and expression of rights. It means that every citizen is entitled to express all the demands of his or her rights fully in a democratic system, even though some of them might be illegitimate. In this way, the organs of power shall be restrained in its use of power. Some might doubt how restriction of power with the expression of rights could work. The answer is, for one thing, a responsible government must do every thing possible to promote and guarantee the realization of rights when citizens claim their rights, and indeed that restricts the powers. For another and more important thing, citizens are capable of expressing their demands via elections, strikes and demonstrations, so as to restrict the powers, especially when it is put to irrational or abusive purposes. So we can have a good view of the inner relationship between democracy and the civic spirit. Thirdly, the civic spirit is a necessity to establish a modern state under the rule of law. The relevant practices in Western society demonstrate that the promotion of the rule of law accompanies its modernization process. For this reason, we should promote the rule of law in order to establish a modern state and harmonious society. Then what do we mean by ‘rule of law’ in a modern sense? Aristotle’s classic definition might still be helpful: ‘Hence there are two parts of good government; one is the actual obedience of citizens to the laws, the other part is the goodness of the laws which they obey’.16 Now the question is: how can these two parts of rule of law be realized? Mao Zedong’s famous word ‘Triggering the masses to participate in political activities’ may be the crucial key, for we cannot make good laws without collective wisdom, and good laws can be well maintained only when we respect and take into account the wisdom and efforts of everyone. In this sense, ‘Triggering the masses to participate in political activities’ is surely related to civic spirit. After all, how can the mass without any civic spirit ever be invigorated to participate in political life? If we recognize that the civic spirit is connected with democracy and the rule of law, that the harmony among people is based on democracy and the rule of law – FOR NEW VICTORIES IN BUILDING A MODERATELY PROSPEROUS SOCIETY IN ALL RESPECTS: Report to the Seventeenth National Congress of the Communist Party of China on Oct. 15, 2007). 15 See Tocquevill, Democracy in America, (Beijing: Commercial Press, Chinese ed., translated by Dong Guoliang, 1988), chap. 7. 16 See also Aristotle, Politics, translated by Benjamin Jowett (Kitchener: Batoche Books, 1999), p. 92.

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this argument undoubtedly holds water in modern society – and that the harmony among people is currently a critical task of creating a harmonious society, then the connection between the civic spirit and the harmonious society can be concluded as follows: The civic spirit is the psychological basis or political-legal cultural basis of creating a harmonious society. Moreover, the civic spirit is, in fact, not only the psychological or cultural basis for creating a harmonious society but also for the long-term prosperity and stability of a nation-state. Without a vigorous civic spirit, even though a state may develop quite well in national economic and political strength, it is difficult for it to remain strong and stable for a long time. Germany is a case in point: it developed well in both national economic and political strength before World War II, yet what was the consequence afterwards? A contrary example may be found in Taiwan, which depends on its citizens with increasing political maturity, and hence has made greater political and economic achievements than many other Asian countries such as Thailand. Actually, many theorists have been aware of the importance of civic spirit. For example, about one hundred years ago, Max Weber anxiously pointed out that in his day the German people were at stake, for although the economy of Germany grew rapidly, its political civilization, especially the political quality of its citizens, was considerably falling behind and even remained in a pre-modern status. If such a situation continued, a disaster would occur soon.17 History proved Weber right, with Germany starting the two world wars, and committing all kinds of inhuman acts during the first half of last century. Finally, one more question must be raised: how should citizens’ civic spirit be cultivated? Space precludes a complete answer to it. But one certain thing is that just as a swimming coach, however skillful and experienced he might be, will never be able to teach someone how to swim on shore. A state must first create an atmosphere of political participation and encourage its citizens to ‘jump into that water’ if it intends to better cultivate the civic spirit among its citizens. It is in this sense that we can make sense of Tocqueville’s emphasis over the significance of the U.S. jury system for the cultivation of its citizens, for that system had provided them with opportunities to protect all rights and freedom of their compatriots and themselves.18

See Max Weber, Political Writings (edited by P. Lassman and R. Speirs, Cambridge: Cambridge University Press, 1994). 18 See Tocquevill, Democracy in America, (Beijing: Commercial Press, Chinese ed., translated by Dong Guoliang, 1988), pp. 316–317.

17

SUN XIAOHONG / ZHU LIYU CONCEPT OF OVERALL SITUATION, RULE AND SOCIAL HARMONY

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INTRODUCTION A harmonious society is a long-lasting pursuit of the human beings. Harmony means the harmony between the overall situation and its various parts, it contains the concept of overall situation (referred to as COOS hereafter), and is a kind of harmony between individuals and the collective. COOS, the traditional Chinese legal ethics, means taking the situation as a whole into consideration, which requires all social members to consciously subject their individual behaviour to social norms. So there is a kind of similar value between the harmony and COOS. In modern society, law is the instrument for serving the overall situation and maintaining the social harmony. Therefore, some intrinsic association exists in COOS, the rule of law and social harmony. This article attempts to explore the relationships between them, and investigate COOS’ harmony value in the context of rule of law. I COOS

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1.1 CONNOTATION OF THE COOS The concept of overall situation, as the term suggests, means taking the situation as a whole into consideration. What is ‘overall situation’? The ‘Modern Chinese Dictionary’ interprets it as ‘the whole situation’. The overall situation is a historical, developing, and relative concept, which has different connotation in different historical period and areas. For example, when China focused on class struggles before the reform and open-up, the overall situation was ‘to continue revolution’ under the dictatorship of the proletariat; but this concept of overall situation was proved radical and unappropriate. Since China began to practice reform and open-up, the overall situation was shifted to economic reconstruction; and this concept of overall situation is moderate and pragmatic. At present, the Chinese government is pursuing to construct political civilization and harmonious society, COOS is also expanded to cover political, economic, cultural and social development. Generally speaking, the contemporary Chinese overall situation involves economic development, socialist democracy, reform and open-up, political stability, and social harmony. These elements constitute China’s whole situation in the new historical period. Some scholars believe that the Chinese overall situation is the general layout of the socialist undertakings, encompassing economic, political, cultural and social construction. This overall situation represents China’s general development structure and fundamental strategic interests.1 1

Han Dayuan, Zhuo Zeyuan, Xie Pengcheng. How Will Procuratorial Organs Serve the Overall Situation, People’s Procuratorial Semimonthly. 2009(3): 29–36.

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1.2 LAW AND THE COOS: LAW SERVES THE OVERALL SITUATION 1.2.1 Instrumental Function of Law According to Marxist historical materialism, law, by its nature, is an instrument or means rather than the aim. The instrumentality of socialist law is embodied by its function in regulating the economic, political, cultural and social life. In other words, the role of law in fostering a country’s material, political, spiritual and ecological civilization is an intensive reflection of its function in service of the overall situation of social development.2 “Society is not based on law, which is the illusion of jurists. On the contrary, the law should be based on society. Law should reflect the common interests and needs of the society, which is decided by certain material lifestyle. Law should not be individuals’ wanton rampage.”3 As the superstructure, law is relatively independence, but still, the material restriction is always its most essential property. Fundamentally speaking, law is decided by economy and should reflect the benefits and interests generated by certain modes of production. “Law is not just a tool, it has its own independent value, and to realize the rule of law has always been an aim by the society. But this doesn’t negate the fact that law, as superstructure, must reflect and serve the economic basis. Law is the instrument for serving the overall situation. Only by combining with politics, economy and culture of a society, can the value of law be manifested, because one of the significant values of law is to reduce arbitrariness and contingency and subject individuals to general requirements of social life. Compared with the general requirements of social life, law is secondary and instrumental. ”4 1.2.2 Law and Politics Law and politics are inseparable. Generally law is a conventional method to conduct political activities and achieve political objectives. Politics is the pivot of social relations and intensively reflects economic and social life. In a country, politics often appears as the ruling party’s guidelines, principles and policies, guiding the overall works in different areas, whereby also determining the development of law. Consequently, politics should be specially addressed in constructing the rule of law. In another word, law must be guided by politics and in turn serve it. Stressing politics means pursuing the organic unity of legal effects and political effects, and to verify legal effects with political effects. In this sense, law is serving the overall situation when it serves politics. In China, nowadays the overall political situation mainly consists of reform, development and stability, of which, stability is the prerequisite 2

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According to a number of dictionaries on social sciences, society is, in a broad sense, “the human community that is intra-related and established on the basis of common production activities”. Social systems (such as politics, laws and culture), social relations and social ideology (mainly composed of morality, culture, art and religion), which are generated by and compatible with the economic basis, constitute the superstructure of society. By subtracting the activities, institutions and relationships in economic, political and cultural domains from the broad-sensed society, we can form the narrow-sensed concept, i.e. the human community that inter-relates or associates with other domains beyond economic, political and cultural domains. The Collected Works of Marx and Engels (Vol. 6). The People’s Press, 1961: 291–292. Zhu Jingwen. Serving the Overall Situation and the Illusion of Jurists. Jurists Review, 2006(5): 28–32.

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for reform and development. The political effects of the rule of law are centrally expressed by political stability and social peace and harmony. Even in Western countries practicing separation of powers and judicial independence, courts may give flexible interpretations to laws and make balanced judgments based on specific social situations and the ruling party’s policies, so as to satisfy various social needs. For example, the US Supreme Court’s constitutional review has strong political overtones. In given context, the Supreme Court’s may interpret the constitutional provisions differently; as a result, similar cases may end up with different verdicts. Taking economy as an example, it is the liberalism or the welfare state policies that the ruling party pursues may greatly influence the legislature’s attitude and the enforcement of judicial branch. For example, before and after practicing the “Roosevelt’s New Deal”, the US Supreme Court had made varied interpretation to constitutional clauses prohibiting ex post facto law, which apparently was policy-biased. To some extent, the US Supreme Court’s position is oriented by policy, constantly adjusting in line with its political, economic, cultural and social development. Consequently, the boundary for determining ex post facto law is inconsistent. Justice Marshall’s view is quite illuminating: the Constitution itself does not prohibit retroactive legislation, as long as there is a rational relationship between legislation and legitimate governmental purposes, the court would agree with law, be it retroactive. This is the rule of reason that the United States courts have always upheld.5 As a matter of fact, in the United States, with regard to issues like individual freedom and protection of property rights, the restriction to ex post facto law is undergoing a strict-lenient-strict process. Divided by 1937 when the “New Deal” was practiced, prior to that time, the US Supreme Court mainly used the vested rights theory, clauses concerning contract in the Constitution, and the due process of law to determine the constitutionality of retroactive civil law. Should a piece of law violate freedom of contract, damage contractual obligations, and fundamentally infringe private property rights, it would be declared unconstitutional and invalidated. Beginning with the “New Deal”, the US government increased the interference with social and economic activities and a large number of progressive legislation conducive to protection of labor rights and to promote socio-economic development, although retroactive, were announced constitutional. Individual rights, especially property rights were restricted, and the Supreme Court no longer used the clauses concerning contract in the Constitution and the due substantive process of law to declare the unconstitutionality of retroactive civil laws.6 When determining the constitutionality of retroactive civil law, the US Supreme Court mainly focuses on two things: how to coordinate public interests and private interests; and how to effectively protect private interests and human rights while maintaining the universal interests of the whole society. In conclusion, social situation and the ruling party’s policies have a significant impact on the Federal Supreme Court’s decisions. Apparently, law is closely related to politics and a country’s overall situation. It is always the mission of law to serve the overall situation. Thus serving the overall situation is compatible with the rule of law rather than being contradictory. 5 6

Chen Xinmin. The Basic Theory of German Public Law (Vol. 2). Shandong People’s Press, 2001: 581. Daniel E. Troy. Retroactive Legislation, The AEI Press, 1998.

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1.3 COOS AND SOCIAL HARMONY A harmonious society is a long-lasting pursuit of the human beings. Both Chinese and foreign thinkers have made unremitting exploration, and put forward a number of models of ideal harmonious society. The ancient China witnessed abundant ideas about harmony. Confucius said “A superior man befriends people but not necessarily yields to other people’s opinion; while an inferior man ostensibly integrates himself to a group but not necessarily respects other people.”7 Confucius believes that harmony not only matters the order of nature, but also disciplines human behavior. “The Book of Rites • Li Yun” depicts an ideal harmonious society: “The guiding principles for governing a society are as follow: the state power and social resources should be shared by people; people with talents and virtues should be elected as social leaders by the public; a harmonious social order should be maintained among the members of a society. Therefore, a society can be an extended family, in which each member will be properly treated and can make the most of their capabilities, and those disadvantaged will be well supported.”8 Kang You-wei, a contemporary thinker in China’s history, also called on to create a society with great harmony in his works “On Great Harmony”, in which “all people love each other, all people are equal, and the state power and the social resources are shared by people.”9 The “Three Principles of the People” (i.e. nationalism, democracy and the people’s livelihood) proposed by Dr. Sun Yat-Sen also bears the characteristics of a harmonious society. Social harmony is the common pursuit of all mankind, which is also deeprooted in western culture. Plato’s “the Republic” describes a ‘fair or harmonious’ society, just as the ‘Utopia’ ideal put forward by Fourier. William Waitring, the Mid19th Germany utopian socialist, labeled the socialist society as a “harmonious and free society”, in which “Everyone is free and harmonious”.10 Marx Critically absorbed the useful parts of utopian socialism theories, and conceived the future harmonious society as ‘a union of free personalities’. His ideal of the communist society is a harmonious society characterized by abundant wealth, social justice, equality and each person’s free and comprehensive development. In constructing a well-off society, the Communist Party of China (CPC) bases on the Marxist socialism theories, absorbing various ideas of harmony in history, and puts forward the innovative ‘harmony’ philosophy and the program for building a socialist harmonious society. In 2002, in its report to the Sixteenth National Congress, the CPC stressed that building a higher-level well-off society means to realize more developed economy, more improved democracy, more advanced science and education, more prosperous culture, more harmonious society and more affluent life of the people. And in a harmonious society, people are well positioned, properly provided for and live in harmony. President Hu Jintao further pointed out that the future socialist harmonious society should be characterized by “democracy, rule of law, justice, sincerity, amity, vitality, stability and order; man and nature live 7 8 9 10

The Analects of Confucius · Zi Lu. The Analects of Confucius · Li Yun. Kang Youwei. On Great Harmony, China Renmin University Press, 2010. William Waitring. The Guarantee of Harmony and Freedom (Sun Zeming trans.), Commercial Press, 1960.

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in harmony.”11 Thus, ‘socialist harmonious society’ becomes a scientific proposition with clear connotation, covering various fields like politics, law, economy, morality and ecology, and constitutes the goal of our social construction and development. Accordingly, rule of law becomes the essence of the socialist law. From the perspective of jurisprudence, a harmonious society should fully realize popular sovereignty and balance the interests among stakeholders by law, i.e. to give a rational division between rights and obligations, meanwhile placing powers under restriction. Overall situation and social harmony are compatible. Harmony emphasizes the structural social balance. Fuller once said: “A common problem in social design is how to strike a balance between the supporting structure and the adaptability change”, “We’re not only concerned whether the individual is free or safe, or whether they feel free or safe; rather, we pay more attention to how the harmony or balance can be achieved among various social processes (usually silently expanded).”12 Therefore, harmony means the harmony between the overall situation and its various parts. Be it the harmony inside human society or the harmony between man and nature, it contains the concept of the overall situation, and is a kind of harmony between individuals and the collective. Both in nature and human society, people exist as an individual and at the same time a member of a collective, i.e. human’s collectivity, which is also labeled as “the class nature” by Gao Qinghai, a Chinese philosopher, who was greatly influenced by the Marxist theory on human nature. Gao believes: “Man, by its nature, is a class existence. Human being’s class nature indicates that man can only exist in a unity in which he and other people linked together inherently, and in a unity in which he and the outside world (object of human being) linked together inherently. The inherent unity is not only the object of human being’s conscious activity, but also the fundamental principle guiding human’s self-conducting activities.”13 Gao’s view profoundly explains the relationship between individuals and the collective. Since the collective is composed of individuals, each individual enjoys a relative priority over the collective in terms of social rights; the collective should protect the individual’s freedom, material interests and spiritual benefits. However, the individual is, after all, an element of the collective (please remember individuals’ collectivity class nature), his interest is covered by that of the collective, so individuals’ independence, freedom and interest are often restricted by the common rules of the collective. In this case, it is particularly important to address two problems: first, the balance between personal independence, freedom and the unity of collective; second, the relationship between individual interests and collective interests. Historical experiences have proved that it might fundamentally shake the foundation of social development and detriment the fundamental interests of each individual to ignore the overall social interests. Therefore, we should strike the balance between collective interests and individual 11 12 13

President Hu Jintao spoke at a seminar joined by the provincial and ministerial-level cadres on February 19, 2005. The seminar aims to improve the cadres’ capabilities in building a socialist harmonious society. L.L. Fuller. The Morality of Law (Zheng Ge tans.), Commercial Press, 2005: 35–36. Gao Qinghai. Gao Qinghai’s Collected Works of Philosophy (Vol. 2). Jilin People’s Press. 1997: 117,. Cited from Zhang Wenxian. Jurisprudence: 423 (3rd ed), the Higher Education Press and Peking University Press, 2007.

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interests, guided by collectivism and harmonious value and adopting the legal mechanism of rights and obligations. Whereby, the construction of rule of law should reflect the spirit of collectivism, COOS and social harmony. In a word, law can lead to harmony only guided by the idea of the rule of law featuring the concept of overall situation. In constructing rule of law, we can only maintain a healthy overall situation by grasping the theory of harmonious society and fusing the harmonious spirit into the idea of the rule of law. II COOS

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2.1 COOS IN TRADITIONAL CHINESE LEGAL CULTURE AND ITS CONTEMPORARY SIGNIFICANCE In Chinese traditional culture, COOS occupies an important position. Confucius once said: “A superior man always unites people around him and never forms cliques; while an inferior man likes to form cliques and reject those who hold different views from him.”14 It means the superior man will take the overall situation into consideration and unite other people in order to serve the collective interests. On the contrary, the inferior man colludes with each other while pursuing private ends. According to Confucius’ view, COOS should be energetically encouraged. In the Chinese view, from ancient times, those who do not think of the long–term interests cannot grasp the immediate interests; those who do not consider the overall situation cannot achieve success in a domain. The opinion has become a classic description of COOS in traditional Chinese culture. The traditional Chinese legal culture, as an integral part of the traditional Chinese culture, also contains COOS. This is because the traditional Chinese legal culture is deeply rooted in Confucian ethics and community orientation spirit. Community orientation spirit is a distinct feature of the traditional Chinese law, as compared with the Western legal culture. For the latter, individualism and self-reliance is its core, while the Chinese culture attaches great importance to outside influence and mutual support among people. Western culture regards man as an independent individual, who has rationality, feelings, will and power; every person is the creation of his own inner factors and is responsible for his own destiny. Chinese culture regards men as different members of a group, stressing people’s collective nature; men are interactive individuals who need to live in group and are conscious of social ethical and moral principles. Besides, each person’s destiny is closely related to that of the group.15 This community-oriented legal culture is closely related to the Confucian ethics, which takes ‘rite’ as its core and aims to maintain the patriarchal kinship and patriarchal hierarchical order. The core spirit of “rite” is to ‘respect those who are worthy of respect’ and ‘get close to those who are worthy of close’. Basically, “rite” is the cornerstone of the hierarchical social system. The Confucian ethics centering on “rite” permeated throughout the ancient Chinese society. Dialectically, the concept of hierarchical order and pan-moralistic nature reflected 14 15

The Analects of Confucius · Wei Zheng. Wang He. The Community-Oriented Chinese, Chinese Culture Forum, 2000(2): 13–16.

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by the rule of rite undoubtedly contradicts the spirit of rule of law in modern times. However, the legal ethical system featured by Confucian ethics was a system constructed on the belief of ‘unification of human and nature’, manifested by the “rule of the superior man”, and embodied in family-standard and monarchism. The traditional Chinese legal ethics is a rational system which especially emphasizes order, requiring social members to consciously subject their individual behavior to the social norms; society members must behave according to the norms of ‘rites’ and to evaluate their behavior in the context of a socio-political ethical order system.16 The requirement for order by traditional Chinese legal ethical system, although is necessary in confirming the legitimacy and authority of patriarchal social order, is not tolerated by the spirit of rule of law in modern times; however, the concept of social order contained by it conforms to the modernization of legal system. Because the traditional Chinese legal ethics bears a strong sense of community and particularly emphasizes individuals’ specific identity and role in a social system, which not only reveals the objective law of human socialization, but also highlights COOS constructed on Confucian ethics and the sense of community in the traditional Chinese legal culture. This concept of overall situation can be rich cultural resources for legal construction in modern times, if its patriarchal orientation is abandoned through a creative transformation process. Burke said: “Those who do not recall their ancestors, would not look forward to future generations.”17 While we are excessively stressing the universal application and transplantation of the ideal of rule of law from Western countries, maybe we should also find the legal resources, which are more suitable for our legal development, from our native legal tradition. 2.2 SERVING THE OVERALL SITUATION IN SOCIALIST IDEA OF RULE OF LAW Of the idea of socialist rule of law, it is an important mission for the socialist rule of law to serve the overall situation. This is required by China’s basic national situation and stability in reform and development. From a macro perspective, serving the overall situation is serving the construction of socialism with Chinese characteristics. At present, it is the overall work for our country and the Party and for the service of socialist rule of law to build a well-off society in an all-round way and construct a harmonious socialist society, so as to turn China into a prosperous, democratic, civilized and harmonious modern socialist country. It is the fundamental nature, the core function and the great historical mission of China’s socialist law to create a favorable legal environment for the overall situation mentioned above. As the author had explained previously, law is of instrumentality, established on the basis of society, and is a means to achieve certain social objectives. Therefore, the rule of law can neither lose contact with the community nor place itself above the society. Likewise, in constructing the rule of law, we cannot be divorced from China’s reality, or divorced from the overall situation of stable reform and development, or divorced from the basic line of scientific development. It is in the long practice of socialist construction that China’s ruling party and the government have 16 17

Gong Pixiang. The Historical Logic of the Eastern Culture. China Law Press, 2002: 357. Burke. On the French Revolution (He Zhaowu tans.), The Commercial Press, 1998: 44.

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gradually formed the concepts of the overall situation and local situation, and have established the corresponding political system. Similarly, the rule of law must also ensure national security, territorial integrity, social harmony, stability and comprehensive, coordinated and sustainable economic and social development. This relates to the fundamental and long-term interests of China, as well as the political, economic, cultural and social foundations of China’s rule of law. Therefore, it doesn’t conflict with the rule of law to reject the dogmatism and to see things in an overall perspective. As a matter of fact, COOS is the inherent requirement of rule of law. 2.3 COOS: DOMESTIC RESOURCES FOR RULE OF LAW In constructing rule of law, every country faces the problem as how to maintain independent legal personality while transplanting and applying advanced foreign legal cultures. Feng Yujun, a Chinese scholar, points out: reflection on history reminds us of an acute dilemma, i.e. on the one hand, almost all nations worldwide are being forced to join the process of constructing modern rule of law, and if Asian countries’ (including China) legal system cannot be gradually integrated into the global legal system, these countries cannot survive in the world civilization. On the other hand, if Asian countries cannot maintain independence in their respective economic, political, legal and cultural development, or if they can not effectively protect their national interests, instead, if they insist on pursuing the universal application and guidance of global legal rules to their domestic legal development, they may fall into the trap of dependency and be eliminated or pushed aside in the global domain.18 According to the Western concept, rule of law is associated with multi-party system, separation of powers, private ownership, judicial independence and other socio-economic political systems. Without these systems, rule of law will lose its prerequisite and foundation and fail to exist.19 However, different countries have different national circumstances, and will choose different paths to construct their rule of law. Deng Xiaoping once pointed out, “the Western-style democracy is nothing but separation of powers, multi-party elections, etc. We do not oppose Western countries to practice these political systems, but China definitely will not adopt multi-party elections, separation of powers and bicameral system. Our national People’s Congress, essentially a unicameral system, best conforms to China’s reality.”20 Separation of powers is the result of the development of Western democratic politics, complying with the Western legal culture; while the people’s congress system conforms to China’s actual situation and historical traditions. The people’s congress system vests all power to the people, stressing the paramount status of the people’s sovereignty. Under the system, power is concentrated to the central government. 18 19 20

Feng Yujun. “Historical” Mirage and Surmount – the Historical Explanation of the “Rule of Law and Its Enlightenment to Asia”. http://www.jus.cn/ShowArticle.asp?ArticleID=2169, (accessed May 12, 2009). Zhu Jingwen. Serving the Overall Situation and the Illusion of Jurists, Jurists Review, 2006(5): 28–32. The Collected Works of Deng Xiaoping Theory (Vol. 3), People’s Press, 1993: 220.

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These ideas and practices tally with China’s traditional ideology of great unification of the nation. Moreover, democratic centralism is conducive to maintain the independence and unity of a multi-ethnic country, like China, and to efficiently organize the people and resources nationwide to deal with various complicated situations. In other words, the system can effectively serve the country’s overall situation. Similarly, the formation of the idea of rule of law cannot be divorced from specific social system. Different political, economic, and cultural conditions create different ideas of rule of law. Even in capitalist countries, the idea of rule of law varies. For instance, in England, the doctrine of free rule of law developed since the 17th century was different from the theory of rule by law emerged in Germany in the late 19th century. These differences are due to different political and historical circumstances that cultivated them. Although Germany’s “rule by law” and the British “rule of law” have no essential difference in terms of their respective content and purpose; they are both modern achievements, and both stress to govern the country and society according to law, and subject the authority to law. However, the first and most important issue to be addressed by modern British rule of law is to place the kingship under the control of the law. While the major task that started modern Germany’s rule of law is to bring the state power under the control of the law. Therefore, when we learn from the West the idea of rule of law and voluntarily join the global legal system, we should continue to maintain independent in order to effectively protect our national interests. China has unique cultural tradition and ideology on social order, and has developed distinct political system and models of rule of law. So cultivating socialist idea of rule of law must take the actual conditions of the socialism with Chinese characteristics into consideration, uphold the Party’s leadership, and stick to the idea that the rule of law should serve the overall situation.21 This is China’s local resources of rule of law. III COOS

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3.1 LOCAL AND UNIVERSAL NATURE OF COOS Some Chinese scholars believe that the modern idea of rule of law is mainly composed of two parts. One is the capitalist idea of rule of law, which was created in the revolution and developed and consolidated in the practice of governance by the bourgeoisie. The capitalist idea of rule of law is founded on liberalism, manifested in the forms of democracy, separation of powers, multi-party competition and independence of the judiciary, guided by the values of freedom, human rights and justice, and reflected the ideas of separation of powers, supremacy of law, procedural rationality, judicial review and judicial autonomy. The other is the socialist idea of rule of law, which was created through criticizing the capitalist system and ideology by the proletariat and was developed and tested in socialist revolution and construction. The socialist idea of rule of law took root in Marxism; manifested in the forms of people’s congress system, ruling by the Communist Party, and democratic cen21

Liu Fang, Lin Jianwei. The Concept of Rule of Law in the Sight of Comparison, Journal of Beijing University of Chemical Technology (Social Sciences Edition), 2008(4): 20–23.

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tralism; guided by the values of common prosperity, people being the masters and the people’s liberation; and reflected rule of law, fairness, justice, the overall situation and the Party’s leadership.22 In the author’s opinion, this division is rational and acceptable. The two ideas of rule of law mentioned above have their respective features. Compared with the socialist rule of law, the capitalist rule of law pays more attention to personal rights and freedom, while the socialist rule of law particularly emphasizes the common social interests. In legal theory, the Capitalist rule of law is also known as the Western rule of law. Western countries have practiced rule of law for a pretty long history and accumulated rich experiences, many Chinese scholars thought it might be a great idea for China to learn from the Western rule of law, especially its ideological essence. But there is an unavoidable problem in so doing. As we all know, modern Western rule of law is cultivated by Western society, reflecting the unique experiences of Western culture, so it might not be applicable in non-Western societies. Different countries have different political, economic, social and cultural conditions and traditions, so whether or not to construct rule of law and what form of rule of law should be adopted are completely decided by the specific countries concerned. Although unique and excellent, modern Western rule of law is not equal to the modern rule of law, as the latter concept is broader, being an open system and should constantly be perfected. Therefore, it is a basic path to perfect the modern theory of rule of law by giving theoretical reflection on Western rule of law and integrate the rational parts of both Chinese and Western ideas of the rule of law. Modern Western rule of law has undergone the transformation from rule of law in form to substantive rule of law, reflecting the ideological evolution of Western rule of law. Chinese scholars believe that the two forms of the Western rule of law are divided according to different value preferences and actual practices.23 The rule of law in form is characterized by legal positivism and separation of law and morals. The rule of law in form has the following characteristics: individuals or organizations should all abide by pre-established law; everyone is equal before the law; the law is general and universal; the judiciary is independent; the law protects individual freedom; the law is stable, etc. The rule of law in form is the first stage in the development of modern Western rule of law, which was adapted to the laissez-faire market economy, corresponded to the binary division of political state and civil society, and conformed to the values of instrumental rationality. In legal theory, the rule of law in form has two typical expressions, namely the legal positivism and the legal formalism. However, with the laissez-faire free market economy being developed into the monopoly capitalism economy, states increased intervention in economic and social activities, giving special attention to basic human rights and social welfare. Accordingly, the defects in the rule of law in form were exposed, giving way to the substantive rule of law. In the field of legal theory, sociological jurisprudence, legal realism, new natural jurisprudence, critical jurisprudence and post-modernism also reflected these 22 23

Xie Pengcheng. On Socialist Idea of the Rule of Law, Social Sciences in China, 2007(1): 76–88. Gao Hongjun. The Conflict and Conformity of Modern Western Rule of Law, Tsinghua Forum of Rule of Law, 2000(00): 1–59.

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changes from different sides. The substantive rule of law is value-oriented, for example, it maintains that individuals and organizations should all abide by pre-established law, but the evil law should not be enforced, and that law should be tested by positive standards beyond law, like ‘principle of justice,’ ‘moral rights’ or ‘sense of justice by common people’. Similar to the rule of law in form, the substantive rule of law also values legal equality in forms; however it attempts to overcome the defects arising from the formal equality with institutional arrangements. The substantive rule of law is not satisfied with the equality in forms, or even not satisfied with equal opportunities; rather, it advocates taking measures to reduce actual inequality and pursues substantive justice.24 Obviously, there are value conflicts between the two kinds of rule of law, which reflects the profound divergence between efficiency and fairness, between personal freedom and obedience to group, and between people’s internal faith and the external force in modern capitalist society.25 Although substantive rule of law remedies some defects of rule of law in form, the latter is still prevailing in the modern Western law. The situation exposes the shortcomings of Western rule of law, as any country should address the contradictions between efficiency and fairness, between personal freedom and collective interests and consequently strikes the equilibrium. In modern times, it is more important to maintain collective interests in order to maintain social stability and promote social development than in the period of laissezfaire capitalism. Therefore, the Western rule of law in form should be corrected by the substantive rule of law. From this perspective, COOS in the socialist idea of rule of law is compatible with the substantive rule of law. Fusing COOS into the idea of rule of law will inject new blood and vitality into the modern rule of law. 3.2 DEVELOPMENT OF THE THEORY OF RULE OF LAW THROUGH COOS From above discussion, we can conclude that the core values and contents of the Western rule of law in form reflects the needs of the capitalist economic at that time, which is the result of theoretical thinking by the bourgeois legalists on the capitalist economy and their domestic problems. The theories are not only of class limitations but also with strong time and geographical (national) nature.26 Thus they are not universally applicable. It is the mission for our age to construct a new idea of rule of law, which fuses the rational part of both Chinese and western ideas on rule of law, hence better reflects the objective law of the development of rule of law. According to the concept of overall situation, law should serve the overall interests of national development. This is of great importance to the development of both Chinese and western rule of law. Therefore, we regard COOS as the new development to the theory of modern rule of law.

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Gao Hongjun. The Conflict and Conformity of Modern Western Rule of Law, Tsinghua Forum of Rule of Law, 2000(00): 1–59. Gao Hongjun. The Conflict and Conformity of Modern Western Rule of Law, Tsinghua Forum of Rule of Law, 2000(00): 1–59. Zhu Suli. The Comparison between Socialist Idea of Rule of Law, http://www.jus.cn/ShowArticle. asp?ArticleID=2169, (accessed June 3, 2009.).

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3.3 COOS AND THE WORLD HARMONY: THE NEW VISION OF COOS IN THE CONTEXT OF GLOBALIZATION OF LAW In the 21st century, the phenomenon of globalization is deepening, involving economics, public affairs, human rights, environment and law. Frequent exchanges and interaction among different countries worldwide greatly increases the interdependence among them, and problems concerning mutual co-ordination and common interests become glaring. Under the circumstances, to achieve a win-win situation is both necessary and possible. Deng Xiaoping’s thought that peace and development are the two major themes of the contemporary world depicts a win-win prospect for the whole world. Therefore, to create a harmonious world reflects many countries’ common wish since the World War II. The Chinese Communist Party and the Chinese government also dedicate to the creation of world harmony by carrying out ‘harmonious diplomacy’. In 2005, at the summit meeting for the 60th anniversary of the United Nations, President Hu Jintao delivered a speech entitled “Efforts to Build a Harmonious World with Lasting Peace and Common Prosperity”, giving a detailed description on the idea of building a ‘harmonious world’. To construct a harmonious world, it is very important to achieve the democratization of international relations and implement the global governance by rule of law. Against the backdrop of globalization, the construction of rule of law in a country will inevitably be integrated into the world process of rule of law. At the era of globalization, the Chinese and western rule of law have already carried out much contacts and exchanges, and proved great compatibility, reflecting the highest achievements of the development of human legal civilization. There is certain overlap and consistency in above two types of rule of law.27 Globalization of law requires us to break the barriers between the Chinese and western rule of law theories and to establish the legal system arrangements beneficial to the international order, guided by the principle of seeking common ground while reserving differences. To this end, the idea of rule of law must be updated. To satisfy the needs for harmony, the law should be guided by the idea of rule of law featuring the concept of overall situation. To establish the international political and economic new order, we should handle the differences, disputes and conflicts between states, nations and regions in a peaceful and rational way, through communication and coordination, and always take COOS into consideration. Meanwhile, we should also give developing countries certain privileges in order to achieve a substantive degree of equality between the developed and the developing countries, which has far-reaching implications for the promotion of a harmonious world. IV CONCLUSIONS In a word, there is compatibility between COOS and social harmony in the context of rule of law. As part of the excellent Chinese traditional culture, COOS is not only the native resources for China’s rule of law but also the development for the modern theory of rule of law. In the context of globalization, COOS is of profound significance for the promotion of a harmonious world. 27

Xie Pengcheng. On Socialist Idea of the Rule of Law, Social Sciences in China, 2007(1): 76–88.

HUANG JIANWU RULE OF LAW: THE VALUE OF LEGAL FORMALISM

IN

CONTEMPORARY CHINA

INTRODUCTION Positive law, a prerequisite of the effective establishment of rule of law, assumes that the content of the law is legitimate and formalized. Only when positive law has been implemented in an effectively governed state and society can rule of law be said to exist. Throughout the process of establishing rule of law in China, the legitimacy of the law has already gained a high degree of importance. For example, societal consensus has already been reached concerning rule of law based on democracy, concern for human rights, and the need for restrictions to accompany separation of powers in the government. These ideals are increasingly shaping legislation and the actual implementation of the law, and reflect the development of rule of law in China. However, while there may be appreciation of the content of the law, the Chinese people’s general notion with the form of the law and its stability are comparatively dissatisfied. Because of the subtle influence of Chinese traditional legal culture which with the characteristics that attach importance to the law’s substantive contents (morality and virtue) and make light of the form of law, as well as the fact that China has moved towards the rule of law till quite recently, the judiciary not only faces the heavy burden of implementing an ideal legal order, but at the same time has to make extra efforts to overcome the long-standing practice of citing extrajudicial sources when adjudicating a case.1 Through these efforts, the judiciary in China can guarantee the rigid and settled nature of the law, safeguard its supremacy and uniformity, ensure people will actually comply with the law, and eventually achieve the rule of law. With these demands in mind, legal formalism merits China’s special attention as a theoretical and practical paradigm. I THE DEFINITION

OF

LEGAL FORMALISM

The term legal formalism did not arise in China, but rather was borrowed from the West. In its emphasis on the form of the law, this term expresses a shared theme in both the Chinese and Western legal traditions and is a comparatively useful ana1

For instance, the official document assertion that the judiciary should comply with public opinion, the cases deal with should meet the satisfaction of people; also, in many Chinese local procuratorate advocate the concepts of “caution” and “prohibition” which require caution and prohibition to implement enforcement measures to the leaders and the accounts of big companies when dealing with financial crimes cases, and require to consider suitable the opportunity to the cases. Hence, the status and influence of the company became the important factors in the disposition of the case. In fact, there are some rationality in these methods, but if they are not well regulated, they could lead to casual implementation of justice in the legal system and harmful consequences in the long-term.

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lytical tool for discussing the issues in this paper. However, due to the fact that there is little agreement on the meaning of legal formalism, it is first necessary to define it in order to facilitate discussion. Amongst Western scholars, there are different definitions of legal formalism. Some scholars, for example, have proposed that legal formalism is a kind of work strategy to be employed by courts when adjudicating a case, or an interpretive method of law.2 Others believe it is a legal theoretical paradigm.3 Some scholars have even advocated different categories of legal formalism, dividing it into strong legal formalism and weak legal formalism, etc.4 In the course of ordinary discussion, the characteristics of legal formalism most often mentioned are: (1) the law is a stable, closed system; (2) it offers rules according to which disputes can be adjudicated; (3) it demands strict compliance; (4) state officials (especially judges) should decide cases according to the applicable statutory provision, and not resort to outside sources; and (5) it emphasizes adherence to the requirements of pre-existing law and discourages legal interpretation. If it were possible to speak to the sages of ancient China regarding the aforementioned characteristics of legal formalism, one would discover that similar ideas existed then, especially in the pre-Qin period (before 221 BC). Already in the Warring States period (475–221 BC), Shang Yang (390–338 BC), a representative of the legalist school of philosophy, proposed “uniform reward and punishment,”5 with special emphasis on uniform punishment, a concept integral to legal formalism. “If they should disobey the edict of the emperor or the law of the state, anarchists and criminals, regardless of class – generals, ministers, and commoners alike – shall be sentenced to death without pardon.”6 Clearly, Shang Yang advocated strict laws and rigorous enforcement. He advocated the sage-emperor who rule the state shall “take the law more important than morality, shall make law clear and keep it be followed.”7 Officials could not interpret the law at will, and “if they dared to tamper with the law by adding or subtracting even one word they shall be sentenced to death without pardon.”8 The historical benefits and shortcomings of this rigid formulation of legal formalism have always been a source of controversy. Distinct from legalist school was the tradition of Confucianism, which, because it advocated rule by Li (礼, rites), rule by virtue, and rule by man, was considered more often as the model for anti-rule by law. However, we should not forget that the modern meaning of law is different than the meaning of law in ancient China. Especially in the pre-Qin, the period in which Confucianism arose, law primarily indicated punishment. At that time, Confucianism’s opposition to the rule by law was essentially its opposition to coercive laws, namely the use of the punishment and 2 3 4 5 6 7 8

See Cass R. Sunstein, Formalism and Statutory Interpretation: Must Formalism Be Defended Empirically? 66 U. Chi. L. Rev. 639(1999). See Gerald B. Wetlaufer, Systems of Believe in Modern American Law: A View From Century’s End, 49 Am. U.L. Rev. 10 (1999). Mark C. Modak-Truran, A Process Theory of Natural Law and the Rule of Law in China, 26 Penn St. Int‘l L. Rev. 607, 626–629.(2008). Zhang Jue, Book of Shang, Full translation, at 175 (China Guizhou, Guizhou People Publishing House, 1993). supra note 5, at 181. supra note 5, at 201. supra note 5, at 201.

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death penalty as an essential method of governance. Neither pre-Qin Confucianism nor orthodox post-Han Dynasty (after 206 BC) Confucianism ever opposed the established system, and never opposed the use of the system to execute the rules of the administration. Confucius (551–479 BC), the representative of pre-Qin Confucianism, advocated rule by Li, the Li is the denomination of charters and regulations of the West Zhou Dynasty (about 1100–771 BC). The Li arranged the powers of king and dukes in the state, came up with duties for all levels and categories of officials, and assigned positions to all members of a family and even amongst friends. In other words, rule by Li arranged the relationships between rulers and subjects, fathers and sons, husbands and wives, brothers and sisters, and the old and the young. As narrated in a chapter of The Book of Rites – The Conveyance of Rites, “The function of the Li as principle, is to posit the statuses of king and subjects, affect father and son, harmonize brothers, coordinate husband and wife, set institutions, keep the order of country, encourage the spirit of courageous, wisdom and achieving.”9 From the Confucian point of view, Li was extremely important. Thus, Confucius advised that run the state shall “guide by virtue, unite by Li.”10 The Confucian school also believed that the Li demanded strict performance; people could not go over or unreached it. It is a key instrument in the hands of ruler for dominating. “It is like a balance used to weigh an object, a scaleplate used to mark a true line, a compass used to measure the dimensions of a thing. Just as the weight of an object cannot be misrepresented when using a proper balance, a line drawn askew when using scaleplate, or the true dimensions of a thing falsely asserted when a compass and square are provided, thus the ruler could not deceive when using the instrument of Li.”11 “There are multiple meanings of Li, which are diversely generalized or narrow, obvious or metaphorical. It could not be done that make the generalized narrow or reverse, and make the obvious metaphorical or reverse.”12 These verses possess all the distinctive characteristics of legal formalism, and Confucius actually regarded implementation and compliance with Li in a legally formalistic manner. When Confucius learned that the vassal Ji had “eight rows of dancers in his hall,”13 he was unable to tolerate such an impudent usurpation of the proper ceremonies of the emperor, and angrily rebuked, “If this can be endured, what else cannot be?”14 If the Li of Zhou were compared to a modern legislation, the regulations would fall under the branch of constitutional and administrative law. Thus it is clear that the Confucians had at that time adopted a legally formalistic manner and viewpoint. It’s worth mentioning that the system of Li had already begun to collapse during the Spring and Autumn period (about 770–476 BC), and it as a system of governance that had ceased to exist by the end of the Warring States Period (about 476–221 BC). From the Han dynasty onward, Confucian Li was referred to as a doctrine that superior to the law, the contents of which laws should strive to embody. Confucians not only declared that the law should adhere to the 9 10 11 12 13 14

Yuan yuan proofread, Thirteen Classics Annotated, at 1414 (China Beijing, Zhonghua Book Company 1980). supra note 9, at 2461. supra note 9, at 1610. supra note 9, at 1435. supra note 9, at 2465. supra note 9, at 2465.

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contents of Li, but that cases should be decided according to Li. This can be seen in the concepts of “Adjudication according to the Spring and Autumn”15 and “Adjudication according to motive,”16 both of which evaluate a person’s criminal and decide the punishment according with the principles of Li. The Li advocated by the Confucians in these circumstances no longer possessed the characteristics of formalism and actually contributed to its decline. These developments had a decisive effect on the later formation in China of law enforcement that was weightier in substance than form. In the West, legal formalism was popular in the 19th century, and had effectively promoted the construction and improvement of the legal system, and had played an important role in guaranteeing individual rights and freedom against illegal government intervention (to restrict government power). Legal formalism declined gradually, but its impact still remains In the development process of legal formalism, the United States’ legal formalism is common, and can be used as an example for our analysis. In the United States jurisprudence, Christopher Columbus Langdell is regarded as a representative for legal formalism of the late 19th century and early 20th century. The Harvard School represented by Mr. Langdell had great impact during this period. At the same time, the representatives in legal practice are those judges who adhered to the idea of legal formalism and served in the U.S. Supreme Court, a pivotal organ in United States’s power framework.17 Legal formalism considers law to be composed of principles, which contain definitions, concepts and doctrines. Principles are not large in number, but can be applied universally. They are clear enough to answer legal questions, and people can more or less derive direct inference from legal principles. Legal formalism presupposes that law generally has or should have a slow response to specific factual content and the environment. These principles exist in their own, independent of what the judges or the legislators will actually say or do. These principles are valid, and have a base that is different from the needs of the society or the purposes served by law that are seen by us. Although these principles develop and evolve over time, they are not based on the needs of social change. They will not be influenced by customs either, and they will not be influenced by the fairness desired by people. These ideas effectively guaranteed the stability of law and judicial neutrality, and also effectively limited the intervention of government power to the society. When it came to the 20s and 30s of the twentieth century, social development called for legal reform, but legal formalism insisted on legal doctrine and opposed reform. At that time, laissez-faire economic and political system had many issues, such as urbanization issues, labor issues, and social welfare issues. To resolve those issues, government needed to break through the past’s passive laissez-faire attitude and make effective interventions in order to balance different interests. However, law reform in this area was strongly opposed by legal formalism. Legal formalism has a strong preconceived beliefs and even affection for legal principles formed after Spring and Autumn is an annals edited by Confucius (481 BC.). It recorded many stories about kings how to deal with the state affaires according to Li or virtue. 16 In regard of “Adjudication according to the Spring and Autumn” and “Adjudication according to motive,” see Qu Tongzu, Chinese Law and Chinese Society, Ch. 6, 3rd section “Li in Law” (China Beijing, Zhonghua Book Company 2003). 17 See supra note 3, at 10–11. 15

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many years. Langdell’s view is that, law is a science, which took thousands of years to form, and it has independence. In practice, the Supreme Court is to demonstrate their commitment to laissez-faire and the rights of property owners, while at least incidentally, the commitment for the industry interests in the private sector they serve, and thus to promote their point of view of the unconstitutionality of substantive due process, contract terms, and progressive legislation, while supporting and maintaining other formalists’ judicial practice.18 At that time, a number of legislations to advance social reform were declared unconstitutional by the Supreme Court. Formalism became a typical conservative force, which seriously hindered social development. Later, under the social pressure of reform and the impact of a number of new academic theories, the theory of legal formalism and practice were weakened. The main forces of this theoretical impact include legal realism, sociological jurisprudence, and the movement of law and society.19 In fact, the form and content are inseparable. There is no specific form content will no longer be a specific content. If there is no form of law or a stable form of protection, society would not have the legal content and rule of law. Because of this reason, legal formalism still has value. In the United States, after being criticized, legal formalism’s theory and practice have been weakened, but have not disappeared. It no longer emphasizes that law can be not be changed or that reforms are undesirable, rather it turns to the area of implementation of established law, stressing judiciary’s compliance of established law (including precedents), and opposing invoking extrajudicial basis to adjudicate cases. Legal formalism now has a new interpretation. In this regard, the viewpoint of Professor Lawrence B. Solum is worth noting.20 According to Professor Solum, the core idea of legal formalism is that a formalist legal practice is a choice-worthy possibility, rather than the formalistic manner upheld by the U.S. Supreme Court. In his view, legal formalism has been misunderstood by people. Those numerous misunderstanding include that legal formalism entails mechanical jurisprudence, formalism excludes consideration of purpose, formalism precludes equity, formalism carries conceptualism, formalism entails the right answer thesis, formalism excludes the exercise of practical, formalism demands perfect compliance, and so on. Professor Solum stated the actual difference between formalism and the misunderstanding of formalism mentioned above, and using the interpretation and implementation of the Constitution as a starting point, he raised and explained the new features of neoformalism or constitutional formalism, including the six principles of constitutional formalism: First, precedent: judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Second, plain meaning: when the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text. Third, intratextualism and structure: when the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consist18 19 20

See, supra note 3, at 13–14. See, Patricia Ewick, Robert A. Kagan, and Austin Sarat, Social Science, Social Policy, and the Law, Introduction (New York, Russell Sage Foundation, 1999). Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, (2006).

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ent with other related provisions and with the structure of the Constitution as a whole. Fourth, original meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning. Fifth, default rules: And ambiguity persists after all of that, and then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. Sixth, lexicality and holism: That is, judges should order their deliberations by the first five principles at work and should apply the first five principles reasonably.21 Solum’s opinion can be seen as a theoretical retreat or defense for legal formalism, but it also can be seen as limiting the application of formalism to today’s areas of the United States needed for law enforcement. Anyway, this theory adheres and presents the reasonable content of formalism. Legal formalism itself has many interpretations. From the development of the U.S. version of this theory, we can see it has changed from strong to weak, and its core areas also have changed – the core areas have retreated from the idea that even legislation cannot change the legal principles to the limited application in implementation and interpretation of law. Such changes show that legal thoughts and practice are in line with social development and adapt to social needs. When we discuss the meaning of legal formalism to China, we should make sure that the interpretation of legal formalism should be aligned with the needs of developing the rule of law in China, which means, on the one hand, it should include the basic ideal of legal formalism, on the other hand, it should have the adaptability to align with China’s development needs. Therefore, combing the reasonable content of the theory mentioned above with our development needs, from our perspective, the inner meaning of legal formalism is to emphasize the universality, stability and validity of established law, especially the supremacy of the Constitution. The binding effect of legal form is shown through legislation and law enforcement. From the legislation perspective, all the state organs having the legislation power, from the National People’s Congress, to the State Council, and to provincial and local People’s Congress, all of their legislation activities must be based on the Constitution’s authority. All of the laws and regulations created by such state organs must be consistent with the basic principles and the basic requirements of the Constitution. And for the rules created based on the exercise of those organs’ autonomy, the content of the rule must not violate the Constitution. At the same time, various regulations should not contravene the requirements of law which created by National People’s Congress. From a law enforcement perspective, the administrative power should be exercised within the authorization granted by the Constitution, and the application of discretion should be consistent with the authorization purpose of the Constitution and the laws; administration of justice emphasizes textualism, which is against invoking other rules or requirements outside of the text of law as the basis to adjudicate, unless applying law would lead to absurd judgment. When law is ambiguous, the interpretation should be as close to the original intent of the provisions as possible, and also should consider the related provisions as a whole. Judges should limit the use of their discretions to the minimum, and the higher courts should publish 21

supra note 20, at 171–186.

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cases to guide the use of discretion. It should be noted that, constitutional laws already contain the underlying political commitment and value reorganization, thus the administration of justice should not seek other political criteria outside the law as the basis for adjudication.22 Legal formalism is not to emphasize that there is a unique answer to legal issue. Instead, it emphasizes the value of different options within the limits of law. Most fundamentally, it demands the removal of legal errors, in particular the use of public power without legal basis. The meaning of legal formalism in the context of present China includes the general commitment of legal formalism. At the same time, comparing with the classical strong formalism, it is weak in content sense; however, from the scope of its limitation, it is stronger than the modern Western (Solum’s statements as an example) formalism, as it involves legislative and administrative restrictions. II CHINA’S MARCH TOWARD OF LEGAL FORMALISM

THE

RULE

OF

LAW NEEDS

TO

FOCUS

ON THE

VALUE

The form of law has general value. Form of law guarantees the existence of legal content, and form’s stability guarantees the realization of fairness and other values which as the contents contained in the form of law. Meanwhile, form of law ensures the predictability of social activities, and thus ensures the possibility of social cooperation. As a result, if there is no form of law, there would be no rule of law; to have rule of law, there must have the form of law. The value of the form of law is the basis of the value of legal formalism. But the value of legal formalism will change based on its claims and demands of the times.23 The value of the aforementioned legal formalism for the construction of China’s rule of law cannot be ignored, and, precisely because of the current existence of such ignorance, to emphasize its value is particularly important. China’s road toward rule of law has a complex background, in which a number of important elements are opposite to the requirements of legal formalism, or we can say that those elements deconstructed the development and implementation of rule of law through the denial of legal formalism. Among them, the following elements are noteworthy: 1. The traditions with a long history of rule by Li, rule by virtue, and rule by man.

22

see Huang Jianwu, Law Shall Keep Proper Distance From Politics, 5 Academic Journal of Suzhou University 16 (2005). 23 Richard A. Posner asserted: I have argued that Savigny‘s formalism was right for his time and place, where the urgent need (as in developing societies today) was for clear, uniform rules that could be applied mechanistically; and that Holmes‘s rejection of that formalism was right for his time and place, which were very different from Savigny‘s. By Holmes‘s time, the American legal system had the suppleness and enjoyed the public confidence to be able to adapt legal principles to current social needs without undue danger of sacrificing legitimacy or creating debilitating legal uncertainty. Richard A. Posner, The institutional Dimension of Statutory and Constitutional Interpretation, 101 Mich. L. Rev. 958–959 (2003).

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Confucian, as Chinese orthodoxy in history, was characterized by rule by Li, rule by virtue, and rule by man. We have mentioned earlier that Confucian did not oppose the value of system, which also had some elements of legal formalism, but these are unrelated to the modern rule of law. Their recognition of system is based on their recognition of rule by Li, rule by virtue, and rule by man. In their view, system should be consistent with the requirements of ritual, and should reflect the requirements of morality. System is a tool to achieve rule by virtue and a tool to achieve moralization. Virtue refers to highest virtue, and saints with highest virtue, of course, should not be subject to legal or institutional constraints. On the contrary, these laws or systems are tools for the saints to govern the society. As narrated in The Book of Li (Rites) – The Conveyance of Li (Rites), “Therefore, Li form a key instrument in the hands of ruler. It is by Li, the ruler could resolve what is doubtful and brings to light what is abstruse; conducts his intercourse with spiritual beings, examines all statutory arrangements, and distinguishes benevolence and righteousness from others; it is by Li, in short, could run politics well and safeguard the ruler.”24 At the same time, Li or virtue, identified and confirmed the hierarchical classes among people, and also confirmed the inequality of rights and obligations among people, just like what is stated as follows “The sky has ten suns, so that people belong to ten classes. The lower class needs to serve the upper class and the upper class serves the gods.”25 “Li do not apply to the inferior people. The penal statutes do not apply to patrician.”26 Given that the system pursues the realization of Li and virtue, so using the substantive requirements of Li and virtue to deconstruct the existing system is natural. There are many examples of such deconstruction in China’s judicial history.27 Such a tradition has two important impacts today. The first impact is the pursuit of substantive value. In order to achieve substantive value, extra-law basis can be invoked. The second impact is the leaders of the state can step above the law and can grant relief outside of the law. Whether this tradition has some cultural and psychological coincidence with our petition system today is still unknown, but such contempt of the validity of the legal form definitely has an important impact on today’s practice. 2. The practice of disrespecting rules which is the heritage of the revolution of breaking the old legal system. China’s revolution led by Communist Party is not evolution of the previous system; rather, it is to abolish the old system with violence. And because China’s revolution has the characteristics of peasant revolution, the public after the revolution, especially the leaders, are not used to be regulated by rules. Even after they had their own constitution, such a situation remained. Senior leaders like to use flexible policies to manage the state and society, and the mainstream ideology and practice often use the enthusiasm and creativity of the people as the legitimate basis, and any rules that regulate or restrict those shall be deemed as improper restrictions. For this reason, the anti-rightist movement of 24 25 26 27

supra note 9, at 1418. supra note 9, at 2048. supra note 9, at 1249. See Qu Tongzu, Chinese Law and Chinese Society, Ch. 1, 3rd section A “The crime of harm and murder in family menbers” (China Beijing, Zhonghua Book Company 2003). In this part of the book, author referred many stories about case decisions were amended by invoking “Li” or human sympathy from out of law according to emperor’s order.

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1957, and the People’s Commune movement of 1958, and the Cultural Revolution of 1966 to 1976, all used the people’s revolutionary feature, creativity and other extralegal factors as the legitimacy standard and left the Constitution and other relevant law aside. After the reform and opening up, China’s first land auction in 1987, threw away the land system of the Constitution, yet some people described such action as “benign violation of the Constitution.”28 In the reform implementation process, the mainstream also allowed mistakes (breaking the previous restrictions of the system) to be made during the reform to avoid stopping the reform; reform has priority, and how to reform is secondary. Reform itself became the legitimacy standard to break through the system. To pursue substantive value was always deemed as the appropriate reason to break the form. Today we are under the shadow of this thought when we try to build the rule of law. 3. Various styles of culture, law conflict with people’s customs. China is a multiethnic country, composed of 56 ethnic groups. Different ethnic groups have their own culture, including their own languages, ideologies and rules of social activities based on faith, and production method and lifestyles containing certain historical traditions, and so on. For example, many ethnic groups have their own ways to resolve marriage and family relations issues and torts issues. Under such circumstances, a single legal form is indeed difficult to resolve such diverse and complex social relationships. Although the constitutional system has granted to certain ethical group areas autonomic and flexible legislative power, customary rules outside the law still need to be considered during the course of administration of justice. Even for the Han people, which are the majority of the population, in different regions, urban and rural areas, there are difference in the degree of development and culture. Customs still have an important influence on people’s behavior. Laws with the features of urbanization and developed areas do not work well in dealing with disputes in rural and less developed areas. As a result, extralegal rules are invoked as basis or reference to enforce the law enforcement.29 4. Complex construction of society produces a variant effect on law enforcement. Complex construction of society mainly refers to the imbalanced social structure formed after the reform and opening up (which is also the process of China’s march toward the rule of law). Because of their possession of different resources and status, different groups and individuals have different levels of influence on legal enforcement. For example, some areas grant privileges to violate the law (such as a general traffic offense will not get punishment) to investors to win investment. In the administration of justice process, judges also tend to give more consideration to impact of the judiciary decision on the investors’ intent to invest and develop. These investors groups and individuals are often able to use their positions and power to influence law enforcement. For example, some government agencies suggested that using coercive measures on corporate executives in criminal investiga-

28

See Hao Tiechuan, On Benign Violation of the Constitution, 4 Cass Journal of Law 89(1996); Hao Tiechuan, Softly Resist – Several Explanations on Benign Violation of the Constitution, 5 Law Science 18(1997); Xi Zhong, Rethink Over Benign Violation of the Constitution, 4 law Review 26(1998). 29 See Wu Xiaofeng, To Use the Good Custom in Civil Trail Is attached importance, Legal Daily, Weekend Edition (1–2), October 12, 2008.

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tion procedures should be cautious.30 This is a clear example to show that different social groups have different impacts on law enforcement. Those impacts are further magnified in the activities of voting for “the courts satisfied by people and the judges satisfied by people.”31 When the legal form lacks of stability, it is difficult to implement the rule of law, or that the rule of law is difficult to establish. The existence of the above background establishes the special significance of legal formalism in China to develop the rule of law. The significance includes at least the following aspects: 1. To ensure the realization of the basic political commitment and fundamental values embodied in law. The laws of any country at any time have their basic political commitments, which reflect the fundamental values of society and the nation of that era. For example, capitalist countries’ laws reflect the political commitment of liberalism and the associated value; Chinese laws reflect the political commitment to socialism and value, as well as the basic direction and goals of social construction of a historical stage. Only when the form of law is strictly complied will the political commitments and value in the law be achieved. If arbitrarily invoking the rules or proposition outside the law to govern social activities and nation is allowed, it would undermine the realization of the value and commitment within the existing law. The requirements of legal formalism to guarantee the stability of legal form can effectively prevent the political commitment, the value and the goal within the existing law being arbitrarily changed or weakened, and can ensure the stability of national management and social development direction. 2. To ensure the predictability of all social activities. The stability of the legal form is the premise of the predictability of legal behavior and consequences. It is possible for people to make decisions and to cooperate socially in accordance with the law only when legal acts are predictable. If the legal consequences can be confirmed or negated by rules or requirements outside the law, rather than the consequences determined by the law, although it may achieve a certain value at a specific time and a small place, but because people cannot achieve the expectation decided by law, it would generally reduce the likelihood that people act within the law. When people generally consider and use factors outside law to ensure the realization of the expectation of their behavior, the rule of law will be more distant from

30

See Kunming City People‘s Procuratorate Opinions On Make Full Use of the Procuratorial Functions to Service Economy Stable and Rapidder Development, Kunming Daily, (A 4) February 4, 2009; Jiangxi Provincial People‘s Procuratorate Work Report at the Tenth People‘s Congress of Jiangxi Province Second Session(Feb. 14 2009), by the chief procurators of people‘s Jiangxi Provincial Procuratorates Zheng Yejiu, Jiangxi daily, (B 4) February 27, 2009. 31 See, Notice of the Supreme People‘s Court on Issuing the Opinions on Compete to be Good Courts and Good Judges Satisfacted by People, Court Issue No. 6, 1999; The national court system Praise meeting for good courts and good judges satisfacted by people hold in Beijing, 1 Gazette of the Supreme People’s Court of the People’s Republic of China 37, 2001. “Compete to be good courts and good judges satisfacted by people” are the activities launched by Supreme People’s Court in national court system 1999. Since then, “good courts satisfacted by people” and “good judges satisfacted by people” are selected at the national, provincial, municipal and county level every year, People, people’s representives, and social organizations join to vote. These activities make coutrs and judges work harder and closer to people. But at same time, they are made to care more about people’s opinions on the cases they deal with.

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us. Therefore, legal formalism requires eliminating extra-legal factors in law implementing, which is significant to the formation of the rule of law and order. 3. To ensure the limitation of power. An important function of the rule of law is to limit the abuse of public power. Rule of law must set up a system to ensure distribution and mutual restraint of public power. Restraint relies on the strict compliance of laws and regulations. Legal formalism requires the use of public power by state organs be authorized by the law and in accordance with the scope and procedure prescribed by the law, which is also the requirement based on the rule of law to limit public power. Abuse of power will be prevented and the function of power will be realized only when such a requirement is fulfilled. The direction of power change in China’s reform is the decentralization of the central state power to local governments and other government branches. If we do not make good overall arrangements by law and strictly enforce law, then inappropriate expansion of power of local governments and other government branches would affect the country’s overall management. At present, conflicts of interests between different areas and different government branches and the astonishing numbers of examples of using government cards for personal transportation, using public funds for personal trips and feasts, shows the necessity of the implementation of the proposition of legal formalism. 4. To achieve the integration of legal culture and to ensure common development. Cultural diversity exists in China, but China is a unified country. Diversity is the basis for unification, and diversity is a unified diversity. As a result, China’s rule of law should be a unity of the rule of law based on multi-cultural. The formation of a unified legal system should have multi-cultural foundation and adaptability. In such a legal regime, diversity should not be the reason to hinder the development of a unified legal system, but should be the diversity within a unified legal universe. At present, China’s ethnic regional autonomy system is a good adaptation to China’s national condition. At the legislative level, it is important to achieve appropriate legislation harmonizing diversity and unity from the central government to local ethnic areas, and then make sure the effective implementation of the legal system that reflects diversity and unity. Appropriate legislation in this regard is the legal expression of cultural integration, and the implementation of legal system is to achieve integration. If the legislation is not scientific, law enforcement may need to invoke other requirements outside the law to accommodate the diverse characteristics. But if law enforcement or judiciary were always to do so, it would not be beneficial to the diversity among a unified legal system, and the common development of the nation and the peoples. This is also true for common development of the urban and rural areas, and other regions with unbalanced development. 5. To ensure every member of the society is equal before law, and to ensure the unity and stability of the social structure. In the reform process, the Chinese social structure is changing, and this change is at the structural imbalance stage. The imbalance is shown as the huge difference in power, wealth, and prestige between members of different groups and classes, and thus the huge difference between their political participation as well as the influence in the operation of the system. 32 Huge 32

See Yang Jisheng, Analysis on the Classes in Present Chinese Society (China Gansu, Gansu People Publishing House, 2006) In the book, the author has analysed the characteristics of classes and

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difference of people is a social rift, which would affect the social unity or oneness, at least it would deconstruct social stability, and would even tear the society apart (such as class antagonism and conflict in the past) if the difference is seriously huge. Therefore, we need equality law and strict implementation of the law to regulate and negate the adverse effects of such differences, to provide the conditions for the unity of society structure and social stability. Therefore, the implementation of law should not consider the status and influence of the members of the society or social groups or other extralegal factors, because in such consideration the importance of members of the lower class cannot be compared with members of the upper class. For example, when local law enforcement causes inconvenience, the response of an investor may be to withdraw his investment, but the response of a migrant worker can only be changing the place to sell his labor. The social impacts of the investor and the migrant worker are obviously different. The impact of a migrant worker’s compensation dispute is clearly different from the impact of a big company’s loan dispute. If a court makes wrong decisions for these two disputes, the social impact and the court’s ability to bear to pressure to correct the errors are different. At the moment, workers, peasants, migrant workers do not have effective social organizations to represent them to have the same social impact with the upper class society. If a single person wants to get the community’s attention and to have an influence, he usually needs to reply on the media, to form a “social condition and public opinion,”33 or try to attract the attention of the leaders. This is one of the important reasons at present that in many places migrant workers and other disadvantaged individuals show by jumping off bridges or buildings to realize their rights.34 At the same time, public opinion can become a source of social pressure to help disadvantaged people achieve their rights; it can also produce different effects on the normal implement of the law. When we emphasize social condition and public opinion as a factor shall be considered in law enforcement, and then we try to think who and which groups can best affect or constitute social condition and public opinion, we will find the major shortcomings of this proposition. When social conditions and public opinion and other extralegal factors are treated as a legitimate basis for judicial adjudication, law would likely evolve into a rubber seal to meet the requiretheir change in Chinese society since Chinese reform (1978–2003), especially in ch. 15, analysed the different characteristics of five classes in their property, status, influence power and reputation. 33 In recent years, social conditions and public opinions are the factores required to be treated seriously during judicial and administrative decisions making. So, the problems public opinions reacted strongly are easier to get the official attention and resolution. Some State organs issued documents Specially for this. See, Notice of the Supreme People‘s Court on Issuing the Opinions on Further Strengthening the Communication of Public Opinions, Court Issue No. 20 2009, 6 Gazette of the Supreme People’s Court of the People’s Republic of China 15, 2009. 34 See Wang Pu, Chen Lixiong, etc. Fifteen “Bridge Jumping Shows” at Haizhu Bridge and Eight People Arrested in Five Months, Yangcheng Evening News, (A8) May 15, 2009; Shen Yoron, A Man Guide Peasant Workers “Building Jumping Shows” frequently, Chang Jiang Business Daily, (32) May 28, 2009. “Jumping Show” is that the person stands at top of bridge or high building claim will jump off for his legal rights or benefits damaged and can not be relieved. This action always attracts great attention of people and government leaders, and so the issue can get resolution easily under the social pressure. The people who acted “jumping show” are generally living in disadvantaged groups.

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ments of people with signification influence. From this point of view, the meaning of legal formalism should not be ignored. III IMPLEMENTING

THE

REQUIREMENTS

OF

LEGAL FORMALISM

Legal formalism has its own rationality, but its limitations and problems that may arise are obvious. For example, stressing strict compliance of form does not respond well to social changes arising from new requirements. It may be detrimental to the realization of the substance of the law under certain circumstances, or may conflict with certain social values. For example, strict implementation of the rule of exclusion of illegal evidence may cause the offender to escape penalty; legal formalism naturally requires the specialization of legal work, which creates domination of society by legal elites (non-democratic); law rises higher than the society, producing legal oppression, and so on. These are the areas in which legal formalism is accused and criticized. Things always have two sides, such as legal formalism does have those weaknesses, but the advantage of legal formalism corresponds exactly to the weakness of the pursuit of pure substantive rationality. When there is no form, there will be no substance, because people can explain substantive rationality by their own criteria, and social management as a whole will become arbitrary without rules. This situation is the difference between form rationality and substantive rationality discussed by Weber, and the conflict between the two may exist forever.35 The rule of law requires the combination of both, rather than selecting one for the other. Thus, when dealing with the issue of formalism, as stated by professor Cass R. Sunstein, this is not a problem to have or not have formalism, but a problem of having what kind of and what degree of formalism.36 The requirement of legal formalism has its core propositions, but the specific ideas also have characteristics of the times. The balance between the requirement of legal formalism and the realization of social substantive value, is constrained by social and historical conditions, and therefore legal formalism also changes according to the change of conditions. China’s rule of law, according to the background and characteristics of China’s rule of law, for legal formalism to play its role, it must be in specific areas and in a special way. So, I put forward the following opinions for reference: 1 OPEN LEGISLATION AND CLOSE ENFORCEMENT. The rule of law should be good law, that is, the contents of law should be suitable for good governance requirements, values, fundamental interests of the members of the society, and the form has a complete and scientific system of norms. The rule of law depends on the effective implementation of such laws without being misinter-

35 36

See Dragan Milovanovic, A Primer in the Sociology of Law, Seconded Edition, at 40–50 (New York, Harrow and Heston Publishers, 1994). See, supra note 2, at 640.

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preted or filtered. To do so, it requires institutional arrangements to ensure open legislation and close enforcement. Open legislation means law as a system should be open in the legislative process, and its political commitments, values, interests, demands and other contents should come from the society. Society will have different requirements at different times, and the legal system needs to reflect those requirements through legislation in a timely manner. If there is no open legislation, the law would not absorb adequate social content, and the system would not have an external adaptation, and thus in turn cannot produce functions suitable for the needs of society. At the same time, in order to achieve these, legislation must create a scientific system of rules, the rules of which must be able to cover the social relations needed to be regulated. The system eliminates the conflict and gap between the rules. It is logically integrated and coordinated, and complies with the objective requirements of legal regulation. If the coverage of the rules system is not large enough, or there is conflict or gap in the system, it will force those who enforce the law to invoke extralegal rules to deal with management problems. Of course, open legislation does not mean that the legislature can freely create norms. Its activities are still constrained in form and in substance. Constraint in form means when exercising legislative power of creating regulations, the agencies at all levels must exercise such powers according to the authority of the Constitution and legislative law. Constraint in substance means the constraint of the basic principles of the rule of law. These principles include the people’s sovereignty, human rights protection, power constraints, due process, the supremacy of law, nonretroactivity of the law which adds additional burden on society, and so on. These principles are compatible with the nature of China’s rule of law, and an embodiment of the outstanding achievements of the rule of law of human civilization, and have been confirmed by Chinese basic laws, such as the Constitution and legislative law. No agency should violate the principles mentioned above when exercising its authority to create laws and regulations. Close legal enforcement means that law enforcement and justice must strictly comply with the requirements of established law, and must implement the requirements of legal norms in the society. In doing so, it must not invoke extralegal rules or requirements as the basis of the adjudication of cases. Social factors are only facts, not the premise. The premise is established law, which is closed at this time, and not open to society. If the legal system is open during enforcement, rule of law would be difficult to realize, and the value reflected by the legal system will also be difficult to realize. 2 STRENGTHEN JUDICIAL POWER TO RESTRAIN ADMINISTRATIVE ACTIVITIES. One of the contents of the rule of law is to supervise and restrain power. China’s current reform is characterized by decentralization; in particular, the central government releases the centralized executive power to the local governments. Thus, departmental and local powers are increasing, and have the trend of expanding. When the previous vertical administrative constraints decrease, there must be more adaptable new constraints to replace the old constraints, rather than abandoning con-

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straints. Judicial constraint is generally appropriate, since it will not directly control the administrative activities of lower government or government branches as administrative control in the past, but will only passively stay at the edge delineated by law, to ensure those activities do not go outside the edge, and to ensure those activities to follow the established law. China has had problems with executive power for a long time, that is, executive power will turn into chaos when the central government control relax, and will turn into death if the central government take control,37 which is the weakness of administrative restraints. On the other hand, judicial restraint can ensure the flexibility and adaptability of administrative powers within the law. The realization of this constraint requires the judiciary to strictly follow the legal requirements, rather than invoking extralegal rules to prove the correctness of administrative activities, because doing so would deconstruct such constraints.38 3 ADOPT AND IMPROVE THE MEASURES OF LEGAL FORMALISM IN JUDICIAL SYSTEM. These measures include: (1) The judiciary handle cases must based on established law, with a strict logical inference method. Judicial decisions (result) must be inferred logically from the established law (legal premise). Unless strictly follow the established law will result an absurd decision, no deviating from the established law could be permitted. (2) Strict interpretation of the law – uphold the lexicality principle. Interpretation of the law should be within the meaning of the text, follow a holistic approach and the legislative intent as much as possible (the six principles of constitutional formalism raised by Professor Solum above may be good reference). (3) Restrict the use of discretion of judges. Use technical means, such as creating precedent guidelines, requiring to describe the reasons for judgment, and so on, to restrict the arbitrary use of discretion, and to ensure the use of discretion to comply with requirements of law. (4) Guarantee due process. We should design a system and strictly enforce such a system according to the requirements of due process, and prevent using substantive legitimacy to negate the strict implementation of due process. The arrangements and changes of judicial process (in a technical sense) should be guided by the Supreme People’s Court promulgated guidelines, and amendments to the statutory procedures, should be done by the legislature but not 37

Since 1956, this issue was already mentioned and said would be resolved by Mao Zedong in his paper “On Ten Important Relationships”. See Mao Zedong, Selected Works of Mao Zedong, V. 5, at 275–277 (China Beijing, People Publishing House, 1977). 38 Here is a example mentioned by Chen Ran the journalist of Oriental Overlook in his report, The Regulation and the Reality of prohibition of Building Golf Line in Five Years. In 2004, State Council issue the regulation to forbid building golf line throughout the country for protecting cultivated land, in that time there are about 170 golf lines in whole country, but after five years the number of golf line increase to more than 500 in 2009, and all lines do get the permissions from local governments. The cultivated land protection meets the challenge from the alliance of business man and local governments. If allow or require judicature invoking important affairs and social conditions of local development outside the law as the cause to decide cases, then the Judicial action is not more than give the illegal conduct a lawful stamp with a rubber seal. See Chen Ran, The Regulation and the Reality of prohibition of Building Golf Line in Five Years, Oriental Overlook, V. 290, June 4, 2009.

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the judiciary. (5) Strengthen judicial self-discipline, prevent undue influence from the public opinion on adjudication. For example, to prevent judges and jurors from having improper contact with the outside world, and so on. IV CONCLUSION Using Weber’s terminology, it can be said that formal rationality and substantive rationality both have their own values. When using one as a standard to evaluate the other, we will see the issues of evaluation object. Legal formalism certainly has its shortcomings. Therefore, we need to pay certain price for adopting the propositions of legal formalism, just like we need to pay certain price to pursuit substantive justice and neglect form. This has tried to show that during its march toward the rule of law, given China’s history and tradition and in view of the political, economic, social and cultural characteristics China is facing today, we need to note the significance of legal formalism, and it is necessary to use the strengths of legal formalism to compensate our shortcomings. If we ignore the significance of legal formalism, we may pay a higher price, and it may take longer for us to build up the rule of law. Raising this issue at the World Congress of Philosophy of Law and Social Philosophy for discussion is because other countries may also have the same issue, and thus a discussion of such an issue can bring benefit to those countries. Also, China’s thoughts on this issue can serve as a reference for other countries.

QIAN XIANGYANG LEGAL POSITIVISM PHILOSOPHY I A CHINESE

AS

INTERPRETED

WITH THE

TRADITIONAL CHINESE

INTERPRETATION OF IS/OUGHT

Is/ought distinction is essential to what is known as legal positivism. It is upon this that ‘law as it is’ and ‘law as it ought to be’ are distinguished. And thereupon positive law or pure law is defined as the sole subject matter of legal studies as it belongs to is and can be rationally perceived, while morality, justice, natural or any abstract values are excluded from the province of jurisprudence as they belong to oughts, which cannot be rationally perceived. Only so, according to positivists, can the “science of law” be pursued.1 Is/ought distinction is also the root for the dilemmas and challenges of legal positivism. According to its critics, the denial of the ultimate values within the concept of law other than the positive laws implies the risks of ‘Might is right’ while the scientific goal of legal positivism is the abuse of rationality as the human law and the law of the nature are incomparable. Jurisprudence therefore cannot be either descriptive or general in the sense as science is.2 However different the rival ideas might be, legal positivism and its opponents seem not to dispute so much in terms of the is/ought dichotomy at least on the following two points: 1) Distinction: ought and is are essentially different; 2) Disconnection: ought cannot be derived from is. These, especially the second disconnection thesis, might have been the mainstream notions in western philosophy ever since David Hume, which have rarely doubted and challenged even by the competing schools of legal philosophy like the critics of legal positivism. But substantially different understanding of is/ought from the Western one does exist. This is what classical Chinese philosophy offers. Without the clear-cut conceptualization in the west, fact/value problem has been discussed in quite different forms in classical Chinese philosophy and has involved some quite different conclusions. However, there is an agreement between Chinese and western philosophies on the basic point of the distinction between fact and value. The traditional topic of 知 (knowing) and 行 (doing) is a typical example, which, though not equivalent to fact/value dichotomy, has covered in some degree the substance of it. The distinctions made between 为学 (knowledge) and 为道 (Tao) by Lao-tzu,3 见闻之知 (knowledge of the seen and heard) and 德性所知 (knowledge of virtue) by Zhang

1 2 3

See, for example, Kelsen, General Theory of Law and State, Harvard University Press, Cambridge: Massachusetts, 1949, p. 9. Dworkin, “Hart’s Postscript and the Character of Political Philosophy”, Oxford journal of Legal Studies, Vol. 24, No. 1 (2004), pp. 1–37 As interpreted by Fung Yulan, 为学(WEI XUE) and 为道(WEI DAO) are distinguished in the Chinese philosophical tradition that WEI XUE is to pursue knowledge while WEI DAO is to pursue virtues or moral values. Fung Yulan, Brief History of Chinese Philosophy, Peking University Press, 2001, p. 4–5.

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Zai,4 所以然 (what makes things what they are) and 所当然 (how things should be) by Chu Hsi,5 etc. have also covered one way or the other the current fact/value dichotomy. According to A.C. Graham’s interpretation, Chu His’s SUO YI RAN (what makes things what they are) refers to the matters of fact while SUO DANG RAN (how things should be) the values. These might be an example that the absence of a fact/value or is/ought dichotomies does not reflect a lacuna in Chinese thought and that the substantial question has been explored but in different terms or forms from the west.6 Since Chinese philosophy also recognizes the distinctions between the two, the inter-relation is therefore discussed. But striking differences arise here. While disconnection is the mainstream conception in the west, Chinese philosophy tends to hold the connection thesis that fact and value, instead of disconnected, are internally connected with each other. Chinese philosophy is characterized with its ideas on the internal connections between dichotomies.7 The basic notion of 天人合一 (the oneness of the nature and the human) lays down the fundamental principle to connect human affairs with the physical. Zhang Dainian takes 一天人 (the oneness of the nature and the human, 合知行 (the unity of knowing and doing, 同真善 (truth-good integration) as the fundamental character of classical Chinese philosophy,8 which demonstrate an opposite doctrine from the western in terms of fact/value relation. This is not yet the end of the Chinese-Western dispute on fact/value problem. In contrast with the clear denial of ought’s derivation from is in the west, Chinese philosophy holds explicitly that ought is derived from is. In The Great Learning (《大 学》), for example, all the value judgments like 诚意 (sincere thoughts), 正心 (rectifying the heart), 修身 (cultivating the person), 齐家 (regulating the family), 治国 (governing the state), 平天下 (harmonizing the world) are internally connected with 格物 (investigating or approaching things) and thereafter 致知 (complete or arriving at knowledge). 格物 and 致知 as interpreted by Chu Hsi mean arriving at knowledge by approaching things.9 Wang Yangming, following Chu’s teaching, tried to arrive to the ultimate virtues by approaching bamboos (格竹). When western-originated modern physics first came to China, it was named as 格致. Thus, according 4 5

6 7 8 9

According to Zhang, the seen-heard knowledge is about physical things, and not the knowledge of virtue while the knowledge of virtue is not developed from the seen-heard knowledge. (见闻 之知乃物交而知，非德性所知，德性所知， 不萌于见闻。《正蒙·大心》) According to Chu Hsi, each of the things in the world must have its reason that makes it what it is and its rule of how it should be. (“至于天下之物，则必各有所以然之故，与其所当然 之则，所谓理也。《大学或问》卷一）. With the former knowledge, people will not be ignorant while with the latter, people will not act wrongly. (知其所以然，故志不惑。知其所当 然，故行不谬。 《晦庵先生朱文公文集》卷六十四《答或人七》). A C Graham, Two Chinese Philosophers (Chinese version), Daxiang Press, 2007, p. 277. Like those of 上下 (the up and the down), 内外 (the in and the out), 人我 (the self and the other), 幽明 (the dark and the light), etc. Cf. Introduction to Chinese Philosophy, Zeng Chunhai(ed), Jilin Publishing Group Co., Ltd, 2009, p. 28. Zhang Dainian, Introduction to Chinese Philosophy ·Foreword, China Social Science Press, 1982, p. 7. There are controversies about the meanings of 格物 and 致知 in Chu Hsi’s interpretation whether things refer to physical world or social behavior and whether knowledge refer to that of fact or that of ultimate values. See 章太炎，《国学演讲录》，华东师范大学出版社，1995 ，“诸子略说”。

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to this understanding, value is not only connected with fact, but even takes fact as its foundation.10 II A

REINTERPRETATION OF IS/OUGHT IN LAW

The plausibility of Chinese philosophy and the comparison with its western counterpart have been explored and examined by the author in another paper.11 Conclusions have been arrived that the Chinese connection thesis of is/ought prevails over the disconnection thesis in the west. Value judgment can only be derived from fact judgment while truth is the only source of good. An example could illustrate this. ‘One ought not to drink and drive’ is a value judgment, but it is derived from the judgment of the fact that ‘Drinking and driving endangers life’. Without the latter is, the former ought will not exist.12 This illustrates not only the connection and derivation between is and ought, but also the objectivity of value. Why ‘One ought not to drink and drive’ is derived from ‘Drinking and driving endangers life?’ Actually, we find in the fact an interrelation between two elements of ‘drinking and driving’ and the ‘life’, while ‘drinking and driving’ is a negation to ‘life’, which means the existence of the ‘one’. Therefore ‘one ought not to drink and drive’ is just a reflection of the objective negative relation between ‘drinking and driving and the ‘life’ of ‘one’ per se.13 In the fact judgment from which a value judgment is derived, we can always find negative or positive inter-relation of fitness or unfitness between two elements. This inter-relation of fitness is the ultimate source of what is usually called as value, and it is objective and factual. Objective and factual value is therefore not only possible but also necessary. In a sense, the is statement ‘Drinking and driving endangers life’ and the ought statement ‘One ought not to drink and drive’ are just the different statements of the same value from different perspectives. Before this objective factual value, differences between is and ought statements are superficial. However, in terms of the inner constitution of these two kinds of statements, inherent differences do exist. A fact judgment, or is statement, consists of two elements, the judging person or power and the judged object. With the two, it is sufficient for an is statement to be produced. For example, people with their perceptive power discover the factual danger caused by drinking and driving to human life, and make the fact judgment about this objective relation(or value as it may be called): ‘Drinking and driving endangers life’.

10

A.C. Graham was sort of puzzled with Chu Hsi’s “所以然”与“所当然”. As he takes the former as the matter of fact and the latter the imperative, Graham thinks they are totally two different kinds of problems, which cannot be confused and united, and it is wrong derive imperative from the premise of pure fact. However, neo-Confucianism does indeed combined the two together and therefore causes a severe problem in the eyes of the westerner. A C Graham, Two Chinese Philosophers (Chinese version), Daxiang Press, 2007, p. 277. 11 Qian Xiangyang, “On Truth as the Source of Good: An Is/ought Reinterpretation”, Filosofia Unisinos, 10(3): 233–253, set/dez 2009. 12 For special discussions about the connection between is and ought, see Qian, 2009, pp. 242–243. 13 For special discussions about objective value, see Qian, 2009, pp. 246–247.

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A value judgment, or ought statement, on the other hand, needs three elements to be produced, which are the judging person or power, the judged object and third element as the criterion for the judgment. The extra third element is essential for the making of an ought statement and its distinction from is statement. For example, in the statement ‘One ought not to drink and drive’, the behavior of people is the judged object of the judging person while the factual danger stated in ‘Drinking and driving endangers life’ is used as the criterion for the value judgment.14 Thus the objective factual value is also revealed but in the form of an ought statement. The different inner structures of is and ought statements show the distinction between fact and value judgments; they also demonstrate the connection between the two with is as the source for ought to be derived. And we could accordingly know that, for the objective and factual value, descriptive and prescriptive statements of it are both possible.15 With the previous conclusions arrived at, the classical Chinese philosophy provides a new philosophical ground for legal positivism and its rivals, and shows a new light upon the problems that they are both interested in. Positive law, all the rules or norms, belongs obviously to oughts as they are essentially the value judgments about what people ought or ought not to do. ‘You ought not to drink and drive, ‘You ought not to kill’, ‘You ought not to breach contract’ are examples. Beneath the value judgments in positive law is the objective fact of the inter-relation of fitness between the actions that ‘you ought/ought not to do’ and other elements. For example, the relations between ‘drinking and driving’ and the ‘life’ of you or others, between ‘killing’ and others’ life and social harmony, between ‘the breach of contract’ and others’ interests and social harmony. This tells several things about legal positivism. First is that the usual positive law is not all about the concept of law. An abstract and objective value beyond positive law is undeniable while the positive rules or norms are just one of the forms to reveal the objective value. This might be the hidden factor to drive the positivist of Hart to admit that the minimum contents of natural law is inevitable in his concept of law.16 Secondly, there are at least two different forms to picture the objective value: is and ought statements. Positive rules or norms are the ought form of the objective values while is form of the values is also possible.17 This strongly challenges the usual distinction defined by legal positivism as is and ought in law. Traditionally, positivists define positive law as facts or ises while natural law, justice or other abstract values as oughts. Kelsen, in order to make law pure and scientific, excludes from legal studies the abstract values like justice, which he thinks belong to oughts.18 But the positivists seem to have mistaken black for white here, and their definitions of is and ought in law should be reversed. If Kelsen hopes to exclude oughts from legal studies, what ought to be excluded should be positive law, not justice. If Kelsen For special disscusions about the different constitutive structures of is and ought, see Qian, 2009, pp. 237–239. 15 Qian, 2009, pp. 246–247. 16 Hart, The Concept of Law, 2nd edn., 1994, pp. 199–200. 17 “Drinking and driving endangers life” is an example. 18 Kelsen, General Theory of Law and State, Harvard University Press, Cambridge: Massachusetts, 1949, p. 9 14

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hopes to study ‘pure’ law, his subject matter should right be the abstract and objective values, not positive law which is one formal reflection of the essence. Also, if Kelsen hopes to make legal studies scientific, he should not focus his studies on the positive ‘pure’ law. Because positive laws are ought statements while scientific laws are is statements, they are therefore incomparables. Actually, Kelsen is not alone. For all those who pursue the goal of legal science or long for a better certainty in human law, scientific law, with its general and universal validity, is always what they are jealous of. And they are keen on making comparisons between human and scientific laws.19 But science is typical fact judgment, or is statement, essentially different from the rules or norms of human law, which are typical ought statements. Even by classical Chinese philosophy, which holds connection thesis but maintains the is/ought distinction, human law and scientific law are still incomparable. If legal positivists insist on the science of law, the only thing they can do is to shift away their studies from the ought statements of positive law to the is statements of the same objective factual value from which positive law is derived. This leads to the question of prescriptive general jurisprudence. III DESCRIPTIVE JURISPRUDENCE Though the possibility of descriptive general jurisprudence is doubted by many, it gets its support from the above reinterpretation of is and ought. And the defense for the descriptive general jurisprudence could be divided for discussion into three different problems of ‘descriptive’, ‘general’ and ‘jurisprudence’. Is it possible for people to give a neutral descriptive report of law? The answer is obviously ‘yes’ from the above is/ought reinterpretation. People can perceive any existence within their perceptive power. And the perceptions can be either is or ought. As long as the perceived object is there, the perceiver can sure make fact judgment of the object while the true or false of the fact judgment is, of course, another thing. Perhaps in occasions when the third element is not available, value judgments cannot be made. However, the impossibility here of the value judgment is due to the lack of the third element, but has nothing to do with the judged object. The judged object per se, once there within the perceptive reach, cannot decide the possibility or impossibility of perception, either cognitive or value judgments. Positive laws are, in essence, value judgments or ought statements. But this essence does not mean perceptions of them can only be value judgments as well and fact judgments are merely impossible. Positive law, once there, is certainly an objective existence in this world. Now here comes a person with perceptive power, then we have the sufficient two elements – the judging person and the judged object – for the making of the two-element judgment, or fact judgment. Of course, the person can take up a third element, such as his feelings or emotions, moral principles or religious beliefs, to make value judgment of law. The possibility of the value judgment, however, does not exclude the possibility of fact judgment of law.

19

Selected Writings of Benjamin Nathan Cardozo, Fallon Law Book Company, New York, 1947, p. 252.

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Nevertheless, to the same question, the answer is ‘no’ to many people, among whom we find Ronald Dworkin. In his reply to Hart’s posthumous Postscript, Dworkin denies the possibility of a neutral and descriptive legal theory, contending that “a legal theory itself rests on moral and ethical judgments and convictions, … is not different in character from … the ordinary legal claims that lawyers make from case to case”.20 He gives as reasons two difficulties of the ‘neutral’ and ‘descriptive’ argument: first, ordinary political or legal argument “often includes, not merely as a neutral threshold to substantive controversies but as a central element in those controversies, argument about the very conceptual issues that the philosophers study”; second, the ‘descriptive’ is ambiguous. For the first difficulty, Dworkin illustrates with an example: “If the definition of democracy or liberty really is a neutral-threshold-issue, with no implications for substantive debate and decision, then why should politicians and citizens waste time arguing about it?” Indeed, a neutral and descriptive fact judgment will always have implications for value judgment. But such implications are not a denial of the existence of fact judgment of social issues, rather they reveal the connection between fact and value judgments, demonstrating that, as previously argued in the paper, is is the foundation of ought. People rely on fact judgment to make their value judgment. When their fact judgments are different, their value judgments will also be different; only when they have greater truth, can they have greater good. Therefore, even if definition of democracy or liberty is neutral and descriptive, politicians and citizens still need to argue about it. They need try to get a truer fact judgment first so that a better value judgment later. Whether smoking harms health could be, and in essence an is, a fact judgment. But tobacco companies have been busy arguing with doctors or scientists about this issue because this pure fact judgment has implications for some value judgments concerning the companies’ interests. Dworkin’s puzzle of the neutral-threshold-issue’s implications for substantive debate and decision clearly shows the fallacy of the cut-off of the is/ought connection by the western philosophies. Though is and ought are different and independent from each other, ought must have is as its criterion and judged object. In this sense, we can say that fact judgment’s implication, as Dworkin calls it, for value judgment, is inherent and objective, which exists as a factual part of both is and ought per se. The implication demonstrates is/ought connection, lets people employ is for ought, and, more importantly, proves instead of denies the existence of is. Unfortunately, probably due to the traditional is/ought disconnection thesis in the west, the implication tends to be one of the reasons why Dworkin denies the possibility of the description of social issues when he finds the claimed descriptions are often mingled together with prescriptions of social issues. With the previous discussion of fact judgment as the third element of value judgment, Dworkin’s question about the is/ought mingling should have been satisfactorily answered. However, an analogy may work here for better illustration. Man and woman are attractive to each other. This attractiveness is inherent or objective. Indeed man and woman sometimes make intentional efforts to attract 20

Dworkin, “Hart’s Postscript and the Character of Political Philosophy”, Oxford journal of Legal Studies, Vol. 24, No. 1 (2004), pp. 1–37

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each other. But this does not exclude the occasions that man and woman are still attractive to each other when they do not make any special efforts but just be him or herself. A woman/man has a special hair colour or wears a special dress or jeans, she/he is not necessarily trying to seducing somebody, she/he might as well just be her/himself. What we must realize is that just to be her/himself, as a matter of fact, can in itself be attractive, and such attractiveness is factual instead of intentional. By denying the possible description of social issues, Dworkin, to me, seems to insist that a man or woman must always be trying intentionally to seduce somebody, with his or her dress, hair, or even the shape of nose inherited from parents. He sees no factual attractiveness. The implication argument seems rather weak now. But Dworkin has some seemingly stronger ones, among which are the differences he finds between “natural kinds” and social values. Dworkin argues that natural kinds have physical structures so scientists can reveal the nature, neutral and value-free, of a tiger or of gold for instance, by exposing the basic structure like their DNA or molecular structures. But social values like justice or liberty do not have DNA, what they have are ‘normative’ cores. And if political philosophers hope to reveal the nature of these values, they can only do so by exposing their ‘normative’ core. Therefore the reports on the nature of social values will not be the neutral and value-free ones as the scientist have about the natural kinds; rather, they can only be ‘normative’ as well, just as the explanation of the color of red is virtually impossible without referring to its redness.21 Dworkin’s logic here is fairly clear, which goes that the nature of the perceived object decides the nature of the perception and therefore the perception of normative values must also be normative. But the previous discussion should have shown the logic is fallacious. The distinctive nature of value judgment is decided by two factors: relation and internality. While the targets of fact judgment can be social relations as well as physical objects, there must be a social relation involved in a value judgment. When perceiving a social relation, fact judgment takes an external view upon it whiles the relation per se to be the criterion for the true or false of the judgment itself. Value judgment, on the other hand, adopts an internal view when perceiving the social relation, taking one end of the relation as the judged object while the other as criterion. And the social relation is revealed by value judgment as the fitness of the judged object with the criterion, which is in a different form from fact judgment. Popular social values like justice or liberty are of course value judgments. Though people have different understanding about their specific contents, which is common and natural due to the different criteria used, these social values do share the common and stable three-element structure: judging person – judged object – criterion. It is just this three-element structure that identifies the distinctive nature of value judgment from fact judgment which has a two-element structure of judging person-judged object, with the third element of criterion omitted. The distinguishing function of the internal structures between fact and value judgments is just the same, at least in Dworkin’s sense, as that of the DNA or molecular structures between tiger and non-tiger, gold and non-gold.22 With the inner structure in this 21 22

Dworkin, 2004, p. 13. Dworkin, 2004, p. 10–11.

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sense, it is possible for us to go one step further into the ‘normative core’ to have neutral and descriptive rather than ‘normative’ report about it. What’s more, as previously said, the internality and the relation involved in value judgment are also objective and factual, which are therefore subject to fact judgment. So, social values with the ‘normative core’ do not make perceptions of them necessarily normative. Neutral and descriptive fact judgments are possible. Actually not only are fact judgments possible, but are they also rich in contents. These fact judgments can be those of the objective internality and relation, of the three-element structure, as well as of the each element in the structure. This might answer Dworkin’s question about the ambiguity of values’ description: descriptive in what way?23 It is descriptive in that it is the description of the concerned social circumstances, the description of the involved social relation, the description of the judged object, and, especially, the description of the criterion. It is the description of the criterion that helps with “an account of what makes one feature of a social or political arrangement essential to its character as a democracy” or other values.24 Whether or not Dworkin has so far been convinced with the descriptiveness of description, he might not be satisfied with the helpfulness of description. A fact judgment maker never tries to answer the question about ‘what’s good about it’, never tries to be a Judge Hercules, never tries to be interpretative, as he fully realizes that all those belong to the other realm of oughts, and he fully realizes that the value of fact judgment lies right in its descriptive essence not in its value as a value. That’s why he is fully satisfied with being purely descriptive, which is in itself of great help as foundation for value judgment. At the meantime he has no problem admitting the existence of interpretative value judgment. So Hart insist that Dworkin has the right to be interpretative but not the right to deny his right to be descriptive. However, Dworkin has a problem with the trick here. Experienced as a judge, Dworkin seems more interested in and impressed with value judgment making. When he finds the implicative, inferrative and suggestive character of Hart’s description for his own undertaking of interpretation, he just cannot believe that Hart is truly descriptive as self-claimed: Hart must be interpretative as well in some way. A young boy sees a blond lady in a beautiful dress and gets attracted. He cannot imagine she does not have a mind on him. He firmly believes she must be intentionally seducing him with her dress and with the colors of her eyes, her hair and her skin. Isn’t it a bit too self-sentimental! IV GENERAL JURISPRUDENCE “A central question for general jurisprudence today is: how far is it feasible and desirable to generalizing about law, conceptually, normatively, historically, empirically etc across jurisdictions, national boundaries, traditions, and cultures”25 One of the barriers to generality is the cultural gap. Religious beliefs, ethical and moral values, traditional customs, etc. cause essential differences on the fundamen23 24 25

Dworkin, 2004, p. 9 Dworkin, 2004, p. 12 Twining, Gloablisation and Legal Theory, Butterworths, 2000, p. 254.

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tal problems like crime and non-crime, justice and injustice, law and non-law. Thus, as some comparatists have found, comparability of law at this point is virtually impossible,26 how can anything be general to different systems? Laws, in essence, are value judgments, therefore, the substantial differences on crime and non-crime, justice and injustice, law and non-law, etc. are also different value judgments. Though the specific conclusions of the judgments are different, they still share the same three-element constitution, which is the primary generality of the substantially different legal systems. The perception of the common three-element structure could therefore be the first step to general jurisprudence; however different are the concrete laws. As the start of general jurisprudence, the study of the three-element inner structure is the neutral and descriptive fact judgment of law as values. To properly understand this, we need to notice several things. First, fact judgment of value judgment is possible as previously argued. Second, given that fact judgment is neutral and value free, descriptive perceptions of the three-element structures of legal values will not have the culturally caused differences as concrete laws themselves have, but will be general to all the different laws and therefore lead to the possibility and feasibility of general jurisprudence. Third, as derived from the previous points, general jurisprudence is fundamentally based not on the empirical and concrete legal concepts or principles, but, at a higher level of abstraction, on the study of the inner structure of legal values. And the empirical study of concrete laws as the content of general jurisprudence is the superstructure upon this abstract basis. Thus Bentham and Austin’s short lists of the common concepts shared by different legal systems27 shall not be the right path to their goals of universal or general jurisprudence. These concepts are too empirical to be the basis. Either Bentham or Austin has given a very short list, too short to carry a rich and abundant discipline of general jurisprudence. Even the short lists of concepts are not as common or universal as claimed, any of them, like Duty, Right, or even Law, can be greatly and substantially varied from one legal system to another in its actual connotation. General jurisprudence therefore cannot find the necessary generality here from them. What might be more appropriate to do is to dissect the concepts, to cut them up to find out their DNA or molecular structures shared by the concepts on Bentham or Austin’s short lists, as well as by the greater number of those beyond the lists that are apparently varied from one system to another. The DNA or molecular structure is just the three-element construct of legal value judgment, the study of which involves so much work that it will generate a rich and abundant discipline of general jurisprudence. Primarily, the study itself as fact judgment has four major targets that are involved in the legal value judgment: the judging person, the judged object, the criterion, and the factual relation between the judged object and the criterion. The judging person refers to the human power to make the value judgment. That is, the human capacity to know how much the judged object fits with the criterion, or a kind of measuring ability. The judged object refers to physical object, 26 27

Zweigert and Kotz, An Introduction to Comparative Law, trans. Tony Weir, Clarendon Press, 1998, p. 40. Twining, Gloablisation and Legal Theory, Butterworths, 2000, pp. 15–25.

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human conduct, etc., which can be the judged object in the legal value judgment. In case of human conduct, the study covers not only the physical movement of human body, but also the mentality. The study of the factual relation between the judged object and the criterion is the fact judgment of the relation itself as it is. As previously said, the distinction between the revelations of the relation by fact and value judgments is their perspectives. Legal value judgment reveals the relation from inside in a distorted form from what it is. The most significant study is about the criterion, or the third element, which are commonly the moral or ethical values, religious beliefs, etc. to work as the measurements for legal value judgments. But all these third elements can be traced down to ultimate fact judgments. Such heavy workloads will make general jurisprudence rich and no longer arid. But the methodology and agenda about how the work is to be done are yet some even tougher work that needs to be done. And this is beyond the reach of this paper. However, there are some basic principles that we can give a brief here. First, the methodology of the new general jurisprudence is doubtlessly interdisciplinary, involving comparative law, sociology, cultural studies, etc. and especially philosophy. Why philosophy is so important is because the revival of general jurisprudence needs substantial changes in the basic mode of thinking for people to approach the law, like the understanding of the nature of law, the concept of law, law as a discipline, law as an institution, etc. Purely empirical or technique-bounded approach as traditionally adopted will not work. Second, cultural differences obviously play a significant role here, for example, in judging powers and especially the third elements. But the differences are no longer a danger to the generality of the discipline of legal studies. This first is because such studies of law are supra-cultural, which, instead of based on particular culturally-impacted legal systems, root themselves in the internal three-element structure of value judgment. Thus cultural elements are the target instead of the foundation of study. Also, with the view upon the connection between fact and value judgments, the cultural differences are no longer disposable, but have, as principle, the final objective factual criterion as the common ground for the dissolution of them. Third, with the theoretical dissolution of cultural differences and the universal three-element structure of value judgment, can the meta-language of general jurisprudence be possible. Same as Bentham and Austin’s lists of legal concepts, sociological concepts like disputes, responsibility, order, process, etc. are not appropriate either to be the foundation for the meta-language of general jurisprudence. 28 This is because both the legal and sociological concepts are essentially same in being empirical, and therefore cultural-specific and parochial. Also, these sociological concepts, as revealed in the distinction between law talk and talk about law,29 will cause problems in defining the borderline between the legal and the non-legal, which will be deficient for an institutionalized discipline of jurisprudence. Meta-language of general jurisprudence, for the sake of its genuine generality and lawness, must go further to a higher level of abstraction and base itself on the H2O-like concepts on

28 29

Twining, 2000, p. 25. Twining, 2000, pp. 33, 37, 41.

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DNA or molecular level. In this context, to be abstract means a better chance to be general and universal in time and space as well as to be rigorously legal. Finally, there is an easy worry that jurisprudence thus established, for being too abstract and too general, will be too remote from and too esoteric to contribute to legal practice and legal scholarship. Such a worry could be discarded. Being abstract, this jurisprudence is not detached from empirical social realities and concrete legal institutions. Being general, it does not ignore the particular cultural differences. Instead, it bases itself upon empirical particularities while at the same tries to transcend them and the abstraction is achieved right from them. H2O is abstract but is got right from ice, water and steam. DNA is abstract but is based upon the physical biological entities. Law as an institution is in itself a kind of abstraction of real life, and still it is practically helpful with the real life. This general jurisprudence is a kind of abstraction of real life and of law as an institution; also it will be practically helpful with real life and with law as an institution. V JURISPRUDENCE:

LAW AS A DISCIPLINE AND LAW AS AN INSTITUTION

Being descriptive and general, jurisprudence as the discipline of law is essentially different from law as an institution in that law as an institution is value judgment while jurisprudence as a discipline is fact judgment. Law as an institution includes all the rules and principles (which are value judgments) and the institutions for value judgments making (legislations, judge’s decisions, lawyer’s defenses, etc.). Law as a discipline includes not only the empirical knowledge of how a concrete institution is running, but the more abstract knowledge of what a legal value judgment is made up of. Fact judgment and value judgment of law do not exclude each other. Lawyers or judges are more interested in what they ought to do for their clients or with their cases, so they are inside law as an institution. This gives them better chance to experience the value judgment side of law, however, this, as previously argued, does not give them sufficient reason to deny the fact judgment of law. To achieve a better understanding of this, it might be necessary to further clarify some points that have been previously made. Value judgment and fact judgment can be seen as the images of the same object-criterion relation from different perspectives. Thus “good” and “true” share the same objectivity but are essentially different in their ways to be constituted. So the concept of “moral truth” as used in meta-ethics is not an appropriate one as it tends to obscure the essential distinction between fact and value judgments. ‘Drinking and driving endangers life’ is a true fact judgment of the relation between drinking and driving and traffic safety. But ‘not to drink and drive’ as a good, though also an image of the same objective relation, is substantially different in that it uses traffic safety as the granted measuring criterion while the true does not. We must not confuse objectivity with truth and equalize the two. Good is also objective while at the same time it is not truth. Accordingly, necessity for the division between law as a discipline and law as an institution becomes clearer. Given the distinction between good and truth, only the discipline of law as fact judgment has the possibility to be general. Law students tend to tell their friends around: ‘I do law’. What is the Law they are doing anyway?

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For those who hope to be lawyers or judges, the Law refers to an institution in which they make value judgments for their clients and about their cases. This kind of Law must be particular instead of general because all the value judgments must have concrete positive legal systems as criteria. However, when we base ourselves on the universal three-element structure of legal value judgment and study their constituents as they are, we have transcend the particular rules, principles, moral values, cultural factors and all the worries about oughts in a concrete legal system or social circumstance, and we can now be descriptive and general. However, the Law in this sense is no longer an institution but a pure cognitive discipline. So, the separation between law as a discipline – fact judgment and law as an institution – value judgment is essential for the so-called descriptive general jurisprudence. The present law circle that is dominated by value judgment makers does not need to feel sad about the secessionist tendency. A special and independent discipline of law as fact judgment will enrich and improve law as an institution. This can be easily seen from fact judgment’s role as the basis of value judgment. If legal institution concerning drinking and driving is based still on value judgments of individuals, refusing any external help from fact judgment makers, what we have might be to encourage instead of prohibit drinking and driving. Some people may be right that they have done this several times and they did not end up in an accident but returned safely home. Some people may also be right claiming drinking, instead making them doze off, can make their brain more sensitive and quicker. Others can even demand their right to the stimulation and great joy they can have only from drinking and driving. But the actual legal institution we have is based on none of the above, but on a judgment that ‘Drinking and driving endangers life’. This is a general fact judgment instead of individual value judgment, and it has greater truth than the contingent individual experiences. So if we hope to have better law as institution, we need a better discipline of law as fact judgment. The greater generality and truth of law as a discipline come from its special essence as fact judgment. It is because the judgment is not solely from individual feelings or experiences, but has transcended them. The making of it is the business of a special profession of scientists, which quite likely involves the molecular study of ethanol, and microscopic study of the biology of human brain, rather than the business of laymen or lawyers, who love their feelings, emotions or value judgments. As Kant says, when there is a division of labour, when one person does not do everything, but each limits himself to a particular job which is distinguished from all the others by the treatment it requires, he can do it with greater perfection and with more facility.30 In order to better up discipline of law as fact judgment, the best thing to do is to recognize its own identity and give it the autonomy that it deserves. Value judgment makers ought to know where they could start and where they should stop. Such a division shall benefit law as a whole, both as a discipline and as an institution.

30

Kant, Foundations of the Metaphysics of Morals (Chinese Edition), Jiuzhou Press, 2007, p. 4.

AUTHORS Søren Stig Andersen University of Copenhagen Faculty of Law Centre for Studies in Legal Culture Studiestræde 6 1455 København K Denmark TEL +45 35322626 DIR +45 35323126 E-Mail: [email protected] Thomas Bustamante Universidade Federal de Minas Gerais Faculdade de Direito Avenida João Pinheiro, 100 Belo Horizonte, MG CEP 30.130-180 Brazil E-Mail: [email protected] Prof. Huang Jianwu Sun Yat-sen University School of Law Guangzhou 510275 China E-Mail: [email protected] Katya Kozicki Pontifical Catholic University of Paraná School of Law Rua Imaculada Conceição, 1155 – Bloco CCJS Prado Velho Curitiba/PR CEP: 80215-901 Brazil E-Mail: [email protected]

132 Zhu Liyu Prof./Dr. School of Law Renmin Univ. of China 59 Zhongguancun Street Beijing 100872 Beijing, PR China E-Mail: [email protected] Christoph Lütge Peter Löscher-Stiftungslehrstuhl für Wirtschaftsethik Technische Universität München Lothstraße 17 D-80335 München Tel 089/289-25130 Fax 089/289-25133 E-Mail: [email protected] Patricia Mindus Department of Philosophy, Uppsala University Box 627, 751 26 Uppsala (Sweden) Dipartimento Studi Politici, Università di Torino Via Giolitti 33, Torino (Italy) E-Mail: [email protected] Oche Onazi University of Dundee School of Law Dundee DD1 4HN United Kingdom E-Mail: [email protected] Prof. Hirohide Takikawa Osaka City University Japan E-Mail: [email protected] Zeynep Ispir Toprak Ankara University Faculty of Law (Ankara Üniversitesi Hukuk Fakültesi) Cemal Gürsel Caddesi No: 58 06590 Cebeci Ankara Turkey E-Mail: [email protected]

Authors

Authors

Vaidotas A. Vaičaitis Assoc. Professor Department of Public Law Faculty of Law Vilnius University, Saulėtekio 9-403, 10222 Vilnius, Lithuania tel. +370 5 236 6185, fax +370 5 236 6163 E-Mail: [email protected] Qian Xiangyang School of Law Sichuan University Chengdu Sichuan 610064 China E-Mail: [email protected] Sun Xiaohong Associate Prof./Dr. School of Law Shanxi Univ. of Finance & Economics 696 Wucheng Road Taiyuan 030006 Shanxi, PR China E-Mail: [email protected] Prof. Zhou Yun Associate Prof./Dr. School of Law Xiamen University 422 Siming South Road Xiamen City, 361005 China E-Mail: [email protected]

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Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève 2010. 196 S., kt. ISBN 978-3-515-09673-7 Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diversity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1

126. Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 127. Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 128. Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 129. Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 130. Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 131. Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3

The volume comprises a selection of papers delivered at the 24th IVR World Congress. All papers address the challenge of the construction of a Global Ethics in the context of fragmented and pluralist societies, in which the idea of an Ethical Space seems to be an unachievable project, but also an indispensable device for cooperation between individuals, communities and states. The idea of a Global Ethics is to be constructed from within different traditions and environments with a mutual understanding and exchange of opinions. In this

volume, we combine the ideas of Harmony (typical of the traditional Chinese legal philosophy) and of the Rule of Law (as it is understood in Western societies) to new ideals. By acknowledging the potential that these ideals have on a global scale, the papers of the first section, Ethical Dimensions of the Rule of Law address some of the key ethical problems in today’s world. In a second section, some of the leading legal philosophers in China propose a way to incorporate the values of Harmony and of the Rule of Law into the Chinese Law and Society.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-10081-6