On Law and History beyond Historicism

Is legal history history as the historian understands it?

Interlacements

It is a trivial truth that legal history is not economic history or art history.

For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.

Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific…

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Henk Geertsema on Problems with the Classical Notion of Causation

an excerpt from whose Which Causality, Whose Explanation? (Philosophia Reformata, Vol. 67 (2002)

The absolutization of causality in a specific modal sense did not start, though, with physics in modern times. Within theology the problem has been there for a much longer time. If in science physical causality is made absolute as an explanation of reality there is no room left for human freedom and responsibility. But a similar problem did arise in theology: how can human freedom and responsibility be united with the idea of the omnipotence of God? Dooyeweerd discusses the issue in relation to the cosmological proof of the existence of God. God is seen as the ultimate cause in a continuous series of causes.^[1] But this view seems to leave no room for human freedom.

The argument goes as follows. Either the idea of God as the ultimate cause is the result of a specific metaphysical position as in the Aristotelian view of potentiality and actuality where God as pure actuality is seen as the unmoved mover. But this approach does not prove anything for those who do not share the metaphysical startingpoint.^[2]  Or the argument relates to human experience but then the series of causes of which God is the ultimate has to be taken in a specific modal sense. It could be kinetic, biological or even psychological. In all cases, though, there will be no place left for causality in the normative aspects. As such a continuous series of causes leaves no room for a hiatus which could be filled up by another type of cause especially not one which is of a normative nature, because the latter “implies that the acting subject itself is a final point of reference in the normative aspects of the causal relation”.^[3] Besides, if God is taken as the ultimate cause this means by definition that the cause is absolute.^[4] So the argument leaves no room for human freedom and responsibility.

The error made is that God’s being the ultimate cause or origin of reality is taken in a modal sense. For the use of this idea – which Dooyeweerd as such accepts – within a theoretical argument it is necessary that it is understood in a temporal modal sense. But this is not possible and it must lead to insoluble problems. God as the ultimate Origin transcends human theoretical analysis. “For human thought it is absolutely impossible to form a defined concept of causality in the supertemporal fulness of meaning or in the sense of God’s creative act”.^[5] Therefore, every attempt to explain in a theoretical conception the relationship between the way God acts and the way in which creational processes occur will lead to antinomies. Human action already is incapable of being fully understood in a modal functionalistic way because as a person the human being transcends the modal diversity.^[6] For God as the Origin of created reality this is even more the case. In a way all modal causality refers to God as the Origin but not as the ultimate cause in a continuous series that is understood in a modal sense. The relationship between the sovereignty of God as the Creator and human responsibility and freedom therefore can not be explained or accounted for in a theoretical system limited as the latter is to the boundaries of temporal reality. Every attempt to transgress these boundaries will lead to insoluble problems. Either God’s sovereignty is taken in too limited a sense or human responsibility and freedom are given no room. There is a boundary here that theoretical analysis cannot transgress because of its inner nature. Where it does try to do so this is by itself of a religious nature: it is absolutizing a part of the creation by making theoretical reason itself into something absolute.

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^[1] Cf. NC II, 38ff.

^[2] NC II, 39.

^[3] L.c. 39.

^[4] L.c. 41. To do fully justice to the mediaeval position Dooyeweerd should also have discussed the distinction and relationship between God as primary cause and secondary causes that are part of the creation.

^[5] L.c. 41.

^[6] Cf. Th. Nagel, The view from nowhere. Oxford, 1986: Oxford University Press, 110ff. about the mystery of freedom.

A common good constitutionalism?

I for one do not believe in a theory-less constitutional interpretation;the constitution is a battleground of ideas of the ideal political ordering on many levels. The very question of what constitutes the common good invites a clash of perspectives.

Interlacements

Here’s a libertarian originalist response to Adrian Vermeule’s catholic integralist common good constitutionalism, which may be summarized in the following lines of the essay –
“That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the ‘wrong’ judges get in power.”

I for one do not believe in a theory-less constitutional interpretation;the constitution is a battleground of ideas of the ideal political ordering on many levels.  The very question of what constitutes the common good invites a clash of perspectives.

Our constitution itself is an interesting mishmash of liberal, social, and Christian ideas of constitutional ordering.

Yet it is true that more often than not, theory only goes to the foreground in the big order questions (the “construction zone” referred to in…

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When Filipino evangelical christians invoke Romans 13 like a magical incantation….

For the German Calvinist jurist Johannes Althusius (1557-1638), the biblical call to obey divinely-ordained rulers presupposes, to begin with, that they are legitimate representatives of God. 

However, when they offend God and defy true religion, they cease to be God’s servants and become tyrannous. As tyrants, they lose their political offices and return to private life; they then become subject to the natural rights of self-defense. 

Althusius was the first thinker – Protestant or Catholic – to offer a systematic account of political and communal life (probably outside of Thomas Aquinas). 

This he made in his famous work Politica Methodice Digesta, Atque Exemplis Sacris et Profanis Illustrata (1610), which is often invoked as the political theoretical basis of federated states today as well as of the Protestant political principle of” sphere sovereignty.“

Althusius, according to the American legal scholar John Witte in his 2007 book Reformation of Rights, is distinguished for his idea that tyranny is essentially a “constitutional violation.” 

By this, he means “a violation of the political covenant by which the polity itself was constituted, a violation of the constitutional duties of the rulers and the fundamental rights of the people as set out in this political covenant, and even more fundamentally a violation of the natural law and natural rights that undergird and empower all constitutions and covenants.” 

Witte explains further:

‘For Althusius, a tyrant was a magistrate who acted “illegally and unnaturally” (contra legem et naturam) in breach of the contractual and covenantal duties that he or she swore to God and to the people. Any “egregious,” “chronic,” “persistent,” “pervasive,” “willful,” “intentional,” and “widespread” breach of a ruler’s constitutional duties, abuse of his constitutional powers, neglect of his constitutional offices, usurpation of another’s constitutional office, or violation of the people’s constitutional rights and liberties was, for Althusius, a prima facie case of tyranny. ‘

Here, the jurist of Emden was merely following the logic of John Calvin’s commentary on Romans 13. Here, Calvin writes for instance that:

Magistrates may hence learn what their vocation is, for they are not to rule for their own interest, but for the public good; nor are they endued with unbridled power, but what is restricted to the wellbeing of their subjects; in short, they are responsible to God and to men in the exercise of their power. For as they are deputed by God and do his business, they must give an account to him: and then the ministration which God has committed to them has a regard to the subjects, they are therefore debtors also to them. And private men are reminded, that it is through the divine goodness that they are defended by the sword of princes against injuries done by the wicked (emphasis supplied).

Althusius, says Witte, also considered as prima facie tyrannical violations of due process the following, especially if done systematically

“false arrests, accusations, indictments, and sentences of innocent parties, false imprisonment or protracted pre-trial incarceration, torture, starvation, or enslavement of prisoners, use of anonymous indictments and untested evidence, denial of rights to defend oneself, to have counsel, to examine hostile witness, to introduce exculpatory evidence, or even to have one’s day in court following prescribed procedures, imposition of extraor- dinary tribunals or ex post facto laws, use of biased, bribed, or incompetent judges, imposition of unjust, inequitable, or widely variant punishments, failure to grant appeals of motions, judgments, or sentences, excessive fines, cruel punishments, and more.”

For Althusius, these systematic abuses require a systematic constitutional response.

Now dear Filipino Protestant evangelical christians, please apply that to our current political quandary.

Suing China before the ICJ over COVID-19

Interlacements

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for…

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Seerveld on Psalm 19

The below should have gone online in January last year, but for some reason, it got stuck in my drafts. So I am publishing it now.

The Revised Common Lectionary Psalm Reading for this Sunday (January 27) is Psalm 19.

I am reminded of these thoughts by reformational scholar Cal Seerveld on this chapter of the Psalms:

While we as God’s people necessarily go first to the Bible (Ephesians 6:4) for the Lord’s disciplining and setting our consciousness straight: while we search the gospels, proverbs, Psalm 19, the prophets and epistles to be convicted in depth of the reality of creation, the historicity of sin, the lordship of Yahweh revealed in Jesus Christ and the abiding presence of the Holy Spirit among his people until the Lord finally returns: that is, while we go first of all to Holy Scripture to get biblical eyesight, biblical insight, and to receive the fear of the Lord which is the headstart of wisdom, then we who become adopted children of God and are indwelt by the Holy Spirit must needs go search creation for drafting our fallible, christian solutions to the problems facing us in our sin-cursed world and society-which still belongs to the Lord and us!

That’s nothing new. But I’m saying with the authority of God’s written Word, Psalm 19, that no follower of Jesus Christ need be uneasy about whether study of biology, psychology or aesthetics is full-time kingdom service for the Lord.

We must not succumb to the temptation to use the Bible as an answer sheet to check out our biological taxonomy, as a chart of personality types, or like a Ouija board to determine “what now is art and music?” That would be a cheap misuse of the Bible and express an illegitimate, Immature desire for a ready-made, instant christian culture that shoves off on god what he entrusts us to do historically, generations mindful of the generations still to come. What we need is a richer grasp of creation in our christian philosophy and evangelical theology, and a new, urgent sense of doing scholarship as a community of saints, so that we can live with the spill-over of Christ’s promise in John 14-17 that the Holy Spirit will indeed lead us who are faithful to the end in the way of Truth (of. especially 16:12-15).

I’d like to add that Psalm 19 also speaks eloquently of the creational and creaturely ways in which all of creation has been constituted by God, for human flourishing. That is what we mean when we speak of creation – including our bodies, and the family as a natural community — as an ordered reality.  We deny that only at own peril.

The Euthypro Dilemma

Over at ThinkNet, a mailing list of people working in or are interested in reformational philosophy, there is a recent discussion yet again on the well-known problem in philosophy of the Euthypro Dilemma.

A member asked if anyone could explain it in 250 words or less. The philosopher Roy Clouser, one of reformational philosophy’s leading exponents in North America, replied with an alternative position (which rejects the Scholastic conclusion identified with Aquinas). Now I’ve read Clouser’s works before on Divine attributes (example, here) but I don’t recall him explaining his reformational alternative in relation to the famous Socratic dilemma in such clear terms (here reproduced with his permission):

The Xn doctrine of creation beautifully forks the false dilemma posed by Socrates. 

The dilemma is supposed to be that if something is good because God loves it, then it is arbitrary. That is, it is not itself good, but good only because of God’s approval. So for example, if good approved of murder it would be good. If that’s to be avoided, the only other position to take is that good things are intrinsically good and God loves them because they are good. But that makes good (and evil) exist independently of God.

The Xn doctrine of creation, as I understand it, forks this by insisting from the outset that God has created everything that exists other than himself, so it rejects the second tine of Socrates fork. But it does not follow that the command against murder is arbitrary and that it would be equally evil to eat peanuts if God commanded us not to eat peanuts. The reason is that God has created the standards of good and evil as real factors of the created world. So the commandments of God are not arbitrary but reflect the way creation really is. So the standard is neither uncreated nor arbitrary. The commandments are not only imperative, but revelatory of the way God made the world. 

The usual reply i get to this point goes: “So if God had made the world differently He could have made murder good? That still sounds pretty arbitrary!” There are 2 things wrong with that reply, as I see it.

1. The reply asks us to envision the world as it is now, with only that one change – which is impossible. I mean impossible for us to envision. As soon as someone says, “Suppose this law were different…” the consequences are unimaginable because any change in one law would require changes in others. For example, we cannot imagine a reversal of the law forbidding murder and still take the law of love to be the overriding ethical principle. But if it’s not love, what is it? What the reply tries to get away with is not having to say what other consequences its proposal would entail, and which are impossible to know.

2. Scripture tells us that God has, at times, given arbitrary rules to His people. There was no rule against eating peanuts but there was against eating shellfish or trimming your beard. Those were rules just because God said so, which is why they could later be done away with. They didn’t reflect the moral order of creation, but only served to make Israel different from other nations and to make Israelis see and feel that difference every day. 

The view of God’s nature held by the Cappadocian Fathers, Calvin, & Barth (among others) avoids the trap of thinking that any property of God must be uncreated because God is uncreated. Prov. 8 denies this for God’s wisdom, e.g., and there’s no good reason to think what it says doesn’t apply to His goodness as well. Goodness is a real attribute of God, but it is not uncreated. It depends on God sustaining it along with the rest of creation even though God has (from eternity) taken it into Himself – just as He later took into himself the whole created person of Jesus Christ. So even though it’s a property God has, it too is neither uncreated nor arbitrary that God has it.

To the question: “Do you mean God could have willed not to be good?” the answer is: What sense of “could” are you employing? Is it a moral term, a logical term, or what? There’s no good reply to that question because for “could” to have any meaning it must subject God to some aspectual sense of good requiring that sense to be uncreated

In a subsequent exchange, Clouser further explained:

The basic issue is not subjecting God to the laws of creation, including logical laws. Whenever someone asks “Couldn’t God have made things differently” they are asking a Q that can only be answered by subjecting God to what is Logically possible (or physically or morally possible, etc).
It is hard at times not to succumb to the temptation to see prior possibility as a condition for God’s doing something because it’s always a condition for us doing something. We have to remind ourselves that God is the Creator of all the senses of “possibility” as well as the creatures he makes subject to those laws. 

And, yes, murder is wrong because it violates the law of Love.

The usual objection to saying God created the laws of math and logic is the claim that if God created them then He could violate them. So can God really make 2 + 2 = 8? Can God make square circles? If so, can God bring it about that He is infinitely wise but also completely ignorant at the same time? (Plantinga has made this objection in his little book Does God Have A Nature?)

My reply is that saying God created a law doesn’t mean He can break it but that it doesn’t apply to Him at all. Supposing that it’s a necessary truth that nothing can be healthy that doesn’t have sufficient air, light, water and food, do the rocks in my garden violate that law? Surely not. Rather it’s the case that the law does ’t apply to them at all.
So God can’t break the law of non-contradiction because it doesn’t apply to Him and we can’t break it because it does apply to us.

This is why [Herman Dooyeweerd] said to me “Whatever can be proven would thereby not be God,” and it is why there is an unknowable side to God. God’s unknowable side is not unknowable because his perfections are infinite and overwhelm our capacity to grasp fully (the Thomist view), but because we can’t apply logical laws to Him at all.

For reformational philosophy, this understanding springs from the difference between a limiting idea and a conceptual knowledge of God’s self-existence. We can only know God through the former, and not through the latter. For Clouser’s explanation of this distinction, please zoom in to his Reply to Objection No. 3 (from page 24) in his essay on Pancreation Lost: the Fall of Theology.

Now of course today, there are those who dispute the view that the Cappadocian Fathers thought differently than their Western counterparts. But that would require another blogpost.

But check out also this essay by another reformational philosopher, Jeremy Ive, on the same question, from a covenantal theological approach (with insights from reformational philosophy).