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Jonathan Chaplin and H. Dooyeweerd’s Theory of the State

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Those familiar with the political philosopher  Dr. Jonathan Chaplin’s writings on the theme of the State will note that the key concerns found in his first two major works as a scholar dealing with an important component of the corpus of the late Dutch philosopher Herman Dooyeweerd’s body of thought are for the most part echoed in his most recent book – specifically in the chapters that dealt with the various issues implicated in Dooyeweerd’s theory of the state. In fact, these, all taken together, consist of at least a third of the book’s main body of 317 pages.

Indeed, the two main questions raised by Chaplin on Dooyeweerd’s theory of the state are either restated or further clarified in Herman Dooyeweerd: Christian Philosopher of State and Civil Society – without doubt, in the words of a noted American scholar of law and religion, “the go-to book on Dooyeweerd for many years to come.”

It is in this book where he foists what is yet his most radical  if not compelling  challenge to the Dooyeweerdian State – his thesis that while the State decidedly has a leading function,  it has no founding function.

I responded  to his critique of Dooyeweerd yesterday during a panel at the opening of the  2nd Kuyper Seminar at the Vrije Universiteit Amsterdam, to which he graciously listened. In part, I said in my paper on The State in International Law: Reformational Insights:

Chaplin argues that if coercion is written into the structural principle, how can it be consistent with its supposed basis in a good creation? Dooyeweerd, he notes, holds that such coercive power has been incorporated into the world order on account of sin; the state thus is an institution of “common” or “preserving grace” established with a soteriological aim of preserving temporal society in its differentiated condition.

Chaplin suggests that there is an incoherence between Dooyeweerd’s notion that pre-fall, the state’s sword function has been incorporated into creational norms from the very beginning and the latter’s contention that the state was instituted post-fall, on account of sin.

Chaplin thinks coercion cannot be consistently built into structural principles since structural principles are conceived as grounded in the original order of creation that was yet unmarred by sin.

This inconsistency could only arise from Dooyeweerd’s misreading of the state’s positive form (the territorial monopoly of coercive power) into its invariant or in his own words, “enduring” structural principle.

So Chaplin asks,  given that the state needs power of many kinds in order to advance public justice, is historical power so evidently more important than the state’s other functions such as the maintenance of territory and the collection of taxes?

He understands that for Dooyeweerd coercive power is indispensable to giving the state its unique identity, to distinguishing it from other institutions in society. But this, according to him, seems a questionable approach, as that it can still be argued that while the state does have a leading function, it does not necessarily imply that this function is “uniquely related to the possession of historical power.”

Still, for Chaplin it is not quite the case that we need to have an historical function to give the state its unique identity. It’s enough that we know it’s purpose is to ensure public justice. After all, while it can be said that the founding function is related to the leading function, but it is also related to other functions of the state; while it is true that coercive power seems to have been a feature of all known states, so has economic or other forms of power. Thus, Chaplin says that Dooyeweerd’s argument that coercive power is unique and so foundational does not compel and the attempt to single out one function as having a privileged link to the leading function seems artificial.  

Thus, he concludes that the state has no founding function.

Following this reformulation, there is a need therefore to transfer the coercive element into the variable side of human positivation. The better account, Chaplin says, is that the state’s coercive power is an historical development developed or positivized in response to sin, but is not part of its typical structure or its inner structural principle.

In this way then, he says, we can look at the state and the UN, or all bodies organized as public legal communities, as having the same typical structure, but with variegated positive forms.

From there it now becomes easy for Chaplin to suggest that based on Dooyeweerd’s notion of the “internal opening process” of societal structures,  the UN can perhaps be identified as an “international ‘state’ at the very early stage;” it is analogous to emerging nation-states prior to their development as an authority over a defined territory enforced by coercion, or an “ ‘immature’ international state” that needs further positivation so as to help realize the “pressing normative historical mission facing humankind in the sphere of public justice.”

This is an advantageous approach, he says, because it is more sensitive to the dynamics of the evolution of structures whose task is to establish public justice and avoids the danger of regarding the nation-state as sacrosanct, historically finalized structure

 The normative peculiarity of the state

…..the apparent contradiction between a good creation and the state’s monopoly of the sword written into its structural principle is Chaplin’s strongest argument for revising Dooyeweerd’s original conception.

Why should the state’s founding function based on a monopoly of coercion be inconsistent with an originally good creation? My argument is that it is good because God has put in place every possible support for human flourishing, whether in their obedience or disobedience. This is a necessary implication of the gift of free will to humanity – the capacity to choose between good and evil.

It also resonates with the idea, at least of human ways of living, of having been endowed with the capacity for good or for evil – the classic Kuyperian sense of the anti-thesis, where each human community or inter-relationship may either be directed towards God or towards some aspect of creation that it has turned into an idol.

Such a capacity cannot but clearly imply a divine anticipation of negative and positive consequences.  In Scripture, when God gave the first humans a choice between the Tree of Life and the Tree of the Knowledge of Good and Evil, God also laid down what the consequences were of opting for one or the other (Gen. 2:8; 3:1-4) .

This also implies that God, at the very least, knew what the consequences were of human choosing between life and death. Certainly, God’s sovereignty is severely limited by a view that He only conceived of the state after humanity sinned, as an ex post facto imposition.  It can well be argued that God’s sovereignty has seen it best to institute creational ordinances that would address any possible negative consequences of human choosing.

Hence the state is not a divine afterthought; to say that it was instituted as a response to the fall is only to stress the historical nature of its establishment. This is the better way of understanding or re-reading Dooyeweerd’s suggestion that the state has been incorporated into the world-order after the fall.

A new, post-fall, structural principle did not appear and slide without friction into the original order, as Chaplin suggests. Rather, as a principle set in place to response to a contingency, it was activated when the condition for which it was devised arose.  

His proposal seemingly paints divine sovereignty into a rather awkward picture where having been caught unprepared, God finds himself instituting after the fact of human sin the state with a monopoly of sword power to curtail human capacity for abuse. In this way, Chaplin can argue that Dooyeweerd seems to have suggested a situation where new creational ordinance slide seamlessly into the created order after the fact of the fall, despite his own contention that no new such ordinances can arise in history. 

A sensible alternative to Chaplin’s view is that from before human history, from before creation itself, God had already set in place ordinances that would govern the unfolding of the state in whatever context there maybe, giving allowance for the consequences of human freedom.

The founding function of the state in the form that it has now is consistent with a good creation in the sense that even at the point of creation, a good Creator, knowing all the possible consequences of the gift of free will to humanity, has in his sovereign will, set in place creational ordinances adequate to address such consequences.

In a world without sin – a Christian account of the state can perhaps say that all that the state needs is public trust to sustain itself, as Chaplin himself has suggested in another context.

This is just another way of saying that public trust may well be  the structural principle God has designed for a state unveiled in a pre-fall context. The other side of the coin is that the same divine providence has, at the point of creation, established an ordinance – a structural principle – that would apply in the event of human disobedience. Hence we have two sides of the same coin of creation that, in the beginning, was in fact “very good.”

The simultaneous realization of norms as a task of the state

To recall, Chaplin finds to be questionable Dooyeweerd’s view connecting the leading function specifically to the possession of historical power as the state’s founding function. Indeed he wonders why – given that the state needs power of many kinds in order to advance public justice – historical power is so evidently more important than the state’s other functions such as the maintenance of territory and the collection of taxes.

The question, I believe, can be properly answered by a careful analysis of the Dooyeweerd’s theory of modal aspects, in which in the process of disclosure, anticipatory and retrocipatory aspects interact, where the lower aspects serve as substratum to the higher aspects, and where the higher aspects reach back to deepen the workings of the lower aspects.

In the counter-examples given by Chaplin, from the point of view of disclosure, the maintenance of the territory and the collection of taxes are not even possible without the priority of the state being able to establish itself with the exclusive display of sovereign powers within its territory.

The fundamental and definitive nature of the founding function of the state will require the historical opening up of the substratum supporting it  (retrocipatory aspects) as well as the disclosure of the complex of its superstructure — the anticipatory aspects — that contribute to the disclosure and deepening of the meaning of the state’s task as an institution.

Bob Goudzwaard has underscored this as the task of the state to ensure the “simultaneous realization of norms.” Yet it must be stressed that the simultaneous realization of norms is not possible without the undergirding of the state’s historical power.

The reverse of a positive simultaneous realization of norms is a situation where a state experiences a simultaneous breakdown in key functions as seen in several contemporary examples of the so-called “failed states.”; all too often, this does not happen all at once but is a gradual process that eventually leads to a severe stress to the state in many fronts; It takes a complex of factors –and not just the loss of public trust – for the state to fall apart.

The state’s founding function is at the heart of the state-formation project; it is what grants the state its “normative peculiarity” –to borrow a phrase from political philosopher Matthias Risse – or what distinguishes states from other institutions in society.

Risse argues that this normative peculiarity is characterized by an “immediacy” in the state’s coercive function not otherwise displayed by other institutions in the international legal order.  There are two dimensions in which such immediacy is expressed: in law enforcement and in politics, according to Rise.  The first pertains to the fact that “living in a state means living in an environment where enforcement agencies pervasively have such access, and where it is up to internal political processes to regulate what specific shape such access takes and what constraints it is subject to.”

The second deals with the fact that “ it is the state that provides the environment in which individuals’ basic rights are, or fail to be, realized.”

While international organizations may be interested as well in both questions – in the proper enforcement of rules and in the protection and the promotion of the basic rights of citizens and other entities within a state’s territory– at the most basic level, it is the state that provides both the environment and the structures that make these twin concerns possible:

Legal and political immediacy, then, characterize what is peculiar about the state’s coerciveness. Citizenship is membership in an association for which these two features are distinctive, and those two aspects of the immediacy of the relationship between the states and its citizens provide reasons for associative duties restricted to people who share a citizenship.

Questions of ontology aside, the immediacy of the state’s legal and political structures to citizens within its territory  also undercuts  the practicability of Chaplin’s  argument – a necessary implication of his assertion that the state has no founding function – that we may treat the UN as an  immature “international ‘state’ at the very early stage” that needs further positivization so as to help realize the “pressing normative historical mission facing humankind in the sphere of public justice.”

Quite the contrary, the state is a necessary, though not necessarily sufficient, normatively peculiar institution performing such an historical mission.  Stated another way, the task of public justice still rests primarily on the shoulders of the state.

Indeed, as Skillen has noted a long time ago, human rights “are tied in with the very meaning of justice and injustice in states and thus cannot be protected or enhanced in abstraction from actual state and interstate structures.”  In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure.

——————————————-

Later over dinner at De Latie, we had a most pleasant conversation, discussing in detail our respective interpretations of the problem of the state.  He said my position echoes in some ways Dr. Jim Skillen‘s response to his theory; having listened to my talk on the connection or the lack of it between the state’s coercive powers and creation, he said he could see it’s plausibility and is in fact convinced by it, adding that it may constitute a “third interpretation” because according to him, Dooyeweerd actually said that the state is a post-fall institution established by God through a special ordinance. On the other hand, my view holds that the state’s sword power was a potentiality in the creation ordinance established by God to respond to human contingency.

He also said he might have used the rather infelicitous phrase “immature state” to describe the UN but maintained his critique of Dooyeweerd’s formulation of the state as if it were a final and fixed structural principle. He still doesn’t see why its historical founding function should be a defining element of the state.  I said that Dooyeweerd’s “transcendental empirical” method actually will show that what international law calls “effectiveness” is a well-established historical fact as far as the formation of states is concerned.

We also talked about Dooyeweerd’s reading of Aquinas and according to him, through Robert Sweetman’s work, he became convinced that Dooyeweerd has gotten Aquinas wrong in some ways.  According to him, it appears that Dooyeweerd, while he read Aquinas, was influenced a great deal by commentaries from the 19th century that carried the dualist line identified with  the Spanish Suarez school. Today, he said, there has been a recovery of Aquinas as a more integral thinker, and cited the works of Jean Porter as an important  influence in the rethinking of Thomism as a movement of thought. “Jim Skilen, however, does not agree with me,” he said with a wink, motioning to the direction of Dr. Skillen, who was seated at the next table with an American  friend of mine, Courtney Kane, who is doing her master’s on Dooyeweerd’s philosophy, also at the Vrije Universiteit.

His attitude, according to him, is to work with Thomists on common grounds. “The opposition to the Christian tradition is very strong,” he said. “I’d rather that I get as much help as I can from people who, while I may disagree with them on other points, share the same  moral convictions as I have.” He noted that in the context of where he is right now– the UK– most evangelicals hardly care about intellectual dialogue with other Christian traditions while among Catholics, the intellectuals read Catholic social teaching from standard social democratic lens. “I often have to tell them that they need to look faithfully and closely at the deep resources found in their own tradition.”

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Malaya Lolas tell Supreme Court to adopt South Korean Court decision

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ImageThe Center for International Law (Centerlaw) asked the Supreme Court today to consider an August 30, 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial case of Filipino Comfort Women –otherwise known as the Malaya Lolas case – still pending before it.

The Korean case arose from a suit filed by Korean Comfort Women before the South Korean Constitutional Court against their own Minister of Foreign Affairs. In their suit, they questioned the refusal of the government to settle the issue of whether or not there is still liability on the part of the government of Japan for the atrocities committed by its soldiers during World War II against them. The Korean Court granted the Petition of the Comfort Women and ordered that its government settle the issue with the government of Japan.In its decision, the Korean Court stated that blocking the payment of claims is directly related to the “infringement of fundamental dignity and value of human beings”. It further found that possibility of strained relations and problems with diplomatic ties is no excuse as it will be more constructive for both Korea-Japan diplomatic ties and Korea’s national interest to call on the Japanese government to take on its legal responsibility toward the victims.

It would be remembered that on April 28, 2010, the Philippine Supreme Court rendered judgment on the petition before it asking the Court to compel the Philippine government to espouse the claim of Filipina Comfort Women against the government of Japan (Vinuya v. The Hon. Executive Secretary, G.R. No. 162230, April 28, 2010).

The suit stemmed from a petition filed in 2004 by 70 members of the Malaya Lolas Organization (Malaya Lolas), who survived the Mapanique, Tarlac siege by the Japanese Imperial Army. In their petition, they charged that were victims of systematic rape and sexual slavery committed by the Japanese, and asked the High Court to compel the government to espouse their claims against Japan.

The Philippine Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism – which is a word for word lifting of pages from the three articles without the proper attribution – it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies.

All three plagiarized articles by foreign authors –an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005, and, an article published in 2006 in the Western Reserve Journal of International Law – argue otherwise.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration subsequently filed by the Center on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources are pending with the Court. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

Lawyer Romel Bagares, one of the petitioner’s counsels, explained why the Petitioners seek to have the Korean case admitted into the records of the Philippine case:

“Unlike our own Supreme Court, the Korean Court saw that its government’s refusal to settle the issue of liability with regard to the case of the Comfort Women was a violation of its Constitution and violated the Constitutional rights of its Comfort Women. Sadly, our own Supreme Court did not see it the same way in its 2010 decision. We are hoping that the Korean decision will provide necessary guidance to our own Supreme Court and they find wisdom in the reasoning of the Korean Court.”

An ethics investigation called by then Supreme Court Chief Justice Renato Corona cleared Justice Del Castillo of wrongdoing. The Committee’s exoneration of Del Castillo was later used as one of the grounds for a petition filed with Congress to impeach the Chief Justice, although the Senate eventually cut short the proceedings and zeroed in only on the question of the Chief Justice’s failure to properly account for his income as required by law. Corona is the first sitting Chief Justice of the High Court to be booted out of office in an impeachment proceeding.

Del Castillo himself was found liable for impeachment by the House Committee on Justice but for lack of time, the case against him could not proceed.

The Supreme Court also sanctioned 37 professors of the UP College of Law after the latter issued an open letter criticizing the High Court for the alleged plagiarism and twisting it committed in the Vinuya case.

It would later turn out that there were more instances of plagiarism in the Vinuya decision not discussed in the pleadings filed by the Malaya Lolas lawyers.Image
Here is the link to the English translation of the decision of the Constitutional Court of Korea

For more background to the plagiarism and twisting charges, click here, here and here.

Photo credits:
South Korean Comfort Women photo from vanessadfisher.com
Malaya Lolas photo from Vmeo

Written by Romel

April 2, 2013 at 7:03 am

Strictly Politics: Free Expression and the Supreme Court on live media coverage of the Maguindanao Massacre trial

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A television camera in court?

The European Court of Human Rights  has said that that there could be discussion of court proceedings as they were taking place, and that reporting including comment on court proceedings contributes to their publicity and is thus perfectly consonant with the rule  that hearings be in public. Moreover the media’s task of imparting information to the public and the public’s right to receive it, is all the more so where a public figure is involved, to wit:

[Para.] 50.  Restrictions on freedom of expression permitted by the second paragraph of Article 10 “for maintaining the authority and impartiality of the judiciary” do not entitle States to restrict all forms of public discussion on matters pending before the courts.

 There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person’s guilt or innocence on a criminal charge (see paragraph 40 above), this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large (see, mutatis mutandis, the Sunday Times (no. 1) judgment cited above, p. 40, § 65).

 Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (ibid.). This is all the more so where a public figure is involved, such as, in the present case, a former member of the Government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large (see, among other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 42). Accordingly, the limits of acceptable comment are wider as regards a politician as such than as regards a private individual [1]


[1] App No 83/1996/702/894, 29 August 1997.

We recently appeared on ANC’s Strictly Politics talk show hosted Ms. Pia Hontiveros to discuss the Supreme Court’s new guidelines for the live radio and television coverage of the Maguidanao Massacre trial. Prof. Theodore Te of the UP College of Law and Mrs. Melinda Quintos-De Jesus of the Center for Media Freedom and Responsibility were also guests.  Excerpts from of the talk show episode may be viewed here.

Written by Romel

June 30, 2011 at 8:14 am

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Blame it on the French?

Ah, the vicissitudes of colonialism. Cambodia’s Preah Vihear temple complex hit the headlines again after UNESCO declared it a new world heritage site only last July 7, 2008.

Well, it’s Cambodia’s, on the say so of the World Court in a famous 1962 case known to students of international law by the temple’s name. The Thais claimed the complex as theirs but in the end, they lost the legal argument. The World Court said the French, who used to be the Cambodians’ colonial master, had drawn a map in colonial days clearly showing the temple as part of the territorial boundaries of its colonial subject. Unfortunately for the Thais, they couldn’t show any such map establishing that from time immemorial, the complex had always belonged to them.

The declaration of the Paris-based Unesco has apparently opened old wounds.

Naturally, overjoyed Cambodians couldn’t keep to themselves their happiness over the declaration; their Thai neighbors of course, remembered the slight they suffered when they lost the case — and the temple — to the Cambodians. Now Thailand is sending troops close to the area that should no longer be in legal dispute. In the very place, Thailand still occupies land to the north adjacent to the complex that, according to the International Court of Justice’s half a century-old ruling, should belong to Cambodia.

So, is there going to be a shooting war between the two countries anytime soon?

We hope not.

My friend Bernard, a law student and resident of the University of the Philippines International Center, also hopes no such thing breaks out. He’s worried that the lone Thai and the three Cambodians who are residents at the Center would soon come to blows over the world famous temple.

Bernard is beside himself telling me the story that last night, the only Thai at the dormitory paid his Laotian roommate a visit after the former realized the terrible implications to his personal security of the numerical superiority of the Cambodians. The poor and outnumbered Thai saw the angry looks the Cambodians have been throwing at his direction since news broke out that the Thai government had deployed troops in the vicinity of their beloved temple in the wake of the Unesco declaration. He got so jittery that he decided to seek counsel from Bernard’s Laotian roommate, who happens to speak Thai too. The Laotian spent the whole night reassuring the Thai and later complained to Bernard how the whole thing is beginning to get on his nerves (not to mention eating up so much of his time and energy).

But for now, rapprochement seems the farthest thing from the minds of the Cambodians at the Center, their Thai counterpart thinks. And he is just as unwilling to surrender the temple to the Cambodians according to what international law has ruled long ago. The chill in Thai-Cambodian relations at the Center is but a preview to the messy border dispute the Association of Southeast Asian Nations (ASEAN) will soon have to face.

Good thing that this semester, no French student is billeted at the Center. That, or the international crisis at the Center would be sure to escalate and French President Nicolas Sarkozy just might be forced to send Carla Bruni to mediate.

Written by Romel

July 19, 2008 at 1:42 pm

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Prof. Solum on Bagares? 🙂

About a week ago, I joined the Social Science Research Network (SSRN), a cutting-edge, web-based academic service dedicated to the dissemination of the latest researches in social science. My author’s page on SSRN may be accessed here. I immediately posted my work Rethinking the Foundations: Sovereignty, Community and the International Legal Order from a Social Pluralist Perspective and lo and behold, Prof. Lawrence Solum of the University of Illinois Faculty of Law quickly took note of it in his well-regarded, if not famous, legal theory blog, right after his post on the most recent work of Prof. William Stuntz of the Harvard Law School ( himself an evangelical Christian academic who edited an anthology of essays on Christian legal theory published by the Yale University Press). Ah, the wonders of electronic networks!

Written by Romel

June 20, 2008 at 5:57 pm

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