Sunday, August 3, 2008

Transcendent Justice by Carl Friedrich 1964

Transcendent Justice by Carl Friedrich 1964

The goal of this book is to explain how the ideas of Constitution, rights, laws, and justice--and their specific definitions--came to be. Freidrich, who was a hightly esteemed political scholar in his time does just this. Though he leaves out some details, i am sure they were to keep the book short (116) pages. Depite being so short, the book is incrediby dense as it follows the arguments from the various works of Plato, Aristotle, Cicero, Augustine, Aquinas, Locke, Hobbes and many others.

*the issues of property are best explained in an article cited by Friedrich called "The dvlpmnt of the concept of proprty" by McKeon

In short:

1) constitutionalism goes back to ancient greece and rome, but there it simply was a synonym for state. The rulers had to be watched over by the ppl, who themsleves had political participation, but other than political ones, ppl had few rits. Individual justice was something only the learned person (the "philosopher") could understand, and it was only an ideal that was never achieved on earth. The goal of the state was simply to remain together. There were other ideas tho: natural right to property and natural law that said men have reason and that reason tends toward what is good.

2) For Plato and Cicero (tho not Aristotle), The state was seen as a larger version of the household and just as the father ran the household, the rulers ran the state. in the 4th ce Augustine used this idea to explain The City of God, which was the ideal world, but the kings and heads of state were justified in autocratic rule because of a similar metaphor--He saw the state, and every smaller instititution down to a marriage, as a reflection of God's rule/law/justice. So, similar to greek and roman ideas, a tyrant was justified. He also beleived that a tyrant could be evil, but God did not want men to rebel, they should stay focused on making themselves good so they could go to heaven.

3) when Aristotle was translated in the 13th ce, Aquinas picked him up and applied him to Xn thot. Aristotle believed that the state was not in fact simply given by god, that it was run imperfectly by men. man still naturally possessed reason--tho now this reason tended toward what was good in God's eyes, what was just/right. Aquinas saw property as a natural right, but it should be avoided because it leads to greed, therefore, the church should not have property. He advocated that relus ppl should not have it, the state should. PPl should still follow the will of the rulers to b/c men should still focus on being good to go to heaven.

4) These ideas are taken up by reformation thinkers, but, as they are increasingly repressed by rulers, they begin to change their attitude on passive acceptance. They use the Aristitolean idea that the community are really the rulers and their voices together reflect the common good. This supports constitutionalism. They reject autocracies.

5) the idea of freedom goes back to the greeks as well--what it means for them and all subsequent thinkers up through Kant is that animals and children are not free, freedom only comes to rational man and the natural knowledge of what he can do w/in a community that doesn't restrict the rights of anyone else. and the right to survival is also embedded in this idea.

6) when the English, French and US constitutions are written, these Christian ideas are what they had in mind.

7) as rationalism revealed that ideas are contingent on historical situations, these ideals were questioned. and they began to lose their religious background. ppl began to think of constitutions as creating rights.

8) world wars and minority revolutions have forced governments to come up with greater, more "universal" rights, such as education, work, relaxation, etc.
and the state should protect those rights

9) he goes on to say that rights should not be ranked (except freedom of belief, which to him is most important) and govt impinging on liberties is only allowed for security, but even then it has to be carefully monitored.

my only critique with his conclusion that the UN dec of human rights are actually universal rights accepted by everyone--we know this is a prob, esp w/ world of islam--an islamic dec of human rights was created. he does admit tho that rights are dvlped from certain contexts and truths are not stable, they are and can change and ppl need to be educated to know about it

4-showing “w. constlsm is part of xn culture” is “following a contemporary belief that all cultural manisfestations should b seen as emanations of an interrelated system of values, interests, and beliefs”—which is against relativism

5-plato’s idea of “justice” (in republic)—“properly having and doing what is one’s own” –4 oneself and echoed by roman stoic def

-but plato says only person can judge if they have an understading of the thing’s essence and what’s “good”—only a seeker of wisdom (philosophos) has finished his search

-so Athenian constl law was very diff than amer—did not protect citizen in private sphere (see note #4)

6-platos laws, an idv has not rts, just laws to control his action

-for Greeks, const (politeia) was simply a collection of congeries of the poll order—even totalitarian regimes had constitutions. They did not restrict govt, simply a synomym for regime or structure

7-arist says that it can also mean a model poll order, tho it presupposes virtuous citizens

-still tho, no rts except for participating in pols

-the const’s worth was determined by the “survival of the regime, rather than the deignity and freedom of those composing it”

8-and roman’s didn’t protect the person, except in a “limited procedural sense”—their complex poll restraints were to “make rome strong and to provide the roman soldier-citizen w/ effective participation in its affairs”—their “constlsm” was not pluralistic

-used idea of virtues=manliness, predominance on battlefield and in marketplace of poll rivalry

-so even tho the idea of civitas was that the ppl alone r the source of the law, it was still the empire’s law

9-roman law, by necessity and by choice, played a great part in the formation of mod w. civilztn

10-roman civitas, according to Cicero and scipio is laws agreed upon by the ppl but also has a mix of 3 types of govt (monarchy, aristocracy and democracy)—provides stability (revs )—but they never mention rts of citizens—except in poll participation

-says funct of roman const was “diametrically opposed to the funct of constlsm in the xn trad” which was based on divine justice revealed—similar to platonic idea (both brot together by st. aug)

11-for aug—tru justice is only attainable by the faithful w/ aid of divine grace—and can never be found in an eartly commonwealth—xn or not

-the main purpose of the earthly city (civitas terrena) “is order and peace, and the laws promulgated in the service of these paramount goals must b obeyed by all xns, regardless of their rightness. For even the best laws r only ‘vesiges,’[ or ‘images’ of the true justice found only in the city of god which is not of this world”

12-for Cicero, sicne justice is giving everyone what is due him, but the republic needs consensus to stay together—of course the common wealth could not b based on justice

14-aug thot bad emporers were a scourge on men for their sins. He forbid using “transcendent justice as the orgzng principle for poll improvement”—xns must obey bad rulers—only passive resistance allowed

15-cicero believed in rtl natural law—inherent in man; aug believed it was divine

17-for mod w. constlsm—“the notion that the indv human being is of paramount worth and should b protected against the interference of this ruler, b he a prince, a party or a popular majority” is accomplished w/ restraints imposed upon those who exercise poll power

21-aug’s acceptance of poll order according to romans 13, later picked up by medieval rulers

-tho some began dvlping how to actively resist bad rulers—church decided when allowed

22-eg aqi said that if ruler was apostate then denizens were free from his rule and the oath of fealty which bound them. In other writers, it’s connected to the idea of tyranny, unjust (not for common good)

-by then “the common good has become inseperable from the effective functng of a church to which the care for the spiritual welfare of the ppl was entrusted. As such, the church was called upon to guard and protect that ineluctable personal sphere, whereby practicing what his rel preached a man might live his faith and thereby become just and righteous…which might permit him to hope for salvation. And sicne the church needed helpmates in order to fulfill this funct of guardian protector, the estates of the ppl became a decisive instittnl instrumentality. Medieval constlsm became the govt “by and w/” estates, which for english-speaking ppls is espitomized in the growth of parliamentary institutions…therefor 2 one’s relus convictions, protected by the pluralism of the feudal order w/ its stress upon landed property, exhibits in these early gropings that characteristic link of rel and property which has played such an important role int eh evolution of the idea of human rts. It led…to a firm acceptance of a poll order of divided powers for which the ancient doctrine of the mixed const provided a starting pt., even tho its purpose in the classical writers had been quite diff…”

23-Aqi saw tyranny as entirely corrupt and so its laws r not real; other 3 types of gove (mon, arist, demo) r just, tho mixed is best

-aqu supported constlsm and sometimes monarchy

24-tho morarchy only in certain circumstances and they still mustfollow law, const- tho “regal” and “poll” regimes rdistinguised

28-in the mid ages, ppl (incl aqi) thot god made a law of the world to “insure its orderly functioning” and poll law should be its analogy—law was “given and fixed”, tho manmade laws r distinguished from nat law

29-for aqi, justicie is what’s rt., lex is and “ordering of reason for the common good, made public by him who has the care of the community”

31-aqi: god’s justice (which establishes order)=truth=nat law

33-and it is also temptered w/ mercy

-and to have justice, then, is virtuous (intentional acts)—2 kinds: particular or general (common good, gen interest)—so acts that contribute to the common good r virtuous and just

-so ince law is there to order the common good, it is thusly “legal justice”

34-the 10 commandments (Decalogue) r the “precepts of justice”

-“nat law, by contrast, is known to all men by the light of reason, implainted in tehm by god”

35-first basic principle is knowing the good—so good should b done and bad avoided

-aq says all things towards which man has natural inclination are good—and should b persued by action, tho he lists them 1) self preservation, 2) sex, raising young, 3) seeking truth about god and living in society w/ other men

36-tho specific conclusions from these may differ

37-therefore, “the rule of one is good, more particularly if it is based upon elective office (the amer president)”

-and in summa he also says ruler should b subject to juridicial decisions and “the beauty of a ntn’s order…depends upon a good const”—moses was elected

38-says scholars have also pointed out that aq modeled his thots on const after his Dominican order of preachers’ one, where he was a member of legislative Chapters and Commisions and how Dominicans had to know how all instittns functd invlly and as a commonwealth

39-ptolemy of lucca then links roman value of love of the fatherland to xn concern for common good

40-41-Marsilius tho rejected idea of divine justice, he emphasized man’s will and thot man needed to b coerced for poll stability

42-felt secular govt should restrict “pretensions of the church” like William of Ockham (tho he was skeptical of man’s ability to know divine will)43—only faith in authoritative source

43- wil of Ockham , like s. aug, thot justice was only theological—any civil law that goes against divine

-therefore did not support constlsm

-concl: only aq’s theology, where god’s divine and nat law provide constl govt, leads to constl order of divided powers: it necessitates “an abiding faith in human beings as rtl and well-intentioned and therefore capable of effectively participating in the poll order and in the making of its laws by electing those who speak for them. A transcendent faith in justice as a capacity of god mirrored in man is the font of medieval constlsm. Thomas was only the greatest of this attempt at orgzng socity in operative “estates” which would have some prospect of success int eh difficult taks of making human laws reasonable, that is to say, worthy of that dignity of man which chrsist had vindicated for all men”

-ref to mckeon on dvlpmnt of concept of property

45-luther’s return to aug’s idea of 2 kingdoms engendered the prtstnts “at first indeiff to the probs of constlsm”

-b/c of vigorous transcendency, justice was “an unattainable ideal” and “eed of princely support counseled strong emphasis on the authoritarian aspect of govt”

-but this gradually changed, “as the needs of defending the faith against an emporer unwilling to bow to the prtstnt challenge was becoming more clearly felt” cf friedrich invisible peace and wolin the pols of vision

-even calvin, who was more authoritarian, recognized some rt. Of resistance “to rulers hostile to reuls reform”

-he even supported cosntsm in institutes, inspired other writers (46) called “monarchomacs,” Calvinists and catholic

47-constsm was being supported in engl in 16th ce outside rel at least by lawyer sir john fortescure (uses aq)

48-brit prtstnt writers who supported constsm: Richard hooker, sir Thomas smith (uses fortescure), says every citizen is represented int eh parliament, tho one w/ a king and division of power (mixed govt) (49)

50-hooker uses aqui’s 4 kinds of law 1) nat 2) celestial law of the angels 3) reason 4) human—all manifestation of divine reason, tho hooker changes meaning a little, law of nature more specifically referred to scienfic hypotheses

51-and aqi’s optimism that man uses reason to b like G—he therefor criticizes Calvinist Puritan pressimism as lack of confidence in reason

-wrongdoing is seen as lack of insight

52-and determine rt from wrong just look at the causes and what most men think, cuz most men think like G—suggests “common sense” thodoes not say it explicitly

-so rtl laws r made by reason and do not need revelation—criticizes puritan hate of reason

53-and consts r such human laws—“the law of the commonweal”—althusius uses same formula (54)—consent needs participation of the ppl

55-defended tudor system of govt which he saw as constl

59-althusius’ idea of state starts at bottom (state is property of ppl), incontrast to medieval hierarchies, top down—so pols is linking ppl for the attainment of common purpose—justice is “almost” positivist, tho justice is only known thru holy scripture esp Decalogue

60-tho he doesn’t deny paul’s statement of universal recog of what is rt (romans 2:14), but he stresses scripture for law—moral v civil law

62-he does subordinate rel to govtl reqs-says need relus (xn) freedom (peace of Augsburg 1555)—tho does not extend to unbelievers (except jew is limited)

68-in the critique of practical reason, kant says “rel implies the knowledge and understanding that all duties r divine commands…[which r] essential laws of every free will which must nonetheless b regarded as commands of the highest being”—ppl don’t know if he’s deist or theist tho

-theism: G to b condinually active int eh world, operating on man and nature; “deism lets G create the world and “wind up the clock”, providing it all its “laws of motion,” but not able to interfere w/ it”, aka “nat rel” (they used aqi and hooker)

-this “nat light”, innate ideas, includes idea that G exists, it is man’s duty to whorship him, this worhip is expressed in virtue and piety, repentence and retribution r divinely ordained, there’s an afterlife of punishment or reward

69-these innate ideas were rejected by locke who believed sense experc and man’s existence proved G and morals—but still used reason

70-nat laws r justice and he (like all nat xns) pts. To pauls letter to romans that says “the gentiles do, by nature, the things contained in the law”—calls these moral laws and law of reson is called nat law (71), reson needs revelation and science to have true knowledge and thus know justice tho a note says he doesn’t use the word “justice” that much (72)

73-locke called justice “the paramount law of nature and bond of all society”—and locke had a liberal xn view

74-that u need law of nat to have freedom (agreeing w/ aqi, calvin, hooker and althusius)—this is based upon the assumption that “law, in its ture Notion, is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest, and prescribes no farther than is for the gen Good of those under that Law”…Liberty is the freedom to do as one pleases “under law,” that is to acti in such fashion as to have one’s action be compatible w/ the similar actions of others”—similar to kant and other xn thinkers

-“now the law of nature is an expression of the will of God, who, creating man in His image, has endowed him w/ reason; bor by reason man comes to understand the law of nature” …”the freedom then of Man and and Liberty of acting according to his own will, is grounded on his having Reason, which is able to instruct him in that Law he is to govern himself by, and make him know how far he is left to the freedom of his own will”—note says Locke says children, b/c they r not ratnlly mature, don’t have freedom, and so they must b under parental authority

75-so, b/c justice is the “primordial, paramount law of nature,” all men r capable of it—for reason is in all men—contrasted to stoic teachings, like Cicero, who thot reason was exclusive characteristic of the elite of the wise.

-this idea provides previous xns and locke and kant the underpinning of constlsm—they r separate from older thinkers w/ a mod acknowledgement of constlsms’ “recog and protection of a sphere of independence” . freedom is for participation and indpnc “for unless men can retain a measure of indpnce, they cannot reason freely, and if they cannot reason freely, they become slaves”

-the sphere of indpnce has 2 main things: rt of free relus conviction and “that of property (in the broadest sense)”

76-so men form a body politic where he submits himself to determination of the majority (b/c they r reasonable)

77-tho the legislative power is always limited to the public good, which can ‘never have a rt to destroy, enslave, or designedly to impoverish the subjects” –for any form of govt

78-and it must b divided for checks and balances—so the ppl can continually judge it—absolute arbitrary power is tyranny. Tyranny = “the exercise of pwer beyond rt”—using power, not for the good al all, but for personal advantage

*79-“in short, the notion of human rts is closely linked w/ and instittnlly expresses locke’s transcendent notion of justice as embodied in natu law”—“was this the result of a failure to appreciate hobbe’s argument concering rt and law?”

-“hobbes is genrlly credited w/ having first made explicitly clear btwn nat law and nat rt”

-mans rts r limited by his lack of power, so he enters a poll order and gives one man (or assembly) his power, “unconditionally and w/out the retention of any rts, except that of life in the sense of physical survival.” “rts, then, in hobbe’s proper understanding do not exist, once the commonwealth has come into being and soverign exists”—“rts appear as ‘liberties’ defined by law”, esp the const

80-“property is understood as the outcome of laws made by the soverign and hence as polly established”

-tho self-preservation is a nat rt for him

-the self—hobbes—“is nothing but the bodily existence which man’s fear of violent death is concerned w/”; locke sees “the self as possessed also of a spiritual existence, manifested in his liberty and the property [all kinds]”

* -that’s why the bill f orts of 1689 protects all them and the const

83-there is another view of deism in the 17th and 18th ces where “deism stresses rtl as contrasted w/ revealed rel”

-seen in latitudinarianism of church of England (which locke was (82))

-kant revolted against rtl rel and unlimited faith in reason—used his philosophy as “critical rtlsm,” “provided the final formulation of a doctrine of transcendent justice as th foundation of constlsm”

-kant says rt and wrong r to b judged by reason, not by conscience, conscience is only to judge oneself morally (which is still duty)

-therefore, relus persecution is condemned b/c “it is lacking in conscience to condemn a man in a matter which permits some dobut”

84-tho god exists and its necessary to believe in him

-kants test for rtness is that it has to b a ble to b made public

-he believed morality was indp of rel, that it comes from man’s freedom—meaning that it correspons to the gen good of all men

85-believed concept of an highest good is the final end of practical reson, which helps ppl understand duties on Decalogue

-“moral law demands that man make the hightest good the object of all his behavior and can only do this by having will in accord w/ g—but moral law must determine his will”

-believes in authonomy of all men and renders suspect any govt that fails to “provide for the participation of all men in the determination of the law. Only such participation can insure men against their intstrumental abuse”

86-therefore, in effect, man’s moral judgements r legislation—so it follows that, since true morals r the same, legistlations coincide

-87-there is a world of necessity of nat man and world of freedom of moral man—law and justice r here, but since in real world ea case has many sides, a pure law cannot account for all them—so one can only dvlp principles and not a complete system of law

88-law necessitates freedom—to have both worlds (ideal and actual) coincide in mans mind—justice

-w/ this rt comes the duties: honesty and dignity, do no one a tort, and make sure everyone is protected=justice

-so possession is inherent in justice—very similar to locke, therefore deistic despite ppl saying otherwise

89-therfore, a constl order is “sacred and irresistible”

90-opposite of Spinoza who thinks man has nat rt to act deceitfully and break contracts

91-kant predicted that, since civic freedom is only ensured by constlsm, wars wil b avoided and eventually there will b a world cosnt

*92-when Us const was written, “the idea of nat rts had already become firmly implanted”—used ideas from engl declaration 1689 used in some colonial consts

-“partly in deference to such local affirmations of the constituent power, understood as popular sovereignty, but also b/c the crucial significance of these rts had not been fully grasped, all but some of the ancient procedural rts (habeas corpus, petition, jury) had been omitted from the original const. the conviction that a const must protect the inv against the govt by a bill of rts, was so genrlly shared, however—and it was reinforced by the fr. Rev—that such a bill had to added forthwith.”

*93-“into these bills of rts had been distilled, so to speak, the relus element of constlsm, that is the notion of transcendent justice sketched in the preceding pages. For the rts were considered ‘nat’ b/c they were seen as expressive of human nature, and that view of human nature was derived from xn ethics, even when embodied in such secularized versions of man were offered, e.g. by Thomas paine”—mirrored in the terms rts, libs, and freedoms

94-“in the course of the 19th ce, it gradually became clear that such rts were not something absolute and unchangeable. As the rtlst beliefs of the preceding age acquired historical perspective, rts were recognized as constlly created and guaranteed. Comparisons of diff ‘bills of rt’ reinforced the conviction that such rts varied from time to time and from place to place”

-“’nat rts’ gradually were transformed into ‘civil libs,’ the range of activities of the citizen, the transformation was, of course, closely linked to the forward march of democratization”, as those rts shifted to give rts to minorities, freedom of rel became broader, academic freedom

-“in the more advanced democratic countries, those rts which served the poll funct of better enabling the citizens to participate, freedom of the press, of assembly and of assoc, often summed up in the gen freedom of expression, moved into the foreground of attention, while the rt of property was subjected to restrictions and limitations arising from the widely felt need for greater social control and for restraining the concentration of ecoc power”

95-civil libs were expressed in john stuart mill’s liberty—libertarian in terms of social utility; aclu started

-tho marx saw those as class interests only, idea was that “freedom reqd social and poll org which would overcome both nat and man made obstacles to the realization of indv freedom”—found in bentham

96-“self-determination” goes back to greek freedom for poll participation, was used in draft of UN uinv declrtn, tho not actual one

-“civil libs, including the rt of self-determination, have however in the 20th ce been rivaled not only by the older personal rts, but also by the freedoms suggested in Roosevelt’s proclamation of The Four Freedoms and embodied in quite a few of the postwar consts as well as the UNUDHR. These new freedoms r rts of an ecoc and social security, to work [tho used in fr rev], to rest and leisure, to ed, to an adequate standard of living, to participation in cultural life, and even to an intl order insuring these rts”—work and ed rts were demanded in fr dec of 1793 and govt action, [ed rt demanded by john adams (102)]

-these freedoms asked for govt to insure and help as oppsed to old freedoms that restricted govt

98-sometimes the writers of these may get carried away w/ “humanitarian enthusiasm” and write extravaganzas, but “a principle is not invalidated by its over extension, although sucha reduction ad absurdum is a fav tool of poll argument”

-and social rts, esp those of freedom from want, r not “communist”—marx and engels saw nat rts as “bourgeois prejudice,” thon at rts have been used in consts of commie states

-“the fuct of a const is to provide a myth as much as charter the operational rules or a bill of rts”

99-social rts in consts r the result of struggles for equality and freedom, so rts for want “pre a response to a new and diff situation of men frustrated by technological innovation a dn the like”

-3 sets of rts: rel, vote, work—corresponding freedoms: indp; participation; and creation, invention and innovation

100-w/out these man is crippled, “preventing him from being a person in the full sense”

-difficulty to enforce them does not invalidate them

-“rts have an objective existence; they flow existentially from the very nature of man; as do the freedoms which correspond to them”

-all men r capable of relus conviction, of voting, of working. So this makes this these the core of rts—so the most comprehensive rt is this rt to self-realization, freedom

101-these cannot b sharply separated, eg rt to property could b seen in terms of all 3: protect from govt, basis for voting, protect small biz from monopoly

-and some rts r deprived from forces outside the poll order

102-and sometimes it depends on where u r socially, eg ed 4 rich is apart from pols, but it’s directly related for the poor

104-failure of men to know rts “creates great obstacles to their enforcement. For unless a complaint is made and insisted upon, the law enforcement authorities r likely to let sleeping dogs lie”

105-“serious injustice may dvlp and continue to prevail, b/c of the ignorance or indifference of the underpriveledged”

-tho, b/c rts r “closely linked to the conception of man in particular communities”—diff ppls ideas of rts may conflict

106-friedrich says UNDHR is truly universal tho as well as the eurpn dec for all eurpns, so states should not go gainst human rts

107-criticizes UNDHR’s reliance on democracy b/c ppl have diff ideas of democracy and “public order,” “gen welfare” and “morality” r also vague. “These limitations r apt to render these rts nugatory”

108-but w/out power, rts of minorities may remain a “fa├žade”

-calls for revision of older constl stystems

109- “amer bill of rts is no longer adequate”

110-many rts conflict. Eg freedom of expression over the air and property rts; fair trial and freedom of press—so rts cannot b ranked (111) in a fixed order, ea must be taken into account

111-and “no poll authorities can b relied upon for such protection, unless an alert public is constantly on the watch and ready, indvlly and collectively, to insist upon the enforcement of the rts it recognizes as expressing the community’s values, interests, and beliefs. The old saying that eternal vigilance is the price of freedom has lost none of its relevance, or has the evangelical assertion that ‘the truth will make u free.’ That truth is not given, settled , and final, but is set as a task”

113-big prob arises w/ violent revolutionaries whose ideals r fundamentally diff, sometimes infringement is justified for security—but only after clearly stating the overt acts that make a danger, beyond doubt—refers to brit public order act of 1936, forbade wearing of facist uniforms

-urges systems set so everyone learns rts

114-says consts should b alterable

115-then friedrich contradicts self (on no ranking of rts issue) by saying protection of freedom of re is paramount, other rules less so b/c it’s the “innermost self”, includes “dignity, rt. in conviction, his belief, his faith”

-says while defs of rts may vary, they all contain a common core: “the recognition of man’s self as a person possessing intrinsic dgnity and hence entitled to an opportunity for fulfilling the potentiality of his being: indpc, participation, and creativity r universally valued, but their rank order is not fixed nor based on settled, absolute knowedge”

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