The Concept of Liberal Democratic Law
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The Concept of Liberal Democratic Law

Johan van Der Walt

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The Concept of Liberal Democratic Law

Johan van Der Walt

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This book develops a historical concept of liberal democratic law through readings of the pivotal twentieth century legal theoretical positions articulated in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, Rudolf Smend, Hans Kelsen and Carl Schmitt.

It assesses the jurisprudential projects and positions of these theorists against the background of a long history of European metaphysics from which the modern concept of liberal democratic law emerged. Two key narratives are central to this history of European political and legal metaphysics. Both concern the historical development of the concept of nomos that emerged in early Greek legal and political thought. The first concerns the history of philosophical reflection on the epistemological and ontological status of legal concepts that runs from Plato to Hobbes (the realist-nominalist debate as it became known later). The second concerns the history of philosophical and political discourses on law, sovereignty and justice that starts with the nomos -physis debate in fifth century Athens and runs through medieval, modern and twentieth century conceptualisations of the relationship between law and power. Methodologically, the reading of the legal theoretical positions of Hart, Dworkin, Kennedy, Smend, Kelsen and Schmitt articulated in this book is presented as a distillation process that extracts the pure elements of liberal democratic law from the metaphysical narratives that not only cradled it, but also smothered and distorted its essential aspirations.

Drawing together key insights from across the fields of jurisprudence and philosophy, this book offers an important and original re-articulation of the concept of democratic law.

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Nomos and nominalism – the Villey thesis

1 Philosophical beginnings: Plato and Aristotle

The narrative that Villey develops in La formation de la pensĂ©e juridique moderne – a text that grew out of his lectures in the Faculty of Law of Paris from 1961 to 1966 – begins in ancient Greece. The two great Greek philosophers, Plato and Aristotle, responded to a major socio-political crisis that raised its head in fifth century Athens. The crisis concerned the collapse of the cult of nomos that until then provided the Athenians with the measure of appropriateness for everything they did. Nomos, explains Villey in the opening pages of the book, consisted in the ensemble of customary rules and practices that informed every aspect of Greek life and law from the seventh to the fifth century BCE. It comprised the ethics that gave form to daily routines of Greek citizens during this time, as well as the wisdom, prudence and jurisprudence that informed the political decisions of their governors and leaders. Pericles’ famous “Funeral Oration,” as recounted by Thucydides,1 can be regarded as a confident reflection of one of Athens’ great political leaders on the nomos of the Athenians. The irony of the Pericles’ oration should nevertheless not be missed. It eulogised the Athenian way of life – the Athenian nomos – just when it was about to fall apart.
1 See Thucydides 1928, II 34–46.
Athenian democracy lost its way in the last years of the fifth century BCE. The Athenians waged war on other Greek cities for twenty seven years (431–404 BCE) and became swayed by ambitious demagogues to commit atrocities during the war that eventually shook their confidence in the sense of virtue that Pericles’ “Funeral Oration” still extolled with eloquence after the first year of the war. Five years after the end of the war (399 BCE), it convicted Socrates of concocted crimes never committed and sentenced him to death. The death of Socrates at the hands of democracy spawned a philosophy that had no faith in democracy, no faith in deliberative politics and no faith in the ability of citizens to generally live their lives wisely and virtuously without being instructed how to do so – and ordered to do so – by a philosopher who had superior insight into the nature of all things. This philosophy was Plato’s. Its cornerstone was a tripartite division of the ideal city into three classes of citizens – ruling, military and peasant – who co-exist in orderly fashion under the command of a philosopher king who possesses rational insight into the demands of justice. The philosopher king also safeguards the justice and rationality of the city by preventing poets (through banning them) from seducing its citizens to succumb to irrational emotions.2
2 See Plato 1930, III 415–417 (on the three classes of the ideal republic), V 473d (on the philosopher king), and 1935, X 605e–607b (on the banning of poets).
Plato, observes Villey, evidently had no appreciation of nomos as a product of practical norms and practices that develop organically (like the growth of a plant or living being) so that no one gets to experience the law as imposed rules that must be “obeyed.” Plato believed order could be imposed on a city by someone with superior insight into the truth of things. He was an authoritarian political thinker who entertained the idea that the law could enforce the correct way of life. This understanding is surely the polar opposite of the concept of liberal democratic law that is contemplated in this book. The aim of this book is indeed to explain liberal democracy as a form of society and government that resists the Western or European history of the politics of truth that began with Plato and resurfaced again and again after him, often with bitter and bloody consequences. And even when Western philosophy endeavoured to retreat from Plato’s harsh philosophy of truth, it would almost invariably end up repeating it. Aristotle’s philosophy was the first case in point, as we shall see in Chapter 4, but this is not how Villey sees the matter. According to him, Aristotle’s philosophy constituted a formidable critique of Plato and in some respects he is surely correct. Aristotle responded to Plato’s idealism with a good dose of realism. The law, or nomos, he argued, is a reflection of how things are intrinsically. It is not something that can be imposed on existence from the outside, after abstract reflection on how things ought to be. It is something that can and must be observed through careful inquiry into the way things already are.3
3 Villey 2003, pp. 85–99.
All that is required to sustain or restore nomos in a city, argued Aristotle, is to be more observant of how things work, and to teach the citizens to be more observant of how they work. This teaching – paideia – was a key feature of Aristotle’s philosophical vision.4 This vision was evidently more modest and forgiving regarding the “imperfections” of human arrangements. In comparison to Plato, Aristotle was evidently more at ease with earthly imperfection. In fact, he incorporated it into his conception of perfection by developing a cosmological vision of eternal becoming. Things are imperfect, he argued, because they are always in a state of development. They are always in transition, always in medias res, always still in the process of fulfilling their ultimate goal or end (telos). Aristotle thus articulated a philosophy of an eternal flow. Everything is in flux. Panta rei, to use the expression of the earlier Greek philosopher, Heraclitus. But, Aristotle’s “flux” is very different from that of Heraclitus. His flux is a tame or tamed flux, an ordered flux. He arrives at this conception of a tamed or ordered flux through a philosophy of potentiality and actuality according to which everything is destined to fulfil or actualise its own ideal potential or potentiality. This philosophy ultimately retains more of Plato’s idealism than Villey suggests. Villey paints the picture of a much clearer break between the two thinkers. Chapter 4 will show more carefully that this portrait is not quite accurate. Suffice it to only observe here that the Platonic elements in Aristotle’s thinking also commit him to a concept of law that is hardly reconcilable with the idea of democracy, let alone liberal democracy. To begin with, he suspects democracy very Platonically of being prone to demagoguery. But, even when he does contemplate the possibility that democracy could be a good form of government for a virtuous polity, he does so on the assumption that the virtue of such a community is effectively in place in advance of any practices of democratic deliberation in which they may come to engage. His thinking ultimately entertains a concept of law that is not up for political deliberation. On the contrary, democratic deliberation is subject to law, subject to nomos. A key passage from Aristotle’s Politics makes this very clear:
4 See in this regard Jaeger 1936, 1944 and 1947. Unfortunately Jaeger’s formidable work ends with Plato and does not come round to discuss Aristotle’s views on education as the formation of the Greek person (Formung des griechischen Menschen). However, Alasdair Macintyre’s works engage almost constantly with education, formation and tutoring as the king pin on which his whole metaphysics of potentiality and actuality hinges as far as the actualisation of human potential is concerned. See Macintyre 1985, 52–53 for this concise but comprehensive statement of the problematic: “The desires and emotions which we possess are to be put in order and educated by the use of such precepts and by the cultivation of those habits of action which the study of ethics prescribes; reason instructs us both as to what our true end is and as to how to reach it. We thus have a threefold scheme in which human-nature-as-it-happens-to-be (human nature in its untutored state) is initially discrepant and discordant with the precepts of ethics and needs to be transformed by the instruction of practical reason and experience into human-nature-as-it-could-be-if-it-realised-its-telos. Each of the three elements of the scheme–the conception of untutored human nature, the conception of the precepts of rational ethics and the conception of human-nature-as-it-could-be-if-it-realised its telos–requires reference to the other two if its status and function are to be intelligible.”
[A]nother kind of democracy is for all the citizens that are not open to challenge to have a share in office, but for the law to rule; and another kind of democracy is for all to share in the offices on the mere qualification of being a citizen, but for the law to rule. Another kind of democracy is where all the other regulations are the same, but the multitude is sovereign and not the law; and this comes about when the decrees of the assembly over-ride the law. This state of things is brought about by the demagogues; for in the states under democratic government guided by law a demagogue does not arise, but the best classes of citizens are in the most prominent position; but where the laws are not sovereign, then demagogues arise; for the common people become a single composite monarch, since the many are sovereign not as individuals but collectively
 . However, a people of this sort, as being monarch, seeks to exercise monarchic rule through not being ruled by the law, and becomes despotic, so that flatterers are held in honour. And a democracy of this nature is comparable to the tyrannical form of monarchy
5 Aristotle 1932, IV 4 1292a.
Villey does not cite this passage, but puts forward instead Aristotle’s vision of a dialectic between nomos and democracy, or between natural law (nomos) and positive law (legislation and judicial decisions), in terms of which the latter is bound to the former and the purpose of the latter is only to complete the former. The principles of natural law reflect the way all things hang together properly, but they are broad and abstract and for this reason “incomplete” as far as concrete disputations about “applicable law” are concerned. Democratic decisions that lay down legislation and judicial decisions that apply this legislation must therefore be considered the practical wisdom or phronesis that completes natural law.6
6 Villey 2003, pp. 91–92. Villey does not refer expressly to phronesis or practical wisdom in La formation but he undoubtedly has the dialectic between general principle and particular application in mind that Aristotle discusses under the rubric of practical wisdom in the Nicomachean Ethics. See Aristotle 1989, VI 5.
This dialectic vision of legislation and judicial application that facilitate all things and persons in becoming what they already potentially are is certainly less disconcerting to liberal democracy than Plato’s vision of governmental and judicial imposition of alien truths on everyone and everything. It is, however, still vastly at odds with the concept of liberal democracy that will emerge from the chapters of this book. At stake in this book is a concept of democracy that liberates itself completely from all conceptions of nomos and natural law, and which does so in response to the exigencies of an age in which invocations of nomos and natural law no longer enjoy the authority with which Aristotle endowed them to bring fourth century Athens to its senses.
It turned out, however, that Aristotle was already too late in any case. The end of the war spelled the end of Athens’ glorious years. The Athenians never got a chance to try out Aristotle’s paideia and to restore the old nomos of the city. Alexander the Great intervened and largely deprived the Greek cities of the political autonomy they enjoyed until the middle of the fourth century BCE. Political philosophy consequently lost much of its significance for them. After Aristotle, the prominent Greek philosophers turned to a new kind of moral philosophy for purposes of sustaining a personal intellectual concern with the meaning of life as such, as opposed to the meaning of citizenship, or the meaning of life in this or that city. This new philosophy would become known as Stoicism.7
7 This point is made more expressly by Macintyre, but it is also implicit in Villey’s treatment of the Stoics. See Macintyre 1967, p. 8; 1985, pp. 168–170; Villey 2003, pp. 101–103.

2 Aristotle and Roman law

This is where the Stoic philosophers should have entered Villey’s narrative, but Villey clearly does not have much appetite for them. He postpones their story till much later in the semester when he turns to the humanist philosophers and jurists of the sixteenth century and consequently can no longer avoid addressing them. So he moves, instead, directly from Aristotle to Roman law with the insistence that Roman law was a true embodiment of Aristotle’s philosophy and wisdom. Roman law, he asserts, pivoted on Aristotelian cosmological vision of the intrinsic ways of the world and the need to observe these ways well so as to embody them in the written laws of the city and in jurisprudential decisions when necessary. Roman law was not based on Stoic philosophy, he insists, quite to the contrary of many who argue that Roman law is well permeated with Stoic wisdom.8 No, not permeated, maintains Villey adamantly, only edified and embellished with phrases taken from Stoic philosophy. The ess...

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