JURIDICAL REASONING VERSUS POLITICAL THEORY W. J. STANKIEWICZ

Transcription

1 JURIDICAL REASONING VERSUS POLITICAL THEORY W. J. STANKIEWICZ Juristic th in kin g has cle a rly h a d a significant imp a ct o n popular conceptions o f political theory. I t is not the political theorist's b u t th e ju rist's conception o f sovereignty th a t is usually put forward. The jurist's views on equality find th e ir way into most discussions of democratic theory, and the most common v ie w o f th e relation between State and society is the ju ristic idea o f the State as a coercive institution, whose members are motivated b y the pleasure-pain principle wh ich i f properly manipulated b y th e State can be used t o solve a ll social problems. The influence o f ju ristic thinking is rather surprising considering its unsatisfactory theoretical assumptions, the manifest difficulties in h e re n t i n it s interpretations, a n d t h e obvious advantages o f the alternatives presented b y political theory. Thus the ju rist has to presuppose a State in order to establish law, wh ich then defines the State and is itself the 'sovereign'; somehow we are expected to believe both that the sovereign law derives from the citizens and that the law they decree must be enforced o n them: 'obligation' does n o t e xist i n ju rist ic thinking. Juristic theory has some plausibility with respect to such irregular forms of government as dictatorships. The State is then considered 'given' and the government as something that imposes its will on the cc:immunity: the community must be coerced into respecting that will. But then it is difficult to see how the la w could be sovereign. I n a democracy the theory loses its logic. When it is possible to think of law as sovereign as in a democracy, where in theory it expresses the will of all i t is not possible to understand its coercive nature. (A s an expression o f the community's will, i t wo u ld not need to be accompanied b y sanctions.) Thus, ju rist ic reasoning leads to a curious situation: if one thinks of the la w as coercive, one cannot possibly th in k o f it as sovereign; when one sees it as sovereign, one cannot possibly see it as coercive.

2 586 W. J. STANKIEWICZ And y e t f o r the ju rist one o f the essential characteristics of the la w is coerciveness. A decree which is not accompanied by sanctions is not, it would seem, a law; the sovereign's commands must entail sanctions in order to be laws: a simple " No Trespassing" sign is n o t a la w. The political theorist, o n the other hand, is disturbed by a conception of law and order which disregards obligation. He cannot regard the State as a purely coercive system. (He cannot, f o r instance, believe th a t the sovereign p o we r is capable o f coercing it s coercive agents army and police into being coercive in a certain desired way.) Furthermore, emphasis on coercion implies the existence o f t h e pleasure-pain p rin cip le o f mo tiva tio n a co n - ception o f human nature that few social scientists would hold today. Y e t th is v i e w remains a those members o f the general public who are strong advocates of the " la w and order" response to social problems. This is no longer t ru e o f those a ctu a lly responsible f o r maintaining law and order, b u t since i t is extremely hard to change the nature of the legal order, o u r society has had to evolve techniques of circumventing the law. Modern courtroom procedure is becoming ritu a listic w i t h respect t o th e ca rryin g o u t o f sentences. Mo st o f u s kn o w th a t " Te n years, h a rd la b o u r" does not mean "ten years" and most certainly does not mean "hard labour"; but not as many realize that in our society the court's sentence really amounts to a technique for assigning to some members of the community the responsibility for certain other members' behaviour. Prison officials have a great deal of discretion. Ma n y long-term 'prisoners', despite the court's sentence, are not held in prison. The prison sentence means only that f o r a period th e y a re subject t o the authority o f a person appointed by the court. We have retained the form of the traditional system wh ich sees a ll aberrant behaviour in terms of crime and punishment, but we have adapted its nature to the non-realized need for ensuring the official supervision o f certain individuals. This development has been prompted by the breakdown o f th e fa mily, wh ic h has g re a tly increased th e number of persons who have never acquired a sense of social responsibility.

3 JURIDICAL REASONING VERSUS POLITICAL THEORY It appears that the legal order with its emphasis on coercion is n o t re a lly the system we a re using t o maintain la w and order. W e have continued to use the fra me wo rk o f the o ld system in the sense that we have extracted an element which society considers essential, n a me ly responsibility. Th e practice o f assigning to social workers temporary authority o ve r individuals has developed because coercion the juristic view notwithstanding is not a supreme 'norm o f democratic society. A democratic society, lik e a n y society, mu st have a system o f law, b u t i t must adapt the la tte r to its normative system rather than vice versa. This, at any rate, is the political theorist's vie w. The ju rist's emphasis on sanctions leads to the curious contradiction that, wh ile sanctions have an order, the system o f law has none. Sanctions fo rm something like a hierarchy extending from a reprimand from the bench to the death penalty which gives an indication of their relative importance. This is not true of laws: we can perceive their order of importance only b y looking a t the corresponding sanctions. A s a result, obedience to the la w is made non-rational, except in terms o f self-interest. One is not permitted to agree o r disagree on the basis of principle. Instead, the la w invites an act of calculated self-interest: e ith e r weighing one's chances o f escaping th e penalty f o r breaking it, o r comparing the personal advantage of violating it with the disadvantage of penalty. The la w never raises the standard mo ra l issue o f normative conflict: "does norm X o r Y apply in situation Z?" Furthermore, there is a great reluctance t o a llo w the legal o rd e r to make a n y p ro - nouncements o n society's norms. This is because there is no faster wa y to destroy a n o rm than to incorporate it into the legal system, whereby the possibility of rational adherence is removed. (We do not kn o w how to inculcate norms so that they are held as p a rt o f a rational pattern resting on the definition o f the self. Unfortunately, when the la w attempts to promote the type o f behaviour wh ich wo u ld occur i f everyone h e ld the same norms in the same way, it shifts the issue fro m the relation between the individual and the universe in wh ich

4 588 W. J. STANKIEWICZ norms define th e in d ivid u a l t o th e relation between the individual and society, in wh ich the normative code is re strictive and threatening rather than, 'defining'. So long as the law presents itself as a supplementary set of norms necessary for social life no harm is done, but if the legal code presents itself as the normative set which outranks any other normative set "the la w must be obeyed" it undermines the concept of norms and that of individuality. The la w demands that norms never 'define' the individual but express o n ly his desires. The issue raised b y la w is self-interest: " Is it to my advantage to observe the law?" It is obviously sometimes to one's advantage to break particular laws if one can do so undetected. One will take one's chances about undermining society just as one will take chances about escaping punishment. This is precisely the problem with the juristic view. It invites a calculated risk and many persons are willin g to take it. Th e normative code o f society, on the other hand, invites risk-taking not for the sake of self-interest but with a vie w to the self-fulfilment resulting from adherence to what defines the self.) It is also possible t o regard the legal o rd e r as a system for ma kin g n o rms re la tivistic I n t h e past, ju rist s h e a rt ily denied th is vie w; th e y tended t o see the legal system as a reflection of natural la w in the social order. This was possible because le g a l sa n ctio n s c o u l d b e re g a rd e d a s f o rmin g a so rt o f h ie ra rch y presumably reflecting t h e h ie ra rch y o f norms in natural la w: fo r instance, a "fate worse than death" was possible i n th e mediaeval wo rld wh e n to rtu re wa s a n accepted p a rt o f ju d icia l procedure. Th e g ro wth o f humanitarianism badly muddled the sanctions and hence such normative order as the la w had. Today jurists are among the chief exponents o f relativism. The nature o f la w is such that they are committed to it. Political theorists as opposed to political scientists are not. To make such a comparison should prove useful t o political theorizing. I t is quite lik e ly that a close analysis o f ju ristic thinking and its consequences ma y cla rify the nature o f political th e o ry and it s relation t o normative orders. Political theory has always emphasized some fo rm o f nor-

5 JURIDICAL REASONING VERSUS POLITICAL THEORY mative h ie ra rch y containing a supreme good and some u l- timate norm o r norms. Presumably, theories o f society wh ich do n o t contain such a structure as is tru e o f those that attempt to make the State the supreme good and obedience to its la w the ultimate la w are not political theories; rather they are ju ristic theories about the role of law. Such theories say nothing about normative conflicts, because the concept of la w has no place fo r a hierarchical structure: 'equality' is an essential attribute of the law. Should a man attempt to plead that in breaking one la w he trie d to conform to another a common plea in ethics according to la w h is plea must be dismissed or judgment suspended until the matter is cleared up. Th e la w must always apply as i t stands and the ju rist's duty is to express the provisions of the la w so that obedience becomes p u re ly a matter o f self-interest, untainted b y moral considerations. Ethical considerations threaten the legal stru c- ture. Thus the question of 'freedom' cannot be tackled by a jurist, even if he happens to live in a constitutional democracy. The meaning he must give the concept is different from that given by the political theorist. I n the United States i t was, f o r in - stance, possible for jurists in the nineteenth century do decide that a slave who had escaped must be restored to his owner, constitutional statements about freedom notwithstanding. Because the legal constitution does not have a hierarchy of norms 'freedom' and property rights are on the same level the jurists could make such a decision with a sense of acting in the interest of justice. (Although the particular problem posed b y the Dred Scott case has been eliminated b y the abolition o f slavery, the courts are still plagued b y questions o f a simila r nature: thus, a democratic court has no right to interfere with the religious beliefs of a Jehovah's Witness who denies a blood transfusion to a child on the grounds that he 'owns' his children. There is n o satisfactory w a y f o r th e ju ris t t o decide such questions, because he is n o t permitted t o believe i n a n o r- mative hierarchy. Often enough, however, he resorts to a substitute b y appealing to the 'intent' o f the la w wh ich as a rule refers to the normative hierarchy operating with in society.)

6 590 W. J. STANKIEWICZ The gap between the political theorist and the jurist becomes apparent when we consider the thought of Thomas Hobbes, who in ma n y respects can be regarded as th e father o f modern political thought. I t is not so much the theory of sovereignty which is his most significant contribution, as his vie w o f the State as something resting on free choice. Previous theorists had allowed some measure o f choice under certain conditions as when the laws of the State failed to accord with the laws of God b u t Hobbes made life in society a matter o f choice for a ll those willin g t o a sk w h y i t wa s th a t the State had authority. He supplied an answer by referring to a self-imposed hierarchy o f values wh ich is never given up. Such authority as he recognized is the logical consequence o f the hierarchy of values not something imposed on man b y a hypothetic social contract in the past o r some wie ld e r o f power in the present. This authority is never independent of the hierarchy of values wh ich created it. I t is not itself a new fo rm superseding the old or ranking higher than the latter: it is the social expression o f internal hierarchy. To the jurist, however, 'authority' is conferred by office a position implied in Professor Perelman's vie w that "not everyone is entitled to mo d ify a la w that is considered to be unjust. I n order to act as a judge o r a legislator, one must have authority. Those wh o do not have that authority can me re ly attempt t o influence t h e holders o f ju d icia l o r legislative power." (Ch a im Perelman, "Justice and Reasoning" i n Law, Reason, and Justice, ed. by Graham Hughes, Ne w York University Press, 1969, p. 211.) No question is raised as to h o w the office acquired 'authority'. He re social organization is d ivo r- ced f ro m a ll other considerations i n a w a y wh ich p o litica l theory cannot accept. I f an 'office' has the kin d of 'authority' that allows it to decide questions which in other circumstances are left to the individual's conscience, the theorist must insist that there is a theory to bridge the gap. University o f British Columbia