Monday, December 10, 2012

Philosophical Roots of Law and Politics


About four decades ago, the American theologian Harvey Cox, had already defined secularization as an inevitable process.[1] Almost a decade prior to that, Bryan Wilson, in his book Religion in Secular Society (1966) had considered it to be irreversible.[2] However, history has a different tale to say. The scepter of philosophy is hard to cast away. Somewhere or the other it holds its reins and pulls history on. In the 1920s a small group of scientists, mathematicians, sociologists, and economists, (not philosophers) had gathered together in Vienna to develop a unified philosophy that embraced science and attempted to destroy philosophy.[3] Their new philosophy came to be known as Logical Positivism. It, of course, suffered a natural death soon. But, what the empiricists then did not realize was that philosophy may be philosophically denied but not scientifically annihilated. In less than a decade, the world saw the angry reins of philosophies on the chariots of the nations as political philosophies collided, clashed, and combatted with weapons that science had produced to shock humanity with the Second World War. There had to be some other stronger ideology that had to deal with the issue of justice corrupted by corrupt philosophies such as Nazism that tried to base themselves on the evolutionary model provided by the scientific community. The Nuremberg Trial tried Judges who had committed the crime of obeying the unjust laws of their own regime. Some legal philosophy, and not science, had to decide the question of right or wrong during these trials. The definitions and directions were laid down in the London Charter of the International Military Tribunal.[4] The Trial, of course, was subject to much criticism; however, it did open a new chapter in legal history when it defined justice not merely as a domestic political affair but in relation to the notion of natural human rights; thus, the head of a state can’t just merely dictate any law under the pretense of positive lawmaking; he was accountable now to the international community. This also entailed individual responsibility of any person whosoever, irrespective of the laws prescribed by a particular nation. Thus, the ILC’s Draft Code of Crimes against the Peace and Security of Mankind declared in Article 2(1):[5]

A crime against the peace and security of mankind entails individual responsibility,

Article 3 continues:

An individual who is responsible for a crime against the peace and security of mankind shall be liable to punishment . . .

A deeper probe would question the basis of such a law that claimed superior and absolute status above all laws and demanded conformity to it. From the scientific perspective, didn’t the principle of struggle for existence and survival of the fittest look quite natural? In that sense, wasn’t Nazism quite close to nature? But, what science defined to be a principle of nature and what philosophy recognized to be just and right were two different things. The very reversal of the evolutionary natural principle is uplifted as the virtue of greatness: viz., benevolence and compassion. However, only a philosophically valid method can determine if a philosophical contention is tenable.

The above elaboration was essential as there is a tendency among educators to neglect the primary things altogether and focus on more tangible areas that cater tangible results only. However, the age long scheme cannot be broken so easily. The practical man can’t go on for long without the theoretical man; and, there certainly will come a point when the practical man will have to turn to the theoretical man. The British thinker G. K. Chesterton, over a century ago, had dedicated a whole chapter to this issue in his book What’s Wrong With the World (1910). He called it, “Wanted: An Unpractical Man”. One can’t talk of politics without considering the philosophical roots. Chesterton’s observation is appropriate:

Now our modern politics are full of a noisy forgetfulness; forgetfulness that the production of this happy and conscious life is after all the aim of all complexities and compromises. We talk of nothing but useful men and working institutions; that is, we only think of the chickens as things that will lay more eggs. Instead of seeking to breed our ideal bird, the eagle of Zeus or the Swan of Avon, or whatever we happen to want, we talk entirely in terms of the process and the embryo. The process itself, divorced from its divine object, becomes doubtful and even morbid; poison enters the embryo of everything; and our politics are rotten eggs.


[1] Harvey Cox, The Secular City (New York: Macmillan Pub. Co. Inc., 1975) p. 18.
[2] Néstor Da Costa, “Secularization and Sacralization,” http://www.religion.ucsb.edu/projects/summerinstitute/alumni.html, Accessed on November 27, 2012.
[3] Kelly James Clark (ed), Philosophers Who Believe (Illinois: InterVarsity Press, 1993), p.11
[4] Online Text available at Yale Law School Lillian Goldman Law Library, http://avalon.law.yale.edu/imt/imtconst.asp. Accessed on November 28, 2012.
[5] As cited by Christian Tomuschat, “The Legacy of Nuremberg”, Journal of International Criminal Justice 4 (2006), (Oxford University Press, 2006), p.841. http://faculty.maxwell.syr.edu. Accessed on 28 November 2012.

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