"Conception of Rule of Law from an Idealist Point of View"

"Conception of Rule of Law from an Idealist Point of View" KABASHIMA, Hiroshi, Prof. Dr. Tohoku University, Sendai/ Japan kabashima@law.tohoku.ac.jp Contents 1. What is Idealism?...1 2. Kant: Categorical and Hypothetical Imperative...2 3. Hegel: Dialectic Overcoming the Dualism...5 4. Idealist Conception of Rule of Law...7 5. Concluding Remarks...8 1. What is Idealism? At the beginning of our consideration about rule of law on hand, I would like to explain what the "idealist point of view" means in the title of my report. "Idealist" means thereby neither the attributive concerned with something ideal, nor the person who prefers to realize his own conception of ideal in the public life. The word "idealist" in adjective and "idealism" in noun is related to the philosophical viewpoint shared by the giant German philosophers from the late 18th to the early 19th century, like as Kant, Fichte, Shelling, Hegel etc. Idealism in this sense is defined in the lexicon: idealism characterizes a mental attitude which, in contrast to positivism and materialism, considers the contents of the spirit as highly ranked in the reality (Idealismus bezeichnet eine Geisteshaltung, die im Gegensatz zu Positivismus und Materialismus den Inhalten des Geistes einen hohen Wirklichkeitsrang zumißt). 1 In current intellectual circumstances where the Anglo-American philosophy is dominant, which consists of the arbitrary combination of pragmatism, realism, materialism, empiricism, positivism etc., the German idealism has lost its reputation, partly because it is based on nothing but the 1 Art. Idealismus, Görres-Gesellschaft, Staatslexikon, 3. Band in 5 Bände, 7., völlig neu bearbeitete Aufl., Freiburg/ Basel/ Wien: Herder, 1987, Sp. 25 ff. 1 / 9

metaphysical illusion and fiction of the human mind, partly because it historically drove the NAZI regime to the absurd attempt to bring the delusive German Empire into reality. 2 In my view however, the German idealism is coming from the simple perception of our daily experience that the human first thinks and then acts. For example, we are now discussing rule of law, maybe because the director Prof. Li Lin together with his colleagues thought at first that it is worthy for the international scholars to exchange their ideas about this theme, then they decided to organize this conference, and finally we, the participants who agreed with Prof. Li, have come now to CASS for this purpose. In the series of our action, we can find out a certain regularity of our behaviors that we think at first what is good to do, and then make this idea practiced, namely that the reflection is first and the action is next. It is in this example also clear that our action is not totally determined by wants, desires and pleasures for the first sake of the biological maintenance of human body, whereas the utilitarianism assumes this. 3 In terms of rule of law, the idealist conception would have the insistence that, so far as the legal norm is created by human mental activities of the practical reason, the human action should then observe it. This deductive thinking seems to me an essential basis for the idealist conception of rule of law (in German: Rechtsstaat ). 2. Kant: Categorical and Hypothetical Imperative Immanuel Kant (1724-1804), a representative of the German idealists, tries to justify the legal and moral norm on the ground of the categorical imperative: "Act only according to that maxim whereby you can, at the same time, will that it should become a universal law". 4 This formulation is complicated in comparison with traditional versions of the Golden Rule, whether the Confucian one in the negative form: "What you do not wish for yourself, do not do to others ( 恡攝倌湾 唼桟桝傯 ), 5 or the Christian one in the 2 Cf. criticism of idealism from a positivist point of view: Popper, Sir Karl Raimund: The Poverty of Historicism, London, New York: Routledge, 1991 (first published in 1957). 3 Cf. Hegel, Georg Wilhelm Friedrich: Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse, hrsg. v. Eduard Gans, 8. Bd. der Werke, vollständige Ausgabe, Berlin: Duncker u. Humblot, 1833, S. 171 ( 128). 4 Kant, Immanuel: Grundlegung zur Metaphysik der Sitten, 1785, AA IV, 421. 5 Confucius, Lunyu (Analects) XV. 24. 2 / 9

positive form: "Do to others as you would have them do to you". 6 I would like to interpret the Kantian conception of the Golden Rule as follows. In living the daily life, the human usually builds up the idea in his mind at first, which he next practices in form of the action. So far as the idea is brought through the mental process of the human reason and intellect, it must appear in a certain tendency and regularity, and not in a total disorder and arbitrariness. The tendency and regularity of the mental process is the formal character of the human reason, independently of whether the idea as such is materially reasonable or not. Therefore, the phrase, thinking first and acting next, means that the human mind firstly legislates his own law to act, that is the law in the formal sense of tendency and regularity in his thinking and acting. Furthermore, his law of action in this formal sense is related to his material confidence that his idea and action is in accordance with the goodness in view to his own standards of moral and justice. In this way, he legislates his "subjective law (das subjektive Recht)", i.e. his right (das Recht). Here could be clearly seen that the Kantian categorical imperative can be analyzed into two components. Firstly, it orders that you, as the legislator for yourself, should make your law of action universal, i.e. not only valid for yourself but rather generally valid for all the others. This order is directed to the mental process of the human reason, and indeed is what the practical reason demands in terms of the material contents of the law of action, while the formal function of the human reason is concerned merely with making the action get regularity regardless of its content. Secondly, the categorical imperative orders that you should act in accordance with your own universal law of action. This order is directed to the physical process of the human body, which should be controlled by the reason. It is this second component of the categorical imperative that makes the pure practical reason in the mental sphere being connected to the real world. Remarkable thereby is that, while the pure reason is totally free from the empirical world, the physical action of the human body is conditioned by the material substance and law of nature. This is one of fundamental reasons why the objective law (das objektive Recht) in the empirical world appears in form of the hypothetical imperative, and not of the categorical one. If the 6 The New Testament, Luke 6: 31. 3 / 9

autonomous law of self-legislation were universal and possible to be applied to every case of human actions without exception, the law of my own might harmonize with the law of others. In the empirical world to the contrary, there arises collisions between and struggles for different interests and different rights (das subjektive Recht) so far as the materials, especially the fundamental goods for living, are limited in quantity. Therefore, the objective and positive law of the common world must coordinate and harmonize the different interests and rights among the people, in determining which interest and which right should be treated as prior to another one in a certain condition. It thus appears in the hypothetical formulation like as: "If certain conditions exist, then the party A has right, is guilty" etc. 7 The relation between the categorical and the hypothetical imperative can be seen in the sense that the former provides the foundation and standard to the legal and moral rule within the internal sphere of the free human mind, while the latter provides the condition-result formulation to the objective and positive law in force in the real world. The latter thereby cannot be totally consistent with the former, because the latter is concerned with the physical action of the human body under the conditions of the reality, while the former is created by the pure reason in mind totally free from the real world. In this inconsistency, the question would arise which one should be regarded as prior to the other. The idealist answer would say that, so far as the human first thinks and next acts, the categorical imperative should regulate the hypothetical one. The key word here is the "regulative principle (regulatives Prinzip)" 8 in the sense that the categorical imperative should perform the function in justifying, founding or also criticizing the hypothetical imperative in form of the objective and positive law of action in force. In other words, the intellectual capacity of the human (Vernunft) can open up what the "regulative principle" demands, which is indeed not able to be realized in the material world, but able as a normative compass to guide 7 In the criminal law, the conditions of the crime are called "corpus/ corpora delicti", namely elements of crime, which lead to the result of the punishment. In the private law as well, we can see the legal rule as the condition-result relation. The logical relation between condition and result is named imputation (Zurechnung) by: Kant, I.: Metaphysik der Sitten (Einleitung), 1797, AA VI 227 (Z. 21) (Metaphysics of morality, introduction); see also Kelsen, Hans: Reine Rechtslehre, Nachdruck der 2., vollst. neu bearb. und erw. Aufl. 1960, Wien: Verl. Österreich, 2000, S. 79 ff. (Pure Theory of Law, 2. ed.) 8 Kant, I.: Metaphysik der Sitten (FN 7), AA VI 221 (Z. 12). 4 / 9

the law of action in the hypothetical form to the transcendental a priori of goodness. 3. Hegel: Dialectic Overcoming the Dualism G. W. F. Hegel (1770-1831), a great successor of the idealist Kant, is not satisfied with Kant's solution and tries to overcome the Kantian dichotomy between the categorical and the hypothetical imperative and between the regulative principle in the pure practical reason and the positive law in the empirical world. His intellectual enterprise is built up on his original methodology, famous as the dialectic, namely the fundamental assumption that the human experience in the empirical world is essentially based on the interaction between idea and action, mind and body as well as spiritual and material world. Hegel's dialectic thus consists of two elements, i.e. mental activity and physical action. The mental activity at first, which is free from factual necessity of law of nature, reflects on and criticizes the real world for the purpose of breaking through the undesirable status quo and realizing the idea in the future. Practicing this reflection and criticism, the physical action then is taken for purpose of negating the bad parts of reality and eliminating problems, even though conditioned by the necessity of law of nature. In such a way of interaction between mental activity and physical action, ideas are integrated into the material world, that is synthesis. In this sense, we can understand the famous phrase of Hegel: "What is reasonable, is real; and what is real, is reasonable (Was vernünftig ist, das ist wirklich: und was wirklich ist, das ist vernünftig)". 9 In the consideration of the foundation of law, Hegel comes from the assumption that the law in force is often legislated by the powerful member of the society, either who has the political power of violence in form of military and police, or the economical wealth of money in form of landownership and industrial and financial capital, or also both of violence and money. If the presupposition of the empiricism, for example, were right that the human action were determined merely by want, desire and pleasure in the struggle for existence, the law in force would be no other than subjective and arbitrary, because it would be nothing but outcome of human action driven by the biological necessity of the human existence. 10 Hegel does 9 Hegel, G. W. F.: Grundlinien der Philosophie des Rechts (FN 3), S. 17. 10 This thinking is originally developed by Niccolo Machiavelli, afterwards by Thomas 5 / 9

not agree with this thinking, but is rather concerned with the question how the law can be changed from the subjective and arbitrary one to the objective and reasonable one. He finds out the solution to this question in applying the dynamic methodology of dialectics, namely in the interaction between free will and conditioned desire, spiritual and real world, idea and action, criticism and realism. The interaction of idea and action is thereby oriented to the synthesis of reasonable and, at the same time, positive law in force. In other words, the positive law in force should be founded on the spirit of free will: "The territory of right is in general the spiritual, and its more definite place and origin is the will, which is free. Thus freedom constitutes the substance and essential character of the will, and the system of right (Rechtssystem: legal system) is the kingdom of actualized freedom. It is the world of spirit, which is produced out of itself, and is a second nature. (Der Boden des Rechts ist überhaupt das Geistige, und seine nährere Stelle und Ausgangspunkt der Wille, welcher frei ist, so daß die Freiheit seine Substanz und Bestimmung ausmacht, und das Rechtssystem das Reich der verwirklichten Freiheit, die Welt des Gesites aus ihm selbst hervorgebracht, als eine zweite Natur, ist)." 11 In this framework of Hegelian idealism, I would like to interpret a dialectical version of "rule of law (Rechtsstaat)". In the dimension of common life of humans in form of the ancient polis or also the modern state, not the free will of the individual, but rather the shared collective idea leads the people to the collective action in form of political, social or historical movement in claiming the gradual reform and escalating into the radicalized revolution. It is this collective idea that determines, criticizes and changes the objective and positive law in force. Thereby the objective law (das objektive Recht) applied to the people should be based on the collective idea of goodness and justice, 12 and the state (der Staat) should be the place where the interaction between Hobbes, and fully displayed by Carl Schmitt: Politische Theologie: vier Kapitel zur Lehre von der Souveränität, 6. Aufl. Berlin: Duncker u. Humblot, 1993 (1. Aufl. 1922). 11 Hegel, G. W. F.: Grundlinien der Philosophie des Rechts (FN 3), S. 34, English translation: Hegel's Philosophy of Right, translated by S. W. Dyde, London: George Bell and Sons, 1896, p. 10 f. 12 See also the phrase: "The goodness is the idea,... the realized freedom, and the absolute ultimate purpose of the world (Das Gute ist die Idee,... die realisierte Freiheit, der absolute Endzweck der Welt)", Hegel, G. W. F.: Grundlinien der Philosophie des Rechts (FN 3), S. 171 f. 6 / 9

collective idea and collective action should be brought into the synthesis of the individual freedom and the objective law. The state is namely the place where is displayed what is right and what is good through the common usage of collective practical reason, that is dialectics in the sense of dialog or discussion indeed, which makes the people being aware of justice in the traditional sense of harmonizing, balancing, striking the middle etc. Rule of law (Rechtsstaat) then means that the state and its order should be created through continuous interaction between collective idea and collective action, reflection and reform exercised by its members who are able to commonly use their practical reason oriented to the idea of justice. 4. Idealist Conception of Rule of Law With respect to the giants, Kant and Hegel, I would like to clarify my own conception of "rule of law" coming from the basic position of the German idealism seen above. In an idealist conception of "rule of law", the law, firstly, does not simply mean the positive law in the sense of man-made statute or case law precedents, but rather the legal norm valid for the common life of the humans in a society and created by the mental activity of its members. Here does the difference between Kant and Hegel not matter. Kant once thinks that the positive law in force should be set under control of the regulative principle of the pure practical reason as well as the moral order of the categorical imperative, while Hegel insists that the law should be created, reflected and improved through the dialectical interaction between reasoning and practicing. Both would agree, in any way, that the law is the product of the human reason and intellect and that it should also substantially be reasonable, justifiable and legitimate. Secondly, the "rule" in rule of law initially means the relation in the political practice between dominant and obedient groups in the society. The rule in this sense is thereby related to the question how the legal rule should be practiced in the common life of the society members. A common opinion of Kant and Hegel about this question could be identified in their idealist starting point that the practice realizes the idea shared among the people in terms of what is reasonable. Practice is hence reasonable because the human, who first thinks and then acts, has the capacity of intellect in form of the reason (Vernunft), unless he is not merely a wild animal which is totally 7 / 9

un-free and bound with the biological necessity of want, desire and pleasure. What "rule of law" means in the combination of rule and law in the sense mentioned above is that the people in the political and social life in the state (Staat) should at first create the legal norm and then practice it, namely the positive law which should be based on the common idea of goodness, fairness and justice shaped through the common usage of their practical reason. This would be an additional and material component of the conception of rule of law, which is traditionally understood once in the narrow sense that social disputes should be settled according to the positive law, and then in the sense of constitutionalism that public policy should be decided and operated according to the statute given by the legislator. An idealist consideration of rule of law would attempt to open up the materially normative dimension of the conception, indeed in terms of the reasonableness, goodness, justifiability and legitimacy which should be included in the positive law in force. By means of this conception of rule of law, we could also build a theoretical and conceptual bridge between legal positivism and natural law theory as well as legal formalism and realism. 5. Concluding Remarks At the end of my report on hand, I would try to apply this idealist conception of rule of law to the current situation of crisis, indeed I mean the territorial struggle for Diaoyu/ Senkaku islands between China including Taiwan and Japan. In this case, the Japanese government insists that the territorial issue should be settled according to the international law. I personally find the position of the Japanese government problematic because it understands the international law merely as the international positive law in form of treaties, agreements, precedents of ICJ and international custom law. In view to the idealist conception of rule of law, it is not enough to give references to the international positive law, but necessary to pay attention to the idealist dimension of international rule of law in terms of the idea of goodness and justice commonly shared by the concerned parties. We thereby should not lose sight of the historical background of the territorial struggle, which is the fact that the disputed islands were connected to the Japanese territory in occasion of the imperialistic invasion of the Japanese military into China during the Sino-Japanese war in 1895, as the Chinese government exactly insists. 8 / 9

My personal proposal would say that in this dispute we, the citizens and especially intellectuals in East-Asian region who are capable to collectively use the common practical reason, must seek for an answer to the question what value and what idea we will share and what legal order of our region we will create and practice in the future based on our common value and idea, so as to resolve the territorial dispute according to the common and universal legal rule and then so as to make it possible for us to live together in peace and prosperity according to the rule of law in our region. I mean that the territorial dispute should be resolved in a comprehensive framework of our cooperative task to establish an East-Asia community where we together will first think and then act. I think that this would be a possible resolution proposal about the current disputed issue from an idealist point of view with regard to rule of law. 9 / 9