IRP. Institut für Rechtspolitik. Legal Policy Forum. Niyazi Öktem. Philosophy of Law The Concept of Legitimacy and Modern Constitutions - PDF

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Rechtspolitisches Forum Legal Policy Forum 63 Niyazi Öktem Philosophy of Law The Concept of Legitimacy and Modern Constitutions Institut für Rechtspolitik an der Universität Trier IRP Rechtspolitisches

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Rechtspolitisches Forum Legal Policy Forum 63 Niyazi Öktem Philosophy of Law The Concept of Legitimacy and Modern Constitutions Institut für Rechtspolitik an der Universität Trier IRP Rechtspolitisches Forum 63 Philosophy of Law The Concept of Legitimacy and Modern Constitutions by Prof. Dr. Niyazi Öktem University Doğuş, Istanbul Faculty of Law Institut für Rechtspolitik an der Universität Trier Impressum Herausgegeben von Prof. Dr. Gerhard Robbers und Prof. Dr. Thomas Raab unter Mitarbeit von Claudia Lehnen, Linda Kern und Johannes Natus Institut für Rechtspolitik an der Universität Trier D Trier Telefon: +49 (0) Telefax: +49 (0) Internet: Die Redaktion übernimmt für unverlangt eingesandte Manuskripte keine Haftung und schickt diese nicht zurück. Namentlich gekennzeichnete Beiträge geben nicht in jedem Fall die Meinung des Herausgebers oder der Mitarbeiter des Instituts wieder. Institut für Rechtspolitik an der Universität Trier, 2013 ISSN Prof. Dr. Niyazi Öktem has been working and studying in the field of sociology of religion and dialogue between the different religions since His work includes the organisation of and participation in international symposiums and the representation of the Presidency of Religious Affairs and the Ministry of Foreign Affairs in this field. He has been working for 25 years at the Faculty of Law at the University of Istanbul. Prof. Dr. Öktem worked as professor of Sociology and History of Political Thoughts at the Faculty of Political Sciences at the University of Istanbul. He was dean of the Faculty of Communication at the University of Galatasaray between 1994 and He worked as professor of Philosophy and Sociology of Law at the Istanbul Bilgi University between 1998 and From 2010 until 2011 Prof. Dr. Öktem was the head of the Public Law Department at the Law Faculty of Doğuş University, Istanbul. By now he has published 13 books and more than 30 articles in Turkish, English and French. Introduction In this article, my purpose is to try to explain the role and the importance of the philosophy and the sociology of law as it relates to constitutions, especially modern constitutions. As we all know, constitutions are the main jurisprudence and the main legislation of the state, which is at the top level of the codification system. In the hierarchy of legislation, constitutions are the roof of every legal system. Constitutions prescribe the general status of a state s institutions. Constitutions have also some worldview, some philosophy that we might call ideology 1. Philosophy and sociology of law study that ideology, that worldview, and try to establish an ideal system of law, an ideal 2 constitution with regard to the nature of the human being. What is human nature? Is it common for all of us? Aristoteles (Aristotle) says: human kind is a zoon politikon. That means that we all are condemned to live in society. Our intelligence shows us that crucial fact. Animals also live in a society, but for them that fact is instinct; for us, our intelligence makes the discovery 3. The difference between us and animals is that we have a developed intelligence but animals do not. If that is the case, we should create rules to retain order in society, otherwise societies will perish and we will go out of existence ROBERT, Jacques et DUFFAR, Jean: Droits de l homme et libertés fondamentales, Paris 2008, Montchrestien, pp IBID: BRIMO, Albert: Les grands courants de la philosophie du droit et de l état, Paris 1978, Pedone, p In the societies there are four categories of rules: - Ethical rules; - Customs/mores; - Religious rules; - Law. 4 Of course there are some interactions and bonds between these four categories of rules and a rule in one category can also take place in another. For example, burglary falls into all four categories. I will not explain the differences between these four kinds of rules; I will only focus on our subject, the concept of law. For some scholars law is the will of the state. If a person does not respect law, stringent punitive measures will force him or her to obey or face the consequences 5. At first glance, this definition of law is correct, but further examination leads to some questions: - What is the state? - Who gives to the state the right, authority, and power to rule people? - Should everything that the state suggests be law? - Is it incumbent upon the state to take into consideration the social and economical situation of the society before making the law 6? - What is the role of justice in the process of making law? ARAL, Vecdi: Hukuk ve Hukuk Bilimi Üzerine (On Law and on Science of Law), İstanbul 1979, pp IBID: 85. DOEHRING, Karl: Genel Devlet Kuramı (Genel Kamu Hukuku) (General Theory of State), translated by Ahmet Mumcu, İstanbul 2002, p. 8, 10. 8 These questions and similar ones are the main problems of the philosophy of law 7 though they should work in harmony with the sociology of law. Philosophy and the sociology of law are disciplines that try to understand the essence of the law. What do I mean by the essence? Three elements contribute to the uniqueness of law versus other kinds of rules that exist in society: - The will of the state, as we mentioned before; - The social, historical, and economic factors; - The idea or concept of justice. So we can talk about the three-dimensionality of law. Let us focus on each dimension IBID: Introduction by Ahmet Mumcu, p. VIII. ÖKTEM, Niyazi, TÜRKBAĞ Ahmet Ulvi: Felsefe, Sosyoloji, Hukuk ve Devlet (Philosophy, Sociology, Law and State), Der Yayınevi, İstanbul 2011, pp 1. The idea or the concept of justice or the School of Natural Law The idea or concept of justice should be the founding principle of law. The two other elements are the secondary dimensions of the rule. That phrase, that proposition above, that justice should be the founding principle of law, is the main approach of the Natural Law School whose principles are the main pillars of modern western states. According to the Natural Law School (School of Jusnaturalism), human beings come into this world with some rights that are irrevocable, inalienable, and absolute. The state, which is a creation of human kind, must recognize and guarantee these birthrights. The state is only an agent to organize the structure of social institutions, and oversee jurisprudence. It should not have plenipotentiary power over the people who create it. All natural rights are related to two main concepts: justice and freedom Justice For jusnaturalists, like the ideas of ethics, truth, and aesthetics, the idea of justice is a universal and eternal value of human existence. In the process of codifying law lawmakers should take into consideration the idea of justice. As with the application of the law, the ultimate aim of a judge should be justice. The concept of justice was given great consideration in early China. In his studies the great philosopher Kong Fu Zi ( B.C.) emphasizes the importance of the country s justice 10 and ethical values. Retaining order in social and political life means to respect the idea of justice. Kong Fu Zi s considerations have become the main pillar of the Chinese jurisprudence system. The Greek philosophers, and especially Aristotle, widely debated the concept of justice. Aristotle determined that there are three kind of justice: - Justitia distributiva; - Justitia commutativa; - Equitas 9. Justitia distributiva envisages absolute equality for members of a country. No one has any kind of privilege vis à vis the other. Every citizen is equal before the law. However, let us not forget that, in Ancient Greece, the rights of slaves and women were not recognized, two positions that Aristotle supported. Justitia commutativa gives more rights and opportunities to those who contribute more or gives more punishment to those who do more damage. For example, the citizen who earns more money should pay relatively more tax to the state, and the thief who steals more than once should be imprisoned longer than a thief with only one offense. Equitas. According to Aristotle, the main pillar of the justice system is Equitas. With that principle, judges should investigate all the details of every case to find its core truth and should then rule with complete justice. For example, when a thief is brought before him, a judge should examine the thief s psychology, his family situation, the situation that pushed him to the crime, etc., and then he should rule according to the extenuating circumstances. 9 For these concepts: IBID: Those three principles of justice still exist in the codifications of modern states. All modern constitutions have accepted the three perspectives of justice, including social justice. Social justice is a relatively new concept that appeared after the Industrial Revolution with the creation of a new working class Freedom 10 For the jusnaturalist, human beings have a free will. Man s nature is free. We can talk about determinism, but that does not mean our life is a fatal victim of destiny. We also know that we are living in a universe that is not our creation. Water, fire, air, soil the four basic elements, arche were in existence long before humans came into the world. Now we are engaged in an adventure we are on a stage to play a game that we should play with gentility. We should respect the rules of the game and our acts should reflect the moral values of beauty, truth, and justice. As our intelligence is more developed than the one of animals, we know the difference between good and bad. This is human nature: we exist in a long running stage play and acting in that play is our great adventure. All legal systems should recognize and respect this human nature. It is the state s duty to create a system for our natural rights. That means that the ultimate obligation of the state is to respect the human rights and to give all its citizens the opportunity to develop the conditions of his or her life, regardless of colour, race, religion, and beliefs, etc. 10 For the concept of freedom: ÖKTEM, Niyazi: Özgürlük Sorunu ve Hukuk (Problem of Freedom and Law), Istanbul 1977, İÜHF Yayını. 12 The duty of the constitution of modern states is to accept this obligation from the approach of the philosophy of law. But the problem is not that simple. We cannot omit the social factors that are the second dimension of law. Let us talk about the second dimension of law. 13 2. The Social and the Economic factors As Aristotle says, human kind is a zoon politikon. Thus, philosophical analyses of law should emphasise its social aspect. If a lawmaker does not pay attention to the social, historical, or economic factors of his population, the codification of the laws he creates will not be successful. In comparison, we should consider the consequences if a doctor paid no mind to scientific research in pharmacology, biology, physics, etc., when he works on curing a patient. Thus, in codification processes constitutions should reflect socioeconomic and historical data of societies. The scientific base of law is the sociology, economics, and history of societies. What the jusnaturalists say is only wishful thinking. Their ideology is not realistic. Law is a concrete issue. You cannot analyze a concrete fact abstractly. Law is concrete and ideas like justice and values are abstract. So the methodology of the philosophy and the sociology of law must be positivism. The common denominator of different sociological schools of law follows this argument but as different schools approach social factors, each one s positivist paradigm is different. How should we analyze the social dimension of law? What is our paradigm? For different sociologists, the social nature of law is different. Let s briefly look at some of the different approaches: - Auguste Comte Émile Durkheim Leon Duguit School of Solidarity; - Karl Marx and the Marxist Paradigm; - Historical School of Law; 14 - Utilitarian-Pragmatist School; - Montesquieu and the role of the geography and the climate; - Max Weber and the interaction between faith and economy; - Ibn Haldoun and the living conditions of sedentary or nomadic people; - Georges Gurvich and the pluralism of the social factors School of Solidarity Auguste Comte 11, the founding father of sociology and the word positivism, says: Let us forget all kinds of abstract methodologies in the sciences. In both the natural sciences and the social sciences the only methodology is positivism. The abstract methodologies, like the theological and the metaphysical methodologies are not scientific and will never bring us the truth. His ideological successor, Émile Durkheim methodology to analyze law concretely. According to Durkheim the origin of all kinds of social rules is based on the social nature of the human being. As we are zoon politikon, living in society is an inevitable part of our existence. The collapse of society is the end of humanity, so humans invent rules to retain their togetherness or solidarity. Like the other behavioural rules that grow from religion, ethics, and mores, for humans, the starting point and the purpose of 12, adopted this COMTE, Auguste: Cours de philosophie positive, Paris 1938, 16 e édition. DURKHEIM, Émile: Les règles de la méthode sociologique, Paris 1976, 18 e édition, Presse Universitaire de France. 15 law is to remain in solidarity with one another. The discourse of the jusnaturalists is not realistic, rather a wish for their own type of utopia. Nobody can deny the importance of solidarity for zoon politikon. However, is it legitimate enough to establish order? It seems that Durkheim is not that interested in the quality of law; solidarity is his greater concern. One of his disciples, Leon Duguit 13, uses universal law norms to sustain solidarity. For him universal law norms are the harvest, the heritage, and the culture of developed civilizations. He tries to accentuate the importance of the achievement of the human adventure through the centuries. We think he attributes some moral values to his concept of universal law norms. When moral values come into play the concept of natural rights is inevitably a part of the codifications of constitutions. In other words, solidarity is all right, but a respect for human rights and moral values must be established as a foundation before codification. It is impossible to escape moral values if we want to create a liveable society with liveable solidarity Karl Marx and the Marxist Paradigm 14 One of the most influential sociologists of our time is Karl Marx. His contributions to the social sciences have opened DUGUIT, Léon: L État, le droit objectif et la loi positive, Première édition, Paris MARX, K.: Pages choisies pour une éthique socialiste, avec une introduction par M. Rubel, Paris 1948, Rivière. And: MARX, K. et ENGELS F.: Études philosophiques, Éditions sociales, Paris new and important visions on the philosophy and sociology of law. The impact of his thoughts is still shaking the world. He is right to set the tone of history with the concept of the struggle between classes. He is also right in his analyses of history. Marx says that socio-economic factors directly determine the nature of social rules in society. The nature and character of the production system specifies the nature of the law and the other rules in a society. He is also partially right on other points. The Marxist school s analysis of freedom is also very important. This school says that the human beings are not free if they just accept destiny and do not do anything to understand social conditions and the consequences of natural determinism. They are alienated, slaves, if they do not struggle to learn the human conditions. They become free when they start to change the human conditions of their society. This approach, this paradigm, is also excellent. Just like the solidarity school, the Marxist paradigm makes a mistake by excluding moral values from its analysis. Not considering an individual s psychological situation is another mistake. Human psychology is not so simple that only socioeconomic conditions or the effects of cultural identity determine individual behaviour. The Marxist approach of psychology is not very willing to recognize the importance of other factors in its psychology. In the end, we need to seriously consider the Marxist approach to the philosophy and the sociology of law, as it relates to the process of codifications and constitutions. Lawmakers should heed the working classes demands. As Marx says, exploiting the working class is not fair, so legal systems and 17 constitutions must establish class equality in their jurisprudence. When you talk about equality, it means that you recognize the concept of justice. When you discuss world justice, you come close to the natural law schools, to natural rights, and to human rights. It is impossible to escape moral values Historical School of Law 15 This school insists on including historical factors into law, factors that determine the traditions and customs of different nations. For observers of this school, the concept of universal natural rights or natural law is not a realistic approach. Each nation has different traditions and these traditions determine law. The traditions and customs in China, for example, are different from those in Turkey or Europe, so the jurisprudence in these countries will differ. I accept that lawmakers should take the customs and traditions of each civilization into consideration, but human nature has some common features regardless of where human beings live or to which civilization they belong. As the jusnaturalists say, justice and freedom are common features of human kind and all political regimes, all kinds of civilizations, all kinds of codifications should institutionalize the natural law endowed to each person. This historical school has been the official ideology of fascist and Nazi regimes worldwide throughout history. These regimes want to prove that some nations deserve to be free and 15 COING, H.: Savigny et Collingwood, ou Histoire et Interprétation du Droit, Archives de Philosophie du Droit, And KANTOROWICZ: Savigny and the historical school of Law, L.Q.R., 1953, p the others do not. Those who deserve should govern; those who do not are subject. Thus, the advanced civilizations, the advanced skilled minds must have more rights than the ordinary people who do not deserve to be free Pragmatist-Utilitarian School 16 This school insists on the fact that humanity seeks for pleasure. The main motivation of the human being is enjoying life. Consumption, sex, and other kinds of pleasures give happiness. There are no common values, such as justice, ethics, and aesthetics, mentioned by the representatives of the jusnaturalists. People are entitled to the good, the beautiful, the fair, and any and every event that gives them pleasure. But as each individual s interest conflicts with someone else s, society can see a real and concrete destruction. As Aristotle says, we are zoon politikon; if society perishes, so do we. Thus, we have created a state to maintain order and not to perish. States create laws to establish a balance for each individual s pleasures and interests to exist in relative harmony. That is the duty of the state. This is of course an interesting approach in the philosophy and the sociology of law. But the creation of order necessitates a judiciary and an equitable law system. Without it, people will complain about unjustness and they will not be happy. Thus, the Pragmatist-Utilitarian School s aim will come to nothing. Again, the concept of the freedom, justice, human rights, according to the jusnaturalists, should be the main pillars of the state, otherwise the collapse of civilizations is inevitable. 16 DAVIDSON: Political Thought in England. The Utilitarians from Bentham to Mill, 2.5. Montesquieu 17 The eighteenth century French philosophe
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