Some Reflections Derived from Contemporary Philosophy of Law
Glen T. Martin
The Constitution for the Federation of Earth provides an essential step forward in the development of human civilization. This is not only because it is brilliantly conceived on the principle of unity in diversity and carefully constructed on principles that actualize a ‘global brain’ by which human beings can operate their spaceship Earth justly, peacefully, and sustainably. It also provides an essential step forward because of the nature of law and the problem of sovereign nation-states that intrinsically violates the principles of law. In this very brief paper, I want to try to lay out the basic reasons why this is so.
The law empowers and enables people to live their lives well. The 20th century experienced a revolution in thinking about law. Whereas earlier thinkers characterized law as a top-down relation between rulers and ruled, thinkers like H.L.A. Hart (1961) showed the multiplicity of ways in which the law empowers human beings and their ability to flourish. Philosopher of law David Luban argues that the very existence of law in human civilization is inextricably interwoven with the value of human dignity. He writes: “Law enhances human dignity by knitting together thousands of details that make it possible for ordinary people to accomplish ordinary business smoothly” (2007: 4). Law is essential to all complex societies. The function of law, philosopher of law John Finnis (1980) writes, is to make possible human flourishing.
The law is binding. The 20th century has also understood that the binding character of the law is not reducible to the power of government to coerce a subject population. Rather, the fact that law is binding is fundamental to its essential and liberating character. If law were not binding, it would not be law. It would be a mere voluntary agreement among autonomous citizens who might decide at any point to repudiate their assent to the law, or to interpret the law as they subjectively see fit, or in a moment of passion follow their base inclinations rather than the law. The binding character of law, under democratic or republican forms of government, is not repressive but liberating. The law not only protects our fundamental human rights but regulates and limits government to ensure those rights remain protected. It is binding on government as well as the people, and this is why law is a fundamental basis for human freedom (Kant, 1797, 1965).
The law provides equality and dignity. Whatever our theory of the innate equality and dignity of human beings prior to government, it remains a merely abstract ideal until that equality and dignity are enshrined in binding, enforceable laws applied equally to everybody. The UN Universal Declaration of Human Rights begins with an abstract affirmation of human equality and dignity and asserts that these are the “foundation of freedom, justice and peace in the world.” Within every society, some people are stronger, more clever, or more unscrupulous than others. The weak (including children or the elderly) are ensured equality and dignity only through effective, binding laws. Equality and dignity are in fact fundamental moral principles and people are not likely to live according to these principles in a world that in practice repudiates both equality and dignity because it refuses to embody these principles of our common humanity within universally applicable laws.
The law embodies the integrity of fundamental moral principles. Philosopher of law Lon Fuller (1969) bases the law and lawmaking on “the morality of duty.” This applies to both the subjects of the law and to lawmakers. There is a moral relationship between the governed and the governors as well as a morality of duty for everyone within society to relate to one another in good faith within the framework set by the law. The function of the law, Fuller asserts, is to “reduce the relations of men to a reasoned harmony.” Beyond the basic framework of freedom provided by the morality of duty is the “morality of aspiration.” The function of law is to free citizens to pursue the “morality of aspiration” in their personal lives. The law (governed by the morality of duty) provides the basic framework that makes this possible.
Philosopher of law Ronald Dworkin sees the foundation of law as “integrity.” Law intrinsically presupposes “coherent principles of political fairness, substantive justice, and procedural due process.” These are all “principles of justice that flow through and unite different departments of law” (1986: 405-06). Similarly, philosopher of law John Finnis (1980) finds that the law universally arises from human “practical reason,” from our basic common human rationality that informs all normal human beings everywhere. Practical reason can discern the basic goods involved in a flourishing human life and the principles of law that derive from these insights common to all human beings.
The law is inherently universal. All of these philosophers of law see law as arising from our fundamental human capacities universally. It is not relative to national cultural traditions, nor to eastern versus western ways of understanding society. Law derives from a level deeper than cultural relativism. It comes from human civilization itself, from our common humanity, our inherent rationality, and is intrinsically universal. Its universal essence is to empower human flourishing, to ensure equality and dignity, and to embody fundamental moral principles that make freedom and aspiration possible for all persons within complex societies.
The law derives from the sovereignty of all human beings. Some 18th century social contract theories such as that of John Locke (who was very influential on Thomas Jefferson and the US Declaration of Independence) asserted that ultimate sovereignty lies with the people, that the people are the ultimate source of the authority for binding democratic lawmaking, adjudication, and enforcement. We have seen above that many 20th century thinkers have understood that the function of law is to empower human flourishing, to create a consistent basic moral framework for human living, and to ensure human equality and dignity. Law therefore arises from our common humanity, from our common human civilization, and this means that ultimate sovereignty lies with all the people of Earth. Locke’s 18th century had not yet understood that the world is one evolving civilization, composed of one race of homo sapiens, with one universal history and common destiny.
Sovereign nation-states violate every one of these six principles. Intrinsic to the doctrine of national sovereignty is the denial of the sovereignty of the people. Law derives from what we are as human beings, from our universal humanity, not from some arbitrary collection of people born within certain territorial boundaries. But the system of some 193 sovereign nation-states intrinsically violates the universality of law and the sovereignty of the people. To be a sovereign state is to recognize no binding law above oneself, to assert that entering into agreements with other states is intrinsically voluntary, and that one can leave these voluntary agreements (called treaties) if necessary, and that one can interpret the terms of the treaties as one sees fit. (See the UN website on treaties for confirmation of this.)
Hence, sovereign nation-states by their very existence violate not only the sovereignty of the people but the universality of law (claiming that genuine lawmaking only takes place within territorial boundaries), and they violate the binding character of law (claiming that all treaty obligations are ultimately voluntary). In dividing the world according to this system, they make their relations with other nations intrinsically war relations, which Kant (1795) called “savage and barbaric.” The system of sovereign nation-states, therefore, intrinsically violates human equality and dignity. Even the well-treated persons on some western European social democracies violate the rights of people in the global south and elsewhere through economic relations of domination and exploitation, or through belonging to NATO or other barbaric military treaties.
This explains why nations (who emphasize the “morality of duty” to their own populations by urging them to obey the laws) believe they are free to support murder, war, militarism, exploitation, injustice, torture, and other forms of dehumanization outside their borders. In a lawless world system, not only is peace destroyed, but moral integrity is everywhere destroyed as well. Law is inherently universal, and it is irrational and immoral to divide the world into some 193 autonomous regions each of which recognizes no genuine, universal, enforceable laws above themselves. That is why the Earth Constitution is our best hope for a decent human civilization. In one coherent process of ratification and implementation, it could transform human civilization from an immoral war and injustice system to a world peace, justice, prosperity, and sustainability system. Democratic world law is our only legitimate option, as well as our key to survival.
Dworkin, Ronald (1986). Law’s Empire.
Finnis, John (1980). Natural Law and Natural Rights.
Fuller, Lon L. (1969). The Morality of Law.
Hart, H.L.A. (1961) The Concept of Law.
Kant, Immanuel (1795). Perpetual Peace.
Kant, Immanuel (1797, 1965). The Metaphysical Element of Justice.
Luban, David (2007). Legal Ethics and Human Dignity.
Martin, Glen T. (2008). Ascent to Freedom: Philosophical and Practical Foundations of Democratic World Law.
Martin, Glen T. (2015). One World Renaissance. The New Transformative Holism: Paradigm Shifts in Law, Ethics, and Knowledge.