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Global Harmony and Rule of Law: An Empirical-Analytic Approach
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Arts, Department of Philosophy.
2012 (English)In: Global Harmony and the Rule of Law / [ed] Thomas Bustamante, Oche Onazi, Stuttgart: Steiner Verlag , 2012Chapter in book (Refereed)
Abstract [en]

I take humans to basically strive toward a condition of peace enabling human flourishing. Yet human groups and individuals alike have an extraordinary wide range of understandings of such a condition. If hope for lasting peace and joint cooperation is to emerge from rule of law or otherwise underpin global harmony, first these very concepts need to be unpacked in proper detail. Given the remarkable diversity of legal practices across societies, simply looking at our own will prove insufficient. I suggest building on both Eastern and Western traditions of thought, as well as looking at contemporary practices across the globe in an attempt to enquire into the nature and historical background of the two key notions: rule of law (section 1) and harmony (section 2). Some concluding remarks are then drawn (section 3).First, we focus on “rule of law” (ROL): Is it a likely candidate to set the foundations of global harmony? Looking at the meaning that “rule of law” has acquired within a broad range of fields (legal theory, law and jurisprudence, political philosophy, political science, international relations, sociology and social theory), the first striking aspect is that it does not seem to be the monopoly of technical definitions (principles of legality and impartiality). Historically, the appeal of ROL derived from the distinction between “empire of laws” (rule by law) and “empire of men” (rule under men). Today, both practitioners and scholars refer to ROL as an aggregate of legal rules and institutions, but also as a variety of informal discursive practices aimed at legitimising those rules and institutions.One-size-fits-all definitions can obviously be found, but they suffer from tremendously high levels of generality. Once we acknowledge the need for distinctions, however, we find too many. The long-standing distinction between thin (or procedural) and thick (or substantive) conceptions of ROL has been debated at great length, as has the difference between rule of law, rule by law etc. At this point there is little to be gained by further restatements of these basic distinctions. However, abandoning this debate will not reduce the number of competing conceptions: Rechtsstaat, État de droit, Estado de derecho. Moreover, the continental civil law tradition also developed other concepts that are smeared into the Anglo-Saxon formula, including certezza del diritto, sécurité juridique, etc. We should also ask whether Chinese fazhi is or might be a Far Eastern equivalent to rule of law.A promising start is then to go beyond the consensus omnia of international declarations and shed light on the arguments of those who do not estimate that rule of law enhances concord. ROL appears to be equivocal and often (covertly) value-laden both in ordinary language and scholarly literature. Three criticisms of rule of law are taken into consideration. One criticism holds it to be a case of law-fare: Not a mere technical device, ROL is rather an instrument for hegemony. Another criticism holds ROL to be a Western invention (legal Occidentalism): What is being questioned is not a specific set of institutions that may, rightly or wrongly, be identified as “Western (rule of) law.” The challenge goes deeper and concerns the epistemological status of law itself. A third criticism comes from “global constitutionalism.” The ideal of ROL is not questioned as much as the way it is currently practiced: Since it lacks effectiveness, it is unsatisfactory. Given that constitutionalism, at state level, implied that constitutions made legislative power respect the constitution, advocates of international constitutionalism calls for such a paradigmatic change in the international arena.These arguments show that ROL is no “magic bullet” : Its banner was used as a synonym for an independent judiciary, but came to include democracy, rights, civil society and many more. This conceptual overstretch explains why rule of law is not likely to promote global concord.In section two, it seems prima facie that “harmony” has much higher odds for being a stepping stone for lasting peace: The concept has figured prominently in both Eastern and Western philosophical traditions where it indicates concord, equilibrium between forces resulting in peace, in opposition to disorder (chaos in the Greek tradition and luan in the Chinese tradition). The order emerging from harmony is a composition of differences and not merely a sum of unities. On a social level, harmony is a relational concept and hints to concert or absence of contradiction in relationships between individuals and/or groups. Contrarily to rule of law, we do not deal with an essentially contested concept: its structure is not seriously questioned. Moreover, contrarily to ROL, we have a clear referent: The CCP’s commitment to “building a harmonious society” was officially announced in 2002 and has since been added to the basic line in its constitution.Here, the arguments of those who disbelieve the emancipating strength of harmony have to be addressed. First, there is the legal positivist’s objection: Harmony amounts to natural law-talk that suffers, ultimately, from abusing Hume’s principle. Secondly, there is the criticism of the liberal democrat: Let aside the epistemological and theoretical nature of the concept, in the realm of practical reason harmony implies an essential (and fix) hierarchy of people that will inevitably lead to autocratic political regimes. The overall idea is that the harmonious order does not take controversy seriously: contradictions have to be eradicated or hidden in order to promote (apparent) stability. Harmony would then only amount to a cover-up status quo, based on manufactured consensus.In conclusion, I suggest that there are two lessons to be learnt if we want to overcome the cultural divides of the West-östlicher Diwan: From the rule of law, we must hence learn again the fundamental lesson of impartiality as an indispensable element in applying the principle of justice. From harmony, we must refine our understanding of the complex ways in which social cohesion is enhanced and without which no order is sustainable.

Place, publisher, year, edition, pages
Stuttgart: Steiner Verlag , 2012.
, Archiv für Rechts- und Sozialphilosophie – Beihefte (ARSP-B), 130
Keyword [en]
Rule of Law, Global Justice, Constitutionalism, Harmony, China
National Category
Philosophy Law (excluding Law and Society) Political Science
Research subject
Practical Philosophy
URN: urn:nbn:se:uu:diva-164041OAI: diva2:466027
Available from: 2011-12-20 Created: 2011-12-15 Last updated: 2012-01-16Bibliographically approved

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