The Liberal State Has Its Limits

WE can safely say with confidence that the mainstream media will not interpret the recent assassination of former Pakistani Prime Minister Benazir Bhutto as a strong reaction to a “universal liberal democratic project” throughout Pakistan, Afghanistan, Iraq, and, ultimately, the entire Muslim world. This universalizing project appears to be a very promising endeavor. Its aim is to erect Western-style legal institutions that for hundreds of years have organized stable democratic societies here in America and Europe. This universalizing project has taken on a sense of urgency, given the accelerated rise of terrorist activities that led to Benazir Bhutto’s recent assassination. Yet the mainstream media will have most of us believe that the legal foundations of the liberal state do not have its limitations, the consequences of which seriously undermine vibrant democratic participation for legal reform. They will have us believe that there is no pressing need to challenge its legal foundations so that democracy is strengthened.

Currently, the legal foundations of the liberal state, as advocated by British empiricists Hobbes and Locke during the seventeenth and eighteenth centuries, is limited to certain basic or empirical features of human nature in her or his natural state and is consequently fixed. In this context “rights” remain exclusively in naturalistic terms as the rational power each person has to preserve her or his life - the right to self-preservation, and to get what he or she wants, which itself is the foundation of all subsequent rights, such as the right to gain and defend her or his property. At the core of natural rights is the European Enlightenment; its teachings about Nature itself, according to Hobbes, fits automatically with certain basic natural rights that each human being regard as inalienable and thus has a right to protect. Here, seventeenth century Enlightenment thinking reduces natural rights, which, in the Scholastic theological tradition of the fifteenth century is naturally given to human beings by God Himself, to a natural legal tradition where government gains legitimacy by “…the rational desire of individuals to protect and defend their preexisting rights as human beings.” In other words, the modern notion of government, or the liberal state, would not have a firm foundation without the notion of individual natural rights.

As such, the European legal tradition cannot commit itself to any notion of the “common good”, and is an obstacle to the multifarious needs and aspirations of human beings. The legal foundation of the liberal state is limited by the method by which political theorists like Hobbes and Locke arrive at the notion of natural rights - by essentially peeling away everything human beings have acquired through history. Consequently, natural law rises to the level of abstraction; the law remains abstract insofar as it situates human beings in a natural state and ignores historical circumstances. In other words, natural law discovers what is natural from what has been acquired through history. And it is here that natural law, taken in the abstract, can then be universalized to all human beings, regardless of historical or religious contexts. Thus the Bush Administration, right after the U.S. invasion of Iraq in 2003, sought to effect changes to extant Iraqi laws by sending his envoy Paul Bremmer III, who, as head of the Coalition Provisional Authority, was invested with the executive, legislative and judicial authority over the Iraqi government. A causal observation of the draft of the Iraqi Constitution today reflects a Western-style version of natural law. It sought to strip away all vestiges of Islamic Law by referring to Islam only as “a source” (meaning, not the only source), rather than “the source” of legislation. According to the draft constitution to date, Islam remains the Iraqi state’s official religion. The role of Islam in the permanent Iraqi Constitution is now debatable since the U.S. hopes that the Iraqi Constitution becomes a beacon of Western-style democracy in the region. Surely, human beings cannot be exclusively defined in a naturalistic context.

As natural law theory, the basis for Western-style legal canon, began to take hold in England and America, its basic assumptions became the object of attack by other European philosophers, most notably the German philosopher Hegel, who hinted at its simplicity. Hegel did not disagree totally with natural law theory, but only that natural law be modified or “stretched” to meet historical conditions. It must incorporate familial and communal bonds, significant conditions necessary for fostering individual fulfillment. Hegel wanted each individual to retain a personality, that is, a relationship of self to other; he wanted the individual to thrive. Abstract rights, in his view, are ineffective. It promotes self-interest, stunts any notion of the “common good” and ignores history.

There was a not-so popularized trial that occurred in Suffolk County, Long Island, a few weeks ago. The cable-news mainstream media made no mention of it. This case demonstrates conclusively that natural law fails to address racial biases because of its abstract nature. According to Alton Maddox, Jr., People v. John White is a case riddled with judicial racism. A virtually all-white jury found John White, a black Suffolk County resident, guilty of manslaughter. He now faces up to 15 years in prison.

John Whites’ son Aaron White allegedly threatened to rape a white girl, who, at the trial, testified that his alleged threat was a “hoax”. Despite all this, five drunken white teenagers criminally trespassed on John White’s property, threatened to harm John White and his family, and physically assaulted him. But John White had a gun. He warned Daniel Cicciaro to stay away, but Cicciaro lunged at him. Cicciaro was shot in the face. He died a few hours later. Self-defense was disallowed at trial. How can self-defense be disallowed? Under natural law, according to U.S. Supreme Court Justice Oliver Wendell Holmes, no property owner is duty-bound to retreat from his or her property under any circumstances. New York law allows a homeowner to use deadly physical force to resist a burglar. The only conclusion, according to Alton Maddox, Jr., is that in these United States only whites are entitled to natural rights. Whites live under the spirit of the law while blacks suffer under the letter of the law.

The writer is a recent revert to Islam and can be reached at: drummondhugh@verizon.net