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Humanistic liberalism has a view of the law and politics which is Kantian, and to the extent that much Kantian ethics and politics has an Aristotelian flavour, the views of Aristotle are also considered carefully by humanists in spite of the criticisms Aristotle has received on the fronts of slavery and feminism. We have argued in an earlier paper, with Paul Ricoeur, that Politics is fragile and can be efficacious only to the extent that the citizens (which have been constituted by a state and in turn constitute the state in a relation of mutual implication) care about the Politics of their state. This statement has the following relation to the law: the law is an action of a government(by the people and for the people) which means that as long as a law meets the criteria of justice(an unjust law is no law at all), the people have the same duty to follow an exterior law as they do to follow an internalised moral law. Kant argues in his third formulation of the categorical imperative that when citizens and politicians are mutually doing their duty there is a logical(in terms of the ought system of concepts and the practical reasoning that is operating in accordance with the idea of freedom) relation between citizens and their government and Kant calls such a state of affairs a kingdom of ends. Citizens treat the government as an end in itself, as having a value in itself, and the government reciprocates by treating citizens as ends in themselves partly by guaranteeing them the maximum freedom consistent with the principle of equal freedom for all. But although this might be how we ought to think about these matters, this is not in fact how we do think and this, it is argued, suffices to burst the idealistic utopian bubble of the humanistic liberal. I think the answer to this objection is a version of the so called parallel argument strategy which runs as follows: if one ought to think logically but does not, does this entail that the laws of logic which give language its meaning and truth value are to be discarded? Why, then is it relatively easy to accept the latter argument in relation to the laws of logic but not as easy to accept the former argument relating to the laws of man? Here is an account by Paul Ricoeur which might help to explain some of the difficulties we have with understanding the logical nature of the laws of men. Ricoeur claims that at least criminal law has an instrumental nature which is anti-humanistic and runs against the flow of both humanism and liberalism. Criminal law presupposes the legitimacy of physical force and violence(of power) in relation to those who fail to obey the law. The law punishes. After the contemplative weighing of evidence in the tribunal comes the judgment in accordance with the law and thereafter comes the freedom from the punishment or the punishment itself(the instrumental end–the substitute vengeance). Even the contemplative process is merely a more peaceful substitution for what might happen in the interaction between a partner that has been harmed and a partner seeking vengeance. The latter, if he is a citizen and cares for the state he lives in hopefully will reject a violent form of vengeance and accept the substitute vengeance offered.
The long process of the regulation of the law involves written laws, a tribunal in which evidence can be presented and weighed and competent independent people whose task it is to regulate the process fairly and pass fair judgment. This process at first sight looks very scientific and though there is classification of actions and arguments which have a logical structure, there is also art, a story being told in the courtroom which is open to interpretation, and there is also interpretation involved in the process of deciding which law is relevant to the narrated actions as well as which facts are relevant and which parts of the story are facts and which not. Criminal law obviously is a law which resolves conflicts with the motivator of conflicts, namely violence. It is divisive and divides society into the guilty and the not guilty. Many political realists have this model of law in mind when they speak about power and security: we the people shall protect ourselves from all enemies, imagined or real. Paul Ricoeur points out that civil law differs from criminal law in that it is not politically divisive but, on the contrary a region of law which regulates the making and keeping of promises and the exchange of promises, mutually relating partners in a venture or project. The claim that “Promises ought to be kept” is used by Kant as an example of a categorical imperative. It is, that is, the ethical imperative of society manifesting and symbolizing the global trust the members of a society have for each other. Should it transpire that someone fails to keep a promise, such a state of affairs undermines the trust that such a commitment entails and civil law regulates both the possible material damages done to the injured party and the metaphysical damage that is done to the moral law.
Paul Ricoeur also discusses a third region of the law relating to the just distribution of benefits and burdens necessary for the Aristotelian flourishing life. Some benefits and burdens are economic but some are more constitutional. Constitutional issues such as education and citizenship directly involve the ethical imperative. There is, however a third constitutional issue which is very relevant to our current situation and debate, namely, security. The recent executive order to temporarily stop refugees and immigrants from 7 selected predominantly Muslim countries seems to affect directly the ethical imperative and freedom insofar as it is involved in education and of course seemingly also raises the the issue of citizen security. The latter issue appears to be at least theoretically managed by the nation state and the other, the former, seems to practically transcend the nation state and be a manifestation of the more important aspect of the globalisation process. Given these considerations there seem to be at least two relevant issues pertaining to the court decision over the matter of whether the recent executive order issued by President Trump was constitutional or not. One is whether there is a real empirical provable threat to the security of American citizens. Here one can wonder whether the threat is purely hypothetical or alternatively one can wonder whether the measures taken were disproportionate to the threat. The second relevant issue concerns the ethical imperative at two political levels: firstly the level of promises(the signing of the Geneva convention and the Human Rights charter), secondly at the level of education which ideally should be educating citizens to be citizens of the world via ethical training and its concentration on the universal truth and justice valued by all men.
So, much more is at issue with this court decision over a hastily crafted executive order than merely power of the President and the powerlessness of refugees, not to mention the powerlessness of those tens of thousands of visa holders who have been promised entrance and are now in doubt as to whether State promises will be kept.
If the ethical imperative as a part of the deeper more meaningful process of globalisation is operating in the most powerful nation on earth then we should expect a decision which overturns at least the more unjust parts of the executive order. If the Presidential order stands, the young people of today have a task similar to that of the non-white civil rights movements and nuclear disarmament movements of the last century, the task of peaceful civil disobedience in the form of demonstrating for the implementation of the ethical imperatives in all government.