Theory of dediscoursification as a part of republican theory – part two

TransConflict is pleased to present extracts from Dražen Pehar’s book, ‘Dediscoursification – how discursive attitudes cause wars’, the key contention of which is that the attitude to language should be theorized as one of the major causes of war.

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By Dražen Pehar

The compatibility, and mutual dependence, between the theory of dediscoursification and republican political philosophy can be, in very plastic terms, illustrated through the issue of legal interpretation, especially constitutional one. As widely known, the law, as a discursive pattern with the status of a justified, reasoned collective promise, cannot interpret or enforce itself. It is through the process of legal interpretation that one can recognize the fact that the republican community founded on the rule of law depends critically on a right ethical attitude toward the process of legal/constitutional interpretation. One should keep in mind that it is not unusual to witness the situation in which an immoral, politically motivated judiciary exploits the process of legal interpretation to give a specific twist to a law. Such a judiciary shapes the process in the way that departs from the common good, as originally intended and stipulated, and suits only a fraction of the most powerful, or the richest, part of the population. In other words, they interpret the law in the way that ensures a tacit, and illicit, transformation of the law into a weapon that shields the interests of a factional party to the detriment of a majority. This means that the rule of legal interpreters can occasionally transform the rule of law into the rule of a narrow, but powerful section of the population. Thomas Jefferson, among others, was acutely aware of such a danger to which he often referred as “the tyranny of an unelected judicial minority.”[1] “Machiavelli,” however, in a conversation with “Montesquieu” (as a part of Joly’s Dialogue in hell), considers such a tyranny as a welcome opportunity and explains it in more detail as follows:

“The closer a judge to a ruler, the more is he under the latter’s sway. A conservative spirit of the rule will here develop to the degree higher than anywhere else; and the laws concerning political arrangements will, within such a forum, be given an interpretation which is so much inclined to my rule that this will spare me the effort of passing a multitude of some restrictive measures that, without it [interpretation], would be necessary…There is no legal text, no matter how clear, that could not lead to all kinds of solutions, even in the private civic code; but I appeal to you not to forget that, at the moment, we are in the realm of politics. And, it is a common habit of all the legislators of all ages to adopt, as a part of their laws, a sufficiently elastic expression to enable them, according to a circumstance, to resolve disputes or introduce exceptions in the ways of which we, if wise, should not declare our own view in more precise terms” (Joly 1997, 122, translated by the author).

There is no doubt that Taney’s decision in the “Dred Scott” case can be explained in a similar fashion. It is through an interpretation of the American Constitution that Taney transformed the document into a factional good. He violated the values of the moral matrix of discourse and through a morally dubious interpretation, a morally dubious use of discourse, encouraged the process of dediscoursification and contributed to the outbreak of the American Civil war.

But, it is clear that there is only one way to prevent such dangers. First, the community needs to avoid the condition in which a single, limited body has the right of giving the final word in the sense of an ultimate interpretation of the constitution, or the law, which nobody has the right to challenge, contest, or question in reasonable terms. In other words, the whole community needs to undertake an unequivocal commitment to the rule of reason as a part of the moral matrix of discourse. Put in the republican terminology, to establish a body endowed with the right of ultimate interpretation means to exert a “discourse-unfriendly,” or a dominating and arbitrary, influence (see also Pehar 2014a). To institute such a body means to institute a master who can treat an entire community as a bunch of his slaves in a discursive sense. One major consequence of this view is that the “job” of legal interpretation cannot be restricted to a single branch of governmental power. Hence, for the purpose of legal and constitutional interpretation, a kind of overlapping structure of governmental powers, roughly in accordance with the US model, is the only one that is just, discourse-friendly, and compatible with the republican premises.

Secondly, as they formulate and propose their interpretation, all legal interpreters, including constitutional ones, need to respect and promote the values of the moral matrix of discourse. All interpreters need to aspire to truth, seek justified and non-arbitrary ways of the reading of meanings in a legal document, meet the criteria of epistemic correctness, and, finally, treat the law/constitution as a collective promise binding on all community members both individually and collectively. This means that a right moral attitude toward discourse is a key factor of promotion of the republican values, and thus a key vehicle for implementation of the positive part of the republican model too.

This takes us back to one of the central themes of republicanism: civic virtue. In the sphere of the interpretation of laws and constitutions, civic virtue assumes the shape of a discursive virtue, or the regard for discursive values. When such a virtue is not practiced, no institution of government can be sustained. Aristotle recognized this fact long ago, when he pointed out that the proper ruler is one who does not require tangible awards for his service, such as wealth or the power of informal influence; the only award s/he can justifiably require, and also one s/he should ideally receive, is one of “honor and dignity (time kai geras in Greek)” (Aristotle 1996, 1134b 1-8). It is exactly such a form of award that we ordinarily consider as pertaining to those who practice a moral attitude toward discourse, and whose conduct is distinguished by the following discursive virtues: truthfulness, sincerity, responsibility toward reasons, and reliability in the sense of fulfillment of one’s own promises in the form of either individual promises or treaties, laws, contracts, and agreements.

Thus far, a number of propositions were presented and substantiated. First, the master-slave relationship in a discursive-political sense is best presented in the republican political paradigm as well as in the theory of dediscoursification as an essential part of the paradigm. Secondly, freedom as a relationship of non-domination is, in simple and persuasive terms, explained in republican framework through Pettit’s idea of “discourse-friendly influences and relations,” which centers on the notion of a discourse used in accordance with the moral matrix. Thirdly, insofar as the positive preconditions of the positive part of the republican model pertain to civic virtue, they can be satisfactorily related to the theory of moral matrix of discourse as a critical part of the theory of dediscoursification. An important illustrative example of such preconditions is found within the context of legal and constitutional interpretation. Fourthly, the negative effects of the negative part of the republican model, in the sense of a moral-intellectual corruption caused by domination, are as well easily explicable in terms of the theory of dediscoursification.

Now, a fifth, and final, proposition remains to be substantiated and clarified: the violation of the republican tenets sets the key condition for the outbreaks of war due to the violation’s capacity to cause, or encourage, the process of dediscoursification. Here I have in mind primarily notorious civil wars, revolutions, and slave rebellions.

Among the modern philosophers Hegel is one who, in the strictest terms, related the master-slave (“Herr-Knecht”) relationship to the process of continuation of the state of war. Slavery can be explained only in terms of the spoils of war as follows: the slave is one to whom a victor spared his life, while gaining a pure work-energy, a domesticated animal, in return.[2] In such a sense, the state of war does not end with the master-slave relationship; the former is actually preserved by the latter. That is why, for instance, a war in the form of a slave-rebellion requires almost no explanation. Putting Hegel aside, one should have in mind that the presentation of the master-slave relationship in terms of the state of war dates back to the age of classical antiquity. In fact, from its early start, the republican tradition put the relationship exactly in terms of the state of war, as attested by Cicero’s Philippics: “Servitutem pacem vocas?… Quae causa justior est belli gerendi, quam servitutis depulsio?” (Should you call the relationship of slavery a peace? What reason for the waging of war is more just than the abolishment of slavery?) (Latin quote in Skinner 2002a, 10-11) In other words, Cicero here claims that, as long as the master-slave relationship persists, we cannot speak about peace at all–such a relationship naturally and inherently calls for the waging of war. Cicero also adds that the waging of war against slavery is just [3] primarily because slavery is both an effect and confirmation of the state of war; in other words, the war against slavery is a natural effect of slavery itself. Obviously, slavery is a self-destructive relationship.

The theory of dediscoursification satisfactorily explains the fact of slavery’s self-destructiveness. Since the relationship is one in which one party dediscoursifies another, it is clear that it must cause self-destruction of both discourse and the human being as a being of discourse. The master deprives both himself and his slave of discourse, and thus destroys both as discursive beings; he also transforms both into something less-than-human, which prevents any sustainable, agreed, or institutional connection between the two from coming into being. For instance, Polynices relates to Eteocles as a slave to a master because the latter dediscoursifies the former; and this also explains why their relationship is not marked by any prohibition or limitation. Hence, theirs is a relationship in which the word is swiftly replaced with the sword.

However, if the condition of slavery is a state of war, and if one responds to the condition by another war, should not the future post-war state be as well produced by a war, exactly in the same fashion as the former condition of slavery was produced by a war waged prior to it? In other words, where is the guarantee that the future war, one that a slave wages against the master, will achieve a result that is qualitatively different from the previous one, which merely preserved and confirmed the previous state of war by designating some as “masters” and others as “slaves”? Such a question seems to permit only one kind of answer, which is as follows: the condition of slavery, which involves and confirms both the state of war and a specific discursive relationship in which the parties do not figure as discursive beings, cannot be removed by a war or an armed conflict. The only way to remove it is through the process of re-discoursification, and war cannot be a part of such a process. War is an arbitrary power in its purest form; it is a confirmation and effect of the state of dediscoursification. This also means that, despite its being an expected outcome of slavery, war is a wrong way of abolishing slavery. To abolish slavery, or to initiate the process of re-discoursification, a much deeper change is required.

As to the fifth proposition, which reads that the violation of the tenets of republican political paradigm sets the key preconditions for the outbreak of armed conflict, two key examples are already offered: Eteocles violates the tenets of republican political theory; he is not concerned with the notion of justice, but with a self-centered mastery or tyranny; moreover, he is not concerned with the previous agreements, or with the universal patterns of equality and fairness that Jocasta refers to; we have seen in section 1.6 how he dediscoursifies Polynices and relates to the latter as a master to his slave, as Polynices confirmed too. Hence, the war between the two sons of Oedipus breaks out quite predictably.

Secondly, Taney’s decision was offered as an example of one of the causes of American Civil War. It contributed to the outbreak of the war by causing dediscoursification within the American public space. In addition, it is clear that, through his interpretation of the American Constitution, Taney also violated the tenets of republican theoretical paradigm. He acted as an American Constitution’s ultimate interpreter who attempted to legitimize the American slavery forever, and thus acted as an instrument of a factional interest within the USA. Again, the American Civil War broke out quite predictably.

Now, thirdly, when one reads carefully Skinner’s essay on the republican idea of freedom and the 1642 English Civil War-Revolution (Skinner 2002a), one finds in this war too an unmistakable confirmatory evidence for the fifth proposition. Those who, in 17^th century England, during the reign of Charles I, call for a war against the king (this group defends the role of parliamentary assembly as a true and sovereign representative of the people), explain their motion as one against the “royal prerogative.” In their view, such a prerogative is fundamentally irreconcilable to the tenets of republican freedom. Skinner delivers a masterful account of the neo-Roman republican terms drawn from Cicero, Livy, and Aristotle, in which the anti-monarchical group couched their ideas and demands. Their key statement is as simple as efficient: if the laws of a country depend on the mercy or whim of a single person, then the country is beset by the condition of slavery (Skinner 2002a, 22, 24). Also, to stand for such a condition means to declare a war against the people or their sovereign representatives (Skinner 2002a, 24).

Most interestingly, the loud protestation by the English parliamentarians and opponents of the royal prerogative started to gain a considerable strength when one particular problem arose. It was the problem of the interpretation of so-called “Negative voice,” or the royal right to block (or admit and confirm) the legislation proposed by the parliamentarians (Skinner 2002a, 17-19). As the king delayed application of a parliamentary Militia ordinance, which assigned the right of summoning the police independently to the two houses of parliament, the parliamentarians interpreted this delay as a royal statement that the king gave himself the right to be the ultimate interpreter for the purpose of legislating even in the conditions of emergency.

They viewed the delay simply as a king’s arbitrary, hence unjustifiable, interpretation of the law. In other words, it is by focusing on king’s attitude toward a law/discourse that they formed, or verified, their view of the king as one who relates to them as slaves. Such an effect can be explained only in terms of the theory of dediscoursification. Additionally, it is interesting to note that, on 15 October 1642, an anonymous treaty was published against the king under the title The Vindication of the Parliament And their Proceedings (Skinner 2002a, 26). It is in the treaty that, only a few months after the start of the English civil war, one finds a very interesting depiction that can be adequately grasped only in terms of the theory of dediscoursification: the king and the parliamentarians are both depicted as animals, thus as dehumanized, but some emphatically negative moral attributes are added to the depiction of the king as follows:

“For as the Crane had better to keepe his head out of the Wolves mouth, then to put it into his mouth, and then stand at his mercy, whither he will bite off his neck or not, so it is better for every wise man, rather to keepe and preserve those immunities, freedomes, prerogatives, and priviledges, which God, and nature hath given unto him, for the preservation, prosperity and peace of his posterity, person and estate, then to disenfranchize himselfe and relinquish and resigne all in to the hands of another, and to give him power either to impoverish or enrich, either to kill him or keepe him alive.” (Skinner 2002a, 27)

Hence, at the dawn of the 17^th century English civil war we find another clear example in support of the thesis that the key causes of an armed conflict must include some violations of the republican tenets that necessarily bring about the process of dediscoursification.

However, what about the thesis that adds a critically important provision to the fifth proposition: that wars cannot abolish slavery, nor revive or recover the principles of the republican political theory, nor help one transcend or reverse the state of dediscoursification? It is clear that, in a sense, war as such may be conceptually interpreted as a practice that indirectly supports the republican principles or ideals, as it may be similarly interpreted as a practice that indirectly supports the discourse-ethical standards and norms on which the theory of dediscoursification draws. For, assuming that human beings fail to respect and uphold the ideals of the republican paradigm, or assuming that they fail to respect and uphold the norms and ideals of the moral matrix of discourse, wars are likely to recur with a sufficient frequency. Since we can be assumed not to desire war, or not deem it a desirable kind of the human interacting, it follows by modus tollens that both the norms of the moral matrix of discourse and the ideals of the republican political theory ought to be upheld and affirmed.

Apart from such clear conceptual considerations, what conclusions does historical evidence point to? To those who feel forced to wage a war due to the phenomenon of dediscoursification or due to their treatment as slaves by others, can the war offer a promise supported by some historical evidence? To them, war cannot be a means of re-discoursification nor of abolishment of slavery. As already emphasized, a much deeper change is needed. For this, too, we have an eye-strikingly clear example.

Contrary to popular perceptions, the American Civil War did not abolish the slavery. It was actually followed by the practice of neo-slavery an historical account of which is masterfully offered in Douglas A. Blackmon (2008). Blackmon demonstrates, beyond any reasonable doubt, that slavery was continued even after the end of the civil war through a specific attitude toward the law, i.e. a discourse. It continued through a selective application of the law, through an arbitrary legislation, and also through the adjustment of the process of law-application to financial interests of some corporations, such as US Steel Corp., that exploited a corrupt system of the police and judicial supervision in American southern states. A typical chain of events evolved in the following fashion: an African-American, or any adult person, was required by the law to possess a certificate proving that s/he was employed. Found without such a certificate, an African-American was regularly sent to prison to serve in custody a five-day sentence. We should bear in mind here that the white people was not a target of such a treatment. Prior to his or her release, the African-American was requested to pay fifty US dollars as a prison fee, and, as ordinarily s/he had no money, s/he was forced to remain in prison to do a prison-work as compensation. This vicious circle was set in place to ensure that the African-Americans served to great corporations as an unpaid labor who worked in terrible conditions, frequently with tragic consequences. Expectedly, the corporations had their own deals with the prison-guards, the police, and the judiciary.

A majority of African-Americans were illiterate at the time; hence, they had no discursive access to the government and were in general unable to submit complaints officially. Blackmon cites a 1902 letter an almost illiterate African-American girl, Carrie Kinsey, somehow drafted and mailed to President Theodore Roosevelt. In the letter, she complained that her 14-year-old brother was abducted “more than a year ago,” and sold to a plantation. The letter was duly enumerated and archived, but no further measure was ever taken (Blackmon 2008, 8-9). Roosevelt treated such a piece of discourse as non-existent: for him, the letter had no meaning or impact at all. The American president thus acted dediscoursifyingly on an African-American girl and her brother, and also on all the other African-Americans who suffered similar conditions. In light of such attitudes and practices, the interactions between the white police officers, on the one hand, and the African-American “suspects,” on the other, as described in section 1.1 of this book, are much easier to understand.

Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000). Dražen is also part of the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation. 

The views expressed in this article do not necessarily reflect the views of TransConflict.

Footnotes

1. See, for example, http://famguardian.org/Subjects/Politics/thomasjefferson/jeff1030.htm (Accessed July 28, 2015)
2. For a most elaborate analysis of Hegel in this particular regard, see Kojève (1981)
3. Having in mind the argument from section 4.1, I disagree with such a qualification; in contrast to Cicero, I would say simply that the war against slavery, or the war to end slavery, is highly predictable or expected.