On the 13th of June 2016, Filipino historian Vicente Rafael published a commentary in the Inquirer entitled “Duterte’s Hobbesian World." In that article, Rafael pointed out the seeming non-existence of the idea of “universal human rights…in the local-regional world of Duterte.” And in Duterte’s world, these principles, Rafael argued, are “abstract impositions by the West that infringe on the sovereignty of nations.”
It’s a thoughtful piece that contextualised Duterte’s vision of justice. Rafael believes that Duterte was shaped by a “Hobbesian world,” i.e. the Davao of the 1990s.
A world of various violent groups and corrupt journalists. A world where “human rights are translated into highly particularised notions of honour and revenge where my freedom depends on my right to take yours away.” Rafael's article ends with these stirring words:
“But what about those who do not share the same notion of honour and the desire for revenge? They are left vulnerable and unsafe. Human rights, as contradictory and hegemonic as they are, remain our best hope for protecting each other from this parochial world of revenge and the spiralling fear and violence they bring forth. Doing so requires that we claim those rights and insist on their protection, not by a strongman or a tatay, but by the laws that we ourselves agree to abide by, however imperfectly and unevenly their enforcement might be. Otherwise, it’s back to Hobbes. Or forward to Stalin.”Hobbesian World?
I’d like to begin my critique by questioning Rafael’s use of “Hobbesian World.” What does he mean by that? Thomas Hobbes is the author of The Leviathan, one of the canonical texts in Political Theory. In the Leviathan, Hobbes envisioned two kinds of states: the state of nature and the state of civil order.
The state of nature is an anarchic world, where no higher authority exists who could impose and maintain order. Since there’s no order, no law is possible in that world. Everyone is equally free to do what they want to do.
It’s a world full of rights but no obligations. The latter is absent because there’s no authority who would “constrain those that would otherwise violate their faith.” The state of nature is not the mere absence of the rule of law but the absence of an enforcer of the law: the hand that maintains order.
As a way out of this anarchic world, Hobbes recommended that individuals submit themselves to a central authority who would regulate their rights and enforce their obligations. Thus, the Hobbesian solution to the state of nature is the presence of a strong central authority who can “keep everyone in awe.”
Rafael cautions us about devolving into a Hobbesian World. However, it’s not clear which world is that: the state of nature or the state of civil order?
By projecting himself as a strong authority, Duterte is presenting himself as the Hobbesian solution to the state of nature. Duterte wants to bring back order, so that the rule of law can work its magic.
But Rafael doesn’t see the significance of what Duterte is trying to do. Rafael’s article is about a world of rights. He said that we will escape the state of nature, of war of all against all, if we “insist on their protection, not by a strongman or a tatay, but by the laws that we ourselves agree to abide by, however imperfectly and unevenly their enforcement might be.” The question is WHO will enforce those laws?
The Spectre of Who
As a realist political philosopher, I always look for the "who." As Raymond Geuss discussed in Philosophy and Real Politics, the "who question" is one of the three fundamental questions a political realist seeks to answer; the other two are the question of legitimacy and the question of priorities, preferences, and timing.
The "who question" is very important because, as Geuss argued, "the impersonalised statements one might be inclined to make about human societies generally require, if they are to be politically informative, elaboration into statements about particular concrete people doing things to other people."
Abstractions like "human rights" don't just simply arrive in the world and perform their magic. Even the incantation "Open Sesame" requires an Ali Baba to utter it in order to open the cave full of treasures. Human rights need a set of institutions in order to be realised; and institutions need people with strong political will. Furthermore, human rights need to be tamed by the legal-political concept of the rule of law.
What is the rule of law? The best way to explain it is by understanding its two political functions: as a source of power and as a regulator of power.
Rule of law is a source of power. It gives the ruler a legitimate foundation for his/her existence, course of action, and exercise of power. This echoes Max Weber’s “domination by virtue of legality,” which Weber identifies as one of the sources of legitimation of authority through which obedience of the governed “is expected in discharging statutory obligations.”
The law confers the ruler the power to enact and enforce something; and it is also the basis of obedience of the ruled. If the ruler is seen as going above the law, the ruled can amass their power – an extralegal action - to overthrow the sovereign. As Francis Fukuyama said about the relationship of the king to its subject, “the king was constrained by the fact that his subjects would rebel against any actions they regarded as unjust. But what they regarded as unjust, and what would mobilise resistance against the king, were in turn dependent on perceptions of whether the latter was acting within or outside the law.”
The rule of law is a regulator of power. As it gives power, it also limits it. As James Boyd White observed in Law as Law, law “has the great virtue of limiting what it grants.” It regulates power in two directions: vertically and horizontally.
Vertically, it protects the ruled against the power of the ruler. As Adrian Bedner noted in An Elementary Approach to the Rule of Law, this function “was first coined by Plato and Aristotle, subsequently lost for more than a thousand years then ‘rediscovered’ and elaborated by religious scholars...during the Middle Ages.” This can be understood in two senses. First, it requires the ruler to “live up to the positive law then in force. If they don’t like the law, it must be changed first. Until it is changed, they are bound to it,” Brian Tamanaha said in The Rule of Law For Everyone?. But as the law regulates the power of the ruler, including the power to make or change law, they are not entirely free to change it in any way they desire.” The regime of the rule of law sets the “things they cannot do with or in the name of law,” Tamanaha added.
Horizontally, the regime of the rule of law regulates the relationship of the ruled towards each other. According to R. Kleinfeld in Competing Definitions of the Rule of Law, this function originated “during the Enlightenment.” It was originally intended “to protect citizens’ property and lives from infringements or assaults by fellow citizens.” This function is the defining characteristics of the liberal version of the rule of law.
Accordingly, the rule of law serves as a social contract between the ruler and the ruled. It is the “common power that keeps them all in awe,” to use Hobbes' words. Reneging from this contract will have either legal or political consequences (or both).
For the ruled, the consequence of reneging this contract is mostly defined in legal terms: breaking the rule of law is a criminal act and can mean imprisonment. For the ruler, the consequence is mostly political: removal from power by impeachment or through a revolution, which can be peaceful just like what happened in the Philippines in 1986, or violent just like what happened in Libya in 2011.
The rule of law is not self-enforcing. The rule of law only becomes effective if it’s obeyed. Obedience doesn’t come cheap: you obey the law either because you believe in it or out of fear of punishment or both.
As a political realist, I’m more inclined to think that it’s fear of the law that keeps it effective. In The Prince, Machiavelli said that it’s better to be feared than loved. I believe this applies to the law as well. Appropriating Machiavelli in this context, people "have less scruple in offending one who is beloved than one who is feared, for love is preserved by the link of obligation which, owing to the baseness of [humans], is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails.”
However, fear only works if the law is strongly enforced and the punishment is harsh. Without strong enforcement, following the law, as Duterte would say, becomes optional. You cannot do away with a strongman, if by strong man you mean someone who has a strong political will to enforce the law. Even the darling of political science, i.e. institutions, need leaders with strong political will in order to be effective because institutions are only as strong as the people helming them.
Even if we live under the regime of human rights, strong political will is still necessary because our rights aren’t just contradictory, as Rafael acknowledged, they are also “not compossible, that is, the implementation of one human right can require the violation of another, or the protection of a human right of one person may require the violation of the same human right of another,” as Michael Freeman explained in his introductory book on Human Rights. Thus, Institutions need leaders with strong political will in order to enforce laws that would protect the rights of some people at the expense of others. That is an inescapable political reality.
Illusion
The problem for me is not the contradiction of rights nor that they are hegemonic, as Rafael called it. Rights require order and every order is inevitably hegemonic, as Chantal Mouffe said. The problem for me is characterising “human rights” as our “best hope” for anything.
Rafael called human rights: “our best hope for protecting each other from this parochial world of revenge and the spiralling fear and violence they bring forth.” For me, this sounds exactly what Christian realist Ronald Niebuhr warned us against in Moral Man and Immoral Society: A Study in Ethics and Politics:
"The very social scientists who are so anxious to offer our generation counsels of salvation and are disappointed that an ignorant and slothful people are so slow to accept their wisdom, betray middle-class prejudices in almost everything they write. Since reason is always, to some degree, the servant of interest in a social situation, social injustice cannot be resolved by moral and rational suasion alone, as the educator and social scientist usually believes. Conflict is inevitable, and in this conflict power must be challenged by power. That fact is not recognized by most of the educators, and only very grudgingly admitted by most of the social scientists."
The doctrine of human rights cannot protect you in the face of an attack from someone for whatever reason. Period. That is the point Duterte wanted to convey: How can the Constitution or the notion of Universal Human Rights protect a journalist from the moment that s/he is being killed? The Constitution and the lofty notion of humans rights only work after the fact OR they might be effective if the Constitution and human rights doctrine arouse enough fear that could deter your attacker from committing violence against you.
When I was still living in the Philippines I was almost killed. One night, while I was on my way home from a speaking engagement, a gang of teenagers who were hanging outside a 7-11 convenience store saw me and started debating among themselves whether I was a girl or a boy. One of them settled it and shouted, “Putangina walang suso! Bakla yan! (Fuck! No breasts! That’s a fag!)” Then they started running towards me, shouting “Bakla! Takbo! (Run faggot!)” Terrified, I ran as fast as I could. I screamed for help but there was not much people in the road, only cars and jeepneys speeding by. Luckily, I saw an empty cab. I immediately hailed it. I locked all the doors and asked the driver to drive fast. Then I saw that the teenager closest to me was carrying a steel pipe. He banged the trunk of the cab with it. The driver was furious and tried to stop to confront the guy. But I pleaded for him to just go and hurry up. Only fate knows what would have happened to me if I had been too slow or if there had been no empty cabs that happened to be there.
How could the UN Human Rights Commission or the Philippine Commission on Human Rights protect me at that moment when I needed my right to life be protected? These institutions would come after the fact, after the sad fact. But, as how we say it in Tagalog: Aanhin pa ang damo kung patay na ang kabayo? What exactly did I need at that time? It’s not human rights that was on my mind at that time but the absence of police officers with strong political will that could enforce my right to life by protecting me against my attacker. Yet the police cannot be everywhere. I also have a duty to protect myself from these attacks and to avoid places where these attacks are likely to happen. I cannot debate with my killer and stop him with an eloquent speech about human rights. If someone would kill me, they would kill me. And no amount of human rights work could bring me back to life.
This is the reason why I understand what Duterte meant: I’ve been in a lot of situations where my life was in peril. I can preach that killing is wrong, but people will still be killed; I will still be killed. If preaching could stop violence, we would have been living in paradise already with all the preaching against violence that has been going on since time immemorial.
In addition, it is not human rights that is our best hope “for protecting each other from this parochial world of revenge and the spiralling fear and violence they bring forth,” as Rafael puts it. Our best hope is the cultivation of self-restraint.
We are at the receiving end of revenge because we did something worth avenging. And some people, a hell of a lot of them, find their dignity, yes the wellspring of human rights, worth killing for.
The Maranaos in Mindanao have this concept called “maratabát.” As Robert Day McAmis explained in Malay Muslims: The History and Challenge of Resurgent Islam in Southeast Asia, maratabat guides the “life and conduct of the Maranao in his daily life. A Maranao will go to great lengths to build a ‘good’ maratabat. Having a bad community image is considered ‘having dirt on his face,’ and this will provoke a Maranao to go to any extreme to remove any ‘stain’ from his maratabat.” It’s a very compelling sense of dignity; when it is ruined by somebody else, it “demands retribution that often takes the form of violent retaliation” (Thomas McKenna, Muslim Rulers and Rebels: Everyday Politics and Armed Separatism in the Southern Philippines).
If you mess with their dignity, destroy their reputation, you effectively ruin their lives. Human rights will never ever protect you from someone avenging their dignity that you destroyed. Your best hope against being at the receiving end of a violent retaliation is to stop ruining people’s dignity. It’s not more rights that can help you from someone’s revenge but the maturity to restrain yourself from destroying their dignity. Your best hope is not some lofty principle but yourself. Yes, your killer would be sent to jail, but what’s its use to you? You are already dead.
Between Hobbes and Stalin
Certainly, political will can be excessive and destructive. But this risk doesn’t mean we should strive for a “rule of law” doing its magic without strong authority enforcing its content. Rafael identified the polar ends of excessive political will: Hobbes and Stalin. As he used it, Hobbes refers to the state of nature while Stalin to the state of excessive State authority.
But why these two non-Asian choices? Why not Lee Kuan Yew? If one studies Duterte’s rhetoric, one can hear Lee: the cruel stance against drug lords, the frank attitude towards the press, the boldness against international institutions, including the UN, and human rights organisations. It should not come as a surprise as Duterte has repeatedly mentioned Lee as one of the statesmen he considers as his mentor.
The Philippines has consistently ranked higher than Singapore in the Press Freedom Index of Reporters Without Borders. In 2016 the Philippines’ rank is 138, while Singapore’s is 154. Unlike the Philippines, Singapore isn’t a signatory to the International Convention on Civil and Political Rights or even to the International Covenant on Economic, Social and Cultural Rights. Singapore doesn’t even have its own Commission on Human Rights. Singapore has repeatedly received bad press, criticised by international human rights organisations, portrayed as a repressive regime. But which country has a better quality of life?
However, it’s not the absence of a "human rights culture" that made Singapore what it is now but the presence of leaders who have the political will to do what’s needed to be done in order to create a safe, prosperous, and disciplined society, which could serve as a fertile ground for the cultivation and flourishing of one’s self worth.
