MARCH 10 — In his piece entitled “Kembalikan Kegemilangan Undang Islam,” (Utusan Malaysia Feb 27, 2014), Zainul Rijal Abu Bakar makes a very radical argument that draws from the thought of Hans Kelsen, a German legal philosopher. Bakar argues that “Islamic law” is a “grundnorm” or the “primary norm” in Malaysian law and politics.
The argument is radical because Kelsen is thought to argue that within a legitimate legal order, the meaning and validity of all claims about what law requires must be traceable to an ultimate norm. This norm, the “grundnorm”, is a transcendental epistemological postulate.
This is a fancy way of saying that the “grundnorm” is a conceptual assumption that determines the validity and meaning of specific claims of legal obligation so that in order for any claim of legal validity to be true for the system of law to be capable of legitimizing the use of state power in law’s name, all judgments about the meaning and validity of law must be traced back to the “grundnorm” of that legal order.
I do not know how familiar Abu Bakar happens to be with Kelsen’s legal theory. However, I suspect that he is embracing the standard view taken within the study of legal theory that Kelsen is a legal positivist who thinks that the concept of the rule of law or legality is a morally and ethically neutral concept such that the morality of law will depend on the moral character of a society, especially its officials.
This is the main way that his “pure theory” of law has been understood: as an ideologically pure theory of law, as a mere instrument capable of serving any value or goal. Therefore, the “grundnorm”, as the ultimate basis to all judgments of legal validity, can reflect any value including, presumably, Islamic values embraced by Malaysia’s predominantly Malay-Muslim populace.
In this regard, it is important to note that this standard view of Kelsen’s theory is wrong. Lars Vinx (Hans Kelsen’s pure theory of law: Legality and Legitimacy, Oxford University Press, 2007), an expert on Kelsen, has shown that he is not a legal positivist.
Rather, he turns out to be an anti-positivist who advocates a view of “democratic legality.” Vinx draws on Kelsen’s previously untranslated writings in political theory to show that he sought to build an adequate theory of the rule of law capable of serving an ideal of constitutional democracy.
He was motivated to produce a theory of law adequate to serving a view of politics that guarantees equal political participation to all citizens that is capable of promoting social co-operation despite their deep disagreements about the ethical identity of the state.
The precise context that worried Kelsen was a disagreement between socialists and capitalists about the ethical identity of the German state. Kelsen grew concerned that the former had grown impatient with a democratic means of acquiring power and were thus moving towards Fascism.
This was of course the impetus for the rise of Nazi totalitarianism, the horrors of which need not be stated. Kelsen sought to defend a view of law and the Constitution that serves the ideal of constitutional democracy as the best basis upon which socialists and capitalists could co-operate, given their disagreement.
To deal with this challenge, Kelsen articulates an ideologically pure theory of legality in which law is deemed to be neutral to the debate between socialists and capitalists about the ethical identity of the state.
The formation and interpretation of legal content is not to draw on these competing visions about the ethical identity of the state. Rather, they must answer to principles of legal legitimacy internal to the ideal of the rule of law or legality itself.
These principles work to sustain democratic political arrangement where there is majority rule but where the majority must be systematically responsive to the interests of a political minority. The very idea of a democratic majority requires the idea of a democratic minority as having a systematic role in the formation and interpretation of legal content.
Hence, Abu Bakar cannot claim that Islamic law is a “grundnorm” in the Malaysian context. That would be to misappropriate and misuse Kelsen’s theory because that theory is neutral to questions about the ethical identity of the state.
The “grundnorm” may dictate the status and meaning of judgments of legal validity but nothing about the “grundnorm” will tell us anything about the ethical identity of the state as that question arises between socialists and capitalists; it will not determine of it is socialist or capitalist (though it will most certainly rule out a totalitarian view of any sort).
To make this observation is not merely to engage in a pedantic academic exercise about how to understand Kelsen’s work, which is likely of little concern to readers of this new portal. Rather, its importance lies in the fact that Kelsen’s work is crucial to combating precisely the type or kind of argument that Abu Bakar wants to make.
Abu Bakar draws his conclusion that Islamic law is the highest law in Malaysia from the fact that all other constitutional provisions, especially those that protect rights of all citizens, may be limited or suspended, especially in times of emergency.
But because those provisions protecting the status and priority of Islam and other provisions affirming the special position of the Malays, Malay language and related matters are immune from limitation or suspension in a time of emergency, he reasons that these provisions are of utmost importance.
In essence, he is arguing that there is a prior ethno-Islamist political constitution that survives the formal legal Constitution. In an emergency, when the law recedes, this political Islamist Constitution emerges to the surface, in reflecting the ethical identity of the state as a Malay-Muslim state.
This is a political truism that finds formal expression in the Constitution but does not itself depend on the Constitution for its truth; it is a pre-legal political truth that is superior to and prior to the law itself.
This line of argument echoes the type of arguments made by Carl Schmitt, the legal philosopher of the Nazis. I have written about Schmitt before. He thinks that the aspiration of the rule of law to tame political power is a myth, a myth that is revealed in the moment of “exception” or emergency.
In an emergency, a situation where the physical and existential identity of society is under threat, the political Constitution rises to the surface when a sovereign or dictator emerges to invoke the distinction between the “friend” and the “enemy.”
He, the sovereign, should exercise absolute and legally unlimited power to vanquish the enemy, any group that threatens the physical and existential identity of the friend. In so doing, the dictator defines and defends the ethical identity of the state as prior to and immune from challenge. For Schmitt, only authoritarianism and totalitarianism can be considered a coherent and attractive form of political rule.
Schmitt’s view stands in stark contrast to Kelsen’s position. On the one hand, for Schmitt, all politics is ultimately about violent conflict, a fight to the death where there is both a battle of values and a physical battle. There is no space within Schmitt’s thinking for social cooperation on peaceful terms even where parties deeply disagree.
On the other hand, for Kelsen, politics is ultimately about the achievement of social peace through respect for democratic legality as the basis to social cooperation between disagreeing parties. Kelsen was especially keen to resist Schmittian thinking because such resistance to democracy could only end terribly, as the horrible history of Nazism during World War II confirms.
For all of these reasons, Abu Bakar’s actual argument is very far removed from Kelsen’s position. Kelsen is a believer in the ideal of legality as tied to democracy and resists the notion that the law should reflect this or that view of the ethical identity of the state.
Kelsen is also committed to protecting the fundamental rights of all citizens and groups as central to a healthy majoritarian democracy where the majority must work with a political minority. Perhaps most importantly, Kelsen anticipates a political culture where there is deep political disagreement and debate; he does not expect the law to put an end to such disagreement and debate.
I hope that Abu Bakar will be receptive to this argument for his final paragraph suggests that his principal concern is the quest for truth. So he says:
“Apa yang lebih penting sebenarnya ialah kita mengenepikan emosi dan mengkaji Undang-undang Islam dengan hati yang ikhlas bagi mencari kebenaran. Sudah pasti jalan yang lurus akan ditemui. Undang-undang Islam sudah menjadi grundnorm atau norma utama di Malaysia.”
If he and we are serious about the quest for truth when interpreting the Malaysian Constitution, then one has to answer to appropriate standards of constitutional interpretation where it is also to pay attention to the conceptual soundness of fundamental ideals that inform such interpretation, especially the ideal of the rule of law or legality.
So I hope it is not out of place for me to correct him not only of his understanding of Kelsen’s work but also to identify the ways in which Kelsen would have resisted the line of argument that Abu Bakar sets out in his article.
Rather, if there is any lesson to draw from Kelsen’s work is that in a society marked by deep pluralism, disagreements about ethics, morality, religion, and politics, social co-operation depends on respect for legality and democracy.
These values are more important than specific debates about the ethical identity of the state to the extent that these values work to ensure social co-operation because in a context where no party can be completely confident of winning a political battle forever, then all parties have a rational and reasonable interest in ensuring that they will not be oppressed. Kelsen’s work supplies vital resources to developing this view of the Malaysian Constitution.
* This is the personal opinion of the columnist.
