By Tobias Thienel
I have recently come across a very felicitous phrase that I would just like to briefly note here. It is in Judge Zupan?i?’s explanation of why ‘the enforcement of judicial decisions (…) is an essential and unchangeable element of the rule of law’, in his dissent in Nuutinen v. Finland (joined by Judges Pan?îru and Türmen). In making that argument, the Judge(s) said that ‘[o]ne must constantly keep in mind the original intent of all judicial conflict-resolution, which is to resolve by logic what would otherwise be resolved by arbitrariness, force, etc.’ This culminated in the following description of the rule of law: ‘The essence of the rule of law is that the logic of private force be replaced by the force of public logic.‘ Beautiful, isn’t it?
Nice thread! But I am not sure I agree Tobias that there is no “private logic”. In this context the word “logic” can be the set of constrained choices one finds after committing either to public or private paths. On the public side, we strive to implement the values we have adopted in a constitution through legal institutions. This gives us a path of action or a public or institutional “logic”. One might have private motives to attempt to persuade the public of a particular interpretation, and I think this may be your point that this does not amount to a “private logic”. On the other hand, if one resorts to coercion to force the public to accept your choices, there is a totally different sort of logic governing how you will act, and how people will respond. Hamlet? So in this sense, I think it is possible to think of a “private logic” that is contrary to the rule of law.
I like to think of this in light of what is happening in Pakistan – where rule of law may or may not be the inspiration for transcending violence – sad however, that the US is not leading the way here, For those interested – take a look at my Quickthinks post on this
http://laf.ee/wp/?p=136
Is it possible that ‘logic’ is necessarily ‘public’, in the sense that there can be no ‘particular’ or ‘special’ logic? Or is it that ‘public logic’ is the ideal form of an argument that holds itself up for public criticism? (By which one would mean that the state, as the entity founded to control ‘private force’, must do whatever it does in full view of public discussion, and with good reason)
As for the other part of the statement, I don’t think there is a ‘private logic’. It is possible to speak of a ‘logic of private force’, but the word ‘logic’ does not have its usual meaning there. Instead, it’s used as in the phrase ‘cruel logic’, as might describe a vicious circle.
That’s a jewel. The more I think about it, the better I think it is. It’s so much more than a clever play with words. When studying philosophy, I specialized in logic, and I always wondered why the connection between law and (deontic) logic is not studied more extensively. It’s essentially the same thing. I don’t really understand what ‘public’ logic is, presumably as opposed to ‘private’ logic. But what can that be?