| by Dr. Ruwantissa Abeyratne
( November 15, Montreal, Sri Lanka Guardian) I was prompted to write this piece after reading the book Civilization – The West and the Rest by the renowned historian and Harvard academic Niall Ferguson. The book makes for fascinating reading, as much as did his earlier work the Ascent of Money in which Ferguson demonstrated through sustained reasoning that finance has and will remain the foundation of human progress.
|The most important aspect of the Rule of Law is that a State should not suspend it to the detriment of its citizens. Inter aroma denim silent legs is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”.|
In Civilization – The West and the Rest Ferguson brings out yet another central theme that is hard to question, and that is that there are six fundamental concepts that powered the West to overtake the rest. The author draws the contrast of the miserable boondocks that Western Europe was six hundred years ago compared to China under the Ming Dynasty or Turkey under the Ottoman Empire, to what it became commencing the fifteenth century with the six powerful concepts. These are competition, science, rule of law, modern medicine, consumerism and the work ethic. For purposes of brevity, let’s see what two of these – competition and the Rule of Law, which are arguably the most contentious – are.
National prosperity is created, not inherited. Although national resources are a States’ assets, the prosperity of a nation does not necessarily emerge solely from the natural endowments of the State concerned, nor from its labour resources, but rather from a certain localized process which engulfs economic structures, national values, culture and institutions. The essential catalyst to trade is national competitiveness.
National competitiveness is one of the most critical drivers of successful government and industry in every nation. Yet for all the discussion, debate, and writing on the topic, there is still no persuasive theory to explain national competitiveness. What is more, there is not even an accepted definition of the term “competitiveness” as applied to a nation. While the notion of a competitive company is clear, the notion of a competitive nation is not.
Some see national competitiveness as a macroeconomic phenomenon, driven by variables such as exchange rates, interest rates, and government deficits. But such countries as Japan, Italy, and South Korea have all enjoyed rapidly rising living standards despite budget deficits; Germany and Switzerland have enjoyed prosperity despite appreciating currencies; and Italy and Korea are doing well despite high interest rates.
Others may argue that competitiveness is a function of cheap and abundant labour. But how does one explain Germany, Switzerland, and Sweden which have all prospered even with high wages and labour shortages. Besides, shouldn’t a nation seek higher wages for its workers as a goal of competitiveness?
There are also those who link competitiveness with abundant natural resources. But how, then, can one explain the success of Germany, Singapore, Japan, Switzerland, Italy, and South Korea – countries with limited natural resources?
The above notwithstanding, it must be noted that government intervention or direct involvement in trade is not always beneficial to an economy. Professor Michael Porter of Harvard University Business School states that more recently, the argument has gained favour that competitiveness is driven by government policy: targeting, protection, import promotion, and subsidies have propelled Japanese and South Korean auto, steel, shipbuilding, and semiconductor industries into global pre-eminence. But a closer look reveals a somewhat diverse record. In Italy, government intervention has been ineffectual – but Italy has experienced a boom in world export share second only to Japan. In Germany, direct government intervention in exporting industries is rare. And even in Japan and South Korea, government’s role in such important industries as facsimile machines, copiers, robotics, and advanced materials has been modest; some of the most frequently cited examples, such as sewing machines, steel, and shipbuilding are now quite dated.
Rule of Law
In the sustained evolution of humanity from troglodytes to computer wizards a central role has always been played by the idea of law – the idea that in every civilized society there must be order as against chaos and anarchy which were inimical to a just and stable society. Therefore law is the glue which binds the members of a community, whether national or international, together in their adherence to recognized values and standards. In international law, the principal subjects are nation States, not individual citizens. Essentially, Rule of Law is a State’s adherence to law and it is extremely important as a determinant of good governance. It carries the principle that law (as administered by the ordinary courts) is supreme and that all citizens (including members of the government) are equally subject to it and equally entitled to its protection.
The most important aspect of the Rule of Law is that a State should not suspend it to the detriment of its citizens. Inter aroma denim silent legs is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and hugger of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good and the role of the judiciary as the guardian of the rule of law.
The enduring conflict between executive power and the rule of law is at the heart of this maxim. In modern usage it has become a watchword for the erosion of civil liberties during internal and external strife. The implication of Cicero’s aphorism is that civil liberties and freedoms are subservient to a nation’s self-defence from enemies within or without.
The “state of exception” or “abnormal times” is considered by some political scientists to call for legal justification for a State to be uncontrolled. This theory justifies the sovereign, as guardian of the Constitution, in its extra judicial response to all exceptions to dangers within the political and legal spectrum, on the basis of the sovereign’s exclusive capability of identifying the enemy and the threat it poses to the State.
However, in common law States, this extremist view is blended harmoniously with the essential philosophy of the Rule of Law, which is the foundation of civil liberty and order, and the underlying constitutional principle requiring government to be conducted according to law, thus making all public officers answerable for their acts in the ordinary courts. Common law jurisdictions such as the United States, Canada and the United Kingdom take pride in their long tradition of parliamentary democracy which would effectively preclude arbitrary acts of the Executive in curbing civil liberties guaranteed by the law. This principle is embodied in the dissenting judgment of Lord Atkin in Liversidge v. Anderson (1942), to which courts pay frequent lip service, that amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
The next issue would be the judicial interpretation of the extent to which a State is justified in suspending an existing legal order to protect its citizens. Against the backdrop of the Bush Doctrine which is attributed to the modern notion of preventive war and the justification that the United States had the right to secure itself against countries that harbour or give aid to terrorist groups, which was used to justify the 2001invasion of Afghanistan following the events of 11 September 2001 and the justification of the invasion of Afghanistan, in spite of Article 2.4 of the Charter of the United Nations.
Of special relevance in this regard is the judicial examination by the United States Supreme Court of the imprisonment of an Arab-American immigrant, three months after the terrorist attacks of 9/11. Justice Scalia stated : “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it”.
This statement, which strongly supports the Cicero maxim, reinforces the legal legitimacy of a statement made earlier by Chief Justice Rehnquist who opined: “It is neither desirable nor is it remotely likely that civil liberty will occupy as favoured a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberty…the laws will thus not be silent in time of war, but they will speak with a somewhat different voice”.
If monetary and fiscal policy is set aside in the civilization equation, it would still be North America and Europe – Western powers- that still dominate the world in terms of influence, coercion and power. However, if Ferguson’s theory in the Ascent of Money, where he convincingly argues that finance has and will remain the foundation of human progress is to be taken into account, civilization will shift very quickly from the West to the East. This is because the East is surging ahead not only in the fields of competition but also in modern medicine, consumerism and the work ethic. As for the Rule of Law, I am not sure whether either would have valid claims on a sustainable basis.