Very recently, Bryan Tiojanco wrote an intelligent and provocative piece that he entitled “What lawyers don’t get about Duterte”. Acutely distinguishing between “legality” and “legitimacy”, I do not think it was ever his intention to argue for EJKs. It is rather his position that the body count, that has been sufficiently bemoaned, will continue to rise for as long as this draconian measure is perceived to be necessary to defend the country. This places the entire debate where it should be—in the sphere of legal philosophy and constitutional theory.
Mr. Tiojanco’s position demands that one be willing to distinguish two characterizations: “legal” and “legitimate”, and another way of putting that is to say that not everything legal need be legitimate, and what is legitimate may not always be provided for by the law. To be sure, a distinction analogous to this has long been maintained in the history of thought. Scholastic philosophers distinguished between the “moral” and the “legal”, although it was difficult to maintain distinctness in view of their insistence that law be “ordo rationis…an order of reason”, which is exactly what a moral norm was also supposed to be: a dictate of right reason. More recently, however, legal positivists have stressed the distinction—and advocated the stringent separation. Norms have authority because they are recognized as such by “rules of recognition” that are antecedently accepted. Jurgen Habermas, for his part, in an attempt at what one may characterize as a “reconstruction of natural law theory” hinges his entire argument on the difference between the facticity of norms and their validity—their worthiness of adherence and acceptance. In Habermas, as in Finnis —an advocate of a revived natural law theory—there is appeal to reason. Habermas calls on the power of communicative action: the reasoned common definition of a situation and the juris-generative power of free and untrammeled exchange.
And in light of these distinctions, how does the argument for EJKs, for short-cuts taken by police officers, and for the summary “disposals” of suspected drug peddlers stand to the test and to the challenge of reason? Legitimacy is not a matter of counting noses. It has to do with claims, challenges to claims and the responsibility with which an advocate advances reasons in support of those claims as well as how well such reasons stand the test of refutation and rebuttal. And that is just the trouble with the EJK issue, because plenty of what we get in purported support of the violence that has marked the aggressive campaign against drugs and their indubitable proliferation has taken the form of unintelligent trolling —comments and posts on social media sites providing prime examples of non sequiturs and unpardonable speciousness!
In fact, labelling and slandering are the antithesis of rational argumentation, and of that, we have plenty from the very vocal supporters of the present administration’s measures. In the end the elemental questions must be answered whether the summary execution of persons suspected of drug-dealing can be supported by sound argument—and whether its proponents can offer sound answers to the objections pointedly raised. Absent that, it will not do to try to find justification for what is undoubtedly “illegal” by appealing to “legitimacy”.
If anything at all, the discussion must continue —and urgently, and the scrutiny of reason must be as relentless and as thorough. The commonly interposed objection—Who will judge?—is a specious, non-issue: Anyone with the faculty of judgment will judge, and that is what discourse is all about. To deny this is to deny our capacity for discourse and to leave us all to the mercy of strategic action as the only way of resolving disputes. This cannot be our lot.