【青年學人寫作與研習會】The Continuity of States
講者：陳禮工（中研院法律所博士候選人培育）
主持：陳禹仲（中研院人社中心助研究員）
時間：2020年2月26日（週三）1430
地點：中研院人文社會科學研究中心B202會議室
論文摘要：
This paper seeks to explain how a state can exist and change over time while still being appropriately understood as a single continuous state. I start by identifying and critically examining two major lines of argument about this question from political and legal philosophy. I term these two lines of argument, respectively, the Aristotelian view and the nationalist view. The Aristotelian view is centred on continuity of the constitutional order associated with a state, and the nationalist view focuses on the shared identity of a historically extended national community. The Aristotelian view, I argue, has much too narrow a focus so that it fails to make sufficient room for a political agent’s cross-temporal existence which is grounded in social facts and transcends constitutional discontinuities. The nationalist explanation, on the other hand, presupposes the persistence of a national community as a distinct subject, but does not explain how this is possible, and thus offers an account of continuity which is but an uncritical recognition of a national group’s historical self-understanding.
After demonstrating problems with both views, I offer my own alternative. Based on a conception of the state as a political community which, when well-ordered, is a group agent, I argue that the continuity of states depends on two crucial elements.
First, populational continuity understood as ‘overlapping cohorts’: there are always old and new members co-existing at any particular time, and the old members amount to a sufficient degree of all the members at a recent previous time. Thus, two temporally separate ‘samples’ (states observed at a particular moment) can be considered continuous as such when there is a sufficient overlap of members, or if not, when one can be traced back to the other by tacking the sequence of samples which share the required overlapping membership. Secondly, the successive members, at any moment, conceive of a group agent which is both the group they act to form and maintain now and the group whose past actions their actions now try to continue or discontinue. I call this the cross-temporal self-identification. It ensures a kind of momentary continuity in the short term, and continuity over time is such momentary unity multiplied.
The paper contributes to the debate which Aristotle starts and leaves unfinished. I join Hans Kelsen, John Finnis, Joseph Raz, Nicholas Barber, and other modern legal theorists in recognising continuity as a distinct problem and offer a new explanation by identifying as the core question the persistence of a political group agent. Moreover, drawing on the philosophical analysis of personal identity, I recognise the need to analyse continuity under some circumstances in a quantitative way, and thus the possibility that the continuity of a state is not always determinate. The quantitative element has been much overlooked in current discussions, but is proved crucial to a full explanation of continuity, discontinuity, and ambiguity. Lastly, the paper contributes also to the recent debate in constitutional theory and comparative constitutional law over constitutional identity, also known as a constitution’s ‘basic structure’, as an intrinsic constraint on the constitutional amendment power. I demonstrate that some of the influential new accounts of ‘unconstitutional constitutional amendment’, notably the one developed attractively by Yaniv Roznai, represent an extension of the Aristotelian explanation, and ultimately, have difficulty, as with the original Aristotelian argument, explaining how a constitutional order can have an identity in a non-trivial way by grounding it solely in the order’s own content, isolated from the other aspects of the broader political community whose constitutional order it is.
Barber, Nicholas. 2012. “The responsibility of the state,” in The Constitutional State, pp.124-144 (chapter.8).
Finnis, John. 2011. “Revolutions and continuity of law,” in Philosophy of Law: Collected Essays Volume IV, pp.407-435.
Parfit, Derek. 1986. “What we believe ourselves to be,” in Reasons and Persons, pp.199-218 (chapter.10).
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