"To the extent that a civilization is governed by laws rather than men, it is a peaceful society...Samizdata peer "Midwesterner". My lords, I agree with the honourable gentleman, and would add that, if wielded skillfully, this is a powerful argument for the depoliticization of society, i.e. for rationally repudiating the scale and scope of political power.
To the extent that the law is bent to the uses of some at the expense of others, society degrades into violence."
Saturday, 21 January 2012
"It Really Is That Simple..."
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But, isn't law made by Man? So how can we possibly be only governed by laws, and not men, if laws are man-made?
ReplyDeleteSure: see the post I linked to under the word "wielded".
ReplyDeleteThe trouble with the phrase "rule of law" is that it refers to two seperable problems; the first is the processes by which laws either emerge or are imposed, and the second is the means by which they are applied. Laws must be both just, and applied with dogged disregard as to all extraneous matters of identity, relative advantage / disadvantage and circumstance.
Although this is what some people mean by the phrase "rule of law", it is not what everyone means by it. There is, for instance, the claim that for a law to be "just" it need only be democratically formed with the presumed backing of a majority of registered voters - which is a claim the Pragmatists make, such as the scarlet "conservative", FOARP.
Here: I reprise part of what I said to FOARP in a debate with him at J.M.Cole's place on firearms (comment #26):
"By which logic majority opinion can either repudiate or validate private firearms ownership, and your argument is thereby reduced to a mere amoral contingency. If a majority were to disagree with you, then you would be forced to accept gun legalization as valid."
The point was that his argument as to what makes a law "just" is circular. The Pragmatists (that is what they really are, not "conservatives" and certainly not "liberals") endorse democratic majoritarianism for, I think, two reasons.
The first is their Pragmatism, or to put it more specifically, a delusionary rejection of a-priori principles in ethics* (I say "delusionary" for several reasons which I won't go into here). Instead they say things like "let's be "rational" and look at the consequences"; their approach to ethics is thus heavily utilitarian and this just happens to dovetail neatly with an ontological collectivism (i.e. the view that our moral status derives from our membership of a community, sort of like ants in a hive).
The second reason why they endorse democratic majoritarianism (as opposed to constitutional restraints on government) is more prosaic: they just get a kick out of it (and sometimes - if they work for a government agency, or nominally "private" organization or company on the government teet - a dollar denominated kickback). Just watch them squirm before elections and then girate into orgasm if their side wins. They're disgusting.
*Which itself derives from Pierce's more general interest in epistemology, and the "radical empiricism" pursued by William James.