In days of yore my CS law module was taught by a QC - that's a high
ranking barrister in the UK - who explained the world of difference
between the "The Rule of Law" and "the law" in a class called
"jurisprudence".
Rule of Law (capitalised conceptual) is there as permanent ground
truth in contrast to the ephemeral du-jure laws.
At times I still struggle with that profound counter-intuitive idea;
that if one deeply, passionately believes in the necessity of The Law
and all of society's institutions, one must with equal passion break
laws and throw rocks at the police when they are tools of tyrants,
idiots and dumb laws.
Indeed today I think that opposition to technological tyranny has
become the mark of the true conservative, and that defenders of common
sense and simple human dignity are forced to assume the "radical"
position.
Of course, the idea that there is any kind of "permanent ground truth" around morals/laws is very much up for debate. Some philosophers think it exists (usually called "natural law" [1]), while many others think it's nonsense.
I would guess that most anthropologists, for instance, would say it's rubbish -- people who have studied the exceedingly wide variation in what is considered moral or immoral across cultures. A duty in one community may very well be a prohibition in another.
But you don't need to believe in any kind of "permanent ground truth" law in order to "break laws and throw rocks at the police". You merely have to believe that the current laws/administration are acting unjustly according to the local morals of the time and place.
It's permanent in the sense that it doesn't change from one person's trial to another's. Not in that it can't change at all. IMO, the GP didn't explain it very well, I prefer the word "objective" here.
Some level of prohibition against lying in court, judicial corruption and generally perverting the course of justice must exist in order for a system of law to operate.
I am no anthropologist myself but I remember hearing that this list is actually rather small. Religion was an example that was given and I would believe marriage. How many others, though?
Maybe we would say, "whether you are required to marry your brother's widow" - it would be a somewhat unusual choice in modern western cultures, but not forbidden.
I didn't think we were restricting the discussion to modern western cultures. In some cultures, marrying your brother's widow has been required; we generally see this as being part of the social safety net in that culture.
In some cultures, marrying your brother's widow is prohibited because it counts as incest.
I don't know how I would describe the state of this variable in modern western cultures. In modern America, I tend to think it would raise eyebrows and people would be uncomfortable with you.
So looking at the wiki entry on Levirate marriage[1] I see that it's been more common than I remembered, a quick look around didn't turn up any cultures where it would be flatly forbidden as incestuous (I picked modern western as an example where like you say it would seem unusual, but I can also imagine scenarios where it'd be seen as heartwarming, making sure the widow and children were housed and fed etc.)
> Despite the great store Deuteronomy places on this practice, the Priestly Torah seems not to endorse yibbum. It legislates the following blanket prohibition:
> [Lev 18:16] Do not uncover the nakedness of your brother’s wife; it is the nakedness of your brother.
> Here the text forbids a brother from marrying his brother’s wife, ostensibly even after the brother has died. No exception is noted for the brother’s childless widow.
> This problem so bothered the Sages, that they list it within a collection of contradictions in the Torah whose reconciliation is a feat so intangible “that the mouth is unable to utter and the ear unable to hear"
> The cumulative evidence suggests that P/H did not consider yibbum an option, and likely repudiated it. Perhaps the Priestly authors did not feel that incest should have any exceptions—yibbum, which involved a woman marrying her brother-in-law, is at its core incest with an “indulgence.”[5]
> [5] The Sages seem aware of this problem. See, for instance, Tosefta Yebamot 6:10 (cf. Yeb. 39b):
> A man who goes in unto his childless sister-in-law for the sake of beauty or for the sake of property is to be considered as if he is committing incest
That's certainly interesting, both required and forbidden is a case I hadn't expected. I suppose it'd be more practical then to look at historical records and see if the practice was non-existent, or just rare (presumably it wouldn't ever have been common).
Indeed, Ragnar Redbeard's philosophy [0] (Arthur Desmond) is worth a
read.
I dipped into it a bit in my study of ethics, and there's many eye
opening passages, though it's mostly a rehash of Nietzsche, minus the
compassion and good humour :)
Today it's regarded by some as a seed of "far right supremacist"
thinking. And sadly these ideas are confused with the work of Darwin
etc.
We should also note many historical counterparts, and remember that,
for example, the Greeks rewarded soldiers with "spoils" as payment.
I think what I'm saying about upholding the principle of Rule of Law
above the laws of foolish men is quite separate from this - although
when governments test their people to the point of rebellion it is
about the brute reality that might does not lie where it is supposed.
I think the Law of Power (basically, "might makes right") will run circles around any other "law" concept. Whether even this conforms to some "natural law" underneath, is secondary IMHO.
Yup. And underlying ‘might makes right’ is another even more basic one, ‘they who survive and reproduce wins’.
Everything else gets layered on top, with more and more sophistication.
Ethics and morals are attempts to encode various ideas of long term successful strategies for that longer term goal, to help counteract many of the shorter term incentives. But, like most ‘shoulds’, they are often just wishes by those disconnected from the actual reality on the ground or from those that have no ability to make them actually make sense.
Local vs Global maxima perhaps? Or ideal vs reality? Or protective delusions? Or wisdom of the ages? Or tools to direct the median? Or longer term goals?
The most basic law is the only law that can not be broken, the laws of physics. That is what might makes right is backed by, surviving and reproducing is what you get as the result of being able to inflict more violence on the other side than they can on you.
> surviving and reproducing is what you get as the result of being able to inflict more violence on the other side than they can on you.
This is a common misconception. A lot of surviving and reproducing is possible when you work together and cooperate. As King Pyrrhus found out the hard way fighting the Romans.
Sure he initially succeeded in defeating a roman army or two. But you know what? Due to their superior organization skills, the Romans could just field another one. And another one.
"If we are victorious in one more battle with the Romans, we shall be utterly ruined"
Eh, might makes right is in one scenario. Poisoning, betrayal, manipulation, propaganda, co-opting often work too. As many ‘strong men’ have learned to their detriment.
Underlying it, those who survive will justify however they want, they’ll be the ones writing the history books.
I meant that in the fundamental sense, that I can do whatever I want and nobody can stop me, as long as I have the most physical - in the sense of physics - power. The only thing that I can not do is force others to do things I want them to do, they can always decide to refuse and die. Poisons are just molecular bullets. Betrayal, manipulation, and propaganda, not sure how they would achieve anything if I have enough power.
Theoretically, sure. Though if you went that route, ultimately you might just be ruling over a pile of ashes no?
Practically, how do you propose acquiring that power, or having anyone to rule over, that would not leave you vulnerable to all those other things I listed?
As in, whatever power you have being used to serve someone elses interests instead of your own, or even be used to destroy you. Or your own basic needs being sabotaged behind your back to murder you.
There is a reason why dictators and kings tend to have somewhat predictable endings, and it's rarely 'passing away peacefully in their sleep at a ripe old age'.
“Might makes right” seems more like an observation of a particular instance in the feedback loop of building power.
America is for example in a pretty strong position, but maintains power by doing diplomatic stuff. Being in some sense the leader of a big coalition of friendly countries (imagine if we had to force EU countries to accept our bases by violence, it is way cheaper to just be on friendly terms with them and pay a little rent). Being the world’s reserve currency. Setting up and having outsized influence in international organizations.
That sort of stuff requires give-and-take diplomacy, cooperation, and setting up a system of international norms and laws that everyone at least pretends to respect.
Might might make right, but a complex system of rules, conventions, laws, negotiations, reputations and even person-to-person relationships made quite some might. It’s sorta chicken and egg.
> Might might make right, but a complex system of rules, conventions, laws, negotiations, reputations and even person-to-person relationships made quite some might. It’s sorta chicken and egg.
All of those systems are a response to “might makes right” and the history of violence with the ultimate conclusion in the trenches of WWI and WWII. Wars to decide whose might is rightest became so destructive in the modern era that we created all these complex systems of geopolitics - because few of us can stomach destroying a century of industrial progress to prove our might anymore.
“Might make right” still dominates the interactions between unequal states.
It's called hegemony. Hegemony is just another form of dominance, as ultimately it's backed up by force of arms. Power flowing from the barrel of a gun and all that.
The sort of economy required to build a top-tier military nowadays requires international trade and cooperation.
If this sort of military force can’t be produced without a bunch of willing allies, then the force is just an intermediary step. It is constrained by the need to keep those allies willing.
I’m not saying the world is all butterflies and roses, just pointing out that that constraint is real, and I think it is not really what people think of when they say “might.”
Timescales matter. US may not be able to sustain a top-tier military on its own long-term, but short term, they do have the top-tier military and their "allies" don't, so international diplomacy remains the art of skate-dancing around explicitly talking about where the US aircraft carriers are parked now. And that's skating constrained to boundaries defined by MAD, let's not forget that.
In actual practice, I mostly see Natural Law cited as an excuse for homophobia, used in a manner which is transparently reasoning backwards from conclusions. I imagine that actual philosophers might occasionally make better use of it, but I am put off the idea.
Defining Rule of Law as “a permanent ground truth” is likely part of the confusion, as that definition doesn’t really encapsulate the concept.
I find it much easier when it is defined in contrast with “not rule of law” or “arbitrary rule by men” as it is traditionally described.
The point being that it is not about the laws themselves, but rather the manner in which power is exercised. Laws may exist, but if some people are not be bound by them, and are able to wield the laws however they wish (we call these people tyrants), then you don’t truly have rule by law, you are rule by arbitrary will. In order to have rule by law, the law must be the source of power itself, and must apply to all people equally.
This is where resistance to unjust laws or unjust authorities comes in. When people use their authority to put themselves above the law or excised use the law in an unjust/unequal manner, then we are stepping outside the bounds of the rule of law itself. The law is reduced to a mere tool of oppression rather than a source of legitimate authority.
A corollary to this, as mentioned by another commenter, is the concept of so called “natural law”, that is law that exists as an antecedent to human law or is given by god/some other non human source. Note that rule of law is not the same as nor is it dependent on a concept of natural law. The concept of “The Rule of Law” is much older than that of “natural law”.
> if one deeply, passionately believes in the necessity of The Law and all of society's institutions, one must with equal passion break laws
"-- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Lots of ethical systems justify opposition to unjust laws. Utilitarians would say you should disobey a law if it causes more harm than good (while accounting for the good that comes from general order when people do obey the laws). This isn’t just a conservative position
This feel like Utopian thinking. I believe that there are better and worse ways of living and thus better and worse laws. Most ways of living and laws come with trade-offs, others appear to be materially better or worse all around. In other words, there *is* a type of ground truth we can move towards and not everything is relative.
However, we are humans and thinking that "we have arrived" and "I know Utopia" is full of pride and not humble.
Rule of Law is a *process*, that is, it should (ideally) be procedurally symmetrical to all people it applies to based on each person's applicable merit or demerit. So long as you live in a republic, you should try to follow the Rule of Law. No, you are not obligated to throw rocks at police, even when they are tools. You fight tyrants where it matters to them, in the courts, voting box, and make the rule of law apply to them. Tyrants won't care if you injure an officer, in fact, they will use that against you (see rules for radicals, they want your reaction). You find the real battle and fight there.
>Rule of Law (capitalised conceptual) is there as permanent ground truth in contrast to the ephemeral du-jure laws.
That's a strange way of articulating it. The Rule of Law is simply the concept that a society is ruled (hence the name) by the body of law that it passes. That, quite literally, the ruler of the land is the Law.
Some may wince at the use of the word conservative given its connotations. But small-c conservative tendencies are what temper small-p progressive initiatives from quickly entering dangerous waters, just as progressive tendencies counter conservative initiatives when they are sinking us deeper into harmful ruts.
In days of yore my CS law module was taught by a QC - that's a high ranking barrister in the UK - who explained the world of difference between the "The Rule of Law" and "the law" in a class called "jurisprudence".
Rule of Law (capitalised conceptual) is there as permanent ground truth in contrast to the ephemeral du-jure laws.
At times I still struggle with that profound counter-intuitive idea; that if one deeply, passionately believes in the necessity of The Law and all of society's institutions, one must with equal passion break laws and throw rocks at the police when they are tools of tyrants, idiots and dumb laws.
Indeed today I think that opposition to technological tyranny has become the mark of the true conservative, and that defenders of common sense and simple human dignity are forced to assume the "radical" position.
High ideals are very expensive.