21 KiB
[DC] The Myth of the Rule of Law
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Author: u/itisike Dragon Army*
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Score: 0
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Created: 2015-07-02T12:59:16
Post:
Comments:
u/capsless [+10] despiser of hpmor (55 minutes later)
had to downvote. regardless of whether or not the point being argued is "correct" or not, this is a sub for rational fiction, not political screeds. off topic posts, imho, are appropriate only insofar as they match the theme of the subreddit. this seems more like a half-assed attempt to push one's own political agenda than anything to do with fiction.
u/callmebrotherg [+3] now posting as /u/callmesalticidae (51 minutes later)
How does this relate to rational fiction?
u/itisike [+0] Dragon Army (54 minutes later)
It does have a fictional government subplot.
u/None [+5] (an hour later)
Yeah, I think this is borderline, even if it did most expertly nerd-snipe me in particular.
u/JackStargazer [+1] Primordial Apologist (2 hours later)
Agreed, and am also nerd-sniped. This title is my equivalent of clickbait.
u/itisike [+1] Dragon Army (4 hours later)
This title is my equivalent of clickbait.
I think the title accurately described the content, though?
u/callmebrotherg [+2] now posting as /u/callmesalticidae (an hour later)
You might want to mention that, because I read the first two sections and skimmed the third and all I saw was a legal essay, so I assumed that the whole thing was a legal essay that had nothing to do with rational fiction.
u/None [+5] (an hour later)
citizens understand that the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice
Since when were political forces not an inherent part of the ideal of justice?
This, however, in no way prevents people from simultaneously regarding the law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey.
Sighh..... Another good thinker lost to the wiles of propositional logic. The real world doesn't have Boolean truth-values! It has real-valued measurements. I'm sure everyone on this subreddit has heard the term "probability" before.
Well, the law is no exception. Many parts of the law are so clearly agreed-upon (to the tune of "ax murder is bad, mmkay?") that we can, in practice, treat them as if they were definite, politically-neutral rules amenable to impartial application and moral obligation. We can do so precisely because they are not politically neutral but in near-total political consensus. The Left doesn't like ax-murderers, the Right doesn't like ax-murderers -- mostly (see: horseshoe theory).
Thus, they seem both surprised and dismayed to learn that the Clean Air Act might have been written, not to produce the cleanest air possible, but to favor the economic interests of the miners of dirty-burning West Virginia coal (West Virginia coincidentally being the home of Robert Byrd, who was then chairman of the Senate Appropriations Committee) over those of the miners of cleaner-burning western coal.
Nobody is actually shocked. Feigning shock and horror just makes for good rhetoric in favor of changing policy: we are all used to the world being wrong, but we also carry an inner sense that we ought to be shocked and appalled, that however cynical we may be, the right thing is still that a Clean Air Act ought to clean up the air. Unfortunately, we are indeed cynical: there are indeed so many moral problems that we can't actually experience them all in a "smack on the face" emotional way without burning out half our brains.
So instead, good rhetoricians find ways to summon up the "smack in the face" emotional effect of wrongness temporarily, use it to rally people for improving matters, and then let it fade back into the general Cosmic Background Bleckness of daily life that we stay sane by (mostly) ignoring.
This is also what makes candidates like Bernie Sanders or Rick Santorum effective: people are genuinely pleasantly surprised, and more than a little interested, to see a politician who appears to actually believe what he says (even if it also genuinely shocks and appalls 50% of the population).
And, when the Supreme Court hands down a controversial ruling on a subject such as abortion, civil rights, or capital punishment, then, like Louis in Casablanca, the public is shocked, shocked to find that the Court may have let political considerations influence its decision.
Were they really shocked, shocked, in 1995, to find this out? Because I'm pretty sure everyone knew damn well what was going on. People weren't substantially stupider in 1995 than they are today.
the amazing degree to which the federal government is able to exert its control over a supposedly free people.
The what now?
I refer to the myth of the rule of law because, to the extent this phrase suggests a society in which all are governed by neutral rules that are objectively applied by judges, there is no such thing. As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny.
Certainly there is a great absence of, for instance, beheading women you don't like on accusations of sorcery in the United States, so I'm actually inclined to say there is an absence of arbitrariness and the worst abuses of tyranny.
Of course, on the local scale, things can be much, much worse. A policeman can openly say, "!@##$%, I'll make a reason to lock you up!", and perform other such deeds of arbitrariness and tyranny. But these are not at the behest of a federal government, under a pretended auspice of rule-of-law, but instead at the behest of locally powerful individuals, under a non-pretended auspice of personal authority that stands sovereign against the centralized, rule-governed state.
I have suggested that because the law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. It should be noted, however, that this vastly understates the degree to which the law is indeterminate. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.
I'm so sorry that you can't dispense with the need for human beings to possess a sense of morality just by writing words on paper /s!
Following oral argument, the judges retire to consider their ruling. Arnie, mindful of his agreement with Ann, is scrupulously careful not to let political considerations enter into his analysis of the case. Thus, he begins by asking himself why society needs contract law in the first place. He decides that the objective, nonpolitical answer is obviously that society needs some mechanism to ensure that individuals honor their voluntarily undertaken commitments. From this perspective, the resolution of the present case is clear. Since the professor is obviously threatening to go back on her voluntarily undertaken commitment in order to extort more money from the FRA, Arnie characterizes the case as one in which a promise has been made to pay more for services which the professor is already contractually bound to perform, and decides that the promise is unenforceable. Hence, he votes to overturn the trial court's decision. Ann, also mindful of her agreement with Arnie, is meticulous in her efforts to ensure that she decides this case purely on the law. Accordingly, she begins her analysis by asking herself why society needs contract law in the first place. She decides that the objective, nonpolitical answer is obviously that it provides an environment within which people can exercise the freedom to arrange their lives as they see fit. From this perspective, the resolution of the present case is clear. Since the FRA is essentially attempting to prevent the professor from arranging her life as she sees fit, Ann characterizes the case as one in which the parties have simultaneously rescinded an existing contract and negotiated a new one, and decides that the promise is enforceable. Hence, she votes to uphold the trial court's decision. This once again leaves the deciding vote up to Bennie, who has no idea why society needs contract law, but thinks that the professor is taking advantage of the situation in an unfair way and votes to overturn the trial court's ruling.
Of course, one of these lines of reasoning is virtue-theoretical and deontological in nature, while the other one is consequentialist. Thus, Ann is closer to being correct here, although I would certainly say you need to finely parse which decision will minimize the total unpleasant surprise of society.
This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one's underlying moral and political beliefs.
DUH! Law is only ever a heuristic for morality!
Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words "Congress," "no," "law," "speech," and "press" in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the "plain meaning" of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens' expressive activities? Were your responses objective and neutral or were they influenced by your "politics"?
Actually, I have to say, my responses were colored entirely by what little I know (ie: what they taught me when I volunteered with a Civil Liberties Union once) of how the Supreme Court has ruled on these matters before.
u/None [+2] (an hour later)
Now, in a case such as this, one might be tempted to "interpret" the overreaching and unfair sales practices of the studio as fraudulent (28) and allow Agnes to recover her money. However, this is precisely the sort of solution that our reformed, determinate contract law is designed to outlaw. Therefore, it would seem that since Agnes has voluntarily contracted for the dance lessons, she is liable to pay the full amount for them. This might seem to be a harsh result for Agnes, but from now on, vulnerable little old ladies will be on notice to be more careful in their dealings.
Or you could simply say: upholding the sale requires imposing the larger optimization burden on the weaker agent, thus resulting in a state with a greater mismatch between imposed duty and ability. A greater mismatch between imposed duty and ability has a much lower expected utility, a much higher expected unpleasant surprise, and this fact is only hidden in common legal speech by dragging out the concept of punishment as if punishment for failure could retrocausally make the obligations more tractable.
But the myth of the rule of law does more than render the people submissive to state authority; it also turns them into the state's accomplices in the exercise of its power. For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.
Duh.
The same is true of the violence directed against the nonviolent civil rights protestors in the American South during the civil rights movement. Although much of the white population of the southern states held racist beliefs, one cannot account for the overwhelming support given to the violent repression of these protests on the assumption that the vast majority of the white Southerners were sadistic racists devoid of moral sensibilities.
A couple more decades on, I think we actually can go ahead and say that the vast majority of white Southerners were sadistic racists and morally wrong. It's just unproductive, and therefore impolite, to say this to their faces.
Although they have been subjected to much derision by mainstream legal theorists, (33) as long as we continue to believe that the law must be a state monopoly, there really is nothing wrong, or even particularly unique, about the Crits' line of argument.
Actually, there is something particularly unique about them: they argue that the law is radically indeterminate, that we cannot even have measurable, quantified uncertainty about it, but must instead regard everything from contract law to no-ax-murder-law as the unilateral imposition of the powerful, no matter how participatory or democratic the electoral and legislative processes may have actually been.
We can also see, quite obviously, that these "critical" interpretations of law are often used to apologize for violence wielded by groups who happen to be supported by the Left: for instance, the Manson cult and various "brown people" ethnonationalist movements (Black Power, La Raza, the PLO, etc.). Since everyone not in direct support of all kinds of left-wing violence can see that the law (ie: the heuristic embodying society's political consensus) overwhelmingly prohibits mass murder of civilians (ie: the political consensus is very broad and clear, and thus the law can be read one way with high measure), we can adequately sum up the matter as, "Terrorism is a crime."
Although only the Crits may recognize it, all are engaged in a political struggle to impose their version of "the good" on the rest of society. And as long as the law remains the exclusive province of the state, this will always be the case.
Yes, and?
After this experience, Socrates came to realize that there was no place for him in the political realm. As a result, he went off to college where he took up the study of philosophy. Eventually, he got a Ph.D., became a philosophy professor, and was never heard from again.
Bottom kek. You mean he didn't go off to design a superintelligent robot that would understand what shoes are for?
What if law is not a unique product that must be supplied on a one-size-fits-all basis by the state, but one which could be adequately supplied by the ordinary play of market forces? What if we were to try Socrates' solution and end the monopoly of law?
We would fall prey to perverse incentive gradients, very quickly, as actually happens every time a new trade deal is under negotiation.
lrn2anarchism, capitalist.
u/FeepingCreature [+2] GCV Literally The Entire Culture (2 hours later)
lrn2anarchism, capitalist.
You are a beautiful person and I love you.
u/None [+2] (3 hours later)
<3 anarcho-communist transhuman galaxy-spanning civilization best civilization (or at least, second best after "we don't have ideology because we just treated all of life as an inference problem and solved it").
u/itisike [+1] Dragon Army (an hour later)
Sighh..... Another good thinker lost to the wiles of propositional logic. The real world doesn't have Boolean truth-values! It has real-valued measurements. I'm sure everyone on this subreddit has heard the term "probability" before.
He's not saying they must be Boolean, he's saying others believe that, and that they are wrong.
Nobody is actually shocked. Feigning shock and horror just makes for good rhetoric in favor of changing policy: we are all used to the world being wrong, but we also carry an inner sense that we ought to be shocked and appalled, that however cynical we may be, the right thing is still that a Clean Air Act ought to clean up the air.
I think you're overestimating how smart people actually think.
Actually, I have to say, my responses were colored entirely by what little I know (ie: what they taught me when I volunteered with a Civil Liberties Union once) of how the Supreme Court has ruled on these matters before.
The article says
On the basis of your personal understanding of this sentence's meaning (not your knowledge of constitutional law)
So you shouldn't have done that.
u/None [+3] (an hour later)
So you shouldn't have done that.
I can't help it. I don't have a personal understanding of "plain speech" of legal text, apart from learning how the text has actually been interpreted.
I think you're overestimating how smart people actually think.
I swear to you that, while I may be elaborating on the psychology involved, I have actually heard people talk about activism this way, and not only that, but the Appeal to Pathos is taught in everyone's first book/class on rhetoric.
u/itisike [+1] Dragon Army (an hour later)
That was poorly phrased; what I meant is that most people, even most smart people, don't think that way. The existence of some who do doesn't mean all do (and the observation that many people think a certain way is useful).
u/JackStargazer [+2] Primordial Apologist (3 hours later)
I don't think that way myself, but I can certainly recognize the near-universality of false moral outrage as a debate or rallying point.
u/itisike [+1] Dragon Army (4 hours later)
My claim would be that the moral outrage is believed to be true by (many of) those who proclaim it. Whether you want to call it "fake" or not similar to "belief in belief" is your decision.
u/noggin-scratcher [+2] I am a happy tree (3 hours later)
The proposed solution sounds horrendous - an overlapping patchwork of different jurisdictions with different rules and not even any attempt at high-minded universal application.
Union rules and HOA rules were cited as model examples when the impression I get is that they're both prone to a potential failure mode where you get petty-minded people making narrowly biased judgements in favour of a small segment of the population with little opportunity to appeal to any sense of universality... although, even as I write that I'm mentally hearing the response "Same goes for The Law as it is now, just with a different demographic bias". That said, when the same law applies to everyone, everyone has a stake in making it fair; with HOAs especially there seems to be a tendency towards apathy on the part of everyone who isn't a sociopathic little tinpot dicatator, seeking to exert any small measure of power any way they can get hold of it... and they're the last people I want to be subject to.
Separate underlying flaw that occurs to me; if there's a "market" in different courts and resolution processes to choose from, how exactly do we resolve the question of which one a case should be brought before? Surely everyone will seek to move it to whichever jurisdiction favours their own interests (and whoever wields the most influence will win out). There was a mention of medieval law where you had "village, shire, urban, merchant, manorial, ecclesiastical, or royal courts" and not a word on how they decided where to hold a trial or what recourse you had if the choice of venue was unfair to you; just moved on to "and in the modern world we could have so many more options than that". I'm imagining getting a notice in the post saying I'm being sued (or rather, invited to negotiate a dispute resolution) under the jurisdiction of "Discount Jim's Legal Services and Auto Parts"... how do you even respond to that? I guess just by ignoring it, and hoping we haven't also crowd-sourced the part of the Law that goes around arresting people for non-attendance.
Also, you can try to push a "compositional" model where social pressure from the community compels participants to resolve their dispute via negotiation and compromise, and that sounds vaguely nice, but I have to question whether that kind of close-knit community still exists, that could exert that kind of solidarity and make the consequences of being uncooperative and adversarial sufficiently bad to dissuade people from it.
And even if it does still exist, I'm back to the pit-of-stomach feeling of dread saying that a little local court is going to be hideously unfair to any outsiders that the community decides to gang up on. Would make your equality before the law subject to your social standing in your local community and that's just never a good idea.
u/itisike [+1] Dragon Army (4 hours later)
The proposed solution sounds horrendous - an overlapping patchwork of different jurisdictions with different rules and not even any attempt at high-minded universal application.
I actually thought it sounded pretty close to the real world.