The Rule of Law - greatest enemy of liberty?

[Julian le Roux]

Even though it's long, I highly recommend everyone become acquainted
with this article:

The Myth of the Rule of Law, by John Hasnas
http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

Most libertarians are big fans of the Rule of Law concept, so I
suspect Hasnas' conceit will be hard to swallow for some of you. I
think the ideas presented are remarkably important, especially for
libertarian activism, so I would be very interested to hear anyone's
thoughts.

Some tantalizing extracts:

"The reason why the myth of the rule of law has survived for 100 years
despite the knowledge of its falsity is that it is too valuable a tool
to relinquish. The myth of impersonal government is simply the most
effective means of social control available to the state"

"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. "

"The Crits may believe that the law should embody a different set of
values than liberals, or conservatives, or libertarians, but this is
the only thing that differentiates them from these other groups.
Because the other groups have accepted the myth of the rule of law,
they perceive what they are doing not as a struggle for political
control, but as an attempt to depoliticize the law and return it to
its proper form as the neutral embodiment of objective principles of
justice. But the rule of law is a myth, and perception does not change
reality. 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."

"The time has come for those committed to individual liberty to
realize that the establishment of a truly free society requires the
abandonment of the myth of the rule of law."

Piet especially will appreciate this one:

"The primary reason for this is that the public has been politically
indoctrinated to fail to recognize the distinction between order and
law. Order is what people need if they are to live together in peace
and security. Law, on the other hand, is a particular method of
producing order. As it is presently constituted, law is the production
of order by requiring all members of society to live under the same
set of state-generated rules; it is order produced by centralized
planning. Yet, from childhood, citizens are taught to invariably link
the words "law" and "order." Political discourse conditions them to
hear and use the terms as though they were synonymous and to express
the desire for a safer, more peaceful society as a desire for "law and
order." "

[Garth Zietsman]

Fair enough.  I agree that the idea of impersonal law is more of an aim than a reality, and that the rule of law is often misused simply to impose someone's preferences on everyone. But what does he regard as the alternative, rule by man?  A war of all against all? Where does he see the peace and order coming from?

[Leon Louw (gmail)]

Oh dear, Julian, interesting article, but I confess to not having read it carefully, the reason being he does not seem to have a clear understanding of what the "the rule of law" is, and does not cite reconised luminaries on the subject (esp. Dicey, Jennings, Voet, Grotius, Epstein etc).

Starting with a false premise if a classic red herring: "What's wrong with Milton Friedman (or Hayek or Rothbard or Rand or Glenister) is that they're against love", followed by debunking   And then debunk them by arguing the virtues of love.  

Since there is such confusion, even amongst so-called experts, I summarise what the Rule of Law (RoL) is. 

It's a very simple idea, that rights and duties are determined "by law not man".

For that to be the case, the RoL (according to the doyen of the concept, Dicey) requires three basic institutions (which essentially restate the concept in other words):

1. Separation of Powers -- legislators legislate, the executive executes, the judiciary adjudicates.
   (There ar various reasons why this is derivative of the above concept, but this is not a treatise of the subject -- no executive or administrative "tribunals", for instance, such as the CCMA, Competition Commission or Consumer Court.)
2. Non-discretion -- ie objective criteria, and, if there is discretion, stated/quantified objectives.
   (This is obvious; the meaning of being ruled by law, not man.  This is all he seems to think there is to the RoL.)
3. Certainty -- ie law to be unambiguous, non-subjective, non-retroactive. 
   (The idea is that it should be easy to know with certainty in advance whether what you're doing is lawful.)

Libertarians should note, as Hayek explained, that the RoL is not liberty -- it is not, as many seem to think, a synonym for liberty -- it just makes liberty more probable.  It does not, for instance, preclude tax (or other forms of government theft, such as nationalisation), nor does it pro- or anti-death penalty, or even pro-democracy.  The RoL can apply under any political system, with any economic policy, and with social engineering.

For my elaboration, and for those who had enough time to read the article, herewith a paper I presented on the subject to the Mont Pelerin Society, and an article by Michael O'Dowd.

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[Julian le Roux]

@Garth, I thought the alternative he offers to achieve order (i.e. free market in judicial services) was spot on - didn't you? 

[Garth Zietsman]

Not really.  I have heard those arguments many times over the years in debates between anarchists and minarchists.  At best I have been persuaded that the justice system could be smaller and privatized to some degree but I have been unconvinced that the government function of justice and police can be totally transformed into a free market.  I think there is room for free markets in mediation or arbitration, but I don't think you can do away with a court of final appeal which has a monopoly.  

Then there is the issue of justice for those who lack the means to pay (or even just less means than the opposition) for the market versions.  

There is also the issue of the body of law/principles of justice itself.  Would the free market in judicial services subscribe to the same body of law?  If so how would it be developed? If not, what do you do when rules clash?  Or would there be no law - but only the discretion of a free market of wise men?

I have been reading a lot of behavioral economics lately and have come to the suspicion (not conclusion mind you) that a free market in policing is more likely to increase the seriousness and costs of disagreements, than it is to dampen them. When you hire a service you expect them to look after your personal interests, rather than some kind of abstract ideal. That's what happens when you hire a lawyer to represent you.  Your lawyer doesn't seek a fair deal for all but the best he can obtain for you - even if the other party is screwed.  I expect the incentives in a free market of private 'police' companies would work similarly.  For that reason I think an independent police that doesn't represent anyone's direct interests, and an independent judiciary who looks after the abstract ideals, is better.

I think some British and Scots philosophers and American Founding fathers got it right when they both recognized the need for government, and that government could become an even worse problem if not limited and controlled.  Hence the wisdom of the division of functions and powers, and a constitution spelling out what a government may do.  

As I said in my initial reply I recognize that the ideal of an impersonal rule of law is far more of an ideal than a reality but I have also said in other posts that I don't think liberty, or quality of life, within Western Democracies has been going downhill at all. Notwithstanding the increase in the size of these states (which is negative) I think their net effect has been an increase in individual liberty - including economic liberty - from what prevailed before.  

[Julian le Roux]

Oh dear, Julian, interesting article, but I confess to not having read it carefully, the reason being he does not seem to have a clear understanding of what the "the rule of law" is, and does not cite reconised luminaries on the subject (esp. Dicey, Jennings, Voet, Grotius, Epstein etc).

@Leon, won't you please read it carefully, I'd appreciate your response to his points.  I'll do the same with those two articles you sent.  For now, these are my initial responses below.

Starting with a false premise if a classic red herring: "What's wrong with Milton Friedman (or Hayek or Rothbard or Rand or Glenister) is that they're against love", followed by debunking   And then debunk them by arguing the virtues of love.  

Since there is such confusion, even amongst so-called experts, I summarise what the Rule of Law (RoL) is. 

It's a very simple idea, that rights and duties are determined "by law not man".

From my layperson's perspective, I can't really see the saliet distinction between Hasnas's conception and the one above.  Furthermore, his explanation of RoL is broadly the same as I (and I think society in general) understand it.  This is important because his argument against RoL is primarily based on it's perception by the populace. 

For that to be the case, the RoL (according to the doyen of the concept, Dicey) requires three basic institutions (which essentially restate the concept in other words):

To be somewhat facetious, Dicey's own views reinforce my case that RoL is inherently bad for liberty.  According to Wikipedia, Dicey was against Irish Home Rule and...

"also vehemently opposed to women's suffrage, proportional representation (whilst acknowledging that the existing first-past-the-post system was not perfect), and to the notion that citizens have the right to ignore unjust laws. Dicey viewed the necessity of establishing a stable legal system as more important than the potential injustice that would occur from following unjust laws."

Seriously anti-liberty stuff there, in my opinion.  To misuse a legal term, RoL is fruit of the poisonous tree...
 

1. Separation of Powers -- legislators legislate, the executive executes, the judiciary adjudicates.
   (There ar various reasons why this is derivative of the above concept, but this is not a treatise of the subject -- no executive or administrative "tribunals", for instance, such as the CCMA, Competition Commission or Consumer Court.)
2. Non-discretion -- ie objective criteria, and, if there is discretion, stated/quantified objectives.
   (This is obvious; the meaning of being ruled by law, not man.  This is all he seems to think there is to the RoL.)
3. Certainty -- ie law to be unambiguous, non-subjective, non-retroactive. 
   (The idea is that it should be easy to know with certainty in advance whether what you're doing is lawful.)
   

.Hasnas' argument is that the above features are all illusions, or at least the gulf between reality and the ideal is so gigantic (even in the best cases/countries) that it renders the RoL concept meaningless for practical purposes.  For example, I will laugh scornfully at anyone who tries to claim that there is a material Separation of Powers in South Africa or the USA.  There is certainly no Certainty in law.  Human social life is so complex and ever-changing that complete legal codification for every situation is impossible; interpretation by lawyers, juries and judges. 
 

Libertarians should note, as Hayek explained, that the RoL is not liberty -- it is not, as many seem to think, a synonym for liberty -- it just makes liberty more probable.  It does not, for instance, preclude tax (or other forms of government theft, such as nationalisation), nor does it pro- or anti-death penalty, or even pro-democracy.  The RoL can apply under any political system, with any economic policy, and with social engineering.

Ah yes, I agree that countries with higher RoL scores are generally more free and prosperous (setting aside the problems of measurement and definition and so forth).  But I contend that THE BELIEF in THE MYTH of the Rule of Law actually makes liberty much less probable.  A society that believes this myth is forever on the slippery slope to tyranny.  A civilised society that rejects this RoL fantasy will be much more resistant to creeping statism. 

Hasnas' main point is that faith in RoL provides us with false comfort (not unlike religious myths), and in doing so imprisons us in the statist paradigm.  Countries with higher RoL are better than ones with less, but this is a seriously sub-optimal 'local maxima'.  If we had free-market-law societies to include in the analysis, high-RoL countries would look very unfree indeed.  RoL is second gear - to shift into 3rd (i.e. beginnings of truly free society) we first need to forcefully pull the gear stick away from this dead-end notion.  This is all explained better by Hasnas anyway.
 

[Leon Louw (gmail)]

I'll read it carefully, but nor a week or two, year's off to a hectic start.

L

[Garth Zietsman]

"also vehemently opposed to women's suffrage, proportional representation (whilst acknowledging that the existing first-past-the-post system was not perfect), and to the notion that citizens have the right to ignore unjust laws. Dicey viewed the necessity of establishing a stable legal system as more important than the potential injustice that would occur from following unjust laws."

The issue of deciding whether to ignore unjust or senseless laws or just those where obedience is inconvenient and doesn't endanger anyone e.g. speeding on an empty road, is interesting to me.  I have heard many libertarians insist that the laws should be obeyed but there is equally a virtual libertarian tradition of thumbing one's nose at laws and regulations - especially traffic rules. Eustace at the FMF once told me that libertarians in his experience not only routinely ignore the law but also the rules that apply within someone's private property e.g. the "wait to be seated" rule at restaurants.  I'd love to have a mini seminar on this.  

.Hasnas' argument is that the above features are all illusions, or at least the gulf between reality and the ideal is so gigantic (even in the best cases/countries) that it renders the RoL concept meaningless for practical purposes.  For example, I will laugh scornfully at anyone who tries to claim that there is a material Separation of Powers in South Africa or the USA.  There is certainly no Certainty in law.  Human social life is so complex and ever-changing that complete legal codification for every situation is impossible; interpretation by lawyers, juries and judges. 

This is something I question.  In western democracies I don't believe the gulf is 'gigantic' or so material.  No quible about SA.  I don't think it possible to get away from the human factor - especially interpretation - but that doesn't mean that RoL and separation of powers as it actually exists doesn't work well enough.  I repeat that it has proved to be a major improvement on all the existing alternatives and sufficiently so that both quality of life AND individual liberty have steadily improved overall.  Whether RoL is a low local maximum is easy to claim but much more difficult to justify.

Ah yes, I agree that countries with higher RoL scores are generally more free and prosperous (setting aside the problems of measurement and definition and so forth).  But I contend that THE BELIEF in THE MYTH of the Rule of Law actually makes liberty much less probable.  A society that believes this myth is forever on the slippery slope to tyranny.  A civilised society that rejects this RoL fantasy will be much more resistant to creeping statism.

I agree wholeheartedly with this. 

 

Hasnas' main point is that faith in RoL provides us with false comfort (not unlike religious myths), and in doing so imprisons us in the statist paradigm.  Countries with higher RoL are better than ones with less, but this is a seriously sub-optimal 'local maxima'.  If we had free-market-law societies to include in the analysis, high-RoL countries would look very unfree indeed.  RoL is second gear - to shift into 3rd (i.e. beginnings of truly free society) we first need to forcefully pull the gear stick away from this dead-end notion.  This is all explained better by Hasnas anyway.

As I said above I question this assertion.  Nonetheless it should be subject to experiment somewhere.  We owe it to ourselves to give the market/anarchist solution a fair trial.  In the absence of a country or state/province perhaps someone could do a lab study or two.

[Julian le Roux]

@Garth, the introductory anarcho-capitalist material that I've read convincingly addresses all these issues raised below, to my mind at least.  What AnCap books and articles have you read?  I want to get an idea of where you're coming from.

Regarding your behavioural economics critique, I am of the firm opinion that private policing would be much less conflict-ridden.  Conflict is expensive, and private parties will try and reduce it.  The reason lawyers don't seek a fair deal is because of the adversarial nature of our current legal system (this again is dealt with by Hasnas's article).  Furthermore, any behavioural economist worth his salt could show that an "independent judiciary who looks after the abstract ideals" has very poor incentives to generate good judgements that are satisfactory for the parties of disputes.

Quality of life in Western democracies has clearly been improving thanks to extraordinary advances  in science and technology.  There is a good chance that this has masked the decrease in individual liberty.  At the very least, government/legal technology has remained almost static for hundreds of years.  Watch Patri Friedman's talks or delve into the competitive governance blogs / literature to see what I'm talking about.

[Colin Bower]

At ther risk of being the fool rushing in:

I did not read the two academic papers that Julian attached to get
this thread rolling, but I did read in considerable detail and with
equal application the paper he circulated some months ago on the same
subject that had beeen written by a profesor of law at an Americal
college not known to me. I thought that the argument presented in
that paper was untenable. His principal premise was that meaning
(language) is always indeterminate. According to him, there can never
be and there never will be any mutually agreed meaning arising from
language. This struck me as being not just a weak argument, but also
contradictory to his own claims, for if meaning is always
indeterminate, how would you ever express the view that meaning was
always indeterminate? The view subverts his entire project and
argument, and one wonders why - his premise being correct - he could
commit himself to the contradictory exercise of writing a long,
detailed and abstruse paper on the subject, presumably with a view to
persuading people to his point of view. In the second place, he argues
that we are all always and universally captive to explicit and
implicit factors affecting our judgment. An explicit view might be my
declared preference for capital punishment, or for forgiveness. An
implicit factor would be that a 60 year old white well-off male is
bound to have a set of values and to be possessed by presumptions
different from a 25 year old black female factory worker. If he is
right about this, then I can't see how any one system of justice that
depended on the formation of human judgments could ever be better than
any other system of justice. The case law examples adduced in the
original paper I read were very carefully chosen to support the
learned professor's argument - drawn from areas in law widely agreed
to be subject to bias, eg.the legality or otherwise of affirmative
action, and I thought that all that these examples proved is that
there is good law and bad law, and law based on achieving social
engineering outcomes is bad law. I concur that state juridicial
systems have invariably instutionalised all that is bad about grossly
unfair, unequal and class and gender based societies. I agree that
travesties have been legion, and in a human world, this will continue
to be the case. People should live defensively, and we should all be
aware that if we fall victim to crime, the likelihood of redress is
slight. At the same time, I think the aspiration to create for
ourselves societies in which we are all subject to the same law which
gets applied with all the sense of fairness and objectivity we as
human beings are capable of is an ennobling aspiration achieved in
sufficient cases to encourage me to the view that the aspiration is
realisable. After all, there were a significant number of white, male,
Afrikaans judges who regularly handed down humane judgments that
enfuriated their political bosses.

Colin Bower.

[Garth Zietsman]

I finally read through the John Hasnas article and I must say it is extremely good and wholly convincing.  I still think you need some kind of court of final appeal and I am still very skeptical of a free market in police.

On Mon, Jan 16, 2012 at 1:50 PM, Julian le Roux <leroux...@gmail.com> wrote:

@Garth, the introductory anarcho-capitalist material that I've read convincingly addresses all these issues raised below, to my mind at least.  What AnCap books and articles have you read?  I want to get an idea of where you're coming from.

I wish I could tell you but the truth is I couldn't tell you the author or title of 90% of what I read.  Also much of what I remember comes second hand via debates with people like Leon, Jim Peron and Jim Harris.

Regarding your behavioural economics critique, I am of the firm opinion that private policing would be much less conflict-ridden.  Conflict is expensive, and private parties will try and reduce it.

That depends a great deal on circumstances.  They won't necessarily try to reduce it.  The expense is the client's rather than theirs.  One could easily see them dragging the conflict out or escalating it to extract more money from the clients.  Steven Pinker's book Better Angels of Our Nature has a lot on how circumstances determine whether disagreements escalate or abate.  Also expense hasn't prevented wars.  The US civil war cost the Yankees more than it would have costed just to compensate the slave owners full value for their slaves.  It didn't stop them going to war.

 

 Furthermore, any behavioural economist worth his salt could show that an "independent judiciary who looks after the abstract ideals" has very poor incentives to generate good judgements that are satisfactory for the parties of disputes.

I disagree with this.  The judge is there to see that procedures are followed, and procedures are designed to cut down one sources of error and bias.

Quality of life in Western democracies has clearly been improving thanks to extraordinary advances  in science and technology.  There is a good chance that this has masked the decrease in individual liberty.  At the very least, government/legal technology has remained almost static for hundreds of years.  Watch Patri Friedman's talks or delve into the competitive governance blogs / literature to see what I'm talking about.

These states oversaw the individual liberty of first the lower classes, then half the population (women), then minorities and gays, and even children (notwithstanding restrictions on child labor), increase substantially.  They saw us being freed from the chains of the church, tribe and tradition.  They oversaw the huge reduction in rates of violence.  Furthermore the existence and even growth of states has coincided with improvements in economic freedom indices around the world.  Finally states and government may enable free markets i.e. free markets wouldn't be much more difficult without government, but I'm not trying to claim that.  Yes states do encroach on individual liberties here and there, but I think its clear that there has been a net increase in individual liberty in spite of government and RoL - quite apart from technology and GDP growth. 

[David Joffe]

On 17 Jan 2012 at 14:24, Garth Zietsman wrote:

> I finally read through the John Hasnas article and I must say it is
> extremely good and wholly convincing. I still think you need some kind
> of court of final appeal and I am still very skeptical of a free
> market in police.

Having admittedly not read any of the material, I'm also skeptical
of the latter - I don't like the idea of poor people being left with
no policing / recourse to justice. I suppose from a pure liberty
perspective I can sort of see that one might argue that they aren't
entitled to such, but then what, just leave them to their own
devices? Hope that someone will charitably pay for their policing
services? It's not clear to me.

[Gareth Brickman]

" The US civil war cost the Yankees more than it would have costed just to compensate the slave owners full value for their slaves.  It didn't stop them going to war."

Because slavery was a secondary issue and used as the ex post facto justification. Preserving the supremacy of the Federal government was the primary issue.

[Piet le Roux]

I'm quite familiar with Hasnas's article and have referenced it in my LibSA talk (where I admittedly spoke so fast that very little room was left for sinking in). I'm still reading Leon's articles and so far basically agree with Julian in this thread. Below is the relevant excerpt of my LibSA-talk (reference to Hasnas in red). Towards the end, Roderick Long's conception of realistic legal finality is worth considering.

What is order

We speak of a society as orderly to the degree that members of the society cooperate in ways that leave all parties subjectively better off after interactions than before. The more reasonable it is to expect others to cooperate in this mutually beneficial way, the more stable the order.

What is law
The mechanism to achieve order is law - specifications on how disputes are to be settled, what constitutes expected behaviour and how breaches of law should be handled. Some choose to distinguish between law and norms, where law is express rules as formulated by governments and norms are those accepted standards and procedures that are recognised by people without them being under any express obligation to do so.

What I mean by law encompasses both the express and the non-express mutually accepted rules under which people cooperate - by which order is advanced. When I wish to refer to government declared rules, I shall use the term legislation. Pieces of legislation do not of course have to be at odds with laws - and this is arguably the case when legislation merely codifies those laws which are already prevalent in any applicable society - legislation outlawing murder, specifying steps for its adjudication and measures provided for its enforcement may be such a case.

What the state emulates here is what Roderick Long# calls the three functions of law: adjudicative, legislative and executive. In public policy jargon one could say the trias politica.

Order and the rule of law

A conception of an ideal society that is popular in many circles, including libertarian groups, is that there is equality before the law of the land: that all should be judged without fear or favour under a singular legal framework. When objecting to the government - even when such objection is framed as an objection to the state in itself - objectors tend to insist not on the abolishment of the rule of law, but on its modification to reflect their particular ethical and moral preferences.

In reality, laws are never finally identifiable, never conclusively adjudicable and never uncontroversialably enforceable. In the great adventure of social order, there are always conflicting law - this is the case not only between parties, but it is even the case for a single person in as far as that one person holds contradictory beliefs about what is right. Furthermore, if the dimension of time is introduced, it becomes even more apparent that law cannot be singular, since it cannot be that conceptions of acceptable behaviour change synchronously across society - irrespective of how one might choose to delimit society.

But that law is never neutral and objective is not really such a startling claim, is it? What is more entertaining is observing what John Hasnas called a type of doublethink: that while recognising that law is inherently political - as most people do - they can simultaneously hold to the belief that theirs is - or at least can be - a society governed by laws and not men.

It is of course possible that one may choose to define rule of law in a way that recognises that law is a body of conflicting arrangements, but that will then take us either on a semantic exercise or towards something that is not at odds with what I will suggest later on with regard to a distributed order. In terms of its scientific validity, that law can never be singular is like methodological individualism - it has to be recognised whether you like it or not; it is true whatever your political views.

Thus, to have a rule of law and not of men - something that is clearly impossible - cannot be a normative imperative. ‘But now’, one may ask, ‘does this then not render the whole idea of law defunct?’

Well, not if we recognise that cooperation does not depend on legal finality in the Platonic sense, but simply on realistic legal finality (Long, Market Anarchism as Constitutionalism:145). Legal finality in the Platonic sense is about arriving at unchallengeable conclusions of legal disputes - an impossible feat. Realistic legal finality, on the other hand, is about arriving at mutually acceptable conclusions of legal disputes. As long as all parties to a dispute abide by its settlement, even though it can still be challenged in a technical sense, there is law and there is order.

We should welcome plurality in law and realistic, not absolute, legal finality.

2012/1/17 Gareth Brickman <garetho...@gmail.com>

--
Groete.
Piet le Roux

[Gary Moore]

I haven't read the Hasnas article yet. But here are my views.

The Rule of Law is not a myth. It is a myth if you think that the Rule
of Law automatically and per se governs all official decisions without
any steps having to be taken to force officials to act according to
law.

But that is not the Rule of Law. The Rule of Law means being able, if
aggrieved by an official administrative decision that does not accord
with the law, to go to court for an order requiring the official to
abide by the law (the correct interpretation of the statute under
which he functions, or the correct procedure).

The Rule of Law does not, regrettably, apply automatically. The
aggrieved person has to incur the cost and sundry inconveniences and
risks of putting the official's action under scrutiny of a court.

If the public believe that all officials apply the law correctly and
fairly, they believe a myth. The Rule of Law is merely the right to
apply for judicial review of administrative action.

On Jan 17, 2:46 pm, Piet le Roux <pietjler...@gmail.com> wrote:
> I'm quite familiar with Hasnas's article and have referenced it in my LibSA
> talk (where I admittedly spoke so fast that very little room was left for
> sinking in). I'm still reading Leon's articles and so far basically agree
> with Julian in this thread. Below is the relevant excerpt of my
> LibSA-talk (reference
> to Hasnas in red). Towards the end, Roderick Long's conception of realistic
> legal finality is worth considering.
>

> *What is order*

> 2012/1/17 Gareth Brickman <garethovers...@gmail.com>

>
>
>
>
>
>
>
>
>
> > " The US civil war cost the Yankees more than it would have costed just
> > to compensate the slave owners full value for their slaves.  It didn't stop
> > them going to war."
>
> > Because slavery was a secondary issue and used as the ex post facto
> > justification. Preserving the supremacy of the Federal government was the
> > primary issue.
>

[David Joffe]

On 17 Jan 2012 at 21:46, Piet le Roux wrote:

> But that law is never neutral and objective is not really such a
> startling claim, is it? What is more entertaining is observing what
> John Hasnas called a type of doublethink: that while recognising that
> law is inherently political - as most people do - they can
> simultaneously hold to the belief that theirs is - or at least can be
> - a society governed by laws and not men.

That's why the answer is to turn all final moral and legal decisions
to a super-intelligent Artificially Intelligent robot, as soon as we
invent such. (To be clear, I mean that tongue-in-cheek, but also as
a sort of thought experiment; I have this idea that it should be
theoretically possible, but that's probably tangential.)

> Well, not if we recognise that cooperation does not depend on legal
> finality in the Platonic sense, but simply on realistic legal finality
> (Long, Market Anarchism as Constitutionalism:145). Legal finality in
> the Platonic sense is about arriving at unchallengeable conclusions of
> legal disputes - an impossible feat. Realistic legal finality, on the
> other hand, is about arriving at mutually acceptable conclusions of
> legal disputes. As long as all parties to a dispute abide by its
> settlement, even though it can still be challenged in a technical
> sense, there is law and there is order.

"Abide by" and "mutually acceptable" are not the same things though.
E.g. a convicted murderer "abides by" a prison term because he is
forced to do so, not (in most cases anyway) because he regards it as
"mutually acceptable". Murder is of course a bit of an 'obvious'
case, but the principle applies to more ambiguous cases too. Or am I
missing some obvious point here.