Rule Of Law

Political Philosophy
1

CONDENSED TO A FEW TALKING POINTS

Unless we start with a single proposition to explain all ‘rights’ as such, assorted provisions that seem desirable will flood over one another with conflicting application to their collective extinguishment.

Does the rule of law require a state?

…or a social contract?

The rule of law has nothing to do with a sovereign state, except in the narrow sense that such states exist and when they comply with the rule of law they are viewed as ‘legal persons’ (litigants) possessed of competent legal standing to sue or be sued with the presumption of innocence, no greater or lesser in legal character than a single infant child. States are checked by asserting your personal right to freedom and justice – i.e., constitutional legal rights that no state may lawfully abridge. Perhaps it’s a distinctly American notion.

“In a laissez faire community of any kind, physical or digital, the rule of law arises from and requires all of the following: a constitutional right to practice legal representation on behalf of others; the right of practicing lawyers to associate for the purpose of selecting judges who, on appointment to the bench, are barred from private legal practice; and the right of any person or organized group to obey and execute lawful orders that may be issued from time to time by the courts so created. The jursidiction of laissez faire constitutional law and the courts which duly interpret and uphold such principles exists globally and perpetually as a matter of right. Laissez faire constitutional law flows from a single proposition, which is that no one may legally judge his own cause of action or act to penalize another without fair public trial and impartial due process of law. Laissez faire law is discovered and demonstrated in the process of litigation and trial. It cannot be legislated, codified, or imposed by a lawgiver.” Freeman’s Constitution

2

When did this site become a repository for people to post whatever treatise they felt like? There is no way to rationally respond to this “post” without making a tome even longer than this one.

If you have a point to make, may I suggest you make it much more briefly. If people agree with you, there is no need to post the rest. If they do not, you can focus on discussing what they specifically do not seem to grasp. In making such posts, you are also free to provide links to articles (such as you copied and pasted here) so as to provide more detailed analysis for reference.

Others can correct me if I am wrong, but I do not believe this forum is the place for posts like the one above.

–

As an aside, I will state there is much wrong with Mr. DeVoon’s post. Most of his problems have their roots in a fundamentally flawed set of basic premises. However I personally will NOT address these flaws nor the “arguments” presented, unless and until a succinct summary is presented in the place of this novel.

3

Okay. Let’s discuss basic premises, one at a time. Miss Rand did no work, zero, on the philosophy of law. Correct?

W.

4

Incorrect. While she did claim certain topics (like how to fund a proper government) were the province of the Philosophy of Law, and while she did state she was not a specialist in such fields, these acknowledgements did not prevent her from offering extemporaneous analysis of those topics. Why? Because Ms. Rand recognized that the Philosophy of Law is a derivative field, not a primary one. She recognized that it proceeded from premises she provided in the philosophic branch of Politics, which itself is derived from the premises she established with her Ethics. Thus, while her focus was to provide the primary premises which would be used in derivative fields such as the Philosophy of Law, that focus did not prevent her from applying those premises to particular instances.

Now I would like to ask you a couple questions about basic premises. In your condensed post, you begin by stating:

“Unless we start with a single proposition to explain all ‘rights’ as such, assorted provisions that seem desirable will flood over one another with conflicting application to their collective extinguishment.”

In other words, you are stating that the concept ‘right’ needs to be established, must have a valid definition and a valid philosophic base, because otherwise we are left with self-defeating contradictions.

Now, you claim to have (presumably extensive) knowledge of Objectivism. Therefore, tell me, does not Objectivism have a “single proposition” from which the concept ‘right’ is derived and explained? If so, what is that single proposition (premise)?

Now, does that Objectivist concept differ from your concept? If so, what IS your concept, and how is it different from the Objectivist concept?

5

Well, since Wolf is not going to answer I’m going to try.

A right defines what a man is allowed to do in society. A moral government will allow man to act morally because man’s life requires it. Morality is the philosophic base. Since man’s life is the base of morality it is also the base of rights. Which is why the right to life is the most basic right.

Am I right?

6

Actually, a right is NOT something an individual or group “allows” or ‘permits’ another to do.

7

Hi guys. The weblog at my domain showed so many referrals, that I came back to see what was up, and discovered that questions were asked in good faith, above.

RadCap is unfortunately wrong (“Ms. Rand recognized that the Philosophy of Law is… derived from the premises she established with her Ethics”). The canon and parol evidence of Rand’s thought suggests rather than she had no firm idea of how to frame legal principles, which is rather what you’d expect an honest layperson to say. It’s true that she thought ethics should control politics, and certainly she took a stab at it. It’s important to review the late Ron Merrill’s criticism.

In any case, the philosophy of law stands independent from politics and ethics of necessity. You can’t get from “capitalism” to the jury system, nor from “just government” to adversarial due process.

The key to understanding the passage quoted at the top of this thread is the notion of legal representation, i.e., the relationship of master and servant and the special cases of fiduciary and legal agency. It is often helpful to conceive the law as being concerned primarily with the putative and postulated right of every person (man, woman, child, partnership, association, corporation, state) to be heard by an impartial tribunal, and conversely that it is forbidden to take the law into your own hands (like Francisco or Dagny or Roark or Karen or Kira).

Many of us, of course, ignore law as such, especially the edicts of Mr Thompson and his bootlickers in Congress. It’s rather difficult for the Iraqis to ignore the 3rd Infantry Division, or an airline to ignore the Homereich Security Uberfuhrer – but much of life is beyond the reach of government. Families adjudicate disputes between young siblings, for instance. The government cannot compel one to fall in love or out of it.

The cheap way to get acquainted with my work is to visit Berkeley’s WayBack Machine (http://www.archive.org) and dial up LFC Times (http://www.zolatimes.com) where you’ll find some 50 articles and stories listed in the Writers Index under my name.

If I can be of further help, please give me a shout at my email [email protected]

:slight_smile:

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In any case, the philosophy of law stands independent from politics and ethics of necessity. You can’t get from “capitalism” to the jury system, nor from “just government” to adversarial due process.

This statement is simply false. Any legal system is political in nature, and politics is derived from ethics (which is derived from epistemology, which I view as “ethics for thinking”). The idea that they are in somehow separate spheres, totally isolated from one another, is rather strange. It is a normative prescription, stating that men should act in a certain way (ethics) in order to achieve certain goals relating to the proper structure of society (politics). Why again is it supposed to be “independent”? Can any sphere of man’s life be held as independent, if they are integrated with the rest of his knowledge and actions? If they are not so integrated, and have no bearing on the rest of his life, then what is their purpose?

9

As an aside, I will state there is much wrong with Mr. DeVoon’s post.  Most of his problems have their roots in a fundamentally flawed set of basic premises.  However I personally will NOT address these flaws nor the “arguments” presented, unless and until a succinct summary is presented in the place of this novel. 

This type of response should not be tolerated. If you have a counter argument, or found any errors, then present them.

Claiming that there are many errors, but your’e not going to present them is pathetic.

As far as I’m concerend, this means you could not find any errors. If you actually thought the post was not worth responding, you wouldnt’ have responded. But this form of childish one-upmanship is pointless. Present an argument, or be quiet.

I say this here because this is the third time today I’ve seen essentially this same statement from this person.

10

*** Mod’s note: Merged topic sN ***

The issue: what to do when deciding between what is legal versus what is right. One side favors doing what one thinks is right. The other side favors doing what is legal.

The context is important. In this forum, neither side is advocating cooperating with laws in a dictatorship, nor even in a fairly socialist country. The context for the discussion is a “mostly free” country. “As long as one has the freedom to protest the law, one should obey it.”

The other side is not advocating blatant disobedience, but “if you can get away with it”. The idea is: do the moral thing without being sacrificial (obviously!).

Both sides appear to agree that sometimes there is a conflict of interest between legality and morality. Is this true? Or, is there a different way to look at it: in that the apparent conflict is not real?

The “rule-of-law” case is simple: If everyone decides to do what they think is right, that leads to anarchy. So, if one steps back from the particular individual case and looks at the broader picture, then one sees that sticking to what is legal is the moral thing to do. As for trying to “get away with it”, you cannot consistently do so. Therefore sticking to the law is both moral and practical. Protest the law, but continue to obey it.

The “decide for yourself” case is simple: One must act justly, even if doing so is not legal. One cannot seek broad justice in society by denying justice to specific individuals in specific cases. Protest the law, but don’t obey immoral laws except under duress.

Is that the best summary of both sides?

I have seen the discussion about the rule of law come up in discussions about immigration and taxes. What are other situations where this issue comes up? Is it an important decision for each of us to make?

I’d like to hear from others before I put my own thoughts down. However, for full disclosure, I am not completely convinced by either argument, mostly because I suffer the problem of “seeing something right in both arguments”. Today, if I had to decide, I would tend to the “decide for yourself” camp.

Warning: It is probably illegal to advocate disobeying the law. Consider yourself warned!

11

Is that the best summary of both sides?

I side with the rule-of-law, and I do not agree with your summary. I do not condemn law-breaking out of fear that it could lead to anarchy - that would be subjectivist, because it suggests that we cannot evaluate the law-breaking based on an objective standard.

The overarching quality of civilized societies is that people deal with each other by argumentation, rather than force. Politically, this at the very least means that people have the freedom to speak - i.e., to argue. This is the ruling standard, and why law-breaking is unacceptable.

Note: I do not include civil disobedience in law-breaking. Civil disobedience is the open and honest breaking of a law as a form of protest - as opposed to the evasive law-breaking that seeks to “get away with it” - and depending on the object of protest, it can be justified in a civilized society.

12

The overarching quality of civilized societies is that people deal with each other by argumentation, rather than force. Politically, this at the very least means that people have the freedom to speak - i.e., to argue. This is the ruling standard, and why law-breaking is unacceptable.

Oakes, Thanks for the reply.

Are you saying that stealthily breaking the law (in the context of a civilized society with ample opportunity to speak up and to protest) amounts to an act of force?

13

“As long as one has the freedom to protest the law, one should obey it.”

Does this mean that if you do not have freedom of speech, that you are free do disobey unjust laws?

Both sides appear to agree that sometimes there is a conflict of interest between legality and morality. Is this true? Or, is there a different way to look at it: in that the apparent conflict is not real?

The only time that I can see there being a conflict of interest between legality and morality is when the law itself is immoral (the government is the one violating individual rights or allowing the violation of rights).

This is a tough issue, I’d like to say that I’m on the “rule of law” side only because I don’t trust other people’s judgement of what is right and wrong. But the only reason I pay taxes is out of fear of going to jail, so that would put me on the “decide for yourself” side.

14

This is a tough issue, I’d like to say that I’m on the “rule of law” side only because I don’t trust other people’s judgement of what is right and wrong. But the only reason I pay taxes is out of fear of going to jail, so that would put me on the “decide for yourself” side.

When I think of it in an abstract way, I tend to come down on the side of “rule of law” too. Yet, when I think of concretes, I tend to support deciding for myself.

As an student of Objectivism, I understand that I should not have such a conflict – between theory and practice. That is why I begun this thread.

There are even finer points that I have pondered but did not raise yet. For instance this: suppose I decide to follow all laws myself, what about others. Do I turn a blind eye to other people who are violating immoral laws? On the one hand I cannot see myself doing so (“practice”). On the other, would that not be condoning that they are doing (“theory”)?

I find it pretty easy to follow all laws. Yet, I wonder if that is partly because I take them for granted. Of the unjust laws the I follow, the income tax might be the one with the most personal impact. Are there any laws in your profession (other than tax laws) that have an extremely egregious impact on your ability to “pursue happiness”?

15

Are you saying that stealthily breaking the law (in the context of a civilized society with ample opportunity to speak up and to protest) amounts to an act of force?

No. I’m saying that it betrays - on a moral level - the nature of the society you are in; i.e., it undermines your goal of a fully rights-respecting society under the rule of law; i.e., it is not in your interests.

There are even finer points that I have pondered but did not raise yet. For instance this: suppose I decide to follow all laws myself, what about others. Do I turn a blind eye to other people who are violating immoral laws? On the one hand I cannot see myself doing so (“practice”). On the other, would that not be condoning that they are doing (“theory”)?

Why would it be condoning what they’re doing? You can morally condemn an act without acting as a tool of state coercion.

16

“As long as one has the freedom to protest the law, one should obey it.”

That plus the possibility of changing the law (by persuasion). If you had freedom of speech but immutable immoral laws, you should not obey such laws. The point is that freedom of speech is an essential tool in living by reason, but it isn’t the whole thing, and the principle according to which law should be evaluated is whether it allows man to survive according to his nature.

Both sides appear to agree that sometimes there is a conflict of interest between legality and morality. Is this true? Or, is there a different way to look at it: in that the apparent conflict is not real?

Factually speaking, the conflict is real, since there actually exist immoral laws. If you were a legal positivist, you would obey the law because it is the law, end of story; whereas a natural law person would obey the law because it is the moral thing to do.

If everyone decides to do what they think is right, that leads to anarchy.

That isn’t a necessary conclusion, but in the current context it is a very probable one. If everyone decided to respect the rights of others, that would lead to exactly the same considiton as a Proper Objectivist Government. The crux of the issue is whether people have contradictory views of what is right (and they do – which is the danger of anarchy).

So, if one steps back from the particular individual case and looks at the broader picture, then one sees that sticking to what is legal is the moral thing to do.

That is true only to the extent that laws aren’t egregiously immoral. A law which requires you to steal or murder is clearly immoral, so color of law does not confer morality on legally sanctioned theft. But such marginal cases are not the foundation of law or civilized behavior, indeed law is most useful for the less-than-certain cases, such as the requirement to serve on a jury if so ordered. Really bright people can probably get the answer by themselves, but to paraphrase an old saw, ignorance is no excuse, so there should be definitive laws to provide the answer for matters less obvious than murder.

I have seen the discussion about the rule of law come up in discussions about immigration and taxes. What are other situations where this issue comes up? Is it an important decision for each of us to make?

Yes, it is very important. There are many other applications, for example whether you will obey copyright or patent laws, whether you will obey traffic laws, jury summons laws, orders to testify in court. For that matter, product safety laws – you may have to decide to sell a dangerous product in violation of whatever laws have supplanted consumer responsibility (good old caveat emptor).

17

I agree that freedom of speech is a necessary condition before a country deserves the rule of law. It is not a sufficient condition. If the democratic will of the people takes me closer to slavery, there will come a time when I will have to disobey the law, even if I the law lets me protest my predicament.

When I say “freedom of speech,” I am naturally including everything else that hierarchically preceeds it, including the right to life. If my right to life is taken away, so is every right that it leads to, including freedom of speech.

Oakes: do you morally condemn Martha Stewart?

Nobody is morally obligated to follow a law that by definition cannot be followed. The same applies to Microsoft’s anti-trust case - these laws are defined vaguely (which, I would venture to guess, is just how the law-makers like it). I will add, by the same reasoning, one is also not morally obligated to follow contradictory laws.

18

Nobody is morally obligated to follow a law that by definition cannot be followed.

Right, but a law prohibiting lying to government officers is one that can be followed. Does that mean that you do condemn Marth Stewart? Whereas you cannot know if you have violated anti-trust laws until you are convicted, you can know if you’ve violated 1001.

19

Right, but a law prohibiting lying to government officers is one that can be followed. Does that mean that you do condemn Marth Stewart?

Yes, I condemn her for that. But like all cases of unjust-law-breaking, I leave room to condemn the law as well, and to reinforce her right to her property.

20

In my context, I find it pretty easy to follow all laws. Yet, I wonder if that is partly because I take them for granted. Of the unjust laws the I follow, the income tax might be the one with the most personal impact. Are there any laws in your profession (other than tax laws) that have an extremely egregious impact on your ability to “pursue happiness”?

Well, let me see if I can come up with some more for you.

It is legal for a doctor to refuse to discharge you from a hospital. Given, if you threaten to sue them they will usually relent (USUALLY) because lawsuits are annoying even when the law is on their side, but, if they feel like it, they can keep you prisoner.

If you go to an emergency room with a life-threatening injury or illness, they cannot refuse to treat you regardless of your ability to pay.

In many places with zoning regulations you cannot run a business out of your home.

These are just a few examples; there are hundreds, maybe even thousands of regulations like these. Some are just plain silly.

From dumblaws.com:

Ohio

It is illegal to fish for whales on Sunday.

Breast feeding is not allowed in public.

It is illegal for more than five women to live in a house.

In the city of Lima it is illegal to sell a map that doesn’t have Lima on it.

In Youngstown it is illegal to run out of gas.

In Oregon and New Jersey you may not pump your own gas.

I also recommend Dave Barry’s Dave Barry Hits Below the Beltway for the story of how California prune manufacturers attempted to get permission to label the prunes, which are dried plums, “dried plums”.

Paraphrasing Terry Pratchett: “It may be possible, by sitting very still in a dark cellar somewhere, to go through an entire day without breaking a single law, but even then you’re probably guilty of loitering.”