Why a Govt of Laws, and not of men? - The Rule of Law in Progress or Regress pt-2

So we left off in the previous post with pointing out that two very different creatures, the Rule of Law, and its Doppelganger, the Rule of Rules, are being mistaken for, and appealed to as being, one and the same thing. Because most people do not distinguish between the two, the resulting confusion spills out well beyond the courtroom and into our daily lives - evidenced by the Mizzou journalism student asserting his rights as protected by the 1st Amendment, and his fellow journalism students and professors asserting their right to 'bring muscle' to silence and banish him - and all will seek to justify their positions through the 'Rule of Law!'.

We're in this situation, because too many of us look no further than surface appearances to support their own passionately held and self justifying beliefs, and if you go no deeper than appearances, then the two do seem to be nearly indistinguishable - both are written in law books, both may be presided over by judges, both embody what people feel to be right, and both will result in a response of force should you violate them - but the fact is that they are in truth as different as night is from day, and our mistaking them for each other is serving as the means for dividing We The People into We The Peoples.

So... how do you distinguish between the Rule of Law and its Doppelganger, the Rule of Rules? If opposing points are given as answers to the same question, then maybe the problem lies less in the answers being given, than with the questions being asked? What is it that even prompts the question which the 'Rule of Law!' is so often given as the answer to? And is it in fact the answer? What's the point of having a Rule of Law? And having chosen to seek such a thing, is 'a nation of laws' a sufficient answer to the question of "What type of nation are we?".

Is the sort of answer that students are typically expected to give in our classrooms - ticking off multiple choice questions, or completing a fill in the blank answer - are they enough to stir an interest in getting beneath the deadly shallows of appearances?

It requires a bit more than that, doesn't it?

Put it this way: We have people offering opposing answers to define the same term, because we accept appearances as being sufficient, and the more shallow the appearances are that we are willing to settle for - multiple choice, fill in the blank - the less likely it is that people will look past the surface, and the more likely it is that the answer we will wind up with will be the Doppelganger, instead of the reality we were seeking.

Our answers are much less of a problem than the questions that we customarily do, and do not, ask of ourselves. Maybe a better approach would be, before asking why the Rule of Law is desirable, we first noodle a bit on why Laws are thought to be desirable at all.

If your answers aren't the answer, ask different questions
It was John Adams who famously stated that we were a ' government of laws, and not of men' - do you accept that as a 'fill in the blank' answer and move on with no further thought, or have you, or do you want to, ask 'Why?' What was the point of that statement? How are the two different? What does it mean to understand that they ARE and SHOULD BE different? The answers are tied up with what we've been looking
into in previous posts, particularly "Savagery has a History in the past and the present", that observed that Power, unsecured, power unfettered, power that primarily serves the whims of the powerful - whether in the person of a One or of the Many - is what defines humanity's entry level condition, that societal baseline of savagery (and whether the prevailing fashions of that savage society are loincloths, togas or three piece suits, is immaterial) - the very point of our progressing from savagery to Civilization is to make progress away from those conditions - but how? How does 'civilization', how can it, bring that about?

The purpose in this series of posts is how to consider whether or not something is 'Progress or Regress', to note what Progress is made possible by, what it must be comprised of, and how we are able to know Progress from Regress. While the Rule of Law is not the answer to that question, it is still a very good measurement of whether or not a civilization is on the track of progressing towards, or regressing from, the answer. But even so, defining the tool of the Law is difficult to do, even more so than actually using it. Part of that difficulty is how deceptively easy it appears to be to give the 'right' answers, especially when you assume that the question you're asking is the same question that is being heard. For instance, if you are tempted, as I've often have been, to ask:

'Can it be said that a nation is one of laws, if those laws are simply the rules that men write?'

, the first retort you're likely to receive is,

'Are you delusional? Every law on the books is a rule that men wrote - WTH are you talking about?!'

And... of course all the laws on the books are rules that men have written... so... what could John Adams have been talking about? What would the difference be? Why would that difference be considered to be important? Those are questions that I tend to assume have already been asked and answered by others, when in all likelihood they've never even been entertained by most of the people I ask it of.

If a person takes Adams' statement as just an isolated statement, one that you might have been taught to associate with him or to have memorized the words so as to be inserted into blanks as needed, then we are led to forget or ignore the extensive history, questions and research that preceded it, which his statement summarized and crystallized. And so asking that question by itself, as if it could be adequately answered, let alone even asked, on its own, is as pointless as asking someone who's given the matter no consideration of their own, what the purpose of Government is. Scarily enough, seeing as we have a presidential election coming up in the not near enough future, that is pretty much the situation we are facing. Of course, depending upon which of the We The Peoples that the question "What is the purpose of Government?" is put to, it's likely that you'll get answer from the extremes that will look something like this:

1. Governments are instituted among Men to secure the rights of life, liberty and the pursuit of Happiness, deriving their just powers from the consent of the governed.
2. Government is to provide a safety net for society, to keep us protected and safe, with a pleasant life, free from offensive speech and behavior.

If the questions we are asking (and making momentous decisions upon) can receive such different answers, it's because your question assumes that a similar understanding of and familiarity with the subject, that obviously does not exist, the absence of which cannot support your asking of the question!

Many people do not understand that there is even any difference worth noting between these two, and I'll add that you probably shouldn't even assume that everyone understands that the two replies are not only different but contradictory, or of there being any importance in recognizing that difference. I know many people who do not, I even know people who might be prepared to give a reply similar to the first, and then also go on to expect the second response as well ("Just two sides of the same coin").

To those folks who think I'm making a distinction without a difference, I'll ask them to consider whether or not that their not seeing the difference, is proof that the difference doesn't in fact exist? Isn't it possible, likely even, that just as the musician recognizes scales, chords, harmonies and themes that the casual listener easily misses - even while listening to the same music - that it's quite possible that you may not see any importance in the differences, because you may not yet have developed the knowledge, awareness and habit of perceiving them? Discovering those differences requires that you go deeper than the surface appearances, looking for patterns and relations, and actually rooting them in reality, rather than conveniently settling for what you wish it would be - that's a habit which is at the heart of determining whether the choices you make will lead towards Progress, or back down into an ever present Regress.

That should be a central objective of an Education - I'll leave you to ponder the students of Mizzou and Yale, or the writers at Salon, to judge whether or not their expensive educations are worthy of the name of Education.

For those who don't see the difference, and assuming that they are willing to honestly explore whether or not one exists, further observations and questions need to be made and asked... but it won't more than a few moments to do it. For essentially what people in the second instance, the 'give me safety' group are saying, is that they want that which they call the Law (govt) to keep them safe, comfortable, free from distressing wants, and if you allow them to leave the matter at that, as our schools encourage them to do, their answer might even seem sensible. But if you ask another question, the issues will soon become more starkly defined. For instance, how about we ask:

Why do you want to be kept safe?

This isn't as foolish a question as it might first appear to be. Do they want to be kept safe from abuse, or to be kept safe from life? Do they want to live their own lives, or do they expect to have the essentials of their lives lived for them? Look at the Mizzou students (and am I the only one that thinks these grown Cry-Bullies look like some mad scientist's attempt to cross breed Barney the Dinosaur's kids with Skinheads?) demanding their safe space from hurtful eyes or they'll beat you down - which category would you place them in? Or better yet, as they are mostly journalism students, what category do you think that they'll soon be putting you in?

Note: Both views are looking to the laws to keep them safe from abuse, they look to the laws to make sure that no one inflicts harm upon them, they look to the laws as a security against being assaulted, beaten and robbed, they look to the laws for assurance against their being wrongfully abused by those in positions of power and influence?

But one of them realizes that they still have to do the necessary work of pursuing their happiness in their lives, while the other thinks that the laws can actively accomplish that for them. And why can't we look to the laws to cushion our lives? One reason why, is because you'll soon be faced with determining whose lives are to be cushioned, and whose lives are to be forced into providing the cushion for them?

It shouldn't take much thought to realize that until we all have Star Trek Materializers that can create anything that we need out of thin air, then those material items and conditions that are needed to keep you safe from life, need to be made by someone, and if negotiating with others for them is ruled out, then someone must be made to, forced to, produce them and hand them over to you. Seeking to be kept safe from life, requires that someone, usually government, will force those very things out of others, for their own benefit.

Note: We're not talking about generosity or charity here, those are voluntary and presume not only someone choosing to provide them - not forced into doing so - but having the ability to first produce what they then will offer as a gift.

So what most people who advocate for laws to keep them safe implicitly mean, is that they want to be sure to be on the receiving end of the fruits of abusive behavior, while not (knowingly) receiving that abuse themselves. They want to be a part of a system that promises 'something for nothing', even while knowing that someone else will have to receive some level of abuse on their behalf, in order to provide them with the comforts they seek - they simply want to outsource the necessary bullying to the govt.

So to bring this tugboat back to shore, what does it mean to, what does it require as being allowed, in order to do that outsourcing?

Saying that 'We live in a Democracy! Majority Rules!' doesn't change the abuse, it only explains how it is to be officially approved of.

Certainly some must agree to do so, and very likely it requires you to have more insisting upon it, than resisting it, right? Majority rules? But there's more as well, it neither seeks nor requires any further justification than the fact that some of those who have power over others, wills it, without any external restraints upon their will to wield power - and that is the defining feature of the savage societal baseline of tribal societies such as the Yanomamö in the Amazon, or the Journalism Professor in Academia, where some can rule over others as they see fit to. What this means to us here, is that in such societies there clearly cannot be a standard that applies equally to all - there can be no clear principle that everyone should be equally defended from abuse, since to receive something for nothing, someone has to produce that something, for nothing - and that 'for nothing' means being abused in some manner, their efforts, or the fruits of their effort, taken from them - for the crime of belonging to the 1% (remember, to increment the percentage point upwards as those of each previous point are devoured) and given to others, so they won't have to endure those efforts themselves.

Preventing that unrestrained, random abuse of power, is what establishing a system of Laws begins to do. Written laws (so long as they are few enough to be comprehended), publicly displayed, further separates the ruler from the reins of power, making it more difficult to dispense favors and punishments at the whim of the powerful. 'Ideally' (and you just know there are potential pitfalls attached to those scare quotes) they spell out for all to see, what the rules of civilized behavior are deemed to be in that community, and they lay out for all to see what the penalty for violating those rules will be. Such laws enable people to see clear paths to making choices in their own lives and to enjoy the fruits of their labors and enabling them to live in society with others.

In the 'Why' and 'Should' of what those Laws should be, lays the next important key, and it begins to show itself in the typical responses of those desiring that government power be used to keep them safe from life, in saying something like "Unfair! They have too many fruits!", but the enviable status of some isn't the point here, the point is that exerting power on the basis of what some men do or don't have, means that all of the people are to be divided into those who are favored, and those who will be abused - and those in power, or who have their ear, will determine that 'fair' amount (and its very valuable exceptions and loopholes). The very assertion of such whimsical measures and exceptions ensures that there can be nothing in the laws resembling the principle that everyone will be defended from abuse. And that means that power must be exerted against some poorly defined some, without benefit of a universal principle to guide them and protect all individuals in their society, equally.

That seems inarguably true to me - if you disagree, please, enlighten me.

Arbitrary options
Here's the heart of the matter - what this means in practice, is that power is to be restrained by nothing save serving the whims of the powerful, and those seeking to be protected by them (and they are inseparable), which is what defines the baseline that people have traditionally sought to make progress away from - when the laws become unpredictable, how will you know whether you are in the presence of an ever deepening danger, or distancing yourself from it? When you cannot be sure, that is when you can be sure that what you have is a government of men, and not of laws. Ben Franklin pointed out the keyword which best describes power restrained only by the hands of men, one which was understood in our Founder's era as being one that we particularly needed to beware of:

"I am a mortal enemy to arbitrary government and unlimited power. I am naturally very jealous for the rights and liberties of my country, and the least encroachment of those invaluable privileges is apt to make my blood boil."
-- Ben Franklin (writing as Silence Dogood, #2)

Laws, good laws, are written to apply to all, and in that universal aspect, they begin to require a more solid form of reasoning and respect for reality, one which forbids that arbitrary exercise of power that typifies the savage's community.

The arbitrary use and abuse of power is what Adams' 'nation of laws, not of men' was made in opposition to - having universal standards above the immediate interests of men, is what such Laws require and without which they 'are no law at all', and the recognition of this truth makes you, as Franklin said, a mortal enemy of its opposite - arbitrary power in the hands of the powerful makes the Doppelganger their ally. Those seeking after the ways of men, of being 'kept safe from life', will begin with demanding that some be excused from universal principles, and end with the removal all such restraints and protections as Laws and the Rule of Law might afford.

And BTW, how comfortable are you with Benjamin Franklin's thought of a 'mortal enemy' at hand? Consider the Body and the Doppelganger, the crowd cheering the policeman's death and for his murderer... which side do you suppose an arbitrary government would feel more at home with, the law abiding person who just wants to be left alone, or the excitable mob seeking favors and willing to follow those who offer them?

The Doppelganger lives for Trick or Treat.

Clever readers might also have noticed that there is as yet nothing in this idea of Laws to prevent them from having exceptions written into them? Very true. A system of laws, even good ones, without some sort of universal guide and check upon them, will swiftly revert to being an elaborate cover for the Rule of Rules (see the events leading up to 1776). We'll begin looking into just what those universal standards and guides upon the Laws must be, along with what those universal standards can be, and how and why we can say that they are in fact, universal, with the next post.