Freespace

Some thoughts on Jeffrey Rosen's cabal

At PLF Liberty Blog.

The "libertarian" Paul

I already knew that Ron Paul believes that the government should be allowed to dictate whom you sleep with. What I did not know is that his son would ridicule the principle of marriage equality, and do so on a Biblical basis.

People who call themselves libertarians and support the Pauls should be ashamed of themselves.

Update: Okay, I spoke too harshly. All political candidates are bundles of good and bad, and we choose the trade off we think best. But still, they're both an embarrassment to the libertarian world.

Is there “pseudo-law”?

I’ve long pondered writing about “pseudo-law,” which would be the legal analogue to pseudoscience. Certainly there are legal arguments that are regarded as crackpottery and that have the same cultish ambience that pseudoscientific arguments reveal. Interestingly, the Rational Wiki even has an entry for pseudolaw, which it defines as “any legal theory developed or action taken that relies heavily on frivolous arguments trumped up in legal language.” But the problem appears to be that we can identify a pseudoscience by reference to the baseline of physical reality—whereas law is, or seems to be, just whatever we call it. A pseudo-law theory that gains general acceptance would then be the law, right? So to identify pseudolaw, one would first have to have a concept of legal “truth” or know what the “fact of the matter” in law is.

I don’t think that’s right, for a couple reasons. First, the line between pseudoscience and scientific practices is not always that clear. Many sciences begin in their infancy with practices that are later revealed to be pseudoscientific—chemistry, for example, which began with alchemy, or astronomy, which began with astrology. It’s only by elaboration of the scientific theory that we can later come full circle and realize that our initial practices were pseudoscientific. What this means is, we do not necessarily detect a pseudoscience by a simple comparison of it with reality—we have to develop its theories and its internal logic until we discover that it, or a component of it, leads down a blind alley as far as prediction, correspondence to reality, incoherence, or the other criteria of scientific validity are concerned. In the same way, if there is such a thing as pseudolaw, its detection need not depend on a comparison with physical reality—we might determine that something is a pseudolegal theory by other criteria, including internal criteria like coherence with other legal theories, logical consistency, or by theories of justice in general.

Second, we do not actually have to have a grasp of the physical fact of the matter in order to detect the pseudoscientific nature of a theory. Instead, we can detect its pseudoscientific nature by the fact that it does not correspond to the scientific method itself. If that theory makes arbitrary claims, is internally inconsistent, purports to absolve the researcher of the need for experiment, and so forth, then it can be detected as pseudoscience even without necessitating a comparison to, let alone a precisely accurate model of, physical reality. In other words, you don’t have to taste to road apple to know what it is, and we can know that homeopathy is bullshit not necessarily by a double-bind field trial, but because we know mathematically that no molecules of the original substance remain in the homeopathic dilution in the first place. So, too, in law, perhaps we can detect a pseudolegal theory by the fact that it does not partake of the processes of legal reasoning. We need not have a theory of legal “truth” before we can have a theory of how we discover that truth.

Now, I think here we run into the big complication: the prevalent legal philosophy under which whatever the ruler says is automatically law. If that is the case, then there can be no objective criterion by which to differentiate law from purported law. Whatever the ruler deems automatically becomes law. It bears emphasis how much this notion of allegedly modern positivism has in common with old fashioned magic. The mere utterance of words by the authority transforms those words into something else—into law—which deserves obedience merely because it has been promulgated. This corresponds precisely to the notion of magic words—an Abracadabra that can transform nature by the mere command of it, rather than a comprehension of, conformity with, and employment of, nature’s own underlying logic. This formalistic view of law as whatever the ruler says—now the dominant view of legal intellectuals—is essentially a magical view of law, wherein each citizen seeks to grab hold of the wizard’s hat so that he, too, can make law as he wills.

If, by contrast, law is not mere will—if law has a nature which we must comprehend, conform to, and employ—then not everything promulgated is law. If law has an objective nature, then it is possible not only for there to be a rule of law, as I explained earlier, but it is also possible for there to be pseudolaw: a practice that mimics law, that imitates its gestures, but which is not actually law, but something else.

The obvious candidates for this are the crackpot legal theories that Rational Wiki points to—things like, if you put a comma in your name you’re a “sovereign citizen” and don’t have to pay taxes and all that stuff. But I would also nominate two other candidates for pseudolaw: slavery law and the constitutional theory of secession. These ideas were elaborated in America at the same time as other fashionable nineteenth century fads (phrenology, spiritualism, the ether, separate creation of the races) and those pseudosciences had—as all pseudosciences do—a sort of internal logical structure; a specialize vocabulary; a claim to coherence with the rest of the natural world. The better of them were ultimately undone (or someday will be) by experimental testing, but they could also be detected by the internal evidence of pseudorationality. I suspect that slavery law and secession law can be categorized as like these things. Even though there was a large body of slavery law and an elaborate theory of secession, these things are pseudolaw because they do not consist with the underlying structure of law, in the same way that the pseudosciences did not consist with the underlying structure of reality. The most obvious problem with slavery law is that it attempts to treat a person—who has indefeasible personal responsibility—as a piece of property or an instrument, and thus as an inanimate object. Like a marble under the carpet, this unignorable problem caused Justice Ruffin to stumble in State v. Mann—the case about which MarkTushnet has written. Courts, wrote Ruffin, “are forbidden to enter upon a train of general reasoning on the subject” of whether a master may be prosecuted for murdering a slave. “We cannot allow the right of the master to be brought into discussion in the Courts of Justice.” In other words, we cannot fit this question into the overall network of legal reasoning. It is sui generis. In just the same way that a pseudoscientific “phenomenon” cannot be accounted for in the general network of physical law. And I have written already at great length about the overwhelming amount of data which simply does not fit into a theory of secession, and the many other logical conflicts that a theory of secession causes.

Speaking of the Civil War...

Today is the anniversary of the Bloody Angle. "I intend to fight it out on this line if it takes all summer."

Beulah Land

I've lately been watching the 1980 miniseries Beulah Land, which is a cheaper, longer, less interesting version of Gone With The Wind. But I didn't quite know what to make of the dialogue in this scene, beginning at 3:11:

 

Johnny Carson documentary

I miss Johnny. He had this quality that virtually no hosts have today. It was called being funny. Anyway, looking forward to this.

First thing we do, let’s kill all the lawyers

The Islamic Republic of Iran has sentenced lawyer Mohammad Ali Dadkhah to nine years in jail, purportedly for “acting against the national security” and other political crimes. Dadkhah most recently defended Yusuf Naderkhani, a Christian pastor sentenced to death for apostasy. This is not surprising. Lawyer jokes aside, attorneys play a critical role in a free society—and are basically incompatible with political despotism. As the despotism grows, the role of lawyers shrinks, and ultimately the lawyer is exterminated, or transformed into a pantomime, who simply participates in the show trials orchestrated by the regime.

There is a logical reason for this. In a society where the will of the ruler simply is the law—a society which recognizes no distinction between the king’s command and the law itself—there is no room for a lawyer class. There is no interpreting of the law to be done; there is simply whatever the ruler decrees. It could be different tomorrow than it is today; it could be the opposite; it could be ex post facto; it could be incomprehensible or self-contradictory. The will of the ruler could be anything whatsoever. This is how despotism becomes a kind of solipsism, a sort of meaningless holism, in which the ruler’s will is everything, and where the citizen’s mind, trying to understand and predict how the state will act in its relation with him, can gain no purchase. The perfect despotism is a sort of impenetrable sphere of pure power, not subject to rational analysis or inquiry. And thus tyranny forces the citizen, as Martin Amis puts it, to collaborate in a fiction. The tyrant issues propaganda saying that the wheat crop has improved under his Five Year Plan; it becomes a crime to deny it—and to acknowledge to anyone else that one knows the crop is actually worse. The safest thing is to believe the lie oneself. And thus the despotism grows to encompass every detail of the mind. This is what Winston Smith discovers in Room 101.

Where reality is a social construct, and the ruler is responsible for that construct, then there simply can be no such thing as disagreement or contradiction or rational comparison between the ruler’s will now and the ruler’s will yesterday or anything like that. To make such an inquiry is not just lese mageste or a mere political crime—in a perfect despotism, inquiring about whether the ruler’s will is really right, or sensible, or rational, or just, or legitimate, or whether it is actually law, make no sense; such questions are literally insane. A political dissident—in the words of Justice Oliver Wendell Holmes, who did believe that law is simply the will of the ruler—is absurdly shaking his fist at the sky, when the sky gives him the power to shake his fist in the first place. Such a society has no place for the lawyer...because such a society has no law. It has only command. It has no rules. It has only a ruler. It is not governed by principles accessible to reason; it is governed by will backed by force.

On the other hand, a society which acknowledges a distinction between the will of the ruler and the actual law—even just in principle—opens up a gap that must be knit together by some kind of analysis. “Is the ruler’s command in this instance actually the law?” becomes a sensible question to ask, and that in turn requires an inquiry into what criteria determine whether a ruler’s command actually is the law or not. In Lord of The Flies, for example, the criterion is purely formal: what one says while holding the conch shell is the law; a ruler’s command is not law if he utters it while not holding the shell. From this primitive beginnings, the people can begin to elaborate further principles by which we know when a ruler’s command is actually the law (would a substitute conch shell do? What if the shell is broken?) And when these principles are elaborated, it is they, and not the command itself, that are actually the determinants of what constitutes the law.

If this sounds familiar, it is because Socrates made a similar argument in the Euthyphro: is something good just because the gods choose to call it good? Or do they call it good because it really is good, according to some criteria of goodness? If the former, then good is absolutely arbitrary—it is that hard sphere of pure will, where whatever the ruling gods command simply becomes good, and no further understanding of good is possible to us. But if the latter is the case, then it is the criteria for judging goodness that really make the difference—and not the fact that the gods choose it. We can understand what good is, even if the gods fail to point it out themselves.

So, too, in a society where there are independent criteria for determining which of the rulers’ commands truly qualifies as law—then those criteria are the constitution, and by discussing, debating over, elaborating, qualifying, analyzing, extrapolating those criteria, we can understand the use of state power. That is the discipline of law. It is the genesis of what we call the “rule of law and not of men.” And the people who specialize in that discussion, that debate, that qualification and analysis—they are the lawyers.

That is why a totalitarian state cannot have lawyers. There, the ruler’s will is law—ipso facto. There can be no judging of which of the ruler’s commands qualifies as law; the ruler regards such things as quibbling, at best trivial, at worst, subversive. The lawyer has the power, ultimately, of taking the conch shell out of the ruler’s hands—of saying that the ruler’s command in this respect, did not actually qualify as law. He has the power of breaking up the collaboration in the fiction. He has the power to say that there is a higher order of reality and principle to which the ruler’s will must conform if it is to be truly lawful.

I’m not saying that lawyers are all friends of freedom—very far from it. But the profession of law is inherently premised on the idea that not everything the ruler does is entitled to respect as law. And that is the seed from which all freedom can someday grow. That is why tyranny—whether it be the theocracy of the Ayatollahs, the communism of Lenin and Stalin, the fascism of Hitler and Mussolini, or the proletarian rabble of Jack Cade—truly does declare at the outset, first thing we do, let’s kill all the lawyers.

Forget the O.K. Corral...

...this is the ultimate showdown.

More on originalism and precedent

... at PLF Liberty Blog.

Not reading The Federalist

Yesterday’s Wall Street Journal included this article by Peter Berkowitz asking why it is that college and even graduate students today don’t study The Federalist Papers. I’m not sure what the situation is in America’s “leading” institutions of higher education, but it’s certainly true that most students in most of the nation’s average schools will, at best, read one or two of the Federalist Papers. That’s a shame, because although at times the language can be antiquated, the arguments that Alexander Hamilton, James Madison, and John Jay presented remain critical today. No, they aren’t the definitive meaning of the Constitution, and don’t purport to be. But nobody can hope to understand the document without being familiar with the Federalist.

Berkowitz writes that “scientism, or enthrallment to method,” is responsible for ignoring the founders’ writings. “Political science has corrupted a laudable commitment to the systematic study of politics by transforming it into a crusading devotion to the refinement of method for method’s sake. In the misguided quest to mold political science to the shape of the natural sciences, many scholars disdainfully dismiss The Federalist—indeed, all works of ideas—as mere journalism or literary studies which, lacking scientific rigor, can’t yield genuine knowledge.”

There’s no doubt that the leaders of political science and legal studies see propositions about justice and individual rights as mere matters of personal taste, without any actual value to them. Something is right simply because we choose to call it right—and a person has a right to thing only if society gives him that right. But this view is shared by the right as well as the left. Chief Justice William Rehnquist, Justice Antonin Scalia, and Judge Robert Bork, among others, have argued that the founders’ notions about natural rights are baseless superstitions, or purely subjective personal commitments, rather than actual facts about human nature. Only by rediscovering the validity of the founders’ ideas about natural justice can we hope to perceive the real significance of The Federalist.

I would quibble with Berkowitz’s use of the term “scientism.” The problem here isn’t that modernists take their model from science, but that they take it from the wrong science. Today’s intellectual leaders take their inspiration from physics, and think that to be “scientific” means to eschew such terms as good and bad or right and wrong. But political science and ethics is a lot more like the life sciences than like physics: they deal with living beings, not with inanimate, indestructible matter and forces. In physics, concepts like “good” and “bad” are inappropriate, but in the more general and abstract studies like biology or medicine they make sense. Enlightenment era thinking about natural rights and justice is much more like the latter sciences than it is like physics. This may seem ironic, since so many historians have claimed that Enlightenment thinkers were guided by an analogy to Newton’s mechanics. However that may be, it’s no less true of David Hume, who rejected the idea of natural rights, and from whom moderns have inherited the idea that “is” and “ought” should be rigidly separated. The problem with today’s thinking isn’t that it’s “scientific” but that it’s unscientific, or perversely scientific. It uses habits of thought inappropriate to the questions at issue.

(Cross-posted at PLF Liberty Blog)