LAW AND JUDICIAL PROCESS CLASS OUTLINE
Why
are we here learning about government, politics, and law?
It’s generally agreed THE most
important question as a human being is “what is the meaning of life.” Really what this is asking is "how am I
to live?" or, "What is the best way to live?” But the question “how am
I to live?” means,
unless your alone and isolated on a deserted island, "how am I to live with
other people?". This question
is usually answered by religious and ethical philosophy. BUT deciding how to live together necessarily
means asking "what rules should we live by?":
That is, how should our society be structured? What laws should we have? Who
should have power to enforce those laws? What limitations will there be on such
enforcement (that is, what rights will people have against arbitrary
enforcement of the laws?) etc. So HIGHLY
inter-related with religious and ethical philosophy is the question "what
government and laws" should we have?
Questions of government, politics, and law are only one step (if that)
removed from the deepest and most important religious, moral, and ethical
questions known to humanity.
***Thus, an understanding of
government, law and politics through the study of them all under the heading of
“political science” is FUNDAMENTALLY necessary in deciding how we should live together
as a human beings...
And since we all at this moment live in the
religious, moral, and ethical philosophy....***
Jefferson,
Bill for the More General Diffusion of Knowledge, Virginia, 1779 “whereas it is generally true that the people will be
happiest whose laws are best, and are best administered, and that laws will be
wisely formed, and honestly administered, in proportion as those who form and
administer them are wise and honest; whence it becomes expedient for promoting
the publick happiness that those persons, whom nature
hath endowed with genius and virtue, should be rendered by liberal education
worthy to receive, and able to guard the sacred deposit of the rights and
liberties of their fellow citizens . . .”
Jefferson,
And
this brings us to the point at which are to commence the higher branches of
education, of which the Legislature require the development; those, for
example, which are,
To form the statesmen, legislators
and judges, on whom public prosperity and individual happiness are so much to
depend;
To expound the principles
and structure of government, the laws which regulate the intercourse of
nations, those formed municipally for our own government, and a sound spirit of
legislation, which, banishing all arbitrary and unnecessary restraint on
individual action, shall leave us free to do whatever does not violate the
equal rights of another; . . .
To develop the reasoning
faculties of our youth, enlarge their minds, cultivate their morals, and
instill into them the precepts of virtue and order;
And,
generally, to form them to habits of reflection and correct action, rendering
them examples of virtue to others, and of happiness within themselves.
What
Madison and Jefferson are saying is that knowledge of the larger society is
necessary for one to achieve one’s maximum potential as a human being, and are
necessary to achieve the best human society possible, by using all of one’s
brain power and by making the most of one’s capabilities. Otherwise, if you never think about politics,
or if you don’t understand it as much as you could, you’re not living up to
your fullest potential as a human being.
This is because you’re always a part of your community and society, and
so if you don’t understand how your larger society works, or how you and society are so closely
connected, then you’re living in blindness and ignorance about the affect your
life has on your society, and the effect your society has on your life. For a good, easy-to-read modern explanation
of the maximum flourishing of a whole human being, I highly recommend you
read: A Primer in Positive Psychology,
by Christopher Peterson. If you want a
more intense philosophic discussion of how to achieve the best human life
possible, the best text in human history on this issue is Aristotle’s Nicomachean Ethics.
Even short of your own life’s
improvement, education in civics and government is essential for democracy to
exist and succeed. Without an informed electorate, democratic decisions will be
based on ignorance or emotions. Demagogues (leaders who
manipulate public opinion through lies and psychological tactics merely for their
own political purposes and advantage) will be able to convince the voting
public to go along with them (e.g. Hitler).
So any democracy needs its citizens to be informed about the powers of
government, limits on powers of government, how government works, how laws are
made, what laws there are, what the true political
facts are, etc. Otherwise, the democracy
is either not a true democracy (uninformed people will not be making genuine
political choices) or it is a fragile democracy (demagogues will be able to
easily manipulate
_______________________________________________________
Philosophy of Law
(Jurisprudence) from latin “juris
prudentia” meaning “study/knowledge/science of law”
“Philosophy of Law” or “Legal
Philosophy” or “JURISPRUDENCE”
Narrow definition of
jurisprudence: what is law? (field of philosophy only)
Broad definition of
jurisprudence: evaluation and critique of law and legal institutions.
Includes
fields of law, sociology, political science, economics.
There are MANY different philosophical
questions involving law, we will look at only a few during this course.
I WHAT IS LAW?
The
Meaning of Law and Problems of Definition. There is no fixed, set, universally
agreed-upon definition of “law.” Here are a few. Notice the diversity of their approaches.
Posner: Law is the "achieve[ment] of social order through subjecting people's conduct
to the guidance of general rules by which they may themselves orient their
behavior"
Austin, A Command Theory of the Law: "A law in its most general sense is a
rule laid down for the guidance of an intelligent being by an intelligent being
having power over him."
Friedman:
“The existence of public order.”
'lectric
law library: "LAW - Rules established by a governing authority to institute
and maintain orderly coexistence."
Law.com: "any system of regulations to
govern the conduct of the people of a community, society or nation”
Lawyer website: "All the rules of conduct that have been
approved by the government and which are in force over a certain territory and
which must be obeyed by all persons on that territory"
OTHERS:
"a set of rules that provides guidelines for resolving
disputes."
" a
set of behavioral norms that regulates how members of society must act"
“a
language that lawyers and judges use when they try to prevent or resolve
problems—that is, human conflicts—using official rules made by the state as
their starting point.”
***PERHAPS MOST COMMONLY
QUOTED DEFINITION OF LAW: (since the 1920’s).
Justice Oliver Wendell Holmes:
“The prophecies of what the courts will do in fact.”
i.e. a prediction how a
court will decide a dispute—it’s your best guess what a judge will say.
Every
culture has rules and ways of enforcing those rules.
Let’s look at history of
western law to see how concept of “LAW” has evolved:
HISTORY of LAW: Historically,
rulers justified laws as from “god” or “gods.”
(Rulers would say law is from the gods (“divine right”)).
2 most famous example of
Western law, from ancient Middle-East:
Code of Hammurabi—King Hammurabi of
Ancient
Hebrew Torah-- Leviticus and
Deuteronomy—(Christian Old Testament); 1200 B.C.E.
Anglo-Saxon Law: German
tribes Anglos and Saxons migrated to
For at least a thousand years,
there has been a philosophical Distinction between
NATURAL LAW and POSITIVE
LAW:
POSITIVE LAW: human made
law: usually written, but not necessarily in early cultures. (from “to posit” meaning “assert, declare, put forth,
announce.”
NATURAL LAW: fundamental moral laws that exist in the universe as
do the laws of physical reality like gravity.
also referred to as NATURAL
JUSTICE (latin =“jus naturale”)
discoverable by rational intelligence and reason, and observing nature.
Remember justice had two meanings: one in the legal
sense and one in the moral sense; in the latter case, justice IS the natural
law.
So by
this definition, “natural justice” is redundant; like saying “wet water.” ; all you need to say is “justice.”
So be
aware, that “justice” can have both a legal meaning and a moral meaning; i.e. a
positive law meaning and a natural law meaning.
Natural Law—Usually, but not always,
religiously grounded. Laws derive
"authority" from their correspondence with an objective moral reality
(moral laws) existing in the universe. Univeralism:
there are universal moral truths that are true always, everywhere.
Historically, for thousands of years,
this has been philosophical justification for law.
St. Thomas Aquinas—Summa Theologica
William Blackstone—Commentaries on the Laws of
Lon Fuller—The Morality of Law
John Finnis--
John Rawls—A Theory
of Justice
Ghandi--
Henry David Thoreau--Civil
Disobedience
Martin Luther King, Jr.--Letter from
a
Lysander Spooner—No Treason
1. Natural Law Theory: Positive law is valid only if conforms to
"natural law" i.e. objective moral reality---like gravity is a
natural physical law of the universe, so too are there universal moral
principles; moral "laws" to the universe; that humans can NOT repeal
(just like the law of gravity could not be repealed). There are moral truths that are true for
everyone everwhere at all times: Universalism. This is as opposed to “relativism” or "cultural relativism."
–no objective, universal moral “truths”—each society/culture (or even
individual) determines what is right/wrong E.g. slavery, cannibalism, human
sacrifice, female genital mutilation—no universal morality.) Cultural relativists argue that what the law
'is' politically and 'ought to be' morally is to be found in the national
character, the culture, and the historical ideals and traditions of the people
or society whose law it is—i.e. cultural relativism---e.g. female genital
mutilation practiced in certain African cultures—cultural relativists say you
can't argue it's morally wrong, you can't even argue the strengths and
weaknesses of it, must simply say "its part of the history of the
culture/national ideals/community values."
BIG Problem: How do you figure out what the Natural Law
is???
Natural law theorists usually
argue IF there is natural law, you should be able to know it either through
divine revelation OR human reason, because it should be just like gravity—you
can explore, study, and understand it
Law that conflicts with natural law is an
“unjust law” which is really not a law at all, like “counterfeit money” is NOT
money, but is posing as money.
Problems: 1. Is there a supernatural
god/power/force/one/all/is/absolute/being/mind/entity”.?
2. If
so, does that god make rules for us to follow?
3. If
so, how do we know what those rules are?
E.g. “Torturing
babies is wrong.” But what else? Killing people is wrong? But what about in self
defense? under
what conditions? defense
of others? again
under what conditions? capital punishment? for what crimes? Euthanasia? War? Only certain types of
war? Etc.
***i.e. Regardless
where the natural law comes from, what are those natural law rules? NO ONE has ever been able to demonstrate what
they are, and reasonable people strongly disagree over morality and take both
sides on many (all?) issues. i.e. there is NO
UNIVERSAL CONCEPTION OF MORALITY... SO,
if there’s no demonstrable universal conception of natural law, then any
enforcement of natural law is arbitrary, and violates Rule of Law.
AND Another PROBLEM: even natural law theorists themselves agree
that not all human made law (positive law) corresponds to the “natural law” E.G. is “law” =
“morality”? No. Why not? Because THERE IS NO UNIVERSALLY
AGREED-UPON CONCEPTION OF MORALITY:
Law and Morality: Does
Law=morality? Almost all scholars/lawyers/people would agree,
they are NOT same thing.
i.e. the positive law overlaps ONLY to a LIMITED degree
with the natural law (morality).
Thus, law does not equal
morality. The criminal law has concepts that recognize this:
malum
in se: inherently evil, regardless whether law makes it a crime—e.g.
murder, rape, robbery, etc. (NATURAL LAW)
malum
prohibitum: wrong because law says it’s
wrong—e.g. tax evasion, running red stoplight. (POSITIVE LAW)
1. Morally GOOD things you
should do, but law does NOT REQUIRE it.:
should be grateful and
express appreciation when you receive a gift or a favor
hold a door open for a
person coming out of grocery store whose arms are full of groceries, or who is
pushing a baby stroller.
rescue a person trapped in
burning building
give money to a poor, hungry
person asks you for money for food.
stop a group of kids who are
beating up another kid
yell a
warning to a person about to accidentally step into oncoming traffic.
See a
2-year old playing on a railroad track and a train is coming.
call for an
ambulance if you see a person lying shot in the street.
Case law suggests that there
are four sets of circumstances in which courts have decided that persons have a
legal duty to rescue another: "First, where a statute imposes a duty of
care to another [e.g. Good Samaritan laws]; second where one stands in a
certain [special] status relationship to another [e.g. parent and child];
third, where one has assumed a contractual duty to care for another [e.g.
doctor and patient]; and fourth, where one has voluntarily assumed the care of
another and so secluded the helpless person as to prevent others from rendering
aid. [e.g. rescuer who removes a victim to a place and
no one is aware of where the victim is]"
**** Good Samaritan Laws exist in most (all?) European
countries;
Duty to Aid the Endangered Act,
Emergency Medical Care
(a) A person who knows another is exposed
to grave physical harm shall, to the extent that the same can be rendered
without danger or peril to himself or without interference with important
duties owed to others, give reasonable assistance to the exposed person unless
that assistance or care is being provided by others.
(b) A person who provides reasonable assistance
in compliance with subsection (a) of this section shall not be liable in civil
damages unless his actions constitute gross negligence or unless he will
receive or expects to receive remuneration. Nothing contained in this
subsection shall alter existing law with respect to tort liability of a
practitioner of the healing arts for acts committed in the ordinary course of
his practice.
(c) A person who willfully violates
subsection (a) of this section shall be fined not more than $100.00 -- 1967 No.
309 (adjourned session) SS 2-4 effective March 22, 1968.
2. Morally BAD things you should not do, but law does
NOT PROHIBIT it:
teaching your children the
values of the KKK or the Taliban, or Al Qaeda
parents
take care of lazy, irresponsible adult child with no expectation of return,
then child abandons parents when parents old and sick
person is dating two people
at once without telling each other about other person.
person
quickly pulls their car into a parking space they saw you were already waiting
for.
person cuts in line ahead of
you in a movie theatre line
charging $100 for a loaf of
bread to a starving person
emotionally abusing your
child or spouse
lying
(former) slavery
some say abortion
3. Morally neutral things the
law requires:
responding to the
census—government doesn’t need to know
registering before you can
vote—could be automatic based on driver’s license
registering a firearm
wearing clothes—children
raised in nudist colonies aren’t harmed, so why not let people go nude in
public?
4. Morally neutral things the
law prohibits:
Drive car under a red light—not inherently evil—could
make red mean go, green stop, or orange go, blue stop
Driving on left-hand side of road. Other countries drive on left-hand side (e.g.
Some would say “victimless” crimes—prostitution,
drugs,
Some
would say land use development
Some
say abortion
5. Morally bad things the law
requires (or allows: (small category))
(Former) slavery or racial segregation
Some say paying taxes is equivalent to armed robbery,
and what our taxes fund (war; subsidies to oil or meat industry, etc.)
Some say the death penalty
Some say military draft
6. Morally good things the law
prohibits (small category)
Some say prohibiting euthenasia
or doctor-assisted suicide prevents human suffering.
Some
would say outlawing gay marriage is a travesty of justice.
Some say prohibiting selling live human organs causes
countless people to die who can’t get donated organ transplants.
HUGGING KIDS. Public school policies now usually forbid
teachers, coaches, counselors, bus drivers, etc. to hug kids even if they’re
hurt, crying, want a hug, etc. out of fear of lawsuits. Yet studies show this is severely hurting
children’s psychological growth and well-being.
2.Legal Positivism POSITIVE
LAW: idea began around 1600’s.
Law does not come from morality, but simply because humans say it is
law.
Thomas Hobbes--Leviathan
John Austin, The Province of Jurisprudence
Determined
Jeremy Bentham—Introduction to the
Principles of Morals and Legislation
H.L.A. Hart—The Concept of Law
***BUT BIG PROBLEM: if “law” does not correspond with “morality”
(i.e. NATURAL LAW) then why should we obey it?. What moral obligation do we have to obey it
if it’s NOT malum in se, but merely malum prohibitum? Positivists needed to argue why, and began to
do so around 1600’s. They said
human-made law is self-legitimizing if its created
within the legal system (notice this says that the source/origin/procedure of
the law commands obedience). Whatever
law is “posited” (“put forward”) by the state, is the law that
must be obeyed. Also, the law SHOULD be
obeyed, because it was made by the legitimate sovereign (ruler) with the power
to threaten and use coercion. Thus, there’s an OBLIGATION to obey. [Remember: if the law is natural law, you should obey it because it’s a divine
command/rule.]
BIG PROBLEM: This simply
begs the question: WHY should I obey a command simply because it’s
government?? What right does the
government have to tell me what to do?
Why should I even care, apart from the practical concern of keeping out
of jail/prison? In other words, what
right does any other human being have to tell me (an adult of competent mind)
what to do or not to do?? We used
to call this SLAVERY . . . . so what’s the
difference? E.G..
What difference is there between a gunman that says “your money or your life”
and a government that says “pay your taxes by April 15 or else”? What difference does it make that it’s the
government making the rule, or that the rule is written down, or made through
the normal lawmaking procedure, as opposed to a stranger just walking up to me
and giving me an order? Where is this
moral duty if its not natural law? Why is a robber holding a gun to my head
wrong, but the government holding a gun to my head okay?
VARIANTS: These two competing views of natural law/universalism, and positive law/relativism have different
versions, and extremes:
Fixed moral absolutes (universalism): considered in detail by philosophy courses in ethics,
but main alternatives are:
i. theism: what a supreme being (god) commands is
virtuous (e.g. Christianity, Judaism, Islam, Hinduism, etc.)
ii. pantheism: an impersonal moral energy permeates the
universe (e.g. Buddhism, Taoism, Platonism, Star Wars “the force”)
iii. reason
humans can create moral rules using logic: (e.g. Kant’s “categorical
imperative”; consequentialism/utilitarianism, etc.)
Thus, even most atheists believe in
objectively better or “best” moral principles through the use of reason and
rationality.
(According to polls, majority of
people living in eastern European countries are atheist, but their crime rates
are no different, or better, than other countries.)
iv. absolutism or dogmatism is the extreme form of universalism: an absolute,
uncompromising belief, usually without adequate evidence or consideration, and
most importantly, not admitting to the slightest possibility of being even
partly mistaken There are certain
“fundamental” truths, and the opposition is not just totally wrong, but
therefore evil and must be eliminated. A
person can be libertarian, left-liberal, right-conservative, communitarian, or
their extreme versions and not be dogmatic about it, but absolutists tend to be
extremist in their ideology: E.g. militant anarchists, militant communists, or
militant fascists; religious cults or religious fundamentalists
that want to impose theocracy: e.g. Islamic fundamentalism, Christian
fundamentalism, Jewish fundamentalism, etc.:
NOTE that a person can be deeply
religious, but still be open to the possibility that someone who disagrees
might possess part (or even all) of the actual truth, so being deeply religious
is NOT the same thing as religious fundamentalism. Example of fascist dogmatism: “I considered it my special duty to extract
from the extensive but vague contents of a general world view the ideas which
were essential and give them a more or less dogmatic form . . .” Adolf Hitler,
Mein Kampf
B. moral relativism: all morality is
arbitrary. Again, considered in detail
by philosophy courses in ethics, but main alternatives are:
i.
existentialism: humans give their own meaning to existence, hence
create their own morality. Several
versions:
1. skepticism/postmodernism: something
beyond the physical universe might exist (e.g a god,
etc), but we can’t know it, so humans must create their own morality anyway.
Like in the Wizard of Oz, there’s no wizard, just “the man behind the curtain.”
2. materialism/humanism:
nothing more than the physical universe exists, so humans must create
morality. Often these are atheists, but
as we noted above, atheists can be universalists also.
ii. nihilism (amoralism)
is the extreme form of moral relativism: because all morality is arbitrary,
there is no such thing as “morality” (“a-moralism”
means “no-moralism”) and there’s nothing worth
believing in (“Nihilism” comes from Latin “nihil”
meaning “nothing” so “nihilism” basically means “nothing-ism.” In it’s mild form,
nihilism would be apathy or indifference towards questions of morality, ethics,
ideology. A stronger form of nihilism
would result in a belief that existence is futile and meaningless. At the extreme, nihilism would display even
outright hostility to society’s attempts to create and impose morality: the
institutions of government, religion, education, and even the family should be
destroyed. Best modern example:
hard-core versions of punk rock movement (which is NOT to say that all
punk-rock fans are nihilists).
Note
that a nihilist could masquerade as one of the other ideologies, simply for his
or her own selfish gain (financial or political). This is what many people have suggested
about Hitler, that he simply was a nihilistic demagogue that used fascism to
manipulate the masses for his own personal glorification.
Also
note that if you do NOT believe these questions of ideology, ethics, and
morality are important, or do not believe that these questions should guide our
lives, then you are in fact a nihilist... It may be a mild form of nihilism, but it is
still leaning towards nihilism.
*Notice
that your views here will affect how much you believe in and favor natural law
versus positive law.
Apart from particular laws,
there is a concept that applies to entire regimes of law: The Rule of Law.
RULE OF LAW:
President Clinton’s
impeachment hearings: Politicians and
scholars who thought he should be impeached appealed to the “rule of law”: that
even the President should be subject to the same laws as anyone else, he should
not be “above the law” and therefore, it was important that he be convicted in
the Senate to uphold the rule of law.
Pres. Clinton’s supporters ALSO appealed to the “rule of law”: that the
law should be followed, even when we don’t like the law, or its application,
and even if its not politically popular to follow the
law, and since
After 9-11, when President
Bush Jr. made a major televised speech before a joint session of Congress where
he insisted the Taliban stop harboring Al Qaeda, he said only certain
Governments would be supported by the U.S. as legitimate, and one of his
criteria he said was that the government recognized the “Rule of Law.”
As we attempt to establish new
governments in
New draft of proposed Constitution
of European Union:
The
What is the “Rule of Law”? Short answer:
It’s not any single “rule” or “law” but the entire system of rules (laws) of a
government and its society, IF that system meets certain requirements (certain
criteria) of non-arbitrariness (i.e. rational, reasonable, and justifiable).
RULE OF LAW: (Not
arbitrary power)
1. Government under law: Government itself must operate under the law
(Government under law, NOT a government with arbitrary power that is “above”
the law)
2. General and
authoritative rules: Government must regulate society through a
system of general and authoritative rules—crimes are specifically defined and
their punishment, GENERALLY applicable, not to specific persons only (groups is
another matter)).
3. Fair warning of rules: The general
and authoritative rules should give individuals fair warning: the rules must meet
these formalities:
a. enacted in
accordance with pre-existing legal rules—e.g. through formal, codified
lawmaking procedure
b.
made public—e.g. no hidden laws no one knows until violate
c.
in force for a reasonable period of time—e.g.
don’t change every day—then no way to keep track and know what law is
d.
reasonably clear in meaning and
specific in what they prohibit---e.g. no vague law against “unpatriotic
conduct”
Also,
no one can be guilty of a crime without a law, and no punishment can exist unless
a crime was committed. (“No crime without a law, no punishment without a
crime”)
e. applied
prospectively (to future only; not retroactive—i.e. no “ex post facto”
(“after the fact” laws)—e.g. can’t outlaw last week.
f. applied impartially—e.g.
police, prosecutors, judges, juries can’t simply enforce laws against people
they don’t like
4 possible to comply with--e.g. can’t require people person to stay at home and
report to govt. office at same time.
5. All person
must be given due process—that is, a
fair chance to defend themselves against formal charges that they’ve violated
laws—e.g. can’t try someone and tell them they can’t present any evidence or
testimony in their own defense. Or try
them without notifying them. “notice and an
opportunity to be heard.”
6. People under law: the sovereign
people ought to establish constitutional government and abide by its laws—i.e.,
under John Locke’s social contract theory, all government is from consent of
people and so people are sovereign, thus the people themselves must be under
law, not “above” the law. Otherwise, tyranny of the majority (mob rule).
*** key
to all this is that “rule of law” means NOT ARBITRARY POWER. Totalitarian dictatorship is the complete
opposite of rule of law. e.g. Saddam Hussein.
Notice there is no element
#7: “The substance of the laws must be
just.” Individuals, let alone nations,
can’t agree on what is “just” so every nation would accuse all other nations of
not having the rule of law:
But 2 FLAWs
with Rule of Law: (Basically, it’s the same point: there is not, nor can be, a perfect
implementation of the rule of law.)
1. If one follows the procedural rules
laid down by any rule of law, it is inevitable that some innocent people are
punished or are not compensated, and that some guilty people go free without
punishment or being forced to pay compensation. “[S]ince
the costs of operating a legal system free from errors would be prohibitive,
the best of real-world systems will exhibit a copious inequality of legal
outcomes”.--
Richard A. Posner, Problems of Jurisprudence, pp. 333-34.
2. Even if all the procedural rules are
followed, the substantive rules that come out might be themselves
unjust., That is, injustice will sometimes result from even the “fairest”
lawmaking procedure—e.g. violation of liberty of speech, religion, sexual freedom,
with prison.—e.g. Taliban, U.S. Slavery, Segregation, Soviet Union, Nazi
Germany—if you follow the rules, INJUSTICE results.. So what if SUBSTANCE is arbitrary? Is it still the “Rule of Law”? Was Nazi Germany fulfilling the “Rule of
Law”? Philosophers of law have heavily
debated this.
NUREMBURG Trials: Post WWII, Allied Powers enacted NEW
international law defining international crimes such as “war crimes” and “crimes against humanity.” Then tried Nazi leaders for
violating those crimes. Nazi
defense lawyers argued this violated the Rule of La. Chief Prosecutor, the Chief Justice of the
U.S. Supreme Court, Justice Roberts, argued it did not. Philosophers of law still debate this today.
***NOTE that NO system of law
can guarantee that the government or persons within government will ALWAYS
conform to the law.
So it’s not possible to have
PURE rule of law. E.g. there will ALWAYS
be some corruption, biased, arbitrary decision-making, innocent people
convicted, unjust or inequitable results from procedure OR substance, etc. So the question becomes one of practicality: is it possible to have reasonably
thorough/complete rule of law? Since
can never be a PERFECT rule of law, it’s a GOAL to strive for; an IDEAL.
***I.E. It’s never All-or-Nothing,
it’s a spectrum, so the question is to what degree
does any regime have the Rule of Law?
II. WHY HAVE LAW?
Positivist provides positive policy reasons that favor
the existence of government and laws:
1. Maintain Order—the
obvious one; prevent murder, kidnapping, rape, robbery, vandalism, theft, etc.
2.
(People can then choose to
avoid religious activity or continue and risk arrest).—e.g. Taliban outlawed
preaching of Christianity with notice
3.. Prevent corruption—if rulers had arbitrary power, many rulers would abuse power for own
personal gain rather than exercising power for the good of the people/society,
if those rulers had arbitrary power.
Look at wealth of Saddam Hussein, or former Soviet leaders . . .
4. peaceful
dispute resolution: Controls and channels disputes and vengeance
from limitless cycle of violence which harms innocents into nonviolent dispute
resolution. Ideally, to Prevent
violent crimes against people and property, b/c fights over scarce resources
(and other things) so resolves conflict through peaceful means
5. Economic prosperity depends on settled expectations of laws protecting
property, contracts, etc from violation from individuals or govt. E.G. if government can confiscate your
business, factory, land at any time, no one would ever attempt or invest in
such things.
BUT
anarchists make a moral argument that government/laws are IMMORAL:
Anarchy:
from Greek “an” = “no” or “not” and “archy” from “archia” meaning “rulers.”
Believe that all government is immoral, unjust, and simply a form of
enslavement. If one person makes me do
things under threat of physical force, it’s called “enslavement,” but if two
people outvote me and make me do things under threat of physical force, it’s
called “democracy.”? If one person makes
me give them money under threat of physical force, it’s “robbery,” but if two
people outvote me and make me give them money under threat of physical force,
it’s called “taxation”?
Human
nature: Idealism or Utopianism: ONLY anarchism typically assumes people are
inherently good or at least NOT dangerous, or have the POTENTIAL to be non-dangerous
if properly educated, and can all voluntarily live in peaceful harmony and
co-existence, and thus no government is (or will ultimately be) needed to
control them or to impose any moral or economic order. This may or may not be correct, but this theory
is usually referred to as an “idealistic” or “utopian” view of human nature.
Political Realism: Political realism basically is a political
and ethical principle that might is
right (i.e,
“might makes right.” Idea goes back to Thucydides’ Pelopennesian
War. Also Machiavelli’s The Prince.
H.L.A. Hart: The “command theory” of law; law is simply the commands of whoever
has political power.
Human
nature: Realism: ALL ideologies
and philosophies of government other than anarchism ASSUME PEOPLE ARE EITHER
INHERENTLY BAD OR AT LEAST DANGEROUS; that is, people are irrational, driven by
petty instincts, easily manipulated, etc. This is usually called a “realistic”
view of human nature. Thus, government
is needed to control people, to impose order (either personal moral order or
economic justice and order). And,
whoever has the most power will make the laws.
This is true at both the internal, domestic level within a nation, and
externally at the international level (international realism). In other words, nations will act in their own
self-interest, and go to war if needed to further their own self-interest.
PRACTICAL ARGUMENTS: we need government, and thus you should obey the
law, out of practicality.
P: Anarchism
is Too idealistic: As a practical matter, anarchism is too
utopian/idealistic--won’t work, because disorder, chaos, violence,
warfare.
A: a. we already have LOTS of violence and war
with government (including brutal oppression by police and military), estimates
are between 100-to-200 million people dies because of state-based murder in the
20th Century—e.g. WWI, WWII, Korean War, genecides
of Jews (Holocaust), Cambodians (Killing Fields), Hutus and Tutsis (Rwanda),
Stalinist purges in Russia; Maoist tyranny in China, etc. so it can’t be any
worse without government.
b. but more importantly, peaceful anarchism is Realistic:
1. Most people are good and rational, and thus will
voluntarily self-cooperate.
2. Social pressure will induce uncooperative
(anti-social) individuals to conform and cooperate, through ostracization,
insults, etc..
3. Private security and arbitration companies will
provide security and dispute resolution that people contract for.
4. If no
private companies, then people voluntarily work together to coerce (even
violently) social behavior from uncooperative individuals (i.e. if they ignore
contract obligations, steal, commit violence, etc.) e.g. neighborhood
would band together to stop violent resident.
5. (Anarcho-socialist) Most violence
is caused by inequalities of wealth. If
you eliminate government and property, this will eliminate poverty, and thus
there won’t be any reason for violence.
P: Little or evidence that anarchism could work:
All these claims that people would cooperate peacefully are purely speculative
(no evidence); and in fact evolutionary psychology shows that people,
especially male primates including humans, innately are inherently competitive,
aggressive, and seek dominance and hierarchical power.
A: Evidence of successful anarchism: Real examples
in history of successful (cooperative) anarchist groups: anarchist communes during Spanish Civil War,
Israeli kibbitzum, medieval Iceland, medieval
Ireland, “free cities” in medieval Europe; even during U.S. colonial period and
“wild west” often had no real functioning governments, but people (for the MOST
part) lived cooperatively and in peace. Also:
Police strikes—crime rate only goes up slightly. Also,
P: Isn’t
this a case of “the exception proves the rule?” i.e. if those are the
only rare exceptions you can come up with, it proves that the opposite case is
the rule.
NOTE: This practical argument kind of dead-ends in
speculation—would people choose government over anarchy if given the real
chance of alternative option? Would
human nature allow anarchy communities to survive and thrive in peace rather
than descending into violence and chaos, ruled by the most powerful gangs? This is mostly speculation,
that likely will never be answered definitively, because any truly
anarchic society would be quickly conquered by any neighboring state that
wished to do so. But then, doesn’t this
prove the political realist’s point?
_____________________________________________________________
So apart from practical
arguments, there are moral/philosophic justifications offered by why we should
obey law.
There is another OLD view of
where governments get their power and authority: up to and during middle ages,
"divine right of kings"—from Romans 13: 1-2
“"Everyone must submit
himself to the governing authorities, for there is no authority except that
which God has established. The authorities that exist have been established by
God." – NIV; god granted the king (and king's family) authority to rule,
so you couldn't disagree with king because that would be to disagree with
god. That’s HERESY/BLASPHEMY. Imprisonment, torture,
execution.
Social Contract Theory: Newer, current alternative theory morally justifying
government and law.
John Locke (English Philosopher) Two Treatises on Government
(1690) ***NOT first one to think of all these concepts, but developed them most
fully, presented most clearly and forcefully: Treatise One: Spends entire treatise rejecting divine right
theory.
Treatise Two: State of nature=pre-society
anarchy. People were born with
god-given, inalienable natural rights—life, liberty, property,
but state of nature left those rights unprotected. Government would protect life, liberty, and
property—so people enter into a "social contract"--mutually
agree to government (a “Civil Society”) for own mutual advantage
and protection; ONLY reason government exists is to protect your natural
rights: legitimate government power is
based on consent of the governed (popular sovereignty) because
the creator must be greater than the creation; thus, people have right to
change government if rulers break the social contract by interfering
with natural rights rather than protecting natural rights. (people are then
free to withdraw their consent from the current government (abolish the current
government) and put in new government.
Social Contract theory: No government (anarchy, "State of nature")
but have natural rightsà but violence between individuals (insecure protection for natural
rights)à so people form
"social contract"; "Civil Society" (government) to protect
rightsàpopular sovereignty
(people are supreme, so the only legitimate power comes from consent of
governed)à right to abolish
government (if govt. breaks social contract and infringes on natural rights)
NOTE that is a RADICAL idea at
the time. It directly repudiates divine right theory based on
Romans 13:1-2, saying part of the Christian New Testament is absolutely
false. AND calls into question the
authority of every ruler then existing on the planet, saying everyone one of
them is illegitimate.
Regardless, the key point here
is that since we’ve consented to be governed through a promise made in a social
contract, we’ve now become ethically/morally bound to obey the law.
OBEDIENCE TO LAW: Even assuming laws are made via
a social contract, there are lots of different thoughts as to when obedience to
law is morally obligated, on a spectrum from always to never.
Strong Positivist (It’s rare that one is a
pure utilitarian/communitarian/authoritarian/majoritarian/populist): —whatever society does in its own good
outweighs any individual interests, thus individual has obligation to
obey. If society thinks a law is good,
BY DEFINITION the law is good. Rarely
find—e.g. taken to it’s logical extreme conclusion, the majority could do
ANYTHING to a minority group: e.g. exterminate the minority e.g. a simpler example: against law to
hide Jews in Nazi Germany, but not too many positivists would say you should
follow that law.
Weak Positivist (most positivists): You can
disobey when law is “bad.” So what are “good” laws? E.g. “No motorized vehicles
in park.” What about ambulance to
rescue heart attack victim? What about
swerving across double-yellow line to avoid hitting pedestrian, when statute
doesn’t list any exceptions? What about
running a red light to take a dying person to the hospital? If you say the law should be disobeyed
because of some “higher principle” then that’s natural law.... AND since there’s no agreement about natural
law, then it’s arbitrary enforcement (or unenforcement);
i.e. that is, if people are allowed to disobey positive law anytime, then
doesn’t that violate the Rule of Law?
Natural Law Theory—Civil Disobedience—When
law is “unjust” or “immoral.” obedience is unjust. BUT PEACEFUL, NONVIOLENT disobedience.—e.g.
King, Thoreau, Gandhi (see the movie “Gandhi”) Thoreau’s Civil Disobedience and
King’s Letter from the Birmingham Jail are two of the most influential and
widely-read pieces on civil disobedience.
NOTE: Lawbreaking because of an appeal
to a “higher law” can be either peaceful OR violent (terrorism) (e.g. Nat Turner
who tried to help slaves escape, John Brown who tried to help a slave revolt,
etc. but also current Islamic extremists who believe they are following the
will of Allah) OR peaceful (underground
railroad, 60’s sit-ins protesting segregation, etc.).
Modern anti-abortion
activists: peaceful sit-ins and
demonstrations outside abortion clinics, or violent (bombings of clinics,
murders of doctors)
Natural law theorists say a
positive law that violates natural law is like counterfeit money: it’s fake, worthless,
it’s not “real, genuine” law.
Libertarians—government’s only role is to
protect from violence against person or property. All other laws may be disobeyed.
Thus, a government should consist only of a military
and police force, with minimal legal system, courts and prisons.
Anarachists (rare)— Disobedience is
ALWAYS morally permissible if it goes against one’s morals: No one, including the government, has the
“right” to rule another. We have natural
law right to life, liberty, and property.
In other words, we have a right to personal autonomy, to self-rule
over ALL our property, which includes our minds (speech, religion) bodies
(food, drugs, medicine, travel) and other property (housing, land, business, labor).
State control over ANY of these things (which really means state
MONOPOLY on legitimate use of coercion/force/violence to obedience by making
laws prohibiting or requiring conduct) violates our natural law right to CHOOSE
how to self-rule our life, liberty, and property, so natural law
requires/mandates NO government. So disobedience is almost always justified
(ALL laws may be disobeyed.) —there should be NO government, whether arbitrary
OR even operating under Rule of Law.
Thus, ANY government is illegitimate.
“Legitimate government” is an oxymoron. The ONLY obligation to obey is to laws that
are “good” or “just” or “moral” as we deem. Or, simply obey out of practical need to
avoid punishment. But there is NO moral obligation to obey law just because
it’s “law.”
***AND,
because any positive law in a democracy is arbitrarily made based on whatever
majority of citizens decide, and if it’s not a not a democracy then the law is
based on the arbitrary decision of rulers, then most/all positive law is
arbitrary, and thus the “RULE OF LAW” does not exist.
[[[This
is called anarcho-capitalism,
(or “right-anarchism”) to distinguish it from anarcho-socialism,
(“Left-anarchism”) in which all individuals would voluntarily
give up all right to property, so that there would be no such thing as property
rights, and thus there would be (allegedly) perfect equality of wealth and
power. But you don’t need to know these
distinctions. If you want to learn more
about it, you can go on the web and read up on it.]]]
BUT WHY would a positivist say
there is any MORAL obligation to obey positive law, besides the practical
reason that the state has a monopoly on the legitimate use of coercion
(violence) to enforce obedience to the law?
Where does this obligation come from?
This is the BIG problem for positivism:*** If
LAW IS NOT MORALITY, (if civil and criminal justice is NOT necessarily natural
justice) then where is the moral obligation to obey the law??? Let’s consider a
debate between a strong Positivist (P) and an Anarchist (A): (we’ll look at the
two extremes because of limited time AND the debate is more focused/sharp.)
PHILOSOPHICAL ARGUMENT
between a Positivist “P” and Anarchist “A”: (some philosophical, some
practical)
P: Social
Contract (express consent): In democracy, John Locke’s social contract
theory: GROSSLY SIMPLIFIED VERSION:
people come together to form social contract, and consent
to be governed, so we have voluntarily assumed an obligation to obey
government’s laws.
A: Never happened. There is no universal consent,
and certainly not express consent. We
are born, and find ourselves being governed.
No one today signed anything. (I certainly didn’t).
P: Implied consent:
A. By
accepting the protections and benefits of the state (police, roads) we take on
an obligation to reciprocate and obey law.
B. By
staying here under this social contract and not leaving, it shows you agree to
the terms.
C.
Voting (taking part in political system) implies consent to be ruled by laws
produced by the outcome.
D. Not
voting implies waives your right to object to laws produced by the outcome.
A: No choice: (in any of these)
A. (David Hume “Of the original contract”) But we are
forced to accept benefits we don’t want.
What right is there to force something on someone and then make them pay
for it? Then salespeople could leave all
sorts of things at my home doorstep that I don’t want and I’d be forced to pay
for all of it.
B. No
real alternative—there’s no other nation to go to where we can refuse
protections and benefits. EVERY country
requires obedience. It’s like waking up
on a ship in the middle of the ocean-if you don’t like the captain’s rules,
you’re free to jump overboard.
C. No
real alternative—like a slave given a choice between two masters, one who will
beat you six days a week versus the other who will beat you all seven days of
the week. It’s not a “legitimate” choice and thus does NOT imply consent to be
governed. That is, its
simply Satan versus Beelzebub. You don’t
want EITHER but you’ll at list pick the “lesser of two evils” if given the
chance.
D. No
real alternative—ballots don’t have “None of the above” or “no government” as a
choice. So the ONLY way to indicate withdrawn consent (that is, a lack of
consent) is to NOT participate.
P: “Hypothetical
consent”: if we had NO govt., we’d
be sick of constant violence, and we’d LOVE to have a state. We’re just spoiled and don’t appreciate what
we have, so if everyone were faced with the true choice, we’d all consent to be
governed and thus owe obedience to law.
A: Not true: Not EVERYONE would choose government—many
people would actually prefer no government, and can’t know about rest of
people. At least SOME people would
choose to live in government-free communities. And regardless, “hypothetical
consent” is never valid in any other area of law or ethics. Imagine the outrage if businesses could start
sending you bills based on the fact that you owe them money because you would buy the product if you only
understood how great the product is? Or imagine a rapist arguing a woman
“hypothetically consented” because she would
have consented if she only understood what a truly great guy he was? We don’t allow hypothetical consent anywhere
else, so why should the positivist be allowed to
assert hypothetical consent here?
***NOTICE. The Anarchist
arguably wins on the philosophical points.
Positivism has yet to philosophically justify a moral duty to obey positive law, beyond whatever positive laws
happen to coincide with natural law (e.g. don’t murder, rape, steal, etc.)
***
But maybe there’s a solution
for the positivist: what if the positive law expressly includes natural law—NOW
is there a moral duty to obey ?
BUT Can Positive Law
incorporate Natural Law? At least three ways one might do this:
1. Positive law outlaws
violations of the natural law: Problem: ESPECIALLY by charging someone with a crime,
this would violate the Rule of Law because that person would have no fair
warning of the law..
E.G. Government issues law that says:
“Any
violation of Natural Law is subject to a sentence of one year in prison.”
This violates the Rule of Law.
It’s the same thing as saying:
“Any
violation of the following three Natural Laws is subject to a sentence of one
year in prison:
1.
2.
3. “
This would violates
MANY principles of Rule of Law: (RECALL):
2.
General and authoritative rules: (crimes are specifically defined and their
punishment--(“No crime without a law”)
3.
Fair warning of rules: The general and authoritative rules should give
individuals fair warning:
(a) made
public—e.g. no hidden laws no one knows until violate
(b) reasonably
clear in meaning and specific in what they prohibit
*
(d) applied
prospectively (to future only; no ex post facto laws (ie.e
no retroactive crimes))
*
(g) enacted
in accordance with pre-existing legal rules—e.g. through formal, codified
lawmaking procedure
MAYBE it wouldn’t violate the
Rule of Law if EVERYONE agreed what those unspecified Natural Laws were. . . .
BUT since there’s no universal
agreement about natural law, applying/enforcing natural law would be totally
arbitrary—whatever people in government or majority of citizens thought it
should be at the moment. Again, it would
violate the Rule of Law.
AND the moment you actually put
the natural law into words, then it has become
positive law, not natural law.
HYPOTHETICAL DILEMMA: A nation
claims to uphold the Rule of Law as the highest principles of justice. But then there’s an ABSOLUTELY BARBARIC
crime, but there was NO positive law prohibiting it? The people demand “justice.” What does that
government do with the guilty person(s)?
Argue that the natural law was violated . . .
MOST FAMOUS EXAMPLE: Nuremberg Trials—after WWII, allied powers (U.S.,
England, France, Russia) adopted the “London Charter” which made several new
international law crimes, including “crimes against humanity” Then, charged high-ranking German
leaders and military commanders with “crimes against humanity” like genocide
and mass-murder (as well as other crimes), mostly because of Jewish Holocaust,
but also killing of homosexuals, gypsies, some prisoners of war, etc.
Prosecution argument:
“crimes against humanity” were unwritten laws that were violated, and
which overruled Nazi law. Thus, natural law IS Rule of Law.
Defendants said they “just
following orders” i.e. government law not only did not prohibit killing
concentration camp prisoners, the law REQUIRED killing them. Thus, they were UPHOLDING the Rule of Law,
and charge/conviction/sentence TOTALLY violates Rule of Law.
U.S. Supreme Court Chief Justice Jackson’s opening
argument as chief prosecutor for the allied powers: “…The fourth
Count of the Indictment is based on Crimes against Humanity. Chief among
these are mass killings of countless human beings in cold blood. Does
it take these men by surprise that murder is treated as a crime? . . .
“But if it be thought that the [
***A strong positivist would say the prosecution
violated the Rule of Law; a weak positivist, or a
natural law theorist would say it didn’t.
ANOTHER FAMOUS EXAMPLE:
East German Border guards that
followed law and shot people attempting to escape
What about a low-level Taliban
soldier that was “just following the law” to shoot individuals preaching
non-Islam?
1. He violated the law of nature so convict?
2. He was following the written law established by
government so acquit?
My-Lai massacre . . . U.S. troops in the village of My Lai during the
Vietnam war were ordered by their commanding officer (Lt. Calley)
to kill everyone—men, women, and children because (according to Lt. Calley) they might be Viet Cong troops or even suicide
bombers, etc. In the heat of battle,
most soldiers obeyed, and most of the villagers were shot to death, including
many young children; only a few survived or were rescued by one U.S. helicopter
crew who saw what was happening and rescued some of the villagers from the
Massacre. The servicemen’s defense was
that they were “just following orders” from Lt. Calley . . .
Their commander Lt. Calley was prosecuted but
eventually pardoned.
2. Have the positive law
protect natural law rights:
The U.S. Constitution tried to
include open-ended natural law in its positive law, not as crimes, but as
RIGHTS: 9th Amendment (1791): “The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.”
WHAT “other rights”? A majority of the Supreme
Court has never applied the 9th Amendment, because of the
impossibility of achieving consensus on what that means. It’s the Judge Robert Bork ink-blot
problem: it’s as if the Framers said
“The other rights are *************” but someone spilled ink on the copy
and its forever unreadable. It’s
meaningless to enforce, so it’s as if it wasn’t even written. There is no PRINCIPLED way of interpreting
these rights, so the only option is to say the language is meaningless.
3. Have the positive law include the natural law
as a DEFENSE against violation of other positive laws.
Anglo-Saxon Common law
includes the defense of “necessity.” You can break the law if it
is “necessary.” What is “necessary”?
Isn’t this an attempt to apply natural law without expressly saying so?
Basically yes. The natural law excuses
violating the positive law.
Model Penal Code definition
of necessity defense: "Conduct
that the actor believes to be necessary to avoid harm or evil to himself or to
another is justifiable, provided that: . . . the harm or evil sought to be
avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged."
Federal caselaw
definition of necessity defense:
Necessity case:
Necessity Defense: the defendant must show
(1) defendant "act[ed] to prevent 'an imminent harm which no available options
could similarly prevent.'" i.e. ONLY choice left.
Political system to change law IS an option—e.g. smuggle
non-FDA-approved drugs into country.
AND (2) defendant reasonably anticipated the
existence of a direct causal relationship between his conduct and the harm to
be averted.
i.e. your action would have
made the difference—e.g. “no vehicles in the park” but an ambulance must come
into the park to rescue a heart attack victim or “no crossing the double yellow
line” but you swerve over it to avoid hitting a child that suddenly ran out on
the road. These would be allowed by the
necessity defense. But NOT your entire
house is in total flames so you smash through your neighbor’s garage door to
get to a garden house, because a garden hose would make no difference in
stopping a raging fire.
NOTE anti-abortion extremists
and animal rights activists have tried to argue the necessity defense in
prosecutions for attacks on abortion doctors on clinics, or destruction of
animal labs. So far, they have not won
those arguments in court.
Relationship between necessity and civil
disobedience:
Civil Disobedience:
you think the law itself is immoral—e.g. slavery,
segregation. taxes?
ban on assisted suicide?
Necessity: you
think the law is moral in itself (generally), but its application would be
immoral in a particular circumstance.
What about smoking marijuana
as necessary to treat cancer or other medical ailment? euthanasia? doctor-assisted suicide?
Smuggling non-FDA-approved medicine (but approved by
Examples of successful
implementation (besides several states in cases of medical marijuana use)
California
v McMillan, 1988. Defendants
blockaded Diablo Canyon Nuclear Power Plant.
Judge allowed testimony about seismic instability in era, and
defendants’ fears. Judge acquitted the
defendants.
Chicago
v Streeter, 1985. Defendants
occupied South Africa Consulate protesting apartheid. Judge allowed necessity defense. Jury acquitted the defendants.
What about a trolley driver,
who suddenly realizes the breaks have gone out. He can do nothing, and let the trolley go
straight and run over five people who have their back turned and don’t see the
trolley, or he can veer off onto another track, where only one person is standing
with their back turned. . . . If he veers off and the trolley kills the one
person, and the driver is charged with murder/manslaughter, can he use the
necessity defense?
Or a person is hiking in the
jungles of
A doctor has five patients who
need immediate organ transplants. Two of them need a lung; two need a kidney;
the fifth needs a heart. A man walks into the doctor's office for an annual
check-up. The doctor kills the man, gives his lungs to the first two patients,
his kidneys to the other two, and his heart to the fifth, thus saving five
lives for the price of one. . . .
***BASICALLY what we as a
society have said (both our nation and the international community of nations)
that if you violate the positive law because of your conception of natural law,
the burden is on you to defend the action as consistent with natural law, AND
if you obey the positive law in violation of the natural law, the burden will
ALSO be on you later to explain why it was NOT a violation of natural law. In other words, you’d better be careful that
you ARE following the natural law (whatever that is.), whether you are obeying
OR disobeying the law.
WHO SHOULD MAKE THE LAWS?
Autocracy--rule
by one (e.g. monarchy=royalty (king/queen); dictatorship)
Oligarchy--rule
by elite few (e.g aristocracy=rule by “the best,” plutocracy=rule by
wealthy, theocracy=rule by religious
rulers; e.g.
Democracy--rule
by “the people” (many/everyone (in theory))
Direct
democracy=every citizen votes directly on all the laws
Representative
democracy: citizens choose a
small group of representatives from their population, who then make the laws.
Consensus
Democracy: everyone must agree
to all political decisions—i.e., unanimous agreement of population required for
lawmaking.
Democracy—Defenses
and Critiques
Our entire legal system is
based on democratic theory—i.e., that democracy is the best form of government,
and thus laws should be made “of the people, by the people, and for the
people.” But this is a massive assumed premise. If democracy is not the best form of
government, then this calls our entire legal system into question. So what are the arguments for and against
democracy? Typically, the main argument
against democracy would be an argument in favor of aristocracy (rule by “the
best”— i.e., the smartest, most educated, most wise, most noble, most good,
etc.) So, let’s look at an imaginary
debate between a clever democrat (small d) and a clever aristocrat.
Is democracy the best form of
government? Imaginary
debate between a clever democrat (small d) and a clever aristocrat.
Practical Arguments:
D: Democracy holds leaders
accountable through regular elections, thus preventing waste, fraud, abuse,
corruption, tyranny, etc.
A: All these can and do happen in democracy
also. And in democracy, leaders simply
bribe the public to stay in power. So
democracy is just bribery on a larger scale.
In aristocracy, leaders would not need to be corrupt.
D: Democracy gives the people
what they want (self-governance by definition will be people giving themselves
what they want).
A: Any form of government can
do that, including aristocracy.
D: Only in democracy can we
know the people’s desires—through democratic elections.
A: 1. No—opinion polls, etc.
2. Arrow’s Impossibility Theorem—no method
of vote counting guarantees accurate reflection of public’s desires.
3. Goal of government should be meeting
the people’s interests, not
desires. Experts would know best.
D: People know best what is
good for themselves.
A: No. In medicine, piloting, etc., experts know
best. Same with government and laws—need
expertise in policy, human psychology, etc. is needed, or else bad laws, and
demagogues.
D: Combined, collective
wisdom, two heads are better than one (Condorcet’s Jury Theorem).
A: CJT works only if (a)
everyone is more likely right than not, and (b) everyone votes in public
interest, not selfish interest. As
history shows, both conditions are often not met, and mistakes and bad laws
result (Slavery, Prohibition, Iraq War WMD’s, etc.)
Experts would be better, and more likely to fulfill both
conditions, or at least the first part.
So, as a practical matter,
democracy often reaches bad policy, but it arguably limits government abuse and
corruption by placing a system of accountability (regular elections) on
government officials. But what if you knew
or could guarantee that a group of aristocratic
experts would NOT abuse power or become corrupt. Then wouldn’t aristocracy be
the best form of government because it would result in the best
laws/policy? The person favoring
democracy over aristocracy must now turn to some more philosophical
justifications for democracy.
Philosophical Arguments:
D: Even if democracy results
in bad policy and laws, democracy is still intrinsically
good (intrinsically better than the alternatives) because it promotes freedom,
equality, and self-determination. First, freedom to choose one’s own leaders and laws.
A: That’s a circular argument: freedom to choose one’s own leaders and laws
is the definition of democracy.
D: Equality: everyone is treated as a
political equal, worthy of equal dignity and respect.
A: 1. Some respect
maybe, but why equal respect or respect as equals? We give different respect to
people based on economic, social, cultural, legal, moral, intellectual,
artistic, and physical achievements, abilities, beliefs, behaviors, choices,
characteristics, etc. Beliefs and
opinions of experts educated and trained in good public policy and laws deserve
more respect than the beliefs and opinions of the ignorant, uneducated
masses. Aristotle: “injustice occurs not
only when equals are treated unequally, but also when unequals
are treated equally.”
2. representative
democracy by definition gives more respect to the opinions of leaders who are
popular (i.e., elected). Only direct
democracy or representation by lottery might perhaps give equal political
respect to the opinions of everyone. But
again, expert opinions deserve more respect.
D: But equal voting rights gives equal respect
to people’s self-determination—i.e. equal respect to people’s right to
control their own lives via the laws that effect
them. Thus, everyone is treated as politically
equal.
A: But this doesn’t happen in any type of democracy. 1. The majority’s wishes are given more
respect, by forcibly imposing its wishes on the minority. The majority controls the minority. 2. Iron Law of Oligarchy—regardless of
political regime, power always concentrates in a relatively small percent of
the population--an elite few, rich and powerful. Their
wishes are respected more. There is no
political equality.
D: The problem of majority
tyranny is solved by having a bill or rights: limit the majority
imposing its wishes on the minority.
A: No. 1. This admits the
majority often makes bad decisions. 2.
Then the minority’s wishes are given more respect than the majority’s. Thus, without BOR: tyranny of the majority,
with BOR: tyranny of the minority. Either way, people’s
wishes how to control their own lives are not
given equal respect. Again, there is no
political equality in democracy.
D: “Consensus democracy”: everyone must agree, then everyone’s
self-determination given equal respect; i.e., everyone is politically equal.
A: 1. Impossible to achieve—always disagreement,
someone/group with more power must set voting agenda, no time for everyone to
study all possible laws and the debates thereof. 2. undesirable--Much
more to life than endlessly discussing every possible collective human
decision. People need to grow food,
build shelters, enjoy life spending time with friends
and family!
D: Even if people aren’t truly
political equals, and even if they aren’t given truly equal political respect,
an equal right to vote serves as symbol to make people feel they’re all political equals. Hence, people are happier having their egos
stroked by being treated as if they are political equals (even if they in fact
are not).
A: 1. then democracy is based on a lie (a noble
lie?) 2. then democracy is based on people’s desires (to feel good about themselves).
Good government should be about the best interests
of the people, not their desires. Thus,
experts would know better.
CONCLUSION: Notice that although our legal system, as
well as the “western, industrialized” legal systems all simply presume democracy is the best form of
government without question, it’s not so easy to justify why laws should be made on a democratic basis, rather than by
experts . .
***End of material for exam
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