Saturday, July 29, 2023

#210 / The Laws Of Power And The Rule Of Law


There are two sets of laws that people live by. The first are the primordial Laws of Power. These are the rules of the jungle; eat or be eaten. The second set of laws undergird a democratic society; a mutual agreement to live by the Rule of Law. These two sets of rules are in absolute conflict with each other. The Rule of Law is a relative newcomer, where the Laws of Power can be traced back through human history. I propose that the Rule of Law was developed to thwart the Laws of Power and level our playing field. The Rule of Law is a prerequisite for pluralism to survive and flourish in a democratic republic.

      - Debilyn Molineaux

Debilyn Molineaux is the President/CEO of the Bridge Alliance. According to its website, the Bridge Alliance is a nonprofit organization that hopes to "join citizens from across the country to bridge the divides that separate us and help fix our political system now."
That sounds like a pretty good objective, right? I don't want to say, "no; no it's not," but I do want to suggest that efforts to "bridge divides" can, possibly, misdirect our efforts to achieve that "Rule of Law," which I do agree we ought to be striving to achieve. My point is that the "Rule of Law," properly understood, does not "bridge divides," in the sense that it reconciles differing views of what we, collectively, ought to do, and thus eliminates "conflict" and "division." 

In fact, the way I see it, the "Rule of Law" is defined by the idea that "we," collectively, "make the law," and that the "law" that we decide upon and establish today can be reversed by some other, quite different, and completely contrary "law" that we decide upon, tomorrow. 

Conflict and division, in other words - what the political theorist Hannah Arendt calls "plurality" - is absolutely a "feature," not a "bug," of our democratic political system. A felt necessity to bring everyone together to agree that one thing is "right," and that some different thing is "wrong," is exactly what leads us into the kind of polarization that the Bridge Alliance deplores and wants to eliminate. 
We don't need to agree on what's right and what's wrong - in fact, we won't be able to, and we shouldn't want to. A society in which only ONE thing is considered to be "right" is commonly called "totalitarianism." What we do need to agree upon is the process by which we will decide what we, the people, will actually do, and the process by which we will determine how our collective power will be deployed. We need to decide, in other words, on how we will determine what the "law" will provide. 
My "equation," frequently displayed in this blog, and on the blackboards of the classes I teach in the Legal Studies Program at UCSC, is helpful in making the point: 

We do govern ourselves by "law." In other words, to understand "government" - the rules that will apply to all we do - we need to work from the right hand side of the "equation," above, and move, one term at a time, towards the left hand side. That is where "politics" is found, at the origin, and that is where the equation of self-government begins. Another way of saying this, which has given me the title under which I write these blog postings, is that "we live in a political world." We live in a world in which what happens, and how we are governed, is determined by laws, and WE make the laws, as we engage in the political process that ultimately determines what those laws will say. 

To think we can "bridge divides," in the sense of getting everyone, or the vast majority, to come to some Kumbaya moment and agree on everything is not only fruitless; it's dangerous. As I say, "totalitarianism" is the name given to systems that refuse to recognize the fundamental "pluralism" that is inherent in our human community and human condition. 

Note that Molineaux's statement, printed at the top, agrees that "pluralism" is what we need to maintain. As long as we understand the "Rule of Law" to be a "rule" that grants political power to those entitled to wield it, according to the political principles we have agreed upon, I am right in tune with what Molineaux has to say. I just want to emphasize that the politics of American self-government does not contemplate that we will "agree," except to the idea that the political process is the way that we will decide how power is deployed, and by whom we will give the right to deploy it. 

We yearn, all of us, for tranquility and agreement. If we believe in self-government, let's not get too starry-eyed about "bridging divides." Let's just be absolutely clear that what Molineaux is calling for is not a system in which conflict and division disappear; she is calling for a system in which real power (the power to tax, and the power to spend, and the power to punish, and the power to determine the goals towards which we will, officially, bend our efforts) is a power that belongs to "the people," and that what Abraham Lincoln called for in the Gettysburg Address, at the moment in which we renewed our commitment to this nation, is a government "of the people, by the people, and for the people." 

A government that is, truly, "by the people," is a government in which we, the people, make the "laws" by which our nation is ruled. It is "politics" that will decide who has the power to make those laws, and what those laws are, and thus how we will govern events in the world in which we live. If YOU are not engaged, personally, in politics, then you are letting someone else use the power that belongs to you, and to all of us. "Elective autocracy," which I inveighed against about a month ago, is the opposite of self-government, and it is genuine self-government that comes directly from the "Rule of Law," as the "Rule of Law" is properly understood. 
The "Rule of Law," properly understood, puts politics first.

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