Eric X. Li, whom both YinYang and I know personally, recently gave this TED presentation on the ideological worship of two political systems – communism … and electoral democracies. As usual, I find Li’s perspective insightful and interesting. It certainly takes guts to stand up and speak against the predominant religion in the world! Now I appreciate even more how Galileo must have felt in confronting the Catholic Church!
I do want to make a quick note about one of the two questions the host at Ted asked of Li at the end of the talk. The host asked about how a non-elected government can legitimately set the agenda without feedback in the form of contested elections. Li talked about how the Chinese government – at all levels – takes surveys of the people on all types of issues, from what people think of the garbage collection at a local level to what people think about the direction of the nation on a national level.
This exchange reminded me of the adversarial vs. inquisitorial approach to resolving legal controversies. In the adversarial system, the judge is the passive party, resorting to hearing the parties fight it out and then making a decision based on evidence and theories put forth by the parties. In inquisitorial system, the judge takes an active role in assessing the nature and scope of the controversy, and making a decision based on evidence it gathers and theories it confers.
Democracy is like the adversarial system, with the government waiting to hear the people to sort out a “people’s voice” and then forming policies based on “mandates” that the elections supposedly confer. Meritocratic democracies like China is more inquisitorial, with the government going out to gather facts and listen what the people needs, and then formulating policies based on its efforts at reaching out. The legitimacy here – the heaven’s mandate if you will – comes from the government’s actions and performance, not electoral ideology and games.
Now neither Li nor I will argue one is universally necessarily better than the other, but just as one is willing to hear the pros and cons for adversarial vs. inquisitorial approach to resolving legal controversies, people should not be afraid to hear the pros and cons for electoral vs. meritocratic democracies. I don’t understand why it takes an Eric Li to stand up to say something similar.
Anyways, without further ado, here is the video to his talk.
From TED:
[ted id=1778]
From Youku (with Chinese (and English) subtitle):
Zack says
honoured that my find became a new post 😉
i did think it was funny in this day and age that Li had to emphasize that he wasn’t ‘put(ting anyone) down’ when he was comparing China’s meritocracy with how Bush and Obama acquired power. It shows the sense of unease and insecurity amongst the Westerners in his audience who’ve been raised on nothing but the orthodoxy of liberal democracies being the only system of worth. This sense of unease and insecurity can only be enhanced given the policy failures of more than most liberal democracies in the wake of this financial crisis.
In addition to how the West must alter their approach to China and do away with old prejudices and superiority complexes in favour of realism and partnerships:
http://www.chinausfocus.com/foreign-policy/blind-men-and-the-elephant-why-the-world-misunderstands-china/
N.M.Cheung says
Interesting, the day after Eric Li’s TED presentation, there was an immediate response from Yasheng Huang critiquing him. Eric Li has been self deprecating and calling himself a Berkley hippie. Professor Huang used that quote 2 or 3 times more as an arrogant rejoinder contrasting his education from Cambridge, Mass. He used the wealth of the West in general to somewhat belittle China’s achievement forgetting Li’s assertion of the West’s wealth mostly from the colonial pillaging. He excused the low growth rate as because of the mature economy. He questioned the public opinion survey as meaningless due to control, and he asserted India’s TI index being more meaningful because the democracy has more transparency and corruption is more reported there. Using I bribe.com forgetting the Weibo from China. I suspect he used the Mao era rather than the last 35 years to bolster his points.
Allen says
@N.M.Cheung
The link to Prof. Huang’s critique – for those interested is here – http://blog.ted.com/2013/07/01/why-democracy-still-wins-a-critique-of-eric-x-lis-a-tale-of-two-political-systems/.
According to this page, http://www.awpagesociety.com/speakers/li_eric/, Eric holds a MBA from Stanford Business School and B.A. from the University of California, Berkeley, and a Ph.D. from the School of International Relations and Public Affairs at Fudan University. That’s not shabby – even when compared to Cambridge.
I don’t know if it’s worth my writing a response to Prof. Huang’s wordy and long-winded response. If anyone here thinks it is, let me know.
Black Pheonix says
Prof. Huang may question Li’s data as he wishes.
The only real data, which exclude any possible invalid comparisons, is how “Democracy” is comparing to its own history.
And Li is correct on this comparison.
The West is clearly declining in influence without traditional conquests and colonial exploitations as advantages.
That should say every thing about how much “Democracy” really mattered in the West.
colin says
Excellent talk. Thanks.
Interesting seeing all the comments on the ted site, many of which bash ted for even allowing such a sacrilegious talk to be published. The outrage! The collective ignorance and blindness is amazing. “Democracy” truly is the new religion of the west.
Too many confuse what defines a good government. Li nailed it – competence. If your very culture has n hatred of intelligence and science – and indeed FACTS, how do you expect your population to elect competent leaders?
melektaus says
China is not just a meritocratic democracy (which no doubt it does have significant elements of as Li pointed out). It is also a deliberative one which focuses on ongoing relationships focused on the processes of discourse (between no just party members in the gov but the society as a whole and the surveys Li talked about are just one aspect of that continuing discourse).
https://hiddenharmonies.org/2012/02/rethinking-democracy/
Since I *do* think some forms of democracy are superior to others I think the US should adopt many aspects of the Chinese system (taking corporate money out of gov is a very first step). The electoral democracies end their public discourse once the election is over (if there ever even was one).
Black Pheonix says
@colin
I think I called it the “Vatican of Democracy”.
Black Pheonix says
@melektaus
There is nothing wrong with Democracy, except when it is used for the wrong purpose.
N.M.Cheung says
Very little from the main media on the Bolivian President’s plane refused air passage from all those European countries. The question whether this is a violation of international law. The rule of law seems to be powerless against power of the empire.
Black Pheonix says
http://www.nytimes.com/2013/07/04/world/snowden.html?pagewanted=all&_r=0
President Cristina Fernández de Kirchner of Argentina said the episode had “vestiges of a colonialism that we thought was completely overcome,” describing it as a humiliating act that affected all of South America.
N.M.Cheung says
In today’s NYT , David Brook commented on the coup in Egypt by differentiating the process with substance. He claims that the process of democracy is not as important as the result. I wish all those who criticize China use the same argument that they apply to Egypt. While in China the process has been improving dramatically in the last 35 years, not to mention the substances unmatched in the world.
Allen says
People also keep saying China has no rule of law even though it has good laws on the books, citing usually the role politics play in judicial making.
Well … here again, too, even without getting into details of the role politics plays inherently in the rule of law, there is hypocrisy.
See, e.g., http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?_r=0.
melektaus says
@Allen
The rule of law actually has little to do with laws as written in the law books. It has to do with law as practiced. Just as the US has the most stringent laws “in the books” about protecting individual rights from the government in reality that is all worthless because those laws are not put in practice and thus there is no *rule* of law. There may be law in some sense but the *rule* of law is not there.
Black Pheonix says
The term “rule of law” came about in Medieval England, when William the Conquerer was forced to rely upon local feudal lords of England to enforce his rule. The Feudal lords subjected their own serfs under different local laws and sometimes no laws at all.
William’s younger brother John later upon inheriting the crown, change the system to standardizing a more uniform legal code for all of England, sending traveling judges and lawyers to enforce the laws of the Crown, abolishing the barbaric “trial by combat” in favor of a “trial by jury” system.
“Rule of law” basically meant a more uniformed legal system where application of law is more standardized, but it is very relative.
In its original meaning, any standardized system of laws is “rule of law” compared to Feudalistic legal system.
However, relatively speaking, the “dual track” Federal vs. State legal system of US is very “feudalistic”, where each state has its own interpretation of laws and designed to protect local elite interests.
If we are to discuss “rule of law”, I would consider the single unified legal system of China to be far more “rule of law”. (Although “one country, two system” violates that spirit somewhat).
melektaus says
@Black Pheonix
The rule of law, as I understand it, is not just about making laws uniform and standard. The main focus of the rule of law is making laws as nonarbtitrary and the least unfair as possible. Standarization may facilitate the process by making laws more easily understandable for everyone, efficient and less prone to arbitrary abuses through malfeasance, ignorance or corruption but standarization is not itself the end of the rule of law. Granted laws will never be completely fair and non arbitrary. It will always have elements of arbitrariness and as for punitive law, a degree of totalitarianism. But it is a practical procedure of governance with a goal at the end.
Black Pheonix says
@melektaus
As I said, “rule of law” is always relative. There is no end of it.
As no legal system can be completely nonarbitrary (given that some discretionary authority always exist in the administrators and judges of laws), and no legal system can be 100% fair, it is always debatable which systems of laws are necessarily more “rule of law” vs. “rule of men”.
And really, some times, “rule of men” can be more merciful and more fair than a rigid system of “rule of law”, because every situation for application of law is unique and different from others.
This is why Judges in US are often given a lot of discretions during passing of sentences. Some murderers are given far more lenient sentences than others.
But on the other hand, such discretions are also easily abused. As some mentally disabled kids are sometimes given harsh adult punishments, and where Wall Street market cheaters are give only slaps on the wrists.
**Thus, on that note, I think the narrative today is too imbalanced, with an erroneous assumption that some how “rule of law” is the end goal of justice and legal systems.
That assumption is wrong, because we know even in US legal system, justice cannot be served, unless “rule of men” is properly balanced against the “rule of law” in the equation.
melektaus says
@Black Pheonix
Always releative to what? And how is it relative to that (whatever it is)?
End of what? Are you purposely trying to be obtuse and vague or does this reflect your thinking?
This is the dumbest non sequitur I have ever heard on this blog. How does it follow (hint: it doesn’t) that just because something is not 100% fair that it is debatable which systems of laws are necessarily more “rule of law” vs. “rule of men”.”? That doesn’t make any sense. It makes even less sense than your average post. That’s like saying because no one can’t live forever, it’s “debatable” whether people die at different ages. No, it’s not “debatable”. People do die at different ages. That’s a fact. You don’t like facts. We get it. No one cares for your confused post modernist claptrap thoughts.
That’s great but how is that relevant to anything that has been said?
I’ve read plenty of your posts. Few of them make any sense whatsoever. I just have one question for you: Are you on drugs?
YinYang says
Guys – allow me to barge in with this thought. Think back to the height of various Chinese dynasties. Let’s pick the Tang dynasty. In terms of laws on the books then, I would venture to guess compared to the volumes in the United States today, there’d been hardly any. Undoubtedly, at those periods, Chinese society flourished. So, I would argue, it was rule by cultural norms which permitted incredible wealth, freedom, inventiveness, and all sorts of progress.
Now, fast-forward to modern societies. Let’s look at companies. I have seen companies with a lot of process rigor. I have also seen some with barely any formal procedures. Both types could thrive. Both types could fail.
You could argue, laws can be written with absolute meaning and clarity. But the problems along the way in fully realizing the benefit from it are many. Ignorant public. Influence of money. Many of which you guys have discussed.
So, rule of law is simply one of many tools of society.
I put it as one of many “tools”, among which is a collection of enlightened leaders who can exemplify virtue and competence.
I see culture as another within that tool set. For example, respecting elders and giving them deference.
If we look at Western societies today, I would say there is a culture of hate for a lot of things. There is an imbalance: many injustices.
I have seen organizations with a lot of formal processes and employees follow them sincerely. That worked wonderfully.
On the other hand, I see a lot of energy invested in the laws with complete dysfunction. I know of a SW manager, which I won’t name, who believed in process rigor like a religion. He banked on it to solve all software related issues within his organization. He had a boss who also believed in it like a religion. What imbeciles. They both lacked leadership. They both lacked subject matter expertise. It was a disaster waiting to happen. And disaster happened.
Allen says
@melektaus
Of course. In fact, why have laws (or even just rules), if you can’t get them right? An inherent part of any system of “rule of law” is to have a just, good, right set of laws.
But the very contention of what is just, good, and right must be a political issue. That is, it must be something that the populace buys into as legitimate and just and good and right. Can this happy state be captured by rules – laws?
It’s my open contention that it cannot. The human condition is complex and they always change – and as they change, the things people focus on, the things people fear, the things people treasure, the thing people value necessarily change.
I used to read science fictions (and believed in them) where artificial intelligence is so developed that computers can scan the annals of human knowledge and derive the laws that are most just. Instead of judges, human conflicts will be solved by consulting with these artificial intelligence masters on what is the just thing to do.
Perhaps that’s still a possibility. But having been immersed in law – the history and philosophy of Western law – I have come to the belief that there is never an immutable just set of laws. Laws will have to forever come to serve people’s evolving values and outlooks and people’s evolving values and outlooks will be continually molded and defined by the prevailing politics.
In the end, what is right and just will be set and informed by a continual process of politicking. If the environment is right, the political situation of the times will create a just society. The process may involve law, good and wise leaders, an informed and prosperous citizenship, a good and fair economic system, etc., etc. – but the law per se cannot bring about justice.
melektaus says
@YinYang
I have never seen a modern country without very basic rule of law. Granted it may be possible to build such a society but is it probably that a modern society can be built without minimally adequate laws to promote basic everyday activities and business? I think not.
But who would argue this? I don’t think laws can ever be made absolutely clear, without any ambiguities or vagueness and I don’t know anyone that thinks this. I don’t even think mathematics can be absolutely made without any kind of linguistic/conceptual imprecision. But that doesn’t mean that law or mathematics don’t have practical usages. Both are great tools for human society. One day we may have tools that are even better but now no one has a better idea how to organize society than fair, unbiased laws etc.
The companies you know that have prospered without “formal procedure” all have fair, non arbitrary, practical rules of dealing with its employees. When those rules are broken there are clear consequences for those breaking them. Whether those rules are “formal” or not is irrelevant. Like I said, the rule of law is really about how laws are practiced, not how they are formally encoded.
melektaus says
@Allen
Certainly at least some of it can? For example, murder, theft, rape, and a host of other things, almost everyone in society agrees ought to be stopped. There ought to be as little of that stuff as possible. Sure, there will be points of debate on some issues but I don’t see that as a bad thing.
It maybe complex but you have to remember that human beings all have a common evolutionary ancestry and because of that common ancestry, there will be similarities across cultural boundaries. We are endowed by nature to see something as wrong because they are bad for society (and thus for the flourishing and propagating of genes etc). As Confucius said, human beings differ by upbringing and culture but at heart, we all care about the same things and have a basic nature that is the same. I think that is a bit of an exaggeration but for the vast swathes of humanity, it is true. We have to make the laws that benefit as many of these people as possible. A few will not benefit under any system of just laws (psychopaths for example might be seriously harmed by just laws) but who cares?
Agree.
Black Pheonix says
@melektaus
It’s a bit contradictory to call statements “dumb”, if they don’t make sense to you. If it was meant to be insulting to me, it doesn’t make sense to me, because I’m sure there are lots of things that don’t make sense to each of us.
For example, your comparison of logic, from “rule of law” to “age”. That makes no sense to me. Age is measurable. “Rule of law” is not a “fact”.
And I have already illustrated, “rule of law” is relative, depending on the contemporary standards within each legal system. I.e. a system of law may be deemed to be less “rule of law”, if it brought back legal processes already abolished as obsolete. “Trial by combat” for example.
*Regarding your comment:
“Certainly at least some of it can? For example, murder, theft, rape, and a host of other things, almost everyone in society agrees ought to be stopped. There ought to be as little of that stuff as possible. Sure, there will be points of debate on some issues but I don’t see that as a bad thing.”
Agreement of the abstract principles are not law. You need to define what is “murder” 1st, which is where all the disagreements in society are. Systems of laws are not written to define abstract principles, but to hammer out all the differences down to agreements of laws (which usually are temporary and thus subject to interpretation).
1st degree murder, 2nd degree, manslaughter, self defense, etc., that’s where the laws try to settle the differences between people’s variable sense of justice and definitions of crimes.
We don’t write laws to acknowledge obvious agreements of principles. We write laws for the differences of opinion.
“There ought to be as little of that stuff as possible.”
You have to define what “that stuff” is, and what cost would be for the “possible”.
I can’t disagree with abstract moral principles, but they are not law, not “rule of law” any way.
Hence, the differences of opinions for the specifics of law is where the “relative-ness” exists. You may like capital punishment for 1st degree murderers, I may prefer life in prison for them. Which one of those sentences will keep “that stuff” as little as “possible”? Which one is more fair? I don’t know. You may think you know, and you are entitle to your opinions, but so are everyone else. Who is to say which one is better in “rule of law”?
I think you seek commonality and simple rules in vain. Confucius recognized that every student / person is different, and must be thus taught differently. If a single set of rules of teaching did not work for Confucius in his classrooms, then nor can a single set of rigid laws teach human beings to avoid “that stuff”.
Black Pheonix says
@melektaus
“You don’t like facts. We get it. No one cares for your confused post modernist claptrap thoughts.”
I disagree. I like facts. I like to argue with facts. Thus, we have differences in interpretations of facts. Those differences may be confusing, but I don’t know where you get “post modernist claptrap” from. I’m pretty sure that there have been many historical differences of interpretations of facts, especially in matters of interpreting laws and the meaning of “rule of law”.
I’m almost flattered by your characterization of my thoughts as “post modernist claptrap”. It sounds almost fashionable. 🙂
But seriously, I don’t think your characterization of my thoughts is very fact based.
YinYang says
So, folks, can I summarize this way.
We all agree:
1. Rule of law is important; societies cannot function without it.
2. Rule of law is a tool, and like all tools, is subject to the imperfection of society as they wield it.
3. “Rule of law” as used by the West in the context with China is mostly about propaganda. More specifically, they say China doesn’t have “rule of law” when China takes steps not politically aligned with the West. When China takes steps politically aligned, only then is praised allowed.
Black Pheonix says
@YinYang
1 thing I like to add is that Traditional Chinese notion of “law” tend to focus on prohibition of wrong types of conducts. This used to be tradition of laws in Judeo-Christian cultures. Most laws were written in prohibition form. 8 out of the 10 Commandments started with “Thou shall NOT ….”
However, somewhere along the Western tradition, the focus of legal systems shifted toward “negative rights”, that is, rights that others cannot violate. (I think, this became a stand alone legal concept when the English enshrined the rights of their Nobles in the “Great Charter”, Magna Carter).
This was the flip of the Prohibition style laws. Instead of the laws listing out all the possible wrongs prohibited, it listed out “rights” which cannot be harmed. Thus, any actions that harmed “rights” would be wrong and prohibited.
This in theory made laws easier to write, but it also made it fuzzier and more difficult to interpret, because “rights” inherently is a made up concept, and a very abstract concept. If people can’t spell out exactly the nature of “rights”, how do you know when “rights” are actually violated??
This development actually made “rule of law” more difficult to implement.
So today, what we see in the West, is a MIX of “prohibitive style laws” and “negative rights laws”. Some laws are written to try to define “rights”, while others spell out more clearly what kind of harms to “rights” are prohibited.
Thus, as consequence, we see in the West, continuing history of endless debates over “rights”, what is a “right”, whether something is a “right”, etc. The assumption is, if something is not specifically prohibited, then it automatically becomes a “right” by logical extension.
In comparison, while China did include some “negative rights laws” in its constitution, China remain very much based upon the “prohibitive style laws”. The consequence of this type of system dominated by “prohibitive style laws”, is that Chinese society in general assumes that “rights” don’t really exist, BUT any thing not specifically prohibited is OK. The system may offer some privileges to some people, but that does NOT translate to violation of “rights” of the non-privileged.
*I think the Western mindset on “rule of law” continues to believe that Chinese system is deficient, because China does not debate heavily over “rights”.
the Western mindset is simply puzzled: How can China say it has “rule of law”, when it doesn’t really seem to understand or care about “rights”?? That’s the fundamental difference in assumptions.
I personally think the “negative rights laws” in the West are troublesome and cause many contradictions to their own system: Afterall, how does US say that it has a 2nd amendment right for citizens to “bear arms”, when local laws contain mountains of regulations and prohibitions specifically for “bearing arms” in schools, airport, etc.
That’s where many of their legal problems come in, from the silly abstract laws for “rights” that don’t say any thing specific.
YinYang says
@Black Pheonix
That’s a neat insight. I seriously used to think rule of law is sacred. Obviously no longer.
But I also find this debate pretty funny. You and Allen being lawyers raising all these issues about rule of law while melektaus trying to paint a more positive image for it!
melektaus says
@Black Pheonix
Again, you are confused. I made an analogy. You said that because laws cannot ever be 100 % fair you cannot tell (“debatable”)if some laws are the rule of man vs the rule of law. That doesn’t follow and IT IS stupid. It’s a dumb argument.
You “illustrated” no such thing. Even if you did (which you didn’t) it would still be irrelevant because I nor anyone else I see here is saying that laws does not or should not depend on “contemporary standards”.
How can you make laws against internet crimes for example before the 70s when the internet wasn’t
even invented? This is just a red herring and a straw man you are making.
Who said they were?
I did define it. I gave four specific examples. You just don’t know how to read at a very basic level to realize what I said.
So?
Who said they were “law”?
Confucius didn’t seek to make all his students the best possible human beings they could become? SUrely you must be joking. Of course you need to treat some people different than others. Who ever denied any such thing?
I am getting the impression that much of your “disagreements” with others including myself are really due to you misreading what other people say, i.e., due to your lack of reading proficiency. You keep refuting and talking about points which seemingly I never disputed. And you keep couching your words in vague double talk. I get suspicious of this. It’s smacks of insincerity.
melektaus says
@Black Pheonix
Again, you are confused. I made an analogy. You said that because laws cannot ever be 100 % fair you cannot tell (“debatable”)if some laws are the rule of man vs the rule of law. That doesn’t follow and IT IS stupid. It’s a dumb argument.
You “illustrated” no such thing. Even if you did (which you didn’t) it would still be irrelevant because I nor anyone else I see here is saying that laws does not or should not depend on “contemporary standards”.
How can you make laws against internet crimes for example before the 70s when the internet wasn’t
even invented? This is just a red herring and a straw man you are making.
Who said they were?
I did define it. I gave four specific examples. You just don’t know how to read at a very basic level to realize what I said.
So?
Who said they were “law”?
Confucius didn’t seek to make all his students the best possible human beings they could become? SUrely you must be joking. Of course you need to treat some people different than others. Who ever denied any such thing?
I am getting the impression that much of your “disagreements” with others including myself are really due to you misreading what other people say, i.e., due to your lack of reading proficiency. You keep refuting and talking about points which seemingly I never disputed. And you keep couching your words in vague double talk. I get suspicious of this. It smacks of insincerity.
Allen says
@melektaus
Let’s consider murder, theft and rape then. Even here I don’t think there is a universal norm on when murder, theft, or rape is bad. Consider murder – which is usually defined as “unlawful killing, with malice aforethought, of another human….” But when is it unlawful? And what is malice. The law builds a bunch of exceptions where killing may be tolerated because the norms of society demands it. Depending on the time and place, killing someone who happens to show up in your house without your permission may not be considered murder. Killing someone whom your spouse cheated with may not be considered murder. Killing someone who burn your flag may not be considered murder. Killing someone who blasphemed against your “God” may not be murder. Killing someone when you are under tremendous emotional distress may not be murder. Killing someone beneath your caste may not be murder. The point I am trying to make is that whether killing is murder depends on norms that change with time and place. What is malice? Is revenge killing murder? Few people kill without a reason. Almost all kill for some reason – as a revenge for some injustice, some wrongs, something…
We can go into rape and theft … and the landscape becomes even more complicated. For rape, for example, – what is consent? What are appropriate and inappropriate behaviors? Who do you assess believability / credibility?
Trying to define all this mess is not the art of law, it is the art of politics, of philosophy, of ethics, and it is necessarily always changing – because society morales and norms change.
So my point is that the important thing is not law, but the underlying currents that define the morales and norms in a way that is deemed just, legitimate, fair – that is widely accepted. If we can get to a happy state, the hard work is already done. Law is but a final state that codifies the result. But it has meaning only because the result has been reached. Law doesn’t get us to that happy state, and it cannnot impose a happy state, it can merely be one end product – among many other happy end products – of that happy state. So focusing on rule of law to drive development – to me that is to get things ass-backward.
I agree that there are commonalities. But to me, these specify just the goals, not any means to the goals. Consider the last sentence of the above quote “We have to make the laws that benefit as many of these people as possible” – that’s really a political statement. Consider that democratic politics is necessarily about trying to make policies and rules that appeal to as many people as possible. But that defines the goals of democratic politics – but it doesn’t really say much about the specifics, the means.
There are so many ways…
Sure, to make just laws, we will appeal to all sorts of normative and/or factual reasons and theories on why the laws are necessary and best serve for the people. But in reality, I don’t believe there is any objective way to figure out what is best. Eventually, we simply throw out all these theories (ideologies, selective facts, rhetoric, theories about how the world works, etc.) and hope for the best. Society evolves and changes and de-evolves and changes and so on. We never know what’s best for the people – just like we never really know what is ever really fair, just, and legitimate. Every generation, every society has their take. Sure, there will be many similarities in the solutions people find, because people are people, after all… but there will be differences, as history has borne out. At this point in time, I just don’t see how assertion that the purpose of law is to ensure justice has any meaning. Justice lies not in the laws, but the process that defines the norms of society – which laws must reflect…
I probably make no sense… and apologize. Will have to do better in a post.
Allen says
@YinYang
Actually with respect to Black Phoenix, I don’t think I agree with him all that much. If we both question the rule of law, we are questioning with different lens, from different angles.
Consider this punitive law and rights bit Black Phoenix most recently brought up… I strongly disagree that punitive law is more clearly defined that rights. To me, both are just as fuzzy. One only needs to read up on criminal law cases to find out that the laws can be just as indeterminative as say Constitutional law cases involving “rights.” If certain criminal law cases are deemed more determinative, it’s only because we currently have more mindshare on those crimes. When we don’t, those laws can be just as confusing.
Rules are rules – negative or positive. And they can – will always – be twisted to serve people’s sense of justice and fair play. When rules cannot be twisted to serve justice and basic fairness, they lose their legitimacy. Such is the nature of the rule of law – of ALL LAWS.
Now I am just waiting for perspectivehere to admonish us to stop again – and move to a more appropriate thread. I have no idea how the notion of rule of law came up for this post!
melektaus says
@Allen
There need not be.
These are really philosophical questions but the problem with philosophical questions is that everything can be so questioned, not jut law. At the end of the day, it’s really about putting forward the best we can do and that usually comes with compromises in philosophical positions. I see nothing in this that would contradict law as practiced.
There are few things in life not complicated. Especially for things worth doing.
Again, I agree. In an ideal world we wouldn’t need any punitive laws. Everyone would be autonomous reasoners thinking along Kantian maxims or behaving like Confucian sages or whatever. But we don’t live in a perfect world. Life moves on.
This seems like a rather simplistic generalization of what happens. Rather it seems to me that laws develop together with society. Neither are the end results but both develop fostering each other. As society develops, better laws develop and as laws develop, society better flourishes. Both are part of the process and both need to be developed to increase well being for people in society.
But we often don’t need to know what is “best” for practical deliberation. We just need to know what is the best option available to us. Even if we don’t know this (as when there are roughly equally good options) we can still compromise and come to rational agreement by deliberation, legal, political, social or otherwise.
Black Pheonix says
@melektaus
“Confucius didn’t seek to make all his students the best possible human beings they could become? SUrely you must be joking. Of course you need to treat some people different than others. Who ever denied any such thing?”
Interesting, and which of his students did Confucius say was the “best possible human being” out of all of his students? (Surely, by your analogy of “age”, FACTS, you can also determine the 1 single “best possible human being” who can also define “rule of law”? Afterall, how can there be multiple “best possible human beings”?)
Or did Confucius just considered each of them to be unique? (and that there is no end to what people could become, and that each person, like rule of law, is relative to history?)
*I note you used “best possible human beings”, plural, not singular. If you believed singular commonality of “rule of law” concept, then surely there could be only 1 “best possible human being”??
Black Pheonix says
@melektaus
“Confucius didn’t seek to make all his students the best possible human beings they could become? SUrely you must be joking.”
I said no such thing. You must be joking to yourself. 🙂
Allen says
@melektaus
The first set of response on murder, theft, and rape …. makes me think you have misunderstood the context of what I write again. I am not trying to say we can’t get something down perfect so let’s give up. I am saying the essence of what we understand to be good in law depends on normative views that are always changing, that are different for every culture, society. You and I may agree – or disagree – on when something is murder, theft, or murder, but that depends on our norms (which depends on a people’s history and environment). Laws must constantly match that norm, or else be laughed out of town.
I was not trying to say we can’t define the proper boundary so let’s give up. I am trying to make people think how arbitrary what we take to be law really is but a mask for something else that is ephemeral. People may say, whew, I am glad that is the law. It’s not law they are grateful for though. What they are grateful for is the underlying norms reflected in the law. A group of people may agree on what’s murder, but it’s not the law that they value per se, but the norms reflected in the law, and the political will on enforcing that norm. Rule of law (rules enforced by state in a monopoly) is but one way to regulate that norm. There are many others. When there is agreement, all is easy – including enforcement of law. When there is none, there is chaos. But even when there is agreement, is law the only way to enforce the norms? Depends on what you mean by law.
If law is just rules, then ok, sure. Political settlements are expressed as agreements – which look like rules. But the rules don’t run away by themselves – through rhetotric technique, legal manipulation, etc. You always go back to the politics when disagreements arise, when clarifications are needed. The rules are but a reflection. But this is not rule of law.
But if you say, must the rules – the settlements – be run in a superficially technical manner by specially appointed judges through special process that we call rule of law in a parade of process that is done to appear neutral and fair, where future disagreements and clarifications are done by reference to the rules primarily in context of this special process (which may or may not refer to the original political settlement) – then that is “rule of law.” I don’t think such is desirable. There is nothing in the legal process that is fair. It is just a framework to appear fair, when the result can be manipulated (molded, defined … laws are rarely determinative, so I don’t mean manipulate in a bad, illegitimate sense at all). Why worship rule of law. It is at most a facade. We can sweep politics under the rubric of law (and that’s what happens very often), but why must we have that? Eventually we must go back to the political process. Maybe there is something to be said about not going to the political process all the time some times … but surely that’s not a universal proposition.
Trying to get a set of laws and enforce them as a driver to develop society is one possible approach, for some circumstances – and for society that worse rule of law as religion. But the important thing is to note the benefits one deem to arise from such application of rule of law is because of what goes underneath – a proper resolution of conflicts in a politically acceptable fashion. Laws must respect that … except that rule of laws often mask that as something neutral … which is why to me rule of law can never be prime.
Again that is never my point. When people discuss and talk about norms with each other, they will necessarily articulate them at various level of abstraction – with various forms of “rules.” This may look like law but is not. The law is but a form that follows, not a source to mold norms. That’s a key distinction.
As for individual sages, I am not talking about individuals burdened with the responsibility to individually carry out pareto optimal solutions… Don’t know why that keeps on popping up in your responses (in this and other threads, too).
Maybe one time I may have mentioned that the ancient Chinese knew not to put so much faith in law – that the faith must rest in cultivating just leaders and good citizens. To the extent that people are corrupt, the law – how they are formed, framed, and applied – will be corrupt. I still stand behind that. To the extent people are good, rules will still be needed – if nothing else as codification, articulation of norms.
In such a society, social pressures and morales and norms will guide most of people’s behavior to be proper. That is the case today anyways. The courts really solve very very few conflicts in society even in litiguous societies such as the U.S. In the very few cases of irresolvable conflicts, we can go to “rule of law” – or to wise judges who are sages, morally upstanding, instead of just being legally trained. Nothing wrong with either … in my view.
In modern society, the government actually has a lot more rules than in the past. The is a regulation of a lot of things. That’s fine. If government want to codify the number of minutes of breaks people should take at work, the paperwork needed for firing a pregnant lady, the minutia of what is taxable and what is not, fine. It’s a political decision, and people should follow rules that arise from that political process. But this is not the only way things can work…
Again, that’s but one way to do things. Sure, if believe in the rule of law as a religion (just take it on faith), then you can use rule of law to do politics, as the U.S. Supreme Court has been doing – and people buy it – all within limits, of course (lest it appears illegitimate).
Sometimes laws seem to mold society because on a controversial topic, say abortion, once a law is set, things move on. That again is not a feature of law per se. It’s nature of the political process. Once things are settled, if the thing is close, many just want closure, and move on. Again it’s not like we need law to develop along such trajectory. We just need some sort of political closure.
I hope you see the problem that if we don’t know what is “best” – we probably wouldn’t agree on what are the “best” options. But again, pareto optimal solutions and Kantian maxims – local or global – is not the point, it is but an illustration that the law can’t define that. It can pronounce it, but it can’t define it. Something else has to. Whether that something is “rational agreement by deliberation, legal, political, social or otherwise” – have no idea what that really means – or something else, it is not the law. Hence the law is but a red herring. Whenever people point to law as something indispensable for development of society, I say, it’s not the law that you like, it’s something else.
For the adult, and I don’t mean this in any derogatory way, but as an analogy, the laws are but rules, rules that we set after we know what we want. For the children, they might define your worldview – although the bright ones know that they are but rules, which can easily (and has always been) manipulated (I don’t mean trivial manipulation, I mean the whole process of framing the rules to start out with) to serve specific interests.
And therein lies the power of rule of law… the art of appearing neutral … even as one rests on politics.
Sometimes I get the sense that you are equating rule of law to a society deliberating and coming to agreements … not sure. But the law is not about that, although it may pronounce itself as that – you know, as people’s mandate – as the result of deliberation, as principle, as just, as neutral … as THE LAW…
OK – way off topic, not the place to write this at all. You can have last word here if you like. I’ll write more on the topic in the future.
Black Pheonix says
@Allen
I agree, and I think you are highlighting the underlying principle that “Law” is based upon “customs”/ norms, and customs don’t always arise deliberately, consciously, or even rationally.
As customs evolve over time subjectively, there is no such thing as “best” or “best possible” or “best available”.
Although, people should have some rational judgment as to what’s “good enough” and what’s “not good enough”, to clearly identify whether some customs are simply irrational and wrong. (For example, Slavery in the West should have been a big no-no.)
But for customs that are above the “good enough” bar, it becomes subjective judgment as to which one is really “best”. (“roughly equally good options”).
Allen says
@Black Pheonix
I don’t know…
Was slavery a big no-no? Remember, the people who were pro-slavery (if that’s a fair term) was not necessarily pro slavery – that is they weren’t thinking about justifying slavery per se. The issue for them was property. For them if you feel slavery is bad, fine, don’t own slaves. But don’t go around trying to liberate them – because these slaves were legitimately owned by others. You need to respect the property rights of others. If you want to free slaves, buy them and then free them. Don’t just outlaw them.
OK – you may disagree, and think that slavery is so bad that any “rational” person should see through it. Yet many of the founding fathers owned slaves. Were they all so blind? I don’t think so. I think our norms have changed so that we see them as blind. But for them, their positions were very rational, very justifiable.
The very same Constitution we see as making slaves illegal can be read, by many of the founders, to allow the owning of slaves – and to be neutral with respect to the question whether people ought to be made slaves.
Now we are going beyond rule of law (perhaps still related) to whether natural laws exist – which also has something to do with whether natural rights exist – which map to (I believe) melektaus contention that rule of law is important because it is needed to reveal and enforce natural laws that is necessary for the proper development of all societies. And you probably would guess my response to talk of “natural laws” – they are “religioius” rhetoric to promote your own version of “positive law.”
Of course we can have good enough options. I am not disputing that. But are the U.S. or European laws necessarily better than the much demonized sharia laws? I don’t know. Does good enough even have real meaning?
And that is the problem with saying rule of law is important because in it we define, find the best – or good enough – norms. It’s still (ephemeral ) politics all the way down – the way I see it…
Black Pheonix says
@Allen
I think the custom of slavery should not have happened around that time, because Europeans had actually recognized “rights” of their own citizens.
There is a long list of legal history that already abolished slavery in Europe:
960: Doge of Venice Pietro IV Candiano reconvened the popular assembly and had it approve of a law prohibiting the slave trade
1102: Trade in slaves and serfdom ruled illegal in London: Council of London (1102)
1117: Slavery abolished in Iceland
1214: The Statute of the Town of Korčula (Croatia) abolishes slavery.[6]
1215: Magna Carta signed. Clause 30, commonly known as Habeas Corpus, would form the basis of a law against slavery in English common law.
1256: The Liber Paradisus is promulgated. The Comune di Bologna abolishes slavery and serfdom and releases all the serfs in its territories.
1274: Landslova (Land’s Law) in Norway mentions only former slaves, which indicates that slavery was abolished in Norway
1315: Louis X, king of France, publishes a decree proclaiming that “France” signifies freedom and that any slave setting foot on the French ground should be freed[7]
1335: Sweden (including Finland at the time) makes slavery illegal, though this is not enacted. A true abolition of slavery does not occur until 1813.[8]
1416: Republic of Ragusa (modern day Dubrovnik, Croatia) abolished slavery and slave trading
1435: Papal Encyclical – Sicut Dudum – of Pope Eugene IV banning enslavement on pain of excommunication.
But slavery and slave trade were technically re-introduced back into Europe when it began its rise of Imperialism, and old legal precedents effectively forgotten and ignored.
It’s like an entire culture decided that suddenly, it was OK to steal from others, if there is money to be made in stolen goods.
*That’s why I say it was big no-no, because the West was ignoring their own legal history, and clearly contradicting their own “rule of law”.
melektaus says
@Allen
You must have misunderstood what I have said if this is your point (as I have suspected). You keep repeating this point and don’t even respond to what I have said so I really don’t see what further point there is in continuing. You’ve repeated this point many times without supporting it with any reasons and evidence.
Look. As I have said many times and which you keep either misreading or ignoring (I don’t know which because your writing is so murky).
Human beings have a common evolutionary history. That’s a fact. You may not like that fact but I can tell you it is a fact whether you liek it or not. Because we have a common evolutionary history, it makes sense that we share many moral sensibilities. Societies that don’t consider murder. theft and rape bad simply don’t last very long. They get weeded out of the evolutionary net. They don’t get to spread their genes.
This is a point that you keep ignoring.
Also, I never said that cultural norms don’t matter. They clearly do. But just because culturesand even people within cultures are different due to cultures and upbringing doesn’t mean that we can’t compromise on laws.
So, let’s try to understand what I have actually said. BOTH culture and biology matter. Some ethical norms are close to universal and the one’s that aren’t can still be made to conform to laws through reasoned compromises etc. Because I have yet to see you even address these points, it makes me think that these points went right over your head. You either don’t want to engage in them or simply don’t understand them.
You keep saying law is this and that but I have never denied these things and don’t see how they are relevant to what I have said about the law. You say the law is “ephemeral” and I say so what? What has its “ephemerality” have to do with anything I said about it? You haven’t made this point clear and I am suspicious as to why. You say that the law depends on context. Again, I say so? What has that fact got to do with anything I said? Obviously laws must take into context. You say that different cultures have different cultural norms. Obviously there are differences but my point that some norms are pretty much universal has never even been addressed by you other than blanket denials with any evidence.So again, this makes me think you keep misunderstanding the issue.
You need to be more specific in your responses.
Specifically, what did I say that you disagree with? Spercifically where did I say it? Specifically, what are your objections? Specifically what evidence do you have to counter it?
I think once these points are made more explicit, you’ll see that it was you that have misread me. I don’t even know what you are objecting to specifically because you have not been specific.
YinYang says
@Allen
Ok, got it. You guys somehow piqued my interested these few days – more so than usual on this topic I guess.
Anyways, you are right, perhaps we all should just not get into it as deeply as we have. I bet most of our readers are having a hard time following these discussions.
YinYang says
Hi Melektaus, Allen, and Black Phoenix,
Can I propose this? Dumb the discussion down for now. Let’s go with what we agree on.
Can we go with something extremely modest:
Refine the above 3 points and make them more robust if you like, but resist the temptation to find points of contention for now. Let’s go slowly. We have many years ahead of us to reach alignment. What do you think?
Allen says
@Black Pheonix
I believe the examples you cite were political resolutions. That is, when Comune di Bologna abolishes slavery and serfdom and releases all the serfs in its territories … it is because the political pressure is such that they needed to do that. It was not because people were waking up to a natural right that has precedence over all – in other lands – applied to other “race” … a morality that everyone must follow.
So I am not sure if the legal history you cite has relevance as legal precedence?
But I do get you that perhaps there were already a murmuring of discontent in the political sphere…
Anyways – one thing I want to make clear, one key aspect of “rule of law” as religiously preached today is that everyone – including the state – must bend to the law, which is neutral and fair and supreme. Most of the examples you cite are are not of this sort – they were just dictates of political settlements … or proclamations of the sovereign (kings or emperors).
I don’t think that constitute as rule of law. If it were, they China always has rule of law. As long as the dictates and proclamations of the governments are followed, uniformly (i.e. without corruption), then there is rule of law! (holy holy!!!)
So what makes rule of law so high and mighty that the sovereign has to stoop under it? I don’t know. That’s why I think it’s only rhetoric. Nothing can be that. There are no norms that I see that is universal – that stands the test of time – that can be that. Rule of law as we ascribe it today can thus only be a mirage.
Think: political legitimacy (in any government form) is about producing a just and good society … and we are still striving. Political process is still as messy as ever. What makes us think that we now have something so perfect (called rule of law) that sovereigns and political processes have to answer to???
Allen says
@YinYang
Sigh…
I guess my response will have to wait. Rule of law is an ideology … an ideal … just like democracy. Look under the hood, it does not exist. Having rules is important. Sure. Having laws – because laws are rules – is important, too. Fine. Trusting in procedures and institutions to advance the policies of the government. Fine, too. Demanding people do not usurp the power of the government for private gain. Ok, too. But when we talk about rule of law, we are talking about elevating the law of rules to be supreme, that everything submit to it, even above the sovereign, as the epitome of what is right and fair and just….
Doesn’t exist. Just a mirage.
We don’t need rule of law to develop. That’s ideology. We need good leaders, good policies, good systems, good institutions, good rules, good laws … good roads, good economic systems, good agricultural practices, good doctors…… but foremost, we need good leaders … who are accountable to the people … NOT TO LAWS … which is what the “rule of law” demands today …
Hence China can’t have rule of law until they stoop to be constrained by laws … but whose laws, and what laws … and what gives it such high place?
Sigh…
Done for now. Will “dumb down” now.
melektaus says
Again, with the vague language. What do you mean by “ideology” and why is being an ideology (for the sake of argument assuming that it is an ideology) a bad thing? And now you say that rule of law doesn’t exist. What do you mean it doesn’t exist and why does its existence matter? ARe you making an ontological claim?
Surely lots of things don’t exist and yet are very useful? Take numbers or sets or other mathematical entities. I don’t think they exist apart from human imagination and social practice but science as we know it cannot exist without these fictional abstractions. Also take the uses of “ghost balls” in billiards. Again, an imaginary object that is very useful when used as a tool. So things can be used as tools even if they are strictly speaking imaginery or man made or whatever. So ontological existence has nothing to do with usefulness. This is an important distinction.
You now admit that we need good laws as well as other things. Who denied this? Perhaps you have in mind someone else?
So I don’t know what purpose you are now brinbging “existence” into it. In some sense, the rule of law clearly DOES exist. It exists as human practice in some situations and as values. So interpreted one way, you are wrong. Interpreted another way you are simply saying something irrelevant because whether they exist in some strict ontological sense has nothing to do with whether it is a useful tool for society when considered as an abstraction, or as an imaginary tool, or as a social practice etc.
Anyway, I will respond later to the other points you made earlier but I don’t think they are anymore relevant and some I don’t even think are very cogent.