Category: Law, Constitution, and Jurisprudence

http://nomocracyinpolitics.com/2015/04/06/after-the-rule-of-law-by-john-samples/THE RULE OF LAW AND THE FAILURE OF THE PRESIDENCY.

All,

This problem – of the Presidency – is well studied in the literature. The general argument, and as far as I know, the general consensus, is that the presidency is a failed experiment. That had Washington accepted monarchy with veto power, and had we as a consequence adopted the British (English) system of prime minister, that we would find more consistent long term policy and less politicization of the bureaucracy.

People overwhelmingly prefer monarchs – familial, tribal, cultural, and spiritual leaders and families that symbolize the populace. Curiously, countries with Monarchs outperform countries without. So the question of whether presidents abuse rule of law is a misplaced one: of course they have. The presidency was a mistake. Very few men in power respect rule of law. Their vanity, pride, idealism, legacies, entourage, pressures, dependents, and the people that put them into power guarantee it.

RULE OF LAW

As for rule of law, as far as I know, that lasted until Lincoln at best. And ended with FDR. It’s just taken this long to transform from a president who abused it but the public and academy wouldn’t tolerate (Nixon) to a president who can’t conceive of it (Obama), an academy the actively undermines it, and a public that is ignorant of and dismisses it.

Either laws completely and totally limit our executives in all circumstances other than defensive warfare, or there is no rule of law. Administrative ‘law’ is an impossibility. We can issue administrative commands, and by deceit, claim that they hold the same properties as law. We can issue regulatory commands, and by deceit claim that they hold the same properties as law. But they always have been convenient deceits – to grant to arbitrary human wish that which is necessary law of cooperation.

Law is discovered, and recorded by neutral jurists, no less scientifically than physical laws, biological processes, and mechanical operations: as we invent new means of involuntary transfer – from the most simplistic and obvious violence theft and fraud, to the most indirect and obscure socialization of losses, privatization of commons, rent seeking and free riding – we register this new means of involuntary transfer (just as we register patents) as new prohibitions on involuntary transfer: law.

We can choose to construct contracts for the production of commons, using government, and we can resolve those contracts in courts, using laws. But beyond the voluntary production of commons, all else is usurpation and command.

LIE BY ANALOGY

One can lie easily using analogies. It is extremely difficult to lie using operational language. That is why science requires operational definitions. Whenever someone makes a statement about ‘law’ and rule of law, it is helpful to ascertain whether the person is engaged in deceit, by questioning whether he is talking about law, contractual provision, command, or permission.

Humans evolved cooperation from non-cooperation because it was an unequalled multiplier in the production of calories, and concentration of calories in expensive offspring. But as soon as one develops cooperation one invites free riding (parasitism). The prevention of free riding is necessary for the preservation of cooperation – otherwise cooperation is irrational and counter-productive. Without the prevention of free riding, and without aggressive punishment of free riders – from the lazy family member to the aggressive alpha, to the predatory competitor – people cease to cooperate, and must cease to cooperate. And productivity declines accordingly. And trust declines accordingly. And economic velocity declines accordingly. And violence theft, fraud, free riding, and rent seeking and corruption and conspiracy – including political conspiracy at scale, and bureaucratic conspiracy of common malincentives expand to the point of equilibrium.

We either possess rule of law: constraint, without exception, on discretion, or conversely, independence from discretion in matters of involuntary transfer – or we do not.

THE DEPENDENT VARIABLE IS RULE OF LAW

So on two questions, the presidency and rule of law, it is of little sense throwing money into a hole in the water, and of equally little sense debating the wishful virtues of men. Plato caused us enough harm doing so for one civilization to bear. We will not solve this problem or any other without restoring rule of law: there is no reason that the public is prohibited from universal standing for suing individuals in the government. The voting booth fails outside of the neighborhood of the voters.

If we restore rule of law we can keep the president, even if the choice between president or prime minister is a matter of the quality of long term policy. But without rule of law, it matters little whether we have president or prime minister – because we merely obey commands.

Without rule of law we are not provided with the means of conflict resolution for the purpose of developing cooperation by the organized and incremental prevention and prosecution of free riding. Instead, we are subjects, commanded, by an elaborate, obscurantist, operatic, ceremonial means of justifying those commands. And nothing else.

And hence, there exists no incentive to cooperate. There is only incentive to obey commands offset by incentives to disobey commands. Liberty is the effect of rule of law. And rule of law cannot exist when courts cannot redress grievances.

Sic Semper Tyrannis.

Curt Doolittle

The Propertarian Institute

Kiev, Ukraine