Friday, December 2, 2011

Rules on Rails

Constitutions are laws about the set-up of a community. Like all laws they are supposed to be rules for human conduct. We read the law, and if we are law-abiding, we do what it says. Wittgenstein, in another context, points to a problem:

But am I not compelled, then, to go the way I do in a chain of inferences?” --Compelled? After all I can presumably go as I choose!-- “ But if you want to remain in accord with the rules you must go this way.” – Not at all, I call this 'accord'. – “Then you have changed the meaning of the word “accord”, or the meaning of the rule.” --No; – who says what 'change' and 'remaining the same' mean here? However many rules you give me-- I give a rule which justifies my employment of your rules.

You may think my interpretation outlandish, absurd, ridiculous, but nothing in the written rule allows you to do so. The little marks on the page do not force me to do this or that. How could they? I can insist that virtually any action is in accord with the rules. What prevents me from doing so is convention. “Certainly you can't possibly think that doing THAT is in accord with the law.” The general scorn of others forces me to acquiesce. We have always taken the rule to mean thus and so! But who has always taken it thus and so? How we “always took it” is lost in the mists of time. Writing about that time is just more words on a page, subject to the same mutability as the written laws. What allows the rule to have any affect is a general agreement as to what actions accord with the rule and what do not. But it is not the rule nor any argument about how we have always taken it in the past that forces this agreement. It comes only from a general willingness to agree in the course of life as it is lived now. The rules do not allow us to escape from conventional usage, and our agreement about conventional usage depends upon good will. Someone who doesn't want to agree will find a way not to. Usage is conventional because we agree on it or, in any case acquiesce. Neither the law, nor convention, can force agreement.

People held power without law. How did they do it? Let us take a little excursion. Aristotle, in The Constitution of Athens writes, “The ancient political order that existed before Draco was as follows: The magistrates were selected from the noble and the wealthy.” We might ponder that “selected.” How selected? We tend to think of something like our own elections, but this was a very small group of people who had no media, no airplanes, in short no way of distancing themselves from one another. They were all out in the agora every day. No noble or wealthy citizen of Athens ever moved to another city, so these people all knew one another since childhood. For one reason or another, alliances formed. For one reason or another someone became a leader without actually being chosen in any way. That is the way when kids grow up together. They spoke to one another day after day not in whitewashing telepromptese, but extemporaneously. Everybody knew what shit a guy stepped into five years ago. Everybody knew who was a fool, a hothead, a coward. Everybody also knew who was wise, worth listening to, brave, clever. Everybody knew who would obey whom. And most important, everybody knew who was likely to further the interests of whom. In short a man's human qualities emerged. Everybody already knew who was whom just from having hung out with them for their whole lives. There were no surprise candidates like Barak “Who-the-hell-is” Obama or Mitt “Who-the-hell-is” Romney. Those who held the offices gained the acquiescence of others through their personal qualities that emerged in the course of daily public life over a lifetime. The Greeks called these qualities of excellence virtu.

The noble and wealthy ruled because they could afford a soldier's equipment. The leaders emerged naturally from life lived together, and they ruled the poor by force. The rich owned the land and the serfs paid steep rent or had themselves and their children sold into slavery. To the poor this quality of virtu was no virtue. But they couldn't do anything about it. The poor obeyed out of fear, not because of any law. Those who ruled did so because of their monopoly of military equipment. They were rich because they were tough. They didn't have to explain why they did what they did.

The poor had “no share in anything,” Aristotle says. What kept them down was military force that easily overwhelmed them. It seems like a stable situation, but apparently it wasn't. The problem arose between the very-rich and the barely-rich. The very-rich were the officers in this military city, the barely-rich merely foot soldiers. The very rich exploited the barely-rich too. Sometimes the barely-rich interfered with the plans of the very-rich at which point the very rich might treat them not that much differently from the way they treated the serfs. The loyalty of the barely-rich to the very-rich was shaky. The “Draconian” laws Draco made created a treaty of peace between the very-rich and the barely-rich to assure that the barely-rich would remain foot soldiers in the threatening class war with the poor. For the very-rich needed the loyalty of the foot soldiers if they were to maintain their military superiority. Draco made the ability to supply oneself with a soldier's equipment the criterion for citizenship. But you needed quite a bit more to be appointed to office. He created a council of four hundred chosen by lot from among the citizens. This Areopagus could judge complaints one citizen might have with another. Thus the poorer of the rich could bring complains against the richer. There were other rules that favored the barely-rich-but-rich -enough-for-armor. It gave them a way to protect themselves somewhat against the more powerful.

The very-rich obviously agreed to this set-up only reluctantly, for it deprived them of opportunities to exploit the barely-rich. That was what it was supposed to do. They agreed to it only because they knew they needed the barely-rich against the poor. In other words they agreed to it because the threat of civil war weighed more heavily than their “interests.” If the poor later offered no threat the rich would again use force to take whatever they wanted. The laws would not stop them if they thought they didn't any longer need the less rich. They would reinterpret the laws as they wished. The laws themselves, like all laws, are open to any interpretation, and can only serve as a reminder that civil war looms and compels good will and fairness in interpretation to insure the loyalty of the barely-rich. So the whole enterprise hinges upon incipient civil war and the rather artificial good will this inspires between different naturally hostile classes. The law depends upon the good will of parties who by nature mistrust one another and so harbor ill will. They agree to read the law with a good will they don't really have because of the threat of civil war.

Draco's laws solidified the rule of the rich. By buying the loyalty of the foot soldier it strengthened a repressive force. Aristotle concludes his account of Draco's laws with, “but loans were secured on the person of the debtor and the land was in the hands of the few.” But repressing the poor with force apparently didn't work. Aristotle continues with a report that the common people rose up against the upper class and “the civil discord became violent.”

When that happened they called in Solon. Solon's laws were a second attempt at law, this time to take from the rich and give to the poor to bring the civil war to an end. Repression had failed, so they thought to compromise. The parties agreed to Solon as lawgiver because he was from an ancient family but not that rich. His interests seemed not to lie clearly with either party. From his poetry one gets the idea that his interest is with the community as a whole. Aristotle quotes him:

I observe, and my heart is filled with grief when I look upon the oldest land of the Ionian world as it totters.”

The existence of a citizen, someone who's interest is with the good of the whole, is hereby tacitly acknowledged. By agreeing to Solon they have agreed that it is possible to be a citizen, someone whose “heart fills with grief” when he sees the polis in danger. But all they have agreed to, when they agreed to accept Solon as lawgiver, was the possibility of a citizen. Either side might, at any time, withdraw this sobriquet from Solon himself. Indeed Aristotle mentions this happening, or nearly happening. Solon canceled debts, but some said some of his friends went into debt just before he did so, reaping big rewards. Making a move he said was to help the poor, he actually aided his own interests proving that he put his interests above those of the community as a whole. Apparently Solon weathered this storm whereas some well-known selfish man in his place probably wouldn't have. His reputation pulled him through. But he saw that if he remained he would lose his status as citizen, and the laws would become suspect. For to people, that is to the whole city, who see all human action as self-interested, Solon's actions would seem self-interested too. So he left the city thus preserving his claim to be its one true citizen.

Being a citizen, one whose interest is with the good of the whole, and appearing to be one after having made the laws, are two different things. Was Solon out for himself or trying to do what was best for the city as a whole when he canceled debts? The interests of the rich as a whole are made up of the individual interests of the rich. Although they regularly screw the poor they are not above screwing one another. The rich can use laws that redress the sufferings of the exploited poor, which always take something from the rich, to screw others of the rich by putting themselves temporarily in the position of the poor to take advantage of these laws. Those who knew Solon was going to cancel debts borrowed to the hilt and made a bundle.

Neither the rich nor the poor have any ability to assess Solon's integrity. For both, integrity is a purely theoretical concept beyond their experience. They both acknowledge their self-interest. They choose Solon because he looked like a citizen and the denizens of Athens recognized that the law needed good will to serve its purpose. The words on the page had to have a meaning everyone thought “fair,” and wouldn't have that meaning if written by a self-interested man. Solon wrote laws that definitely benefited the poor. The rich accepted these laws as part of a peace treaty. They had to believe that their sacrifices were for the good of the whole, that is, the peace treaty. They had to believe that Solon was wise and had the good of the whole at heart, even though they had no feeling for the good of the whole. They were making a trade that depended upon mutual good faith, and this good faith would exist because everyone had faith in Solon. For the rest of the city good faith was as unreal as the tooth fairy. Acceptance of and trust in Solon was essential even though what was essential in Solon, his integrity, was beyond everyone else's experience.

So laws are either alliances between rich people with different interests to continue the civil war against the poor, or a peace treaty between rich and poor to end the civil war. One might argue that all laws are alliances of rich and less rich, for there are always people even poorer than the poor. In Athens there were slaves and foreigners, both unprotected by Solon's laws. A citizen lawgiver is important whenever the poor or less rich see that their interests are different from those of the rich, that is when the poor are class conscious. This is often not the case, for it is usually not too difficult to convince the barely-rich that their interests and those of the very-rich are the same. No one seems to have worried about Draco's bonafides. During the last quarter of the twentieth century most Americans thought their interests were the same as those of the very rich. Even the poor thought themselves “entrepreneurs.” Where being barely-rich ends and being poor begins is a matter of opinion. In any case the citizen lawgiver, where mistrust exists, must make the laws and vanish, forcing the inhabitants of the city to think as the citizen thinks in any dispute. The citizen lawgiver is essential when the sides openly have different interests.

So where does that leave our own Constitution? Americans generally imagine the “founding fathers” bubbling over with good will, sitting around a large solid table, and trying with their formidable intelligences to craft or better, “hammer out,” our marvelous system of checks and balances to protect our liberties. But at that time the debate was all about whether or not the Constitution would take away American liberties. For example, here is Patrick Henry, one of the most prominent anti-federalists speaking against ratification.

 “The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others.”

Those who supported the Constitution tried to calm this fear. The complex and ingenious structure of “checks and balances” would guarantee our freedoms, they said. The Articles of Confederation under which the United States actually came into being was a loose affiliation of truly independent states. There was no standing army and the Confederate government had no power to tax citizens and no real way to force the states to contribute. It protected freedoms quite admirably, was nearly broke, and opened the opportunity for foreign powers to play one state against another. The Constitution was a proposal to “form a more perfect union,” that is, cede sovereignty to the federal government. No one, for or against, thought of it as protecting freedoms. Those for the Constitution could argue, at best, that it would not take them away.

During the Constitutional Convention Jefferson was in France. We must remember that communication between France and the US was, in those days, arduous. Jefferson wasn't getting daily reports. Hamilton and Madison were the most important proponents of the Constitution. What were their concerns? The English had remained in the Northwest Territory (Ohio, Indiana, Illinois, Wisconsin and Michigan) longer than they were supposed to, and Spain controlled a large part of the Mississippi. John Jay had been sent to negotiate navigation on the Mississippi and had been humiliated. In fact American diplomats in general had been treated with contempt in Europe. Our founding fathers, who look so dignified and gentlemanly to us, were bumpkins to the incredibly refined European aristocracy. They were made to squirm in the role of the bourgeois gentilhomme. They were looked upon as the representatives of some rag-tag mockery of a country--or so Hamilton and Madison said. In addition in revenge for the revolution the English were restricting American shipping and it seemed war was about to break out with France. With pressure from all these sources some of the states had made private deals with other countries, and the union seemed likely to break up.

Hamilton argued that not only England, France and Spain, but also Holland was a potential enemy of the Confederation. Others thought these threats exaggerated. Jefferson, in France, tried to calm everyone on that score. Here is Patrick Henry again:

We are threatened with danger for the non-payment of our debt due to France. We have information come from an illustrious citizen of Virginia, who is now in Paris, which disproves the suggestions of such danger. This citizen has not been in the airy regions of theoretic speculation: our ambassador is this worthy citizen. The ambassador of the United States of America is not so despised as the honorable gentleman would make us believe. A servant of a republic is as much respected as that of a monarch. The honorable gentleman tells us that hostile fleets are to be sent to make reprisals upon us: our ambassador tells you that the king of France has taken into consideration to enter into commercial regulations, on reciprocal terms, with us, which will be of peculiar advantage to us. Does this look like hostility?....

Do you suppose the Spanish monarch will risk a contest with the United States, when his feeble colonies are exposed to them? Every advance the people make to the westward, makes him tremble for Mexico and Peru. Despised as we are among ourselves, under our present government, we are terrible to that monarchy. If this be not a fact, it is generally said so.

We are, in the next place, frightened by dangers from Holland. We must change our government to escape the wrath of that republic. Holland groans under a government like this new one. A stadtholder, sir, a Dutch president, has brought on that country miseries which will not permit them to collect debts with fleets or armies. 

Patrick Henry tried to minimize every threat Hamilton saw; Hamilton seems not to have believed him. In any case Hamilton had one obvious motive —to shift sovereignty from the states to the federal government-- that would have made him ready to profess fear of whatever the Union would protect against. Hamilton's interest was entirely in creating an unbreakable union with the power to tax and raise an army. Jefferson recounts a meeting (page 96) with Hamilton in which Hamilton expressed his preference for Julius Caesar over Enlightenment luminaries Jefferson admired. He called Caesar the greatest man who ever lived. Jefferson told Washington that Hamilton had asserted that only force and interest could rule men. Unless Jefferson was lying, Hamilton had no faith in the Constitutional Government's complex structure, but went along with it to centralize the government. It is hard not to see Hamilton having used Madison to argue to the other Enlightenment influenced men for the checks and balances where he could not. Henry and Hamilton both fixed their eyes firmly upon who was to control military force. They differed in that each saw the other's preferred result as a disaster.

Hamilton may or may not have believed in the threats he warned of, but he was definitely a patriot, or at any rate thought of himself as one. For he was surely correct about the states going their own way and making independent arrangements with foreign, or simply other, states. Independent states make their own treaties. Hamilton wanted a constitutional monarchy, and his British Plan, introduced at the Constitutional Convention included a “Governor” and Senators elected for life, and state governors appointed by the national legislature. Hamilton was a visionary, a genius, and probably a paranoid who saw a United States mortally threatened during its infancy, but, if protected, growing into a colossus ruled by a Caesar. That was what he wanted to have happen, that is what he believed was best, and that is what has happened.

Hamilton's greatest fear was the nightmare of a continent full of petty states, like Europe. After the introduction his first three entries in The Federalist Papers are all on this subject. Here is a sample of his language:

A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.

Madison's primary concern seems to have been Shay's Rebellion that had shaken the Massachusetts establishment. Shay had been in the continental army, had loaned money to the Continental Congress to pursue the war, then had found the Federal Government, without the power of taxation, could not redeem the bonds and they were almost worthless. On top of that when he had returned home he found he had lost his land for debt. He was not the only one thinking he had gotten a raw deal, and many others were also outraged. A rag-tag army of, some said, 30,000 seemed to grow overnight. To Madison Shay's rebellion was the ultimate nightmare. Patrick Henry, on the other hand criticized Shay only for lack of capacity, and Jefferson actually welcomed the rebellion.

Both Hamilton and Madison reflexively thought it was necessary to suppress Shay and his ilk with force. Here is Hamilton:

"Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.

“Quell” and “remain sound” are for curing diseases. The Union is the cure.

Here Madison:

The insurrections in Massts. admonished all the States of the danger to which they were exposed. Yet the plan of Mr. P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. 15 If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. 16 one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may 17be more ready to join the standard of sedition than that of the 18 established Government. 3. 19 where slavery exists, the Republican Theory becomes still more fallacious.

The appeal to force and repression is direct. So it is clear that the American Constitution is a Draconian alliance of the rich for the repression of the poor. Neither Shay, who would have been the proper representative of the poor, nor anyone sympathetic to him, ever ratified the Constitution. That was done entirely within the state legislatures. However, what the Constitution created was something almost new, a Republic, and this threw a monkey wrench into the workings of the rich. For we must remember that it is Patrick Henry and other rich men who opposed the Constitution on the grounds that it restricted their freedom. Henry would never have been in Shay's shoes, but here he was in apparent alliance with him.

The Constitution of the United States created a new body politic where there never had been one. Henry feared that the federal government, once created, would have interests of its own. He conjured up a constitutional tyrant repressing the states. In this he was on the money. Henry, Madison, Monroe, Jefferson and similar others ruled Virginia very comfortably. Their freedom consisted in being able to shape the world around them with others who talked it out with them and acted from a sense of justice. Having to talk to others, equals, face to face, was what kept them honest. That, what they called “freedom,” was what they would lose. Oh they would still be able to talk, but they would not be able to manage the life around them. The federal government, with its ability to tax the citizens directly and raise an army, would be a power all its own which, of necessity, would repress the states and so take away this freedom. The Civil War decided the issue once and for all. Henry was right and he lost.

It is hard to believe that Hamilton, who thought only force and interest could rule men, ever believed in the checks and balances of the constitution. Henry certainly never did. But such constructs of government were all the rage in those days, and it seems almost certain that Madison had real faith in them. The Enlightenment had changed the idea of law to correspond to its new idea of natural law. Natural law, like Newton's law of gravitation, had come to consist of a set of procedures. Each of these procedures when done carefully, produced a predictable result. But Enlightenment men did not think of them as a set of procedures, but as revelations about the laws of nature. Newton's Law of Gravitation gave people license to think we knew how all things worked in the cosmos, for it applied both on earth and in the heavens. We still live with this epistemological commitment. No one noticed that Newton's gravitational formula can describe any eliptical or hyperbolic planetary path depending upon the masses and initial velocities involved. But these numbers were just plugged in to make the orbits what we already knew to be right. The game was circular, but no one was good enough at math to see it. The idea that science examines nature (which is somehow always found in the laboratory) obscures science's real nature as a collection of recipes for operations that, done carefully, produce predictable results. Everybody thought of the Enlightenment as having discovered the real truth about everything. The universe was merely a succession of repeatable procedures. It ran, as it were, on rails. Since such procedures were ideal for producing commodities, the rapid creation of wealth cemented the belief. Mass production here we come, but the idea of life as made up of a complex of rigid procedures, the Enlightenment idea, infected the Constitutional Convention. Belief in rigid procedures —the checks and balances and election rituals-- substituted for belief in the one true citizen, Solon and in his good will, as essential for law's success. The checks and balances, rules for human behavior, could, it was thought, be specified. These procedures would cancel out private interests automatically so that only the interest of the whole would result. Madison specifically renounces and hope for good will in Federalist 10.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The Constitution was, so to speak, Draconian rather than Solonic, that is an alliance of the rich against the Shay and the poor rather than a peace treaty between rich and poor. But it was also Solonic as a peace treaty between the rich and the Federal government. The anti-federalists feared the new body politic itself wold be a constitutional tyrant. Whereas in Greece the poor sought protection from the rich, here the rich seek protection from the government. It is for this that an American Solon was needed. For that Solon we have the checks and balances.

The new Solon was “due process.” The founding fathers counted on the governmental processes to preserve their freedom. Men are self-interested and the best we can do is try to balance these interests so that, in the tug of war, the general interest will emerge. “We are a nation of laws, not of men,” is a description of just this reliance on process rather than good will.

It is interesting to compare the Bill of Rights to other earlier laws. Earlier laws are about who owes what to whom, who had the right to hunt where, who has the right to tax whom, and the like. There is nothing like the right to free assembly or the right to free speech or freedom of the press, all of which seem not to be a question of one person's interests over another's. These are rights one needs to oppose a government structured upon ideas, a government that, supposedly, can be opposed or persuaded through argument. The separation of powers, election of officials, and shortly after ratification, the Bill of Rights were supposed to protect against constitutional tyranny. Many believed it would work. Henry and Jefferson did not. Henry was one of the few who saw no problem with the Articles of Confederation. He believed that free men in the states could protect themselves without such a repressive structure as he saw the new Federal State to be.
This Enlightenment faith in procedure was not only American, but took hold wherever the Enlightenment spread. In France, The Declaration of the Rights of Man is full of principles that are to be secured by law. The Code Napoleon supposedly created the system of procedures for France. This all came crashing down with the Dreyfus affair that I treat with more detail here.

The Dreyfus Affair revealed that the system of procedures could not insure justice and in fact mitigated against it. At the time it was quite clear to everybody. Zola's J'accuse is about how, with the Dreyfus Case, France betrays it's foundation in The Declaration of the Rights of Man. He mentions antisemitism only once. Even Theodor Hertzl, for whom The Dreyfus case was a revelation of eternal antisemitism, saw the case as a repudiation of France's deepest principles. What was so appalling was that to implicate Dreyfus court officials introduced flagrantly false evidence. They went through the motions, the procedures and produced a mockery. Their shameless falsehoods flew in the face of reason itself, but when they refused to withdraw what to any reasonable man were outrageous forgeries, there was nothing within the law to stop them.

Franz Kafka's story In the Penal Colony illustrates perfectly what had happened. In it, the penal colony has inherited a machine for administering justice from an earlier “Commandant.” The machine is the centerpiece for the whole penal colony which is itself a machine meant to run by itself.

We who were his friends knew even before he died that the organization of the colony was so perfect that his successor, even with a thousand new schemes in his head, would find it impossible to alter anything, at least for many years to come.

The colony was a process resistant to human intervention. The machine is designed to operate a set of needles to write the criminals crime on his back in wounds. A tattoo of words kills him. The officer, who runs the show, explains it in French, which the soldier and the condemned man don't understand. Even though the officer tasked with administering the punishment was there at the machine's construction, he does not know how to fix it. Anyway, he can't get parts. The machine is falling apart. No one any longer knows how it was supposed to work. When the officer finally subjects the prisoner to it, it mangles him horribly and writes nothing on his back.

The justice system of the West, set up as a machine for justice meant to run rigidly according to strict procedures, has substituted procedure-following for justice. Supreme Court Justice Scalia's infamous comment reveals this:

"This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

The quotes around “actual innocence” sets it off against innocence found through the procedures of the law. That he didn't do the crime is irrelevant if the procedures produced a “guilty” verdict. Scalia is not being a monster here unless being a good judge is being a monster. For he is just following what every lawyer learns in law school. The result of the procedures is what matters. All else is juvenile folderol. How the machine was supposed to work no one can tell. It is outside our ken.

The hope that rigid procedure, law, as it were, on rails, could substitute for good will, was vain. Wittgenstein has shown decisively that nothing written can dictate rule-following, even in the most basic case, that of counting. If someone insists he is obeying the rules in following 1000 with 1002 we might banish him from further math study, or even send him to the insane asylum, but what we cannot do is show him where he is wrong by pointing to a rule. For he will insist he is following it. Mathematics works because of a rigid training. It is a tyranny, a tyranny of teachers, not marks on a page. Those who won't or can't obey are thrown out.

Since law is a peace treaty between two classes who have no good will but see ending their hostilities as more important than some of their private interests, both sides want to reinterpret the law in their own favor. If the guarantee for the laws fair interpretation is not good will but some rigid procedure, both sides are free to exercise themselves fully to have things go their way within the letter of the law. The reliance on procedure is a license to pursue self-interest. Since laws do not actually prescribe anything unless there is good will, it is quite easy to manipulate them. For example:

In the United States the use of the phrase "enemy combatant" was used after 9/11 by the Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions.

To circumvent the law one need merely rename someone so that they fall outside the category. Want to circumvent labor laws, rename the workers “independent contractors.” Can't have an office slave? Call her an “intern.” “War?” no, “kinetic military action.” Conversely, if you want to include some entity under the protection of the law, use the same trick in reverse. A corporation is a “person;” money is “speech.” But these are only the most obvious techniques. Techniques are limited only by human ingenuity itself. Perhaps the law has a spirit as well as a letter, but rigid procedures refer only to the letter, and it can be twisted to mean anything. The faith in procedure is misplaced and relieves the parties, especially the rich, of the obligation of good will, essential to the success of any system of law. And thus we see the ever more Kafkaesque government going ever further along the rails as law is piled upon law in the vain attempt to turn human action into procedures done on rails of written language. We imagine these procedures forged of steel but they are woven of cobwebs.

1 comment:

  1. Constitutions are the putative frameworks for societies. Societies are hierarchies operating through vertical interactions, mostly transactions, enforced by the threat of coercive violence. Communities cohere through voluntary, horizontal interactions, only some of which are transactions. Societies control those horizontal transactions to varying degrees, through prescription, proscription and monitoring.