Yesterday, I was provided with a link to an article entitled: ‘The Myth of the Rule
of Law’ by John Hasnas, an associate professor at the Georgetown University McDonough School of Business. I
immediately ran off (virtually speaking) to read the article, and was happy to
discover that the piece made a lot of great points ... at least about the rule of law issue.
Ultimately, however, I am not sure that I agree with some of
his conclusions concerning the possibility of using a ‘free market’ approach to
the idea of establishing order quite independently of the legalistic machinery
of the state. This potential disagreement has nothing to do with a belief that
the state ought to be ‘the decider’ when it comes to dealing with social
interaction since I am fully in agreement with Professor Hasnas when it comes
to recognizing the totally arbitrary and politically motivated desire for
control which colors, shapes, and orients all legal decisions.
I do believe that ‘order’ should be negotiated by people and
not imposed by the state or by a central form of governance. This is my
perspective irrespective of whether the form of governance is religious,
militaristic, corporate, or political in character.
One problem that I have with the notion of ‘free market’
solutions (and I realize that Hasnas is using the phrase in a much broader
sense than in a purely economic manner) involves my concerns around the idea of
‘free market’ forces. More specifically, I believe that such a notion is as
mythical as is the idea of the rule of law.
Freedom/liberty is rooted in inalienable rights. Inalienable
rights exist prior to the existence of governance or any other form of social
interaction.
Inalienable rights are a function of natural law. However,
my approach to natural law is quite different from what traditionally is the
case when people seek to justify the idea of natural law – namely, by rooting
such law in Divine decree or in certain philosophical/scientific ideas
concerning the nature of human beings.
I have my own perspective in relation to the nature of
reality, Divinity, and life. Nonetheless, I also realize that I cannot impose
that perspective on other people by proposing that everyone else should adopt
my point of view … this would be very egocentric of me … as it would be in
relation to anyone who seeks to follow such a course of action (which,
unfortunately, includes most politicians, administrators, lawyers, and judges).
So, if rights are not to be a function of law, or
governance, or institutions, or religion, or philosophies of personhood, then
to what sort of natural law basis am I alluding? The two basic dimensions of
natural law have to do with epistemology and character.
All of us have beliefs and understandings concerning the
nature of things. Nevertheless, none of us is able to demonstrate the proof of
those beliefs and understandings beyond a reasonable doubt to the satisfaction
of others … or even in accordance with a lesser standard of the preponderance
of evidence.
We might know a few facts here and there – although as
Norwood Hanson pointed out quite some time ago even the notion of a ‘fact’
tends to be theory-laden – but, none of us has an a way of assembling those
facts into an unassailable theory concerning the nature of reality and the
purpose, if any, of existence. What we all have in common is a considerable
ignorance and accompanying inability to identify the nature of truth in any
given set of circumstances.
Students of the literature will recognize that there is a
certain resonance between the foregoing outline of our individual and
collective epistemological dilemma and the ‘Veil of Ignorance’ idea advanced by
John Rawls that was introduced through his seminal work: ‘A Theory of Justice’.
One difference between the two perspectives is that Rawls’ ‘veil of ignorance’
was a methodological device intended to lay the foundations for an analysis of
the idea of justice, whereas my approach to ignorance is to point out that
ignorance is our actual, existential condition … there is nothing of a
methodological contrivance about it.
So, to what does ignorance entitle us? Well, for one thing,
if we acknowledge our existential, epistemological condition, then everyone
ought to have the right to seek to push back the horizons of ignorance in
accordance with his ability and interests – provided that such activity does
not interfere with the like right of another to push back those same horizons
in accordance with his or her own ability and interests.
The foregoing principle can be summarized in what appears to
be a very simple statement but one which has many subtleties – namely, ‘neither
control nor be controlled. Among other things, one of those subtleties is that
competitiveness (whether economic, religious, political, legal, academic, or
athletic) tends to be entangled with issues of control, whereas co-operation
tends to explore how solutions to problems can be found that involve neither
controlling others nor being controlled by others –- and I believe that the
cautionary principle in ecology gives expression to this sort of orientation.
There are, I feel, a number of ancillary rights that are
entailed by the essential, natural right noted above. For example, one cannot really be said to have a right to
push back the horizons of ignorance if one must be preoccupied with merely trying
to survive, and, therefore, the right -- within limits to be negotiated -- to:
food, housing, clothing, health care, and a minimum guaranteed income are all
part and parcel of the fundamental right to seek to push back the horizons of
ignorance which befogs all of our lives.
Correlatively, every right is two-edged. In other words,
rights involve duties of care toward others in order to be able to ensure that
those individuals have what is necessary with respect to the issue of survival
in order to be in an equitable position to try to push back the horizons of
ignorance. To work for ourselves we must work for others.
Duties of care will not be fulfilled without character being
present in some minimal fashion. This brings us to the second dimension of
natural law..
One does not have to be committed to this or that religious
system or this or that philosophical system to be able to understand that human
beings have the capacity for character and that social order will prevail
precisely to the extent that the principles of character are either present or
absent. Developing character is one of the duties of care we have to ensure
that rights are honored.
Some people who are religious have character, while others
who consider themselves religious to not seem to grasp that idea and its
inherent principles. Some people who are atheists have character, while others
who share that general approach to life do not seem to exhibit the same sort of
behavior.
One can argue that the possibility of character is a
function of evolutionary progress over millions of years of change, or one can
argue that the possibility of character is a gift of God or the Great Mystery.
Nonetheless, in both case, the end result is the same – without character,
human beings (and any society of which they may form) are in considerable
difficulty.
By character, I am referring to the principles to which
almost all religions and humanist traditions (atheistic or otherwise) subscribe
and accord a special place within discussions of moral behavior. Patience,
love, honesty, sincerity, humility, tolerance, charitableness, courage,
integrity, nobility, compassion, love, friendship, gratitude, perseverance,
fairness, and so on all give expression to the principles of character.
The key to order is: (a) the recognition of our condition of
ignorance and a critically reflective realization of the rights (noted earlier)
that ignorance entails; (b) the acquisition of the principles of character that
are necessary to be able to properly honor the rights of (a) above; and, (c) a
means of dispute resolution concerning the pursuit and implementation of both
(a) and (b).
I tend to agree with the point made by Professor Hasnas in
his article that stipulates how methods involving mediation/arbitration in
relation to dispute resolution tend to be faster, cheaper, and more satisfying
to the people who participate in those processes than what tends to be the
outcome in relation to the adversarial dynamics that are inherent in legal
battles involving the so-called rule of law. In my book: “The Unfinished
Revolution”, I discuss how some indigenous peoples in Canada have returned to
the teachings of their ancestors and use ‘healing circles’ to deal with some of
the most horrendous offenses that one human being can inflict on others – for
example, murder, rape, incest, egregious physical abuse, and the like – and,
yet, have used healing circles to negotiate their way to not only resolving the
conflict and tensions ensuing from the foregoing sorts of offenses but, as
well, helping everyone – both victims (at least, the ones who are still living)
and perpetrators – to find their way back to the natural laws involving rights,
duties, of care, and character development. The results of such healing circles
have been truly impressive and tend to far outstrip the ability of a ‘rule of
law’ orientation to deal effectively with those issues.
In ‘The Unfinished Revolution’, as well as in another work
of mine – ‘Democracy Lost and Regained’ [the book explores the 9th
and 10th Amendments (mostly the latter) of the U.S. Constitution] – I indicate that if
one takes sovereignty – both individual and collective – seriously, then
people, not governments, must have control over their own destinies and that,
perhaps, the best way of providing people with such control is through the
vehicle of an enhanced notion of grand juries which takes the place of centralized,
state and federal governments and involves a rotating membership drawn from
local communities … although, in principle, one also could develop a
trans-community form of grand jury that would work in co-operation with local
grand juries with respect to certain issues that spill across localized
boundaries.
My idea of grand jury governance is somewhat like the idea
of the healing circles noted above. However, my grand juries are rooted in the
two principles of natural law outlined earlier rather than in the spiritual
teachings of this or that indigenous group … after all, the problem of diverse
societies is that they are unable to do what such indigenous peoples do – that
is, refer to a given tradition from the past which is part of the heritage of
the people who are participating in the healing circles.
The capacity to negotiate is very important to maintaining
order in a complex, diverse society. However, I believe there are ways to
mediate social disputes that can be effective, practical, and co-operative
which are quite apart from, and independent of, the notion of ‘free market
forces’.
People who are truly sovereign will co-operate and negotiate
to discover solutions that are in everyone’s interests. Moreover, I believe
that such sovereign individuals and collectives will be open to the capacity
for creative, imaginative ways of doing things that are inherent in human
beings.
Creativity, negotiation, character, duties of care, co-operation,
and rights are all human forces. To the extent that we are truly sovereign
individuals (and lest it is not clear, I consider a sovereign individual to be
someone who is able to observe and put into practice the two foundational
principles of natural law that have been outlined previously), we will be free
to pursue and exercise those forces in functional, effective ways.
While the foregoing perspective might share certain
resonances with the notion of a ‘free market forces-based’ approach to the
problem of order in the public space, I really don’t consider the set of six factors
that are mentioned at the beginning of the last paragraph to constitute a ‘free
market’. Rather, those six forces merely give expression to the interaction of
sovereign individuals seeking to establish the sort of order that is necessary
to preserve and nurture the quality of sovereignty both individually and
collectively.
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