Ethical Relativism: A Good Idea or a Path to Anarchy?

by Gene Howington, Guest Blogger

I had in interesting argument the other night. Not interesting because of the content precisely.  It was old ground about the rationale for being in Iraq and Afghanistan and this person took the position of the post hoc rationalization “to contain Iran” and that – and this was a new one, funny but new – that our reason for being there was based on our need as driven by the hostage crisis of the 70’s.  It wasn’t a match against a skilled opponent.  He was about as smart and skilled at argumentation as a house plant and that is really an insult to house plants.  But what was interesting was when the topic turned to the idea of just wars and ethical relativism.  I’ll  summarize the just war argument to give some context and then show how ethical relativism came into the conversation because it got me thinking about ethical relativism (and its natural cousin moral relativism).  Is it a good idea or a path to anarchy?

Summary of the just war argument:

A’s Primary Contention: We went to war in Iraq to contain Iran because we’re on a 70’s style revenge mission for the hostage taking.  (Ed. Note: Seriously. That was the claim.)

B’s Primary Contention: The rationale given the public for invading Iraq was “to disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism, and to free the Iraqi people.”  In the end, there were no WMDs, no support of terrorism, and the Iraqis were a lot better off before we removed the only stabilizing force holding their secular country together and destroyed their infrastructure. The just war would have been to attack those who attacked us on 9/11, the Saudis with help from Afghani terrorist training bases.  It would have given us the same benefits as invading Iraq (oil, common border with Iran) and come at a substantially lower cost to materials and troops when combined with an in and out strategy in Afghanistan (which history has proven to be fairly immune to long term occupation because of geographic and societal factors).

A: There is no such thing as a just war.  Name one.

B: I can name two.  American entry into WWII and the Revolutionary War come to mind, but there are other examples of just war through history.

A: We went to war to make rich men richer.

B: Really.  And that is a reason to wage war that is just?

A: I haven’t heard the term “just war” since Medieval History class.  You’re a (*#$#($*#head.

B: That’s all very interesting but I think you don’t know what a just war is. %$*($%$.

A: I know there is no such thing.

B: I can think of a couple of examples.  Coming to the defense of your allies in the face of outside aggression, in defense of attack or in retribution of an attack by foreign forces.

A: There’s no such thing as a just war. Just depends on your perspective.

B: No. It doesn’t. There are some ethical absolutes.

A: No there aren’t.

B: Saying there aren’t and proving there aren’t are two separate things.

A: You *()$(#)($#) $)#$()#$ ()$#$!

B: That’s still not proving there aren’t, )($#)()@head.  Are there are are there no ethical absolutes?  Yes or no.

A: That’s a stupid question.

B: It’s not stupid just because you can’t answer it. It’s a simple question.

[Much back and forth of “stupid” and/or ($#_)#@$#% combined with a rebuttal of “non-responsive, try again”.]

A: People make ethical judgements all the time.

B: That’s not what I asked.  Are there ethical absolutes or not?

A: Have your ethics changed over time?

B: Yes they have but that is irrelevant to the question here: are there ethical absolutes or not?

A: You’ve got nothing!

B: You saying I’ve got nothing is not the same as you proving I’ve got nothing.  Are you an ethical relativist?

A: Give me an example of an ethical absolute.

B: Human life has value. Protecting it is a good thing.

A: That’s true, but I just want to see some people die.

B: Then you are an ethical relativist and we really don’t have much more to discuss.

A: You’re jumping to conclusions.

B: No I’m not.  If human life has value except when you “want to see someone die”, then you are an ethical relativist.

The rest of the conversation was basically A drunkenly ranting about how I (B) didn’t know $*(# and that he had me just where he wanted me (on my knees) before he called me a little girl and proclaimed victory. I was very not impressed. I’d say it was embarrassing for him, but he proudly proclaimed that “ignorance was not a problem for him” and that he thought “retrograde drunken Neanderthal” was a compliment. But I digress . . .

It all got me thinking about ethical relativism though.

What is ethical relativism? It is the philosophical theory stating that ethics are relative to the norms of one’s culture; whether an action is right or wrong depends on the ethical and moral norms of the society in which it is practiced. There are no universal ethical or moral standards and the only standards against which a society’s practices can be judged are its own. The implication of this is there can be no common framework for resolving moral disputes or for reaching agreement on ethical matters among members of different cultures. We know from history that this is not the case. Some acts are considered to by universally wrong or right among the human species. Most ethicists reject ethical relativism because while the practices of societies may differ, the fundamental ethical and moral principles underlying these practices do not. Consider cultures where euthanasia is practiced like some Eskimo tribes when parents declare they are ready to die because of old age or illness, their families would kill them directly or leave them on the ice to die at the hands of nature.  This would be frowned upon in our culture, but if you look at the underlying principle – taking care of one’s parents – both societies hold this principle as valuable.

Secondly, it’s an important topic because a kind of ethical relativism is encouraged in law schools under the guise of giving all comers adequate representation and ensuring a fair trial. It’s also something you see more often now in public behavior than in the past: rationalizations of bad behavior based on personal desire rather than ethical or moral principle.  “I wanted to feel what killing someone felt like,” said 17 year old killer of  9 year old Elizabeth Olten. Truly a sign of someone with a broken ethical compass probably based in mental illness, but it illustrates the first problem with ethical relativism.  It injects ego into the equation.

Consequently and concurrently we cannot remove ego from the equation altogether.  If the ethical rightness or wrongness of an action depends on a societal norms, then the logical implication is that to be ethical that one must obey the norms of one’s society because deviance would be unethical or immoral. This leads to an interesting conundrum. If a member of a society that believes that racial or sexist practices are ethically wrong but they are permissible within that society, then one must accept those practices as morally right. This view is both oppressive and narrow in promoting unthinking social conformity and leaves no possibility for ethical and/or moral reform or improvement within a society. Consider that a lack of uniform majority though on a matter may not have created an ethical or moral standard to follow with the members of a society holding different views. Consider the example of the United States.  Need I say more than “abortion” or “animal testing” or “medical marijuana” to provide examples of such unsettled ethical questions?

One of the strongest arguments against ethical relativism comes from the assertion that universal ethical and/or moral standards can exist even if some practices and beliefs vary among cultures. In other words, it is possible to acknowledge cultural differences and still find that some of these practices and beliefs are wrong. Consider that although the Aztec had a society that was in some ways more advanced that their contemporary European counterparts, that their practice of human sacrifice is simply wrong. Just so, the barbaric treatment of the Jews, Roma, homosexuals and the mentally handicapped by Nazi society is ethically and morally reprehensible regardless of the beliefs of the Nazis.  Ethics are an intellectual inquiry into right and wrong through applying critical thought to the underlying reasons of various ethical and/or moral practices and beliefs. Ethical relativism fails to recognize that some societies may have better reasons for holding their views than other societies.

However, although ethical relativism has much going against it, it does remind us to examine and consider that different societies have different ethical and/or moral beliefs and invites us to examine those forces influence within our own culture. The only way to reach universal ethical truths whenever possible is through examining and challenging our own ethical systems by comparing them to other systems.

Can ethical relativism lead to anarchy?  When everything is relative, there are no true stable standards, so I think the answer is yes.

Should ethical relativism be discouraged in our educational systems and society as a whole or do you teach it with the proper caveats and perspective to make it a useful tool instead of a dangerous tool?

Is ethical relativism a good thing or a bag thing?

Or is it like most tools dependent upon the user’s intent and application?

What do you think?

~submitted by Gene Howington, Guest Blogger.

279 thoughts on “Ethical Relativism: A Good Idea or a Path to Anarchy?

  1. A lot of these concepts are ancient and not informed by some of the awareness we have added over the centuries.

    Some of those ideologies were not informed of the human capacity to self extinct, for human ecocide, nor utter destruction through nuclear war.

    Those concepts were not real back then, but they are now.

    So now we know we can self destruct our entire civilization, and that the cosmos, and even the Sun alone, can do it to us too.

    That gives a bench mark of doing what is required to survive, which means discovering and practising those principles.

    From that, we can determine if we are on the right track to survival or on the wrong tract to extinction.

    Once we master survival on the Earth, socially, among nations and ethnic groups, then we can go major league and focus on cosmic survival (The Tenets of Ecocosmology).

    We are utterly doomed on this planet unless at some time we master realistic space travel and mature cosmic migration.

    If we cannot survive as a group, as a socially mature species, then philosophies, religions, sciences, arts, collective knowledge, and individuality all goes down the drain together on a planet that will eventually be consumed by the Sun.

    And then there are the religious ways of thinking, for example, that God is going to save us from ourselves if we can’t do it ourselves.

    The following fairly short video is up to date and illustrates some bench marks for survival from a scientific perspective:

  2. That’s pretty easy, Kay. Just keep in mind this is my experience and may not be uniform across law schools, but mostly I find more in common between schools than not when talking to people from other schools than where I attended. They don’t frame the duty to the courts for a fair trial in terms of ethical relativism, but that is the implied lesson from the emphasis on ethical relativism being a way to defend clients fully and zealously whether you think they are guilty or not personally. That’s actually necessary. However, they frame the duty owed the court vis a vis a fair trial without ever discussing in depth the impact zealous representation has on that duty. It basically, “Don’t let your duty to represent interfere with your duty as officers of the court to promote a fair trial and justice.” At least I never heard anyone speak about it with greater depth than that. Everyone is basically left to figure out that relationship on their own. Some do better at this than others and figure out ways to zealously represent without letting it get in the way of keeping the courts fair. Some don’t do so well with the concept and adopt a win at costs mentality that is ultimately damaging to the court’s ability to provide a fair trial. Honestly, I don’t know if educating the law students better on the philosophy here would make a big dent in the percentage of those who figure out that a zealous defense is not the same thing as manipulation of process to get a desired result, just or otherwise. A better ethical education may not eliminate the problem, but it would certainly mitigate the problem.

  3. Also Kay, they tend to teach ethics geared toward passing the MPRE, the Multistate Professional Responsibility Exam. I had few options beyond that regarding ethics and the law in a more general sense. I did, however, have a course in logic and legal reasoning which I’ve since found out is not a common offering. It was excellent and helped answer a lot of questions including ethical ones via providing and enhancing useful analytical tools, but it wasn’t an ethics course proper.

  4. Superb treatment of the topic, Gene. As you know I’ve subscribed to the moral/ethical relativism camp. Societies create most everything they utilize including their own ethical structures. These structures change with succeeding generations but they are decidedly parochial. Efforts to find a universal norm usually end in failure with the prohibition against murder being the best approximation. This leaves a resort to some deity or other fixed locus of morals which most often mimics the proponent of the fixed point.

    You’ve got to love anthropology.

  5. Is ethical relativism a good thing or a bag thing?

    Or is it like most tools dependent upon the user’s intent and application?

    What do you think?
    =========================================
    Like I said in my comment above, it depends on how myopic, or to the contrary how big of a picture one wants consideration of the issues to be.

    If one wants to limit them to the ethical relativism of a particular blog, an example of myopia, then one type of reasoning will develop.

    If one wants to limit it to a particular nation, the vision expands some, but still that is myopic.

    The largest territory is universal, cosmological, then down to perhaps galactic, then down to a star system, then finally down to a planet.

    So that ethical relativism can have its limited place, based upon the users intent and application.

    However, humanity has only been around for an extremely insignificant amount of time, thus those things that precede us such as cosmological law, the law of star birth and death, and natural planetary laws, should govern concepts of both absolutist ideology and relativistic ideologies.

    Currently, the human civilization is doing quite badly in terms of ability to survive very long.

    Mouths are blabbing constantly within a sphere that will go silent if society does not mature very significantly.

  6. mespo,

    Thanks. And I too see the value of ethical relativism as an analytical tool but the dangers as well. I also don’t think that ethical absolutes are always unattainable though. The problem is usually cross-cultural and semantic. One man’s murder is another man’s religiously sanctioned and ethically (within that society) proper and legal honor killing. Both societies prohibit murder, the disagreement is over what constitutes murder and why. I don’t think that is an insurmountable problem in defining an ethical absolute. It’s a problem in enforcing it from an ethical standpoint when you are fighting against the weight of religiously derived definitions that may be and often are irrational. Ethics comes with reason that morals do not require. For that reason, it can find answers some of the time that evade codes based on belief.

  7. Thanks again for adding a lot of words that don’t add any substance, Dredd, other than to pimp yourself and one of your blogs. You are a tiresome thing. Predictable as you are tedious.

  8. Either your opponent truly was an idiot, or you are doing his arguments a serious injustice. How do you avoid “just” wars? In retrospect it’s easy but in real time it’s possible.

    Would we have had WWII if Europe had immediately turned its back on Hitler, economically throttling his reich? NOTHING could have been done? Really? REALLY?!!!

    And given that the United States of GOD BLESS AMERICA overthrew the FIRST democratically elected government in the Middle East because they weren’t rude enough to communists, maybe just maybe don’t’cha think it’s remotely somehow within the realm of theoretically probability that the hostage situation would have never happened had we not effed with Iran first? And that absent the hostage situation (and the Shah’s fascist Iran in general) there wouldn’t have been most of the crap we’ve got in the Middle East today?

    Your sarcasm does not mitigate your impenetrable “oh this is obvious” logic. Wars can be avoided, just like sanctimony.

    Oh, and I also believe in just war. It’s just that I’ve never seen one lately that couldn’t have been averted had the other parties made any real effort. But the first step is this: STOP MOCKING THE PEACEMAKERS. YOUR CYNICISM MAKES FUTURE WAR INEVITABLE.

    And since I mentioned that I believe in just war, I should also point out that I believe in just revolution. If this country goes to war with Iran, American citizens will be justified in taking up arms against our government. We’re past the enough is enough stage. It’s time to stop going to war just because Israel said we should. And yes, isn’t it truly amazing that no where else in the entire world are our interests threatened like they are in the Middle East? We never talk about going to war anywhere else. Maybe your opponent should have mentioned that. Or maybe they did, but that’s the part of their message that made no sense to you.

    My name is Mark Gisleson. I got locked into an old blogging identity on this site but I wouldn’t want to hide my name while responding to this post.

  9. Mark/Wege,

    “Either your opponent truly was an idiot, or you are doing his arguments a serious injustice.”

    Go with your first impulse there. I hit the high points relevant to introducing ethical relativism, but the rest of his argument was just about as cogent as that in the summary and not worth including.

  10. The first essential piece of a fair trial is that it follows certain rules that have been laid out beforehand, and thus, that all the participants in the fair trial knew, before the trial started, what those rules were. Anybody challenge this one? Please do if you disagree because I’m going somewhere with this.

  11. Malisha,

    There are rules in place and both counsel should know them beforehand. Courts have rules to their particular type of court and there are also evidentiary and civil procedure rules that must be followed.

  12. Secondly, it’s an important topic because a kind of ethical relativism is encouraged in law schools under the guise of giving all comers adequate representation and ensuring a fair trial. It’s also something you see more often now in public behavior than in the past: rationalizations of bad behavior based on personal desire rather than ethical or moral principle. “I wanted to feel what killing someone felt like,” said 17 year old killer of 9 year old Elizabeth Olten. Truly a sign of someone with a broken ethical compass probably based in mental illness, but it illustrates the first problem with ethical relativism. It injects ego into the equation.
    ======================================================
    Law schools teach law, supreme law included, which is the U.S. Constitution.

    That constitution has absolute concepts (freedom of religion) which allows all kinds of divergent, different, and contradictory beliefs, dogmas, doctrine, and practices.

    As a matter of law difference is protected, but the limits imposed say “go this far but no further”.

    Killing someone to see what it feels like is going too far, but one can have the belief in a just war that kills millions.

    We have a mixture of both absolute and relativistic that is derived from rear-view-mirror sociology and law … always looking backwards into the rear view mirror to see where to go.

    The front windshield approach is better informed, the bigger picture, so all law should derive from absolute concepts of where we want to go:

    Earth’s fate is precarious. As a red giant, the Sun will have a maximum radius beyond the Earth’s current orbit, 1 AU (1.5×1011 m), 250 times the present radius of the Sun. However, by the time it is an asymptotic giant branch star, the Sun will have lost roughly 30% of its present mass due to a stellar wind, so the orbits of the planets will move outward. If it were only for this, Earth would probably be spared, but new research suggests that Earth will be swallowed by the Sun owing to tidal interactions. Even if Earth would escape incineration in the Sun, still all its water will be boiled away and most of its atmosphere would escape into space.

    (Tenet One Basics). Science says we are absolutely doomed if we stay on this planet too long, so if someone wants to override that with some ethical relativism that says “I don’t care” should those who want to develop space travel to avoid certain doom of the human race have to bow down to “I don’t care”?

    No.

    That is why absolutes have to be developed at the highest plane (cosmological), the place that protects the highest quantities and qualities of life.

    So, the law that acknowledges both absolute and ethical relativism concepts still has to be used to insure survival.

    If a religion says the Sun will last forever, “so don’t believe the science,” imposing that religious tenet upon those who believe the science is not proper, even though freedom of religion allows those of that religion to believe and practice their religion.

    They could stay and the others could leave to a safer planet for example.

  13. America has no sense of its own history and cannot connect the dots. Or the threads. The old geezer he was talking to refers back to the “hostage crisis” of the 70’s in Iran. Well, the son’s of those “students” and some of those “students” are now in Afghanistan, Syria, Lebanon, and Gaza. In Gaza they direct Hezbollah or however one spells it in English, to shoot rockets into Israel on a daily basis. They Ayatollahs still reign in Iran since the “crisis of the’70s”. That crisis did not just come and go. It came and stayed. The man on the street in America forgets. Now the Ayatollah is about to get a nuclear bomb. The “students” are in dire need of it in Gaza and will like to bring one to a city near you.

  14. The issue isn’t so much “moral absolutes” as immoral absolutes, when acts cease to be acts done to survive. Immoral absolutes can come from culture, but also situations and ideology.

    Atrocities throughout history (the Nazis, Soviets, crusaders, etc.) were a result of ideology and religion – their acts and arguments were directly related. No barbarity was ever perpetrated without it being rationalized or “justified” first, without dehumanizing or lessening the value of others as human beings. That’s even true now, the US using “anti-terrorism” as a rationalization for stealing oil.

    Situations can affect what we lable moral or not. Here are a few examples, some real and some hypothetical:

    * Some people label “partial birth abortions” as murder because the foetus is removed in the eighth or ninth month. But what if the foetus is unlikely to survive (e.g. clinically brain dead before birth), not live very long, or giving birth will kill both the woman and the foetus? Or what if a woman was raped? How can forcing people into untenable decisions be “moral”?

    * What if someone were fatally wounded, say, bitten in half by a crocodile in a river and medical care wouldn’t arrive in time. Is it murder to end the victim’s suffering, especially if the person asks?

    * Imagine during the Apollo 13 flight that so much oxygen was lost there was only enough for one man to survive the trip. Would it have been justified for one man to kill two others if there weren’t two volunteers for suicide?

    * If food supplies worldwide were to crash because of overpopulation and environmental damage, will it be okay for people resort to “Donner Party”/”Soylent Green” diets to survive? No one looked down on the survivors of the 1972 Andes plane crash for eating their dead friends and the pilots because they had nothing else left. Is cannibalism only a crime and socially unacceptable because there is enough to eat?

    To my mind, the only true moral absolutes are to survive and propagate, to fight and ensure the survival of the species. Socialized animals (and even less aware animals like reptiles) are capable of empathy or decision making (i.e. big fish not eating cleaner fish on coral reefs) toward their own or certain species.

    The line where we call things moral really begins where things are immoral, when animals and acts become malicious. Feline males kill the young of competing males, but that is done to send females into heat; there is “evil” in the act. It is in humans and other primates that are capable of hurting others for intimidation, territory and “sport”, not just food and breeding rights, that morality becomes a topic. We and animals like chimpanzees sometimes display deliberate acts that serve no purpose in ensuring survival. They are done solely to cause emotional and physical injury, to show dominance.

  15. FairlyBalanced,

    Thank you for that rousing bit of apologist post hoc propaganda. We should always go to war for incidents that happened almost 40 years ago. Why, everyone know that it wasn’t the bombing of Pearl Harbor that started our involvement in WWII, but rather it was a continuation of the War of the Golden Stool between the UK and the Ashanti Empire.

    That last part was sarcasm.

  16. Also FB, containing Iran could have been better accomplished and cheaper by justly invading Saudi Arabia after 9/11. It would have provided access to oil and a long common border with Iran if we’d made SA an occupied protectorate.

  17. Gene

    Do you have any thoughts or knowledge of societies present/past that show higher/lower degrees of moral and ethical relativism across that societies generations? If yes, are there commonalities or tendencies that are seen within those society’s cultures and histories that are notable?

    In other words, are there examples of societies that are fairly immune/prone to high degrees of evolving morals/ethics(maybe through heavily codified ethical standards that are less open to malleable interpretations across generations in the case of “immune” group)? What’s the effect?

    Nice article, btw.

  18. @Gene: Is human sacrifice immoral if the sacrifices are volunteers, that truly believe because of their willing sacrifice that God will take mercy on their community and end a drought, repel an invader, or make the fish return? Voluntary human sacrifice was not unheard of, in Egypt, Norse, and pre-Columbian South America at least. Perhaps in Druidic culture as well.

  19. Lots of theory here. However, while a judge in a jurisdiction is bound to adhere to the rules of civil procedure, and while they do in theory, there are wide variances in the application of those rules. There are plaintiff and defense judges and anyone who has worked in litigation knows this quite basic fact.

  20. Concerning planetary absolutes and ethical relativism at the planetary scale.

    The video I used in the comment up-thread shows how national law, no matter how good, is not sufficient to solve the deadly serious global problems.

    It is like, ok you are a sovereign nation, so whatever you do is sovereign.

    But what if some nations do not believe the science, as some religions do not?

    Our House of Representatives has dozens of members who think global warming is the greatest hoax ever, and surely that ideology must exist in other national governments as well.

    Thus there is a international form of ethical relativism even though some sovereigns have laws that punish or prevent more and more of the events that are endangering every nation via destruction of required human habitat.

    The absolutes need to apply to all nations, as do the instances of ethical relativism.

    The United Nations comes to mind.

    If the absolutes are at the highest level, then a united international body can deal with those allowed instances of ethical relativism, insuring that they go no further than practices that do not harm the whole of humanity, including themselves.

    In other words an international enforcement of pollution issues that affect all human beings and nations.

    There can still be absolutism mixed with ethical relativism, because to a significant degree nations can choose the crops they want to farm, choose trees they want in their forests, flowers, the fish they want as food stock, and everything like that which does not harm the whole.

    It is kinda like freedom of religion in the sense one can have any religion but it can’t violate criminal norms in the name of religious freedom.

    The just war concept could apply to rogue nations who feel they have the right to pollute the Earth everyone, including that rogue nation, depends on.

    Police action would probably be a better term, ” a just police action.”

    This is a concept that intends to give all nations freedom, but not ethical relativism to the point of reckless abandon that harms the whole.

  21. GeneH,

    ““Don’t let your duty to represent interfere with your duty as officers of the court to promote a fair trial and justice.” At least I never heard anyone speak about it with greater depth than that. Everyone is basically left to figure out that relationship on their own. Some do better at this than others and figure out ways to zealously represent without letting it get in the way of keeping the courts fair. Some don’t do so well with the concept and adopt a win at costs mentality that is ultimately damaging to the court’s ability to provide a fair trial. Honestly, I don’t know if educating the law students better on the philosophy here would make a big dent in the percentage of those who figure out that a zealous defense is not the same thing as manipulation of process to get a desired result, just or otherwise. A better ethical education may not eliminate the problem, but it would certainly mitigate the problem.”

    Let us compare to political advocacy. I know of no pol who will do otherwise than “whatever” to gain his case, whatever is needed.

    How can a lawyer act as an advocate, and not play at the same time the role of a judge, saying that this considered action is unethical, against the canons of the practice of law—-I am grappling in an unknown area for me.

    What guides him in his strivings to not let his advocacy overstep limits? I think you said that there were none, and further teaching would not necessarily correct the problem.

    He is not given guidance nor norms to follow.

    Is the satisfactory? Do you have more to add?
    If you think it worthwhile to elaborate.

  22. Tony C. 1, October 21, 2012 at 10:22 am

    @Gene: Is human sacrifice immoral if the sacrifices are volunteers, that truly believe because of their willing sacrifice that God will take mercy on their community and end a drought, repel an invader, or make the fish return? Voluntary human sacrifice was not unheard of, in Egypt, Norse, and pre-Columbian South America at least. Perhaps in Druidic culture as well.
    =====================================
    Interesting point.

    I read an historical paper once that advanced the notion that those societies that began human sacrifice of the religious ritualistic sort soon collapsed.

    The example nation was Carthage, a competent sea power that kept Rome at bay for a long, long time … until it began to practice human sacrifice.

    Evidently that practice does damage to the sense, comprehension, and other cognitive abilities.

    Anyway, if David Roberts and other scientists are correct, civilization is now practising human sacrifice on a global scale.

  23. Ones perspective is based only on the knowledge that is at hand. Some of it is truth, some of it is fiction. Your position can be either truth or fiction, depending on the knowledge you possess……

    Most wars are based upon lies….. And in support of your allies….. Wilson may have had merits to his points of nonintervention…..and to remain natural….. But there is too much money to be had……

  24. ” In the end, there were no WMDs, no support of terrorism, and the Iraqis were a lot better off before we removed the only stabilizing force holding their secular country together and destroyed their infrastructure.”

    Economics first?
    Bill Keller, NY Times April 6, 2002:
    “My candidate for underreported news item of the season is the announcement last month by Deputy Prime Minister Tariq Aziz that Iraq was increasing the blood money it pays to families of Palestinian suicide bombers, from $10,000 to $25,000. I’m not suggesting that market forces are the main impetus for the rise in terror, but in the West Bank or Gaza $25,000 is not a meaningless incentive.”

  25. FairlyBalanced,

    To imitate MikeS:

    Do scare propaganda often? How is the sky doing today Chicken Little?

    You ignore history and create evil opponents from those who oppose our attempts to take over their country and/or its resources.

    You, in all likelihood, can not see that taking out the secular Iraq took away its hindrance to the expansion of Iran, in competition with Saudi Wahabism and the Salsfists.

    Please return to the topic at hand.

  26. Gene

    I’m sorry I missed your comment at 8:27. The fair trial problem is a huge issue to me personally and to a lot of other people who suffered in our courts, see LawlessAmerica.com.

    Do you have an opinion on court orders against self representation and on imprisonment of pro se litigants such as myself for attempting to get redress in court after initially being denied due process?

  27. The East Coast is facing higher seal level rise than most of the rest of the country NOW.

    Several island nations are facing the same thing NOW.

    Global behavior, not local behavior is causing the East Coast and those island nations to suffer locally.

    Eventually everyone will face more and more what they now face.

    Our global laws are not composed of the proper amounts of absolutism nor ethical relativism to deal with the problem, nor are the global courts.

    http://www.cbsnews.com/8301-18563_162-57464122/fast-rising-sea-levels-hit-atlantic-coast-hardest/

  28. As to the main post, I do believe in a small core of ethical absolutism; but that belief contradicts (I think obviously) the “state of nature” arguments of most philosophers trying to intellectually synthesize the social contract from first principles.

    If we have some ethical absolutes, then however they might be defined we are born with those ethical constraints on our behavior, by definition. Some acts are right, and others are wrong. The prohibitions and laws against those acts are not a result of people giving up something they never had, and the rationale for the social contract is damaged, because one of its axiomatic first principles is not really a first principle at all: Ethical absolutes precede it.

    In my view, ethical absolutes cannot really be defined in terms of specific acts, because (and I believe this was an intellectual conundrum for early philosophers) many acts we think of as immoral (like killing another person) end up, with sufficient qualifying circumstances, to be moral in tightly defined scenarios.

    I can even justify cannibalism (especially with the consent of the eaten) in certain dire circumstances (say, injury in a crash with certain death anyway) where the alternative for people they love would be starvation. However, I think it easier to justify cannibalism than it is to justify forcible rape or forcible slavery. When I ask myself why I feel that way, in light of the horrors I can justify as moral in some circumstances, I arrive at at least a clue to ethical absolutism: There is something immoral in the use of force in the pursuit of personal gain; whether that gain is labor (like slavery) or sexual gratification or even reproductive success (in the case of rape).

    I do not regard suicide as immoral, and I do not think a prohibition on it can qualify as an ethical absolute. It might be suicide by volunteering to be sacrificed due to one’s religious beliefs. It might be suicide by volunteering to be cannibalized to save others. It might be the suicide of 300 Spartans volunteering to engage in a delaying battle tactic to save their loved ones.

    So is the prohibition on “force” an ethical absolute? I do not think so; I think the specific prohibitions on rape and slavery are just another clue to something larger. Because without force in some form, we would subject ourselves to free riders. Just because something is an ethical absolute does not mean everyone will believe it; born psychopaths and sociopaths, which may be people born with developmental errors in the brain, believe only themselves matter and all other lives are expendable resources.

    That can be another clue. Ultimately our ethical choices are all about something I DO believe is inherent in normally developed brains, and that is an over-arching concept of “fairness.”

    It has nothing to do with the cultural specifics, or religion, or anything else. Ethical behavior is fair behavior. Sometimes it is fair to use force when somebody else is acting unfairly. It is unethical to deny somebody coverage they thought they had, and you let them believe they had, or even tricked them into believing they had. If they suffer or die because of that denial, you deserve forceful punishment that “fits the crime,” another general invocation of “fairness.”

    To me the ethical absolute is objective fair play. Killing invaders (home or country) is fair play, they should know they risk their lives by the act of invasion. Although I find it horribly misguided, the human sacrifice of volunteers would not be unethical, no more so than any other religious figure sacrificing their own life or happiness to serve their God.

    Not all cultures revere “life” as an absolute good and death as something to be avoided at all costs, Spartans, Romans, Greeks, the Norse and many others (including some of our founding fathers and many American soldiers) have all consciously embraced personal death as a coin to be spent on achieving a greater good, in the pursuit of a more lasting “fairness.” For example, wouldn’t you say (Gene) that our own revolution was spurred by the unfair treatment of the colonies by King George? Wouldn’t you say the Civil War was spurred on by the unfair institution of slavery?

    Fairness, as an absolute, is not the empty rhetoric “Do unto others as you would have them do unto you,” because that is too generalized and too culturally subjective. Fairness is something the normally developed human brain will inherently process, as many psychological experiments across many cultures demonstrate.

    So it is NOT fair to use force to bend others to your will or personal gain or pleasure against their will; it CAN be fair to use force to prevent free riders from exploiting our common works for their own personal gain or pleasure against the will of the people. The prohibition is not on “force,” per se, or even “coercion,” the prohibition is on using those tools for unfair gain or advantage.

    I think the ethical absolute is fair play. Although what is “fair” is open to rational debate, I do not think it is endless debate.

  29. I can see the sense in Tony’s “ethical absolute is objective fair play” but doesn’t the rationale debate then reveal that “fair play” is semantics for “equally and impartially” which makes it a judgement call and not an absolute. Absolutes require that emotion and self-interest be set aside.

    I will have to join Slarti in pondering this material further.

  30. The goodest ole boy form of American Exceptionalism is a form of ethical relativism run amok (“the first problem with ethical relativism. It injects ego into the equation” – Gene H).

    In effect it declares “we are better than you are so what we do is axiomatically better than what you do”, irrelevant of what that “we do” happens to be.

    We are good enough to practice terrorism, you are not; we are good enough to invade and occupy nations on our say so, but you are not.

    We are good enough to ignore international norms, but you are not.

    We are good enough to pollute the Earth more so than any other nation, but you are not.

  31. @Blouise: I do not think it IS a “judgment call.” If we allow objective reasoning into that category then everything is a judgment call, including whether 1+1=2. I am not being flip, I am using an extreme to disprove the claim that “objectively fair” is equivalent to a judgment call.

    Certainly everything in ethics does in fact depend upon brains being able to project outcomes of human actions and decisions, and brains being able to judge whether or not somebody has taken an unfair action against another.

    But the involvement of the human brain does not automatically make everything subjective. It requires human brains to engage in science, mathematics, and to process all of the other things we regard as “objective fact.” Just because we are involved and must agree does not mean that all knowledge is subjective, cultural, or circumstantially dependent.

  32. Tony C,

    All true but is it not that very thing that leads us to relativism?

    What I’m talking about here is a balance between the ethical expectations of one’s society and the character of the individual within that society i.e. moral absolutes? Ethical codes devoid of moral absolutes are empty and “fair play” as the moral absolute seems too subjective to be an absolute.

    Taking another human life is wrong … moral absolute. In order to justify the taking of a human life one must present reasons for doing so that the society can accept as “fair play”.

    However, it may be that I have not fully understood your position and need time to adjust to the semantics of the word “fair”.

  33. I remember the first time I encountered the term, “Situational Ethics.” My grandmother ran an antique shop and had a lot of old books, one of which had that title. I think I was about fourteen at the time, and remember being appalled when I read the book. The idea that one can do some kind of mental gymnastic and find excuses for almost any kind of behavior went against the grain of what I believed then and still believe. Nothing is black and white, and there can be exceptions, such as the “thou shall not kill” proscription. Translated from the ancient Greek, it actually means, “Thou shall not murder,” but that is an argument for another venue. Some years later, Fr. Joseph Fletcher, an Episcopal minister, wrote on the topic, but the book I saw i my grandmother’s shop predated Fletcher’s interpretation by several decades.

    Later, I learned about the concept of Karma, and that fit my worldview more closely. If you screw up, you have to keep coming back until you get it right. As I grow older and am coming to grips with my own mortality, I realize more each day that the human race is doomed to eventual extinction. If not by our own hand, it will be through evolutionary change or astronomical catastrophe. Each day, I encounter more instances of selfishness, greed, hypocrisy, and lies, all in the name of some religion. The image of the Pope wearing Prada slippers and gold brocade robes that cost enough to feed and provide medications for several third world villages for a year makes me ill. Vow of poverty my a$$.

    The clock is running. What are each of our readers going to do with the time they have left that will benefit the human race? Keep in mind that benefiting the species may not equate to benefiting oneself.

  34. Wasn’t the gas used on the Kurds in Iraq considered a WMD?
    Shall we wait until after Iran nukes Israel ?
    Is murdering your daughters okay just they’re becomeing westernized?
    Are we trying to stop evloution through global warming?
    What was the real reason why we got in the vietnamese war?

  35. Great job Gene. I believe that fair play as Blouise brought up can and is defined differently by different people. According to the Sec. of State in Ohio is is fair play to try to stop people from voting. Unfortunately, I don’t think someone’s morals or politics can ever be totally left out of the decision process.

  36. I used to live in Steamboat Springs Colorado. I had a problem there with a bully who lived next door and was president of the city council. This guy bullied me for years and he got the city involved. Part of his bullying was that he built extra buildings that violated the zoning and development codes.

    No one wanted to get involved. One of the city council members said that Princeton Ave was just a small road and not important. Even people who were supposed to be my friends said they couldn’t afford to get involved because it would cost them money or they would be injured. They just let me and my family have our lives destroyed.

    So what happened was that because they didn’t enforce the zoning and development codes on my street, then they didn’t enforce it elsewhere. So then a David Engle died in a fire because his home didn’t have two egresses. His neighbor tried to save him but couldn’t get in because the fire was in front of the only way in. His apartment was in a one car garage and the other three sides were all cement. So basically the local community thought there was no substantial cost to letting my family be bullied because we weren’t important. But then a long term city resident lost his life as a consequence. As if that wasn’t enough the Colorado fire association noticed so there was some publicity from outside so then they started worrying about how their policy of only enforcing the zoning and development codes sometimes would affect them financially in terms of tourism, second home sales, and attracting workers.

  37. http://www.theobjectivestandard.com/issues/2006-spring/just-war-theory.asp

    “Just War Theory is conventionally advocated in contrast to two other views of the morality of war: pacifism and “realism.” Pacifism holds that the use of military force is never moral. Just War theorists correctly criticize this view on the grounds that evil aggressors exist who seek to kill and dominate the innocent, and that force is often the only effective way to stop them. War, they hold, is therefore sometimes morally necessary.

    “Realism” is the view that war has no moral limitations. Just War Theory rejects this theory as well, holding that war, when necessary, must be conducted in accordance with strict moral principles. Since “realism” renounces morality, Just War theorists observe, its advocates cannot in principle oppose wars or acts of war in which the guilty unjustly kill the innocent. More broadly, Just War theorists argue, “realism” is deficient because it denies the need to think carefully about the moral issues raised by war. Given that, in wartime, thousands or millions of lives hang in the balance—given that war is a major undertaking with the potential to do massive good or massive evil—we are obligated to consider the important, and non-obvious, moral questions that war raises. These questions include: Under what circumstances should a nation go to war? And: What should a nation’s policies be toward the soldiers and civilians of enemy nations?”

  38. When looking at the matter of ethical relativism/moral relativism and moral absolutes I have always found the Hatfield/McCoy feud to be one of the best jumping off points but one as to be fully versed on the the actual history and the legend in order to mount a sustainable argument … which one can do using either side.

  39. @Blouise: Taking another human life is wrong …

    How about in self-defense? How about in the defense of somebody that cannot defend themselves? How about killing a psychopath like Saddam Hussein or Ghadafi or Hitler, that we (with rational certainty) know will kill many others if allowed to live?

    This is my point, what appears to be an immoral act stops being immoral under certain circumstances.

    Which means acts, in and of themselves, do not define morality, but there is still an absolute to be found in the abstract, and that absoluteness is provided with the abstract concept of what is “fair.” What is moral is derived from what is “fair.” It is fair, under certain circumstances, to take a human life; usually under some circumstances when other human lives are part of that equation.

    As far as the semantics of the word ‘fair,’ I do not think of ‘fair’ as being an emotional condition (although it can give rise to emotional conditions; just as a physical injury is not an emotional condition but can certainly give rise to one).

    I think of fairness as being, like mathematics or physics or chemistry, something people can understand and perceive that is still independent of their understanding and perception. Which is why I think “fairness” can be an objectively determined state, within some small margin of error (just like physics or chemistry or other physical sciences).

  40. “Creon (to Antigone): “You, tell me not at length but in a word.
    You knew the order not to do this thing.”
    Antigone: “I knew, of course I knew. The word was plain.”
    Creon: “And still you dared to overstep these laws.”
    Antigone: “For me it was not Zeus who made that order. Nor did
    that Justice who lives with the gods below mark out such laws to
    hold among mankind. Nor did I think your orders were so strong
    that you, a mortal man, could over-run the gods’ unwritten and
    unfailing laws. Not now, nor yesterday’s, they always live, and no
    one knows their origin in time …””

    Antigone

  41. I would gladly immolate myself on the Capitol steps if it would make a difference.

    Where does this sudden appearance of “fairness” come from? Several have used it. Some legal eagle, surely he remembers, pointed out that the law (or was it justice?) was NOT fair, but it was legal.

    Fair in my interpreter means equality, as in “fair and square”, “measure for measure”, etc. This was mentioned before today. Cost versus benefit being equal.

    But how this almost instinctively held concept is to be applied is another matter. And is the concept ubiquitous within different cultures?

    Belief in absolutes is always a wrong way to go in my mind. Because they are mental constructs, subject only to logic and have no empirical grounds or proof of value or even existence.

    I am admittedly over my head in these waters, so fire when ready, Freddy. C’est égale!

  42. Blind Faithiness says:

    “Do you have any thoughts or knowledge of societies present/past that show higher/lower degrees of moral and ethical relativism across that societies generations? If yes, are there commonalities or tendencies that are seen within those society’s cultures and histories that are notable?”

    In other words, are there examples of societies that are fairly immune/prone to high degrees of evolving morals/ethics(maybe through heavily codified ethical standards that are less open to malleable interpretations across generations in the case of “immune” group)? What’s the effect?”

    Those are excellent questions and unfortunately I don’t have any concrete knowledge on those issues because I’ve never come across any kind of study like that. However, I do think you’ve just made some aspiring Ph.D. very happy by providing either a thesis subject or a study he/she can apply for a grant to complete. Certainly hope so anyway, because I would love to read those results myself. I can see some problems with conducting such research historically, the first being resolution of data. It’s going to degrade as you go back in time fairly rapidly. It would probably be better to build data working from the present forward, but I’m not sure anyone would live long enough to use a meaningful timescale in creating their sample space. But that’s some graduate student’s problem to work out. :D

    “Nice article, btw.”

    Thanks.

  43. Tony C,

    I think human sacrifice falls into the category of problems where it is possible to acknowledge cultural differences and still find that some of these practices and beliefs are wrong. Killing people for a belief, even if it is earnest and the victims are voluntary, is simply ethically wrong headed and unscientific no matter the cultural differences much like eugenics is simply wrong no matter what the Nazis practiced. Not all ideas, including those within an ethical framework, are created equal. Does the voluntary takes some of the onus off of it? Perhaps. But not enough to transform it from a bad idea to a good idea.

  44. nick says, “Lots of theory here. However, while a judge in a jurisdiction is bound to adhere to the rules of civil procedure, and while they do in theory, there are wide variances in the application of those rules.”

    That guidelines vary in application by geography does not change that those guidelines exist. The even and consistent application of them is an issue created by the human element in the machine. Until humans are perfect, their administration of their constructs is going to be as imperfect as they are. Now while human fallibility and imperfection can be mitigated by careful rule construction, it can never be eliminated. To reject a solution because it is imperfect even if it is functional is the Nirvana fallacy. Functional with an aspiration of perfect ethics and justice is the best we can do unless we turn over the administration of justice to machines (which would present a whole other set of problems but eliminate the issue of even and constancy in administration).

  45. mahtso,

    Israel isn’t the 51st state. The issue remains there was no evidence Saddam was funding terrorist attacks against us. He dismantled his chemical weapons program after our previous smack down on him. The last thing he wanted to a piece of us again. But comparative pennies on just screwing with Israel? Sure. He was down for that. It doesn’t compare in scale to the 9/11 attack or change that he had nothing to do with it.

  46. Tony C says, “I do believe in a small core of ethical absolutism;”

    I’m down with that.

    “but that belief contradicts (I think obviously) the “state of nature” arguments of most philosophers trying to intellectually synthesize the social contract from first principles.”

    Sigh.

    “If we have some ethical absolutes, then however they might be defined we are born with those ethical constraints on our behavior, by definition. Some acts are right, and others are wrong. The prohibitions and laws against those acts are not a result of people giving up something they never had, and the rationale for the social contract is damaged, because one of its axiomatic first principles is not really a first principle at all: Ethical absolutes precede it.”

    The fallacy of composition, Tony. Just because some principle are absolute does not mean all are absolute. The axiom of the social compact is based on the exchange of freedoms found in the state of nature for mutually derived benefit. Not all things (rights/freedoms) of value to be exchanged for mutually benefit are necessarily of equal value or like quality. The prohibition on murder as a protection for the right to life is not equivalent to the reasonable restrictions such as prohibiting defamation and incitement placed on the right to free speech. The right to life is an ethically absolute principle and our laws reflect that taking a life is excused under very narrow circumstances related to other primal absolute rights like the right to self-defense or a relative right like the right to defend others from imminent harm. The prohibitions on the right to free speech – which in the state of nature is absolute – are socially customary as our society considers defamation (lying) as malum in se and incitement as malum prohibatum for public (safety) policy concerns.

  47. All I’ve got are questions right now, so I thought I’d share with the class…

    Tony,

    You mention killing Saddam Hussein—Was it moral/ethical to start a war (on false pretenses) that killed over 150,000 people to stop Saddam?

    Gene,

    Are morality and ethics shaped by intent or result (or both)? Which should people be held responsible for?

    Blouise,

    Anything that takes your mind off of kicking my ass at Scrabble is good with me… :-P

  48. I was not for taking out Iraq and I am not for taking out the Saudi regime. The Bushie got the wrong Eye country. He should have invaded Iran. Now they are about to get a nuclear bomb. When they use it the chickens will come home to roost. It took Japan about 40 years to get up to speed to bomb Pearl Harbour. So the parallel Gene makes is appropriate and backfires. Bomb, bomb, Iran. To the tune of the Saturday Night Live song.

  49. Tony C. seems to have the best and most cogent argument here. i.e. Moral absolutes are not linked to behavior but to principles and/or rationales. The use of force for no reason other than ego gratification-whether that gratification is linked to an individual’s desire/need for sex, power, or sadistic pleasure, or in the case of governments and societies, oppression, colonialism, or the acquisition of resources-is absolutely wrong. This removes the relativism of circumstance…i.e. if the person volunteers to be sacrificed ( no force involved) or if a violent act is done in defense of self or loved ones or to forestall imminent death (no ego gratification.)

    Of course, as long as human beings ( by which I mean individuals, governments and societies at large) can speak they will rationalize “bad” behavior. Governments, in particular, will always find a rationale for “war” and the wholesale destruction of life and property that ensues. But rationalization does not change the moral absolute that war, except in self-defense and then only to the extent that the response is in direct proportion to the threat, is always wrong. As Ghandi stated so eloquently,

    “What difference does it make to the dead, the orphans and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy? ”

    While I think that Tony’s argument veers a little off course in the end.. i.e.understanding and perception cannot BE independent of understanding and perception… I do think the idea of “fairness” can nonetheless be understood as the only moral absolute.

  50. @Gene: Does the voluntary takes some of the onus off of it? Perhaps. But not enough to transform it from a bad idea to a good idea.

    Only because, scientifically speaking, it won’t work! Persons that voluntarily commit suicide by volunteering for sacrifice to a God have been defrauded into thinking there is a God that can be appeased by their death. THAT is what makes it immoral, the sacrifice is the fruit of an immoral tree.

    On the other hand, those that commit “suicide by battle,” as I feel certain many of the NYC firemen on 9/11 knew they were doing, commit an act of morality; they really did sacrifice their own lives so that other lives could be saved. The life expectancy of firemen and policemen (and front line soldiers) really are lower because they really are sacrificing their lives that others might live, or even just live better. That is not immoral, it is moral.

  51. Slarti asks, “Are morality and ethics shaped by intent or result (or both)? Which should people be held responsible for? ”

    I’m going to say it depends on the nature of the crime. Mostly results (actus reus) is at issue. The act itself is wrong regardless of intent. Intent (mens rea) rarely figures into the analysis with the exception of certain crimes like conspiracy or for specific intent crimes like murder where the defendants state of mind directly impacts the choice of charge and sentencing. The act is wrong an intent is either a direct element of the crime (conspiracy) or technically relevant (degrees of murder). Not all crimes require mens rea, but all crimes require actus reus.

  52. Thanks, Gene H. So, if you have certain rules for how to conduct civil trials (probably called “Civil Procedure” or the like) and certain rules for how to conduct criminal trials (probably called “Criminal Procedure” or the like) and they are in two separate sections of the written code of a state, can you then mix them up in one trial and still have a fair trial?

    Corollary question: Know of any state that mixes criminal and civil procedures so you can hold two trials together? I know California doesn’t do it because of the O.J. Simpson trials, but do you know of any state that DOES do it?

    Thanks.

  53. @Gene: The fallacy of composition, Tony. Just because some principle are absolute does not mean all are absolute.

    Sigh. Nor did I say they were. If you read further, you will see I said the argument is damaged, not invalidated, because one of its first principles is not axiomatic.

    @Gene: The right to life is an ethically absolute principle

    Nothing is “absolute” if there are exceptions to it, by definition. The exceptions in this case relate to “fairness,” which I believe IS ethically absolute; because I see no exceptions to it.

  54. Tony C.,

    “Only because, scientifically speaking, it won’t work! Persons that voluntarily commit suicide by volunteering for sacrifice to a God have been defrauded into thinking there is a God that can be appeased by their death. THAT is what makes it immoral, the sacrifice is the fruit of an immoral tree.”

    You could have stopped at scientifically speaking it won’t work. Part of establishing justice is establishing the evidentiary truth in order to form equitable solution. The discovery process, while under different constraints than the scientific method due to chain of custody and proper/improper discovery issues, is otherwise much like the scientific method in that information must be verifiable or falsifiable. The fact is that regardless of intent or belief of either killer or willing victim, a life was taken and it was not taken in self defense or the defense of others. The decision would be is it murder one, murder two or manslaughter? But the act itself is unethical absent those exceptions so it is malum in se with mitigating factors possible.

  55. Tony C.,

    Although you cited correctly you left out the succinct next sentence which acknowledges all the examples you gave … “In order to justify the taking of a human life one must present reasons for doing so that the society can accept as ‘fair play’.”

    The absolute must be there before the “fair play” can be determined. That is what I referred to as the balancing act.

    You originally recognized this when you began … “I do believe in a small core of ethical absolutism”. (12:09pm) but I could not follow you in your statement … “In my view, ethical absolutes cannot really be defined in terms of specific acts…” It is there that we part ways on the reasoning trail.

    I accept your “fair play” theory but not as an absolute. And I believe the absolutes come out of the common human herd experience not out of any religious conviction so I am in complete agreement with your statement “we are born with those ethical constraints on our behavior, by definition …” DNA, baby, DNA.

    In other words, the absolutes are there at birth (and absent in certain “sick” personalities) and the “fair play” is learned behavior dictated by the culture into which one is born (and usually faked by those very same “sick” personalities)

  56. Tony,

    “Nothing is “absolute” if there are exceptions to it, by definition.”

    Only if you follow act utilitarianism. Soft rule utilitarianism allows rules to have exceptions and this is what makes it valuable for analysis of equity. Remember, justice should be equitable. That an absolute principle exists is not impacted by recognizing exceptions demanded by equity. Or do you think the serial killer and the drunk driver who plows into a crowd are deserving the same change and punishment?

  57. “FairlyBalanced 1, October 21, 2012 at 3:36 pm

    I was not for taking out Iraq and I am not for taking out the Saudi regime. The Bushie got the wrong Eye country. He should have invaded Iran.”

    Yeah. He should have invaded another country that didn’t attack us on 9/11. I think he attacked the wrong “I” country too. He should have attacked Ireland.

    Propaganda spewing dufus.

  58. @Slart: Was it moral/ethical to start a war (on false pretenses) that killed over 150,000 people to stop Saddam?

    I do not think so. How is it fair to value the life of Hussein above the lives of 150,000 other people? (Which is what I would have to do to claim it was a fair trade.)

    I think a rational case for fairness could be made that involved the loss of some lives now to prevent the loss of more lives over the course of his reign, which is exactly the kind of case I would make for our own revolutionary war, civil war, or WWII: That the net good done for humanity would exceed the net harm done to innocents. (And I will hasten to note I made the same argument, for myself, when I was a grunt in the military and the potential cannon fodder.)

    I certainly believe Hussein, Bin Laden, Ghadafi and others deserved death, and I do believe there is some level of sacrificed lives (of soldiers and / or civilians) that would have been justifiable, but I also believe that justice could have been accomplished without lies and at a far lesser cost.

    In Hussein’s case, I think those 150,000 lives were sacrificed by Bush out of pique and adolescent machoism, and by Cheney out of sociopathic greed, for “personal gain,” namely egotistical self-righteousness and an opportunity to steal oil that rightly belongs to the Iraqi people.

  59. Bron,

    In re your post of October 21, 2012 at 1:58 pm.

    That may be the best supplemental post you’ve ever put up. I didn’t include that framework in its totality because mainly I included the summary to show the path that led to ethical relativism and I didn’t want to run too long on what I considered a sidebar. Good add and thanks.

    And just because you’ve probably forgotten what it’s like, I’ll remind you this message is snark and sarcasm free.

  60. @Blouise: I accept your “fair play” theory but not as an absolute.

    If that is true, then by implication you believe there are moral acts that are fundamentally unfair to somebody. Can you tell me what they are?

  61. Kay,

    I think I’m not going to discuss the particulars of your case with you other than to advise you to get an attorney and say that while it is your right to defend yourself it is actually a very bad idea (even for lawyers).

  62. Okay peoples. I have other things I need to get back to after taking way too long for a late lunch. Good thread everyone (the propaganda troll excepted). Keep it up and I’ll try to get back by later to see what ya’ll have come up with.

  63. Tony C.,

    “If that is true, then by implication you believe there are moral acts that are fundamentally unfair to somebody. Can you tell me what they are?”

    First, no, that is your implication based on your reasoning of fair play as an absolute. I submit that the absolute comes first and is part of the core (to borrow your word) … the fair play is a follow up based on the culture in which the individual lives.

    And then, yes, there are moral acts that are unfair to somebody which is why society judges an individual’s actions and how an individual determines whether or not to take action. That process begins with an absolute followed by reasoning first by the individual and then by society. Fair play is part of the reasoning process, not the absolute.

  64. Gene, “Careful rule construction” was used when the Federal Sentencing guidelines were created in the 1980’s. My wife was her courts expert, attending regular seminars and lectures. Some very smart people put these guidelines together and trained Federal Judges and probation officers on how to implement these formulaic sentencing guidelines. The formulas were detailed and tedious. Just one example, counting cannabis plants instead of actual cannabis. A plant equalled X amount whether it were fully grown or 2 weeks old. The most notorious inequity were the guidelines on crack v powder cocaine, which was blatant racist. The history behind that inequity goes to the Len Bias death. Bias was a star basketball player from Maryland drafted #1 by the Celtics. Celebrating his draft Bias partied, smoking crack and exploded his heart. Tip O’Neill was a big Celtic fan. Paternalistically, he pushed through the tougher crack sentences which my wife said from the outset would eventually be ruled unconstitutional. Ironically, it was in a case originating from her district, The Western District of Wi.

    These guidelines were so detailed by “careful rule construction”, your holy grail, that hardly anyone understood them. My wife had to explain them to attorneys on an almost daily basis. Few judges understood them. My wife lived and breathed them but it took constant education to keep up w/ the “formulas.” No one would argue these guidelines were the most thought out and detailed ever constructed. They were are disaster and are now history. We all know w/ what the road to hell is paved.

  65. Nice straw man you’ve got there Nick.

    1) Not all constructs are equal.
    2) I said “mitigate” not “perfect”.
    3) I nowhere indicated that careful construction was a panacea let alone a Holy Grail.

    Seriously. Learn to argue better. That was just sad.

    Now my fries are getting cold.

  66. Lying for the lord” is a concept that seems to reek of ethical relativism fused with exceptionalism and who knows what else.

    Several people up-thread have indicated that it is ok to do just about anything so long as certain fudge conditions exist.

    This “lying for the lord” is a Mormon concept, but probably compatible with other religions too, and perhaps with comments by others up-thread:

    D. Michael Quinn called the use of deception by LDS church leaders, “theocratic ethics.” (The Mormon Hierarchy: Origins of Power, page 112) Smith lied to protect himself or the church; which was an extension of himself. Dan Vogel in his excellent work, Joseph Smith: The Making of a Prophet, described Smith’s viewpoint; he was a pious deceiver. Smith used deception if in his mind; it resulted in a good outcome. Smith had Moroni, an ancient American prophet and custodian of the gold plates declare, “And whatsoever thing persuadeth men to do good is of me; for good cometh of none save it be of me. (Moroni 4:11-12). Translation: if deception was necessary to do good, or bring a soul to Christ, then it was worth it, as long as God approves. Smith believed he knew when God approved of lying.

    (Ayn Rand: Patron Saint of The Plutocracy). How could one do this “fairly” or ethically, i.e. deceive people about coming catastrophe?

    If the neoCon members of the Congress think global warming induced climate change is the greatest hoax ever fostered on humanity, why couldn’t they be morally, ethically, and legally right when they lie about it or are wrong about it?

    My comments up-thread show that even CBS, a mainstream media entity, broadcasts that sea level rise on the East Coast of the U.S. is higher than anywhere else in the world.

    Are they being “fair” or “ethical” to lie to their constituents, telling them that it is all a liberal hoax to keep power?

  67. nick spinelli 1, October 21, 2012 at 4:29 pm


    They were are disaster and are now history. We all know w/ what the road to hell is paved.
    =========================================
    One wonders, as your wife must have often, why others could not see the blatant racism, as you pointed out, and other anomalies in federal sentencing that, as you say, after horror upon horror was cast away.

    I am afraid that global concepts of justice which must be developed, implemented, and practised yesterday will suffer the same fate, as will civilization.

    And yes, graveyards large and small have been made with good intentions as have the road to hell.

  68. @Gene: However, I will go further and say that if there are ethical absolutes, then I see no need for a ‘state of nature’ argument in the philosophy of the social contract. The social contract can be predicated upon the ethical absolutes themselves, and promoting and protecting them. We band together in societies simply because there are those that would violate the ethical absolutes, and we consider it ethical to stop those people or punish those people by dint of our majority cooperative force, if we first describe the conditions under which such acts will be punished.

    Thus it need not be that we surrender some rights we had in a state of nature in order to enjoy the cooperative benefits of society; rather it is that one of the cooperative benefits of society is the better protection of what we believe was our absolute ethical rights all along, including in some hypothetical (never realized) state of nature, such as freedom from slavery, theft, rape and murder.

  69. Tony C. 1, October 21, 2012 at 4:44 pm


    The social contract can be predicated upon the ethical absolutes themselves, and promoting and protecting them. We band together in societies simply because there are those that would violate the ethical absolutes, and we consider it ethical to stop those people or punish those people by dint of our majority cooperative force, if we first describe the conditions under which such acts will be punished.

    =====================================
    That is Social Contract 101, but what of the advanced social contract concepts that deal with nations?

    Your statement would read:

    The social contract can be predicated upon the ethical absolutes themselves, and promoting and protecting them. We band together in societies simply because there are those [nations] that would violate the ethical absolutes, and we consider it ethical to stop those [nations] or punish those [nations] by dint of our majority cooperative force, if we first describe the conditions under which such acts will be punished.

    So how would that work with stopping the sea level from flooding Manhattan (CBS video up-thread), Washington D.C., or Pacific Island Nations?

  70. @Blouise: That seems confused to me. If a person’s right to continue living is conditional (and I think it is) then there is a deeper principle of “right” and “wrong” at work. What can that deeper principle be, other than it is justifiable (fair) to kill another person under certain circumstances?

    I think that deeper principle is generally called “fairness,” in this case that a person’s acts can fairly render them without the moral right to continue living, or (equivalently) their acts can bestow upon another person the right to kill them. That other person may be a person under attack, or an agent of the state, such as a policeman or prison executioner, on behalf of somebody murdered. The principle at play in such circumstances is fairness: If a person acts with the intent (or result) of ending a life, it is fair to take an action that will end their life.

    That is the principle I think is inviolate; I do not think there are any ethical actions or moral actions which are not grounded in fairness. I do not think it is possible for a single act to be both ethical and fundamentally unfair to a participant; I think ethical acts are a subset of “fair” acts.

  71. Gene,
    My grandmother was a tiny Irish woman who had a powerful intellect and never realized it. She could talk you to death and always remain interesting. She encouraged me to read the huge stash of old books she had collected.

    She collected antiques until the house was overflowing. Granddad first built shelves in every room, then built two large storage building to keep all her stuff. He finally said she ought to have a shop, so built her a nice shop out by the highway in front of their house. She ran that until she got too old. She was a giving person, and when I got married, offered us several things from the store to help us get our own home started. She also gave me three original Ansel Adams photographs. I had a heck of a time finding a frame shop willing to frame them for me. One frame shop guy said he was afraid to touch them.

    My grandmother also sent all three of her sons to fight in WW-II. Two of them signed up on Monday, December 8, 1941. The youngest waited until he got out of high school to join the Army Air Corps. He went back and saw combat in Korea. All three of them came home more or less intact. Physically anyway.

  72. Dredd, Although I love my wife and know she is honorable and intelligent, many people saw the blatant racism in short order. The problem was the Sentencing Guidelines were bipartisan, and spearheaded by O’Neill. Politicians never like to say they were wrong and certainly Dems couldn’t admit one of their patriarchs overreacted because he’s a f@cking Celtic fan! So, no pols tried to change them and it took a recent Supreme Court ruling..a few decades late, to right the wrong. Too late for the tens of thousands of poor inmates who served draconian sentences.

  73. Tony C. 1, October 21, 2012 at 4:59 pm


    That seems confused to me. If a person’s right to continue living is conditional (and I think it is) then there is a deeper principle of “right” and “wrong” at work. What can that deeper principle be, other than it is justifiable (fair) to kill another person under certain circumstances?

    I think that deeper principle is generally called “fairness,” in this case that a person’s acts can fairly render them without the moral right to continue living, or (equivalently) their acts can bestow upon another person the right to kill them.

    =================================================
    That is Killing People 101, an ancient concept.

    But what of advanced notions we face in today’s world (pointed out in my early comments on this thread)?

    Adapted, your statement would read:

    That seems confused to me. If a [nation’s] right to continue living is conditional (and I think it is) then there is a deeper principle of “right” and “wrong” at work. What can that deeper principle be, other than it is justifiable (fair) to kill another [nation] under certain circumstances?

    I think that deeper principle is generally called “fairness,” in this case that a [nation’s] acts can fairly render [it] without the moral right to continue living, or (equivalently) [that nation’s] acts can bestow upon another [nation] the right to kill them.

    That is what the nations of the world face now, and it will escalate to a point of madness if not dealt with soon.

  74. @Dredd: That depends on whether that sea level rise CAN be stopped, considering the fact that there is a 50-100 year hysteresis (time lag) in the control of global warming. (i.e. the next 50 years of global warming depend upon inputs already in our past.

    If it could be stopped, it depends on the relative value of stopping it. Many of the actions we demand others refrain from are actions we ourselves committed: Ireland was once covered by forests that acted as a carbon sink, and was clearcut for farming. After Ireland has benefited from that action, by what moral calculus do they get to demand Brazilians starve rather than do the same? We built an industrial nation on the back of astonishing amounts of pollution with coal and other materials, now that we are done we hypocritically castigate the Chinese for doing the same.

    For Pacific Island nations, by what moral calculus is the survival of a few thousand more important than the survival of a few hundred thousand Brazilians?

    I think it is immoral to demand others sacrifice to save us without making a plausibly fair trade in return.

    In terms of Global Warming, I do believe the stakes are in the billions of lives, and some of these practices must be stopped, but that is all the more reason for our sacrifice in trade for their cooperation. It is not enough to for us to just set an example going forward, we (and other countries) have a moral obligation to reverse the effects of our own contributions to the problem over the last 120 years or so, contributions that benefited us at the expense of others. Those Pacific Islanders did not cause global warming, the Industrial Revolution did that.

  75. Gene

    Are you accusing me of being a “propaganda troll” ? I hope not. Lot’s of people have agendas in blogging. I looked up the definition of propaganda and found that it involved lying by omission. I don’t do that.

    I agree that having a defense lawyer is good. When I was criminally charged in Routt County Colorado without a written statement of probable cause I hired Bill Hibbard and he did get the charges dismissed. But what I needed was someone to defend my reputation and my property by filing a plaintiffs’ lawsuit and he said he couldn’t do that because it would hurt his law practice.

    When I was arrested and detained for 4 months for civil contempt I wasn’t expecting it. I was told in Court that I didn’t have a right to an attorney. When I was arrested and detained without a criminal charge for 22 days I did have an attorney, a public defender, but I didn’t get to confer with him before the hearing. He asked that I be allowed a bail hearing but that was denied. This isn’t propaganda, it is in the transcripts. If I could afford an attorney I would hire one.

    You don’t have to address my particular situation. Do you think that in general there is authority for courts to order that a person can’t represent themselves in Court and if so, under what situations do you think that should happen and what would the person do if they had a valid claim or legal problem and difficulty in getting an attorney?

  76. @Dredd: I think it is funny how you can be dismissive of my comments as XYZ 101, while you apparently cannot think your way out of a room with an open door, since you keep asking me to provide solutions to your questions.

    I reason from first principles. If you find my observations so obvious then fine, it should be equally as obvious that I must not be writing for you, and you need not respond.

  77. Tony C. 1, October 21, 2012 at 5:18 pm

    @Dredd: That depends on whether that sea level rise CAN be stopped, considering the fact that there is a 50-100 year hysteresis (time lag) in the control of global warming. (i.e. the next 50 years of global warming depend upon inputs already in our past.
    —————————————————
    Good point, in fact a great point.

    The scientist in the video, David Roberts, made that point as well, albeit not about sea level rise.

    That understanding may incriminate us a bit more in the sense that we can see it happening, we know that it will get worse axiomatically due to past behavior already in the pipe, but we also know that ultimate catastrophe can be averted IF WE CHANGE as an international community, that is, if we work feverishly together.

    Our nation is 5% of the world’s population, but we consume 25% of its resources, and do way more than our share of that which is killing us.

    Would we prosecute ourselves, or will we force the world to try to prosecute us?

    See what I mean, this is serious and it does fairly bring up absolutism and ethical relativism along with the rest of it.

  78. Tony C. 1, October 21, 2012 at 5:25 pm

    @Dredd: I think it is funny how you can be dismissive of my comments as XYZ 101, while you apparently cannot think your way out of a room with an open door, since you keep asking me to provide solutions to your questions.

    I reason from first principles. If you find my observations so obvious then fine, it should be equally as obvious that I must not be writing for you, and you need not respond.
    ============================================
    Just trying to get you out of the 18th century when people philosophically contemplated killing people as you have been doing, into the current reality where killing nations is and will continue to be philosophically contemplated.

    Somehow that seems to be less “yesterday”, more to the relevant points of today’s world, and besides you seem to be up to such a conversation.

  79. Blouise, If you want information on litigation you would be better served asking someone who has actually practiced the law.

    Gene you’re as tedious as the Federal Sentencing Guidelines. Do you know anything about them? Ever practiced in a Federal, State or Municipal Court in any capacity? How about The Peoples Court? You overcompensate your total lack of practical experience w/ sanctimony and your mantra of logic. I’m playing w/ fire here since this is your thread and it’s cocktail hour. Try not to get too nasty. and, those fries will kill you. Hopefully there @ least sweet potato fries.

  80. @Dredd: we also know that ultimate catastrophe can be averted

    No. We don’t know that. In fact, although this is not my field of expertise, what I have read suggests much of the disaster cannot be averted no matter how hard we may try because of the hysteresis, some of those island nations will be under water no matter what we do, even if we all died tomorrow. Certainly what we can plausibly do is a drop in the gallon of what would have to be done, so the moral question is no longer whether we should try to stop what is (probably) an inevitable catastrophe, but what is our moral responsibility to relieve the suffering after the inevitable catastrophe takes place.

    As for the relevance of that argument to this thread; I think it is fairly far removed. This is a general thread about Ethical Relativism; not a specific thread about Global Warming; and hijacking a thread intended to discuss a philosophical point in order to discuss your pet peeve is, relativistically speaking, unethical.

  81. Kay,
    Regarding a defendant representing self. Most courts will allow it, but there are exceptions. For one, if the defendant refuses to obey the rulings of the court and engages in disruption of the proceeding, the judge may, and probably will, disallow self representation. Since I don’t know you, except by your writings here, I suspect the court tired of your unwillingness to let things go. Arguing with a judge after a ruling has been made will get you cited for contempt. Do that enough, and you will not be allowed to proceed pro se. We had one of those kinds of cases here recently. The defendant kept creating such a scene in court and being combative with one attorney after another, he finally had an attorney appointed for him and he got to watch the proceedings on CCTV. He lost his case.

  82. It sounds like you are talking about a disruptive criminal defendant. That wasn’t me. I wasn’t a criminal defendant in federal court.

    Actually, I entered a table into Pro Se Representation in the U.S. in Wikipedia that shows that self representation in civil case is allowed in every state in the U.S. I see someone deleted it. In many states it is in the Constitution. I think Colorado is one of those states where there is a state constitutional right to pro se litigation. In the US it is in the Judiciary Act 28 USC section 1654.

    Disrupting a court room is criminal procedure in Federal Court. See Rule 42(b). “the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies”. Judge Nottingham didn’t do that. He imprisoned me at a pre scheduled civil contempt of court hearing at which I was very polite. That was the first time I met him. Previously I had filed an objection to the magistrate’s report and recommendation and I had filed an appeal to the 10th Circuit.

    The magistrate made rulings that conflicted with Supreme Court decisions. He ruled that my voluntary dismissals of complaints that weren’t served in other courts caused res judicata. That conflicted with Semtek Intl. Inc. v. Lockheed Martin Corp. He ruled that prosecutors have immunity for defamation at a press conference. That conflicted with Buckley v. Fitzsimmons. He ruled that there is immunity for criminal acts, that conflicts with the Colorado Governmental Immunity Act. He ruled that attorneys have immunity for acts as advocates and didn’t support that with anything.

    I couldn’t “let it go” because they made it impossible for me to work with their defamation and they destroyed by business with their attorney fee shifting award, which did not have any Rule 11(c)(6) orders and for which Nottingham didn’t state his authority. It was litigate or die.

  83. Tony C. 1, October 21, 2012 at 5:49 pm

    “@Dredd: we also know that ultimate catastrophe can be averted

    No. We don’t know that. In fact, although this is not my field of expertise, what I have read suggests much of the disaster cannot be averted …”
    ———————————————————
    That brings up the difference between “ultimate catastrophe” and “much of the disaster” doesn’t it?
    ====================================
    “… some of those island nations will be under water no matter what we do …”
    ———————————————————
    Including the Island Nation of Wall Street. But that is because there is a certain kind of “thinking” or the lack thereof, that got us here in the first place, got us past all those warnings being uttered every day for years and decades.

    Got any idea what might have swayed us from doing “something” when it would have been a good thing to do?
    ====================================
    “… what we can plausibly do is a drop in the gallon of what would have to be done, so the moral question is no longer whether we should try to stop what is (probably) an inevitable catastrophe, but what is our moral responsibility to relieve the suffering after the inevitable catastrophe takes place.”
    ——————————————————–
    Yep, triage, the triumph of the great civilization. “Bury them when we kill them.”

    Quite sophisticated. Now back to the 18th century.

    I guess we just keep farting in the wind and discussing 18th century philosophy about absolutes and ethical relativism in the U.S.eh?
    ========================================
    “As for the relevance of that argument to this thread; I think it is fairly far removed. This is a general thread about Ethical Relativism; not a specific thread about Global Warming …”
    ————————————————————–
    Ok, so you are saying this thread is not very important in terms of modern day reality, but right on in terms of tired, useless 18th century debate?
    ==================================================
    Makes “sense” if you know what I mean.

  84. I was held using the Prisoner Tracking System, a federal system of records. I was not accused of criminal contempt and if I had been there would have been regular criminal procedure — a right to a lawyer, a government prosecutor, a written criminal complaint, a right to discovery, a right to witnesses, a bail hearing etc. I didn’t get any of that. They only allow summary procedure if you disrupt a hearing which I didn’t do.

    DOJ published a notice in the Federal Register vol. 69 p 23213. It says “SYSTEM NAME:
    U.S. Marshals Service Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS).”

    “CATEGORIES OF RECORDS IN THE SYSTEM:
    Any and all information necessary to complete administrative processes, safekeeping, health care, and disposition of individual Federal prisoners who are in custody pending criminal proceedings”

    “PURPOSE(S):
    The Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS) is maintained to cover law enforcement and security related records which are generated in the local USMS district offices in connection with the processing, safekeeping, and disposition of Federal prisoners who are in custody pending criminal proceedings.”

    so that is why I don’t think the Feds can hold you for “civil contempt”.

    The Rules of Civil Procedure control federal civil proceedings. They include Rule 5 d (4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

    So that’s why I think that the Federal courts don’t have authority to order the clerks not to accept pro se filings.

    There isn’t actually a written rule that describes limitations on pro se representation. Lawyers are bound by the Rules of Professional Conduct which are brought it through local rules.

    Then there is

    RULE 601. COMPETENCY TO TESTIFY IN GENERAL

    Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

  85. kaysieveverding, I’m sure you’ve heard the quite true axiom, “A person who serves as their own attorney has a fool for a client.” However, in your case you might need a good shrink rather than an attorney. That’s just my opinion, I might be wrong.

  86. Kay,
    I do not presume to speak for Gene or anyone but myself; however, if you recall, Gene and several others here have told you that you are wasting your time. No ethical lawyer is going to give legal advice over the internet, same as no ethical psychologist or psychiatrist would presume to diagnose over the internet. You have been told repeatedly to consult a lawyer, who is probably going to tell you to let it go. It’s over. Maybe you need counseling instead of legal advice. I don’t know. That is the best I can do.

    I know a lawyer whose wife made a large needlepoint sign for him when he opened his office. It is a large needlepoint, probably about 16″x20″ in size. It hangs on the wall right behind his desk. Clients cannot miss seeing it. it says, in bright red letters against a beige background,

    The truth will make you MAD!

  87. Doctors give medical advice over the Internet all the time. There are lots of pro se litigants. More than half of all divorces are pro se. Over 1 in 5 non prisoner civil cases in federal court are pro se. The main reason is the $100,000 + cost of a lawyer in federal court. Years ago, lawyers made only a little more than a UAW worker.

    I can not and will not let it go for these reasons: 1.) I have a constitutional right to a name clearing hearing in Federal Court and the defamation associated with being prosecuted without a written statement of probable cause and imprisoned without a criminal proceeding is too costly for me financially and emotionally to let it go 2) I have a pending $100 + K baseless attorney fee shifting judgment that could take anything and everything I own or could own at any time 3) I feel that I have a moral and ethical responsibility to other middle and lower class people to defend access to courts and that without my doing so people will be miserable or dead (not by my hand) 4) I think that because of Rule 804(6) I will get millions of dollars which I have plans for.

    So why should I be miserable and homeless if remedy is there for me in Court? Maybe the truth that makes you MAD is that pro se litigants do have procedural due process rights.

    My father told me that to get a solution you need to make a proposal that is acceptable to both parties. My defendants offered me only misery and then they effectively killed David Engle.

  88. Kay,
    You are making an essential error when you write, “..Maybe the truth that makes you MAD is that pro se litigants do have procedural due process rights….”

    Your error is assuming I care one way or the other. As a factual matter:
    I. Don’t. Care.

  89. Gene read paragraph 2 and following please

    OS Fine, don’t care. I think that’s what the Jewish lawyers in Germany said about pro se rights before the Holocaust before their law licenses were removed from them.

    Anyway, the reason I brought it up on this blog is because Gene W brought up that idea of a fair trial and how that was taught in law school in this blog. What does Gene think of Rules of Professional Conduct Rule 3.3 Candor Towards the Tribunal

    Rule 3.3 Candor Toward The Tribunal
    (a) A lawyer shall not knowingly:

    (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

    (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

    Especially # 2 basically says that when a litigant is pro se, the opposing counsel must almost argue their side for them doesn’t it? And pleading is not a game of skill….

  90. “Blouise, If you want information on litigation you would be better served asking someone who has actually practiced the law.” (nick)

    What?! I don’t have any questions nor have I asked for info on litigation. Kay is the one with the questions and … nick, she has been on and off this blog for years asking the exact same questions.

  91. Tony C,

    “I will go further and say that if there are ethical absolutes, then I see no need for a ‘state of nature’ argument in the philosophy of the social contract. The social contract can be predicated upon the ethical absolutes themselves, and promoting and protecting them.”

    Again with the fallacy of composition. You are off your game today. You are also contradicting your earlier statement of “I do believe in a small core of ethical absolutism”. If there is a small core of absolutes, what exists outside that small core? Non-absolutes. The social compact must consider these situations as well. Dispute resolution is necessary for any society of size. Not all disputes are going to revolve around absolute principle.

  92. Kay,

    The only person I mentioned trolling was the same person other posters mentioned trolling and that was FairlyBalanced. Believe it or not, not everything is about you. However, regarding your case? I, like the other lawyers here, will only tell you this: hire an attorney and stop trying to represent yourself. Just because you can, doesn’t mean it’s a good idea (even for trained professionals). None of us are going to go into your case specifics. None of us are going to give you advice beyond the general advice you just got and have received in the past. Numerous times.

    You should take the advice.

    You may get sympathy for your situation here, but you are never going to get any specific legal advice here from me, Larry, Mark or the Professor.

  93. Asking questions and trying to convince. I’m somewhat looking for a lawyer and somewhat I just want the lawyers on this blog to say that I have a statutory right to represent myself using the same old published rules and that the feds can’t imprison me without a criminal charge. In other words, if I go to federal court and don’t commit perjury, don’t threaten anyone, and don’t make a scene can’t I get a hearing where my arguments are addressed one by one without anyone attacking me or ridiculing me?

    If the lawyers here would agree that I have a right to represent myself and be treated politely and have my arguments addressed in an orderly and comprehensive fashion, then I would be more likely to find a lawyer who would take my case on some sort of deferred payment or pro bono basis and I would have less of a need to represent myself because then they could argue that I should have not been treated the way that I was treated.

    I do realize that it is easier to have two people in any sales or advocacy presentation where one can set up the other’s position.

  94. Gene I missed your last comment because I was simultaneously typing. I do want a lawyer to be my agent but I don’t know how to find one. Just today though I wrote to White & Case pro bono and asked them.

    But can you please say it again, really clearly: I have a right to represent myself if I want to or need to and I should get the same rules of civil procedure as any other federal civil case. Say it please again under your name and then I will shut up for now at least about pro se rights.

  95. Gene

    I’m not asking for specific advise. I’m asking for you to make a statement that it is your professional opinion that people have a right to represent themselves in federal court using the published rules of civil procedure.

    Professor Turley gives his opinions in every column and you give out your opinions on legal subjects all the time too.

  96. nick,

    Actually I am familiar with the Federal Sentencing Guidelines.

    However, that is irrelevant to the point that you get pissy when someone pushes over your Straw Man or other illogical fallacious attempts at argument.

    You tried to put words in my mouth (not for the first time) and you got the smack down for it.

    It’s not my fault you can’t argue well. Or think well. And are as endearing and socially adept as a dead marmot. Bark, lil’ doggie! Bark!

  97. Tony C.,

    Perhaps I am more of an Absolutist than you in that I think the absolute moral stance against killing another human being initially stems from our species fear of extinction which is why we don’t eat our newborns as is done by other species.

    That’s about as basic/absolute as I can get and part of what I mean by wired into our DNA.

  98. Gene

    I’m glad you don’t think I was trolling. Since you are familiar with Federal Sentencing Guidelines then you know that there aren’t any sentencing guidelines for pro se litigants who aren’t accused of a crime. So you and will you please just agree with me that

    I have a right to represent myself in Federal Civil proceedings if I want or need to and to get the same published Rules of Procedure as any other case even though having a good lawyer is better.

    Just say this please so I can stop typing about this here.

  99. Kay,

    I’ve already said you have a right to represent yourself (and that is a Constitutionally protected right), but that doing so is a bad idea. Hire an attorney, Kay. That is the only advice you are going to get. I don’t even read your long diatribes anymore.

    Hire. An. Attorney.

    The only other advice I have is to say is simply humane.

    “What Otteray Scribe said” in re counseling.

    And I’m not saying it to be mean. You are obviously in distress and if you are unwilling or unable to hire an attorney to help you? Maybe the other profession can help you. There is no shame in it and people who think there is are simply ignorant.

    You should really consider it.

  100. Gene

    it seems you’ve come up with a rhetorical rorschach here. great thread.

    as far as relative or moral absolutes go i’ll stick with Heinlein

    women and children first

  101. Gene, You do realize this is a non linear world in which we live? I’ve seen folks brighter than yourself, but maybe not as smug, drive themselves crazy trying to apply logic to situations that simply don’t fit into that box. If we were to take “troll” “strawman” and “logic” from your holster you would have one less bullet than Barney Fife.

  102. I’m not unwilling to hire an attorney I just can’t afford one and also I don’t see them advertising with the expertise I need i.e. Privacy Act, Section 1983, or even False Light Publicity for an individual. I don’t believe a shrink can help me because my distress is not internally caused it is externally caused. That is why I engage in self help to the best of my ability to get what I need which is relief in court. It’s like I am putting my arm in a sling and trying to crawl down the mountain to the road. It’s not fun but its better than taking pills and dying.

    But if a lawyer wants to learn the Privacy Act through practice they should contact me.

  103. nick,

    I’m fairly certain I understand linearity and non-linearity with a much greater depth and breadth than you are capable. Ol’ Barney did just fine with that one bullet, but in reality the better comparison is MacGyver and his Swiss Army knife. Logic is a multifunction tool. I’m sorry but I will not become illogical to assuage your ignorance. If you think that makes me smug? I could really give a damn if you’re intimidated or not. And it’s really pretty obvious you are, no matter how you are going to predictably protest. I’ve been dealing with schmucks like you my entire life. What I’ve learned from that experience is that your feeling threatened by reason and those with superior use of the tool coupled with superior knowledge is entirely your problem, Cliff. That you act like a pseudo-troll is your problem. That you can’t argue for shit is your problem. That you don’t think well when you think at all is your problem. In short, your problem is you. You can project it on to me all you like because neither me nor anyone important to me cares about your problem.

    Carry on.

  104. Where do you deal w/ schmucks like me? As far as I can see your entire reality is online. And to think I’m intimidated by you is delusional. Saying your smug doesn’t even imply intimidation, it means what I said..you’re smug. Smugness is not intimidating, it’s just reprehensible and pathetic. I’ve seen you intimidate and bully people in this forum. You’ve been a failure trying to do that w/ me. Say your last words which is so important in your strange little world, I’m going to watch some baseball. Ciao, Gino. And “may the force be with you.”

  105. kaysieverding
    1, October 21, 2012 at 5:23 pm
    Gene

    …….” If I could afford an attorney I would hire one.”
    ————————————————————
    The fact that the access to appropriate and equitable representation in ‘Law’ in this Country is not available, due basely to the socio-economic conditional standards of the practitioners, makes the practice of Law absolutely that of a state of ethical relativism and essentially immoral.

  106. I can understand ethics and I have lots of relatives but I dont see how they mesh into this ethical relativism stuff. Especially uncle Gus.

  107. Gene/Raf:

    Just heard this joke I thought was appropriate for this thread on good and evil.

    Seems God was checking on St. Peters’s roll and noticed a farmer, sea captain, and cop were erroneously sent to Hell. God immediately got Satan on the phone (I guess the “Red Phone”) and said to Satan, “Something got fouled up at the gates and you got three of mine.”

    Replied Satan, “Great! That’s three more for me and I didn’t even deserve ’em. What could be better for the Cosmic Bad Boy.”

    “Now look here, Satan,” said an obviously perturbed Creator of the Universe. ” I’m in no mood to dicker. I want that sod buster, sailor, and sheriff back and I want’ em back NOW.”

    “Or what?” said Satan. “You gonna send me Hell again?,” chuckled the Prince of Darkness.

    “Nope, I’ll get a lawyer and sue the horns off you,” said God. With that the Devil put down the phone and his laugh was heard through the receiver and all over Heaven.

    Motioning to his favorite demon, he said, “Hey Beelzebub, get over here and listen! God says He’s going to get a lawyer and sue us. Where is HE going get one of those? Ha, ha, ha.”

  108. Back to Kay’s conundrum. Maybe what she wants to do is both legal and permissible. To borrow a phrase attributed to George H.W. Bush, it is, “not prudent.”

    Here is an analogy: I am capable and legal to fly on instruments in a multi-engine airplane. At night. Now, I am getting older, but despite my age, I suspect I can multitask as well as anyone who blogs on this site. However, just because I CAN do it, does not mean, I SHOULD be trying to thread my way through these mountain passes at three or four miles a minute in clouds, fog and rain, making a blind approach into our mountain airport.

    Kay, I suggest that while what you want to do may fall within the realm of what is legally possible, does not make it a good idea. You are not doing yourself and your family any favors. Get some counseling, and get a life. Please.

    And stop going Godwin on us. No wonder you lose arguments. Going Godwin just makes you look silly as an argumentarian.

  109. nick,

    Your every reaction to me screams “INTIMIDATED!”

    It has since the first time you addressed me over your “mother of the year” gibberish, Mr. I’m A Tough Guy So Don’t Challenge Me.

    That is all.

    Ciao, Cliff.

  110. Woosty, I am not sure how an attorney charging for his or her time is unethical. Consider that one has to complete a Bachelor’s degree with top grades, pass the admissions screening for law school, then three or so years of law school, then having to pass the bar exam. Now how is that newly minted lawyer supposed to pay back all those loans, make some money to live on, and make up for all those years of not making any money?

    However, there are free legal services in most communities, if they have not been defunded by conservatives. They can help with some legal problems. There are public defenders for truly indigent defendants in criminal cases. Legal services can only take certain kinds of cases, so Kay may fall between the cracks. I do suspect that if she does talk with a lawyer, the lawyer is going to tell her the same thing she has heard here. We are back to her being unwilling to accept the facts. Kind of like Orly Taitz.

  111. My Steamboat attorney William Hibbard advised me to sue them in Federal Court. He advised me to send them a notice under the Colorado Governmental Immunity Act and I did so. If I was going to do my life over I wouldn’t have moved to Steamboat Springs, or at least not to Princeton Ave., but I can’t undo that.

    Just what facts do you think I am “not accepting”? I didn’t accept the idea that I was vexatious for saying that I heard my neighbor was a convicted drug dealer and then he admitted he pled guilty to transporting drugs with intent to sell, a felony charge, and was in jail for 4 months. I didn’t accept the fact that the City could not enforce the ordinances and now they have a form saying they will actually check out complaints. This is because a man died because the ordinances weren’t enforced.

    My husband and I had a business called Friendly Plastic and I didn’t accept that we should go bankrupt so we licensed the product, it got up to $11 Million and we made about $1 Million. Much better than going bankrupt. I didn’t accept the fact that no one loved me and I found someone who did.

    It’s like I’ve been crossing a wide river. Now I am almost to the other side and it is much better to keep going than to drown. I can’t go back.

    Legal services don’t take any lawsuits for damages except for one place that is looking for eminent domain cases and the ACLU which gets thousands and thousands of people begging them to read their situation.

    Most of the pro bono services are looking to save someone on death row or they are doing landlord tenant or domestic violence cases.

    I want to help a lawyer by organizing and footnoting so they can fulfill their Rule 11 obligations without spending a lot of time. And I want to base my damages on Rule 804(6). I could put together my evidence to prove my prima facie case. The Rule 804(6) is a new rule. It is a case of First Impression.

    I know a lot more about law than I used to. I’ve spent more than 3 years studying law. I’m a resource even if I had a lawyer. I did publish a book on municipal bond analysis, I did get a masters degree from MIT, and I have some recent recommendations.

  112. Otteray Scribe
    1, October 21, 2012 at 10:26 pm
    Woosty, I am not sure how an attorney charging for his or her time is unethical.
    —————————————————
    I don’t recall the need for renumeration being a part of my statement but ok, we can go there for a hoot. What are the accepted standards of payment for Lawyers?

  113. Tony,

    I’m still interested in hearing how you want to address the absolute/non-absolute set problem. I would agree with your logic but for that particular issue. The social compact must deal with ethical matters in a holistic manner to be effective. Maybe I think you are overstating the “damage”? But at the core, it’s the exclusivity trait you want to assign to absolutes when the compact needs to deal with the two sets mutually inclusively.

  114. Here is an interesting story that invites bringing the cultural differences issue back into the fold: Mah Gul, Young Afghan Woman, Beheaded For Refusing To Become A Prostitute

    Note that while arrests were made, this tragic event was enabled by the local cultural ethical norms regarding the treatment of women essentially as chattel. If slavery is wrong as an ethical absolute, should any form of “propertizing” – from indentured servitude to open slavery – be considered a violation of an ethical absolute? Or is this ethically relative due to cultural differences?

  115. Woosty, you wrote:

    “The fact that the access to appropriate and equitable representation in ‘Law’ in this Country is not available, due basely to the socio-economic conditional standards of the practitioners, makes the practice of Law absolutely that of a state of ethical relativism and essentially immoral.”

    I may be misunderstanding you, but I read that as the fact lawyers are not available for free, or for low (read ‘affordable’) fees, as being “unethical.” I based that on your reference “…to socioeconomic conditional standards of the practitioners.” If that was not your intention, help me understand what you meant.

  116. Gene,

    Another gem. I’ve been busy all day canvassing for Obama, which some here might say is an example of my own ethical relativism. :)

    I ‘ve read all the comments on the thread thus far and for the most part we ‘ve got a great discussion going.

    My own opinion is that defining ethical absolutes is a difficult proposition fraught with dangers, as your examples and others here have illustrated. Yet I to am uncomfortable with ethical relativism because of its pliability. I believe that an important stage in maturity is the person coming to define their own ethical absolutes, because without them one remains as a child seeking only instant gratification.

    The obvious difficulty is when this is translated into a society’s morays, values and rules, there can be much stultification of many individuals own ethics.

    As an old fart, my absolutes spring from a basic principle, paraphrasing Confucius, Buddha, Rabbi Hillel and Jesus : Try to treat other humans as you would like to be treated, all else is what evolves from that ethical absolute and how it informs your applications of that principle.

  117. Gene H:

    thanks, I was actually surprised that I agreed with you and had thought, due to our many “debates”, that you would be an ethical relativist to a certain degree.

    Very good, thought provoking article.

    This is a very good subject and I hope you continue to explore it in future blog posts. This is a much deeper vein to mine than propaganda and while your posts on propaganda were very good and instructive, I think this subject has far greater capacity for instruction.

  118. Mike Spindell:

    “Try to treat other humans as you would like to be treated, all else is what evolves from that ethical absolute and how it informs your applications of that principle.”

    That is the bottom line, well actually the bottom line is that human life has great value, the rest stems from that.

  119. Well what is really strange is that there is supposedly a huge supply of lawyers, lots of lawyers unemployed, lots of lawyers working at non law minimum wage jobs, and their expertise hasn’t come down in price.

    There’s been a lot of talk about unemployment and public works jobs. Meanwhile there are a lot of people out there complaining about their cold case legal problems. See LawlessAmerica.com. Why can’t some of these “cold” legal cases be reopened through legal clinics? I understand the statutes of limitations, but where a case was filed and served, there is potential to reopen, and some cases that were never filed or never served have equitable tolling.

    It would be interesting if some legal consortium went to the LawlessAmerica.com website and offered to evaluate the situations people are complaining about.

    There’s talk about “frequent filers”. To me that means that the filer is convinced they have a case.

    Look at Brandon Moon. He filed multiple petitions to have his rape conviction overturned on the basis that the eyewitness identification evidence was not credible. And every time it was denied until he got a lawyer to plead the same arguments that he had been pleading. There’s a New York Times article about Brandon Moon that was just deleted from pro se Wikipedia.

  120. Bron,

    A pleasant surprise is always the best kind. While I’m not surprised that you thought I was an ethical relativist to a certain degree, I am a little surprised you thought that degree was 100%. I’ve always thought it was readily apparent that while I think some situations require the flexibility that relativism allows to derive equitable and just outcomes, that I also think there are – as Tony framed it – a small set of universally applicable absolutes that span the species regardless of culture (not that all cultures apply these absolutes the same way if at all).

    As to the rest? Thanks. I’ll keep that in mind. I may expand to cover other philosophical and ethical subjects as well.

    However, the propaganda series isn’t finished yet. Just on hiatus. Over the last six months some really interesting discoveries have been made in psychology and neurophysiology I wanted to incorporate into the next installment, but it’s a fairly impressive stack of material I need to go through and there are only so many hours in a day. I had intended the next installment to be a pivot point followed by a couple of installments on the history use of propaganda to various ends (military, advertising, etc.) but I may just end the series at the next installment. I am undecided on this point.

  121. @Gene: Again with the fallacy of composition. You are off your game today.

    Again with the incorrect charge; I committed no such fallacy. You will have to provide some detail as to precisely what feature of a subset I confused with a feature of the whole, because I do not believe I did.

    What I said commits no such fallacy, what I said was that the logic for the social contract does not require a state of nature if something can replace the state of nature, and something can. Maxwell did not commit a “fallacy of composition” in replacing the whole of electric and magnetic theory with electromagnetism; Darwin did not commit a “fallacy of composition” in overthrowing all of biology, Heisenberg (and others) did not commit a “fallacy of composition” in producing the mathematical underpinnings of quantum physics and overthrowing all of particle physics.

    The fallacy of composition only applies if you can correctly identify a feature I have assumed is true of the WHOLE when in fact it is only true of a PART: In this case, the “whole” is the “state of nature” premise as the driving force behind the forming of a society.

    While I am rejecting the whole of that premise, I do not do so by apprehending it in error, I claim there is no need for the premise because something else can replace it: An inherent desire for fairness and justice built into the normal human psyche by evolution as a survival mechanism.

    @Gene: You are also contradicting your earlier statement of “I do believe in a small core of ethical absolutism”. If there is a small core of absolutes, what exists outside that small core? Non-absolutes.

    That is a misunderstanding on your part. I believe in a small core of ethical absolutism the same way I believe in Euclid’s five axioms of plane geometry; what is outside that core is “propositions” and “proofs” that are the consequences of those axioms and logic. LIKE Euclid’s geometric axioms, I believe that principles of ethics must be derived from axiomatic absolutes.

    The shortest distance between two points, in Euclidean geometry, is always a straight line; that is an inviolable absolute. Parallel lines never meet; that is an inviolable absolute. Right angles are always equal; that is an inviolable absolute.

    @Gene: The social compact must consider these [non-absolute] situations as well. (my added qualifier, which is in context.)

    And it can, but a non-corrupt argument will indeed be grounded in the absolutism of “what is fair” and the human sense of fair dealing and fair punishment.

    But let me stick to the logic: Just like the ‘state of nature’ premise, my claim is about the beginning of a social compact, and why people would be motivated to subjugate themselves to one in the first place. So my claim is about what people first want from a society, and I believe the reason we willingly formed societies (most likely predating homo sapiens; there is evidence the common ancestor of us and Neandtertals, Homo Heidelbergensis (HH), had society and religion) is for the collective protection from both hardship and unfair treatment by others.

    It has been postulated (with much evidence in how it has been used) that Religion itself was an invention used to prevent unethical treatment; the entire idea that dead ancestors, ghosts, or supernatural forces would magically punish one for unethical transgressions is essentially a prescription used to counter unethical deception and betrayal that could not otherwise be detected.

    That may well parallel what is claimed by the ‘state of nature’ argument, as the results of quantum physics parallels 99.99% of Newtonian physics, but (like quantum physics) my formulation solves conundrums that the previous paradigm does not address.

    Namely, it addresses why people would want the benefits of belonging to a tribe in the first place with its restrictions, rituals and responsibilities.

    I think the answer is to address what we call ethical issues; issues of fair play, undeserved punishment or the opposite, escaping deserved punishment. Also issues of theft, betrayal, self-serving lies, concealment, endangerment, and a host of other immoral acts.

    @Gene: Dispute resolution is necessary for any society of size. Not all disputes are going to revolve around absolute principle.

    That just isn’t true; the resolution of all disputes revolves around the issue of what is fair. That is the difference between a good law and a bad law, a bad law results in unfair treatment, a good law results in fair treatment.

    I concede that the details of what society considers “fair” and “unfair” may change with culture. For example, until recently it was considered justifiable and fair to fight to the death over a slight to one’s honor, and many a gender issue once considered “fair” is now considered a crime.

    Those are examples of disputes the social compact must address that do not revolve around absolutes, but changing societal norms.

    What I claim is absolute is the demand for fairness itself; the demand that people will play by the rules. That demand is absolute and inherent in the (normally developed) human psyche.

    The ethical absolutes, the Euclidean axioms, are few. They do not have to do with specific acts, but with principles. We are opposed to murder but not every taking of a human life is unethical. We are opposed to theft but not every seizure of property is unethical. We are opposed to rape but not every sexual act is unethical. We are opposed to fraud and perjury but not every untruth is unethical. We are opposed to betrayal and disloyalty but not every betrayal is unethical (in fact some such betrayals of criminals are driven by ethical considerations).

    With such an extensive list of acts that are not always wrong, we need a guiding principle for determining what is and is not wrong. That is provided by the ethical absolutes and reasoning from them to current situations with current societal norms. Just like Euclid’s axioms, a finite set can be used to analyze an infinitude of truths.

    I think ONE of those ethical absolutes is the principle that what is unfair is unethical. I am not happy with my formulation of any other such ethical absolutes; this one is the obvious one to me. I have neither the time or intellect of Euclid; but I do believe a finite set exists. I also believe that, even with this one member, it provides a superior rationale for the formation of society in the first place, that an inherent desire for greater fairness, enforced by collective power, was the motivation for agreeing to be bound by rules in order to be protected by those rules: The social compact.

  122. Tony,

    “Just like the ‘state of nature’ premise, my claim is about the beginning of a social compact, and why people would be motivated to subjugate themselves to one in the first place”

    “The fallacy of composition only applies if you can correctly identify a feature I have assumed is true of the WHOLE when in fact it is only true of a PART: In this case, the “whole” is the “state of nature” premise as the driving force behind the forming of a society.”

    It applies because you have assumed one parts particular nature (absolutes) somehow impairs that initial decision to subjugate themselves to restrictions on absolute freedoms for mutually derived benefit. The key is that cost for benefit, not that those costs are of unequal or differing quality. That’s where the fallacy arises. The key defining trait is that absolute rights are converted to ethical rights in exchange for mutual benefit. That some of these rights are in themselves fully formed ethical absolutes and some are ethically relative is immaterial to the exchange.

  123. @Gene: I do not think it applies because I do not believe in absolute freedom in the first place; I believe the ethical absolutes are derived from inherent brain states. We are a social animal because we are evolved to be that way; we are born helpless with a dearth of instincts and rely upon other humans to feed and protect us for years. Reliance upon a society is our evolved state, all the way to our chimp-like ancestors, there was never a ‘state of nature’ or ‘absolute freedom’ to give up for normally developed homo sapiens; by the time our ancestors were capable of making a conscious decision between a social and solitary life (probably around Homo Heidelbergensis, the common ancestor of Homo sapiens and Neandertal man) their brains had built in societal rules, guilt, and the concepts of fairness and fair play that can be found even in modern chimps.

    There was never any ‘state of nature’ for our species before there was society and a sense of fair play and punishment for unfair play; we see those senses already present in socialized cousin apes, including gorillas and chimpanzees.

    The sense of fairness predates language; when human societies were formalized using language, people were not giving up some imaginary absolute freedoms they never experienced for the benefit of communal action or protection. They were formalizing in abstract terms what their three million years of evolved emotional states had dictated to them, and what had been proven effective (or fittest) by survival: That fair play was paramount and unfair play would be punished, even if it resulted in a net loss to both parties. Even chimps will do that, when they feel cheated. And even chimps will share, and feel empathy, and care for their sick and injured. That stuff is built into our psyche.

    There was never an “exchange” or “trade” or “decision” or any kind of rationality that formed a society. We are in societies because we are emotionally driven to them, and two of those emotions, the desire for fair treatment and the urge to punish unfair treatment even if it results in a net loss, are best satisfied by societies that can exert overwhelming power on cheaters. Your “key defining trait” is not the key at all because there were never any “absolute rights” to convert. If chimps and gorillas pummel each other over unfair treatment (and more recently have been observed in the wild to console those unfairly treated (beaten by a bully), but not those hurt by fair treatment (hurt by picking a fight)), why would we think that homo sapiens ever lacked it? It was never a rational choice between a ‘state of nature’ and society, the evidence (such as it is) suggest the formalization of society was an emotional demand for more fair play and more punishment of unfair play.

    Your “key defining trait” is circular reasoning; you assume absolute freedoms exist in order to justify the ‘state of nature’ which consists of absolute freedoms. Those never existed. Our species has a finite beginning, and at the beginning it was already endowed, like chimpanzees and gorillas, with all the emotional machinery needed to compel it to live in familial tribes with rules. The formalization of those rules with language and the development of a full blown society of many families was a reflection of that emotional machinery, not a rational choice but the rational codification of what was already self-evident to them; the doctrine of fair treatment.

  124. Tony,

    “I do not think it applies because I do not believe in absolute freedom in the first place;”

    Then the point is moot.

    You have a persistent problem with understanding the theory of the social compact but that does not change that it is the underlying philosophical theory that shapes the modern analysis of the legitimacy of government. Some day something may come along to replace it, but it is highly unlikely. The idea has considerably background and is highly evolved compared to some of the previous frameworks for analyzing the legitimacy of government such as divine right or other rationales based upon magical thinking and/or force. These are de facto rationales for legitimacy.

    Legitimacy in the modern sense is a question as applied to civil societies and focuses on originating consent (with joining consent being express or tacit). Legitimacy is at the core of the social compact and it recognizes the very real political fact that ultimately the governors rule only at the consent to the governed absent tyrannical despotic oppression – and even that is a numbers game. That primates are inherently social creatures is irrelevant to the fact that being a social creature and having ordered lawful societies are not mutually inclusive states. History shows that anarchy and lawlessness among social creatures is a real phenomena. So the question remains: when is a government legitimate or not? That you fail to grasp the utility of the philosophical metaphor of the state of nature for describing the states of lawlessness and ordered society because you are trapped by literalism is your failing and nobody else’s. I suspect that is simply rooted in your hard sciences background where metaphors are of much more limited use than in law or in its constituent area of study, philosophy. That some rights are in themselves fully formed ethical absolutes and some are ethically relative is immaterial to the exchange of limitations on behavior for mutual benefit.

    The choice to ignore the foundation of an entire area of study based upon your literalist dogma (which may serve you well in science but less so in philosophy) that because we are social creature that lawful ordered society is a natural result is not rationally related to the question of whether or not a social order is a legitimate grant and use of the coercive power of governance (and, again, that is the heart of the social compact question). Your refusal to understand this is stubborn, but does not illustrate that you completely grasp what the social compact means. Yet. You’re getting there in increments from your first blanket refusal to believe in the idea, but you still haven’t quite reached understanding.

  125. @Gene: whether or not a social order is a legitimate grant and use of the coercive power of governance is rooted in the fairness doctrine, too. Every proposed change to the law on this blog (to my recollection) by Turley, a guest, or a discussion participant has been rooted in the author’s perception of what is fair; even the libertarian nonsense about abolishing regulations and taxes is rooted in their perception of fairness. Commentary on aggressive use of force by police, on fair pay for women doing equal work, on the unconstitutional denial of habeas corpus or unconstitutional assassination or unconstitutional suppression of free speech, all of that and more, has been about fairness.

    I am also an atheist, another choice I make to ignore an entire area of study and centuries of misguided philosophy based upon fantasy and non-literal metaphors. Religion is also a powerful factor in the ruling of the world, but its acceptance in the world and deference to it does not make it in any way a correct view of reality.

    My problem with the ‘state of nature’ argument is not ignorance of it, any more than my rejection of religion is based upon ignorance of its magical claims. For both, my problem is the arguments are childish and counter-factual; if anything it is my familiarity with those arguments that causes me to reject them. The ‘state of nature’ is no more critical to a philosophy of government than a belief in God is critical to the understanding of biology.

  126. ” [A]nother choice I make to ignore an entire area of study and centuries of misguided philosophy based upon fantasy and non-literal metaphors.”

    You’ve never actually read Rousseau or Locke or any of the others that form the foundation of the theory behind social compacts, have you? They have a remarkable lack of spooky language. Philosophy is not theology and to dismiss it as such is a false equivalence. The origin of rights (which can devolve into theology if you start talking about Creators) and the legitimacy of government (which requires no spooky language to either define or discuss) are distinct and separate although tangentially related issues. Your refusal to accept the value of metaphors (and by extension I’m going to assume analogy) because they are non-literal (i.e. imprecise corollary) is simply flying in the face of the history of logical argumentation, dismissing fuzzy logic (which I know you do believe in) and embracing the Nirvana fallacy of rejecting solutions for not being perfect.

    “my problem is the arguments are childish and counter-factual; ”

    Really.

    Then anarchy and lawlessness among social creatures is not a real phenomena? And there is no distinction between the state of lawlessness and a state of civil order? Because those are the two real states the metaphor of the state of nature is addressing.

    That’s very interesting, Tony.

    However, the questions here are not about subjective standards of fairness, but rather objective standards of fairness for it is objective standards that are at the heart of defining just and equitable laws. That’s why we have laws as guidelines instead of just going to the shaman and getting a ruling based on his feelings. Law is about objective standards and (by applying stare decisis) consistent results.

  127. Tony C….brava, yes!
    ———-
    Otteray Scribe
    1, October 21, 2012 at 11:50 pm

    Woosty, you wrote:

    “The fact that the access to appropriate and equitable representation in ‘Law’ in this Country is not available, due basely to the socio-economic conditional standards of the practitioners, makes the practice of Law absolutely that of a state of ethical relativism and essentially immoral.”

    I may be misunderstanding you, but I read that as the fact lawyers are not available for free, or for low (read ‘affordable’) fees, as being “unethical.” I based that on your reference “…to socioeconomic conditional standards of the practitioners.” If that was not your intention, help me understand what you meant.
    —————————–

    The ‘ethical relativism’ philosophy is just that…philosophical. The practical application of the Law is what is current, what is real and what is essential in the Society. When people like Kay Sieverding have been mistreated by the Law, and there is no recourse simply because her new, real, tangible condition, as a result of that treatment, no longer meets the requirements of those who practice the Law, to be willing to assist her to a just attainment, then it is, by practicality or whatever you want to call it, no longer the practice of Law but the practice of renumeration through the personal application of the Law . It’s societal effects are then hardly able to be called Just and no more than disconnected and whimsical.
    I would add that in my understanding of the topic in the discussion, it appears that what is being discussed is ‘criminal law’ (I’m not a lawyer so that’s a guess), but the Law is practiced in almost every facet and aspect of societal behavior and that means that much of what is required by the ‘Law’ is obligatory, not just a choice or need because of bad decisions or situations….

  128. I will not argue that the economics of legal services is not out of kilter. The same can be said of many services, including medicine. A big part of this is due to the ridiculous costs of education and insurance in both fields of practice. But that’s a whole other article. :D

  129. There are a lot of lawyers that are not making much money at all. Then, there are those at the top that are making millions. Top attorneys and surgeons come no where close to making the billions the plutocrats do.

  130. Last weekend, I attended the Fall Conference of the Erikson Institute for Education and Research of the Austen Riggs Center, in Stockbridge, Massachusetts.

    In part, I attended the conference as a way of obtaining relevant interactive professional development hours needed for my Wisconsin Professional Engineer license renewal in 2014.

    The conference title was, “Untold Stories, Hidden Wounds: War Trauma and Its Treatment”

    Conference presenters included Nancy Sherman, Brett Litz, Frank Ochberg, Jonathan Shay, and Gen. Stephen Xenakis (ret.).

    One of the most important ideas I found presented at the conference is, in my view, strongly in accord with the core findings of my 1987-written bioengineering doctorate, the idea that “Post-Traumatic Stress Disorder” may wisely be better named, “Post-Traumatic Stress Injury,” or, perhaps even better, “Moral Injury.”

    At the conference, I voiced the following, bioengineering-based view:

    “Palliation of clinical signs is not remediation of neurological injury; moral injury is neurological injury.”

    To the question of the scientifically-verifiable existence of moral absolutes, I state, as an absolute, that there not only are moral absolutes; I further state that the presence of violated moral absolutes, as moral injuries, take the form of brain-scan-clearly-evident neurological injuries which so physically damage human brains as to severely modify their functional structure in ways that are blatantly obvious to anyone who is adequately qualified to accurately recognize physical brain damage that is the inescapable result of moral injury.

    The belief that there are no moral absolutes is itself of the form and function of moral injury, which is necessarily neurological injury, which is necessarily physical brain damage.

    Deception is the social/psychological basis of moral injury and its resulting physical brain damage. The predicament of deception in the life of a deceived person is, however tragically, that a person who is deceived has to be rendered incapable of being consciously aware of being deceived, this being an inescapable consequence of the directly observable fact that being consciously aware of being deceived is pragmatically indistinguishable from being not-deceived.

    In my work, I find that Post-Traumatic Stress Injury is even better named, “Neurological Trauma Injury.” because I find the biological response of the human nervous system to be an appropriate biological response to trauma-creating events, such that moral injury/neurological trauma injury are biologically optimal responses to actually experienced harmful events.

    Post-Traumatic Stress and its effects are not disorders; the actual disorder is in the beliefs which coerce people into traumatizing other people while mistakenly believing that they are doing otherwise.

    For those who sufficiently understand set theory and nested self-referential sets, the problem of absolutes is trivial.

    Were there no absolutes, the statement, “There are no absolutes,” would necessarily be an absolute. Thus, given that it is impossible for one or more absolutes to not exist, the relevant socially operant question is not whether absolutes exist, but how to accurately recognize and understand such absolutes as absolutely cannot not-exist.

  131. No, Swarthmore, it is not just about ‘picking’….you know it’s a tad more complicated than that but as was said, access denied is Justice denied is wonky application of the Law blah blah blah….

  132. In Jersey everything is legal as long as you don’t get caught …”

    So, what Tweeter, Monkey Man, Undercover Cop, Sister Jan, Racketeer Bill, State Trooper, and the Boy Scouts of the Jersey Girls said:

  133. Woosty, My mother’s death involved malpractice. Because of her age and the conservative nature of the community that she was living in we were told by multiple lawyers that the cost of the trial would not be worth it so we decided not to pursue it.

  134. All though the “state of nature” is hypothetical (how could it be otherwise?), it is the premise for the arguments put forward in all reasons for establishing government and thus the “state of society”.

    To deny the “state of nature” hypothetical is to presume that humans appeared full bloom on the planet in governed groups … the gods created in 6 days nonsense.

    Modern science even goes so far as to see the “state of nature” as actual rather than hypothetical in their studies of societies existing before or without a political state.

    Reading Locke, Aquinas, Hobbes, Hume, Rousseau, and even Filmer for crying out loud (and so many others) is vital when attempting to apply one’s own reason to this matter.

  135. @Gene: Then anarchy and lawlessness among social creatures is not a real phenomena?

    I certainly did not write that, if you infer that you have failed to comprehend what I wrote.

    @Gene: And there is no distinction between the state of lawlessness and a state of civil order?

    Those are obviously (to me) two ends of a spectrum of states, neither of which is ever attained; much like the temperature scale. The spectrum in this case depends upon the extent to which people are subjected to fair treatment; which is very little in the anarchic state, and very much in states we would consider stable civil order.

    I think it is funny how you resort to authoritarianism and a presumption of my ignorance whenever I disagree with you; Gene. Of course I have read Locke, and Malthus, and Darwin, and many others. I just do not read with reverence, and I do not assume that because the world accepts something that I must accept it also. I read as a scientist, not a philosopher, and as a scientist my first principle is that I must be convinced of the assumptions, both stated and unstated, in order to be convinced an argument is sound. The assumption of a ‘state of nature’ is not one I think is necessary in order to arrive at a philosophy of government. In fact I think by using an alternative approach based in reality, the arguments are strengthened.

  136. In Colorado they have very low limits on wrongful death so that you can’t get enough to pay a lawyer unless the person was making a high salary. I think that’s wrong because it encourages behavior that results in death.

    In Steamboat Springs, Colorado, the site of my underlying lawsuit, they made a practice of only enforcing the regulations sometimes. They had really strict regulations but they officially waived or ignored them depending on unwritten criteria, probably who you paid off. So a David Engle died in a fire in a home with only one exit that was officially a garage and the family didn’t sue because he wasn’t making that much. But because of public protest they claim that they have decided to enforce the development code and now there is a complaint form.

    The Tort Reform Lobby has thrown out the baby with the bath water. Now babies and seniors can be killed with essentially no liability so why should nursing homes be careful who they hire and how they supervise.

    I would have thought Engle’s case would have been pretty easy to prove in court since the assessor said that in Steamboat there are many illegal buildings and enforcement of the regulations is lax and there was government officials errors and omissions insurance too. The government officials must have known about the property since it was about two blocks from their office and was painted a bright color and since it was sold and therefore paperwork was filed also. I think they are supposed to reassess and therefore visit when a property is sold. But I guess the family was told that they would be retaliated against if they tried to sue for his wrongful death.

  137. Blouise 1, October 22, 2012 at 2:01 pm

    Reading Locke, Aquinas, Hobbes, Hume, Rousseau, and even Filmer for crying out loud (and so many others) is vital when attempting to apply one’s own reason to this matter.
    ===================================================
    Locke (1632–1704), Aquinas (1225 – 1274), Hobbes (1588 – 1679), Hume (1711 – 1776), Rousseau (1712 – 1778), and Filmer (1588 – 1653).

    Correct?

  138. Tony C. 1, October 22, 2012 at 2:20 pm


    I read as a scientist, not a philosopher, and as a scientist my first principle is that I must be convinced of the assumptions, both stated and unstated, in order to be convinced an argument is sound.
    ==========================================
    Are you convinced that the cosmologists, astrophysicists, and astronomers who say the the Sun will burn up the Earth and/or all life on it have a valid argument?

    To Wit as I posted up-thread:

    Earth’s fate is precarious. As a red giant, the Sun will have a maximum radius beyond the Earth’s current orbit, 1 AU (1.5×1011 m), 250 times the present radius of the Sun. However, by the time it is an asymptotic giant branch star, the Sun will have lost roughly 30% of its present mass due to a stellar wind, so the orbits of the planets will move outward. If it were only for this, Earth would probably be spared, but new research suggests that Earth will be swallowed by the Sun owing to tidal interactions. Even if Earth would escape incineration in the Sun, still all its water will be boiled away and most of its atmosphere would escape into space.

    (http://jonathanturley.org/2012/10/21/ethical-relativism-a-good-idea-or-a-path-to-anarchy/#comment-436504).

  139. Swarthmore mom
    1, October 22, 2012 at 1:52 pm
    ——————————————
    I’m sorry for your loss. And whatever distress you went through as well. Sadly it just illustrates my point further….if the ‘law market’ is so out of reach to those in society that have been wronged, deliberately or unintentionally, then what has it become and what purpose does it serve and what good does it do?

  140. @Blouise: To deny the “state of nature” hypothetical is to presume that humans appeared full bloom on the planet in governed groups…

    No it isn’t. To deny the state of nature hypothetical as I have written is to presume the reality of the situation for early humans, that they were already living in and dependent upon social groups (like chimps and gorillas) when whatever mutation(s) that produced modern cognition occurred.

    It is to presume there was never a period in the history of our species in which people were not born into at least familial groups which they depended upon for survival and operated cooperatively, in which they cared for each other when sick or injured and shared their resources.

    The ‘state of nature’ argument is the one that presumes a man is born a full scale adult with zero debts and zero ties to anybody and is capable of independent survival. That is the childish presumption that ignores infancy, and old age and periods of ill health, and the necessary societal investment (and moral debt to repay that aid) of any human that has ever attained adulthood.

    The state of nature hypothetical pretends there is a choice to be made between it and society, but there isn’t. We do not accept that anybody can refuse that choice and do as they please; nobody anywhere accepts that it is okay for a man to live in the wild on an unclaimed island and murder anybody that stumbles onto his island. Even in the wild far from any society, we think it is fundamentally wrong for people to exercise those “absolute” freedoms.

    Which logically renders those “absolute freedoms” just a straw man, an excuse to give a false front to what is actually inherent in our nature: That it is wrong to murder people for selfish gain. Not because we traded that right (explicitly or implicitly) for some benefit of society, just because it is inherently wrong in the normal human psyche, because other human lives have inherent value.

    Rejecting the ‘state of nature’ argument does not weaken the case for government; and it does not require any fantasy. What humans feel is fundamentally fair and unfair can be determined by the science of talking to them. That is a basis for turning “philosophy” from a religion of dogma and received “truths” into a science of good government and bad; because good government increases fair treatment and bad government decreases it.

  141. Dredd,

    I watched a program the other night … can’t remember the title as I was flipping channels when I happened upon it. The presentation went something like (and don’t quote me):

    70 some million years ago a volcano erupted (Mount Toba volcano):

    “The six year long volcanic winter and 1000-year-long instant Ice Age that followed Mount Toba’s eruption may have decimated Modern Man’s entire population. Genetic evidence suggests that Human population size fell to about 10,000 adults between 50 and 100 thousand years ago. The survivors from this global catastrophy would have found refuge in isolated tropical pockets, mainly in Equatorial Africa. Populations living in Europe and northern China would have been completely eliminated by the reduction of the summer temperatures by as much as 12 degrees centigrade.

    Volcanic winter and instant Ice Age may help resolve the central but unstated paradox of the recent African origin of Humankind: if we are all so recently “Out of Africa”, why do we not all look more African?

    Because the volcanic winter and instant Ice Age would have reduced populations levels low enough for founder effects, genetic drift and local adaptations to produce rapid changes in the surviving populations, causing the peoples of the world to look so different today. In other words, Toba may have caused Modern Races to differentiate abruptly only 70,000 years ago, rather than gradually over one million years.”

    http://www.bradshawfoundation.com/journey/toba2.html

    I think the program was based on Stephen Oppenheimer’s work

  142. Tony C.,

    “The state of nature hypothetical pretends there is a choice to be made between it and society …”

    What?!

    You’re talking about Social Contract theories … in other words, you do not think there was any time before government?

  143. Tony,

    “@Gene: Then anarchy and lawlessness among social creatures is not a real phenomena?

    I certainly did not write that, if you infer that you have failed to comprehend what I wrote.”

    No. I wrote that. It was a question for you.

    “@Gene: And there is no distinction between the state of lawlessness and a state of civil order?

    Those are obviously (to me) two ends of a spectrum of states, neither of which is ever attained; much like the temperature scale. The spectrum in this case depends upon the extent to which people are subjected to fair treatment; which is very little in the anarchic state, and very much in states we would consider stable civil order.”

    Fairness has nothing to do with it. Lawlessness and civil order are not the difference between fair and unfair or just and unjust. They are the difference between order and chaos. That neither exists in a pure state is irrelevant.

    “I think it is funny how you resort to authoritarianism and a presumption of my ignorance whenever I disagree with you; Gene.”

    I think it’s funny how you think pointing out the flaws in your thinking is some sort of authoritarianism when it is simply pointing out you’re wrong in your thinking. Then again, getting to you admit you are wrong is practically impossible because of that *ahem* “healthy ego” of yours. Yeah, yeah, you’re going to say you admit you’re wrong all the time, but having seen that in action, it’s usually a sideways admission and as difficult to get out of you as pulling out horse’s teeth with a pair of tweezers. While the horse is awake. And bucking. Stubbornness can be an admirable trait. But bullheadedness (to mix animal metaphors)? Not so much.

    “Of course I have read Locke, and Malthus, and Darwin, and many others. I just do not read with reverence, and I do not assume that because the world accepts something that I must accept it also.”

    Good for you that you’ve read Malthus and Darwin. Neither of them have squat to do with the social compact theory though ergo they are irrelevant to discussing the topic. You’ve read Locke, but that doesn’t answer my question about other writers (Hugo Grotius, Thomas Hobbes, Samuel Pufendorf, Jean-Jacques Rousseau) and their work on the social compact. Their work is heuristic and as such is as based on the realism of observation as science is even when Locke veers into Creator language. Nor does it address the other writer’s distinct lack of reliance upon spooky language. It is also important to note that in the evolution of the study of the social compact theory that the natural rights approach to the subject was surpassed in the 19th Century and replaced with Hegelian, Marxist and . . . wait for it . . . utilitarian approaches to the idea. And while the writer of the 20th Century best known for his work on social compact theory, John Rawls, was in favor of the fairness theory of justice, his approach to the social compact differs from my stated preference for soft rule utilitarianism in that Rawls did not adopt a universal ethical principle such as the maximized utility behind all forms of utilitarianism. He didn’t view political science as applied ethical or moral philosophy but rather as a distinct thing in itself (which I and many others don’t necessarily agree with) and said “The correct regulative principle for anything depends on the nature of that thing.” Despite this, his conclusions about the social compact are shocking much like the results one gets by applying soft rule utilitarianism to the subject. And you know what I think about that.

    “I read as a scientist, not a philosopher, and as a scientist my first principle is that I must be convinced of the assumptions, both stated and unstated, in order to be convinced an argument is sound.”

    And I read like a Stoic. I have been really giving ol’ Marcus a workout recently. “If any man is able to convince me and show me that I do not think or act right, I will gladly change; for I seek the truth by which no man was ever injured. But he is injured who abides in his error and ignorance.” However, your reliance upon being convinced of assumptions, not so much the stated ones and the unstated ones, presumes that you have 1) seen all of the unstated assumptions and 2) that your interpretation and/or understanding of them is factually correct and contextually relevant. You seem to think you are confusion proof. I don’t think you are ignorant, Tony. I think you are in error. There is a difference. One is correctable but the other is only correctable if it is not wilfully self-imposed.

    “The assumption of a ‘state of nature’ is not one I think is necessary in order to arrive at a philosophy of government. In fact I think by using an alternative approach based in reality, the arguments are strengthened.”

    And I think you don’t know what you are talking about regard social compacts. The argument for them is based soundly in the reality that ultimately the governors rule at the consent of the governed and it asks the question what is it that makes governance a legitimate or illegitimate exercise of authority.

  144. No, Bob, but it doesn’t matter because she has made a pact with both the Devil and Noah Webster. Her ability to pull bingo scores out of thin air is truly impressive and I believe one of the few credible pieces of evidence for supernatural agency. :mrgreen:

  145. Categorical Imperative: “Adopt only that maxim that you would will to become a universal law.”

    Categorical Imperative in Cinema: From “Unforgiven”

    BLAM! Smoke and fire from Little Bill’s pistol and Little Bill’s arm collapses from the effort and the pistol falls with a bang. Categorical imperative (CI) steps over to him and kicks the pistol away from Little Bill’s outstretched hand. Little Bill is bleeding from the mouth having taken a shot in the lung and he is very weak and all he can do is look up at CI and speak weakly.

    Little Bill: I don’t deserve this… to die like this. I was building a house.

    Categorical Imperative: Deserve’s got nothin’ to do with it.

    [aims gun]

    Little Bill: I’ll see you in hell, [Categorical Imperative].

    Categorical Imperative: Yeah.

    BLAM! CI shoots Little Bill and then looks around and Clyde is still groaning and that is the only sound. Then, suddenly, he is ALL BUSINESS. He walks quickly over to Clyde and shoots him once with the Spencer and the groaning stops.

  146. Blouise scored a bingo flashes on facebook a lot. I just hope that when it appears, it is in a game that she is playing with someone else.

  147. Bob said: “Is it ethical for Blouise to play Scrabble without giving her opponents at least a 50 point handicap?”

    I wouldn’t think so. Right now I’m desperately trying to hang on to a narrow lead (and frustrated because I’ve got a seven-letter word in my hand that I can’t get on the board), but I fear she’s just toying with me…

    Swarthmore mom,

    Our latest game was pretty even until I got both blanks—how can you not play a seven-letter word when you get that lucky? ;-)

    Blouise,

    I have alliteratively taunted you via email! :-P

  148. @Blouise: in other words, you do not think there was any time before government?

    I do not think there was any time (for modern humans) before society, and I do not think there was any time (for modern humans) before rules of behavior. I believe, due to what I believe is compelling evidence, that both rules of behavior and society existed for the ancestors of home sapiens before the current cognitive power of homo sapiens evolved.

    Society and rules of behavior are not government; chimpanzees, gorillas, dolphins, elephants and even dogs (to a limited extent) have these, inherent in their emotional nature. So do we, inherent in our emotional nature, although our rules are not identical to theirs.

    The difference is our language and cognition and foresight (living in something other than the immediate moment) that I believe developed after we already had, built into our emotional makeup, all the primitive impulses to rules, protection, sharing, cooperation and punishment for transgression that we see in various modern societal animals.

    That is what flips the ‘state of nature’ argument on its head. The ‘state of nature’ before we had government and laws was not anarchy at all, and there never were any absolute freedoms. There was a social order, friendships, trust, and ad hoc enforcement of rules of behavior. Language and cognition and foresight, our ability to use abstractions, only let us formalize and extend what was already there, and I think that was (and is) the purpose of government.

    I believe that as soon as people developed the cognitive power to recognize more subtle patterns of cheating (unfairness) than just taking too much food or refusing to share, they developed formalized rules to stop that kind of cheating.

    That has been true from the earliest known writings on law 4100 years ago, before Hammurabi (and including Hammurabi). The point of the earliest laws we can see was to create equity and punish cheating. That remains the central point of the law today. I think what we consider bad law is law that promotes cheating, like protecting the powerful more than the weak or the rulers more than the citizens. What we consider good law is law that gives people recourse to what we see as unfair treatment, or punishes people for engaging in unfair treatment (like defrauding somebody, or destroying their pension).

    I do not believe the ‘state of nature’ was ever a viable choice; the world was far too dangerous a place. That was not the alternative when humans invented formal laws, and probably later formal government to enforce the laws. The society was there all along, it evolved before the cognitive power did; and the alternative to a just society was a less just society.

  149. Taunting Blouise continued…

    Blouise learns from the master…

    MEPHISTOPHELES
    I would not lead you willingly astray,
    But as regards this science, you will find
    So hard it is to shun the erring way,
    And so much hidden poison lies therein,
    Which scarce can you discern from medicine.
    Here too it is the best, to listen but to one,
    And by the master’s words to swear alone.
    To sum up all–To words hold fast!
    Then the safe gate securely pass’d,
    You’ll reach the lane of certainty at last.

    STUDENT (a.k.a Blouise)
    But then some meaning must the words convey.

    MEPHISTOPHELES
    Right! But o’er-anxious thought, you’ll find of no avail,
    For there precisely where ideas fail,
    A word comes opportunely into play
    Most admirable weapons words are found,
    On words a system we securely ground,
    In words we can conveniently believe,
    Nor of a single jot can we a word bereave

    Blouise
    Ethics shmethics; where do I sign?

    LOL

  150. “The ‘state of nature’ before we had government and laws was not anarchy at all, and there never were any absolute freedoms.”

    Proof positive that you criticize social contractual theory without first comprehending it.

    Social contract theory is not an anthropological survey of human rights throughout history; it is a restatement of the origin of rights and society from which we build government.

  151. Did someone say bingo?

    Bob Esq is a brave soul in that he hadn’t played Scrabble in years and then had only played it a couple of times. However, within 2 games he had caught onto the strategy and, of course, his vocabulary is incredible. I’m so glad he said yes to the challenge.

    And I am just as appreciative of the rest of my worthy opponents … I do so love the game! However, I am running out of virgins to sacrifice in order to woo the Scrabble gods … things could get ugly here on Lake Erie.

    I will see you on the boards tomorrow but it will be haphazard as the 4 year old is with me.

  152. Tony C.,

    I read your post and wish to respond but I’m too tired tonight to do your post justice so will wait until sometime tomorrow or Weds. (due to my grandchild’s visit)

    Perhaps you might consider setting up a fake facebook page and joining us in Scrabble … just think of all the ideas we could discuss on the “chat” window while we play … we might save the world!!

  153. [re: Blouise]

    E-x-c-e-l-l-e-n-t! *steeples fingers*

    I’ll have to play as frequently as possible tomorrow while she’s distracted…

    Bwa-ha-ha-HA-ha!

  154. slarti,

    Got your email and I think it is the best one either one of us has done!

    I will attempt to rise to the occasion. ;)

  155. Bed? We don’t need no stinking bed!

    These is prime working hours—I’ll try to go to sleep before dawn… :-P

  156. Blouise,

    I’ve been trying to resond to your scrxsbble invitation since you sent it, but I haven’t been able to load it on my Kindle Fire. What is the procedure for loading it for facebook? However, given some of the comments here perhaps I’m a lamb to the slaughter.

  157. I haven’t played Scrabble in more than forty years. I finally gave it up because no one would play with me. I did play a lot of Monopoly in grad school because I am terrible at it and all my friends knew they could take me easily. Apparently I never figured out the secret strategy for winning; either that, or I don’t have the killer instinct needed to take over the world.

  158. Mike S.,

    Just get the app on facebook and since we’re “friends” simply start a game with me. “Step into my parlour” …

  159. OS,

    Set up a fake facebook page using a variation of the OS screen name then send me an email … I’ll play games with you all day … ;)

  160. @Bob Esq: t is a restatement of the origin of rights and society from which we build government.

    No it is NOT a restatement of the origin of rights, it is a fictional imagining of the origin of rights. Rights originated in the emotions of proto-Man living in societal groups, they did not originate in a ‘state of nature” that never existed.

    The real question is WHY do we have any rights at all? What justifies that privilege? Why is it wrong to murder, steal, cheat or deceive? The answer is always some phrasing of the concept of what constitutes fair treatment, equitable treatment, justice in the form of deserved punishment (equal to the crime) and injustice in the form of undeserved punishment.

    Where does that sense that things should be fair come from? It exists in so many socially cooperative animals (i.e. not including herds or flocks that forage independently) that it is probably a necessity of living in socially cooperative groups to avoid being overwhelmed by free riders.

    The ‘state of nature’ has nothing to do with why we built government, as we developed the power of abstract thinking, we evolved government to serve our inherent sense of fairness, equity, justice, and punishment in ever larger societal groups.

    That is where government came from, 5000 years ago (at least) or more likely 60,000 years ago; it was empowered by the people to establish equity. The oldest stone tablets and laws are specific and literal about fairness, including the eye-for-an-eye, tooth-for-a-tooth, life-for-a-life laws of Hammurabi.

    Basing the law upon the ‘state of nature’ argument is like basing your life on belief in a magical prophet transcribing the words of an imaginary God. They are similar because the false basis may still allow you to come to some valid conclusions, but both require twisting parts, ignoring parts, and declaring some parts to be metaphorical and meaning something entirely different than the literal words. In other words the false basis just gets rationalized away whenever it is inconvenient to what we know is the truth (about life or the law).

    In proto-man, when foraging groups grew large they split. This controlled the size of the groups, so that our instinctual enforcements of social cohesion (anger, lashing out, crying, threats, peer pressure and the fear of being outcast for bad behavior) were enough to keep the group together and cooperating.

    Genetic mutations in our brain led to larger groups, so large, more than 150 or so, that these instinctual methods begin to break down. (The limit is derived from both historical and modern sociological studies of associations, political groups, business groups and clubs and how they tend to fracture and why; one of the reasons is a natural limit on how many people the average person can keep up with in their circle.)

    Normally that would lead to group fracture; a large cohesive splinter (30% or so) would go their own way; and problem solved. But when the reason for the groups growing larger is more intelligent cooperation, some division of duties, exploiting fixed resources (like farms or a river or lake), then splitting becomes problematic. Neither side wants to give up the resource. The easier solution is to use the abstract thinking that created the problem in the first place: formalize as laws those instinctual methods of sharing and punishment that lead to social cohesion. Define rules of behavior and make it somebody’s job to enforce the rules.

    That eventually leads to its own problems in the concentration of power (and interpretation) of the law, but the point remains. Government is about preserving social cohesion in groups that are just too large for everybody to be lifelong acquaintances with everybody else

    That is how government (most plausibly) was really built, as an extension of our emotional needs for equity and fairness to preserve social cohesion. That is why the vast majority of laws in the last 5000 years have been about punishing the violent or punishing the cheats (thieves, frauds, liars, contract breakers). Government was built for justice, which has its literal roots in the words “fair,” “equitable” and “correct.” Although we analyze acts of people in various situations analytically, whether they are “fair” or “equitable” is something we typically interpret emotionally, it is a usually a feeling, not a rational conclusion, because fairness and equity are part of our inherent emotional nature.

    I think fundamental rights are a later simplifying abstraction (and a good one), but also based in social cohesion. I think the administration of cooperative efforts is another later abstraction, but cooperation itself came first: It was cooperative survival (farming, ranching, hunting, trapping and territorial defense) that led to the growth that led to the need for government in the first place.

    Understanding the most plausible real roots of government and its fundamental purpose (equity and fairness to preserve social cohesion) can lead us to better government. It does not change the conclusion that government should be at the consent of the governed, and should serve the governed, and should be the sole authorized user of force. It does not change the idea of fair contracts being enforced. All of those characteristics become obvious.

    What it can inform are the priorities and limitations of government; what it also obviously justifies is much of the Bill of Rights, the social programs that care for the elderly and sick and disabled that have always been a part of society, it justifies the socialization of education in the name of equity and egalitarianism, it justifies taxation and spending on common infrastructure.

    Derision and insult do not persuade me; they are emotional reactions, not rational arguments. Clutching a copy of Locke is no different than clutching the Bible or Koran or Atlas Shrugged; widespread acceptance of any treatise derived from a fictional premise is not a measure of whether it is plausible or makes sense in the real world.

    My framework for understanding government is derived from what I believe (with archaeological and sociological evidence) is the most probable real world justification for government in the first place.

    It is a scientific approach, not a philosophical approach, because I do not wish to debate how many angels can dance on the head of a pin or whether God can make a rock he cannot move. Debating fictional philosophical premises is entertaining but far too arbitrary for me to take seriously; I am interested in the real world and real people, and real arguments. I do not consider appeals to authority a real argument; if I did I doubt I could be a scientist; half the job of discovery or invention is suspecting that some dogma is wrong or an authority is mistaken.

  161. Blouise, you are not the first to suggest I set up a fake Facebook page. I have resisted so far, because I don’t have time for all the other things that take up time I don’t have to spare.

    I have not forgotten your offer on the pipes. My youngest is still trying to catch up with her piping instructor. He has a new job at a new school teaching special needs kids, and has been scarce lately. Her other piping instructor moved to Florida.

  162. “It is a scientific approach, not a philosophical approach” and that is why it is fundamentally flawed, Tony. It’s what you want it to be, not what it is. What the history of the law reveals is that law had its start in philosophy and/or religion. Those were the tools men past used to decide what constituted right or wrong. Then came ethics. Then came scientific method to inform the whole lot. However, the introduction of the scientific method to jurisprudence is a fairly recent development in human history but that kind of evidence based thinking is demonstrated in the heuristic approach to the social compact. No one writing the Code of Hammurabi was sitting around thinking “Well because of the nature of social animals and their sense of fairness as observed in lower primates, we should make this law equitable.” They didn’t have modern science as a guide, Tony. The smart ones used reason in philosophy and then the more logic and evidence driven study of ethics came to the fore. The less rational used the top down dictates of religious dogma and religious based philosophy. You are now committing both the historian’s fallacy (assuming that decision makers of the past viewed events from the same perspective and having the same information as those subsequently analyzing an issue) and the fallacy of presentism (historical analysis in which present-day ideas like modern social mores and modern tools like the scientific method are projected into the past).

    And you matter how many time you repeat it, science is not the historical basis of legal theory no matter how badly you want it to be. You should be content that at the cutting edge of modern jurisprudence, the scientific method does inform it.

  163. OS,

    Only use it for Scrabble … make everything private … no friends of friends etc. Takes about five minutes to do then go to the apps icon and get Scrabble then let us know and we’ll request friend status voila … I only have 5 friends and all we do is play Scrabble

  164. @Gene: science is not the historical basis of legal theory

    I did not say it was, Gene, and I am not pretending it was. And the emotional reactions that produce socially cooperative group cohesion precedes both philosophy and religion by millions of years. My claim is that with the benefit of scientific progress to date we can NOW understand better why and how government originated, and that understanding comports with what we see today are the most demanded functions of government.

    Fiction based philosophy (including but not limited to religion) also used to inform physics, and chemistry, and weather prediction, and biology, and medicine. The introduction of fact-based science to those disciplines has improved them, and made irrelevant (or even laughable) the fictions that used to inform those disciplines; and continues to do so.

    I am not denying the ‘state of nature’ is important to current legal philosophy, I am saying it is a fiction based philosophy and I believe a fact-based scientific approach would produce superior results.

  165. And your belief does not change that you are ignoring that the social compact as understood through the lens of heuristics is the scientific based approach to the subject, Tony. That which you claim to not believe in for being based on magical thinking instead of science has been based in rational observation (heuristics – just like science) for the last 100 years. You have a bias and it is fairly screaming out loud to everyone but you. Because the term state of nature is a metaphorical term coined to describe a concept (anarchy versus social order) which is valid, but because that term was coined by a professional philosopher instead of a scientist you somehow think that automatically invalidates the idea when it most certainly does not. The metaphor stands and remains useful because observation proved it to be a good and useful metaphor, not simply because Hobbes and Locke were philosophers. Although the social compact movement started in the spooky language of writers like Grotius and Locke, it evolved to the non-spooky language of Rousseau and into the practically scientific language of Rawls and the utilitarians.

    Like I said, you are not ignorant. You have generally the right idea. You are just in error of the facts of the matter because you want the right model to come from science proper when in fact the right model is already here and based in heuristics applied to philosophy. What you claim to want is what the modern theory actually provides – a rational evidence based theory of government and its legitimacy.

  166. @Gene: No one writing the Code of Hammurabi was sitting around thinking “Well because of the nature of social animals and their sense of fairness as observed in lower primates, we should make this law equitable.”

    I did not say that, either, so again you misinterpret what I wrote, so again I will try a different angle. The people WERE social animals ALREADY, and modern cognition developed after they were social animals for many millions of years, long enough for the rules of society to be encoded in the most effective place evolution had at the time, the emotional feelings and reactions.

    So when people finally sat down to code laws, they weren’t thinking about social animals, they WERE social animals, and they were thinking about how THEY felt, and what they felt was fair, and unfair, and equitable. The code of Hammurabi borrows (or at least came to the same conclusions as) from the code of Ur-Nammu 300 years earlier, and that code specifically states in its first line that the law was created to promote truth and equity (fairness) in the land.

  167. Tony,

    I understood what you said just fine. You are the one with the understanding gap here. Your bias against anything you perceive as non-scientific is creating a staggering blind spot for you. Read (and better yet understand) my previous post. Surely I don’t have to explain the meaning of heuristics to you.

    Or you can continue to try to tell me that you know legal history and theory better than an entire profession if that assuages your massive ego requirement that every solution must come from purely science (despite it being manifestly logical that correct solutions may be reached by more than one path) and that you get to remain “right” even if it is only in your mind. I have told you the truth about the social compact theory. If your choice is to remain wilfully ignorant rather than see your error (or, FSM forbid! admit it), that is your choice and the only person harmed is you.

    Quite frankly your gyrations to escape the appearance of being in error is growing as tedious as those who deny the reality of evolution simply because the word “theory” is attached to it.

  168. @Gene: I understood what you said just fine.

    No you didn’t, somebody that understood what I said would not have written what you wrote, unless you were purposely mischaracterizing my claim.

    You accuse me of bullheadedness while practicing it, Gene. I do not admit I am wrong when I do not believe that I am, and you do not admit you are wrong when you do not believe that you are. That is as it should be, and neither is evidence of being correct. I believe that starting from scratch and taking a scientific and fact-based approach to what was a fiction-based philosophical approach has always ended up in a superior understanding and application.

    There is no way to take the ancient fiction-based philosophical belief that all things were composed of “fire, water, earth and air” and turn that into quantum physics. Even if, as they did, they continued to invent more fictions of sympathetic magic in order to try and make their fiction comport with reality. The fictional concepts had to be abandoned in order to move forward toward more sophisticated understandings.

    These are not gyrations to escape, because I do not think I am trapped in the least, I think I stand on solid ground and you are defending magical thinking. You certainly know the law as it stands better than I do, and the history of the law as well. If you are telling me that the ‘state of nature’ is not really the basis of the law and the reasoning no longer depends on it, then good. I am glad. If you are not telling me that, then I am surprised you prefer a philosophical metaphor to the truth.

  169. Tony,

    The goal of argumentation is to win the assent of the audience.

    And Tony, may I just say that that is perhaps the most solipsistic approach to an analysis of the social contract that I’ve ever read.

  170. @Bob: The goal of argumentation is to win the assent of the audience.

    Perhaps for a lawyer. For a scientist, the goal of argumentation is to arrive at the best approximation of truth we can find.

  171. Tony,

    Trapped hasn’t got a thing to do with it except in your mind. If you feel like trapped is an issue? Maybe that should tell you something.

    That you dismiss a theory based on observation and sound logic because you don’t like that the pedigree is philosophy and not science? Is your ridiculous irrational bias to deal with. While you’re at it? You might as well throw the scientific method out the window too because ultimately its roots are in metaphysics which I will remind you is a form of philosophy. Not to do so would be hypocritical on your part since you’re so busy dismissing anything rooted in philosophy.

    You apparently think science is the only path to true solutions and this is simply not so. To deny that is to fly in the face of mathematics. You know. Mathematics. That thing that is the language of science. Multiple solution paths are simply a mathematical fact. You claim to seek the truth but when it is presented to you, you stomp your feet and say “Only 5+5=10! It can never be 12-2=10 because I don’t believe in subtraction!”

    That you also persistently fail to understand both the metaphor of the state of nature and its utility in defining two very real properties of a group (anarchy and social order) is quite simply one of the larger intellectual fails I’ve ever seen from someone who is otherwise an intelligent person. The state of nature of this metaphor is simply one side of the spectrum where the tipping point has been passed and the fundamental state of the system changes from one property (ordered) to another (chaotic). This should be easy for you to understand.

    There is no magical thinking here, Tony.

    There is simply you being wrong as a matter of your faulty logic, denial about the facts of the history of law in general and this theory in particular and your bias against anything not meeting your rather interesting definition science that discounts that disciplines origins in the very same root-bed as the law.

    Oh, and that huge lump of ego you keep tripping over.

    Like I said, feel free to be as wrong as you like. If it helps with your self image to think you are confusion proof? Knock yourself out. The only person harmed by your wilful ignorance is you.

  172. @Gene: That you dismiss a theory based on observation and sound logic because you don’t like that the pedigree is philosophy and not science?

    Except I do not; only you claim that I do. I am not swayed by the pedigree at all, I would be disgusted with myself if I were, it is against everything I believe in as a scientist; bias for or against an argument because of a pedigree is equivalent to an appeal to authority or tradition in my mind; it is irrational. Ideas stand or fall on their own.

    My bias is not because it was a philosopher, my bias is because it is fiction. I would be just as dismissive if Newton himself proposed it; we should not make decisions about peoples lives by reasoning about what we might do in some post apocalyptic Mad Max scenario.

    And again, since you do not seem to get it, I am not in denial about the history of law or how the state of nature was used at all, just as I am not in denial about the history of religion or how the arguments for divine guidance have been used at all.

    My argument is that the ‘state of nature’ is a fiction that never existed and is NOT the ideal starting place for understanding why humans created or desire a government. The ideal starting place is to understand the truth of why they did it, and the truth is they did not do it because their alternative was anarchy, as the argument proceeding from a ‘state of anarchy’ hypothetical obviously suggests.

    You might as well say they formed the government to fight dragons, which they then defeated, and that is why we do not see dragons, but the government proved to have other uses. So you, too, feel free to reason from fiction, and you will undoubtedly continue to INVENT fiction by claiming I said things I never said, and hold biases I do not hold, and that I am ignorant where I am not, because apparently coming to false conclusions about somebody else’s mind comforts you.

  173. Tony,

    Not for nothing, but argument for inquiry still requires assent of an audience; i.e. convinced of said truth.

    You’re forming arguments based on counterfactual premises regarding social contract theory.

    You may as well be arguing that the moon is made of green cheese.

  174. @Bob: Well, I do not think you can know if anybody else is convinced of said truth.

    As for counter-factual, that is obviously not true, I am arguing for a different approach that would produce, perhaps, a different take on social contract theory. I am not arguing at all about how the current social contract theory is formulated, except to say I think it began from a false premise.

    Anarchy in general is a desperation state of affairs that occurs when basic survival is at stake and there are not enough resources to go around. I do not think it is human nature for people to submit to government rule and give up their autonomy under such circumstances, to me it makes far more sense that they would consent to be governed and follow rules when they could afford to do that, e.g. not when they are worried about whether their child is going to starve to death. In sociology (and the reality is reflected in much fiction) we see that poverty and desperation often drive law breaking behavior.

    I do not think anarchy or desperation is a viable starting point for suddenly consenting to be governed; and as I said before, society was here all along, people did not leave a state of anarchy to form a society.

  175. Blouise 1, October 22, 2012 at 2:59 pm

    Dredd,

    I watched a program the other night … can’t remember the title as I was flipping channels when I happened upon it. The presentation went something like (and don’t quote me):

    70 some million years ago a volcano erupted (Mount Toba volcano):

    “The six year long volcanic winter and 1000-year-long instant Ice Age that followed Mount Toba’s eruption may have decimated Modern Man’s entire population.

    In other words, Toba may have caused Modern Races to differentiate abruptly only 70,000 years ago, rather than gradually over one million years.”
    ==================================================
    Homo has only been around 200,000 years.

    The Fifth Mass Extinction, the K-T Boundary extinction, was about 65 million years ago, well before Homo, and was caused by an asteroid as I stated and linked up-thread

  176. @Dredd: Blouise was just mistaken in her first figure; Mount Toba was 70,000 years ago and did result in a bottleneck, as she stated in her final sentence. Genetically speaking, it apparently reduced the human population to about 10,000 or 20,000 individuals.

    I think the program she was watching was “How the Earth Made Man,” on the History channel. The 70,000 year figure is accurate.

  177. Tony C.,

    Thanks for correcting that mistake … the second number is the correct one. And How the Earth Made Man was indeed the program which I have since had a chance to look up.

    Dredd,

    I wasn’t arguing your post just adding to it … but poorly.

    Anyway, it was a fascinating program and stopped my channel surfing on a dime.

  178. “@Gene: That you dismiss a theory based on observation and sound logic because you don’t like that the pedigree is philosophy and not science?

    Except I do not; only you claim that I do. I am not swayed by the pedigree at all, I would be disgusted with myself if I were, it is against everything I believe in as a scientist; bias for or against an argument because of a pedigree is equivalent to an appeal to authority or tradition in my mind; it is irrational. Ideas stand or fall on their own.”

    Then you should be disgusted because the only one not seeing your bias is you.

    “My bias is not because it was a philosopher, my bias is because it is fiction.”

    A metaphor that describes two real states of being is not a fiction. Would have you been happier if Hobbes had used gaseous and liquid as an even less accurate metaphor? (I am going somewhere with this. You’ll probably completely not get my point again here shortly.)

    “And again, since you do not seem to get it, I am not in denial about the history of law or how the state of nature was used at all, just as I am not in denial about the history of religion or how the arguments for divine guidance have been used at all.”

    If that makes you feel better about yourself? Who am I to stand between a man and his denial.

    “My argument is that the ‘state of nature’ is a fiction that never existed and is NOT the ideal starting place for understanding why humans created or desire a government.”

    Your argument again shows your ignorance about what the state of nature is as discussed by these writers.

    “The ideal starting place is to understand the truth of why they did it, and the truth is they did not do it because their alternative was anarchy, as the argument proceeding from a ‘state of anarchy’ hypothetical obviously suggests.”

    Starting place? (Again, wait for it.)

    “You might as well say they formed the government to fight dragons, which they then defeated, and that is why we do not see dragons, but the government proved to have other uses. So you, too, feel free to reason from fiction, and you will undoubtedly continue to INVENT fiction by claiming I said things I never said, and hold biases I do not hold, and that I am ignorant where I am not, because apparently coming to false conclusions about somebody else’s mind comforts you.”

    Sorry, Tony, you are actually still wilfully ignorant, you have a noticeable bias no matter how much you protest to the contrary and that’s simply a fact. Not one I find comforting either, but one I accept for what it is based upon the objective evidence of your behavior.

    Now, back to starting point.

    Starting point?

    Phase change.

    CHAOS Chaos chaos (formalized government) order Order ORDER

    S-P-E-C-T-R-U-M

    T-I-P-P-I-N-G P-O-I-N-T

    M-A-T-H

    “Starting point” is practically irrelevant if you don’t know what you are starting and beside the point of the metaphor. The metaphor is about where to start the analysis of legitimacy of government not where cultures actually incept. Barbarians have culture, Tony. They just don’t have civil societies. That’s why they are barbarians. OED defines the mass noun of “metaphor” as a thing regarded as representative or symbolic of something else. Or as our resident mathematician is fond of saying, the map is not the territory. The social compact theory is the map, civil societies are the territory and our goal is the destination of legitimate governance.

    You continue to be as wrong as you like, Tony.

    It’s really no skin off my back, but as long as you keep spouting nonsense I’m going to point it out. I’ve spelled it out using language even scientists can understand. Any lack of understanding at this point wilful or otherwise, acknowledged or not, is simply your self-harming burden to bear.

  179. Tony C.,

    In order to consider your idea, is it necessary to suspend or put aside the here-to-fore hypothetical definitions of “state of nature” and replace them with your hypothetical of the “state of nature” (for want at this time of a better term) as “is inherent in normally developed brains, and that is an over-arching concept of ‘fairness.'”?

    In other words your hypothetical state of nature is an inherent concept of fairness?

    (I’m going back to the original post of 10/12 @ 12:09pm)

    Now I am willing to suspend my understanding of the hypothetical state of nature (good lord, where do I place the “s” to show plurality?) put forward by so many of the philosophers from the past/present but I need to see how yours is the better hypothetical.

  180. Blouise,

    It’s a moot point.

    That primates have an innate sense of fairness may be and in all likelihood is a (but not the only – critical mass and herd behaviors are two others that come to mind) causal factor that leads to the impulse for social order is irrelevant to the function of the classical state of nature metaphor. That we seek a social order at all is at the heart of spontaneous order theory as espoused by sociologists like Niklas Luhman. The idea Tony is circling is not new but it is more relevant to cultural anthropology and sociology, not law and legal analysis. That’s not to say it’s irrelevant in toto, it’s moot primarily because it is woefully oversimplified. Let me explain . . .

    His idea focuses on the inception of cultures, not the organizational threshold of civil society necessary to determine whether a governance system is legitimate or illegitimate in exercising power over a populace. Culture and civil society are two different phenomena running in parallel. While they do influence one another, the inception of culture is irrelevant to the study of civil society for the purposes of law. Bushmen have a culture, but do they have civil society of sufficient complexity for a legitimacy of governance analysis to be applied? No, they do not in part because they have not reached a critical mass of population numbers for formal codified governance to appear. They have no codified social compact and their laws remain fairly simple because they exist in small numbers where tribal and other less formal cultural tradition exist that are precursors/substitutes for more complex codified systems of governance that larger populations require. Does this mean they have a legitimate or illegitimate form of government? No. It means they have too rudimentary a society for the question and form of the social compact to be relevant yet. Does this mean they have a just or unjust culture? No. That’s not the question either. Fairness is a separate issue in legal analysis from legitimacy. Fairness is most involved with the study of equity and justice, but its relationship to legitimacy questions is tangential as the state of justice within a society is only one of many factors considered when examining the question of legitimacy.

    The first question is what kind of legitimacy are you seeking to establish? Numinous or civil? Since we as a species have largely abandoned the notions of divine right and theocracy as sound basis and form for governance, numinous legitimacy is an outmoded concept unless you live in Iran, Saudi Arabia or Vatican City. These are retrograde forms and are in widely not considered legitimate in the modern analysis of civil legitimacy in part because history has repeatedly shown them to be faulty forms for long term social stability that are derived from belief (over reason) and charismatic leadership. There is a reason why I’ve repeatedly said theocracy is one of the worst ideas in the history of bad ideas. It’s ultimately irrational and emotionally driven.

    In the study of civil legitimacy in the modern world focuses tradition based forms or rational-legal based forms (like democracy, monarchy, constitutionalism, communism, fascism, etc.) and their permutations. It should be noted that democracy is not required to establish legitimacy but rather the idea of legitimacy orbits around codification of custom and cultural norms and the other attendant factors like social cost/benefit etc. It is possible for a rational-legal based form to slide backward into a charismatic form of governance though. See Nazi Germany under Hitler, Fascist Italy under Mussolini and Fascist Spain under Franco for examples of this retrograde motion of a rational-legal basis of government degenerating into a charismatic form of government (Nazism, Italian Fascism (a proto-corporatist form of fascism) and Spanish nationalist/charistmatic fascism respectively). See America under Reagan, Bush, Clinton, Bush II and Obama. We are sliding away from principle based representative constitutional democratic republicanism and into a form of corporatist oligarchy (or as Mike S likes to call it corporate feudalism) that appears to be a variant on Italian Fascism that relies on charismatic over substantive leadership working for the oligarchy and against democratic principle.

    But I digress.

    However, I digress to a point for a reason: to say that the analysis of legitimacy is fundamentally an analysis of fairness is a gross oversimplification of the analysis. It looks at one narrow component of societal and customary norms instead of considering them in a broader sense and it ignores other parts of the analysis like beneficial consequences/public obligation of government, public consent and whether it is forced or free, etc. Tony’s theory is both wrong as a matter of jurisprudence and it is facially insufficient to address all the factors feeding into proper analysis of legitimacy. In other words, it’s factually erroneous in its understanding of the social compact theory as a whole and it’s logically fallacious because of the previously mentioned fallacies as well as the fallacy of oversimplification.

    As I said, Tony is not generally ignorant. His recalcitrance here does reflect both wilful ignorance, his bias, and some general lapses in logic. Mostly Tony is simply in error about the source and function of the metaphor as it applies to analysis.

    This does not mean I think he’s stupid (far from it).

    It does not mean I think he’s a bad guy (I’ve known him long enough to find him a descent sort and think that’s based on enough sample space to be a sufficient judgement of his character).

    It simply means I think he’s wrong on this issue because he’s factually and logically wrong and for all of the aforementioned reasons.

    And he’s as stubborn as a chopping block and as proud as a peacock.

    But that’s really a contributory factor to his wilfulness in ignoring what the state of nature metaphor is about and not so relevant to his being wrong other than driving him to deny that he’s wrong in the face of overwhelming evidence to the contrary.

    And as I’ve also indicated, the only person harmed by that is Tony.

  181. “However, I digress to a point for a reason:” ;)

    It seemed to me at the very beginning that he was speaking more from a sociological/anthropolgy (two or more individuals) view as I noted in my first exchange with him on this matter and I know from past discussions with him that he is very much opposed to magical thinking but not to intuition.

    Most certainly I agree with you when it boils down to “organizational threshold of civil society necessary to determine whether a governance system is legitimate or illegitimate in exercising power over a populace” and the social compact theory.

    However, there is something that I sense in what he is saying that intrigues me. I’m not at all certain of what that something is which is what I am trying to pull out of him. It has little to do with the social contract and almost nothing to do with the analysis of legitimacy.

    He is quite committed to this “inherent concept of fairness” and I want to know why in more detail than he has thus far given and see it in my own mind standing alone without props.

  182. @Blouise: I believe mine is better because it is more accurate and describes the actual condition of man. Rousseau claims the state of nature is a primitive condition without law or morality, which human beings left for the benefits and necessity of cooperation.

    That is simply untrue; on three levels. I will say why first, then what the implications are later.

    First he is factually wrong, no human being was ever born without being born to a woman, and every human being that survived more than a few days did so because of being raised by another human.

    Second, virtually all adult humans that ever lived were not just born and raised by one person, they were born and raised within a tribal society that fed them, protected them, educated them and raised them to adulthood when they were unable to fend for themselves.

    Third, normal people (95-99% of us, depending upon how we define ‘normal’) are born moral, with empathy, sympathy, the desire to trust and befriend others, the desire to be with other people and belong to the group.

    So the answer to one question is this: Not only do we have an inherent sense of fairness, we have an inherent set of rules for belonging to a group, for getting along, for coming to agreement, for sharing, and for caring for others; and not just our own offspring; the vast majority of people have the urge to stop to help an injured stranger, and in particular to stop and help an injured child.

    I claim that is a pre-existing condition. To our best discernment, modern cognition began about 50,000 years ago. But australopithecus was probably our bipedal, chimp like ancestor (with a brain 1/3 our size) and was living in cooperative groups (like chimps do) 3.5 million years ago, and all the species since them in our ancestral line also lived in societies.

    So let me ask this: What does it take for hominids without our cognitive abilities or self-control to live in a cooperative society? It takes restraint, and the restraint has to be built into their emotions. The true rules of society, and how people think the rules should be, are emotional dispositions that detect fair and unfair treatment, free riders, kindness, sharing and charity, friendship and sympathy. They urge us to care for the helpless, sick and injured, and to remember and punish the selfish. The roots of morality are inherent in our nature, they can be observed in two year olds. They are not rational constructs we decided to adopt in trade for the benefits of society; we never knew any other way.

    Rousseau says: “THE most ancient of all societies, and the only one that is natural, is the family: and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved [and parents and children become independent.]”

    That is untrue. The most ancient of all societies, and the only one that is natural, is a tribe of multiple families that form a breeding population so that familial inbreeding does not corrupt the genome.

    It is also untrue that the natural bond between children and parents will naturally dissolve; that is not even true in chimpanzees, and it certainly is not true in modern humans. Unless they were severely mistreated, humans still love, care and feel responsibility to their parents throughout their life. We are not mice that forget our debt to our parents for their sacrifices in raising us.

    Why does Rousseau assert this? Because he wants to say this: “This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself;”

    More raw assertions contrary to the facts. If self preservation is the first law, why do people endanger their lives to protect children, loved ones, and even strangers? Why do men risk (and lose) their lives to go to battle to defend their village? Why would men escalate trivial insults, which are non-physical, into life-risking physical altercations? Why would men issue such insults that risk their lives? Why would one man risk his life to intervene in the assault of a child he doesn’t even know?

    When I ask “why,” these are not anomalous incidents in an otherwise uniform field of selfish preservation and selfish care, they are the norm.

    Self-preservation and self-care for adults do not top the list, that is simply untrue. Emotional attachment and emotional conviction top the list. Men will die to protect women they love, and it takes acrobatic logic and redefinition to turn that self-sacrifice into a selfish act. Parents will die to protect their children from harm, even disabled children they do not expect to ever reproduce. Soldiers will die defending their village, so others may live, even if they have no children or spouse in that village.

    Rousseau claims: “The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” This is the fundamental problem of which the Social Contract provides the solution.

    Except, you know, it doesn’t. In a society under a government you do not obey yourself alone, and you are not as free as if you were the only person on a continent.

    Only redefinition of the word “free” does that; when Rousseau says: In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free;

    ha ha ha. That is in context! In Rousseau’s mind being compelled to obey the majority by overwhelming force is being forced to be “free.” You know, like being jailed for life or put to death sets you free… (I am being sarcastic of course.)

    Rousseau goes on to say, the mere impulse of appetite is slavery, while obedience to a law which we prescribe to ourselves is liberty. But I have already said too much on this head, and the philosophical meaning of the word liberty does not now concern us.

    Isn’t that convenient? Doing whatever the hell you want is “slavery” and obedience to a law is “liberty,” and having declared that, he will no longer discuss the meaning of the word “liberty.”

    As for obeying a law “which we have prescribed ourselves,” Rousseau believes in simple majority rule; which I will call 50%+1, which has survived unto the current day and our own elections. There is a set theory error in that reasoning which we learned in the sixth grade with Venn diagrams; the 50%+1 that sets rules can change with every vote, and we can easily devise a scenario where everybody is happy with the one law they were in favor of and very unhappy with the hundred they voted against. Rousseau wants to defines that as “liberty,” but I do not.

    There is also the problem of statistical variation. If two people die, the 50%+1 becomes 50%-1; should the law be reviewed and changed or repealed every time there is a death, or somebody attains majority, or somebody is accepted as an immigrant into the voting body, or somebody leaves, or somebody changes their mind? Rule by the 50%+1 is fundamentally unstable and not representative, especially if not everybody can get to the vote, especially if people may misunderstand or change their mind after seeing the unintended or unanticipated consequences of a law. Rousseau’s idea of simple majority rule and direct voting on laws is flawed, unfeasible and unstable.

    (I too believe people should govern themselves, but those problems should be addressed; I believe by means of large super-majority vote, which would also restrict the number of laws passed and ensure the sentiments of the public were not likely to change soon.)

    Rousseau says: THE passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked.

    Except that is not true; his instinct WAS to justice, and his actions WERE moral by his inherent nature. Even metaphorically, the true passage from a beastly state of nature to a cooperative tribal society was executed by small-brained hominids the size of chimps millions of years ago, and they did operate by instinct.

    Rousseau apparently feels he has to denigrate the state of nature in order to make the benefits of society and obeying the rule of law attractive, but it is wasted breath: Australopithecus figured THAT out, dogs have figured that out, chimps and gorillas and pods of dolphins have figured that out, and to our knowledge none of them had/have remotely formal laws, only the instinctual emotions of the kind needed to live better cooperatively than alone.

    So ultimately what Rousseau produced was an idea (majority rule) for a society that would, I agree, be more fair than the dictatorships of the time, but his reasoning for why people would submit to majority rule is facile and based upon falsehoods.

    For the ‘state of nature’ hypotheticals this is generally true; they justify civil rule with straw men, states that never existed. That the ‘state of nature’ is JUST a metaphor for anarchy makes no difference, because anarchy is never wanted by any normal person. The benefits of the civil state are NOT that anarchy was the alternative at all.

    The benefits of the civil state and formalized rule are (ideally) uniformity, clarity, and enforcement of what we already hold emotionally dear. We already believed in justice and basic morality (e.g. not killing, stealing, or making false accusations) 50,000 years before the Bible was written; those behaviors cannot be allowed to prevail in the majority without causing the dissolution of the society.

    The advantage of formalization and agreement is (as Rousseau says) the advantage of communal force for enforcement. It did not create morality or happiness in obeying the law, as Rousseau asserts, it created a threat that prevented people from impulsively acting selfishly. (Although I will concede that it often does make people feel righteously good to have resisted a selfish impulse, even if their true reason for that was fear of punishment. Regret is an inherent human emotion, and avoiding it can make one feel good.)

    The fact is that people are, as Marvin Minsky has said, of many minds competing for control of the one body. It is why people struggle with themselves, break their diets, give in to impulses and later regret them, change their minds back and forth, and basically appear to act irrationally. Marvin has recorded children building with blocks and talking to themselves, you can hear them arguing with themselves. What is happening is the verbalization of the negotiation of multiple modules of the brain with different impulses. Boys are asked to build up a structure and then knock it down; the recordings show them talking to themselves with statements like, “If we use ALL of the blocks it will be better, we only have a little to go.”

    With whom are they negotiating? The module that wants to kick it down RIGHT NOW. What are they promising? A better experience. What do they mean by “we”? They mean the different parts of the brain communicating in their head.

    This is no less true in adults, most people debate issues in their head. The civil society adds a voice to that debate, and helps sway people to resist those impulsive selfish modules (which create unfair harm) and choose the restraining social modules (which promote social cohesion).

    Current anthropological theory (e.g. Paul Bingham, Joanne Souza, Death from a Distance and the Birth of a Humane Universe) posit that the invention of projectile weaponry (even rocks) and the biological invention of accurate throwing (at least 400,000 years ago, and before homo sapiens) dethroned alpha males and created egalitarian societies, which lasted until about 10,000 years ago and the invention of farming.

    Thrown hunting weapons, as James Woodburn noted while studying still primitive (and egalitarian) hunt-and-gather tribes, are the great equalizer; they divorce lethal force from muscular strength and demand leadership by means other than just beating people up, because suddenly any accurate throw ends the reign of a selfish bully.

    The point being, whatever mutations count as the final puzzle piece in making us homo sapiens; they almost certainly occurred in egalitarian societies, without alpha males or kings or great men or even chiefs; in studied hunt-and-gather societies that remain, like the Hadza of Tanzania, there is no individual leader and nobody is allowed to gain too much power.

    (The rise of the despotic ruler came with the inventions of farming and herding and, as a consequence, wealth, which allowed the return of wealth-based alpha males; a topic for other discussion.)

    The reason I think all of this is important, Blouise, is that Rousseau’s re-invention of egalitarian rule by consent of the governed is sterile without a reasonably accurate description of WHY people consent to be governed.

    In summary we submit because we already know the difference between good and bad, selfish and selfless, fair and unfair. We formalize those rules as laws with prescribed punishments because it increases fair treatment by reducing impulsive, angry, and violent acts of others, with the threat of punishment by an overwhelming force. We accept the threat of punishment ourselves because that is a fair trade, and we know a fair trade when we see it. We accept the obligation of supporting or joining in punishment because if we do not, the threat of punishment ceases to be reliable and is a diminished force in the reduction of impulsive, angry and violent acts.

    Some of this may sound like a restatement of Rousseau’s arguments, but they are subtly different, and can be a richer source to be mined for equitable laws. In particular, when we approach this from the evolutionary point of view, I think it provides us with information on the TYPES of laws that governments should enact, and should not.

    The formalization of laws is probably a result of our emotional reactions failing to scale to the ever larger groups that became prevalent due to the farming / herding revolution. Much of our social cohesion was a result of groups being small enough that social interactions were seldom with complete strangers, but that changed when groups grew to the thousands. Cheating is easier if you do not think you will be caught, and do not recognize a stranger as one that has contributed to your well being (like a tribal member).

    Formalized laws ‘synthesize’ the previous emotional glue that held together small groups, by providing a credible punishment for failing to treat fellow-citizens (but strangers) the same as one of your lifelong tribal members.

    So, what makes a good law is a law that helps to duplicate and make uniform, in a large population of strangers, the egalitarianism, sharing, care, honesty, and punishments for selfishness, stealing, and deception found in the social milieu of a small hunter-gatherer tribe.

    Rousseau’s formulation cannot provide the context for what constitutes good government, because his ‘state of nature’ hypothetical rejects from the start that such social instincts even exist, in his formulation our instincts are animalistic, brutish and selfish, children can be selfishly dismissive of their parents and the whole of the tribe that protected them, fed them, or taught them to survive during their childhood. He requires that independence and lack of debt in order to make his argument.

    In the evolutionary perspective, the point of the law is to promote what we have known for millions of years is the right and honorable way to act, and to discourage what we have known for millions of years is the wrong and selfish way to act. The point of the law is to synthesize the behaviors of social cohesion in much larger groups than could be sustained by hunting and gathering alone, so that the benefits of such social cohesion can be organized, better executed by specialists (like teachers and soldiers), and the benefits magnified.

    The evolutionary perspective leads directly to the egalitarian, socially libertarian and liberally cooperative state that I think you and I both believe is the “right” solution. Managing education for the young, providing for the weak, and allowing fair trade but not unfair influence due to class or wealth. We want laws that do not create disparities between classes, we want common infrastructure for necessities from roads to health care, and we want the actual uniform enforcement of laws against those acts (impulsive or calculated) that destroy social cohesion, cause resentment, leave unattended the desperation that promotes crime and harms others.

    Rousseau does not define “moral” or “justice,” he leaves that up to the will of a majority vote. I do not believe in that; I believe even a majority can choose to engage in a selfish or violent or unjust act against a minority. I believe in rights. What defines rights? Our inherent sense of values in the true ‘state of nature,’ the small, tribal, egalitarian community.

    That is similar (but not identical) to the Rawl’s “original position” argument; because basically his argument relies upon precisely the same thing, that a person’s set of values be applied objectively. Well what if the person is a two-percenter sociopath like Ayn Rand, whose philosophy (I believe) essentially permits corruption, deception and other selfish behaviors at every level as “fair?”

    What is missing, in my view, is the explicit recognition of how the typical human values came to be, and how and why they have served us for so long that they have literally been encoded into our DNA. I think understanding the role of government in the terms I have described, and the values that led to it, we better understand what the role of a government should be.

  183. @Blouise: P.S. As you may detect from the length; I wrote before reading Gene’s post. However, I have taken too much time from work to respond further; but I think I inadvertently addressed some of his points in my reply to you.

  184. Tony C.,

    I pulled the following out of your answer because, for me, the explanation I was seeking is contained herein: “Some of this may sound like a restatement of Rousseau’s arguments, but they are subtly different, and can be a richer source to be mined for equitable laws. In particular, when we approach this from the evolutionary point of view, I think it provides us with information on the TYPES of laws that governments should enact, and should not.”

    That is constructive reasoning, in my view.

    I would answer that all this stems not from self-preservation but from fear of or knowledge of extinction as a species, however, the challenge to that thought resides in your offering: “… even disabled children they do not expect to ever reproduce” which then puts us back squarely on inherent fairness.

    Have you read any of the studies involving the Bonobos? … sometimes called the hippies of the Primate world. These studies are fairly recent over the last forty years and there are behaviors noted within those studies that would give further support to your position when it comes to “inherent”.

    Once again I join Slarti in the “Ponder World”.

  185. @Blouise: Yes, I have read a few articles on Bonobo culture. I forgot to mention about chimps, btw, that in long term studies of wild chimpanzee culture, where parentage of specific members was known, adult and independent female chimps have been observed to mourn the death of their mother for days longer than other chimps in the tribe, and to be consoled in that time by other members of their tribe. Grief, post-maturity parental love and sympathy for a loss are not unique to humankind.

  186. @Blouise: however, the challenge to that thought resides in your offering: “… even disabled children they do not expect to ever reproduce”

    I believe an actual example was provided by Daniel Goleman, in some writing or another. The parents of a severely mentally retarded teen girl, bound to a wheelchair, were traveling with her on a train, which derailed and plunged into a river. They could have been rescued, but they both drowned to have her rescued first.

    There is merit in the idea of species preservation, I do not doubt that much of that is in play. For example as Baumeister details in his book, from the tribal perspective men are expendable, women and children are not, and this is why culturally it has been men that fought wars. If you lose 90% of your men, the remaining 10% can make the next generation just as large as this one. If you lose 90% of your women, your tribe may well be doomed.

    However, the potential guilt and self-punishment these parents might feel for abandoning their child to death in order to save themselves could drive them to risk anything to avoid living that life, even dying. Self-preservation does not top the list for men or women, there are conditions that trump death. Even as recently as the 1700s, men would knowingly risk death in duels rather than live a life of being perceived by society as a coward. The same is true for soldiers now.

    Even if, genetically speaking, we are evolved to put our species survival ahead of personal survival, evolution would need a mechanism that could “close the deal” when the fatal decision must be made. That mechanism would almost certainly be an overwhelming emotion that shut down rational thought altogether and just hijacked the body into the fatal action.

  187. Tony,

    “I believe mine is better because it is more accurate and describes the actual condition of man. Rousseau claims the state of nature is a primitive condition without law or morality, which human beings left for the benefits and necessity of cooperation.”

    Spectrum. Metaphor. Map is not the territory.

    “That is simply untrue; on three levels. I will say why first, then what the implications are later.

    First he is factually wrong, no human being was ever born without being born to a woman, and every human being that survived more than a few days did so because of being raised by another human.”

    The question is formalized laws or varying degrees of lawlessness and order.

    “Second, virtually all adult humans that ever lived were not just born and raised by one person, they were born and raised within a tribal society that fed them, protected them, educated them and raised them to adulthood when they were unable to fend for themselves.”

    Spectrum.

    “Third, normal people (95-99% of us, depending upon how we define ‘normal’) are born moral, with empathy, sympathy, the desire to trust and befriend others, the desire to be with other people and belong to the group.

    So the answer to one question is this: Not only do we have an inherent sense of fairness, we have an inherent set of rules for belonging to a group, for getting along, for coming to agreement, for sharing, and for caring for others; and not just our own offspring; the vast majority of people have the urge to stop to help an injured stranger, and in particular to stop and help an injured child.

    I claim that is a pre-existing condition.”

    And I claim that none of this impacts that there is a spectrum of social and cultural behaviors that in no way contradict this. Again, you don’t seem to understand the proper use of the metaphor as a constructed starting place of the analysis of legitimacy.

    “To our best discernment, modern cognition began about 50,000 years ago. But australopithecus was probably our bipedal, chimp like ancestor (with a brain 1/3 our size) and was living in cooperative groups (like chimps do) 3.5 million years ago, and all the species since them in our ancestral line also lived in societies.

    So let me ask this: What does it take for hominids without our cognitive abilities or self-control to live in a cooperative society?”

    Let me ask you this: why are we the only primates to develop codified legal systems and define our specific social duties in relation to organized society and the duties society consequently owes the individual. Contrary and to paraphrase the old joke, a 1,000 monkeys typing for 1,000 years are not going to come up with a written Constitution. Their societies, like primitive human cultures, have not reach the threshold of complexity where things like constitutions and social compacts like the Declaration are required.

    “It takes restraint, and the restraint has to be built into their emotions. The true rules of society, and how people think the rules should be, are emotional dispositions that detect fair and unfair treatment, free riders, kindness, sharing and charity, friendship and sympathy. They urge us to care for the helpless, sick and injured, and to remember and punish the selfish. The roots of morality are inherent in our nature, they can be observed in two year olds. They are not rational constructs we decided to adopt in trade for the benefits of society; we never knew any other way.”

    Again, our proclivity for self-organization is interesting but you are completely missing the point on complexity and the necessity for formalization.

    “Rousseau says: “THE most ancient of all societies, and the only one that is natural, is the family: and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved [and parents and children become independent.]”

    That is untrue. The most ancient of all societies, and the only one that is natural, is a tribe of multiple families that form a breeding population so that familial inbreeding does not corrupt the genome.

    It is also untrue that the natural bond between children and parents will naturally dissolve; that is not even true in chimpanzees, and it certainly is not true in modern humans. Unless they were severely mistreated, humans still love, care and feel responsibility to their parents throughout their life. We are not mice that forget our debt to our parents for their sacrifices in raising us.”

    You differ on what is the most basic social unit: family or tribe. This is not germane.

    “Why does Rousseau assert this? Because he wants to say this: “This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself;”

    More raw assertions contrary to the facts. If self preservation is the first law, why do people endanger their lives to protect children”

    Because one must survive to first have children. Survival to breed is the first rule of all reproductive life.

    “, loved ones,”

    Basic social bonds as first seen in a family unit.

    “and even strangers?”

    The first basic bonds of cultural society found at the start of the accretion of population into a larger group, i.e. tribes.

    “Why do men risk (and lose) their lives to go to battle to defend their village? Why would men escalate trivial insults, which are non-physical, into life-risking physical altercations? Why would men issue such insults that risk their lives? Why would one man risk his life to intervene in the assault of a child he doesn’t even know?”

    Social constructs that can and do vary with both culture and level of societal complexity.

    “When I ask “why,” these are not anomalous incidents in an otherwise uniform field of selfish preservation and selfish care, they are the norm.’

    Self-preservation and self-care for adults do not top the list, that is simply untrue. Emotional attachment and emotional conviction top the list. Men will die to protect women they love, and it takes acrobatic logic and redefinition to turn that self-sacrifice into a selfish act. Parents will die to protect their children from harm, even disabled children they do not expect to ever reproduce. Soldiers will die defending their village, so others may live, even if they have no children or spouse in that village.”

    Self-preservation and cooperation as survival strategies are not mutually exclusive and part of the duality inherent in our nature. Just as predation and scavenging are not mutually exclusive survival strategies.

    “Rousseau claims: “The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” This is the fundamental problem of which the Social Contract provides the solution.

    Except, you know, it doesn’t. In a society under a government you do not obey yourself alone, and you are not as free as if you were the only person on a continent.”

    Except it does because the choice to obey or not or even to stay in a particular social compact at all is directed by free will when not driven by mental defect.

    “Only redefinition of the word “free” does that; when Rousseau says: In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free;

    ha ha ha. That is in context! In Rousseau’s mind being compelled to obey the majority by overwhelming force is being forced to be “free.” You know, like being jailed for life or put to death sets you free… (I am being sarcastic of course.)’

    Ha ha! You don’t see that because this ability to coerce the individual is precisely why legitimacy is the primary question answered by social compact theory. Coercion may be legitimate or illegitimate but it is necessary for the enforcement of laws. Laws without enforcement are suggestions.

    “Rousseau goes on to say, the mere impulse of appetite is slavery, while obedience to a law which we prescribe to ourselves is liberty. But I have already said too much on this head, and the philosophical meaning of the word liberty does not now concern us.

    Isn’t that convenient? Doing whatever the hell you want is “slavery” and obedience to a law is “liberty,” and having declared that, he will no longer discuss the meaning of the word “liberty.”

    I’ll have to stipulate Rousseau gets a bit wonky there. He wasn’t perfect.

    “As for obeying a law “which we have prescribed ourselves,” Rousseau believes in simple majority rule; which I will call 50%+1, which has survived unto the current day and our own elections. There is a set theory error in that reasoning which we learned in the sixth grade with Venn diagrams; the 50%+1 that sets rules can change with every vote, and we can easily devise a scenario where everybody is happy with the one law they were in favor of and very unhappy with the hundred they voted against. Rousseau wants to defines that as “liberty,” but I do not.

    There is also the problem of statistical variation. If two people die, the 50%+1 becomes 50%-1; should the law be reviewed and changed or repealed every time there is a death, or somebody attains majority, or somebody is accepted as an immigrant into the voting body, or somebody leaves, or somebody changes their mind? Rule by the 50%+1 is fundamentally unstable and not representative, especially if not everybody can get to the vote, especially if people may misunderstand or change their mind after seeing the unintended or unanticipated consequences of a law. Rousseau’s idea of simple majority rule and direct voting on laws is flawed, unfeasible and unstable.”

    I’ve already stipulated that democracy is not a necessary component for legitimacy under the social compact theory. Your argument here is with Rousseau’s personal politics. Democracy is not sacrosanct as a form in looking at the question of legitimacy. As for the law changing? Sorry, Tony, but that’s what it does. The law must remain dynamic in certain respects to compensate for the changes in culture and society over time. It it doesn’t there is conflict created when old mores and ethical frameworks are discarded or modified over time. The small group of ethical absolutes and their related laws may vary over time, but the small group remains the same. All the other ethical questions are going to change in both form and answer as society changes. As noted, ethical relativism does have a proper place.

    “(I too believe people should govern themselves, but those problems should be addressed; I believe by means of large super-majority vote, which would also restrict the number of laws passed and ensure the sentiments of the public were not likely to change soon.)’

    Again this is a political difference in preferences to form.

    “Rousseau says: THE passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked.

    Except that is not true; his instinct WAS to justice, and his actions WERE moral by his inherent nature. Even metaphorically, the true passage from a beastly state of nature to a cooperative tribal society was executed by small-brained hominids the size of chimps millions of years ago, and they did operate by instinct.”

    Metaphor.

    “Rousseau apparently feels he has to denigrate the state of nature in order to make the benefits of society and obeying the rule of law attractive, but it is wasted breath: Australopithecus figured THAT out, dogs have figured that out, chimps and gorillas and pods of dolphins have figured that out, and to our knowledge none of them had/have remotely formal laws, only the instinctual emotions of the kind needed to live better cooperatively than alone.”

    Again . . . metaphor you persist on conflating to a biology definition with the legal and philosophical definitions. Our natural proclivity for self-organization is not relevant to the use of the metaphor in analysis of legitimacy. The metaphor, no matter its precision, is still based on observable social states of being. But of course, you, a layman, knows better than the entirety of a profession on the matter.

    “So ultimately what Rousseau produced was an idea (majority rule) for a society that would, I agree, be more fair than the dictatorships of the time, but his reasoning for why people would submit to majority rule is facile and based upon falsehoods.”

    Multiple solution paths. You are also committing the fallacy fallacy. Rousseau’s observations that cultures may be chaotic or organized may have fallacious reasoning in parts of the argument around it, but that does not mean the observation is objectively factually incorrect or that the solution of the basic framework isn’t functional.

    “For the ‘state of nature’ hypotheticals this is generally true; they justify civil rule with straw men, states that never existed. That the ‘state of nature’ is JUST a metaphor for anarchy makes no difference, because anarchy is never wanted by any normal person.”

    And yet anarchy happens to lesser and greater degrees anyway. Desire, normal or not, is irrelevant to this fact.

    “The benefits of the civil state are NOT that anarchy was the alternative at all.”

    No one said that it was but you. The benefits of civil society are things like mutual defense, the pursuit of justice and the benefits of peace that having an alternative to self-help dispute resolution provides, and commonly held infrastructure that are recognized and formalized in codified in laws, not the avoidance of anarchy. That’s just gravy, not the entrée.

    “The benefits of the civil state and formalized rule are (ideally) uniformity, clarity, and enforcement of what we already hold emotionally dear. We already believed in justice and basic morality (e.g. not killing, stealing, or making false accusations) 50,000 years before the Bible was written; those behaviors cannot be allowed to prevail in the majority without causing the dissolution of the society.”

    Again, not relevant to the threshold of complexity issue and formalization.

    “The advantage of formalization and agreement is (as Rousseau says) the advantage of communal force for enforcement. It did not create morality or happiness in obeying the law, as Rousseau asserts, it created a threat that prevented people from impulsively acting selfishly.”

    Again, you miss that the legitimacy of coercion is the focus of the legal analysis, not happiness. That’s an issue when deciding whether eudaimonia is an appropriate goal for a society and a government. A policy question.

    “The fact is that people are, as Marvin Minsky has said, of many minds competing for control of the one body. It is why people struggle with themselves, break their diets, give in to impulses and later regret them, change their minds back and forth, and basically appear to act irrationally. Marvin has recorded children building with blocks and talking to themselves, you can hear them arguing with themselves. What is happening is the verbalization of the negotiation of multiple modules of the brain with different impulses. Boys are asked to build up a structure and then knock it down; the recordings show them talking to themselves with statements like, “If we use ALL of the blocks it will be better, we only have a little to go.”

    With whom are they negotiating? The module that wants to kick it down RIGHT NOW. What are they promising? A better experience. What do they mean by “we”? They mean the different parts of the brain communicating in their head.

    This is no less true in adults, most people debate issues in their head. The civil society adds a voice to that debate, and helps sway people to resist those impulsive selfish modules (which create unfair harm) and choose the restraining social modules (which promote social cohesion).”

    And how does society do this? By coercion. Laws and their consequent enforcement.

    “Current anthropological theory (e.g. Paul Bingham, Joanne Souza, Death from a Distance and the Birth of a Humane Universe) posit that the invention of projectile weaponry (even rocks) and the biological invention of accurate throwing (at least 400,000 years ago, and before homo sapiens) dethroned alpha males and created egalitarian societies, which lasted until about 10,000 years ago and the invention of farming.

    Thrown hunting weapons, as James Woodburn noted while studying still primitive (and egalitarian) hunt-and-gather tribes, are the great equalizer; they divorce lethal force from muscular strength and demand leadership by means other than just beating people up, because suddenly any accurate throw ends the reign of a selfish bully.

    The point being, whatever mutations count as the final puzzle piece in making us homo sapiens; they almost certainly occurred in egalitarian societies, without alpha males or kings or great men or even chiefs; in studied hunt-and-gather societies that remain, like the Hadza of Tanzania, there is no individual leader and nobody is allowed to gain too much power.”

    All of which, while very interesting, is a function of scale. Larger societies cannot operate this way as the human urge to dominate with come into play as numbers increase.

    “(The rise of the despotic ruler came with the inventions of farming and herding and, as a consequence, wealth, which allowed the return of wealth-based alpha males; a topic for other discussion.)”

    Farming and herding that also created cultures of larger scales. That disproportionate wealth is a driver against egalitarianism (and justice for that matter) is still manifest today and another discussion.

    “The reason I think all of this is important, Blouise, is that Rousseau’s re-invention of egalitarian rule by consent of the governed is sterile without a reasonably accurate description of WHY people consent to be governed.”

    Again, the why is mutual benefit which you missed the gravy boat on above. The biological why of how we tend to self-organize and create such benefits is only an interesting aside as to the fact that is what we do as an objective observable behavior. You go to state of mind which is simply anecdotal to observed action. Motives are individual and they may or may not be rational. We are dealing with a rational-legal analytical framework when we discuss the social compact. Motives are an aside to the observable cost for benefit transaction of formalized society.

    “In summary we submit because we already know the difference between good and bad, selfish and selfless, fair and unfair.”

    No “we” don’t. Most people who have the naturally occurring normal psychology do because that is our nature, but the laws are not primarily aimed at the normal. They are aimed at protecting the normal from the social deviant as defined both by our natural innate sense of fairness and by societal/cultural norms. Both torts and criminal law deal with what is and what is not socially acceptable behavior with there being penalties for anti-social behaviors.

    “We formalize those rules as laws with prescribed punishments because it increases fair treatment by reducing impulsive, angry, and violent acts of others, with the threat of punishment by an overwhelming force.”

    Mitigation is not elimination. Deterrence is only one function of the law.

    “We accept the threat of punishment ourselves because that is a fair trade, and we know a fair trade when we see it. We accept the obligation of supporting or joining in punishment because if we do not, the threat of punishment ceases to be reliable and is a diminished force in the reduction of impulsive, angry and violent acts.

    Some of this may sound like a restatement of Rousseau’s arguments”

    That’s exactly a restatement of the cost benefit transaction behind the social compact.

    “but they are subtly different, and can be a richer source to be mined for equitable laws. In particular, when we approach this from the evolutionary point of view, I think it provides us with information on the TYPES of laws that governments should enact, and should not.”

    You are assuming that developments in science don’t influence the law. They do. They just do so very slowly as a general rule. If you want to think of how this process works the best analogy is the punctured equilibrium model of evolution. Usually change/influence is gradual, for example the slow change in discrimination laws that is not only rooted in changes to social mores but to the underlying sciences driving those changes from psychology to genetics to anthropology and sociology. Sometimes change happens fast such as the body of laws that sprang to life in the wake of the invention and use of atomic weapons. But science is simply not the primary or the only driver of law. That’s just the facts, especially in a democracy. Technocracy is government controlled by an industry and/or an elite of technical experts. It tends to be oligarchical but isn’t necessarily. Should science have a greater impact on law? I don’t think that’s a bad idea and many in the legal profession employ what could be considered a technocratic ethic in approaching the subject. However, none of this impact that you are asking and answering a questions that are not related.

    Legitimacy and the analysis thereof works just fine under the social compact theory. Your theory – ” the TYPES of laws that governments should enact, and should not” – is about what kind of laws government should create – a policy question, not a legitimacy question.

    You are hasty in attacking Rousseau because you don’t like his foundations and terminology when if you stepped back and looked at the objective observations of human society (varied degrees of chaos to formalization and varied degrees of order), you’d see there is nothing wrong with that observation and the analysis of legitimacy based on such has worked just fine for longer than either of us has been alive.

    “Rousseau’s formulation cannot provide the context for what constitutes good government, because his ‘state of nature’ hypothetical rejects from the start that such social instincts even exist”

    His metaphor is inexact, that doesn’t mean it isn’t functional for the purposes of analysis. Once again, the map is not the territory.

    “So, what makes a good law is a law that helps to duplicate and make uniform, in a large population of strangers, the egalitarianism, sharing, care, honesty, and punishments for selfishness, stealing, and deception found in the social milieu of a small hunter-gatherer tribe.”

    Again, this is a policy question about good and bad laws. Legitimacy of the use of coercive power by government is a separate issue and analysis. The rest of what you say is policy related and related to the questions concerning can democracy and technocracy be effectively combined whether you realize that or not. Personally, I can see where they can, but still the legitimacy of such a construct is a separate question.

    But that is a different issue perhaps for a different article.

  188. I don’t know Gene, maybe I’m getting old, but when someone takes it upon himself to re-define all categories of understanding the social compact in such a solipsistic manner, my reaction is to simply move on. The only argument he’s winning is with himself; if that.

  189. Bob,

    I’ll have to agree it is pretty impressive in that regard. Can I borrow a towel? My car just hit a water buffalo.

  190. Gene says: Metaphor.

    Someone told you that, I presume, since I do not believe Rousseau ever claimed it was metaphor. Which makes your claim hearsay, and like all such claims that cannot be tested, it would most likely trace to somebody that just made it up, so it is a baseless assertion.

    Metaphor or not, Rousseau draws conclusions from that state that are necessary for his argument, or he would not have written it. Metaphors are transitive, if his axioms are metaphorical so are his conclusions.

    Even if it was a metaphor, it does not accurately capture reality. it is a straw man, a fictional horrible state Rousseau sets up as THE alternative that illustrates the wonders of civilization with codified laws and majority rule.

    Yet nobody here is arguing that codified laws are bad or anarchy is good. But codified laws are not good because the metaphorical alternative is anarchy. The Bushmen you mention later are not in anything like the state of anarchy, they have a society, they have rules of behavior and punishment, they are just verbal and cultural and everybody knows them, they do not have to be written down, because they do not allow strangers to live among them.

    Finally, your claim of “metaphor” bears a striking resemblance to the claims of Bible defenders; anything they know they cannot take literally they will claim as being a “metaphor.” Even though the original writers of the Bible most probably expected to be believed literally. But what is the test of whether a writing is a metaphor, or a writer thought it was literal?

    I think it is entirely plausible Rousseau thought the alternative to a State really WAS the anarchy he was describing. Either that or he was being disingenuous and using an extreme as the straw man. In either case it hurts his argument for WHY people codify laws; the question of whether he was being metaphorical or literal is moot; it makes no difference. He wrote and made conclusions as if it were literally true.

    As for your “one phrase” claims for logical fallacies, I reject them. That may work in court, but in science we demand explanations of your reasoning on how you reached conclusions, so we can test your reasoning and see if you have made a reasonable claim. Without the explanation, I cannot test your claim; I would have to guess at how you have misinterpreted, misunderstood, or mis-characterized what I wrote, to see if your reference to the fallacy is even relevant to the point at hand. Until then it is an accusation without evidence that I deny.

    Gene says: The question is formalized laws or varying degrees of lawlessness and order.

    Yeah? How is that a question? That is the spectrum of choice, certainly. I think the question is, on that spectrum, where the change occurs from verbal and cultural laws in an intimate community (meaning small enough for everybody to know and value everybody else) held together by our instinctual social emotions, to the need for formalized laws to prevent the community from fracturing.

    Gene says: Again, you don’t seem to understand the proper use of the metaphor as a constructed starting place of the analysis of legitimacy.

    No, you do not seem to understand that a metaphor has to capture some element of the real dynamics of a situation in order to be applicable. There is no difference in Rousseau starting from this metaphor of anarchy, which never existed, and starting from a metaphor of fighting dragons that never existed.

    It is no different than religionists arguing that the wages of sin are eternal hellfire; if you consider “Hell” as fictional as “Valhalla” then theirs is not a convincing argument.

    Gene says: Let me ask you this: why are we the only primates to develop codified legal systems and define our specific social duties in relation to organized society and the duties society consequently owes the individual.

    Well, we are the only ones with recursively abstract thinking. Which may have developed because we are the only primates that can throw accurately. I alluded to one theory for how that applies, the development of projectile weaponry 400,000 or more years ago. We have found a cache of carved spears that old; the size of modern javelins and carved to sharp points and shaped to move the center of balance to 1/3 the length from the head. But they are wood and were preserved in special circumstances, so the practice of ‘thrown projectile hunting’ might be older. Australopithecus remains have been found near geologically anomalous stones, unmodified but apparently selected for throwing size. Presumably they were being carried.

    This theory (discussed for over thirty years now) suggests the development of projectile weaponry could catalyze the end of alpha-male rule and the beginning of cooperative, egalitarian tribes, which would select for greater intelligence. The evidence for this hypothesis is in the steady decline of sexual dimorphism (beefy males) from about 50% in Australopithecus to about 15% (worldwide average) in modern man, and the corresponding increase in cranial capacity (as a proxy for intelligence).

    The answer, of course, is what you allude to next: The advancement of complexity in society. The origination of the rules seems to roughly coincide with the farming and herding revolutions, give or take thousands of years.

    Gene says: Their societies, like primitive human cultures, have not reach the threshold of complexity where things like constitutions and social compacts like the Declaration are required.

    Of course. Chimps are still ruled by alpha males in small tribes (but they still feel compelled to certain social behaviors). I agree with you, it is a matter of complexity. Where did the complexity come from? If, as we suspect, modern cognition arose 50,000 years ago, and formalized laws arose circa 10,000 years ago, what was going on for 40,000 years, with tribes made of people just as intelligent, with just as much foresight and inventiveness and problem solving ability as we have?

    What happened circa 10,000 years ago is the invention of organized farming and herding, as an alternative to hunting and gathering. As you already know, I am sure, that is thought to be the catalyst for much larger populations, city states, occupational specialization, and the invention of work management. It is also thought to be the catalyst for the invention of wealth and seeing land as property. (Burial goods indicate both Neandertals and Sapiens, and probably Heidelberg man all carried personal property, including decorative items.)

    However, the issue at hand is complexity; which comes with SIZE. What was happening for 40,000 years was self rule of small (100-200) egalitarian tribes hunting, gathering, and if they grew too large, splitting (sometimes violently). (That does not approach the ‘state of nature’ Rousseau hypothesizes.)

    The organized farming and herding revolution produced massive advantages; which led to a massive problem: population size. Simply taking ten or twenty families and walking away was no longer an option for problem resolution, it meant giving up the benefits of the established infrastructure (the city). With size, intimate lifelong relationships became a diminished currency in problem resolution; and bifurcation takes place within the city, one faction opposing another, and since they cannot leave, creating constant friction and violence. Opportunists start doing something that very seldom happened in the small tribes, successfully committing anonymous crimes for self gain.

    Gene says: Again, our proclivity for self-organization is interesting but you are completely missing the point on complexity and the necessity for formalization.

    No, I am not, the only thing I failed to do was communicate that in a way you would understand. That may be my fault, or it may be your bias in trying to prove me wrong when I am not, but the reason for the description of self-organization of society by instinctual emotion is specifically to describe what happens when the population gets too large for that to work, or in your words, “too complex.”

    I see self-organization in much the same terms as simplistic free market theory; they fail to scale for the same reason. Free market theory depends upon repeated transactions, and the dissemination of information, it fails completely when a CEO can get himself set for life with a single betrayal of his investors, customers, and employees.

    Self-organization by instinctual emotion also depends upon repeated transactions, reputation, honor, and lifelong tribal relationships. So it does not scale, our brains and our time reach a limit on how many such intimate relationships we can maintain, and that is the complexity of which you speak. You may not think so, but I think we are on the same page.

    Gene says: You differ on what is the most basic social unit: family or tribe. This is not germane.

    I think it is; the social dynamics of the tribe and what holds them together is what makes it germane.

    I said: If self preservation is the first law, why do people endanger their lives to protect children?

    Gene says: Because one must survive to first have children. Survival to breed is the first rule of all reproductive life.

    That doesn’t answer the question; if a 24-year old dies saving a child that is not a rational bet of his life; he is already at a reproductive age and the child may not survive to it. If he risks his life to save a child, he is valuing the child’s less-than-100% chance of reaching a reproductive age in some years MORE than his own 100% certainty of being AT a reproductive age right now. That is not a rational choice, it is an emotional choice.

    Gene says: Except it does because the choice to obey or not or even to stay in a particular social compact at all is directed by free will when not driven by mental defect.

    That is immaterial, Rousseau claims that compelling somebody to do something is forcing them to be “free,” and this is simply ridiculous by definition. Under that rubric, slavery is “freedom.”

    Gene says: You don’t see that because this ability to coerce the individual is precisely why legitimacy is the primary question answered by social compact theory. Coercion may be legitimate or illegitimate but it is necessary for the enforcement of laws. Laws without enforcement are suggestions.

    Of course it is, but that isn’t what Rousseau said, he said compelling somebody to do something was forcing them to be FREE. He did not say that Coercion was necessary for law enforcement. Coercion to defense and punishment for violating cultural norms also exists in societies without formalized law. Whether or not coercion is necessary is not in question. What is in question is whether compelling somebody to do something, or punishing somebody for doing something, can in any way be considered “forcing them to be free,” and it cannot.

    Gene says: Your argument here is with Rousseau’s personal politics. Democracy is not sacrosanct as a form in looking at the question of legitimacy.

    Democracy or not, Rousseau’s claim is that governance is by the consent of the governed (I agree) based upon their common will, but provides no means of discerning their common will other than majority vote, and that can change with the wind. Specifically, with the wind killing a few people.

    Gene says: As for the law changing? Sorry, Tony, but that’s what it does. The law must remain dynamic in certain respects to compensate for the changes in culture and society over time. [If] it doesn’t there is conflict created when old mores and ethical frameworks are discarded or modified over time.

    I agree, my issue with Rousseau was the illogicality of the ‘common will’ and the instability of a simple majority. The law cannot be changed, changed back, changed again every other day depending upon the “common will” tipping back and forth, some hysteresis is required. Which is why I suggest something other than simple majority rule.

    Gene says: Metaphor.
    I say: Prove it.

    Gene says: The metaphor, no matter its precision, is still based on observable social states of being. But of course, you, a layman, knows better than the entirety of a profession on the matter.

    Just an appeal to authority and tradition, not logic. And untrue to boot; the precision of his metaphor does matter when the state is juxtaposed to the state he proposes, because he uses the metaphor to define the alternative, and claims his alternative is the SOURCE of morality and justice. His metaphor is of a society of psychopaths or animals without cognition or any more emotional complexity than a lion.

    Sure, anything is better than that, but because ANYTHING is better than anarchy, the metaphor could have equally been used to justify the actual ‘state of nature’ which was small egalitarian tribes held together by emotional bonds. Better than anarchy. Rule under a despot can be better and safer than anarchy, too; just ask the common Iraqis that used to have businesses and children and spouses under Saddam Hussein.

    Gene says: Rousseau’s observations that cultures may be chaotic or organized may have fallacious reasoning in parts of the argument around it, but that does not mean the observation is objectively factually incorrect or that the solution of the basic framework isn’t functional.

    Nor did I claim that it did; in fact I think the essence of the framework is functional, and I said so.

    Gene says: Desire [to avoid anarchy], normal or not, is irrelevant to this fact.

    It is certainly relevant, because Rousseau knows nobody desires anarchy, which is why he chose it as his straw man, instead of a more plausible and realistic alternative that was the more typical state of man immediately before formalized governments.

    Gene says: The benefits of civil society are things like mutual defense, the pursuit of justice and the benefits of peace that having an alternative to self-help dispute resolution provides, and commonly held infrastructure that are recognized and formalized in codified in laws, not the avoidance of anarchy. That’s just gravy, not the entrée.

    Rousseau presents it as the primary reason, not me, it is his premise, not mine. All those benefits of civil society are present in tribal societies, by the way, they are just enforced and executed collectively in a way that does not scale. Codified rules do not create those benefits, it merely allows those benefits to be enjoyed by larger groups of people and relative strangers.

    Gene says: Again, not relevant to the threshold of complexity issue and formalization.

    So you say, I disagree, it is entirely relevant.

    Gene says: Again, you miss that the legitimacy of coercion is the focus of the legal analysis, not happiness.

    Excuse me? The happiness benefit is Rousseau’s claim. If he did not think it was important, I do not think he would write it.

    Gene says: All of which, while very interesting, is a function of scale. Larger societies cannot operate this way as the human urge to dominate with come into play as numbers increase.

    Yes… that has been my point all along, that these mechanisms do not scale and thus formalization becomes necessary…

    I said: we submit because we already know the difference between good and bad, selfish and selfless, fair and unfair.
    Gene says: No “we” don’t. Most people who have the naturally occurring normal psychology do because that is our nature [which is my claim!], but the laws are not primarily aimed at the normal. They are aimed at protecting the normal from the social deviant as defined both by our natural innate sense of fairness and by societal/cultural norms.

    As are the natural punishments we engage in instinctively. Deviants, sociopaths and psychopaths do NOT submit willingly, the only thing that deters them is punishment. I fail to understand why you think I do not understand that or ignore that. We have the emotions of anger, rage, and the desire for revenge or retribution because these aid survival by keeping the deviants in check. Non-deviants agree to be bound by formalized law when they see the punishments as reasonably fair.

    Gene says: That’s exactly a restatement of the cost benefit transaction behind the social compact.

    I do not think so, but if you do, you should have no problem with my alternative route to getting there.

    Gene says: But science is simply not the primary or the only driver of law.

    I certainly did not think it was; Gene. Science is used to gain a deeper understanding of mechanisms, whether those are atoms, businesses, or societies. Understanding how something works often shows us the path to exploitation of it (e.g. how to create stronger materials) or improvement of efficiency (eliminating waste in a business, or unfair laws in a government).

    Gene says: Legitimacy and the analysis thereof works just fine under the social compact theory. Your theory – ” the TYPES of laws that governments should enact, and should not” – is about what kind of laws government should create – a policy question, not a legitimacy question.

    Perhaps, but I think my argument goes toward legitimacy as well. How shall you define “legitimate,” without circularity, except by some level of acceptability to the governed? How will you then define “acceptability” to a person except by their emotional state after rational contemplation? We currently understand such emotional states through the lens of evolutionary psychology, which includes the psychology evolved to succeed and thrive in millions of years of tribal life.

    Gene says: there is nothing wrong with that observation and the analysis of legitimacy based on such has worked just fine for longer than either of us has been alive.

    Quite a lot of medicine worked just fine for centuries, too, but the “reasons” given for it working failed to help in discovering new medicines or improving upon existing ones, because the reasons were fictional. When TRUE understandings were developed by discarding the fictions and using a scientific approach from scratch, we saw an explosive growth in both the number and quality of medicines.

    Gene says: The map is not the territory.

    But it does makes a difference if you are in Panama and your map is of Texas. Rousseau’s metaphor is not just inexact, it is a misrepresentation.

    Of course anarchy can exist, but as I stated in a separate post above, it is not conducive to the rise of peaceful government at all, because chaos is usually rooted in a Malthusian struggle, a desperate fight to the death over limited resources, and that means somebody has to die.

    People facing an existential struggle do not lay down their arms unless a plausible (and less risky than armed combat) route to survival exists; if there is not enough food to feed everybody, then it is difficult for me to see how a formalized peaceful government is going to solve that problem.

    The submission to formalized laws and government when that was a new idea solved (IMO) a different problem, a whole new problem that needed a new idea, a problem created by new prosperity and growth due to a new technology (organized farming and herding). I agree it was a problem of complexity. But we had at least forty thousand years of getting along without any known formalization. To me, understanding why something that worked for so long suddenly stopped working and required formalization is paramount to understanding both the legitimacy and purpose of the government.

  191. @Bob: At first glance science may look like solipsism, I suppose. One person presents their interpretation of facts and observations, they argue the case by themselves, and present their conclusions by themselves. That is how it works, the paper is written from start to finish in a room alone and presented in its entirety for review. For the most part it is then accepted for publication or rejected; peer review (and I’ve been on both sides of it) does not attempt to fundamentally change or negotiate the premises of the paper, it usually only argues for clarification, proof, or deletion of claims. The reviewer is not a collaborator and does not negotiate the paper or make the arguments; the paper is either “nearly acceptable” or rejected.

    (Yes, I already understand, you will reject it.)

    So I am accustomed, in research, to thinking alone through a problem and presenting a wholesale overhaul that works better than before; that is what makes a work worthy of publication. You seldom get published polishing somebody else’s idea, you need a significant dose of originality and superiority, or the reviewer will just reject it and call it a rehash of the XYZ hypothesis, or whatever.

    When I say “alone” I mean with colleagues, students, etc, but the point is it isn’t a public debate or negotiation; a paper is delivered as fully completed research and a grant application is delivered as a fully detailed plan, to be accepted or rejected.

    So, an appearance of solipsism is a hazard of the job, I guess.

  192. Tony C.,

    That is is a metaphor used for defining two real states of society (chaotic and ordered) is simply manifest whether Rousseau spelled it out or not.

    “Metaphors are transitive, if his axioms are metaphorical so are his conclusions.” I’m not sure you know what the word “transitive” means, but I think you are looking for the word “derivative”. However, maps are derivative too, so by your reasoning, maps have no use in coming to real conclusions.

    As to your “Bible” claim, I think you know me well enough to know that simply gets you a “blow me” in response. Metaphors have utility and are a valid tool for both reasoning and rhetoric. That some misuse the tool is irrelevant.

    “No, you do not seem to understand that a metaphor has to capture some element of the real dynamics of a situation in order to be applicable.”

    Yes, because the two observable states of society – chaos and order to varied degrees in a spectral relationship – doesn’t really exist. Jeebus you are dense on this matter. The metaphor to the existence of pure states of either is irrelevant to creating a starting point for analysis – which is what the metaphor does.

    Then you say a bunch of stuff about anthropology I don’t necessarily disagree with but while they are interesting they are not relevant to the LEGAL analytical framework social compact theory provides.

    “Self-organization by instinctual emotion also depends upon repeated transactions, reputation, honor, and lifelong tribal relationships. So it does not scale, our brains and our time reach a limit on how many such intimate relationships we can maintain, and that is the complexity of which you speak. You may not think so, but I think we are on the same page.”

    And that it does not scale is an indication of why formalized legal systems become necessary at a certain threshold of complexity.

    “Gene says: You differ on what is the most basic social unit: family or tribe. This is not germane.

    I think it is; the social dynamics of the tribe and what holds them together is what makes it germane.”

    Then we’ll just have to disagree. Tribalism is an extension of some family dynamics to include a group of outsiders but the basis of these dynamics (trust, honor, etc.) are still rooted in the family.

    “I said: If self preservation is the first law, why do people endanger their lives to protect children?

    Gene says: Because one must survive to first have children. Survival to breed is the first rule of all reproductive life.

    That doesn’t answer the question; if a 24-year old dies saving a child that is not a rational bet of his life; he is already at a reproductive age and the child may not survive to it. If he risks his life to save a child, he is valuing the child’s less-than-100% chance of reaching a reproductive age in some years MORE than his own 100% certainty of being AT a reproductive age right now. That is not a rational choice, it is an emotional choice.”

    We are dealing with a rational legal framework. That humans can and do make irrational and emotion based decisions is at best an aside.

    “Gene says: Except it does because the choice to obey or not or even to stay in a particular social compact at all is directed by free will when not driven by mental defect.

    That is immaterial, Rousseau claims . . .”

    What Rousseau claims is immaterial to the fact as given about choice. Also, you seem really hung up on Rousseau. He’s not the only person to every address this subject you know. It doesn’t exist in a vacuum.

    “Gene says: You don’t see that because this ability to coerce the individual is precisely why legitimacy is the primary question answered by social compact theory. Coercion may be legitimate or illegitimate but it is necessary for the enforcement of laws. Laws without enforcement are suggestions.

    Of course it is, but that isn’t what Rousseau said, he said compelling somebody to do something was forcing them to be FREE. He did not say that Coercion was necessary for law enforcement. Coercion to defense and punishment for violating cultural norms also exists in societies without formalized law.”

    That Rousseau was simply wrong about what coercion’s function in law was does not impact where the dividing line for analysis of legitimacy must be reason start: with the inception of formalized government. That “[c]oercion to defense and punishment for violating cultural norms also exists in societies without formalized law” merely illustrates what I’ve been saying all along that it is a spectrum of behaviors.

    CHAOS Chaos chaos (formal systems) order Order ORDER.

    Statist mechanisms can exit on either side of the line, Tony. The issue is the legitimacy of their use of coercion. That analysis cannot be started until formalization because without formalization and codification (and the consequent rule of law), the rules are simply at the whim of those with the weapons.

    “Whether or not coercion is necessary is not in question. What is in question is whether compelling somebody to do something, or punishing somebody for doing something, can in any way be considered “forcing them to be free,” and it cannot.”

    Gene says: Your argument here is with Rousseau’s personal politics. Democracy is not sacrosanct as a form in looking at the question of legitimacy.

    Democracy or not, Rousseau’s claim is that governance is by the consent of the governed (I agree) based upon their common will, but provides no means of discerning their common will other than majority vote, and that can change with the wind. Specifically, with the wind killing a few people.”

    See Aristotle Politics, Book 6. Or you could realize that the encapsulation made by Winston Churchill to the House of Commons on November 11, 1947, was correct:

    “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”

    “Gene says: As for the law changing? Sorry, Tony, but that’s what it does. The law must remain dynamic in certain respects to compensate for the changes in culture and society over time. [If] it doesn’t there is conflict created when old mores and ethical frameworks are discarded or modified over time.

    I agree, my issue with Rousseau was the illogicality of the ‘common will’ and the instability of a simple majority. The law cannot be changed, changed back, changed again every other day depending upon the “common will” tipping back and forth, some hysteresis is required. Which is why I suggest something other than simple majority rule.”

    See above. Also the law has mechanisms for stability that work against volatility such as codification and the legislative processes behind it and judicial practices such as stare decisis.

    “Gene says: Metaphor.
    I say: Prove it.”

    Your inability to see the manifest because you have issues comprehending metaphors in the first place is your issue and I suspect it has to do with simply the way your brain works. This is not an insult. This is a comment on that the very literalist mode of thinking you primarily exhibit may serve you well in science, but it’s kicking your ass in law and philosophy.

    “Gene says: The metaphor, no matter its precision, is still based on observable social states of being. But of course, you, a layman, knows better than the entirety of a profession on the matter.

    Just an appeal to authority and tradition, not logic.”

    No. It’s an appeal to the observable evidence of actual states of existence for societies.

    “And untrue to boot; the precision of his metaphor does matter when the state is juxtaposed to the state he proposes, because he uses the metaphor to define the alternative, and claims his alternative is the SOURCE of morality and justice. His metaphor is of a society of psychopaths or animals without cognition or any more emotional complexity than a lion.”

    Again, his understanding of the metaphor is not the end all be all on the topic of social compacts. Rousseau’s work was important, in some ways maybe even critical, but it was not definative nor are any of the other’s works on the matter. The modern understanding of the social compact come from a synthesis of the ideas of these writers mentioned (and others not mentioned), not just the edict of one. Also the precision of the metaphor is indeed irrelevant once it is proven to be functional in this case. The search for unnecessary precision is non-utilitarian and a preface to the Nirvana fallacy. Functional works but perfection is not expected.

    “Sure, anything is better than that, but because ANYTHING is better than anarchy, the metaphor could have equally been used to justify the actual ‘state of nature’ which was small egalitarian tribes held together by emotional bonds. Better than anarchy. Rule under a despot can be better and safer than anarchy, too; just ask the common Iraqis that used to have businesses and children and spouses under Saddam Hussein.”

    Again, more evidence of the spectrum.

    “Gene says: Rousseau’s observations that cultures may be chaotic or organized may have fallacious reasoning in parts of the argument around it, but that does not mean the observation is objectively factually incorrect or that the solution of the basic framework isn’t functional.

    Nor did I claim that it did; in fact I think the essence of the framework is functional, and I said so.”

    Then why are you going to such great lengths to disagree with something that you agree is functional (even if you disagree with its precision and derivation)? Ego, Tony. You simply want to be right and on your terms when you simply aren’t in this case.

    “Gene says: Desire [to avoid anarchy], normal or not, is irrelevant to this fact.

    It is certainly relevant, because Rousseau knows nobody desires anarchy, which is why he chose it as his straw man, instead of a more plausible and realistic alternative that was the more typical state of man immediately before formalized governments.”

    Again with the Historians fallacy and presentism. Rousseau worked with what he had to work with, not what you’ve got via other branches of study. That he came up with a functional framework despite inputs that seem quaint or wrong by modern knowledge is a tribute to the general if no specific strength of his work.

    “Gene says: The benefits of civil society are things like mutual defense, the pursuit of justice and the benefits of peace that having an alternative to self-help dispute resolution provides, and commonly held infrastructure that are recognized and formalized in codified in laws, not the avoidance of anarchy. That’s just gravy, not the entrée.

    Rousseau presents it as the primary reason, not me, it is his premise, not mine.”

    Again, the subject is not about Rousseau in isolation.

    “All those benefits of civil society are present in tribal societies, by the way, they are just enforced and executed collectively in a way that does not scale.”

    Again, the spectrum.

    “Codified rules do not create those benefits,”

    No one understanding modern social compact theory would say that it does. Codification marks a logical starting place for the analysis of legitimacy.

    “it merely allows those benefits to be enjoyed by larger groups of people and relative strangers.”

    By establishing a basis for the rule of law that is objective.

    “Gene says: Again, not relevant to the threshold of complexity issue and formalization.

    So you say, I disagree, it is entirely relevant.

    Gene says: Again, you miss that the legitimacy of coercion is the focus of the legal analysis, not happiness.

    Excuse me? The happiness benefit is Rousseau’s claim. If he did not think it was important, I do not think he would write it.”

    Again, Rousseau does not operate in a vacuum on this subject. Happiness, despite what you read in Rousseau, is gravy not the entrée in analyzing legitimacy.

    “Gene says: All of which, while very interesting, is a function of scale. Larger societies cannot operate this way as the human urge to dominate with come into play as numbers increase.

    Yes… that has been my point all along, that these mechanisms do not scale and thus formalization becomes necessary…”

    Then why do you have such a problem understanding that formalization is the natural starting point for analysis of legitimacy? Other than the aforementioned ego issue that everything must be on your terms or not at all (basically solipsism).

    “I said: we submit because we already know the difference between good and bad, selfish and selfless, fair and unfair.
    Gene says: No “we” don’t. Most people who have the naturally occurring normal psychology do because that is our nature [which is my claim!], but the laws are not primarily aimed at the normal. They are aimed at protecting the normal from the social deviant as defined both by our natural innate sense of fairness and by societal/cultural norms.

    As are the natural punishments we engage in instinctively. Deviants, sociopaths and psychopaths do NOT submit willingly, the only thing that deters them is punishment. I fail to understand why you think I do not understand that or ignore that. We have the emotions of anger, rage, and the desire for revenge or retribution because these aid survival by keeping the deviants in check. Non-deviants agree to be bound by formalized law when they see the punishments as reasonably fair.”

    Good. Just because you understand spark plugs doesn’t mean you understand an engine.

    “Gene says: That’s exactly a restatement of the cost benefit transaction behind the social compact.

    I do not think so, but if you do, you should have no problem with my alternative route to getting there.”

    Except your reasoning behind your alternative route is at best technocratic, not rational-legal. You’re arguing policy, dummy, not jurisprudence. Hello? McFly?

    “Gene says: But science is simply not the primary or the only driver of law.

    I certainly did not think it was; Gene. Science is used to gain a deeper understanding of mechanisms, whether those are atoms, businesses, or societies. Understanding how something works often shows us the path to exploitation of it (e.g. how to create stronger materials) or improvement of efficiency (eliminating waste in a business, or unfair laws in a government).”

    Good. Then you should have no problem with a rational-legal theory based on real observable states of human society.

    Gene says: Legitimacy and the analysis thereof works just fine under the social compact theory. Your theory – ” the TYPES of laws that governments should enact, and should not” – is about what kind of laws government should create – a policy question, not a legitimacy question.”

    Perhaps, but I think my argument goes toward legitimacy as well.”

    Which you thinking that is still irrelevant to the fact you are arguing policy as if it were jurisprudence.

    “How shall you define “legitimate,” without circularity, except by some level of acceptability to the governed? How will you then define “acceptability” to a person except by their emotional state after rational contemplation? We currently understand such emotional states through the lens of evolutionary psychology, which includes the psychology evolved to succeed and thrive in millions of years of tribal life.”

    Gibberish. The cornerstone of understanding legitimacy in the jurisprudential sense is understanding the function and relationship of the rule of law to the question, not evolutionary psychology and emotional states. If an individual’s emotional state was generally relevant to equity? We’d let criminal victims determine sentencing instead of the rule of law.

    “Gene says: there is nothing wrong with that observation and the analysis of legitimacy based on such has worked just fine for longer than either of us has been alive.

    Quite a lot of medicine worked just fine for centuries, too, but the “reasons” given for it working failed to help in discovering new medicines or improving upon existing ones, because the reasons were fictional. When TRUE understandings were developed by discarding the fictions and using a scientific approach from scratch, we saw an explosive growth in both the number and quality of medicines.”

    And legal theory evolves too Tony. Just like medical theory. If it’s not doing so fast enough for your satisfaction I suggest you get ready for a lifetime of disappointment.

    “Gene says: The map is not the territory.

    But it does makes a difference if you are in Panama and your map is of Texas. Rousseau’s metaphor is not just inexact, it is a misrepresentation.”

    It’s a misrepresentation only as you see it and you’re using the map wrong. More accurately, you’re using the wrong map. There are more than one kind of map.

    “Of course anarchy can exist, but as I stated in a separate post above, it is not conducive to the rise of peaceful government at all, because chaos is usually rooted in a Malthusian struggle, a desperate fight to the death over limited resources, and that means somebody has to die.

    People facing an existential struggle do not lay down their arms unless a plausible (and less risky than armed combat) route to survival exists; if there is not enough food to feed everybody, then it is difficult for me to see how a formalized peaceful government is going to solve that problem.”

    Then that is because you fail to see that feeding everyone is not the only problem societies face and that legalism addresses.

    “The submission to formalized laws and government when that was a new idea solved (IMO) a different problem, a whole new problem that needed a new idea, a problem created by new prosperity and growth due to a new technology (organized farming and herding). I agree it was a problem of complexity. But we had at least forty thousand years of getting along without any known formalization. To me, understanding why something that worked for so long suddenly stopped working and required formalization is paramount to understanding both the legitimacy and purpose of the government.”

    As you say, that’s your opinion and you’re entitled to it. That civilizations worked without formalized legal systems at smaller scales is a moot point and the why of it is an interesting aside and relevant to other studies like anthropology, but not law or the frameworks used to discuss legitimacy. Your opinion is just that, but you are not entitled to it being right as a matter of jurisprudence. I don’t have a “need” to prove you wrong. You simply are when you want to argue policy as if it were jurisprudence. Policy changes like the wind. Jurisprudence is the study of legal theory and history and optimally in part to provide ever more stable and just systems of governance. It has its own methodology and foundational principles. That you disagree with them because they somehow offend your scientific sensibilities at a policy level is immaterial to what they are and why they work. The bottom line is that the social compact theory has a valid and functional starting point for the analysis of legitimacy whether you approve or disapprove of how that starting point was derived and despite your insistence on using the Historians fallacy and presentism to critique Rousseau.

  193. Tony,

    I understand the transitive property just fine. I also recognize it being misapplied here. That’s why I suggested the word “derivative”. Again, tools are tools. Their proper use is in the hands of the user.

  194. @Gene: Well, I understand it too, and I used it as defined, and it is not misapplied. The metaphor is used by Rousseau to justify his subsequent step, that is why he began with it, but the inaccuracy (or falsehood) of his metaphor translates into an inaccuracy (and falsehood) in his conclusion. Such is the nature of a logical argument.

    As for Rousseau, let me remind you of how this started:
    I say: ” [A]nother choice I make to ignore an entire area of study and centuries of misguided philosophy based upon fantasy and non-literal metaphors.”
    Gene says: You’ve never actually read Rousseau or Locke or any of the others that form the foundation of the theory behind social compacts, have you?

    Yes, Gene, I had read them before, and I dismissed them as fantasy and non-literal metaphor, and to demonstrate that (because Blouise doubted me) I have reviewed Rousseau to show both of you precisely WHY I dismiss his writing as fantasy and non-literal metaphor.

    You brought him (and Locke) up as your foundational experts (12:52 post); but now … It isn’t about Rousseau, or his wonky logic, or his non-literal metaphors!

    Yes it is, he was your guy. And obviously I do not have the time or inclination to review the entire body of legal thought on the social compact.

    To be perfectly clear to all, I dismiss the logic of Rousseau, I do not dismiss his core ideas of a social compact and rule with consent. I dismiss what I regard as a fantastical justification for it.

    It is also true what Gene says as far as me arguing against Rousseau with knowledge he did not have. Well, we argue against Newton and Einstein with knowledge that they did not have; I do not see that as a flaw in my critique of Rousseau’s bad logic in justifying his good idea.

  195. I could have read Rousseau and Locke on Government in this amount of time.

    Locke – good
    Rousseau – bad

    Why?

    Locke – for individual rights
    Rousseau – individual has rights as long as the state deems it so.

    Implications:

    Locke – man is good
    Rousseau – man is not so good

    Conclusion:

    Locke – United States, DOI, Constitution, Mans Rights
    Rousseau – French Revolution, Blood, State has power over man

    Epilogue:

    Locke – god only hopes he holds sway
    Rousseau – god help us if he gets a leg up

  196. @Bron: Locke’s reasoning is equally flawed; all state of nature arguments that ignore the role of the tribe (and the debt incurred) in bringing an infant to independent adulthood are flawed, all state of nature arguments that propose absolute freedoms exist outside of society are flawed. It is fundamentally wrong to sneak up on a person and kill them for whatever they carry; I do not think that is a ‘right’ under any circumstances.

  197. “Well, I understand it too, and I used it as defined, and it is not misapplied. The metaphor is used by Rousseau to justify his subsequent step, that is why he began with it, but the inaccuracy (or falsehood) of his metaphor translates into an inaccuracy (and falsehood) in his conclusion. Such is the nature of a logical argument.”

    Then you should understand that transitive does not equation to compounding. Just because a property is shared does not mean it is exacerbated by that sharing. If the error inherent in the metaphor is prime facie insubstantial to its utility as an analytical tool, then any transitive sharing of the error is insubstantial as well. A rate of acceptable error does not negate the value or utility of a tool. Such is the nature of a logical argument.

    “I have reviewed Rousseau to show both of you precisely WHY I dismiss his writing as fantasy and non-literal metaphor.”

    And it has been shown that the metaphor is literal enough to be functional ergo any protestations to its imprecision as a metaphor are moot.

    I’ll just point out that Rousseau isn’t “my guy” but one of the several who students of jurisprudence use in formulating the framework of social compacts. But he is no more my guy than Netwon is your guy. He simply provides some but not all of the framework influencing my understanding of social compacts as they relate to jurisprudence.

    “To be perfectly clear to all, I dismiss the logic of Rousseau, I do not dismiss his core ideas of a social compact and rule with consent. I dismiss what I regard as a fantastical justification for it.”

    Then it is a specious complaint. It’s like complaining about a fire extinguisher you admit is perfectly capable of putting out a fire because you disagree with the idea behind how compressed gases work.

    As for the Historians fallacy and presentism and their role in logic: it is not enough to simply argue that because we have new information that renders the logic behind previous theories held valid and useful that their conclusions are necessarily in error. The Historians fallacy and presentism are both a form of the fallacy fallacy. Please note that when I object to the fallacious logic of others it serves one of three functions: 1) it is to point out a flaw in their conclusions contingent upon their fallacy or 2) it is to point out the use of fallacies as a propaganda tool either deliberately or through unwitting propagation although 3) technically speaking, it is sometimes both of these things.

    In this situation you admit to the both the functionality and the utility of Rousseau’s work on the social compact yet attack the perceived (and I’ll stipulate that some of them are actual) fallacies in his predicate logic and in part you do this by applying new knowledge to old logic informed by a different data set than you operate from in the present. This is simply a variant of the fallacy fallacy. You haven’t disputed his conclusions, just how he got there. It’s a subtle but important distinction. Does the social compact theory need some “cleaning up” in light of what modern science tells us about humans? Probably so, but I really doubt any of that is going to change that the conclusions already reached by the theory are going to face substantive revision in light of those new discoveries. Unless we discover something that is literally a paradigm shift on human nature, the ideas about the value of formalization and it being a starting place for examining legitimacy in jurisprudence are so effective that they are unlikely to change much if at all.

  198. Bron,

    And you’d have still come away with a faulty understanding of the social compact as understood in jurisprudence. Much like Tony, you disagree with Rousseau over politics (policy) because you personally favor Locke’s politics (policy). Rousseau’s ideas don’t go to the origin or validity of rights so much as they go to looking at how to analyze the validity (or usually the invalidity) of state authority in using force against citizens. Both men were correct about some things regarding the social compact and wrong about others but little if any of that had to do with their personal views on policy. Policy views may inform some theoretical frameworks from individuals, but for the abstract framework to withstand the test of time, it must be able to transcend personal policy preferences of the original authors as an analytical tool.

  199. Tony,

    Your approach is solipsistic for the simple reason that you will not find one serious legal scholar that will follow your line of argument anywhere.

  200. @Bob: I also will not find one Catholic priest that will follow my line of arguments for atheism anywhere; that does not make those arguments either wrong or solipsistic. Not all readers are legal scholars steeped in the dogma, some of us are grounded in the literal, real world.

    Some might say “trapped,” :-) but I consider it a virtue, not a handicap. It is what lets me contribute to the practical body of knowledge that makes real people’s lives better.

  201. “Not all readers are legal scholars steeped in the dogma, some of us are grounded in the literal, real world.”

    This presumes that only science is grounded in the literal real world and this would be an incorrect assumption. While not all forms of governance are based in reality, the study of such – modern jurisprudence – is very much grounded in reality. In fact, the study of jurisprudence tells us that when governance is not based in reality is usually leads to disastrous ends.

  202. Also, dogma? That would be more a policy decision, not the objective frameworks of the rational-legal school of thought. The only dogmatic assertion is one that can be proven logically and that is the value of the rule of law to society. And it is not true because it is dogmatic, it is dogmatic because it is true. Much like the scientific method.

  203. @Gene: There you go trying to speak for me again; I did not say “science,” I said “some of us.” Some of my friends (e.g. a chef, a builder, a car mechanic) are not scientists at all, but they are grounded in the real and literal world and prefer arguments about the real world that do not begin with a fantasy.

    You keep on trying to change the topic to “modern jurisprudence theory” when that was not what the argument was about. The argument was about the state of nature as a starting point, the argument was about why I dismiss Rousseau’s logic as fantastical and wrong headed. I have made my point, his logic is crap, and exemplary of other such state of nature arguments, and if the social contract (which remains a good idea) does indeed rely upon anarchy as the alternative to codified law than it has a foundation of sand.

    Dogma, not in the religious sense, but in the first sense of the definition: An authoritative principle considered to be absolutely true regardless of evidence, or without evidence to support it.

  204. Tony,

    You said “some of us”. And what are you? According to you, you’re a research scientist. That it points to a bias for science seems apparent, but if you want to include others as being grounded in reality, but not students of jurisprudence, you’d simply be in error again and that was my point.

    And that dogma in the sense of an authoritative principle actually has evidence to support it should make that a bonus.

  205. @Gene: Then it is a specious complaint. It’s like complaining about a fire extinguisher you admit is perfectly capable of putting out a fire because you disagree with the idea behind how compressed gases work.

    No, I would say it is like the story of aspirin (salicylic acid derived from willow bark). Although willow bark had been used for many centuries, it came into the European world primarily due to the Reverend Edward Stone looking for an alternative treatment to malaria. (The existing treatment was the powder of the cinchona tree bark, which contained quinine). Reverend Stone believed in the “doctrine of signatures,” a sympathetic medicine magic which posited that God gave man clues to the medicinal plants, by putting them near the cause of the harm, or making them look like what they treated. So an orchid that looked like testicles was powdered and ingested to treat testicular disease; or used as a paste. A flower that looked like an eye was used to treat vision problems or cysts.

    Malaria (caused by a parasite borne by mosquito, but they did not know this in the 1700s) was linked to stagnant or stinky water. Reverend Stone knew that Cinchona bark powder was bitter; so he went walking down the river looking for a tree by the water with a bitter bark. He found the willow tree. So, he collected some bark, dried it and ground it to a powder.

    Although it did not cure malaria (quinine doesn’t work the same as salicylic acid) he did discover it could reduce some fevers, act as a pain reliever, relieve headaches, remove warts when applied as a paste, and so on.

    So yeah, he found something that truly worked and eventually that turned into a very valuable contribution to medicine. That does not mean we should teach medical students the principles of the “doctrine of signatures” or recounting to them the hilarious “logic” by which Edward Stone made his discovery.

  206. Tony,

    That I’m a product of a modern legal education and I’ve demonstrated that the social compact is (often but I’ll stipulate not always) taught in the proper perspective to understand its origins in analytical context kind of belies the notion that it’s the equivalent of teaching medical students the doctrine of signatures.

    Believe it or not, most people in the legal profession and student of jurisprudence do indeed know what they are doing.

    Just like in the medical profession or other professions.

  207. @Gene: kind of belies the notion that it’s the equivalent of teaching medical students the doctrine of signatures.

    Ah, but Gene, the story of aspirin is just a metaphor for the story of the social compact. The social compact is the salicylic acid, and the “state of nature” is the “doctrine of signatures.”

    According to your posts above, the precision or inexactitude of the metaphor is irrelevant, right?

    And the Reverend Stone’s tree-tasting expedition is just funny.

    Personally, I thought there was great value, in later decades, of working back from the useful discovery to understand why it really worked. I suppose that is just my scientific, literal, real-world bias at work, in thinking that the truth is more useful than a fairy tale.

  208. If that’s what you want to think? Knock yourself out, Tony. Tools are judged primarily by utility. That the metaphor is exact enough to be useful for the framework is what matters.

  209. @Gene: If that’s what you want to think? Knock yourself out, Gene. In my profession we are in the business of creating tools, and so we judge them by their potential utility. If tools were only judged by their utility, then the understanding of powdered willow bark would have ended with Edward Stone, and we would have vast monoculture farms of willows being ground into aspirin. The value of understanding the social compact through the lens of anthropology and evolutionary psychology, the best estimation of truth available to us, is precisely the greater potential utility it affords.

  210. You seem to think the social compact is a static tool simply because it hasn’t changed as fast as you’d like or to the parameters you prefer. This simply is not the case but I’m sure we’ll just get the entire legal profession to jump right on that for you, Massa Tony. Law, like science, is an ever evolving subject. Again, believe it or not, most students of jurisprudence and legal professionals do know what they are doing Tony. You should let us design our own tools in the way we see fit just like you do in your profession. The skill sets may be in some ways complimentary but they are by no means interchangeable. What we have in re the social compact works well enough. Will it be further refined going into the future? Probably so, but as long as it works, that’s hardly going to be a priority in the realm of legal theorists. Necessity is the mother of invention.

  211. @Gene: No, science is pretty damn slow too. In fact science has measured that! As I recall, it typically takes 50 years to get from discovery to application in science; the structure of DNA was discovered in 1953, and 59 years later we are barely turning that into any kind of widespread genetic engineering.

    I do not understand your defensive aggression, Gene, I am not telling you what to do. I presented an analysis and I am defending my analysis, and every time you mischaracterize it or misinterpret it or presume (as you did here) to know what I am thinking (which of course is uniformly derogatory and dismissive and presumes I am an unlettered idiot and you are far smarter than me), I will do the same.

  212. Tony,

    Yeah. I’ve read that about science and seen it within my own lifetime. That’s in part what is so frustrating about reading some of the really interesting stuff coming from the cutting edge (of whatever speciality) is knowing that I might not see some of the potential amazing applications in my lifetime.

    However . . .

    I don’t know why you think I’m being defensively aggressive for critiquing your analysis. I’m being just as critical and exacting as I usually am and we’ve easily had more contentious interactions than this one. That I don’t cut you any slack should be considered an indication that I think you can take the heat and thus earned a place in the kitchen.

    As for the rest of that, I’ve stipulated more than once I don’t consider you anything less than highly intelligent. As to what you think? I’m going by what you say and reasonable supposition thereon. However, law is my speciality. In that regard it’s not derogatory or dismissive to think I know more about that subject than you do. It’s simply a fact. For example, when I talk science as we have many times past, you know I have the understanding of a well informed layman – an apprentice knowledge at best – but that I am not a science professional nor have I ever claimed to be. If I crossed that line, I would take the smackdown due without complaint from actual professionals. Methinks perhaps you are just a tad hypersensitive on this right now because objectively you should realize no degradation or dismissal was meant and if any was taken I ask that you reappraise the situation. I’m usually very explicit when I dismiss an idea (like Objectivism) and I save degradation for the trolls and trollish. I’ve been nothing in this discussion if not through (as opposed to dismissive). If I had, I would have said something along the lines of “you’re a pantload” and left it at that. If you thought you were getting the troll treatment, I submit that 1) it was not intended and I apologize for any statements that could have been construed as such, 2) that you may be mistaken in that perception and 3) no offense was meant. You’re one of the smartest regular posters here and the least trollish. If I thought otherwise, I’m certain there would be no room for error in interpretation.

    You’ve seen me pummel trolls. There is really no objective comparison.

  213. mespo,

    I just wanted you to know I’ve been using that joke about God and the Devil all week and it has been quite a hit.

  214. @Gene: I don’t know why you think I’m being defensively aggressive

    The “Massa Tony” remark (rebelling against insubordination); agreement with Bob that my argument was impressively solipsistic (clearly intended as an insult) and then comparing me to a water buffalo; the obvious resort to “proof by acclaim” invalidating my argument by virture of “the entire legal profession” disagreeing with me; your blatant appeal to personal authority as “the product of a modern legal education.” To me those are the words of somebody defending a personal attack.

    I do not think the social compact (or contract) is static; but I also do not think that is the issue, not for me. No matter how it has evolved or is evolving, the issue for me is whether it remains rooted in the ‘state of nature’ arguments as put forth by Rousseau and Locke.

    I am not intending to be dismissive next but metaphorical: no matter how elaborate the doctrine of signatures might have gotten, no matter how much it might have contorted itself into some semblance of an objective scientific method, it would have remained rooted in a false premise.

  215. Impressive. Utter gibberish, but impressive gibberish. Now it’s my turn.

    The Massa Tony remark was about your arrogance that the practices of the legal profession and models used by jurisprudence should jump up and meet your standards simply because you’re the Great Tony and Things Should Be As You Say Because You’ve Got This Shit All Figured Out. It’s called sarcastic hyperbole.

    What I may have been so generous to think was jokingly solipsism on your part in the interchange with Bob? Is now steadily being revealed to be simple garden variety actual arrogance on your part. Solipsism? Is cutting you way too much slack.

    As to the water buffalo? That was one in a series of inside jokes between me and Bob quoting the move “Fletch”. If I had wanted to call you a water buffalo, I would have. Instead, I’m opting now to call you an arrogant ass.

    Proof by acclaim? If you’re just so arrogant that you think you know better than the common practice of an entire profession that has technically been in existence easily as long as your own and one you aren’t even a part of, well then, that’s also entirely your problem.

    Considering how often you bleat about how you’re rooted in reality because you’re a scientist, pardon me if I laugh my ass off about your whining about an appeal to my own authority that was nothing of the sort. I was illustrating that those in the legal profession today who have all had similar training as mine illustrated that the social compact theory is (often but I’ll stipulate not always) taught in the proper perspective to understand its origins in analytical context kind of belies the notion that it’s the equivalent of teaching medical students the doctrine of signatures. We as a profession are given the proper context to understand and apply the tool to get useful results for legal analysis. If it had been an appeal to authority? It’s only fallacious when that appeal to made to someone NOT an expert on the subject matter. As I am an expert on the subject matter of law, if I had appealed to my own authority, it would not have been a logical fallacy. But since I didn’t? That ‘s moot.

    You may be a genius research scientist, Tony, but no one in the legal profession is going to be terribly impressed with your “scholarly insight” on this matter no matter how impressed you are with yourself. Bob was right when he said that you will not find one serious legal scholar that will follow your line of argument anywhere. I was doing so simply in the name of Socratic discourse and so perhaps the audience could learn something and maybe even you, but now after your last comment?

    The audience has what they need from a legal perspective to get the basics of social compact theory. Trying to educate you is a futile task.

    I’m going to take Bob’s advice and simply move on and let you argue with yourself since I plainly see now that your ego is simply one of the most impressively overheated that I’ve ever seen and this ends with you proclaiming how you know better than an entire profession. The only thing that will placate you is clearly for the world to bow down to your legal genius. Too bad for you, that’s just not in the cards. You don’t know what you’re talking about and even getting you to grasp the basics is a thankless repetitive task analogous to teaching a salamander to play piano.

    I’m done being accommodating and catering to your bullheaded boorish arrogant ignorant pronouncements about a foundational subject within a field in which you aren’t even trained.

    So you just go ahead feel free to be offended all you like at this point, “councilor”.

    Have a nice day.

  216. Once again: “Well said; well spoken.”

    …. “And bring me the head of Alfredo Garcia while you’re at it.”

  217. @Gene: See, that anger looks like self defense. I have not asked anybody to bow down to me, I just did not bow down to YOU. I am not the one with the ego problem, Gene, that would be you, when I reject your initial claims that Locke and Rousseau are self-evidently solid (by implication when you presumed that my disagreement with them must mean I did not read them), you get livid. When I disagree with your pronouncements of fallacies I did not commit, you get livid. The only time you can have a civil conversation is if nobody ever challenges your pronouncements from on high.

    As for knowing better than an entire profession, all trained the same, that is just inflation on your part, not mine, because what I claimed from the beginning is that the ‘state of nature’ is an illogical straw man used by a handful of men a few hundred years ago to justify what was ultimately a good idea, the social compact.

    And it is a straw man, because it is easy to argue against anarchy. My argument on this thread has been with a man, Rousseau, not a profession.

  218. Bob Esq:

    Tony makes an interesting point:

    “And it is a straw man, because it is easy to argue against anarchy.”

    Why are Locke and others doing this? What was going on at that time in history to have them interested in the state of nature.

    Locke goes into great detail to prove that kings have no divine right to rule, something we take at face value know. As far as I can tell they werent arguing against anarchy but for government as a means of preserving rights. The state of nature is used to show people they are better off in society.

    But why? Why didnt they just say “hey listen up you got rights and government should protect them and not trample them.”

    Why did Locke have to examine it the way he did?

  219. “@Gene: See, that anger looks like self defense.”

    See, you mistake utter disgust as anger. Your ignorance and arrogance are revolting but they are no cause for me to be angry. They are your problem.

    “I have not asked anybody to bow down to me, I just did not bow down to YOU. I am not the one with the ego problem, Gene, that would be you, when I reject your initial claims that Locke and Rousseau are self-evidently solid (by implication when you presumed that my disagreement with them must mean I did not read them), you get livid.”

    You go ahead and project your problems on others if that makes you feel better. As to “my initial claims Locke and Rousseau were self-evidently solid? What? And you have the balls to accuse me of setting up a straw man? Good luck with that. Also, that word “livid”? I do not think you know what that means either. Are you psychic? No? Then any assumption about my emotional states to your ignorance are purely supposition.

    “When I disagree with your pronouncements of fallacies I did not commit, you get livid.”

    When you disagree with logical fallacies that you commit and I point them out – specifically – because you can’t or won’t see them? Is simply your problem, but again, unless you’re psychic, your understanding of my emotional state is supposition and sorely lacking.

    “The only time you can have a civil conversation is if nobody ever challenges your pronouncements from on high.”

    You’re hardly one to dictate civility or be the arbiter of it so pardon me if I chuckle at that, Mr. Big Ego.

    “As for knowing better than an entire profession, all trained the same, that is just inflation on your part, not mine, because what I claimed from the beginning is that the ‘state of nature’ is an illogical straw man used by a handful of men a few hundred years ago to justify what was ultimately a good idea, the social compact.”

    Saying you know a better way than an entire profession about how to deal with a cornerstone of said profession is pretty much saying you think you know better than an entire profession no matter how you want to color it.

    “And it is a straw man, because it is easy to argue against anarchy. My argument on this thread has been with a man, Rousseau, not a profession.”

    If that’s what you want to think, I don’t really care. You still – obviously to anyone who does know what they are talking about – don’t understand that arguing against anarchy is not what the social compact theory is about. Let me try this one more time . . the social compact theory is about the trade off of absolute liberties in a state of metaphorical perfect lawlessness for the acquisition of mutual benefit in a metaphorical state of perfect lawfulness. That the reality of the matter is that chaos and order in social structures is a spectrum of behaviors is well known and understood for the purposes of analysis. That analysis is geared to determining legitimacy of a given governments use of coercive power. No one – I repeat no one – in the legal profession really thinks there is such a thing as perfect anarchy or perfect order, your pedantic mauling of the metaphor and its utility notwithstanding. That you have a problem understanding the use of metaphors in building a model – a map – is simply self-evident. That failing is entirely yours.

    Like I said, I’m done being accommodating and catering to your bullheaded boorish arrogant ignorant pronouncements about a foundational subject within a field in which you aren’t even trained.

    I’m simply not interested in talking to you about this anymore.

    Actually, I’m to the point I’m losing interest in discussing anything with you, you pig headed putz. Your display of arrogance on this matter has been simply been breathtaking. And that wasn’t anger just so you don’t go away thinking I’m mad at you. Anger is work. Anger requires motive. Why would your ignorance and arrogance be a reason for me to be angry? That’s not logical. They’re your problem. The only person they harm is you to paraphrase Marcus Aurelius. Angry? I’m not angry.

    That was mockery made in disgust.

    Two totally different things.

    Carry on.

  220. Bron,

    See this:

    [T]he social compact theory is about the trade off of absolute liberties in a state of metaphorical perfect lawlessness for the acquisition of mutual benefit in a metaphorical state of perfect lawfulness. That the reality of the matter is that chaos and order in social structures is a spectrum of behaviors is well known and understood for the purposes of analysis. That analysis is geared to determining legitimacy of a given governments use of coercive power. No one – I repeat no one – in the legal profession really thinks there is such a thing as perfect anarchy or perfect order.

    Literalism really does fail in dealing with metaphor.

  221. In the court ruling US vs. Fishbine, a man subjected to potential incineration while wearing another man’s suit is entitled to $10,000 worth of airline tickets. It’s an obscure ruling, but a very important one to me.

  222. @Bron: It was apparently the style of the time in the 1700’s, I have read several papers and letters from the period (not all political; some on economics, some on medicine).

    They liked overly dramatic contrasts. Unlike peer review now, I think the editors and publishers of the time apparently paid little attention to whether an argument made sense, just if they enjoyed the reading.

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