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

1. 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.

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2. Gene,

   Come back to me … I have a “Z” little boy ….

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3. 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.

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4. 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.

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5. 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.

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6. @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.

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7. “Ethical Relativism: A Good Idea or a Path to Anarchy?” explained:

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8. @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.

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9. 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”.

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10. @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.

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11. @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.

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12. “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.

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13. 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.

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14. 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.

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15. Yes, very good. I’ll have a Bloody Mary and a steak sandwich and… a steak sandwich, please.

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16. Put it on Mr. Underwood’s tab.

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17. Gene,

    To paraphrase Fletch: “Well said; well spoken.”

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18. “@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.

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19. 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.

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20. @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.

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