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. 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.

  2. @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.

  3. 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.

  4. @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.

  5. 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.

  6. @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.

  7. 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.

  8. “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.

  9. @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.

  10. 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.

  11. 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.

  12. “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.

  13. @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.

  14. I could have read Rousseau and Locke on Government in this amount of time.

    Locke – good
    Rousseau – bad


    Locke – for individual rights
    Rousseau – individual has rights as long as the state deems it so.


    Locke – man is good
    Rousseau – man is not so good


    Locke – United States, DOI, Constitution, Mans Rights
    Rousseau – French Revolution, Blood, State has power over man


    Locke – god only hopes he holds sway
    Rousseau – god help us if he gets a leg up

  15. @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.

  16. 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.

  17. 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.

  18. @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.

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