Monday, July 23, 2012

Arbitrary Law, Rationality and Ethics

Arbitrary Law, Rationality and Ethics [draft]

[@thepopularfront on Twitter requested that I elaborate my statements concerning the illegitimacy of positive-law (law by decree); the following is a draft that loosely contains my rationale but is by no means of high-quality in composition at this time; if enough interest is generated, I may revise/edit it in the future]

Law, as it is referred to in the vernacular, is the written code of the ruling-class; whosoever rules, writes down their wishes, their opinions, their decrees, so as to pretend that the law that they compose does not represent their own designs, but rather the rules of some amorphous abstraction independent of the legislators, commonly referred to as, "the rule of law".

But this kind of "law" does not write-itself, it is not discoverable by any means except by the explicit expression of the ruling-class and therefore, it is the will of the legislators, who in conjunction with the other "branches" of the ruling-class, enforce this law and adjudicate its application; and because no person has the capacity to know the mind of another, except by that other's expression of it, the legislators to make their will known, compose and publish "the law" which they wish to contend, exists as an entity wholly independent of its authors.

The law must be is composed and published, because the legislators/authors desire to obfuscate their responsibility for its creation; they refer to the "law" as if it had its own life, its own existence independent of its written expression, arbitrary adjudication, and enforcement by violence.  This "law" represents a standing-coercive-threat to all who might violate the dictates of the ruling-class; it represents an institution of coercion which threatens to compel all others to obey its decrees.

In some sense, this "law" may be preferable to other tyrannical legal/violence systems such as, "the king's will is the law" but ultimately, in such a tyranny, at least the tyrant/king, by all apprehension, is immediately responsible for his/her own decrees.  In a system of "rule of law" there is none who accepts this responsibility; the ruling-class and their agents seek to abdicate responsibility for their actions and to transfer that responsibility to the "law" itself.

When Adolph Eichmann, the Nazi SS officer (lieutenant colonel) was asked during the trial held in Jerusalem (1961), "Was it difficult for you to send these tens of thousands of people their death?" Eichmann replied, "To tell you the truth, it was easy. Our language made it easy." Asked to explain, Eichmann said, "My fellow officers and I coined our own name for our language. We called it amtssprache -- 'office talk.'  In office talk "you deny responsibility for your actions. So if anybody says, 'Why did you do it?' you say, 'I had to.' 'Why did you have to?' 'Superiors' orders. Company policy. It's the law.'"

The psychological principle at work in the conceptual framework of the "rule of law" is that demonstrated by the Milgram experiment (; a person who is given an order by someone considered to be in a position of authority, permits themselves to take actions that they would not, of their own accord, have taken under their own responsibility; the command of one considered to be an authority, allows the person so commanded to psychologically abdicate their responsibility for taking their actions, "I was only following orders of my superior" or "I was only acting in accordance to the law".

This "law" as it is used in the vernacular, is represented by the ruling-class and its agents as if decreed by an infallible and unquestionable deity; it is treated as if something external to the desires and opinions of the rulers, and through use of 'Amtssprache' considered absolutely infallible and immune to question.

The use of "law" in the vernacular is a corruption of the term "law"; it substitutes what is posited by the rulers, for what is discoverable by reason.  This is the primary cause for the desire of the ruler to compose and publish their decrees; for they wish to emulate and adopt the undeniability of that law which is discoverable by reason, so as to publish their decrees, so that they are at least by apprehendable by arbitrary decree, if not individual rationality itself.

Augustine wrote: "An unjust law is no law at all." 

Why is an 'unjust law, no law at all'?  For the reason, that law, like laws of physics, is supposed to be discoverable by reason; it is supposed to correspond with what is rational and discoverable by the rational-mind.  This is the only rational meaning of law in the expression, "Ignorance of the law is no excuse"; for if by "law" the speaker intended to imply the copious dictates by legislatures, then all persons would be ignorant of the law, for no one knows all of the laws, that allegedly apply to themselves at any give time; but if the law is discoverable by reason, then the laws applicable should be obvious to the rational-apprehension and therefore to plead ignorance to what is obvious, is what is implied by having "no excuse".

The law which is discoverable by reason (sometimes referred to as "Natural Law"), as to the ethical treatment of other persons, must conform to reason and rationality.  We may see children who intuitively/rationally know this kind of law; they know they do not wish to be harmed by others and they have empathy enough (if they have been cared for and not been too abused) to know it to be unjust/unethical/irrational to harm others.

Those "laws" which are the dictates of legislators impute no duty to obey upon anyone who does not choose to comply; the "laws" of "legislators" have no more authority as conferred by reason, as your neighbor has to write down her own "laws" and to compel you to obey them.   Yet the law which is discoverable by reason, which represents rational interactions with other rational beings, can only be violated, if the violator to denies either their own rationality and thereby acts as a beast without rationality, or, far more commonly, to deny their victim the status of "rational being" and to treat them as a mere-beast.

This analysis and evaluation is my theory of a rational/secular theory of ethics.  It assumes a recognition that in the phenomenon of experience, we experience a sort-of dual-manifestation; a rational-consciousness which cogitates and a body which acts in the world which we experience; but it is not precisely a duality, for there is a unity in the manifestation (we cannot completely divorce ourselves from our consciousness, nor the body in which we manifest) but the sort of duality is in the phenomenon of experience itself.  In this phenomenon of experience, rational-beings manifest as both rational-consciousness and animal-actors; there are choices that can be made, patterns of thought which can be encouraged or discouraged to emphasize either or both parts of our possible manifestations.

I then take it to be absurd that a person acting in their rational capacities AND acknowledging another as a rational-being, a human-being, to comprehend the choice to act so as to initiate aggressive action upon another; some premise must concede in the initiation of aggression; the actor of initiation of aggression must either deny to themselves their own rationality, or they must deny the rationality of the  another.

Ethics and the law which is discoverable by rationality, and which accepts the rationality of others, can conceive of no other possibility; either one must assert their own rationality and to deny the rationality of others, so as to treat others as chattel, as things to be owned and controlled, asserting the denial of another's person-hood, OR they must themselves, through implication of their actions, deny their own rational-consciousness/person-hood and so as act as a beast or force-of-nature themselves (the actor of the initiation of aggression).

When a person seeks to initiate aggression against another, they have at some level or the other, encouraged either an irrationality in themselves or a rationality that must deny the rationality of other persons exhibiting the aspects of rational-beings.  This theory assumes the recognition that for ethics or rationally apprehended law to take place, two assumptions must be made, the first that the actor, is herself rational, and second, that others displaying behavior in keeping with rationality, are rational themselves; rationality and empathy/sociability are the two critical components/premises of this theory.

In as much as people rarely act in the sense of the beast or brute of nature, the far more common ethical violate, implies the denial of the rational-person-hood of others; the actions of the Nazi holocaust and colonial slavery in the Americas are two obvious examples of this denial of person-hood but the publication, enforcement and adjudication of "law" in our society maintains the same principle.  The "law" of the legislators assumes that the non-rulers are not rational-beings capable of self-ownership, nor free-people, nor rational-consciousnesses; they are in principle chattel-livestock to be ordered, controlled and punished for their potential "disobedience" to the law as ordained by other persons/rational-consciousnesses.  The "law" as it is used in the vernacular is the institutionalization of domination within the society; creating a class of rulers/sociopaths which assert their rationality and their "authority" to rule, and therefore deny to others the status of rational-beings, human-beings, which consist of self-owners of their own bodies/actions-of-bodes.

The "Amtssprache" of the institutionalization of domination, allows those following the "law" of the rulers, allow themselves to abdicate their ethical responsbility to recognize others as rational-beings; they permit themselves to take actions which imply that others are not fully-human; they permit themselves by way of cognitive dissonance to become Milgram-sociopaths.

I leave the judgement of this theory to the reader to consider whether my assumptions are sound and my reasoning valid.


  1. I think the implications of the Milgram experiment in terms of the individual;s susceptibility and tendency to obey 'legitimate' orders is profoundly disturbing.

  2. @Rustylink
    I can understand that recognition of the potential for influence of a figure of authority might have on a generally peaceful person, can really get-under one's skin. I ask myself, "...but how could they do that? How could they have turned the machine up to a point, where they believed that man was in extreme pain and was asking to be released? How could they continue administering shocks even after they had every reason to believe that the man was dead and no longer responsive at the highest shock level?"
    Perhaps we might take some comfort in the fact, that though they acted in a way contrary to our expectations or at least our hopes, they didn't like it or feel good about it; though that obeyed the authority-figure had increased heart-rate, increased respiration, increased-blood pressure, cold-sweats, hot-sweats, they complained of all sorts of maladies, their hands shook….. they didn't like what they were doing yet they continued under the authority of a man in a lab coat, representing a prestigious university, telling them, "Please continue. The experiment *must* go on.".

  3. A response to "Darby" from

    I thank you for your response and thank you for the link to the video you suggested. I found it both disturbing and eye-opening.
    I have great fondness fondness for the writings of John Emerich Edward Dalberg (Lord Acton) and I am particularly fond of the quote that you had mentioned. The quote in fullness, may be found in an appendix from a collection of Acton's essays (published posthumously), to the Bishop Creighton Acton is as follows [ ]:
    “No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.
    Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.
    I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.
    Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.
    Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.
    If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress.
    It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.
    The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.
    Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars inelior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.
    Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.
    Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.”

    (Continued in next comment)

  4. Acton's charge is to use the same ethical/moral lens to criticize all historical persons; that a person who acts to kill another person is as guilty, if they hold high-office by war or if they were “private malefactors” by “dose or dagger”.
    I am in agreement with Action's approach; either our analysis has a singular ethical standard which is universal to all persons, or we make various exceptions according to our personal/subjective preferences and affinities or phobias.
    If we adopt the former approach, then rules or “laws” which are arbitrary (: based on random choice or personal whim, rather than any reason or {rational} system) are inadmissible as “law”; if the rule or law cannot be rationally apprehended by those with rational faculties and it must be published and enforced because it would otherwise be unknown, cannot be anything other than arbitrary-decree or the personal whim of a particular legislature, at a particular time, enforced by a personal-whim of discretion of an institution of enforcers and interpreted by a personal-whim of a judicial system.

    Augustine, in The City of God, writes this:
    "Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity. Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, 'What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.'”
    Hearing the pirate's defense, Alexander supposedly was impressed and freed the pirate-prisoner. Augustine is also famously known for saying, “An unjust law, is no law at all.”, that if that which is referred to as “law” is without rational justification (justice), which may be verified by rational apprehension (implied), then it is not “law” at all, but a counterfeit/fraud.


    (continued in next comment)

  5. calling itself “law”.
    Lysander Spooner {No Treason No. II (1867)} echos this same sentiment:
    “No middle ground is possible on this subject. Either 'taxation without consent is robbery,' or it is not. If it is not, then any number of men, who choose, may at any time associate; call themselves a government; assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, taxation without consent is robbery, it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a taxgatherer, that he has to defend it against a highwayman.”
    Spooner's observation is essentially parallel to Augustine's; what is “law” if it lacks rationality/justice but a large & successful gang of highwaymen? What is a gang but a kind of arbitrary-law of its own personal whim?
    I think of your experience with horses and I have very little in the way of personal experience to verify this but my limited understanding, is that horses do not respond well to over-bearing or authoritarian treatment; that horses require a relationship of mutual trust and respect in order to be cooperative. Please correct me if I am mistaken; I defer to your greater personal experience. I wonder if a horse that has not learned to have trust or respect for humans at an early age, grows up, as almost a horse in the wild (but perhaps without the normal fear of humans because of occasional contact) and thus perhaps it is this which causes the greater difficulty of “rehabilitation”. Additionally, I wonder if this horse which has not developed trust/respect for humans and who does not have other horses for socialization, may become somewhat psychologically dysfunctional as those monkeys raised without socialization
    ( ).
    When I read your relating of your experience, I wondered if the issue was not about “yes” or “no” but about trust, connection, and respect. I am of a mind that a person should never “give in” to a request, but do everything with the same joy as a child feeding hungry ducks; with the delight of receiving joy by giving joy, a shared mutual experience of deep-satisfaction.