Thoughts for Christmas: On Law
The views expressed here are complete outside of what you would see in a regular debate and based on a lots of readings on topics like philosophy, philosophy of law, history of political and legal thought. And so forth. So the arguments are focusing on being reasonable rather than in any academic or jurisprudential context.
Understanding law is a quite complicated topic. Societies with many people — currently 8 billion — can be extremely complicated and so are the laws that regulate them. Because any human interaction bears risk and requires the law to enter into the transaction and proposing risk mitigation.
That non-withstading, there are two categories of law in essence. The law that makes societies possible and the law that regulates interactions among people.
The theory of the latter is very complex in itself. In principle, you need to regulate every possible interaction. You can cut this down by focusing on interactions where there is information assymetry — this creates unjustness — and people are knowing about being taken advantage of. So you need no law, if you nobody knows that they are being taken advantage off and you need no law if there is no reason for dispute. You could argue in a mean manner that law follows money and law will be produced wherever a lawyer can earn money from taking a side in a dispute. This sounds awkward, but it is a good approximation of where law comes in from this side of the isle.
Once you found what you want to regulate, you can choose levels of abstraction. Case law typically provides a high level view and individual cases decide the more nuanced aspects. Contracts and regulations tend to become thick. So people have to pay more money to have complete contracts. The other way is abstraction and subsumation, which is the big pillar of Roman and German law. This area, too, has turned to more case law, because it is impossible to always create abstractions in real time and teach it. This is the result from velocity. Given increasing velocity, and technology supporting law, it is more likely that case law is more appropriate. But that is another debate.
The trick in this part of the law — the one that does not govern society as a whole — is that it has to regulate where there is something to regulate — in order for the lawyer to make money -, but it also encodes injustice because not all laws are enforcable or debatable in court. Process law and evidence issues and power as well as wealth assymetries can make a particular case impossible to argue. If the law requires governments to conduct a certain discovery process, the resource constraints create large black spots in the actual application and enforcability of the law. This leads to law being applicable in “random” processes or cases. And even if the random process selects a particular individual as a target, the process cost of a specific case can cause the particular case to be dropped. So you do have encodings in law that are inherently unjust and caused by economic constraints. Knowing these constraints gives economic advantages to those non-compliant with the law for their own benefit. That is an interesting topic, but not the focus of this article. But because they are focused on law being unjust, they do interfere with the concept of the law that governs society. Namely, if the law is unable to be enforced and there are systematic errors, this can harm the functioning of society.
The more interesting part is that part of the law that governs society. Quite interesting in itself is that first legal bodies in history regulated a lot on the destruction of animals and obscure sexual practices — which appear to have been quite common in their days. But the modern versions of the laws that govern societies can be found in the constitutional law and typically excludes the regulation of sexual conduct and the treatment of animals.
In the construct of what makes proper law, there are several disciplines that are very interesting.
There is the European tradition of natural law. Which presumes an eternal law that will always be accepted as truth.
The natural law had a clear issue in the German contemporary history. It was recognized, that the understanding of which laws are universal could be obscured by group psychology and mass hysteria. The trade-off here was to bring together the core democratic concept of “what the (qualified) majority considers just is likely to be just” and “the majority can turn irrational based on propaganda and group psychology”. The idea now was to label such behaviour by groups as not sufficient to change universal law and to create boundaries to changes to constitutional law. This starts with basic human rights being considered “universal laws” which have been repeated in many forms: from constitution to inter-governmental frameworks as the EU to global treaties such as the declaration of human rights. It extends with clauses of “infinity” where even if the German population would replace the Grundgesetz with a new Constitution, it could not touch these laws. It further extends to the idea that no governmental body — parliament, executive, judiciary, etc. — could ever touch these laws. And even goes as far as to allow citizens to rise up against their government if these laws are being violated.
The problem of such a powerful constitution is occuring if such laws are not taught in schools and people lack awareness of such laws and their meaning. This gives of course rise to abuse of such laws. While the German constitution tried to be as explicit as possible, it was not explicit enough to call governmental bodies interfering with those rights as a proper cause for unrest. Which now is hidden in jurisprudential academic discussions and is even more so largely unknown to the public.
But natural and constitutional law are not the only resources we can go to. We also find very interesting thoughts in the Chinese legal tradition of the school of legalists. The Indian and Chinese legal tradition is far more intertwined with economics and the trade-off between class interests than for example the European tradition. But the legalist school very explicitly talks about the economic and political trade-offs of different classes being overly strong and how government — typically a centralized monarchic government — can create just laws in the face of this trade-off. A just law hereby always has to consider the class interests and associated trade-offs. Clearly acknowledging that a strong oligarchic and economically powerful social class will take advantage of the people to overturn the government. Of course the prosperity of the general population becomes an object and rationale for the behaviour of the monarchic king, but the theories are honest and interesting from the point of view of equilibrium between interests of different social classes.
The interesting point of the legalist tradition is that it acknowledges universal law as well as political realities at the same time. This is something that the European reader only gets from mixing legal discourse with Machivallian political thought. A law is unjust in this case if it does not meet the trade off of political realities between the oligarchy or princes and the general population. This is very similar to the considerations of Machiavelli when talking about how justice deprived populations open the door for populist leaders as well as populist leaders leading to a new oligarchy and general woe to the general population.
The German legal construct has a very interesting construct in private law, which did not make it into constitutional law. The concept is that of the objective third party. A fully informed and fully just third party watching over a contract is a legal fiction often used in private law. But if you blend the legalist view with this construct, you get to a very similar construct in the German post-war jurisprudence. Namely, a law is unjust if it does not satisfy the objective third party, in full sense of its faculties, over any period of time independent from current beliefs and timely misjudgements. The connection then is easily made with natural law bestowed upon by an entity such as God: an entity with complete information, no irrationality, not subject to emotions and so forth.
Now it is one constraint of human behaviour that it never knows right from wrong — an argument brought forward by Kenneth Waltz for example — and hence the best approximation of just and univeral law is the “minimum covering set” of all legal traditions and times in history.
The declaration of human rights is one example of trying to formulate such a minimum set.
Now there is of course another issue in law. And that is one of competition among law-making entities such as states. The end justifies he means fits very well into the framework of the realist tradition. This is the exact reason when we talk about “saving the planet” by moving for the green revolution no matter the cost. It is the justification for more totalitarian governments that aim to preserving the culture and nation by accepting “sacrifice” on the universal law.
A fundamental problem now that we have not solved until now is that of whether the end justifies the means in the face of political realities. Is the survival of the state as a guarantor of culture more important that following the universal law? Or: can deviations from universal law be justified by the goal of preserving the population that aims as the universal law?
This is the most intricate and interesting question that we are facing from jurisprudence. And this is where we see a “Huntington-ian” clash of civilizations is really happening. We do have several religions — including our own Christian one — point out a direction. The most convincing and holistic one we actually find outside of Christianity in the spheres of the religions that stem from Hinduism. In any religion we do have an understanding of right and wrong and in Hinduisim we find very complex discussions — far beyond the Christian or Western religions — on Karma.
If we accept that we cannot reach justice if we ignore the just and right path; or if we are believing in the end justifying the means; then the result of this thinking is that if the political realities lead to the end of the current system if it pertains in serving political interest any means necessary. Or we abandon justice for political survival — and thereby following a Machiavellian and realist approach while accepting Karmic regression.
The question here really is if we accept harmony and justice or if we prefer a law that is serving the purpose of the status quo and class interests. It is really all about whether we want to protect the interests of the beneficiaries of the current class structure, or we want to push ahead for just laws. If everything we do is to pertain the status quo and class interest, we should at least be honest enough to say it.
Being a realist myself, the answer is quite clear. The political interest and realism in the west does care little about justice. It cares about survival and realist interests. That has been the model since we started our journey around 5.000 years ago. And that will remain our focus. And truth be told, this system dominates any other system since 5.000 years.
The consequences are clear. No law can be unjust. The German constitution was a delusional and misleading fiction. And capitalism and its inerests will keep on dominating.
Does this mean US equities will dominate others? No.