Monday, November 16, 2009

Principle, that's the key

Here's a comment I posted to Samizdata on this thread:

Rule of law means action and interpretation according to principles, independently of the particular concerns of the actor or interpreter - this is in part what is behind the principle of precedent in common law, for instance. Generally, these principles are established by long and reasoned thought by reference to grander principles, and they in turn to grander still, up to the great principles of morality and just philosophy of law. These great principles, ideally, are discovered objectively at leisure and far removed from the pressing needs of individual cases, and, with that in mind, clearly what makes a given implementation of rule of law good or bad is the nature of those top-most principles.

Rule of men means action and interpretation according to the concerns solely of the actor or interpreter, in disregard for anyone else's opinion or established principles. The actor in question may well indeed have principles to guide action and be well-meaning, but they are disconnected from what was generally understood as a given law was intended to deal with. For that reason rule of men is an evil, even if the principles esposed by the men at the time would objectively be identified as good, because then nobody really knows what the law is and is thus made subject to arbitrary law. Precisely because it is rule by men and not by principles, what one actor does may well be seriously contradicted by a future actor, and who the hell can operate with any degree of long-range concern in an environment like that!?

Rule of principle by means of bad principle is superior to rule by even the most well meaning of men. People must be able to understand what the law is, for good or for ill, for them to make judgement of right and wrong and what to do about it. If the principles in question get really bad then the proper solution is NOT to espose rule by men but to overturn those damn things and establish new principles in their place. Yes, that includes by revolutionary violence if necessary - and that action and what it is intended to achieve must be objectively determined as required and itself operate by reference to principles.

Without understanding of the concept of principle the idea of rule of law will be found either meaningless or at least indistinguishable from rule by men - and THAT, not simply bad principle and not even evil machinations, is what is driving the push for ever more detailed controls over our lives. If you want to put a stop to this, then find out what principle means, what the right principles are, and abandon the ideas of expediency and pragmatism.

I'll expand on it eventually and post the results here.

Note to self - remember to include this blog URL in the box marked URL...



  1. I am now a reader of your new blog. I check for interesting reads also, but I have not participated in the comments there.

  2. Good post John.

    But hasn't precedent (at least the way it is used by activist judges) become the rule of man superimposed over the rule of law?

    Take this story for example...

  3. If I read that right, what we have is the Quebec government trying to dictate the culture (specifically the language in this case), the parents wanting otherwise, and the CSC saying the parents are technically right but they'd rather support the Quebec government's aims, and that they are able to do this because a prior decision has prior established the principle of action it is using, yes?

    The principle of precedent is only one element of the rule of law, and nor does it guarantee justice. In concrete what the CSC is trying to do is entrench the principle of the primacy of government over individuals while paying lip service to another principle (that of the Charter as the ruling law). But in the deeper meaning, this is indeed a shift from rule of law to rule of men because of that first principle it is trying to entrench, where the men in question are those in the Quebec legislature and the judges in the CSC having a preference for government control.

    This is what happens when principles (eg precedent) are floating, detached from broader principles and detached from a thorough grounding in reality and individual rights. The betrayal of the rule of law wont be a sudden switch whole-hog to arbitrary rule of men but a successive collapse in the breadth of hierarchical integration of principles. Without that solid grounding for each principle as connected to the hierarchy and that hierarchy grounded in reason about justice and the rights of man, the path from rule of law to rule of men will include men trying to establish principles of certain men alledgedly having authority to judge or make law as they please.

    Ultimately, the principle of rule of law is not just a set of methods but requires particular content as well. The rule of law, which has no meaning without reference to principles, has to include certain principles as well as the methodology, these principles being individual rights and reason as the sole means of cognition. Without that, the rule of law is precarious, and may either descend stepwise into rule of men or an implementation of rule of law that sees religion as the source of law (which is itself an instance of rule of men in its own way).


  4. Put it this way, Zip, the descent into rule of men is the descent into disintegration. A key path of this descent will be the break-up of principles from being a single integrated structure into a variety of smaller mini-structures that are disconnected from each other but are still identifiably structures. The course of the descent will be via these structures themselves fragmenting in turn. This is part of the broader phenomenon of disintegration and subjectivism we have seen over the last two hundred years, and as explained by Dr Peikoff in the DIM hypothesis.

    Here's the kicker for rule of law - in response, men will increasingly left with no overt guidance in the espoused principles, particularly when two or more mini-structures are contradictory, and as a result they will be left with no option but to pick and choose which structure to follow. The smaller and more disconnected that structures of principles become the more that men will be forced to make conscious choices as to which principles to follow to suit the needs of the moment. This means we will be made increasingly subject not to a set of established principles but the decisions of individual men following whatever happens to be in their own minds - and that is the essence of rule of men rather than rule of law.

    Here's the second kicker - as this happens, the broad mass of normal men are increasingly aware that the result of abandonment of principle and integration is injustice, just as they are aware that subectivism, relativism and the general lack of principled behaviour lead to evils, but since they are not aware of any alternatives to them but religious dogma the result of this is the resurgence of religious belief. This, too, fits in with what Dr Peikoff (and others have noted).

    That's enough for now. I'll get around to putting it all in a single nice post sometime soonish.