Stories, Learning & Place

Wednesday, July 08, 2009

The way of the judge 15/24
   A second reality

“Judging” is one of those words, like “hierarchy” and “authority,” that makes many moderns uncomfortable. Though this is a topic on which Jesus is still quoted, such quoting is often done in an ironic mode, which is the only mode in which “judge not, that you be not judged” can be spoken as a rebuke.

Interestingly, people who are quite bothered by other people’s judgment seem not to have pondered what Jesus meant when he himself made judgment the theme of a rebuke: “Woe unto you, scribes and Pharisees, hypocrites! for ye. . .have omitted the weightier matters of the law, judgment, mercy and faith. . . .”

A person who has been badly wronged will understand his point immediately. Without judgment there can be no justice. A person who has suffered injustice wants nothing so much as an honest person willing to hear his story and to judge, to do the right thing. Postmodernists established distrust of judging as a cultural norm among liberals because judgment ties them to cultural norms not of their own choosing and so they fear it as an infringement of their radical sense of freedom. But they still expect justice from government, just as, I think, they still want their friends to tell them the truth though, in a philosophical sense, they question whether the concept of truth makes much sense. In any case, most people understand that establishing justice is the fundamental task of government.

By the time of the American Revolution, such works as Locke’s Second Treatise of Government (1690) and Montesquieu’s Spirit of the Laws (1748) had made rule of law into the preeminent legitimating ideal for liberals to follow in their attempts to establish and preserve justice. It’s important to understand that the rule of law is not the same thing as rule by law. In fact, rule by law is often the mechanism by which rule of law is undone, as is presently ocurring in America. Under rule of law, law is superior to the rulers and may serve as a check against abuse, while under rule by law, law is merely a tool that may be used by government to suppress whom it pleases through legalistic maneuvers.

Rule of law is nothing other than rule of principle, while rule by law has been used by every unprincipled boss man since time began, using government force to impose his will on others. Constant legislation in response to pleas from businesses seeking protection from competitors or a guaranteed cash flow supported by government policy is a far cry from identifying good principles by which all will be governed and then implementing laws in accord with them.

James Madison and the other founders understood this. Their hope was that it might be possible to establish a constitution made legitimate by the consent of those to be governed, and that such a constitution could establish basic laws that legislators and executives did not have the authority to change. Then, perhaps even a democratic government could be constrained by law, avoiding the tempestuous failures of historical democracies, where lawmakers made rules that favored some groups, leading to contests between groups, until one or another got permanent control and established a tyranny.

Maybe if law could be established based on principles that all groups accepted, the endless cycles of various parties getting control of governments to further their own interests could be broken.

That was the ideal. It was never fully realized, but what was realized was a nation stable and free enough to unleash wealth producing energies that surpassed anything the world had seen. Even when perfect justice is not attained, stable laws are preferable to the whimsical chaos that results when rulers just make things up as they go. People can figure out what works and what doesn’t work if the laws are stable and consistently enforced.

Merchants thrive at the level of law. They know that as long as a system is predictable, people can figure out how to accomplish work that furthers their interests. Merchants also figured out centuries ago that their own self-interest is not harmed and may be enhanced by someone else’s doing well. Enemies are costly but partners are valuable. Merchants excel at arranging things so that both they and those they do business with come out ahead. They see the benefits of cooperation, and, through negotiation, they create larger and more stable systems than are likely through force. Force is costly and inefficient.

Although unregulated markets tend to self-destruct due to the cumulative costs of unscrupulous behavior, markets established by laws that sustain moral behavior provide a vast array of benefits. People devise contracts that render the future less uncertain. They take advantage of opportunities to increase their might, their wealth and their influence.

Negotiation becomes a central cultural activity, and people construct a reality wherein the virtues of intelligence, rationality, flexibility, cooperation and industry are valued.

The more that justice is established–though laws applied equally to everyone, courts organized around discovering the truth amid claim and counter-claim, and rules of transparency that guard against courts from becoming corrupt–the more fear recedes.

Posted by Michael L Umphrey on 07/08 at 02:28 PM
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©2009 Michael L. Umphrey
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