Wednesday, November 5, 2014

Power and Law: Might and Right

We speak of power, which comes to us from the Latin "potentia", which is also the source of our word, potential.  Power is potential from this perspective.  Power is related to decision.  There are many options, many potentials, but the one with power decides what is to be.

We also encounter these terms in physics, where power is not potential.  Potential energy, the rock on the cliff face, has the possibility of falling and translating its potential in kinetic energy.  The rock has potential energy, but of its own power, it has no capacity to fall.  Someone has to choose to roll it off the cliff.  Power in physics, on the other hand, is the ratio of work over time (work, of course, being the exertion of force over a distance).  It relates to the rate of energy consumption.  When the rock falls, it falls due to the power of gravity.

It is interesting that one reads a good deal of political philosophy, especially the Anglo-English drek, which gives no thought to the concept of political power.  I suspect because we find physical power so widely accepted, we fail to see anything different about political power.  It is the same word after all, so why be suspicious.  But let's consider the loaded gun pointed in the face.  The trigger is pulled.  Death results.  It's not the same when the jury comes back with a verdict of death, is it?  There are appeals, requests for new trials, habeas corpus proceedings.  But let's say the highest court comes down affirming death.  The convict awaits execution, meets with the priest, smokes his last cigarette (unless he is in an American prison), the electric chair is charged, but then at the last moment, the Governor's Office calls and commutes the sentence.  That is power, political power, quite a different thing from physical power.  The Governor makes a decision, makes a call, the life is spared.

But we can think about this situation also.  What if the Warden gets the call and proceeds with the execution anyways?  Perhaps he or she does not tell the others the truth.  Perhaps the Warden reveals that the call was from the Governor, commuting the sentence, but orders the execution to proceed anyway.  If the guards comply with the Warden, then the Warden has the power.  If the guards refuse, then the Governor has the power.

We have to ask where the sense of should arises from?  Should the guard follow the Warden's command or should they follow the Governors?  How would history have shifted if the soldiers had pointed their guns in the other direction?  Note there is no should for the bullet proceeding out of the barrel of a gun.  Political power requires authority and obedience.  It is not enough to issue a command, there must something (although there is nothing in fact) behind the command, something that compels another to follow it.  A governor, a warden, these are just people in roles, and the roles are simply defined by the players.  There is not even a real director.  The roles can be changed or exchanged, not at will, but through collective transformation.  There is no solidity in the whole thing, beyond reverence for custom and tradition.

Charisma is the word that is related to this quality of leadership and authority.  People say charismatic leader, meaning that one follows out of a sense of personal loyalty versus under the acknowledgment of a social defined duty.  We can ask, what is charisma, where does it come from?  We can note there is no comparable concept in physics, unless we look to the magnetic field.  How does a person generate a magnetic field?  Whatever we wish to say about government and politics, can we have any doubt that, at least in its most primitive form, politics has always been founded on this capacity of charisma.  

Political scientists speak about legitimacy.  But what is legitimacy?  I presume a government is legitimate if a functionary of the government, issuing an order that they are authorized to give, issues the order and it is obeyed without question.  If orders are issued and ignored or secretly thwarted, then there is clearly a lack of confidence in the functionary.  Likewise, if any and all orders issuing from a government are ignored or thwarted, the government suffers from a lack of legitimacy.

A political system creates a network by which human beings can cooperate and accomplish collective objectives without thinking or deliberation.  Clearly, the leadership decides on the objectives, with or without deliberation or reflection, but the bureaucrats carry out the orders (perhaps with resistance) and the subjects bear the brunt of the operations of state (taxes, imprisonment, conscription, etc.).  Given that all complex political systems are hierarchical, the few decide on behalf of the many, and the many carry out the instructions.  Further, many more are the passive objects of administration.  Pseudo-Dionysius, in describing the Divine Bureaucracy, assigns three layers (each composed of three layers).  On one level, you need deciders, implementers, and subjects.     

The system works well if there is a sense of identification between the ruling class and the subjects.  If the subjects believe that the rulers have their best interests at heart, they will follow without resistance.  On the other hand, if the subjects believe that their rulers are corrupt or acting against their interests, grumblings, unrest, and even insurrection may rise up.  We have only to consider the Whiskey Rebellion in American History to see this principle at work.  Because political systems are always hierarchical, there is always the need for coercion to make the system function.  The ruling class must have carrots as well as sticks to insure compliance.

Because elites, being elites, inevitably resort to enriching themselves at the expense of the people, and the people, being the people, inevitably begin to bear resentments against the elites, there is an inherent level of paranoia and mutual suspicion in the system, between all levels of the political system.  At the same time, more or less publicly, there is a public proclamation of mutual agreement and sympathy, some of which may be legitimately felt and expressed.  However, in the core of their being, every elite knows and realizes that the day may come when they may be perceived as "fungible", and if their exit is on bad terms, the results may be bloody.  In fact, the more repression the elite deals out to keep the masses in fear, the more likely that the inevitable transfer of power will prove ugly.

But in so much as there is human cooperation, there is the reality of power, and the power belongs to the deciders within the measure of their discretion.  One way that power is expressed is in the positive enactment of laws.  As Carl Schmitt pointed out, legitimacy precedes legality.

One view of the nature of justice is that power is justly exercised when it conforms to positive law, and unjust when it ignores the law.  This understanding may be fine and well, but we must be led to understand that power always enacts the law (or the constitution) in the first instance, power always executes or applies the law, and power always decides whether its application conforms with the written requirements.  Paper rights may in theory protect against tyranny, but paper rights inevitably leave the fox guarding the hen house.  The rule of law may exist in the practical sense of a consistency in legal outcomes, but it results not from the articulation of vague general principles, but from respect and reverence of government functionaries for the traditions and customs of the Republic.  The progressive "expansion of rights" is, in effect, the progressive destruction of the constitutional order.

The so-called "expansion of rights" argues for the abrogation of long-standing practices in favor of the creation of new practices.  The rationale is generally some abstract general principle, but in actual fact, an abstract general principle that was understood one way, e.g. as consistent with an existing form of practices, is now re-conceptualized to forbid existing practice.  Rather than, as claimed, the rule of law restricting the operation of power, in actual fact, these revolutions effectuate the rule of power over the rule of law.  On the other hand, this may be how it should be, or rather, how it always is in practice.  Expansion of rights tracks the expansion of centralized power and control over subjects.

If we leave our analysis at the level of the world, then we can see that might always makes right, because might in the ultimate analysis defines right.  If we stay at the level of agnosticism or atheism, then we must come to realize that the only ultimate reality is power, which in turn defines truth, justice and morality.  The question of whether creation science or evolution is taught in school, for the consistent naturalist, must ultimately come down to which faction possesses control over the national government.  The question of what should be taught serves only as a litmus test over which faction one belongs to.  After all, truth can only be understood as a function of which system of ideas obtains hegemony over the noetic territory. 

Let us entertain an alternative notion.  What if right precedes might?  On one level, this is absurd.  Might always precedes what is defined to be right.  If we speak of right here, we must be speaking of Right, which is by nature undefinable.  If Right could be defined, it would be limited, subject, to worldly might.  Let us suppose that Right exists.  In this case, might could be judged with reference to an undefinable norm of Righteousness.  If might conforms to Right, it is just.  If it deviates, to the extent that it does deviate, it is unjust.  Further, since all positive laws define Right, which is by nature undefinable, it is clear that might must always deviate from true Right.  In other words, life isn't fair.

But what purpose does Right serve?  Say might grossly deviates from Right.  Right has no power.  In order to have power, there must also be Might, an undefinable power, which enforces Right.  But how could this Might and this Right, combined, act in the real world, where might is might and defines right.  If Might and Right exist in combination, then these principles must be incarnate, however so inchoate, in history.  Where might and right coincide with Might and Right, a Nation flourishes.  Where might and right deviate from Might and Right, a Nation flounders and falls into ruin.  The first is the just realm, the second a tyranny.  Here we also encounter Goodness and Truth.  The True, the Good, survives.  The false and wicked destroys itself.  The more wicked the order, the faster it implodes.

What this presupposes is a (super)natural limit on any political order.  Worldly might can define the truth for itself, but worldly might withers in the Sun of Justice, which passes judgment and damnation down upon it.  I am forced to conclude that the existence of Might and Right provides a more intelligible way of viewing human history, morality, and politics, than merely confining our analysis to the positive fact of a constituted power and a positive law.  Moreover, if I am right, then my analysis, even if presently unfashionable, will ultimately prove victorious.  On the other hand, if I am wrong (whatever that means to the mighty), my views might still find favor with might, and ultimately prevail.  In contrast, my opponents views are either destined to be proved demonstrably wrong, or in the alternative, they can only prevail by virtue of a political struggle, the outcome of which to date is uncertain.    

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