CHAPTER 19

The Future of the Rule of Law

What is the future of the Rule of Law? To answer this questions, it helps to know whence and wherefore it came. I do not propose to trace here the historical development of the Rule of Law since Sumeria and Akkadia, but I will point out that its origin is mythical, mystical, and ancient. 

Oldest Law Codes. The oldest law codes can be traced to Urnammu of Ur (c. 2060-2043 B.C.); the most famous code can be traced to Hammurabi the Great (1728-1686 B.C.).¹ The legal and religious traditions of Mesopotamia and of Egypt were transmitted to the Phoenicians, the Aramaeans, and the Israelites. Many of these legal traditions were ultimately transmitted to Europe through the Greeks, the Romans, and the Arabs.

There is no doubt that the origin of Western Canon is the Books of Holy Scripture -- from the Pentateuch to the New Testament. The Doctrines in these Books were believed to be most Authoritative -- many believe them to be the Word of God. Not surprisingly, they had a profound impact on Western civilization, especially on the doctrine of Sovereignty. But nothing seems to have influenced Laws more than the Solomonic creed: "The rich ruleth over the poor, and the borrower is servant to the lender" [Proverbs 22:7]. The Embedding of this creed into the Laws of the Marketplace, legitimized and secured the fictive right of the rich to usurp economic power from the poor.

The Causa Prima of the New Rule of Law. Most people experience daily the Capitalist vices -- described by Hobbes as "the lucrative vices of men of trade . . . such as are feigning, lying, cozening, hypocrisy, or other uncharitableness."² But most people are still not conscious of themselves as dominated Objects -- as subjugated or indentured Servants. Most still do not know, in the marrow of their bones, that the Rule of Law "Enframes"³ the Solomonic creed -- "The rich ruleth over the poor, and the borrower is servant to the lender" (more on this in Book III). My fear is that people will enter a state of Insurrection against Big Capitalists as soon as they discover that they are nothing but Objects in the Marketplace -- that the laws are designed to preserve and secure the Dominion of the rich over them.

The Unconcealment of the true meaning of the Solomonic creed may very well be the causa efficiens of World War III against the Money Trust -- and the causa prima for the bringing forth of the New Rule of Law.

The greatest danger to arbitrary Authority is from Science. Science emerged as a new way of thinking and knowing in the 17th century. The roots of the "scientific" method can be traced to the deductive methods of Euclidean geometry, algebra (al-jabr), and, most importantly, physics.

How does the scientific method work? First, you start with a theory or model -- a set of consistent, meaningful propositions (hypotheses and axioms) or equations (formulas). Then, using observations, facts, and intelligence (including intuition, logic, and mathematics), you deduce or induce new information and knowledge. Finally, you test the model and its conclusions. The determination of the validity of a model is not an arbitrary process. If any of the assumptions or conclusions of the model are not in accord with Reason and with the empirical evidence, then the model is rejected (or modified). A model must be logical, coherent, consistent, and verifiable. A complete model is better than a partial model. A simple model is better than a complex one. The most impressive models are those of science. For example, all electrodynamics theory is "enframed" in just four equations (Maxwell's equations) and one Law (the Lorentz Force Law). Once verified, The model can be used:

1. to describe or explain empirical observations or phenomena;
2. to infer or calculate new quantities; or
3. to predict future observations or behavior.

Scientific validity is determined from the outcome of objective Testing; the Authority of the Scientific Method is Reason -- not a Sovereign, not a Master, and not a High Priest. Most important, Thinking is not the exclusive property of a chosen few. Reason is a faculty that can be acquired by anyone. All who acquire it benefit from it.

The Secret Doctrine. Voltaire asked: "Who gave us the feeling of right from wrong?" and "when does your reason tell you that there is vice and virtue?" The answer to the first question is "God, who gave us a brain and a heart"; the answer to the second is "[w]hen she [reason] tells us that two and two make four."⁴ This Voltairian prescription -- two plus two make four -- is exactly what Orwell called the "secret doctrine" -- or the antidote to "doublethink."⁵

Armed with Reason, Thinkers like Descartes, Hobbes, Locke, Hume, Voltaire, Rousseau, Kant, Hegel, Russell, and others, started Reasoning from Cause to Effect, and from Effect to Cause -- about Man, Freedom, Liberty, Rights, Property, Power, Laws of Nature, Contracts, Society, Government, Justice, Social Contract, etc. In consequence, a rich variety of concepts of Man and Laws were developed. Let us examine two of them: the first by Thomas Hobbes, the second by Jean-Jacques Rousseau.

Thomas Hobbes. A study of Man and Power led Hobbes to conclude in Leviathan as follows [original spelling retained]:

1. Man is driven by "a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death."⁶ Competition "maketh men invade for Gain"; its main tool is Violence.⁷ It keeps men in a state of War; "and such a warre, as is of every man, against every man."⁸
2. Honor accrues to small families if, in the name of Trade, they "robbe and spoyle one another"⁹; and to Cities and Kingdoms if, in the name of Security, they "enlarge their Dominions" by subduing or weakening their neighbours "by open force, and secret arts."¹⁰
3. Partiality accrues to the great: "violences, oppressions, and injuries are . . . aggravated by the greatnesse" of the perpetrator.¹¹ Inequality favoring the powerful works as follows: "Impunity maketh Insolence; Insolence Hatred; and Hatred, an Endeavour to pull down all oppressing and contumelious greatnesse, though with the ruine of the Common-wealth."¹² Inequality means abuse; abuse degenerates into War; and, in War, the two "Cardinall vertues" are Force and Fraud.¹³

Therefore, to preserve Peace -- to enjoy "commodious living"¹⁴ (Hayek's "English comfort"!) -- a Covenant must be made between the Sovereign and the People. Man accepts the obligation to obey Laws and pays Taxes; in return he gets the Protection of the Sovereign.¹⁵

Jean-Jacques Rousseau. Rousseau disagreed with Hobbes' view of man as "naturally wicked" and "vice-ridden."¹⁶ He argued as follows: it is man's virtue of pity, as manifested by "the tenderness of mothers for their young and the dangers they brave in order to protect them," that moderates "the action of self-love" and contributes to "the mutual preservation of the whole species."¹⁷ For Rousseau, "[t]he true founder of civil society was the first man who, having enclosed a piece of land, thought of saying, 'This is mine', and came across people simple enough to believe him."¹⁸ Such charlatanry is the root cause of "many crimes, wars, murders and . . . misery and horror."¹⁹

Rousseau observed that common interest and common commitments justified mutual help, but that competition generated distrust.²⁰ He argued that equality of men vanihed as soon as man discovered how to exploit the "sweat" of other men; after which, "property was introduced, and work became obligatory."²¹ Subduing others to do work gave rise to slavery. Man's esteem ultimately became a function of his possessions, power, looks, intelligence, etc. "[D]eceitful cunning" and other vices emerged as soon as man learned to appear what he was not²² -- e.g., intelligent and skilled, when he was neither intelligent nor skilled.

Dominion over others by force obsessed the ambitious, the wicked, and the greedy.²³ The "encroachments of the rich" evolved into the "shrewdest scheme" ever conceived by man:²⁴

1. The dominion and control of the rich masters would be expanded through deceit.
2. The nonrich would be persuaded to defend the property of the rich. Slogans (today's propaganda) would be used to deceive the gullible masses into obeying the rich's new rules. The masses would be persuaded to unite against common enemies.²⁵ Justice and peace would be promised to all.²⁶ The masses would be deceived into believing that they were "securing their liberty," when, in reality, they were being enchained.²⁷
3. The control of the masses would be through new political institutions that favor the rich to the detriment of the poor. The law of the strongest -- disguised as "wise laws" -- would destroy "natural freedom irretrievably."²⁸

But for Rousseau, dominion would not be without its problems:

1. Servitude cannot be peace.²⁹
2. Slavery is violence against nature. No contract can divest a person of his or her freedom. Life and freedom are "gifts of nature"; they cannot be renounced "at any price."³⁰
3. Contracts that give benefits exclusively to one party, at the expense of the other, cannot be binding. Contracts are revocable. Unfair contracts can be repudiated -- even if couched in divine or sacred language.³¹
4. The rich are vulnerable "in every part of their wealth."³²

Rousseau pondered the origin of inequality and concluded that "the march of inequality" progresses and degenerates through three stages:³³

Stage 1. Law is enacted to protect the right of property. This divides people into rich and poor.

Stage 2. A magistrature is established. This divides people into strong and weak. Power is usurped through willing operatives.³⁴

Stage 3. Legitimate power gives way to arbitrary power. This divides people into masters and slaves. In this Stage:

• "All individuals become equal again because they are nothing."³⁵
• Despotism and tyranny rear their "ugly head," and rob or ruin everything.³⁶
• Tyranny -- the law of the strongest -- becomes the law.
• The tyrant who maintains himself by force alone is overthrown by force by alone.³⁷

One thing became absolutely clear: to preserve peace, property must be secure; and for this, laws must be obeyed. But: whose peace? whose property? whose laws? under what conditions would laws be obeyed?

Thomas Paine. Thomas Paine, the outlawed Englishman who wrote Rights of Man and Common Sense, provided the following answers: "equality of rights" is the condition sine qua non for peace; "[w]hen rights are secure, property is secure, in consequence," -- and not vice versa!³⁸ Therefore, ill-gotten or plundered property -- property made "a criterion for exclusive rights" (monopoly rights) -- cannot be secure.³⁹ Under no circumstances can the "equality of rights" suffer exclusions, he affirmed, -- exclusion of rights makes the "right of rebellion . . . perfect."⁴⁰

So what is the future of the Rule of Law? The substance and structure of my thinking on this question can be sublimated as follows:

1. Might. In a Democracy, Might ultimately resides with the Majority. Therefore, the Majority will ultimately decide the future of the Rule of Law. And the Majority will Monopolize Justice.

Pascal on Might. Pascal wrote in Pensées: since "men could not make might obey right . . . they have made right obey might."⁴¹

Just as Monopolists control both product and process, the Majority will control both the Law and the Judicial Process. And, just as Capitalists strive to "dissociate labor from the productive process and reintegrate the two . . . to maximize the surplus value produced by the labor force . . . ,"⁴² the Majority will separate or divorce the Money Trust from the Legislature, to maximize Justice for all.

2. Right. Inequalities -- the Legislative, Judicial, and Administrative net advantages of the Money Trust, at the expense of the People -- will be quashed. Darwinian advantages will be preserved; but they will belong to Mankind -- not to Big Business and Big Government.

Legislative Frankenstein Monster. Biologists have long known that "like begets like" -- that wheat gives rise to wheat, and dogs to dogs.⁴³ Hereditary variations and defective genes can be inherited and propagated. Therefore, many disease susceptibilities can be passed from one generation to the next.

The Legal Code is not much different from the genetic code (DNA-RNA-Protein). Progenitor codes can inherit defects from predecessor codes. Therefore, a flawed Legal System can beget flawed Contracts -- and, ultimately, flawed Human Relations, flawed Politics, a flawed Economy, and a flawed Society.

Most social and economic problems can be traced to flawed Legislation, flawed Justice, and flawed Administrative Rules. If the Legal Code is flawed, then the flaws can propagate to all Contracts that are descended from it. The potential hazards from serious legal flaws can be catastrophic to Society. In other words, a misguided Legislature can create a dangerous and uncontrollable Legislative Frankenstein Monster. (More about this in Book III.)

Legal Codes have inherited the primitive flaws that have been bound up with the Solomonic creed [Proverbs 22:7]. Citizens can no longer accept the fraudulent, insupportable, and dangerous proposition that "[t]he rich ruleth over the poor, and the borrower is servant to the lender." The Majority will decide to undo these flaws, and their correlates. This will take some time, but all traces and forms of economic Servitude or Slavery, real or virtual, will be hunted down and destroyed. Thomas Jefferson's work will be deconstructed then perfected. The Principles of Fairness and Reciprocity will ultimately prevail. The rich will no longer want to rule over the poor, and the lender and the borrower will cooperate together for the benefit of both. The emphasis will be on creating new opportunities and new wealth -- and not on plundering other people's wealth.

The Laws will become free from the anachronistic nonsense which conserved power for narcissists -- at the expense of the Majority. The Instinct for Fairness and Justice will become an integral part of the Aim of Life -- because Fairness and Justice will be commanded by the Electorate. The Law will be simplified. Justice will become accessible to all.

There is absolutely no reason why the Legal Code should not fit in a single pocketbook (smaller than the Bible). Administrative procedures will not be hidden behind veils of deception. Taxation will be simplified. The cost of Justice will be brought down to its essential minimum. Life will no longer be a rigged "game of catallaxy."⁴⁴ Everyone will expect rational, fair, inexpensive, and swift Justice.

Litigation in America. Dr. D. Allan Bromley, the former Assistant to the President for Science and Technology in the Bush Administration, and my Ph.D. thesis advisor at Yale in 1973, noted that "while American industry was spending about $76 billion each year on research and development as of 1992, the National Association of Manufacturers estimated that this same industrial sector was spending $118 billion on outside legal services" [Bromley's emphasis]; he then sounded this warning: "If we continue to pay roughly one and one-half times as much on litigation as we do on the creation of new wealth in American industry -- in other words, research and development -- we are on a trajectory to economic disaster."⁴⁵

3. Duties and Responsibilities. Rights will be matched with Duties and Responsibilities. The rights of individuals will be protected from the hazards of the business cycle. Future economic developments cannot be predicted with certainty. But economic and legal hazards can be reduced if the dangers from the business cycle are better understood, and if business cycle-induced failures are prevented from spreading. Big Businesses will not be allowed to transfer risks from their policies to the Citizen. The evidence corroborates strongly the spread of business cycle-induced failures -- from one sector of the economy (e.g., banking and commercial real estate), to other sectors of the economy (e.g., industrial production and small business), and, finally, to consumers.

The basic Liberties of Citizens -- the right to vote, freedom of speech and assembly, freedom of thought, the right to own property, freedom from arbitrary arrest and seizure -- will be expanded to include Economic Liberty. Contracts will not allow creditors, including banks, to arbitrarily destabilize a citizen or a small-business owner, then alienate or seize his property. Institutions will be fair, or risk being shut down. Banks will respect the Economic Rights of individuals and small firms. Most important, banks will have the duty and the responsibility to increase the Economic Stability of borrowers. The current deep inequalities and asymmetries in the power of banks and small borrowers will be eradicated.

Economic Liberty cannot but increase the Stability of businesses and jobs, and, therefore, the Stability of economies. The adversarial and destructive tensions between small businesses and banks will be converted into creative synergistic activity. Only then, will the benefits from Science and Technology increase the real income of families. Only then, will families become rich and have more leisure.

Society's Life and Death Instincts. Sigmund Freud distinguished between two classes of instincts -- Life Instincts and Death Instincts.⁴⁶ These instincts characterize all living substance -- from unicellular organisms to higher organisms. Sadism, Freud argued, is a "destructive instinct." Its aim is to control and "injure the object."⁴⁷ "Moral masochism" is also a "destructive instinct," except that it is "turned inwards . . . against the self."⁴⁸

Could Freud's theory apply to even higher organisms -- to society and mankind? Could societies, like living matter, be endowed with life and death instincts? Could the Money Trust be afflicted with sadism and moral masochism? If yes, then the Legislature will have to favor society's Life Instincts over its Death Instincts. Life Instincts:

1. Free repressed social and economic forces for creation.
2. Create new opportunities, and, in consequence, new wealth.
3. Increase the society's mastery of science, and technology -- and the benefits therefrom.

New Legislature will therefore oppose any potentially sadistic instincts of Big Governments or Big Business as Para-Governments. For example, financial institutions will not be allowed to call, reduce, or freeze arbitrarily lines of credit or loans. Instead, they will be compelled to secure and preserve the Life of the Enterprise -- that is, to support the "self-preservative instincts" (Freud's expression) of entrepreneurs. Instead of satisfying destructive or predatory instincts, banks will become the embodiment of society's will to live, grow, and thrive.

While some may regard the above innovations, borrowed from Freud's metapsychology, as naïve or speculative, the fact still remains that they cannot be easily dismissed or contradicted. As mentioned earlier, direct evidence from Canadian and American bankruptcy statistics reveals a bewildering amount of economic destructiveness in North America.

To sum, let me conclude with the following important thoughts:

1. The Legislature embodies the Society's Life and Death Instincts.
2. The more the Legislature favors Life Instincts, the more the Society can create new wealth and prosper.
3. The life-preserving and life-enhancing Instincts that are enframed in the Legislature deserve our most serious consideration -- especially as we embark onto the next millennium.

4. Fairness. Rawls argued that if "illegitimate force," such as "the coercive apparatus of the state," is used "to maintain manifestly unjust institutions," then, the citizen has in due course a "right to resist."⁴⁹ The citizen does not have the obligation to comply with excessively unjust laws or unfair institutions.

John Rawls' Principle of Fairness. Under John Rawls' "Principle of Fairness,"⁵⁰ one acquires an obligation if two conditions obtain: (1) the agreement between the parties is voluntary (not coerced, or obtained through tricks or deceit); and (2) the parties are reasonably just; otherwise, the "extorted promises are void ab initio."⁵¹

Extorted promises and one-way promises are not binding. But what does this mean? Rawls' position on the rule of promising is clear: "in order to make a binding promise, one must be fully conscious, in a rational frame of mind, and know the meaning of the operative words, their use in making promises, and so on"⁵² [my emphasis]. Furthermore, the parties must not be "subject to threats or coercion" and must have "a reasonably fair bargaining position."⁵³

Rawls held that the "equal liberty" of the parties must be preserved, and the means practiced must be rational -- the agreement must offer mutual advantages and must aim at securing and stabilizing the relationship between the parties.⁵⁴ Without such conditions, it is impossible to maintain a state of mutual trust and confidence.

Following H.A. Prichard, Rawls addressed the fundamental question: how can one be bound to an agreement without a prior "agreement to keep agreements"?⁵⁵ This led him to examine several related issues: majority rule, civil disobedience, and conscientious refusal.⁵⁶ His analysis led to this: "unjust laws are binding, provided that they do not exceed certain limits of injustice."⁵⁷

In light of Rawls' thinking:

• What are we to make of the substantial net advantages of Big Government and Big Business over individuals?
• How much unfairness or injustice should the electorate tolerate?
• Is there any role for civil disobedience?

For Rawls, the decision to change laws or policies rests ultimately with the electorate. The responsibility for "justified civil disobedience," does not fall upon the protesters, he argued, but upon "those whose abuse of authority and power justifies such opposition."⁵⁸ Rawls' conclusion: "to employ the coercive apparatus of the state in order to maintain manifestly unjust institutions is itself a form of illegitimate force that men in due course have a right to resist"⁵⁹ [my emphasis].

ECONOMIC RIGHTS MUST NOT BE DICTATED, CONTROLLED, OR CONSTRAINED BY THE ADMINISTRATIVE PROCEDURES OF BIG BUSINESS AS PARA-GOVERNMENTS. ECONOMIC RIGHTS MUST BE EXPLICIT, IMMEDIATE, AND ABSOLUTELY INALIENABLE. CONTRACTS MUST NOT BE ONE SIDED OR REFLECT THE ARBITRARY WILL OF BIG BUSINESS OR THE MONEY TRUST. RECIPROCAL FAIRNESS IS THE NECESSARY CONDITION FOR STABILITY OF OWNERSHIP AND POSSESSION. MOST IMPORTANT, NO ONE MUST TOLERATE CONTRACTS THAT ARE WRAPPED UP IN VEILS OF IGNORANCE AND VEILS OF DECEPTION.

The Control of Learning -- Mind as Alienable Property. The German philosopher Hegel pondered "the alleged justification of slavery" and "slave-ownership as simple lordship."⁶⁰ He distinguished between two views:

1. Man as natural entity pure and simple, and
2. Man as mind.

The first view was used to justify historical slave ownership; the second to assert that man is capable of taking exclusive possession of himself as property -- simply by being self-conscious of himself as free.

The recent surge in the interest of banks in student loans raises a very serious question: is "man as mind" -- man as educated intelligence, man as a source of innovation and technology, etc. -- potentially alienable as a subtle new form of property?

This cannot be concealed: the Money Trust has discovered a new source of control and revenue. The University is not accessible to all. Millions of college students will be asked to sign student loan agreements. Many will assume that a good education leads to a good job, and a good job to stability and prosperity; but most will have little knowledge of the "metapsychological"⁶¹ dimensions of agreements. Many will assume that a student loan has a worthwhile "economic" value. But, student loan agreements (whether income-contingent, forward-looking means tested, or not), like credit line agreements, mortgages, etc., do not normally come with an owner's manual, or a "topographical" map. Like most people, most students will have little knowledge of the monopolistic practices of Big Business -- or of the "dynamics" of the business cycle. Many will know little, if anything, about the particular biases in the Legal System. Most will not have experienced or witnessed subversions of justice. Many will have no clue of what is or can be suppressed in agreements:

1. What will happen if the student cannot find a job after graduation? or loses the job to a robot, to software, or to a lower-tax jurisdiction?
2. What power and authority will the bank then have over the student? Will he become indentured to the bank?
3. What is the responsibility of the bank if its policies contribute, directly or indirectly, to destabilizing one or more sectors of the economy -- and the job market?

Given the students' potentially vast veil of ignorance, one must ponder: if at the time of signing his agreement, the student is not fully conscious (Rawls' expression) of all the particular information he needs to make a good decision, should the agreement be binding?

The New Legislature will force all institutions and enterprises -- governments, employers, banks, insurance companies, leasing companies, automobile manufacturers, etc.,-- to go through a radical and profound change. All agreements will ultimately have to be fair and bring out into the open all vital and critical information to all parties involved.

NO RELEVANT INFORMATION WILL BE CONCEALED OR REPRESSED FROM THE CONSCIOUS MIND OF THE CITIZEN -- AS EMPLOYEE, AS CONSUMER, AS BORROWER, AS INSURED, AS LESSEE, AS INVESTOR, AS TENANT, AS IMMIGRANT, ETC. THE VEILS OF IGNORANCE AND DECEIT WILL BE DROPPED NOT BECAUSE MALTHUSIAN EVIL WILL STOP EXCITING MEN TO ACT, BUT BECAUSE THE SURVIVAL AND PROGRESS OF FREE MEN AND WOMEN DEPENDS ON FITNESS DERIVED FROM HUMAN INTELLIGENCE AND VIRTUE.

To sum:

1. The Majority will use its Might to affirm its Right.
2. Unjust Laws and Unfair Procedures will be Outlawed.
3. The Censorship of Vital or Critical Information will be replaced with Intelligent, Fully Conscious Disclosure and Mutual Cooperation.
4. Destructiveness and Sadism -- all Nihilistic Capitalist Instincts and Tendencies -- will be replaced with Security and Stability for All Parties to Agreements.

METAPSYCHOLOGICAL FACTORS IN AGREEMENTS

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