13 November 2009

Foundations of law

The following is from The Jacksonian Party.

The following is a white paper of The Jacksonian party.

After spending some time examining the historical documents that examine the law in practice and its basis, I have determined that a better way to describe what our modern, civil law has become should start at a more practical level starting at the basis of what we are, as humans.  From there proceeding to our more modern views of law should give some basis for further understanding what the strengths, limitations and limits of our laws are.  To any who have read at this site, this is more a summary article than one breaking new ground and may be of little interest save in that summary basis.  As there are many aspects of the universe that can only be answered through venues of faith, philosophy and religion I must, necessarily, put those aspects of what the law is off, at least to the point where mankind can formulate those things.  With that said, and not to exasperate phenomenology practitioners, we must understand that we do, indeed, have a form, an existence and a basis of time and space that we experience.

The question of what time actually is, or space for that matter,  I have covered elsewhere when looking at the problems of science in science fiction.  Whatever the general basis for time is, as individuals we must live with the consequences of our actions taken and the universe also reflects that events have happened in one way and not another, albeit others are acceptable in scientific terms, they are not the ones we have to deal with.  Thus our basis is that of natural beings in a natural universe that has had a series of events, large and small, happen to it with the least of that measure being our time alive at the current moment.  As we are physical beings in a natural universe, we partake of the aspects of that universe covering everything from sub-atomic interactions to the motions of galaxies, all of the chemistry, physics and time related events are what we are to contend with.  That entire gamut of forces, energy, space and time are summed up under the concept of: Law of Nature.

This concept often comes with the tag line 'red of tooth and claw', and such is the Natural Universe and its Laws as they play no favorites.  Nature, like Justice, is blind, save that the tools of Nature trump those of Justice as something being 'Just' is a biased view of Nature and Nature, above all things, is unbiased in the whole.  One of the great and age-old questions is 'why do bad things happen to good people?' and never is asked 'why do good things happen to bad people?' or good to the good and bad to the bad.  While our presence in this universe of Natural Law is biased, in that we have personal bias towards certain ends, the universe, in its whole, doesn't care about that, about us or about Justice.  We flee from injustice aimed at us and head towards Nature as it is unbiased and we can craft survival on our own and worry about biased others as part of our greater survival needs.  When we are threatened with doom by unjust society, Nature in its even-handedness towards the Just and Unjust, alike, is preferable to injustice perpetrated upon us by others.  In trading the Tyrant for the Wolf, we go from a decidedly biased organization to one that is merely Natural and we understand that our status varies by our own hand and is determined by our skills, not by our value to a Tyrant.  Thus if we bemoan when 'bad things happen to good people' then we must also recognize the succor and relatively safety of Nature in being unbiased and without Justice.  We cannot cheer for the Partisan resisting Tyranny from Nature and then bemoan that Nature plays no favorites and visits ill upon the Just and Unjust alike, as well as good fortune upon both.

Survival in Nature requires working with what Nature does in the Laws of Nature, and then finding ways to mitigate the actions of Nature or use them to advantage.  Reproduction allows this and reproductive strategies have many facets for survival, although we are used to thinking that only one is best, that is the outcome of a long series of events that get to our using one method and being temporally successful in the present.  Yet examination of Nature shows that many other species use many different modes to reproduce, and they all have varying degrees of success and failure that cannot be predetermined as being successful in the future.  Thus plants give off pollen during their pollination season in the hopes that one, tiny, pollen grain will find its home in the receptive parts of another plant of the same species so as to fertilize it, and that then allows for a seedling to form, drop and suffer the vicissitudes of Nature.  It is not a guaranteed success, per plant, but for all plants it has proven to be a wonderful means of spreading species and causing allergies.  Many sea animals release thousands if not millions of egg to be fertilized by the sperm of their species counter-parts and then those eggs, fertilized and unfertilized, find their fate in Nature.  Some species find this to be ill-suited to survival and tend the eggs until they released a juvenile of their species, and for some that is the extent of their caring.  Fewer still will create bonds between themselves and a mate or their young, or both, so as to spend time and energy ensuring the survival of a few of their young.  All of these strategies are sound, utilize what their beings have as internal structures, and then exploit venues that allow for successfully passing on genetic material from generation to generation.

Most species fail.

Nature's harvest of species represents 95%+ of all species that have ever existed now being extinct.  That is the way of Nature, and no species is immortal just as no natural being is immortal, either.  Our race against death and extinction is temporary, although we do try to make our existence worthwhile and to ensure the greatest chance of survival to our offspring.  This latter, as we have seen, is a survival strategy bequeathed to us by our lineage both ancient and recent.  Within Nature animals within a species have used the raising of offspring as a major way to ensure genetic heritage being passed onwards.  Also within Nature we observe that numbers of individuals of a species of diverse genetic background can come together for self-protection.  Some that do this do it without conscious thought, while others have conscious discrimination although it is driven by instinct.  Evidence of this behavior crosses all lines of species, and is not held just for herbivores or omnivores or carnivores, and even plants that cooperate between members of a species to crowd out other species can be thought of as having this instinct for survival.  Thus man is an animal of nature in that way and our distinctive characteristics are few and telling.

At one time the ability to use tools and create tools was thought as distinctive to humanity, however observation of primates, great apes and avian species now demonstrates otherwise, as they are able to form tools to go after insects in hives and otherwise create direct use tools to do things.  What separates hominids from this is the ability to use tools to create tools and then extrapolate that outwards as a meta-concept.  Recursive tool creation, making tools to make tools to make tools to craft a final, useful item, is something restricted to hominids, of which humans may be the last of that lineage.  That, however, is a hard characteristic to determine and while it sets us apart in thinking it does not set us apart by Nature, which is to say it is a distinguishing characteristic of hominids but not determinative of being human.  Even something like the use of fire and creation of fire falls into this category of distinguishing sole characteristic, but not a determinative one.  You can tell a human does these things which makes that animal a human, but this does not speak to those things which create humanity.

If our tools, use of fire and artifacts do not create humanity, then we must look elsewhere into our nature as being that do so.  This must then be in our social nature as individuals and how we utilize that beyond other animals.  At base our decision for mating, keeping a mate and raising children is not one that is truly unique amongst species, as many species have this in evidence across all species types, although there is difficulty in finding this in the plant kingdom due to the nature of plants being rooted in one spot and having little choice of mates.  Plants may have community, indeed a climax forest of one plant dominating all others points to just such a thing, but it is not one driven by more than suitability to climate and habitat, with some characteristics to crowd out other species for that climate and habitat.  In that the Law of Nature holds.  Amongst other animals we do see conscious choice in mates amongst individuals and this happens in many species.  What is seen with that, however, is the push by intrinsic nature upon conscious decision making, to that end of nature of procreation.  There is an ability to reject mates in many species, and pick and choose amongst suitors from those present and even to bond with a suitable one for life is not unknown.  Humans are not tied to a mating season, however, and our conscious quest for a suitable mate goes beyond any single season or year, and until we can do that and find a way to find good mates via conscious means, we can do without such a mate.  When our means are enacted, either by the further creations that we make to get that decision or directly, we then establish that direct link and create something wholly different from the Natural world.

Our formation of society rests not upon instinct but upon conscious decision outside of the realm of mating.  We may create many things to do this for us in that final creation of society, such as 'matchmakers' but that is also a conscious decision and our ability to say otherwise, as individuals, can still be upheld.  When that decision over-rides personal decision to our detriment, the system is determined to be tyrannical and inimical to us and must either assent to our declining it or we must find suitable society that supports such decisions.  Here the creation of something to sustain that choice, something that is not driven by instinct but conscious thought, creates the thing that few others in the animal kingdom have: society.  Forming society is conscious, driven by our thoughts, and voluntary in that we may choose not to be in a society that upholds certain forms and yet we do uphold that society is necessary to uphold those forms we desire.  While we do create this society in the Earthly realm, it is not held to the Law of Nature alone but to our own conscious creative spirit that is held within all individuals who uphold that society.  When we recognize that we can do this and do so consciously, we set ourselves apart with a distinguishing and determinative characteristic of that subset of hominids known as Homo Sapiens.  To extrapolate out, to add the meta-thought that this is an actual new creation by us within the realm of Nature is something that makes us unique beyond physique and tools, thus creating Homo Sapiens Sapiens and a new order of Law.

This is the Law that allows societies to be created and for our mutual bonds to be upheld by society and to use our natural liberty to seek out societies that uphold such bonds.  This is not Civil Law which is an outgrowth of society, but a greater Law that is one we must hold voluntarily to have society.  At that moment we consciously recognize that we seek out others to be with consciously, that we put a single meta-structure that describes the creation of other structures over those structures we have created a man-made form of Law that is separate from the Law of Nature and yet built upon it.  We could not have such Law without Nature and yet Nature does not provide us with this Law and it is one we must make and discover for ourselves within the Law of Nature.  This Law of creation of society forming at our bond with another person consciously, and consciously creating that bond between us has a name unique to it that is neither the Civil Law nor the Law of Nature.

It is the Law of Nations.

If any other species, no matter how primitive, utilizes conscious thought to create bonds amongst individuals and then seeks to create a further structure to uphold those bonds, which we call society, then they are voluntarily committing to the Law of Nations.  I have examined the fact that we recognized such back in the 13th century and what that means to us, today, in a previous piece.  This concept is foundational to all societies and to all of mankind, and is voluntarily committed to by us, even if we do not know we are doing it either through lack of forethought, lack of knowledge or lack of introspection on the meaning of these things we do.  Yet, even if it is not recognized, not taught, not written it is a Law that is easily described and defined, and as the creation of any society rests upon the Law of Nations it can be rediscovered even if forgotten or even if it is actively not taught by those seeking tyranny over us.  The reason that latter is true, is that it is true in the long run, not the short run.  A successful ideology seeking to enslave all peoples may be able, for a time, to erase the written signatures of the Law of Nations, but because it is founding a society it, also, rests upon the Law of Nations and cannot do without it.  This is why those civilizations that seek to put the imprimatur of a God upon a mere mortal will assuredly fail over time: that we are of Nature is self-evident, and that man is not Divine is likewise self-evident.  Any society that allows such rests upon a deep lie that is contrary to our nature and to Nature itself.  Likewise, any society that tries to 'remake' man into 'perfection' will find the absolute imperfection of the mortal realm as its long-term lethal enemy.  As we are of Nature we cannot be made perfect and will always remain creatures of Nature no matter what we change ourselves into be it a workers paradise or a silicon based platform for thought, neither can do without Nature and has the flaws of Nature within it which is self-evident to thought.

All other orders of Law be it Civil Law created by society to uphold its norms or National Law to unify multiple societies into a Nation State or International Law between Sovereign Nation States, all of them must uphold the Law of Nations as that is foundational to them just as Nature is foundational to the Law of Nations.  What the Law of Nations does is describe those things that we, as individuals, set aside to have in common as a society so that we may have society.  The Law of Nations then becomes the structures that grow up around those set aside liberties and freedoms that we voluntarily acquiesce to having common governance over in society.  There are a large number of things that we voluntarily give up to have society: Private Bondage for Crime, Private War, Private Execution of Law.  Thus we agree that we, as individuals, are not judge, jury and executioner and must abide by the laws created by society, which are the Civil Laws,  as part of being members of society.  Likewise we cannot wage war Privately, which is to say without the sovereign grant of our society, as that would quickly lead to the downfall of all of society.  So momentous an action would quickly dissolve society back into Nature as we set man against man, society against society by individual whim.

At this level of the Law of Nations we find that there is no creation of government as this is the Law necessary for the creation of government, not of government itself.  Some of the provisos, actions, penalties and such that form the Law of Nations do get passed upwards to the organs of society made to administer our few relinquished liberties and freedoms in order to have society.  With society comes governance and the creation of organs to execute those things held in common for our self-protection and the protection of our creation which is society.  These things we enact then have their own realm of Law which is the Civil Law.  By being the laws created by society and common practice of that society, it is local law.  Civil Law varies from location to location, from place to place, from society to society and there may even be multiple different venues of local Civil Law within one locality.  Town, Municipality, City, County and Province or State all overlap each other on local law venues and all execute Civil Law that is local.  Whenever an issue is to be decided by members of society the proper local Civil Law must be utilized to address those needs.  If a local venue at its lowest form of government is not suitable to an issue, it must then either be recognized as not incorporated into the local law or incorporated into a higher level of local law.

Local law is often referred to as 'customary law' and may have areas of it that are unwritten.  The unwritten nature of local law makes it adaptable, flexible and capable of changing due to the changing nature of society.  When such unwritten or 'customary' law is enacted as scripted or written law, it becomes much, much harder to change as it gains structures of government, administration and oversight by the organs of government that are made responsible for it.  If all of life was to become law that is written down, then individuals would lose their civil liberty and become mere automatons of script with no conscious choice left to them.  Yet the creative nature of man is such that not everything can or should be scripted and written down into law for government to oversee.  To do so has been attempted in the past, in India with the Mahabharata and through the various Empires in China in which the administrative class once served as that class that kept absolute restriction upon society so that the structure ruled over the individual.  Such deeply scripted societies can last for decades or even centuries, and yet when one unscripted event happens, the society is at a loss for how to deal with it and creativity is put to use to figure out what is happening.  Some events may fit within the realm of what can be dealt with, say the Shogunate restricting coastal trade with medieval Korea, and yet may collapse entirely, as when Admiral Perry forced an opening for trade in the Shogunate.  Medieval Europe could well be sustained with a numerous feudal class, but when war and plague wiped out a large percentage of that class the survivors were then relatively wealthy having inherited the wealth of the dead and that started a chain reaction that broke that feudal society asunder. 

Thus, as in nature, a society that is scripted may have staying power but little resilience and succumb to the unexpected, as so many species have since the beginning of life on Earth.  Be it Soviet Union, Sun Empire, Shogunate, European Medieval society, Roman Empire, Pharaohonic Egypt, Hittite Empire, Alexandrian Empire, Babylon, Sumeria, Persian Empire, or India under the Mahabharata's dictates, those societies have not withstood the test of time due to the heavy nature of the scripting between classes and individuals.  And each of these conformed to having refined Civil Law at the National level, thus creating National Law.  When local Civil Law has wide agreement within a larger organized Nation State, then those laws may be codified into National Law that is upon all parts of a Nation.  Beyond that there are necessary Public Laws that must address the entirety of a Nation, such as trade, commerce, and how the Nation addresses sustaining the National government.  As highly structured Nations seek refuge in that structure, so they become brittle by leaving too little to local variation.

From the structure of laws at this point, there is the following larger to smaller subsets seen:

First is the Law of Nature, which encompasses all of Nature, entire.  It is the foundation for all laws made by Natural beings and is unbiased.  It is involuntary law and all must abide by it.

Second is the Law of Nations, which is that law which allows societies to form and, from that, Nations.  It is built upon the Law of Nature but separate from it as it is consciously made via our interactions with each other.  This law is voluntary and to be a member of a society, any society, one submits to the Law of Nations so as to ensure one's own safety, the safety of other members of society and the safety of society itself.  While unwritten law, it is easily recreated the moment society is formed and, thusly, is universal to all beings who possess liberty and freedom to form associations and create society consciously. As a structure the Law of Nations is unbiased, although individual societies will emphasize some parts of the Law of Nations over others.  All societies, however, are governed by the Law of Nations and voluntarily abide by it.

Third is the Civil Law or customary law, which is local law of society.  This is built upon the Law of Nations and is the method by which society creates those organs necessary to regulate the body of society on a local basis.  By becoming a member of a society one agrees to abide by the Civil Law and to do so as long as one is a member of that society.  When one is born into a society, one has no choice but to abide by the Civil Law and its consequences.  Upon reaching an age of conscious understanding of society, one may seek to leave one's birth society and seek another society that is more in agreement with the beliefs, attitudes and life outlook of that individual.  That is supported by the Law of Nations via the self-evident ability of man to consciously choose his form of outlook and join with a society that is agreeable to him.  This is the realm of State Law, which is to say the organs of government representing localities that are delegated by society for such government to preside over.

Fourth is Public Law, which is Nation State law, and is the law for an entire Nation as a whole, not in its parts.  Public Law represents the sovereign government of a Nation and that Nation State must abide by the structures set up for human interaction that are defined by the simplest of interactions via the Law of Nations.  Any Nation State is a high stature creation of large societies or multiple societies having broad common agreement on governing principles or other societal venues that bring them closer together.  As such the Public Law needs address the entire Nation State it represents in the continuum of other Nation States.  Thus the Nation State is a similar organizing unit in concept to the local government, but gains absolute independence due to the fact it represents an independent society or set of societies with high common agreement amongst them.  There is no larger or more sovereign power than a Nation State.

This then brings us to the fifth area of law which is International Law.  This is the form of law governed by the universal and voluntary Law of Nations as any Nation rests upon the Law of Nations for its existence.  As such Nation States as representative of independent societies are the sovereign organs of their societies and no Nation State is given preference or higher status within the Nation State system.  With such a system of equals there is no other power to turn to as each society has its own biases, preferences and outlooks that are represented by the independent and sovereign Nation State.  Thus all agreements that Nation States make are enforced only by those organs of society that create the Nation State, and any enforcement mechanism is likewise agreed-to voluntarily.  As such any Nation State may break an international agreement unilaterally, on its own, without compunction nor reason given.  The only repercussions faced are those imposed by other sovereign Nation States, not by a higher authority as there is none.  In this widely recognized accords become familiar to societies and agreeable ways to function between Nations is found, yet this does not mean that they become beholden to those ways.  Any society that finds the ways burdensome, alien or dangerous can, and should, rightly reject them especially when they put an entire people of a Nation at extreme risk and danger.

Summing up International Law, then, requires a recognition that it is a form of sovereign to sovereign contract law with either able to nullify the agreement at a moment's notice as that is the right of sovereignty.  The dream of there being a world state is one that comes against that sovereignty and is a notion that is relegated to the form of state known as Empire.  Any Empire that rules over a disparate set of subjects, climates, ethnicities and so on, soon finds the burden of trying to manage something that large to be impossible due to Civil Law at the local level.  Some Empires have kept such local establishments going with over-arching provisos of the recognition of the Imperial State as the Supreme ruler, but they, too, have fallen time and again throughout history.  The cracking point of all such grand schemes, be it a religious ideology of a single mass religion or a political one of a single world government, fall straight into the diversity of mankind at the local level.  Smaller Nations can, for a time, impose top-down rule as can Empires, but even in relatively limited geographic circumstances the ability of such Nations to continue on without local upheaval dissolving such government is recognized to be nil.  One dictatorial system may replace another, of course, and that has been seen in China, Russia, and elsewhere, which indicates some problems in societal understanding and cohesion more than an affiliation with the love of Tyrants and Despots.  Even then such dictatorial rulers must abide by the fact that they, even in their extreme self-indulgence, must cater to the entirety of their ruling domain.  Anointed Kings have found themselves in the hangman's noose or the mob's guillotine due to such lacks, and today the bullet becomes the end of those who believe that they are appointed to rule, not govern, for they have forgotten their place as an organ of society and in breaching the Law of Nations they find themselves at its sharp end.

If our modern era has any lacks it is understanding that most basic of laws that we create to separate ourselves from the Law of Nature, which is the Law of Nations.  That the Law of Nations only deals with Nation States as a function of our ability to create society, itself, is lost upon our modern culture and society.  There is a deep, dark space in our way of thought that presumes that the Civil Law or Public Law is the most supreme of all laws, and we even ignore the Law of Nature and presume to say that we can now rule Nature when we can not even govern ourselves well.  It is in that darkness that we hear the voice of corruption and tyranny, whispering softly to us that just by entrusting more of our liberty and freedom to governments that all will turn out well.  It whispers to us that mankind can, against all evidence against it, be perfected and is perfectible.  The great sorrow and bloodshed that comes from the voice of unreason sweetly whispering to us is denied time and again, yet the copious dead to the pyre of perfection smells just as rank even if you call it sweet ambrosia.  In believing that we can blame all our lacks on society and all our good will to government, we invert the actual nature of ourselves and forget that what we are saying is that government comes first, society second, while just the opposite is true. 

In this mortal realm we are bidden to seek to be 'more perfect' and understand that the Law of Nature that brings us forth creates imperfection within us and all things that cannot be removed.  No law has been so good that its best practitioners have not obeyed it, and even Moses, upon casting down the Tablets, ordered his fellow Israelites killed against the exact, same dictates he had just carried from the Mount.  Yet when we seek to practice imperfection, to loft up the power of government over society and over the Law of Nations, we will find that this can be done... and then that great and awful edifice will fall, with great loss of life in both directions.  No government is so wise as to be deemed all powerful, as it is made up of men and the creations of man, which are fallible, biased and prone to our corruption to ill ends.  No leader is so wise as to be able to understand the daily lives of each of his subjects nor to rule over them in such a way as to tell each how to live.  No people have created an eternal government full of wise and charitable leaders, that lead a penniless existence and only serve the ends of their Nation State.  It would be humorous that there are those that hint that this is possible, if we could just ignore the gore and horror attendant to each and every time that is tried.  Those preaching this are so wise that they have forgotten the founding Law that makes their existence possible, and then transgress the Law that makes such society as they live in possible by suggesting we don't need it if we only trust the infallible, all powerful, all knowing government that we, poor, frail and imperfect man creates.  And the epitaph of those who preach this seems to be invariant:

"It seemed like a good idea at the time."

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