andie nachgeborenen wrote:
>
> CB: Yes , I am agreeing. What I mean by "legal" is that
> the repressive apparatus of the state stands behind it, will enforce it.
> JKS: That's not right -- first of all, a lot of law isn't
> orders backed by threats but rules that enable you to do
> things. Get married. Transfer property. Make new laws. Just
> for example. These rules don't involve coercive orders at
> all. This is important because much, maybe most of the law,
> is like this. I mean as it affects people's real lives.
>
> And for the coercive sort of laws, not everything that the
> repressive apparatus will enforce is legal.
As noted by Marx in relationship to land tenure, a given state's law is ultimately (and in a more complex way continuously) grounded in the military occupation of the land over which that law operates. Neither you nor Charles is an anarchist, I presume: that is, neither of you would advocate the abolition of the state immediately. But the state cannot exist without both the continuous exertion of coercive power (who would bother to observe an annoying subpoena were there not teeth behind it) and the threatened use (vis a vis foreign powers).
(Actually, I would argue that for a large nation, it _would_ be an effective military defense of its territory to arm the citizens, train them for annoying kinds of guerilla warfare, and establish supply depots for such warfare, then abolish its army, navy and airforce. General Montgomery once suggested as a basic fundamental of western military policy, _NEVER_ land a single foot soldier on the territory of the PRC. But that, true or false, is not really relevant here.)
Your argument with Brian does depend on the grounding of the state in military force. Only that can provide the sort of (partial) civil order within which the LP you advocate can operate. We have 2 million +/- in our reeducation camps at the present time, not counting enemy combatants, etc. (I don't know how many released felons there are -- that is, the total of those who either are now or have ever been to the camps.)
> In short, your theory of law is missing the notion of legal
> legitimacy -- the idea that there are groups or bodies in
> society that have something like a right to make rules that
> they and others will follow, and which should be obeyed
> because they are made by the competent authorities -- not
> just because you'll get in trouble if you break the rules.
It seems to me that your theory of law takes insufficient cognizance of the "extralegal" grounds for "legal legitimacy." One could cite, as marginal but not wholly irrelevant to the debate, the failure of the Constitutional Convention to 'obey' the resolutions which established it only for the purpose of amending the Articles of Confederation. And the relationship of that Convention to such events as Shay's Rebellion.
But the major event to be incorporated into your theory is the Civil War AND ITS AFTERMATH. In some ways _Birth of a Nation_ is very good history indeed. One must ignore _Uncle Tom's Cabin_, John Brown, the Union Army (and the ultimate dependence of that army on black troops), but _given_ those elements as background, the nation I was born into in 1930 was the Nation born as dramatized by Griffith, that is, grounded in the granting to southern state and local elites the (virtual) legal right to rule the former slaves through both formal (police, courts) and informal (lynchings & threat of lynchings) coercion without serious interference by federal authorities. And the death-penalty part of the "Anti-Terrorism and Effective Death Penalty Act" has pretty much returned that power of extra-legal terror to local DAs and police. Witness the recent Supreme Court reversal of a lower court's order cancelling Mumia's death sentence. There is also a SC decision that says in effect (I believe this was a Virginia case) that innocence is not a valid grounds for reversing a conviction in a death-penalty case.
That is, room for qualifying and reversing _in practice_ its own nominal principles is not just a matter of courts not following their own rules. The right of courts not to follow their own rules is built into the rules themselves.
Now my argument is _not_ that these matters are not "just" or not "fair," and therefore should be reversed by 'moral' judges; hence I'm not supporting Brian's or Charles's arguments. I also disagree with Charles that that system could _ever_ be trusted, under any conditions, to enforce Hate Laws. Rather, I'm arguing that the LP you defend is an extremely limited, fragile, and essentially unpreservable form, wracked with contradictions which it cannot, _ever_, resolve. (Nor does it allow any peaceful or legal way to change that form.)
As to its origin in religious toleration. That's not quite right. It became clear to ruling classes all over Europe that they simply could not survive the religious wars, and they gradually knocked together in a rather helter-skelter way some temporary band-aids to shut those wars down. It took a great deal of further bloodshed (including that summarized in a book you admire, _The London Hanged_) before those procedures became established enough to allow for the generalization of ongoing practice (official liberal philosophy) that in an equally helter-skelter way raised these practices, after the fact, to the level of thoery (a theory still incoherent I believe, as I've tried to suggest in this post).
I tried to suggest this in my earlier argument that the history of the last century had exploded "liberal democracy" as completely as it had exploded social democracy or Comintern marxism. I don't see how, in terms of empirical arguments, you can coherently claim that marxism as a mass movement is dead and yet claim that Liberalism is still alive.
Carrol