From: ravi <gadfly at exitleft.org>
miles responds to my question:
> As often as I bring up examples of hunting and gathering tribes to
> illustrate that our social arrangements are neither necessary nor
> universal, the anthropological research supports Justin's point:
> h & g societies tend to be intolerant of diversity (if you
> don't share the tribe's religious beliefs, you're expelled).
> So if you value social diversity, in general, you don't want
> to live in a small hunting & gathering tribe.
ok, to play devil's advocate, does diversity matter i.e., can we come up with a set of moral objectives and beliefs that does not include or require diversity? i sense i am re-opening the debate with this one, and perhaps i need to go back and re-read the thread.
also, like jks i don't know much about anthropology, but from my meagre reading it looks like the opinion seems to swing a bit back and forth (first mead is right, then she is wrong, then she may be right again, and then there's bodley, i think that's his name), no? is your background in anthropology?
^^^^ CB: Forgive the ad hominem of reference to credentials, but I happened to have two university degrees in ethnology. On this thread, I would bring that background to bear as follows:
1) Justin's statement that European liberal capitalism of the modern era represents the human historical high point of pursuit of freedom, justice and democracy is contradicted by the evidence of many societies, such as the groups in the Western Hemisphere. The U.S. got a number of its democratic principles from the Iroquois , for example. In general, anthropolgists hold that bands and tribes, were more egalitarian, and without hierarchies,states. In fact they were based on custom not law, which is precisely people following rules because they are convinced of their legitimacy ,not coerced by state force.
2) A big part of European liberal capitalism's tyrannical and undemocratic historical record is its annihilation of various bands and tribes around the world, especially in North America.
From: andie nachgeborenen
^^^^
> 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.
^^^^^
CB:
The law doesn't enable one to, in the case of marriage, share incomes, have children, etc. with someone else. People can do that voluntarily without the state being involved. Transfer of use of property can be done voluntarily.
The law's involvement with marriage, property transfer , etc. is in the case where there is a _dispute_. Like a divorce or a breach of a sales of property agreement. Then the court will settle the dispute, and the reason it can "settle" the dispute is it has the police and army to back up what it decides, ultimately. Everything the courts do, including in civil cases, is dependent upon the repressive apparatus standing behind it and backing it up, ultimately.
Of course, in everyday life the issue of who has the most force is wellsettled, so people dwell most of the time in a state of mind that the law,court,judge state has some higher legitimacy and wisdom, in general.
They make what they must do palatable to themselves by telling themselves they agree with it. But this is fundamentally a rationalization. Of course, in a given instance a judge may be wiser than a given party. But, there is no general greater wisdom among judges than among the average person. There is no actually greater legitimacy in the courts than in the moralities of individual people.
Anyway, if things are going ok , the law has nothing to do with it. The lawyers are like the undertakers of the living. They are only involved when there is trouble.
To an extent, you are confusing law and custom. Besides Hart, and the philosophy of law, you might want to look at some of the anthropolgy of law, Llewellyn et al. Anthropology is sort of like philosophy with a stronger empirical basis.
Law is state enforced custom. Custom operates based on people believing rules are legitimate. Custom is from prestate societies, so there was no state to enforce the rules. Society had to function based on people taking the rules, the customs to heart. This will be the basis for obedience to social rules in communism too, as the state will have whithered away.
Anyway, our law encompasses some custom, in the sense that people obey it because it makes sense. Like obeying traffic laws or rules.
^^^^
Justin: And for the coercive sort of laws, not everything that the repressive apparatus will enforce is legal. If the cops beat up minorities with impunity, it's not the law that they can do so. They're acting lawlessly.
Moreover, on your view, there's no way to distinguish between the _legitimate_ repressive apparatus -- the cops, whose existence and
membership is after all defined by law -- and any gang of armed thugs. The
Klan. A bunch of bandits. Anyone with a gun who can enforce his will.
^^^^^
CB: Your use of "legitimate" is superstitious. The police and army are not inherently or generally "legitimate". It has to be examined on a case by case basis, but we can not make a generalization that the police are not thugs. They can be good or bad. Depends. Same with soldiers.
There are some police officers who are members of the Klan. This was especially true 40 years ago. Cops and robbers go together.
^^^^
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.
^^^^^
CB: No my theory of law does not ignore that there are people who obey a law because they think the law is legitimate. Of course those people exist.
I'm just not one of them. Or there are people who obey the law because they think the judges are competent. Yes, there are some, but I am not one of them. I obey some laws because I agree with them. But that is not a general endorsement of the process of law making such that I think all laws properly passed are legitimate.
It's like the old thread around here based on Judith Butler's book, and Althusser's thing about why do people obey a cop. I say because she got a motherfuckin' gun on her hip. Butler might say there's an element of self-suppression involved for some people.
^^^^^
Obviously, a legally legitimate law can be immoral. There is no guarantee that just becausea body has the right to make rules that it will make morally good rules. That is true even if the legislative (or whatever) body is democratic -- however you understand that, whether it is elected from competitive parties in a free election, as a liberal would want, or is a dicttotship that acts in the interest of the poor and the workers, as Charles would want (I don't say he'd accept that characterization of his
views). Any government can make bad laws. That's not the point.
^^^^^^^^
CB: And they do make bad laws. That is more the point. Nothing about a government stamp then adds "legitimacy" beyond the fact that if it has the government stamp, ultimately that means the police and army will back up the government point of view. The government stamp doesn't add "legitimacy" to a bad law. It adds force.
^^^^^
The point is that the has to be distinction between practices and institutions we'd count as laws, whether moral or not, and those that are just coercion, whether illegal or nonlegal.
^^^^^
CB: The point is no there doesn't "have" to be such a distinction. And nothing you have said shows that there "has" to be such a distinction.
^^^^^^
I mean, we make sucha dsitinction in ordinary life. If we are robbed, we recognized that someone has broken the law and we go to the cops.
^^^^
CB: The times I have been robbed, I didn't go to the police. I have never heard of the police recovering something stolen in a petty theft. What good would it do for me to go to the police ? The law had been broken. So what ?!
When my son's bike was stolen, I didn't go to the police. I went to a buddy of mine who lives in the area where the theives seemed to come from to see if he might be able to negotiate it back.
^^^^^^
If the cops beat us up, we recognize that they have broken the law and we bring a police brutality lawsuit. If the supreme Court upholds some evil interpretaion of the law allowing segregation or homophobic discrimination, we do what's necessary to change the law -- pass new statutes, try to have the bad decisions overturned.
^^^^^^
CB: How exactly does the average citizen try to have bad decisions overturned ?
^^^^^
But all these activities depend our being able to tell which rules are legitimately law -- even if the legitimate law is also immoral.
^^^^^
CB: People don't have any special problem with telling which rules are laws. Justin poses a false problem here, as if people have first to weed out rules that are illegitimate laws before they can engage in any of the above. They don't come across a rule they don't like and then check to see whether it is properly passed as a "legitimate" law before they try to change it.
^^^^^
Justin: Right, Joahnna, you know I'm a racist . . . . thanks a lot, lady.
^^^^^^
CB: You are not a racist. You are arguing a racist position. The assertion that liberalism has been the most progressive political system in human history is dependent upon an astonishingly racist ignorance of the enormously tyrannical nature of the liberal system in history.
^^^^^ Justin: Charles likes the old-style Communist tyrannies.
^^^^^ CB: Justin likes the even older styled, white, Capitalist tyrannies, purveying the big lie that they are the most democratic in human history.