EXISTENTIAL PHILOSOPHY OF LAW

A full copy of this essay is available at Academia and at SSRN.

A slave begins by demanding justice and ends by wanting to wear a crown. He must dominate in his turn. — Albert Camus, The Rebel

This essay is a continuation of my closing thoughts in Why Tolerate Law available on the attached Blogroll. Blind loyalty to patrician Hegelian reason and state worship in the form of law as meaning in life is different in degree but not in substance to the theocratic state worship of the East and is a surrender to cowardice not an existential leap from it.

This is a contemplation of the meaning of the universal “law” in its modern sense of nonscientific law: in the universe of language discourse that results in decisions of legality and illegality. There seems to be more to the meaning of “law” than simply a set of rules. For one, calling something a rule instead of a law requires knowing the difference between rules and laws. Second, unlike most sets of rules such as games, one can leave the game to make other games. This option does not exist with law; if one leaves the law or legality, one is either in lawlessness or illegal. I will further contemplate whether this universal can be naturalized to scientific law and seek to determine whether such meaning and naturalization are or can be an existential philosophy of law. This contemplation will require contemplating the attributes of existentialism as they exist in plebeian lives that includes nihilism and not solely from the more popular academic patrician existentialism that excludes nihilism. I do not want this contemplation and any existential philosophy of law to be just another academic -ism, it was have pragmatic value for the plebeian portion of the class struggle that is history.

Existentially, life will always be meaningless and whatever social meaning it has will be forced upon the many by a few. For those few with the power to make their meaning in life the meaning of the group’s life, existentialism gives their will to power freedom to act and makes their struggle existential and aesthetically beautiful. However, for the many upon whom the few force their meaning, existentialism not only fails to give their will to power this same freedom but instead binds it and leaves their struggle to be existential and ugly. Patricians have the luxury to pine for meaning through their aesthetics and then violently either through law or directly to force that meaning on the remainder of humanity, but the plebeian existential absurd hero must not only fight and survive the absurdity of the universe but also this patrician will to power that forces the meaning of their lives upon the universe and all outside their class. For all known history and at present, both struggles eventually involve use of violence, but at least for the moment, the violence aspect is hidden in the behavior modifying techniques of Technological Society. As the plebeian existential absurd hero Don “Wardaddy” Collierand through Brad Pitt ad-libbed: “ideals are peaceful, history is violent”. Empirically, given that class struggle is an unavoidable inherent attribute of all social constructs, plebeians must ask whether it is better to suffer an existential struggle with the universe while governed by the few while living in material poverty in pre-Technological Society or while living comfortably in Technological Society with free time for contemplation of philosophy.

If an existential leap to morality is made, eventually that morality will run into the status of law as an unopposed normative power in the West as the present reality that must be confronted and then accepted or opposed as a good or an evil.

I do not intend to promote or criticize any particular social construct of Technological Society, either political (so-called conservative or liberal versions) nor any of the countless academic myopic constructs pretending to be history varying from feminism to classism to libertarian to post-structuralism to race studies and so forth nor its economic constructs such as capitalism, socialism, and so forth. My contemplation is only to describe the social construct called law that is a universal in all social constructs as a final arbiter of their normative statements. From the plebeian perspective, criticism would be stupid. Modern plebes irrespective of their status as wage slaves or not, of all sexes, kinds, and lives in Western Technological Society, live the finest material and least violent lives in known history. Money may not buy happiness but it buys everything else. At the same time, however, it would be stupid to promote Technological Society because it still maintains the same class distinctions and unequal will to power that all social constructs throughout known history have maintained. Patricians will promote it on their own without our help — despite their pretending to despise it. However, patricians despite complaints to the contrary, will promote it as static condition to remain forever as the ultimate social construct meaning for life in the same way they promoted chattel slavery, feudalism, bullionism, mercantilism, and all the other -ism’s that came before capitalism and socialism and any other social constructs they presently promote. If there is a next progression for Technological Society, it must come through plebeian existential struggles with patricians and not from any patrician existential struggle among themselves. Regardless of whining about despair, patricians are just fine as they are, were, and will be.

COSMIC JUSTICE AND THE LAW

The economist Thomas Sowell is a true working class hero. He was born in the Jim Crow South in 1930 with his father dying shortly thereafter leaving his mother, a housemaid, with five children to raise. As a child, his encounters with white people were so limited he did not know blond was a hair color. He and his extended family eventually moved to Charlotte, North Carolina then to Harlem, New York City. After serving in various manual labor and other odd jobs, he was drafted into the military in 1951 during the Korean War and was assigned to the Marine Corps. After his honorable discharge, he went on to use his G.I. Bill and subsequent educational opportunities to attend Howard University, Harvard University, Columbia University, and the University of Chicago to get his Ph.D. in economics. He is now at Stanford University.

 

In many of his essays and subsequent books, he argues against the concept of cosmic justice that is required talk throughout the American upper class, its law, and its intelligentsia — its social justice warriors — to hide its will to power. He defines cosmic justice in relation to traditional concepts of justice as follows:

For those with this view, “genuine equality of opportunity” cannot be achieved by the application of the same rules and standards to all, but requires specific interventions to equalize either prospects or results. As Rawls puts it, “undeserved inequalities call for redress.” A fight in which both boxers observe the Marquis of Queensberry rules would be a fair fight, according to traditional standards of fairness, irrespective of whether the contestants were of equal skill, strength, experience or other factors likely to affect the outcome– and irrespective of whether that outcome was a hard-fought draw or a completely one-sided beating. This would not, however, be a fair fight within the framework of those seeking “social justice,” if the competing fighters came into the ring with very different prospects of success — especially if these differences were due to factors beyond their control.  “The Quest for Cosmic Justice” by Thomas Sowell

I have spent most of my life disagreeing with him, but I must now admit at least partial error in my disagreement. Gradually, as I have gotten older and fortunately or unfortunately my idealism has been diluted by pragmatic reality, I have learned to agree with him but only to the extent of rejecting cosmic justice in the rule of law but not as a normative goal through social and cultural goals that existentially may never be achieved. The existentialist absurd individual who has made a leap into morality as an individual dealing with other individuals in daily life must continue to struggle for cosmic justice as an end in itself with its own independent meaning. As I have argued before in this series of essays, social economic classes are a necessary part of human social group struggle against the universe. We need to admit their existence in order to minimize their unfairness and for society to prosper even though existentially I will always protest their existence in reality.

 

One objection to Sovell’s arguments is that even traditional concepts of fairness such as those exhibited by the rules of sports incorporate pragmatic means outside the rules to make them fair. For example, in boxing there are weight classes. It would not be considered a “fair fight” for a 135 lb. lightweight to be matched up against a 235 lb. heavyweight. These types of class distinctions are made in all rules of sports varying from baseball with its various levels of amateur and pro playing to golf with its handicaps and onto Formula and Moto racing with classes based on engine size. Mr. Sowell seems to admit to the validity of this objection in some of his other writings and implies the need for a social equivalent to sports classes. For example, in his criticism of affirmative action, he argues it disadvantages the lower classes because they cannot compete on the same level as upper class college students and thus drop-up at higher rates; he argues they would be better off attending a college with others of their class thus allowing them to graduate and work up to upper class education. “”Affirmative Action Around the World” by Thomas Sowell.

 

Furthermore, as a young man, I objected to his argument because I took on as a moral code the classic so-called Warrior Ethos: “I will never leave a fallen comrade.” Why should I leave any fellow workers behind in my battle for victory over the powers-that-be, especially if I win the battle or the war? Is that not also the Christian Ethos: “We who are strong ought to bear with the failings of the weak and not to please ourselves”? Romans 15.

 

My first step to agreeing at least partially with him was my military service and reading of military history. Turns out warriors leave their comrades behind all the time. The trials for cowardice of the Battle of Arginusae generals for leaving stranded drowning sailors behind and the Marines dragging their frozen dead with them as they retreated from the Battle of Chosin Reservoir were a rarity in military history including Marine Corps history and for all military units in world history, on land and on sea. During hasty retreats, leaving behind the wounded, the dead, and the equipment while running like hell was much more common.

 

Next, I was changed by my years spent in the American system of injustice. In it, though one might occasionally win a battle against the powers-that-be, in the end, one always lose the war. The law is full of talk of diversity, victims, and social justice but the end result is the same as in all systems of injustice throughout history: maintain the power of the status quo. The reality of cosmic justice at work in the law is twofold: 1) changing from time to time whom it advantages and disadvantages so as to keep competing social groups including the male and female sexes in constant conflict; 2) transforming being a victim of injustice, including its own, into a culture of victimization that gives meaning to victims’ lives and to those who want power over them so they do not become motivated to force real change in life. In fact, many cosmic justice warriors and their camp followers are more happy in their culture of victimization and poverty than I have ever been or will be in fighting to avoid it; so much so that they are willing to promote and procreate their myth onto messing up the lives of posterity.

 

One clear example of this process at work is American Indian culture — a fabricated culture that does not really even exist. If there is any meaning to the words “American Indian” other than to give upper class Americans and their intelligentsia something to pity, it would be only to reference a particular trial culture, i.e., Cherokee, Navajo, and so forth. However, these tribal cultures died out long ago with the best and brightest individuals of those cultures long ago having mixed into American culture as all other immigrant groups of the past have done and as occurred throughout history between conquerors and those conquered. What remains of those dead tribal cultures consist of a bunch of modern day Americans pretending to be tribes as a source of meaning in their lives and as a means to get government assistance. American Indians are the most impoverished social group in the country and statistically lead in single parent households, mental illness, child abuse, crime, drug problems, and education dropouts with a resulting lead in juvenile crime. Yet, their so-called leaders with their will-to-power need to protect their fiefdoms of power on government provided reservations continue and foster the farce of American Indian culture. At any level of power, those in power, including the big fish in the small pond of American Indian reservations, will convert any intentions — either good or bad — into a means of power as an end in itself, even intentions of cosmic justice. No good deed will go unpunished by the powers-that-be if they can use it as a means of maintaining their power or of obtaining more power.

 

A future example of this culture of victimization will be the black Americans left behind by their upper class brothers and sisters using new school racism as a means to get and stay upper class. Please see my previous essays on New School Racism. As I predicted in those essays and in greater detail in “Between the World and Us” (that is already coming to life by the demands of black Harvard University students for a separate graduation ceremony for black graduates), the solution for racism by Ta-Nehisi Coates and other black members and friends of the upper class is: establish a separate but equal education system for “black bodies”, letting black men commit self-genocide by continuing to kill each other, letting black women raise families by themselves, and creating black ghettos with the help of a new 21st Century slave master: government. Thus, thanks to cosmic justice warriors, we have come full circle: the solution to racism will be racism.

 

For any working social construct concept of fairness to be useful to humanity’s struggle with the universe to survive, as with fairness in rules of athletics and other sports, it must accept the presence of social economic class struggle as a present and future necessity. This presence is not a basis to create laws giving preference or preventing discrimination among class as occurs with all preferences present in civil rights laws serving only to hide class conflict while aggravating it. The acceptance of the necessity to have class conflict is necessary as a basis to eliminate and negate such law in order to allow classes to work and struggle within themselves for individual success and to compete with each other for overall social success. Civil rights laws result from the arrogance of the Orwellian High who view workers as hopeless idiots doomed to a life of misery, drug addiction, violence, and meaningless deaths without their aid and control. Billions of Orwellian Middle and Low throughout history have loved and been loved and have struggled and triumphed in every day struggles for life, property, and liberty. These struggles have created modern Technological Society. As basic fairness, this Society must allow us the freedom to continue our struggles among ourselves to control the present and future of the Technological Society our struggles have created.

 

A cosmic justice concept demanding illusionary equality for all enforced by the law’s monopoly on violence at the expense of equity for all through social and cultural pragmatism helps only the powers-that-be. The first stumbling block for application into Technological Society of Sovell’s “genuine equality of opportunity” with social economic class acceptance will be the law. How can we bring this pragmatic concept of fairness to life in the present delusional reality of the American system of injustice in which law negates and then demands a monopoly of violence for its power of negation of all social and cultural norms other than its cosmic vision of justice?

WHY TOLERATE LAW?

A full copy of this essay with all parts is available in Academia and in the Social Sciences Research Network: Essay in response to “Why Tolerate Religion” essay by law professor Brian Leiter

Initially when I started reading Brian Leiter’s “Why Tolerate Religion”, my first impression was that I had found one of the rarest types of lawyers especially of the academic type: one with a sense of humor. As I continued, my impression of dark humor changed to his being factious, then he was gloating, but finally I was forced to conclude he was serious. The timid, cowardly, and fainthearted response by the American religious and legal culture in essence lamely trying to justify nonexistent toleration, “special” or otherwise, worsened the tragedy of his question and answer. In Western Technological Society, the law does not tolerate religion in any sense but a nominal one and most certainly not in any normative or pragmatic sense, the only senses that matter for either law or religion. Western Law has negated and displaced Western religion to become the only normative power in Western Civilization. The realistic question that should be asked is why tolerate law qua law: what principled argument is there for tolerating law with its special monopoly on violence? If this special toleration for the law is really just a categorical demand unhinged from reason and evidence then by Leiter’s own reasoning, it is a religion with its own morality and demigods not entitled to this special toleration. Realistically, without Western law and Western religion giving each other special toleration as separate but equal communal normative powers, the former violent and the latter nonviolent, either is a tyrant willing to kill the innocent for power and there is no principled argument to tolerate either.

“There are some ideas so absurd that only an intellectual could believe them.”
― George Orwell

 
I. PROLOGUE / THE NATURE OF THE QUESTIONS

 

Having grown up lower working class in which the only source of hope in life was through religion, and then working my way up through military service eventually into Harvard Law School, and then 25 years of solo-attorney trial practice in the miserable trenches of the American system of injustice, I am fully aware of the power and weaknesses of both religion and law. For all but a small minority of humanity, the existential question we should ask of law and religion is why we tolerate either. Neither should have the audacity to question the other’s communal authority to which neither is rationally entitled. This reality should be undisputed in Western so-called “Realist” philosophy of law and jurisprudence that supposedly recognizes two separate but equal normative powers: the law is law and not morality; morality is morality and not law. Despite such existential and legal reality, a philosopher of law Brian Leiter gives fallacious answers that have little connection to reality to his question “why tolerate religion” while assuming that tolerating law is a given.

 
In asking his question, as easily could be predicted, as is true of most academics’ myopic view of life, though Leiter and his school of philosophy readily make distinctions as needed between different word meanings, wordgames, legal systems, laws, rules, philosophies of law, philosophies, moralities, obligations, principles, and much more, to him and to Western Law, they consider all religions the same and assume they can be lumped into a bound variable called “religion” they can judge and give value as the law deems necessary in its wisdom. Then, using popular cliches lacking any philosophy of language, he gives the existential attributes or values of this bound variable “religion” to be: “categorical demands that are unhinged from reason and evidence”. Amazingly, despite philosophy of law having spent more than a hundred years unsuccessfully arguing about whether “law” is a universal, in a few pages he has no problem telling us not only the ontology of religion but doing so while leaving out its most important attribute: a communal social construct just as is law.

 
While Leiter digitally compresses the nature of religion to its supposed essence in order to contemplate toleration, he cannot be bothered to define and tell us in any analytic sense what he means by “tolerate”.

 
Based on Leiter’s ontology of religion, faulty logic, hidden premises, and a confusion of word meanings as necessary to reach his predetermined answer — an exemplification of jurisprudence at work — the answer to his question was also readily predictable. He answers that as a matter of noblesse oblige within “limits of religious toleration” as decided also by law, the law should not grant religion qua religion any special toleration or protection but simply place it alongside any other toleration the law in its wisdom decides to give to matters or liberty of “conscience”. If and how this answer is to be enforced on society and pontificating on what “liberty of conscience” entails is left for another day.

 
The timid, cowardly, and fainthearted response by the American religious establishment to this Why Tolerate Religion essay is consistent with all of their other surrenders of the past hundred years to the power of law — that is supposed to be its equal in power — thus indicating the question and the answer to be facetious and gloating at best. In Western Technological Society, the law does not tolerate religion specially or in anyway; instead, as a secular religion with its own irrational disguised morality and demigods, law has negated and displaced religion to become the only normative power in Western Civilization. Realistically, in the law’s path of displacement are all other moralities or matters of conscience with the intent being to have law reach perfection as a power no longer existing as a means but as an end in itself. As admitted in some of Leiter’s other essays, this path is not governed by naturalized analytical thought but by elitist sympathies pretending to be Nietzschean existentialism that are really a Hegelian world view — the ultimate enemy to any existentialist free and open society.

 
Leiter’s question raises serious questions about the power of law that should be asked by both nonreligious and religious. Why is law allowed to pretend there is a universal thing such has “law” with nonlegal obligations — disguised morality — making categorical demands less “unhinged” from reason and evidence than the morality of a thing called “religion”? How is it that modern Western law, itself a creation from the forge of Western Religion’s power struggle within itself and with secular power to live on this earth with Christian morality but not of this earth, has the audacity to question its toleration of what is supposed to be its normative equal while Western religion lacks the courage to ask likewise of its creation? How is it that Western religion, Western Civilization’s communal attempt to give not only metaphysical but physical meaning to the fire of time and space in which humanity burns, has become subservient to the secular religion of law created by a minority to force their power upon the majority through a monopoly on violence? How is it that philosophy of law though neither rational, analytic, nor scientific is allowed to continue to pretend it is all three? How is it that for modern American law school intelligentsia, elitists such as Nietzsche and their cowardly version of the existentialist view on reality, individual human life, and open society have greater value for philosophy of law as motivators then the courageous version of existentialism of an Albert Camus or Soren Kierkegaard or even of nihilism? Is it time for existentialism to step out of the shadows and create its own philosophy of law? Why tolerate law?

 
The answer to the last question will turn out to be relatively straightforward: there is no principled basis to tolerate law qua law but only because the law tolerates religion and vice-a-versa. If the reciprocity does not exist, no one has any obligation to tolerate either. Without such reciprocity, the dominant one is a tyrant, either a legal one in the Roman dictatorship sense or an illegal one — it does not matter, a tyrant is a tyrant to whom we owe no rational obligation to tolerate.

 
To contemplate these questions and to lay a foundation for an existentialist philosophy of law, one must first understand the elitist and mostly delusional history of modern philosophy of law and associated jurisprudence and the fork-in-the-road duality of existentialism in modern technological society that separates hoi polloi from those in its Orwellian Inner and Outer Parties such as Leiter and his colleagues. In order to understand how the law has gotten to powerful position of being able to question its tolerance of religion without expecting a reciprocal question from religion and of the significance of such power, one must have a clear realist not Realist understanding of modern philosophy of law, the history of Western Civilization, and of the particular elitist school of existentialism hidden in modern law and modern Western academia pretending to deny the pragmatic value of all morality but its own — including its fraudulent wordgame pretending that its “nonlegal obligation” has a meaning other than morality. Such an understanding must not be solely an academic understanding intended to stand and be judged solely for its aesthetic value as is the case with most academic nonscientific work including all schools of philosophy of law but must be a pragmatic one.

FROM A TRIAL ATTORNEY’S PERSPECTIVE: TWO DOGMAS OF LAW SCHOOL ACADEMICS AND THEIR EFFECT UPON THE FUTURE OF LAWYERING

A full copy of this essay with all parts is available in the Social Sciences Research Network: SSRN  and in Academia.

 

Modern law school academics in the United States are dominated by two major schools of thought: law and economics; critical theory. The most recent popular version of the latter calls itself critical realism. Both schools are conditioned upon two dogmas they claim must be recognized by jurisprudence and policy decisions in law. In critical theory, its foundational dogma states there exists a fundamental empirical distinction between situational influences and individual influences. This dogma exists in law and economics by a multiple of names, all making the same fundamental distinction but in disguised form. For this school, situational influences are dogmatically defined as simply a set, sum, or collection of individual influences. Both schools of thought share another dogma: a belief that normative statements can be derived from empirical statements. Academics and their believers in both schools want to be anything, such as economists, psychologists, anthropologists, sociologists, physicists, and onward, anything but lawyers for whom they both exhibit nothing but contempt making me at least wonder why they went to law school in the first place though I suspect the answer is for the power. As a practicing attorney my whole career in law, I write this essay as a representative of a dying breed (perhaps justly so): trial work and the art of lawyering. Both dogmas and the contempt for the practice of law that goes with them are not only worthless to jurisprudence but the constant bickering over them and associated paper churning verbiage lacking substance pontificated by those who are the law’s teachers serve only to destroy the credibility of jurisprudence and its usefulness for maintaining and passing on to posterity a free, prosperous, and open society. These dogmas and their contempt for the practice of law prevent progress in jurisprudence from catching up and paralleling scientific learning, an update it desperately needs if it will ever be anything more than the under-laborer for the few who are or want power over the many.

 
I. INTRODUCTION / THE NATURE OF THE PROBLEM

 

As I will analyze next in this essay, even in the simplest of problems in jurisprudence such as the proverbial “gun-to-the-head” case examples, the dogmas at issue do nothing useful but serve only to blind the search for the forest by concentrating on the trees. I will concentrate my analysis of the first dogma in the form it exists as a foundation for the new fad of critical realism because this analysis once understood will easily translate into an analysis of the equivalent dogma in law and economics that has had much more time to hide itself in the trees. For this purpose, I will reference examples of the dogma at work in the law review article entitled “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture” by Professors Jon Hanson and David G. Yosifon as this article seems to be the first gospel and foundation gospel for the bible of critical realism. I will refer to it as the Situation.

 
Though nominally hidden, the second dogma is substantively and essentially the same for both critical legalism and law and economics thus the analysis will not need to be split.

 
The Situation article begins with, contains within it, and ends with pages of warning and advice on how the readers need to open their minds, contest their most “reassuring self-perceptions”, read “mindfully”, and avoid being hypocrites who attach to other persons ignorance of truth while ignoring their own ignorance. After which, the authors of the Situation routinely, constantly, repeatedly, and to all indications unknowingly proceed to violate all of this warning and advice. I do not want to repeat their lecturing and risk becoming a hypocrite myself but it is important to have some sense and analysis of the hypocrisy involved to get an appreciation of the harmful, blinding effect these dogmas have upon jurisprudence and lawyering, in fact, upon basic reasoning skills and rational argument.

 
The nature of the problem of these blinding effects on both the substance, essence, and credibility of jurisprudence are most evident when the critical realism authors of the Situation try to be physicists instead of lawyers at pages 155 – 56 by using a “thought experiment” involving plane travel and then at multiple pages beginning at page 206 where they pontificate about the Catholic Church’s initial rejection of the physics of Galileo as an example of “capture”.

 
The plane travel “thought experiment” depicts an airplane passenger getting up from his seat, traveling to the bathroom, and returning fifteen minutes later. The authors than ask you to “estimate the distance that the old man traveled between leaving and returning to his seat.” Now, if you are a reasonably prepared, reasonably educated trial attorney with some diversity in life experience, you would immediately note that this question at a minimum lacks a proper foundation, is misleading, misstates the facts, assumes facts not in evidence, and, even if these problems as to form are resolved, is a question that only would be relevant and have probative value for any reasonable inquiry into truth if asked of a qualified expert witness. However, the authors as law professors are not trying to be lawyers, they are trying to be physicists. As physicists, they answer, “If you are like most people … you estimated thirty feet. A more accurate estimate, however, would be roughly 1000 times greater than that — approximately 150 miles. In other words, most people see the man moving within the plane, but miss his situation, the plane itself. … Indeed, when one takes those additional situational forces [movement of the Earth, solar system, the galaxy, the universe] into account, the old man moved … something closer to 350,000 miles.” As a trial lawyer, my first instinctual response to this individual/situational distinction is, “how is a traveler walking on an airplane” any less “situational” than an “airplane flying on the earth”? I am getting ahead of myself. By admitting the question into the evidence considered in the Situation, the authors prove themselves unskilled trial lawyers; by allowing the answer in, they in addition prove themselves unskilled physicists even at an amateur or sophomoric level.

 
If my above lawyering objections were resolved and then only an expert witness physicist was allowed to answer the question, the first answer would probably be a question: “I cannot answer your question as posed, do you want me to use classical physics or modern relativity physics?” Since the Situation seems to love Galileo, to be consistent with that love, I answer “please use classical physics.” At which point, the answer would probably be another question: “what inertial reference frame do you want me to use?” To keep things simple, I would answer “use the plane”. To which the “truth” would be “approximately 30 feet”. If I had answered, “use the earth”; the “truth” would be “approximately 150 miles.” If we really wanted to challenge our “thought” instead of playing academic games, I should have answered his first question “please use modern relativity physics.” To which, the physicist would have responded with another question, “what coordinate system do you want me to use and from what coordinate do you want me to measure?” In response, if I had answered “from the coordinate of the traveler with his point and coordinate remaining the same in any coordinate system”, the “truth” would have been “zero distance traveled”. What would have been the physicist’s answer if I had asked the witness to use pure quantum physics without simplification for scale? Engage in a real thought experiment by finding this answer yourself, learn something, and thus do something the authors of the Situation for some reason could not be bothered or could not do.

 
If the plane travel “thought experiment” had been approached from a lawyering perspective, we would have had an actual thought and learning experience. Instead we got a differentiation between the “individual” situation of the traveler and the “situational” situation of the plane, earth, and so forth. A differentiation that no physicist would make because to science one inertial reference frame or coordinate system is as good as any other. Which one to use is relative to what they are trying to predict. So, again, “how is a traveler walking on an airplane” any less “situational” than an “airplane flying on the earth”? Is it simply because the authors of the Situation want it to be distinct in order to prove their argument that they are distinct? These questions are not considered in the “thought experiment”, apparently it is assumed that this distinction is either self-evident or accepted based on their authority — that is, the distinction is dogma.

 
The enormity of the blindness to reality, despite calling itself critical realism, involved from such dogma is more evident in the Situation’s dealing with the Catholic Church’s initial rejection of the physics of Galileo that goes on for pages of verbiage that says nothing.

 
So, how does the Situation cover Galileo? Do they act lawyerly and thus review, examine, and cross examine the best evidence: the hearing records, expert submissions, evidence, and documents of the inquisition of Galileo still available for review and much of it on the internet? Do they take evidence or testimony from historians, theologians, and physicists on the subject? No, apparently there is no need for that. After all, they are not just lawyers, they are historians, theologians, and physicists; so, they quote hearsay from other lawyers and tell us themselves what happened as self-evident truth. According to them, what happened is “capture.” The Catholic Church was one of the mighty powers of the 17th Century. Galileo, while a student and then a professor teacher at two Catholic universities was a free-thinking lover of truth with a new “true” idea of the nature of our solar system but this “individual” influence on society was powerless against the “situational” influence of the Catholic Church whose power allowed it to distort and twist the academic and scholarly experts of the times to its irrational purely religious view of the solar system. As a result of this alleged capture, the authors tell us, an innocent individual was wrongly persecuted and silenced by Pope Paul V and a Cardinal Bellarmine denying society the “truth”. According to the Situation, if not for this “capture” of the expert witnesses who testified and of the evidence presented at his inquisition, the experts would have supported Galileo and the truth would have been known earlier and without punishment of Galileo. According to the authors, this “answer is obvious.”

 
Whoa, a powerful concept this “capture” based on this distinction between individual and situational influences. Again, as a lawyer, my initial instinct is to ask how are Galileo’s teachings reached during years of study, examination, and teaching using the resources of two Catholic universities an example of “individual” influence whereas the Pope and Cardinal’s teachings reached as a result of years of study, examination, and teaching using the resources at Catholic universities “situational”? There may be a difference of degree, but how are they different in kind? Does this distinction mean the Divinity School and the Philosophy Department at Harvard are “situational” influences whereas the Law School and Economics Department at Harvard are “individual” influences? Has anyone told the theologians and philosophers at Harvard about their situational power over law and economics that I suggest would be a surprise to them? Is individual influence the egg and situational influence the chicken? If so, which set of teachings is the egg and which the chicken? Which influence came first, the egg or the chicken?

 
Perhaps it is just a question of power? In his time, Galileo as an individual obviously had less power in every respect than the institution of the Catholic Church, but this would not be true of the individual Charles VII, the Emperor of the Holy Roman Empire, nor of the Pope. If it is an issue of the degree of power controlled, then we should call it an issue of the degree of power. Galileo had little individual power because of his situation as a student and teacher, Charles VII and Pope Paul V had large individual power because of their situations as emperor and pope. We can describe both sets of power honestly and truly either as “situational” or as “individual” depending on the speaker’s intentions not upon any fundamental difference in the nature of “power” as that word is used in English neither in the circumstances of “capture” nor to the extent anyone advocates for its inclusion in jurisprudence. If “capture” means the Catholic Church was more powerful than Galileo, than should we just say so and get on with a Marxist analysis of law as simply a monopoly of violence and forget about the useless word “capture” based on the useless distinction between individual and situational influences whose use is dependent solely on the intent of the speakers not on the facts spoken about? The authors do not consider these questions. Again it is assumed the “answer is obvious” as either self-evident or based on their authority — that is, the distinction is dogma, the same as any dogma issued by the Catholic Church or any church.

 
Instead of being a historian, theologian, or physicist, let’s try to be lawyerly and engage in the critical thought and examination of the alleged “capture” of Galileo’s “truth” that would be required if it ever came up as an issue for trial. I should start by seeing what theologians say about it since it is a theological issue but I am practical enough to know that raising theology in an essay submission to the closed-minded culture of law school is a guarantee that it will be trashed. I actually hope and want someone to read this essay some day, so I will ignore theology.

 
What do historians tell us about the Galileo Inquisition? Historically, what happened is that Galileo while a student and then a professor at two Catholic universities developed a heliocentric theory of our solar system that he could not support at the time by any evidence because the necessary math and physics had not as yet been created and developed. The Church had a formal, open hearing on the matter in which Galileo was allowed to face and to respond to his accusers consisting of qualified, prominent, academic scientific authorities of the time who all disagreed with him and submitted argument and evidence to substantiate their disagreement. Based on such undisputed expert testimony and Galileo’s inability to respond with anything other than unsubstantiated theory, the inquisitor Cardinal Bellarmine after review of his conclusions by the Pope personally ordered Galileo “… to abandon completely… the opinion that the sun stands still at the center of the world and the earth moves” as a physical truth. However, the Church did allow him to discuss such theory as a mathematical and philosophic idea. Thus, as the necessary mathematical and physical theories developed, eventually the heliocentric theory became widely accepted as scientific “truth” at Catholic and all universities. From a lawyering perspective, this was not a bad adjudicatory process overall nor result. Much better than anyone would now get before being terminated, removed, or arrested in our supposedly more open-minded society if one even tried to open a discussion at one’s employment, in class, or in a public forum let along argue the politically incorrect stance on such topics as homosexuality, racism, sexism, or abortion.

 
How about the physics? It turns out that according to the modern general relativity physics of the last hundred years, the concept of an inertial reference frame that is necessary for either a heliocentric or geocentric model of the solar system does not exist. All we can do is establish coordinate systems for space-time in which the only requirement is that each point have a unique coordinate. So, according to modern physics, if we had a mind or computer sophisticated enough to deal with the enormous and convoluted mathematical complexities involved, we could choose and use a coordinate system with the revolving earth at the center and the sun revolving around it. Since real science accepts and practices Ockham’s Razor as heuristic technique for its conceptual choices, real physics chooses the sun as the center of its coordinate system thus greatly simplifying the math and achieving a much more pragmatic model.

 
So, let’s see what we have. A Cardinal Bellarmine condemning a person before him for ideas reached at one of the universities he supervises after a full evidentiary hearing and review that included expert witnesses to which the accused had a right to face and respond and to whom he did face and respond was persecution and “capture”. So, what is it when two secular legal scholars as representatives of one of the most powerful legal cultures in history use solely their chosen written hearsay with no opposition submitted from anyone to condemn the dead and an entire millennia old religious culture? Is this like super-persecution and super-capture? If Cardinal Bellarmine was a tool for situational influences trying to avoid the absolute truth that the earth revolves around the sun, are the two secular legal scholars who wrote the Situation tools for situational influences trying to avoid the truth that there is no absolute truth about what revolves around what in space-time?

 
Is the absolute truth that if modern jurisprudence wants to approach reasoning in the same way as science, it should also accept Ockham’s Razor as a heuristic technique and stop creating unnecessary dogma about distinctions and relationships such as “capture” simply to boast the egos of its academics and their worshipers who see in the law a means for power instead of controlling power but who do not want to call it power? It is with the hope that the answer to this last question is in the affirmative that I get into the body of this essay.

THE MYTH OF JUDGES OF PROVEN INTEGRITY

An omnipresent myth universally marketed by American legal culture is that judges are experienced, honest, impartial, and of proven integrity. To anyone with any significant experience with either a state or federal court system or in the selection either by appointment or election of judges, this myth is a joke. Somehow, it continues. Most likely it continues because most people are so frighten of getting involved in legal disputes that they do not even want to think about those involved. Once they do become involved, such people become “litigants” (or worse, criminal defendants) and thus lose credibility with the rest of society desperately trying to avoid getting involved.

Most judges start out as average human beings with one serious defect: they want to be judges. That is, they want to have a lifetime job in which they sit in judgment on the lives of their fellow human beings; cold-bloodedly view their problems; and then make their lives worse in some way so as to maintain whatever social order exists — be it the order of a North Korean dictatorship, a Russian oligarchy, or an American oligarchy. Judges maintain such status quo by the sacrifice of the individual — unless the judge is sympathetic to the individual — with all decisions required to be universal and not accepting of diversity nor individual personality or morality. There is no curing of disease, no invention, no epiphany, no theorem proven, no joy of pure analytical thought, no joy of experiment, no critical thinking to a solution, no scientific method, no glory of winning, and no agony of defeat — any type of honest emotion and good faith belief in a principle or good or evil is to be avoided (other than “law and order” that actually means just order). The only joy is in the power of playing god except for the fact that they lack the courage to do any killing themselves but have others do it for them — however, the judge cannot admit to such playing but must hide behind the smokescreen of law, pretending there is something more to their decision-making than just their arbitrary decision of what personal ethics and morals to enforce and which not to enforce. Hiding this reality of the judge’s job, American legal culture in all federal courts and in most state courts gives life tenure to average human beings with such an obvious character flaw plus grants them no accountability for their acts — forgetting power corrupts.

For example, present Supreme Court Judge Sonia Sotomayor stated in an Associated Press interview that she wanted be a judge by age 10 after watching a Perry Mason episode at which point she “realized that the judge was the most important player in that room”. What were you dreaming about at age 10? At age 10, I was just trying to survive until the next day. If I did dream, it was to become an astronaut, an explorer of the world and the universe, to cure cancer, to become a military hero, about the girl sitting next to me in class, or of having love and a happy family, or doing something great to help my fellow humans. The few times I watched Perry Mason, I sympathized with the innocent defendant being railroaded through the system by the powers — including the moron judge — miraculously saved from imprisonment or worse only by the hero Perry Mason. Ms. Sotomayor despite having a loving, extended family supporting her path not only to survive but to prosper in life instead was dreaming of being the moron judge simply because he had the most power. What a sick mentality. This sick mentality gets worse as we go up the power chain to such power fiefdoms as the Supremes. Lower court judges are actually the most fair and wise since they must work with real people in real world situations instead of living in ivory towers of power being an end in itself.

Have you ever read or even heard of any judge, in the present or in history, leaving their judgeship because of stress, worry, guilt, overwork, in rebellion, or as a matter of principle? Neither have I. In fact, especially at the federal level, judges have to be carried out in their senile old age while desperately trying to hand-on to their job of being a demigod. The federal system is full of “senior” judges past the suggested retirement age of 70. The idea of becoming part of humanity that is judged instead of those doing the judging is their greatest fear.

There are no merit or competency tests or requirements for being a judge. The only test, regardless of whether a judge is elected or appointed, is a political one. They are usually former government prosecutors or big firm attorneys who spent their whole professional career following orders, not making waves, and taking whatever politically correct position they believed was necessary to get them the needed political credentials for appointment to a lifetime umbilical cord of a government job. They are supposed to be the best and the brightest of an adversarial legal system in which the best attorneys are supposed to take the greatest risks defending the unpopular and powerless of society such as did Attorneys Atticus Finch of “To Kill a Mocking Bird” and Abraham Lincoln — neither of which could ever be appointed to a judgeship but instead would most likely be disbarred in our modern legal culture for their antics. Instead, as attorneys, most judges were the bottom of the barrel in terms of adversarial and analytical skills and courage — their only skill was politics but they even lacked the courage to run for political office.

This myth is present in all legal systems even going back to the sophisticated legal system of the Roman Empire. In fact, it is this myth that is the greatest weakness in the monopoly of violence that is the law and is usually the one way that it can be beaten. Eventually, as the status quo empowered by judges gets further and further out-of-step with technological and material progress, those charged with executing the judgments of judges get tired of their incompetence and stop executing the judgments. Since judges are incapable of doing their own dirty work, this is when things finally start to change. Judges and the “rule of law” consistent with their dishonest nature take credit from our Honored Dead for historical progress that led to the abolishment of slavery, of Jim Crow laws, of forced segregation, of denial of equal rights to women and minorities, of destruction of unions and the imprisonment of their members, and of almost all injustices that in their time were legal and enforced by judges. In reality, judges have throughout history always been on the wrong side of history and were on the wrong side of these listed now abrogated laws. Violence or some type of civil or military revolution has always been required to get judges on the right side of history.
This reality is still true despite judges’ present claims, again, that they are on the right side of history. These present claims by them and their worshipers hint at more than just character flaws to the presence perhaps of insane delusion. “Insanity: doing the same thing over and over again and expecting different results”. — Albert Einstein. For a more detailed analysis of this myth, please see two of our sponsoring books The Law Illusion and Between the World and Us .

THE MYTH OF LAW AS PROTECTING THE POWERLESS FROM THE POWERFUL

Once the powers that led the American Revolutionaries succeeded and created our Nation, they had a problem: they were no longer the outcaste criminal minority operating solely by their arbitrary decisions restricted only by pragmatic concerns for winning the revolution through the principle of might-makes-right and thus violating the “rule of law”. They were now the law-abiding majority. Upon becoming the law, they immediately began to market not only the first false myth just contemplated of the Nation being founded upon the rule of law but the second false myth of law: it protects the powerless from the powerful.

 
The clearest way to contemplate the second myth and see through it to its heart of darkness is by contemplating the often used philosophical analogy of imagining humans in the state of nature or humanity’s primitive state defined as: the hypothetical conditions of what the lives of people were like before societies came into existence. However, since this blog and related blogs are not for academia but for workers spending their lives in the daily struggles of life, do not conduct this contemplation as it usually has been done by philosophers varying from Plato to Robert Nozick in which the result of the contemplation is pretty much predetermined by upper class philosophy. Contemplate our state of nature in its purely working sense by starting with you and adding individuals one by one to a real world of struggle for survival in a universe that at best is indifferent to our existence but usually is actively trying to kill us.

 
So, there you are, trying to survive with nature trying to kill you. What law and legal system do you have? Pretty much nothing other than the rule that whatever works for you to survive or to give meaning to your life ought to be done until it stops working.

 
Now add another person, someone who is overall either more powerful in their ability to survive life or less powerful in their ability to survive the struggle for life. Now what legal system do you have? Assuming the more powerful is not a complete and total asshole, pretty much nothing changes except for those instances when there is not enough of something for both of you to share equally or there is disagreement as to what needs or must be done. What is the law at that point? Unless the more powerful person is some type of Christian martyr that by definition would mean that person is not the most powerful person in terms of their ability to survive in life, the new law is: whatever works for survival or to give meaning to the lives of the most powerful person will be done until it stops working for them.

 
Now a third person joins our dynamic duo in the state of nature. At this point matters start to get tricky.  In situations of scarcity or dispute, the most powerful person could in theory and in practice keep full control of the weaker person in the two-person state of nature by tying the weaker up at night and once releasing the other during the day never letting the other out of sight. However, this gets harder to do when the more powerful has two weaker persons to control. In bad times, the stronger can still keep the weaker tied up at night but never letting either of the weaker out of sight during the day gets harder. If the weaker conspire, they could figure out a way to give the stronger the proverbial and most likely physical stab in the back when necessary for survival. The situation is still might-makes-right but the might could now be established by the weaker majority combining together to beat what would be the stronger minority in the absence of the weakers’ conspiracy. At this point, the powerful with their superior will to power survival instincts naturally come up with the concept of “rule by law” and then “rule of law” as a means to remain the powerful: i.e., the weaker should not conspire to stab me in the back because this is illegal (as well as unethical; as we will contemplate later, the concepts of law and ethics for social purposes are essentially the same with the former simply being the latter plus a monopoly on violence to enforce whatever the ethics may be). In order to convince the weaker of the need to give up their potential for joining and killing the powerful, the second myth starts: law is for your own good to protect you the weaker from the powerful — conveniently ignoring the fact that the powerful given the need and opportunity would stab the weaker in the back and kill them regardless of the illegality of such an act.

 
As we add more individuals to this state of nature to make bigger and more complex societies, this minority/majority problem gets worse, but the law becomes a much easier and a more efficient solution to this problem once it is given a monopoly on violence while also becoming more convoluted with verbiage both to foster the myths under discussion and to act as a smokescreen hiding their falsity. There will always be a minority of powers-that-be — or the “High” as Orwell calls them in his 1984 — who will have through fate, destiny, luck, or whatever you what to call God’s hate of the poor a superior might-makes-right will-to-power meaning in their lives. There will always be a majority of the powerless or less powerful — or “Middle” and “Low” from 1984 — who could make meaningless the High’s will to power if they organized, conspired, or combined enough of their will to power. Why God so hates the poor that he would make such a three-part division a necessary part of reality is a contemplation beyond this blog but is contemplated in sandpebblespodcast.com.

 
“The rule of law” comes into existence at that point of social creation or progression from the state of nature in which the minority powerful is concerned about being overpowered by the majority of less power or powerless through shear force of numbers. The law is created to abrogate “might makes right”, but not in the sense of abrogating “might makes right”; it abrogates the might-makes-right of the powerless in order to protect the might-makes-right of the powerful. Law is created to protect the powerless from the powerful but not in the sense of protecting the powerless from the powerful; law is created to prevent the power of the majority powerless through unity from overpowering the power of the minority powerful.

 
Before I go further in this contemplation, I must emphasize that I am not saying that this pragmatic purpose of the law to protect the minority powerful was always a bad thing; I am simply saying that it is a false myth to claim the opposite as being a basic premise or principle of law. As contemplated on the associated blog of www.betweenworldandus.com, in its comparison of racism versus classism, unfortunately the division of human society into social economic classes is a part of reality unavoidably necessary to win the struggle between humanity and the universe trying to kill humanity. Thus, unlike racism, we will always have social economic classes and classism and there will always be a necessity to protect the powerful from the powerless by means of social economic classes maintained by the majesty of the law. Pragmatically, the myth that the law protects the powerless from the powerful perhaps was needed through most of human history as a smokescreen to keep the Middle and Low in their place. As recently as a hundred years ago, 80% of the world population was illiterate and obviously had no internet access for information and the technological revolution was barely beginning. The world is now 80% literate and rising with internet access for information at 60% at rising and we are fully into a Technological Society. At this point, the myth does more harm than good by treating workers as illiterate fools that clearly they are now not. The time has come to let the wage slaves know they are slaves and honestly control them as millennia of human societies and law did with chattel slavery whose true nature was never hidden from the chattel slaves. Such truth is necessary for humanity to move into its next stage of history whatever that may be. I will hopefully contemplate the effects of these myths in our technological society in a later essay.

 
Seeing how the true nature of this second myth played and plays out in human history can be done easily by any reader of this essay by picking up a real history book written by real historians (not polemics by popular historians such as Howard Zinn or Doris Kearns Goodwin) and reading the facts from the perspective of the principle contemplated here: law serves not the false myth of protecting the powerless but to prevent the power of the majority powerless through unity from overpowering the power of the minority powerful. You will immediately see that it pragmatically works to explain the past and to predict the future. In doing this, do not get thrown off by appearances such as seemingly pure altruistic laws as those protecting the handicapped, children, or similar powerless. The law is not a unconditional lover; it always by necessity acts in accordance with its true nature and thus even when appearing to enforce seemingly purely altruistic law; as with a bad lover relationship, it does so solely for ulterior motives and will use its ephemeral altruism against you or expect something from you in return at a later time or at other place. The law giveth and the law taketh. If you want unconditional love, get a dog.

THE MYTH OF A FOUNDATION UPON THE “RULE OF LAW”

This is the omnipresent cry of all socially accepted members of United States legal culture (and of most modern nations’ legal systems): our Nation is founded upon “the rule of law”. This is the predominant myth in United States legal culture: the United States was founded upon the “rule of law”. By “rule of law” is meant the principle that law should govern a nation as opposed to governance by the arbitrary decisions of individuals. This is the law’s strongest marketing myth yet the easiest to see through its deception to the truth once one bothers contemplating it in the context of history.

 
Neither the United States nor any modern industrial or technological nation — including any of the major nation state players in the modern world such as Britain, France, Germany, Italy, Russia, and so forth with the possible exception of Japan’s Meiji Restoration or of satellite nations such as Canada that are castaways from the major players — were founded upon the rule of law. The United States was founded by religious fanatics seeking freedom from all secular law and by criminal revolutionaries motivated by desires for individual freedom exempt from all law and by various forms of a master morality will to power varying from avarice, anarchy, and bootlegging to piracy, sex, tax evasion, and wagering. By “criminals”, I am not referring to the fact that many were slave owners because owning slaves was legal under the rule of law at our founding as it was for all systems of law throughout history until a couple of centuries ago when slavery’s rule of law was abrogated by armed civil revolution. The revolutionaries of our American Revolution in relation to Britain and Europe had more in common with present day Somali pirates than with any enlightened believers in “rule of law”. (In the same way that the British of the 16th Century in relation to Europe had more in common with present day Somali pirates than with any enlightened believers in “rule of law”.) They were a minority who by violence intended to force and did force their minority views and rebellion against established British law upon the Loyalist majority not by any rule of law but through violent tactics and atrocities against Loyalist civilians and their property that would be called terrorism and war crimes in our present world. A detailed chronological history of how a violent criminal minority was able to start and win our American revolution can be seen at www.redcoat.me.uk/Rev-War.htm . In short, the fanatical minority criminal revolutionaries of the American Revolution in trying to give meaning and power to their individual lives used the atrocious, illegal, and deceptive tactics of all revolutionaries in history without consideration or respect to any concepts of “rule of law” other than “might makes right”.

 
The difference is that our revolutionaries because of their unique place in time and space were successful in revolting against the established rule of law. This success has more to do with physical geography and the availability of new industry and technology than of any inherent good in the revolutionaries: luck, destiny, fate, or whatever you want to call it. See www.redcoat.me.uk/Rev-War.htm .

 

The worse and best aspect of the founding of the United States is that such rebellion against the rule of law is what had to occur to make us the first country in history in association with the dawn of the Industrial Age and now the Technological Age to be founded not upon principles of “rule of law” through kings, queens, emperors, military leaders, senators, representatives, judges, or other demagogues but upon principles claiming the individual not the individual’s community is the measure of all things. As such a country, we have been for more than two hundred years a beacon of hope to all humanity still living under the natural and ancient “rule of law” that individuals to survive in a universe at best indifferent to our existence must surrender their individual needs and goals to the needs and goals of the whole to survive. Revolutionaries of the American Revolution said, “F___k the whole” and spit in the face of the indifference of the universe and its “rule of law” to explore, discover, and conquer their universe in a struggle, perhaps never ending, to make their own individual heaven on earth.

 
As a result of their success in founding a nation through might with no respect for any rule of law, our revolutionary rebels were then faced with the issue of how to rule their new nation. This leads me to the second false myth about the rule of law: the rule of law protects the powerless from the powerful

FALSE MARKETING MYTHS OF LAW AND JURISPRUDENCE / INTRODUCTION

Though legal culture in the United States calls itself a profession, it is really a for-profit religion having a monopoly on violence to produce one product: you. Its business goal is to tell you what you ought to be and what you ought to be doing to produce a “you” in its image. The secular religion of law uses well marketed false myths to stay in business: 1) the United States was founded upon the rule of law; 2) the rule of law protects the powerless from the powerful; 3) judges are experienced, honest, impartial, and of proven integrity; and 4) there is a difference between law and the ethics and morality of judges.

 
I will cover each of these myths in separate essays. As I have written elsewhere, in trying to contemplate and write about the general principles that govern such issues as law, it is not my goal to create an idiocracy by oversimplifying the problems of creating a workable social system for adjudicating disputes so as to avoid private violence and internal conflict among individuals or groups that would disrupt the viability of United States society or of any society. However, our modern technological world is so very complicated that it is easy to forget the basic premises of human thought that have made us successful so far in beating the natural world’s will to kill us and wipe our societies from the universe. For example, mathematics is incredibly complicated, yet all of its incredibly convoluted rationally challenging complexity begins with one operation: addition. If you do not understand that 2 + 2 = 4, all of mathematics is worthless farce. To freely operate in a free and open society, one must accept that “freedom is the freedom to say that two plus two makes four. If that is granted, all else follows” — Orwell’s 1984. Modern legal culture loves generating law libraries of verbiage to hide that 2 + 2 = 4. One of its methods for denying us this freedom is through the false marketing myths that I will be contemplating. To be free in an open society, these myths must be seen as false and rejected. We can then go on to a more subtle contemplation of the nature of the concept of justice in a modern technological society.

 
The false myths that I intend to contemplate are universal to all legal cultures but are most powerful and thus have the most adverse effects in United States culture because the United States is so powerful and successful. As with all past societies and especially empires, as they achieve more power and greater success, the few who possess most of that power and success start to generate smokescreens that hide the foundation bases upon which the power and success were built resulting in their being ignored and the foundation allowed to crumble thus eventually crumbling down the society and empire built upon them.

A SYSTEM OF EMPATHY: REBUTTAL TO AN EXISTENTIALIST THEORY OF JUSTICE

An existentialist theory of justice would be a contradiction and a betrayal of existentialist philosophy. In the present and most likely future of technological society in which even Christianity is surrendering the individual to the needs of the will to power of the few, existentialism is the last philosophy founded upon the power of the individual as morally superior to the indifference of the universe. Existentialism recognizes and must continue to recognize that there is no justice in life nor in the next life, if any, and there is no justice in or out of court. Justice as with ethics and any system of normative principles is a means created by the powers of any given system of power to maintain the status quo of that system of power. Taking “justice” as a serious ontological reality or creating an existentialist “justice” would be just another system of power to maintain the status quo of power. Rather, existentialists who have decided to act as social agents for change must seek an alternate ontological reality. This alternative must involve struggle not peaceful acceptance, but struggle with empathy for all involved in the struggle of power with the indifference of the universe.

 
Existentialism in both its secular and religious form is an attempt to avoid nihilism: an attempt that always fails. In the end of its logic, existentialist reasoning must accept nihilism. Such acceptance does not deny truth. Nihilism denies meaning in life not truth. As soon as some nihilist states there is no absolute truth in life they have contradicted themselves and established that there is absolute truth. At a minimum, there is the absolute truth that I exist and therefore I think and I want more than to exist.

 
Nihilist truth is pragmatic. Once I reject suicide and decide to give meaning to the universe, I must choose an ontology and morality necessary to achieve that meaning. If what I choose works to achieve my result, they are true. If they fail, they are to be rejected or revised or I can go back to contemplating suicide. Regardless of how I proceed, by necessity existentialism involves struggle not peaceful coexistence with what is not “I”. The universe does not care about my existence, it is its own existence. Unless I am one of the few beloved by God and thus made a god alongside of Him or I become a god myself as a being content with my own existence as an end in itself and thus do not ask existentialist questions nor need its reasoning, I will always be one of the poor hated by God and thus always involved in a struggle with His meaningless universe. This struggle with a meaningless universe includes all, including others, who may be out there. There is nothing one can do to make the struggle with the universe any less painful. It is what it is, and in the end it will always win the war regardless of how many battles we fight and win.

 
The struggle with the others who may be or seem to be out is a different situation. Rationally, existentialism has the benefit of avoiding solipsism: there must be others ontologicaly existing out there because I cannot will what I want. It is in the struggle of my will to achieve power over my life and my will’s constant inability and outward failure to do so that proves I am not alone in the universe. There is something out there, it may just be God but it is out there. If it is just God, He is taking so many forms to make my life miserable that He might as well be a multitude of others and pragmatically I must accept such an ontology to survive. Assuming that I am alone would only lead to being a god. Unless that is my destiny, I cannot make that assumption and must deal with the others out there struggling with me or against me in my will to power.

 
Unless I am destined to be a god, pragmatically empathy is the only option for an existentialist to create a system of social normative principles. If I am destined to be my own god, justice is the choice to make to enable and to enforce my will to power. Justice consists of the desire to sit in judgment of others’ will to power; determine how it is interfering with my will to power; and then to force them to conform their will to my will to power. If I am powerful enough, I can do this on my own. In the modern technological society, such justice requires the joint effort of an Orwellian Inner and Outer Party working together. Justice does not care about the ultimate struggle between the individual and the universe. Its concerns are only with the present. That is why no system of justice has ever been nor will it ever be on the right side of history.

 
Empathy is the ability to understand the nature of the struggle with the universe; the others’ struggle within that ultimate struggle; and to force myself to limit my will to power to the minimum necessary so that I and the others’ struggle will not hinder either of us in our ultimate struggle with the indifference of the universe. Unlike justice that inherently wants and creates the power to enforce its will to power, empathy is a matter of luck. Just as the existentialist struggle to give meaning to the universe is a solitary struggle, empathy is a solitary struggle.

 
The substantive question for an existentialist who wants to be an intentionally and knowing actor in the stage of social change is: can systems of empathy be created to replace systems of justice? There are significant generalities and details to be worked out in any such replacement. First of all, the concept of justice as a virtue must be eliminated; it must be seen as a meaningless concept in technological society. In terms of general principles, such a result is difficult enough to achieve for Christian communities that in substance are the only modern technological communities who expect justice only in another life and accept love and mercy as the only obtainable virtues in this life. However, for all practical purposes, it is impossible to achieve for fake religions such as Islam and for Old Testament religions such as Judaism in which justice is seen as a virtue achievable on earth. In terms of details, a system of empathy would require judges who are appointed as “judges” based on pragmatic merit as existentialists and their intelligence and empathetic abilities; who are appointed only for limited terms so that they are not corrupted by power; and are greatly limited their power to act affirmatively on anything. This is impossible in all modern technological societies in which judges are secular religious appointed to be fanatically loyal to the justice called “rule of law” and the delusions associated with such secular religion.

THE ‘RULE OF LAW’ DELUSION

Maintaining the “rule of law” is always pontificated by  the powerful as a necessary good of both Western and Eastern Civilization as a means to protect the weak from the powerful, and “rule of law” is almost always used by the powerful interchangeably with “system of justice”. Historically, there is no reason for such pontificating nor with such synonymous use of these terms. What should be pontificated upon is the “rule of power” and the means to control it — including controlling the power of the law. The rule of law is only concerned with maintaining a given social status quo. It is the rule of power that changes the status of quo. In terms of pragmatics, a “system of injustice” is as much a rule of law as a system of justice, in practice they are the same: justice and injustice are two sides of the same coin and both necessarily serve to maintain the powerful few in power over the many. Rather than protecting the weak from the strong, the rule of law and its social system of norms called “justice” serve to protect the few strong from the many weak who in combination, if allowed, would overcome and kill the few in power resulting in chaos, anarchy, and the creation of a new powers-that-be. This is the nature of reality that is accepted by the rule of power but not by the delusional rule of law called justice.

 
Philosophers of law are always crying about the horrendous state of existence in which humanity would be absence “the rule of law” consisting of constant random and arbitrary violence absence  — that is if humanity were still ruled by the law of the jungle in which the strongest rule by force over the weakest. They seem to ignore that the law of the jungle is as much a rule of law as their version of it in which the law holds a monopoly on violence. Without doubt, historically, the primitive state of humanity was and would be a violent one in the absence of an organized system of so-called justice to control personal vendetta and retribution for all actual or perceived injustices among humans. The recent book “War in Human Civilization” by Azar Gat accurately delineates how Thomas Hobbes’ view of the primitive state of humanity was much more accurate than the Jean-Jacques Rousseau’s view of it. Of course this crying comes from philosophers of law — including Hobbes and Rousseau — who are all either members of the ruling class of their society or its house servants. What these house servants ignore or fail to state is that a system of injustice working as a rule of law will serve the same purpose. The inmates of a modern maximum security prison in the United States live in society maintained by the rule of law in which random and arbitrary violence is more absent than in any rule of law community outside of prison. The same could be said of the rule of law in North Korea or in any efficiently operated military dictatorship — or even of the military. Any efficiently run rule of law will eliminate the constant random and arbitrary violence of our primitive state: either a system of justice or injustice. No honest review of history or the workings of social struggles would support a view that “the rule of law” is intended to defend the weak from the strong, but rather the intent is to protect the few strong from the many weak whose power in a conglomeration would be greater than those few.

 
Anyone not among nor working for the powers-that-be who contemplates the reality of social interactions between the strong and the weak whether in a primitive state or in any state would realize that the individual who wants to live and survive in life wants power, wants to be strong, and will grab power over the weak when given the chance. I am not saying this as if it were an evil, it is the reality of life. Even if a group of humans loves each other, cooperate, and get along in peace as most seem to preach they want, nature will not cooperate with this goal. Eventually there will occur a natural occurrence such as disease, famine, cold, heat, flooding, or some other “Act of God” that will force a peaceful community of humans into a battle against nature to survive. In this battle, the strong will survive, the weak will not. By ‘strong’ and ‘weak’ I am not referring to physically strong or weak nor any popular conception of evolution — which has nothing to do with the scientific concept of evolution operating essentially as a statistical spreadsheet for sense experience of those who survive and those who do not. Who are the strong and the weak in any given situation is dependent on the situation. The defining characteristics of those who will survive in any given struggle for power over nature will be those with the strongest will to power over it and all parts of it, including their fellow and sister humans, plus being lucky. Sometimes this will to power will be physical, other times mental, others social, and so forth, depending on the nature of the struggle for power.

 
Living in a modern technological society, we have lost sight of the misery and struggle over nature by our ancestors that has gotten us here and that is hidden by technology though the struggle against nature is the motivating force of all life, human or not. The individual is faced with a few existential truths about life that must be accepted to live: “I exist”; “there is something out there that is not I”; and “I need power over that something to live.” If anyone reading this wants to contemplate this reality, I suggest Sand Pebbles Podcast.

 
When these individual existential realities become social, we have social classes and class struggles that also are not evils: they are a necessary part of reality. There is no basis in reality to hope for a Marxist end to social classes and class struggle: they are the substance and essence of reality. For some reason, God hates the poor and weak and wants to keep them poor and weak. The poor and weak must struggle to overcome this reality; they can only do so when they unite enough to overcome it; but despite any material progress they are doomed to fall back into being the poor and weak. This is the rule of power. If anyone reading this wants to contemplate this reality, again I suggest Sand Pebbles Podcast and Between World and Us. As summarized by George Orwell in is book 1984:

Throughout recorded time, and probably since the end of the Neolithic Age, there have been three kinds of people in the world, the High, the Middle, and the Low. They have been subdivided in many ways, they have borne countless different names, and their relative numbers, as well as their attitude towards one another, have varied from age to age: but the essential structure of society has never altered. Even after enormous upheavals and seemingly irrevocable changes, the same pattern has always reasserted itself, just as a gyroscope will always return to equilibrium, however far it is pushed one way or the other.

 

This is the reality accepted by the rule of power. This is the reality ignored by the delusion, a delusion perhaps intentionally created, of the rule of law. The law is just another means by those in power to stay in power. Slavery, forced colonialism, forced imperialism, apartheid, and all evils of which those worshiping the rule of law complain were all legal in their day. It is delusional to maintain that the evil powers of the rule of law can or must be corrected not by simply removing the evil powers but by giving the rule of law new and different powers that will eventually become just as evil as those powers eliminated. The power of the rule of law will on its own try to expand and magnify and will expand and magnify as needed to keep the powers-that-be in power. To maintain and grow as a civilization, non-lawyers, honorable lawyers not part of the law’s 1984 Outer Party, and those not part of any given system of justice/injustice must acknowledge and be guided by the rule of power to fight and minimize as much as possible the law’s expansion and magnification in any form: Jim Crow laws are as evil as civil rights laws; legally enforced integration is as bad as legally enforced segregation; and so forth. Social bonding; communities of cooperative individuals; and creating empathetic communities of diverse individuals but not communities of different colors, races, and sexes who think and act the same and hate all who think differently require the absence of the rule of law as a secular religion not its presence. From the Roman plebes to the present working classes, it is only their knowledge of the rule of power and their acting upon it that creates civilization.