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?

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.

AN EXISTENTIALIST THEORY OF JUSTICE

Existentialist thought as a philosophy has primarily served substantively and practically as a personal philosophy dealing with the meaninglessness of life and the moral decision of suicide. When it tries to deal with social or ethical concepts beyond the needs of an individual, it becomes primarily a means for French dudes to get laid and makes little sense either in theory or in practice. Such result is predictable given its premises and conclusions that all is meaningless and that all social and ethical concepts are equal in the end. Don Juan, the Actor, and the Conqueror are all equally moral individuals when all is meaningless. However, I do not believe that this is a necessary result of Existentialist thought. This is the necessary result and truth when one faces the choice of suicide, however, once one has made the choice to live and to reject suicide, this choice makes possible an Existentialist theory of social ethics or justice that must be systematically studied. It is not necessarily true that Existentialist thought must accept the Conqueror whose strength is his will to conquer as morally or ethically equal to those whose strength is their will not to conquer. An Existentialist theory of Justice is possible.

Once one chooses to live, the second unavoidable realization after ‘I think therefore I am’ is that ‘I think therefore I need power to continue thinking.’ Living requires power. Though life may be gifted to us at conception without our choice, one who wants to live must get the power to continue staying alive from the moment the choice to continue living is made. The individual born rich or an ascetic surviving on small needs may not need to acquire further or much power to live but regardless of how little power one needs to acquire, living does not occur naturally. If we let Nature or Natural Law have its way, both the individual and any society of individuals would die of ‘natural causes’ quickly and most likely painfully and miserably. I refer to this need as ‘power’ or in the classical sense the ‘Will to Power’ because such choice of words best describes the various forms of work and effort in which human life engages in order to survive. This is true of all life. Animals and plants spend their whole existence hunting each other as food to get the power to live. The human need for power in life goes beyond just food: humans want the power to control their lives and thus eventually, once one starts interacting with at least one other individual to form a society, the power to control the lives of other humans (whether real or imagined). Thus, having survived the absurd reality that life is meaningless, the Absurd Man must now face the absurd reality that life is meaningless and unjust. Not only will one never naturally get what one needs to live, survive, and to have some fun and passion in life, but one’s attempts to live, survive, and have some fun will unavoidably be conflicting with and most likely will be threatening to someone else’s attempts and need to do the same.

Furthermore,the need for power and the ability to satisfy the need for power are never in balance. A poor man who is lazy and uneducated and a captive of his vices will most likely always remain poor both materially and in spirit. However, a rich man who is lazy, ignorant, and a captive of his vices will become, with a little bit of luck, a President of the United States and rich in all things. Though hard work may get the poor out from poverty, the cost of such success will be either destroying their spirit by such hard work or the selling of their spirit to the needs of the rich. Either way the poor have lost and sold themselves to those rich in power. The only way a poor man can keep his virtues is to remain poor and surrender hope for a better material life. In short, there is no justice in life; this is not a contingent fact but a necessary fact of life. As the Good Book says,the race is not always to the swift nor the battle to the strong, but that is the way to bet.

As with suicide, in standard Existentialism there are two ways for the Absurd Man to respond.

One can respond with the ‘Leap of Faith’ prescribed by the first Existentialist, Soren Kierkegaard: if there is no justice in this life, believe there is justice in the next. Secular existentialists are too quick to reject this option and such quickness shows an irrational bias and prejudice that should not be present in a philosopher. Religion has faced and dealt with the injustice of life for millennia; there is no justification to reject such experienced thought outright without at least understanding or at least trying to understand its complexities and subtleties. The Christian answer is very brilliant, powerful, and has served the Western World successfully and pragmatically for two thousand years now and is best summarized in the Parable of the Workers’ in the Vineyard. This simple yet intense and profound parable dismisses injustice in life because love exists between God and Man. It in no way attempts to hide the true nature of God as the ultimate Power that can do as It pleases with nature and the humans It created. It shows ‘justice’ to be a human concept; an all-powerful Being who created nature can do whatever It wants with it. Trying to attach the term unjust to such a Being as God that in essence defines the Natural Order or Divine Order of existence is meaningless and exhibits only the arrogance and stupidity of humanity.

God is defined as the reason there is something instead of nothing. Christianity offers us union with such power through God’s manifesting itself by becoming human in the Person of Jesus Christ. This is quite an amazing conceptual structure and thought. It turns the arbitrary power of God from being the source of injustice into the negation of the concept. The reward for such a Leap is incredible and it is very tempting to jump if one views it objectively. If faced with a beautiful woman who may be a bitch, a man is still very attracted to her and wants to fornicate with her as long as her beauty lasts regardless of the bitch factor. With God, you know the beauty will never fade and the union will always be  great, so why not put up with the bitch factor especially when by doing so you are essentially becoming One with all of nature and humanity and thus ending all the conflict that is the source of injustice? Christianity has even developed the concept of the Holy Spirit to act essentially as a marriage counselor between God as a Man and God as the supreme Deity the Father.

Of course, the Absurd Man would protest that such a critique misses the point: accepting injustice as answer to the question of justice is the same as accepting suicide as the answer to the question of meaningless. This would be a correct critique if one were still debating the issue of meaningless and suicide. Once one accepts life, such a critique is no longer sound nor valid.

The other option is to go the opposite way and reject nature and the God Who created it. By rejecting such, I do not meet substituting it with another god as usually occurs. I mean nihilism and I mean it as a good. The Absurd Man instead of seeking the power to live by constantly seeking power should achieve such power by constantly fighting all others’ seeking of power without heightening the battle for power. We must remember that in this critique we are no longer dealing with morality or with just one individual’s battle with meaningless and suicide; when thinking of social concepts such as justice and ethics, there is always at least one other person out there trying to get or to share in the same power and thus inevitably trying to defeat us or to conflict with us in our Will to Power. Even if we were to reduce ourselves to the bare essentials of life living in a village of two people with all the resources in the world, unless we die of boredom there will come a time of conflict when the other will want to take power from us or power over us. When that moment comes, the options are either to choose to be a conqueror and fight over such power or to run away, in the end these options are the same because neither change the nature of life and the choices are morally equal.

However, I submit that the Absurd Man has a third option: he can spit in the face of destiny and fight not the conqueror but the fact that the conqueror holds such power. He can in defeat spit in his conqueror’s face. In the latter situation, the Conqueror, Don Juan, and the Actor are not equals. The first cannot but relish, seek, and enjoy power over others. Though the latter also enjoy such power, their enjoyment does not necessarily come from taking power away from others but in multiplying, magnifying, and sharing it. Of course, the latter’s means to power will in the end be defeated by a new or another conqueror just as in the end God will defeat all of us, but that is not the point. Having chosen life, the Absurd Man to exist as a social being must choose the path to power that is unnatural with the same passion that he chooses life. When finally beaten by the bitch factor in a beautiful woman, the Absurd Man will see it and recognize it and reject the whole beauty as unjust. In doing so, though one passion is being lost, a greater passion is gained by the knowledge that one has at least for the moment beaten the unjust nature of life. In this situation for example, the Don Juan who continues to seek dominating power over his woman is no longer ethically equal to the Actor but ethically worse because he does accept and uses the other as a source of power for him. This type of analysis can continue with the Actor and with all others.  I submit it is this power analysis that can be used to discern just and good individuals and acts from unjust and evil individuals and acts in an Existentialist world and in any supposed system of justice and law in it.

Obviously, there is a need to work out the details of such an Existentialist theory of Justice; however, it must first be recognized that such is possible.