Wednesday, October 14, 2015

Rule of Law (with Mandy)

I believe we are who we are through the connections we have, and make, with other people. If someone you know and love is not around, you can close your eyes, and go to that place in you that is them. One of my favourite people would cringe at that warm, fuzzy, idea. But he remains someone that 'reads books' with me. He remains someone that laughs at my inconsistent thoughts. Even when he is not there. His siblings are awesome, and getting to know them has only deepened our friendship. Every time you meet a family member or friend of someone you care about, you get a chance to see them in a new light. Mandy Torr is a lawyer and gives her brother as much stick as he gives me. We had a chat...
Trev:
People like the idea of being able to do what they want. But games often work much better when the rules are clear, accepted and enforced. Touch Rugby is much more fun without arguing and played 'seriously'. Poker is more fun once people all know the rules and are playing with enough that they take it 'seriously'. Accounting and Law seem to be areas which are gradually trying to Internationalise rules that make sense for everyone to get along.


More fun when the rules are clear

Mandy:
The value of the rule of law lies in the ability to enforce it. If law can't be enforced, it's just words. The law should be fair, just and capable of enforcement. Without all those elements, there will be anarchy. So the question is, who enforces the law and by what authority? The State enforces law. But we have no international State, just treaties which may or may not be binding... if and how they can be enforced depends on the facts of each case. Can there, or should there, be one international moral or legal authority to enforce laws? How could that be better...

Trev:
For most of history, law and force have been synonyms. I recently read 'The Democracy Project' by David Graeber where he pointed out that Majority Rules was just a pragmatic way of admitting that if two armies of roughly equal ability met, the one with a numerical advantage would win. Voting was a way of losing (or winning) without dying. The people who got a vote, were those who were armed and could fight. He argues that voting should only really be necessary as a last resort. He calls himself a small 'a' anarchist. The need for 'archy' comes when people don't actually agree with the rules. If they are fair and just, will they really need enforcement?

Mandy:
Isn't that like saying if people were all moral, you would not need "the rule of law". Yes, if the rules were fair and just, they will still always need enforcement as long as there are bad people that can do harm. Some Constitutions (like South Africa's) embody fair, just rules, but we have crime, and we need the rule of law badly. We need the people capable of force to be moral, good people, so they can uphold moral laws. Equality, dignity, freedom. When people are ALL good, maybe we will not need law. Is that where religion comes in? But can religion make people moral and good? As long as people are people can we do better that we are already doing? The answer must be yes if history shows that we are progressing. But why are we progressing? Maybe partly because throughout history, people have struggled to uphold the rule of good laws against bad people... which gives us the freedom to progress.

Trev:
It all depends how effective you think 'archy' has been historically. I get particularly thorny when I feel someone is telling me what to do. I am not good at telling other people what to do. Working with people on the other hand is fun. In the poker/touch analogy, it isn't fun if there is someone you keep needing to force to play by the rules. They have to want to. The incentives have to be there. I do think Rome/Genghis/Alexander and others monopolising violence was useful as an intermediary step. But there are other mechanisms. How effective is America's militarised police? The best force for law is economic empowerment. We are also getting new tools for reputation like online references, endorsements & networks. Ignoring and excluding can be effective unforceful enforcements. We are progressing because the incentives for playing by the rules are improving. 'Bad' people also behave if it is in their interest.

Mandy:
Yes, good law does not over regulate. It does not tell people what to do unless it's really, really, necessary. People are more likely to obey it if by in large, it leaves you alone, and when it does tell you something it is logical, fair, and capable of enforcement. Critical to the rule of law is when it DOES tell you something, it is obeyed. Enough people need to WANT to obey it otherwise the system will fail. I'm not sure the law is very good at providing incentives. It's role is limited. The incentives you mention are maybe just the result of people being left alone to do their own thing. I don't think we should be too worried about really bad people. We don't want to play poker with them anyway.

Trev:
Exactly. If information about whether people tend to 'play nice' is available, we will effectively self regulate. If every time a person joins the game, money 'mysteriously' goes missing, they will start being invited to less games. Good moral leaders need less 'power of force' to get people to listen to them. They needn't be religious, or of the same religion. Tutu is definitely one of my moral leaders despite the fact that there are beliefs we disagree on. I would like to do more reading on effective policing. My suspicion is that a little, friendly, older person would be more effective than Chuck Norris.


Moral Leadership doesn't require you to agree on everything

Mandy:
Interesting. But how could we ever get that information other than by reading thoughts? Exclusion is fraught with problems as it must be fair, and there needs to be a system to determine if it's fair. Did he really steal the money or was he set up? Yes, good leaders should not have to exert force. Apart from being fair, I think they should be able to demonstrate the ability to be able to produce something, or create the conditions for things to be produced. You might admire a sweet old person, but why should you listen to them? A big part of effective policing is respect for the separation of powers which involves elected leaders voluntarily choosing to respect institutions, especially the courts and not to exert force to get their way.

Trev:
I do think there is the way things are, and the way they could be. Information is flowing more freely. Networks are growing. Communication is improving. A big part of most of the institutions we haves' role has been to deal with scarcity, distrust, fear and uncertainty. Friendships are self-policing without law, but with rules. Leaders may not even be the producers, they may just be the role models. They may not even need to be elected if they don't claim to represent anyone, or have any power. The thing I think that does have tremendous value is well-communicated, accepted rules of engagement that people buy into. Creativity often happens with constraints. Freedom is not the absence of rules.

Mandy:
Yes. Law lags behind society. It's quite possible that institutions as we know them simply won't be able to keep up with the pace of change. Maybe because "rulings" will no longer be capable of enforcement and the 'rule of law' as we know it will no longer be relevant. That's a scary idea without knowing the alternative is better and guaranteed. Will we just be at the mercy of the ethics of scientists and communication experts who will now exert 'force'. If well communicated, accepted, rules of engagement that people actually do buy into (and work) is possible, the that is a good thing.

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