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“Law stands mute in the midst of arms. “ – Marcus Tullius Cicero

“Bad laws are the worst form of tyranny” – Edmund Burke

“Make them bow their heads under the yoke of the law” – Russian proverb

Frequent commenter Schmedlap, who has a fine blog of his own, asked his readers a very important question:

Today a smart, well-traveled, experienced, knowledgeable guy was telling me that “rule of law” is a concept that we need to stop worrying about. Strongly disagreeing, I asked why. After he explained why, it became clear that he was working with a significantly different definition of “rule of law” than I knew of. It reminded me of recent discussions here and elsewhere over definitions of culture, torture, and terrorism. Given his definition of “rule of law” I agreed that it is not something that we need to worry about. If “rule of law” = his definition, then rule of law is not important. If “rule of law” = my definition, then rule of law is important.

Just curious, what is your understanding of what “rule of law” means?

I attempted to leave a comment, using a Google Chrome browser, but it failed to “stick”, so I will pontificate in my usual, windy, fashion here instead.

The Anglo-American tradition of “rule of law” is distinct from that of continental Europe or Confucianist traditions in Asia, both of which are primarily concerned in different ways with the health of the state. Anglo-American “rule of law” has been an evolutionary – and sometimes revolutionary – march to constrain the exercise of arbitrary power and, eventually, assure an egalitarian access to justice. When Norman French-speaking King John of England bitterly complained at Runnymede that the English barons might as well demand his crown, he was right. The Magna Carta was intended to curb John’s capricious tyranny with formal rules governing how and when the King could exercise power against whom.

As national monarchies coalesced out of bastard feudalism’s kingdoms and medieval principalities in the fifteenth and sixteenth centuries, the Kings propagated a theory of divine right absolutism, which to our ears seems despotic, but to a sophisticated and wealthy, emerging, European bourgeoisie at that time, sounded like music. Better living under predictable, “national” laws and a King far away than a patchwork of greedy, grasping and unpredictable nobles who were ever close at hand. That same, rational, middle-class political sentiment though, soon found fault with even Enlightened absolutism.

Lord Chief Justice Sir Edward Coke, a great man to whom much is owed, but who today is largely forgotten, was the great theorist and defender of judicial independence and common law from the whims of a sovereign. Without judicial independence, the rule of law is hardly possible because it is ultimately inseparable from the executive power; Coke was instrumental in moving elite Englishmen’s minds from accepting “Rex lex” (“The King is Law”) to demanding “Lex rex” (“The Law is king”).

The matter was not formally settled with the English Civil War, which came not long after Coke’s death, or even the Glorious Revolution of 1688; nor the American Revolution of 1776 or even at Appomattox Courthouse.  “The rule of law” is an ongoing struggle that must be constantly renewed by an active and vigilant citizenry if it is to be sustained.

John Hagel is in a small category of thinkers who manage to routinely be thinking ahead of the curve ( he calls his blog, where he features longer but more infrequent posts than is typical,  Edge Perspectives). I want to draw attention to the core conclusion of his latest:

Challenging Mindsets: From Reverse Innovation to Innovation Blowback

Innovation blowback

Five years ago, John Seely Brown and I wrote an article for the McKinsey Quarterly entitled “Innovation Blowback: Disruptive Management Practices from Asia.” In that article, we described a series of innovations emerging in Asia that were much more fundamental than isolated product or service innovations. We drew attention to a different form of innovation – institutional innovation. In arenas as diverse as motorcycles, apparel, turbine engines and consumer electronics, we detected a much more disruptive form of innovation.

In these very diverse industries, we saw entrepreneurs re-thinking institutional arrangements across very large numbers of enterprises, offering all participants an opportunity to learn faster and innovate more effectively by working together. While Western companies were lured into various forms of financial leverage, these entrepreneurs were developing sophisticated approaches to capability leverage in scalable business networks that could generate not just one product innovation, but an accelerating stream of product and service innovations.

…. Institutional innovation is different – it defines new ways of working together, ways that can scale much more effectively across large numbers of very diverse enterprises. It provides ways to flexibly reconfigure capability while at the same time building long-term trust based relationships that help participants to learn faster. That’s a key breakthrough – arrangements that support scalable trust building, flexibility and learning at the same time. Yet this breakthrough is occurring largely under the radar of most Western executives, prisoners of mindsets that prevent them from seeing these radical changes.

Read the whole thing here.

Hagel is describing a mindset that is decentralized and adaptive with a minimum of barriers to entry that block participation or information flow. One that should be very familiar to readers who are aware of John Boyd’s OODA Loop, the stochastic/stigmergic innovation model of John Robb’s Open Source Warfare, Don Vandergriff’s Adaptive Leadership methodology and so on. It’s a vital paradigm to grasp in order to navigate and thrive in the 21st century.

Western executives (think CEO) may be having difficulty grasping the changes that Hagel describes because they run counter to cultural trends emerging among this generation of transnational elites ( not just big business). Increasingly, formerly quasi-meritocratic and democratic Western elites in their late thirties to early sixties are quietly embracing oligarchic social stratification and use political or institutional power to “lock in” the comparative advantages they currently enjoy by crafting double standards through opaque, unaccountable authorities issuing complex and contradictory regulations, special exemptions and insulating ( isolating) themselves socially and physically from the rest of society. It’s a careerism on steroids reminiscient of the corrupt nomenklatura of the late Soviet period.

As the elite cream off resources and access for themselves they are increasingly cutting off the middle-class from the tools of social mobility and legal equality through policies that drive up barriers to entry and participation in the system. Such a worldview is inherently zero-sum and cannot be expected to notice or value non-zero sum innovations.

In all probability, as an emergent class of rentiers, they fear such innovations when they recognize them. If allowed to solidify their position into a permanent, transnational, governing class, they will take Western society in a terminal downward spiral.

There’s an academic-Left kook element of no small size among international law NGO activists. These folks see themselves as a secular, international relations, Ulema, able to issue press release “fatwas” that are supposedly binding but in reality, have no legal basis in anything except their own imaginations.

Naturally, such an unserious intellectual position eventually leads them into bizarre and frivolous wastes of time.

Can Video Games Turn You Into a War Criminal?

….According to a new study by two Swiss human rights groups, TRIAL and Pro Juventute, many combat-heavy games actively encourage players to kill injured soldiers, attack civilians and destroy churches and mosques. As satisfying as these actions might be for players, they flagrantly violate real-life criminal and humanitarian law.

The organizations reached this guilty verdict with the help of three attorneys, who watched gamers blast their way through 19 titles, including recent hits like “Call of Duty 4,” “Army of Two” and “Metal Gear Solid 4.” Each time a player flouted the Geneva Convention or another international treaty, the legal team took note.

Their final report reads like Radovan Karadzic’s rap sheet. “Call of Duty 4,” a first-person shooter set in Russia and the Middle East, is accused of allowing gamers to “attack civilian buildings with no limits in order to get rid of all the enemies present in the town who are on roof tops … Under [International Humanitarian Law], the fact that combatants/fighters are present in a town does not make the entire town a military objective.”

Cluelessness is a closed system.

John Robb is hard at work on Book II which will be about the building of ” Resilient Communities”. He’s batted a few comments about on twitter and worked up a series of posts on the RC theme at his “formal” site. Here are a few samples to give the flavor of his enterprise:

Journal:COIN without a model for Resilience is Futile

AUTHOR’S NOTE: The Resilient Community

THE THERMODYNAMIC CRISIS

JOURNAL:Why use the thermodynamic crisis as a framework

DISSIPATIVE STRUCTURES

“Resilience” is a particularly intriguing concept with multiple meanings though John is honing in on those related to Newtonian physics and complexity theory ( one source in the last post, Ilya Prigogine ,was a significant influence on John Boyd). I particularly liked this bit by John:

The modification of thermodynamics necessary to accommodate this observable fact was formulated by the Nobel laureate Ilya Prigogine in a theory called “dissipative systems” (read his excellent book: “The End of Certainty” for more). One important leap in this theory is that a dissipative system isn’t a closed system. Rather, it lives within a larger system (an “environment”) that it can interact with.

This upshot of this is that it can extract energy from this larger external environment to increase its structural complexity (build itself up through a process called self-assembly). It can also use this external environment to dump the entropy created during the energy conversion process to minimize the deleterious impact on its structure.

We’ve been pretty good at building up the complexity and are rather poor at dissipating the entropy, mostly for reasons related to the structure of our political system that ties self-interest of politicians and corporate CEOs to short-term frameworks and gives comparative advantage to rentier interests over innovators. The problem has become more difficult because many aspects of “the system” due to globalization are now beyond any state’s control.

Resiliency will involve decentralization and independence within greater interdependence in order to put natural “brakes” on high velocity forces without using draconian state controls ( which won’t work and never did  – except with globalization they will be all side effects and no benefits). I’m very much looking forward to reading what solutions Robb proposes in Book II.

ADDENDUM: Past posts on resiliency:

THE RESILIENCE OF CIVILIZATIONS

DIMENSIONS OF RESILIENCE

LEADERSHIP, RESILIENCE AND OSSIFICATION

COUNTERING 4GW: STATE RESILIENCE, NOT STATE BUILDING, IS KEY

John Robb posted the first part of a working paper that extends John Boyd’s Conceptual Spiral into Open Source environments. I want to draw attention to the third potential solution to catastrophic failure ( result of mismatch of rigid, hierarchical, bureaucracy with rapidly evolving, chaotic, environment) that Robb offers in his conclusion:

C) Decentralized decision making via a market mechanism or open source framework. This approach is similar to process “B” detailed above, except that a much wider degree of diversity of outlook/orientation within the contributing components is allowed/desired. The end result is a decision making process where multiple groups make contributions (new optimizations and models). As these contributions are tested against the environment, we will find that most of these contributions will fail. Those few that work are then widely copied/replicated within components. The biggest problem (opportunity?) with this approach is that its direction is emergent and it is not directed by a human being (the commander)

Some preliminary research in small worlds network theory indicates that very noisy environments will have emergent rule-sets. Human social systems are less tolerant of extended periods of chaos than are other kinds of systems because there are caloric and  epidemiological “floors” for humanocentric environments that, if breached, result in massive population die-offs, emigration and radical social reordering. History’s classic example of this phenomena was the Black Death, which created a general labor shortage that fatally undermined European feudalism. Because of this, military forces whether of state orientation or irregulars would be forced to react cooperatively and adaptively, however indirectly, toward a consensus in order to maintain at least the minimal economic flows that permit their military operations to be sustained.