zenpundit.com

“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.

To the legacy society of the nation-state and the hierarchical transnational corporation:

MILESTONE

….It’s time to up the ante and move onto the next phase:  the birth and rapid growth of new societal networks.*  This is going to be a fun ride!

* As in, new societal networks that can outcompete (trounce evolutionarily) all existing status quo organizational forms  (this should not be confused with the diminutive form of ‘social networking,’ as in Facebook and Twitter).

Long term, I think this is correct and that Robb is, as usual,  ahead of the curve on what will become the zeitgeist in the next few decades ( I will add that this evolutionary path appears to be happening much faster than I had considered, by at least 15-20 years). The movement in the 21st century will be toward networked civilizations on one end of the spectrum that will be pretty nice places to be and on the other, a kind of emergent, hypermobile, barbarism where life is hell on Earth. 

The proper response for existing institutions is to swing their resources, their mass and their remaining legitimacy behind the triumph of the former and gracefully adapt and acclimate rather than be disintegrated by the latter. I considered this in the essay ” A Grand Strategy for a Networked Civilization” that I wrote for Threats in the Age of Obama (p.208):

….Nation-states in the 21^st century will face a complex international ecosystem of players rather than just the society of states envisioned by traditional Realpolitik. If the predictions offered by serious thinkers such as Ray Kurzweill, Fred Ikle or John Robb prove true, then  technological breakthroughs will ensure the emergence of “Superempowered Individuals”[1] on a sizable scale in the near future.  At that moment, the reliance of the State on its’ punitive powers as a weapon of first resort comes to an end.  Superemepowered individuals, separatist groups, insurgents and an “opting-out” citizenry will nibble recalcitrant and unpopular states to death, hollowing them out and transferring their allegiance elsewhere.

While successful states will retain punitive powers, their primary focus will become attracting followers and clients in whom they can generate intense or at least dependable, loyalty and leverage as a networked system to pursue national interests.  This represents a  shift from worldview of enforcement  to one of empowerment, coordination and collaboration. States will be forced to narrow their scope of activity from trying to supervise everything  to  flexibly providing or facilitating core services, platforms, rule-sets and opportunities – critical public goods – that the private sector or social groups cannot easily replicate or replace.  Outside of a vital core of activity, the state becomes an arbiter among the lesser, interdependent, quasi-autonomous, powers to which it is connected.”

In other words, America and our “leaders” need a Boydian strategy and a ruthless commitment to honest clarity and sacrifice in order to weather the transition and retain some relevance. This is what makes the current cultural trend toward a political economy of oligarchy among the elite so worrisome. Their careerist self-interest and class values will push them to make all the wrong choices at critical junctures.

A quick ‘think” post.

It is generally a bad sign for a SECSTATE so early in an administration to have to come out and deny that they have been marginalized by the White House, as Secretary Clinton felt compelld to do the other day. The denial itself serves as confirmation of the fact.

It is tempting to write this off as another example of traditional, politically-motivated, battles between White House staffers, determined to protect the authority of the POTUS over foreign policy and the bureaucracy at State.  We have seen this struggle in the past with Al Haig, Cyrus Vance, William Rogers, Cordell Hull, Robert Lansing and other SECSTATEs who sooner or later found themselves sidelined and excluded from key foreign policy decisions by the president. However, this is not just a case of Obama insiders distrusting and attempting to “box in” the Clintons as political rivals, by using other high profile players ( though that has been done to Clinton).

Nor is it just that State is grossly underfunded relative to its responsibilities by the U.S. Congress, which it most certainly is. I’m pretty critical of State but to do everything they *should* be doing, and to do the job right, requires a sizable budget increase, perhaps upwards of 50 %. This cut off the nose to spite our foreign policy face niggardliness by the legislature is not new. Go back and read the memoirs of diplomats of a century ago. They wrestled with the same budgetary penury as State has to deal with today; even during WWII when you’d have thought money would be no object, Congress stiffed diplomats in hazardous, war-zone, postings on their food allowances. The foreign service was long the preserve of wealthy, well-connected, white men because back in the day, only they could afford to live on a State Department salary.

No, the hidden problem for the State Department is that in an age of failing, failed and fake states, diplomacy means less than it once did and accomplishes less in a greater number of places. You could replace Hillary Clinton with Talleyrand as SECSTATE and give him $ 100 billion to play with and he’d still be stuck with a collection of chaotic Gap states without effective internal governance, eroding sovereignty and multiplying non-state actors freebooting across international borders. The problem for State is the global evironment and their disinclination to adapt effectively to it as an institution. It’s foreign interlocutors frequently cannot deliver on any deals, even if they wanted to do so. When that is the reality, what role does diplomacy have in policy or strategy?

State needs to overhaul its personnel system and FSO culture to embrace the reality that interagency teamwork at the inception of policy planning is the only way the USG will be able to effectively advance its interests and nurture stability. The age of ambassadors or even mano-a-mano superpower summitry is over, even among great powers because State cannot execute policy across the DIME bureaucratic spectrum much less bring in the private sector on its own. It has neither the imagination nor the power to go it alone. For that matter, State is having enough  trouble just managing its core functions plus public diplomacy and development aid ( the last two so poorly they should be hived off immediately).

SECSTATE Clinton would like to be the Mario Andretti of Obama ‘s foreign policy but what she’s driving amounts to an Edsel. State needs an engineer to re-design it, and an advocate who can pull in the funding, not an operator or manager of the status quo. If State does not change its culture and its structures in the next decade, it is just marking time until some catastrophe results in it being retired to the historical graveyard and replaced with a new agency better suited to the conditions of the 21st century.

Or perhaps the analogy of Cain and Abel?

Remains Show Human Killed Neanderthal

Newly analyzed remains suggest that a modern human killed a Neanderthal man in what is now Iraq between 50,000 and 75,000 years ago. The finding is scant but tantalizing evidence for a theory that modern humans helped to kill off the Neanderthals. The probable weapon of choice: A thrown spear.

The evidence: A lethal wound on the remains of a Neanderthal skeleton. The victim: A 40- to 50-year-old male, now called Shanidar 3, with signs of arthritis and a sharp, deep slice in his left ninth rib. “What we’ve got is a rib injury, with any number of scenarios that could explain it,” said study researcher Steven Churchill, an associate professor of evolutionary anthropology at Duke University in North Carolina. “We’re not suggesting there was a blitzkrieg, with modern humans marching across the land and executing the Neandertals [aka Neanderthals]. I want to say that loud and clear.” But he added, “We think the best explanation for this injury is a projectile weapon, and given who had those and who didn’t, that implies at least one act of inter-species aggression.”

What is interesting about the disappearance of the Neanderthal is that it is hard to explain simply in terms of competition for resources with early Homo Sapiens, given that the global human population was astronomically low. The Neanderthal too, would have had many physical advantages, given their more robust physiology, over their evolutionary cousins. Speculation has ranged from climate change, to immunological differences to the cognitive and cultural.

Could a key cultural difference have been a propensity of Homo Sapiens to make war? To seek out, rather than avoid conflict?

Jamais Cascio of Open the Future has a piece on possible extrinsic, pharmaceutical and evolutionary modifications to human intelligence in The Atlantic Monthly ( I read it on my Kindle):

Get Smarter

….Our present century may not be quite as perilous for the human race as an ice age in the aftermath of a super-volcano eruption, but the next few decades will pose enormous hurdles that go beyond the climate crisis. The end of the fossil-fuel era, the fragility of the global food web, growing population density, and the spread of pandemics, as well as the emergence of radically transformative bio- and nano­technologies-each of these threatens us with broad disruption or even devastation. And as good as our brains have become at planning ahead, we’re still biased toward looking for near-term, simple threats. Subtle, long-term risks, particularly those involving complex, global processes, remain devilishly hard for us to manage.

But here’s an optimistic scenario for you: if the next several decades are as bad as some of us fear they could be, we can respond, and survive, the way our species has done time and again: by getting smarter. But this time, we don’t have to rely solely on natural evolutionary processes to boost our intelligence. We can do it ourselves.

….Yet in one sense, the age of the cyborg and the super-genius has already arrived. It just involves external information and communication devices instead of implants and genetic modification. The bioethicist James Hughes of Trinity College refers to all of this as “exo­cortical technology,” but you can just think of it as “stuff you already own.” Increasingly, we buttress our cognitive functions with our computing systems, no matter that the connections are mediated by simple typing and pointing. These tools enable our brains to do things that would once have been almost unimaginable:

• powerful simulations and massive data sets allow physicists to visualize, understand, and debate models of an 11?dimension universe;
• real-time data from satellites, global environmental databases, and high-resolution models allow geophysicists to recognize the subtle signs of long-term changes to the planet;
• cross-connected scheduling systems allow anyone to assemble, with a few clicks, a complex, multimodal travel itinerary that would have taken a human travel agent days to create.

If that last example sounds prosaic, it simply reflects how embedded these kinds of augmentation have become. Not much more than a decade ago, such a tool was outrageously impressive-and it destroyed the travel-agent industry.

That industry won’t be the last one to go. Any occupation requiring pattern-matching and the ability to find obscure connections will quickly morph from the domain of experts to that of ordinary people whose intelligence has been augmented by cheap digital tools. Humans won’t be taken out of the loop-in fact, many, many more humans will have the capacity to do something that was once limited to a hermetic priesthood. Intelligence augmentation decreases the need for specialization and increases participatory complexity.