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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.

My friend Bruce Kesler no longer is a “regular” blogger but he has recently found the time for an occasional guest-post at Maggie’s Farm. It’s good to see Bruce back in the game even on a sometime basis and I’m pleased to point your attention to his following post:

Appearances and Mood

What McCain did right and conservatives wrong

 By Bruce Kesler

Over the past four years, conservatives have debated whether the Republican Party is serving them and the country.  This discussion was stirred by several  proposals by the Bush administration — particularly not vetoing some budget-busters, the nomination of Harriet Miers to the Supreme Court, and the immigration reforms that didn’t prioritize border controls – and the failure to fire back at the gross distortions and language by opponents.

Bush earned respect for his stalwart stance in Iraq, but even there lost points for his failure to act earlier to change a troubled strategy and command.  Seeming backpeddling and soft-shoeing on the threats from Iran and North Korea, though following closer to the liberals’ playbook, didn’t earn him support from liberals or conservatives.

The debate among conservatives and libertarians after this election is likely to grow much more heated, whether McCain wins or loses.

Although conservatives have stood most strongly behind McCain, conservatives do not expect much thanks or loyalty from McCain if he wins, and do expect McCain to continue his practice of alliance with many liberal proposals, as he has in the past.  That alone will add heat the pot.  On the other hand, conservatives will welcome his Trumanesque temper and bluntness replying to the likely continuation of intemperate Democrats in the Congress.

If McCain loses, conservatives will likely place most of the blame on him and his campaign for failing to take more advantage of Obama’s coterie of radical mentors, to alert more voters of their dangers.

At the same time, in defense of McCain’s campaign approach, those most likely to hold these associations as important are aware of them.  Meanwhile, in a campaign during which the overwhelming portion of the major media have utterly failed to research or expose Obama’s lack of record and record of shady allies, McCain would likely not have gotten much further in educating the wider public.

So, McCain has concentrated on trying to woo marginal voters.  Those non-partisans react more to appearances and mood.

McCain earned none of the points he should have for trying to tackle the credit-economic meltdown, even by comparison to Obama’s passivity.  Neither did McCain draw attention to the Congress’ tainted hands in creating it, but there are many Republican members who sat by and prospered from the false sense of well-being that preceded the deluge.  McCain did not throw the Congressional Republicans under the bus, as Obama repeatedly did every time a mentor was exposed.  And, McCain did exhibit a bully optimism in reacting to the meltdown and focused on quick actions.

It is that indefatigable optimism and sense of fair play that has been highlighted and redounded to his credit.  This is in line with his military and political record of bravely meeting challenges.  Despite every odd, McCain has fought the election to a near thing.

Conservatives must recognize that, for any of McCain or his campaign’s failings, it is among conservatives that reform must come.  Much of our NY-DC commentariat are corrupted by overlong proximity to comfortable power and cocktail circuits, exhibiting callowness, lethargy or outright capitulation.  Their lack of principle and intestinal fortitude must be replaced.  Much of our bloggers have been consumed by editorializing and not organizing.  The think-tanks we built and many major donors have been cringing or avoiding confrontation.  Rank and file conservatives mostly looked to this inadequate leadership instead of to ourselves to step forward and fight.

It will take a major overhaul to revive the conservative movement.  As in 1964, it will not come from the establishment, but must depend on openness to new participants and leaders.  Of course, that does not mean fringe elements or ideas.  The crucial role that National Review played post-1964 in guarding against that will require a new central forum of conservative sanity and principle.

No one can predict where they will come from.  But they must be encouraged, welcomed and supported when they appear.  Indeed, each of us must see in ourselves the willingness and determination to be those participants and leaders

Wise words.

American conservatism needs a substantial overhaul – perhaps even a 12 Step program – to recover it’s essence as an optimistic philosophy that profoundly empowers individuals and trusts them to make their own choices. Then, in my opinion, conservatives need to harness that spirit to a thorough comprehension of how globalization changed the world to operate in terms of metasystems and networks, so as to balance economic dynamism with resiliency (and learn how to get that point across in normal English). Then go on message and do not deviate.

The other side, if Senator Obama wins Tuesday, will be so consumed with jerry-rigging top-down, hierarchical, statist, solutions out of a fantasist version of the New Deal that they will inevitably overreach and create an opening for a new brand conservatism four years from now.

Or perhaps just two years. Time to get busy.

The SCOTUS decision in Heller is important. Let me crib from Lexington Green:

The enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Scalia, The District of Columbia v. Heller

Heller was not just an affirmation of the common sense and historical interpretation of the 2nd Amendment as an individual right -indeed, the idea that the people did not have the right to be armed except at the pleasure of and in service to the national or state governments would have struck the Founders as outrageous tyranny – the entire Bill of Rights was added to placate moderate antifederalists who were unmollified by Hamiltonian assurances regarding Federal power – but of the right of self-defense itself. Not everybody believes that right exists. Or more precisely, they seek to convince you against all history and common sense that you have no right to preserve your life when threatened.

That ancient underlying right emanating from Natural Law is the real target of gun grabbers and authoritarian bureaucrats.