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In the continuing debate against Libertarians (and all other ideologues of all stripes, for that matter), here’s the bottom line: There’s only one rational ideology to adhere to, and that is to strive to be rational; there’s only one humane ideology to adhere to, and that is to strive to be humane.

Striving to be rational is not a vague, relative term: We have centuries of experience in the development of disciplined, methodical reasoning. We’ve developed scientific methodology and a wide spectrum of variations of it adapted to situations in which variables can’t be isolated, statistical data analysis, research techniques designed to rigorously minimize the influence of bias and to maximize accuracy. We’ve developed legal procedure based on a debate between competing views framed by a set of rules designed to ensure maximum reliability of the evidence being considered and to identify the goals being pursued (adherence to formally defined laws). We’ve developed formal logic and mathematics, rules of deduction and induction, which maximize the soundness of conclusions drawn from premises, the premises themselves able to be submitted to the same rules for verifying raw data and drawing conclusions from that data.

Not everyone is trained in these techniques, but everyone can acknowledge their value and seek to participate in privileging them over other, more arbitrary and less rational approaches to arriving at conclusions. A commitment to democracy and pluralism does not require a commitment to stupidity and ignorance. The mechanisms by which we balance the need for all to have their say and all interests to be represented with the need for the best analyses to prevail in the formation of our public policies is an ongoing challenge, but we can all agree that we should meet that challenge head-on, rather than pretend that the drowning out of the cogent arguments of informed reason by the relentless and highly motivated noise of irrational ignorance is the height of self-governance.

Striving to be humane is not a vague, relative term either: We have centuries of development of thought concerning what that means, including John Rawls’s “A Theory of Justice”, which provides a pretty good heuristic guideline of what humane policies should look lie (they should be the kinds of policies that highly informed and rational people would choose if they didn’t know what situation they were going to be born into or what chances of life they were going to encounter). This is basically a derivation and elaboration of the Golden Rule, which exists in some form or another in virtually every major religion on Earth. We all understand that justice requires that everyone be assured the same opportunity to thrive, and while we can agree that that is a formidable challenge that is more of an ideal toward which we can continue to strive than a finished achievement we can expect to accomplish in the near future, and that important counterbalancing imperatives must be considered and pursued simultaneously (in other words, that we need to balance the challenges of creating an ever-more more robust, fair, and sustainable social institutional framework), we can also agree that it is one of the guiding principles by which we should navigate as we forge our way into the future.

So, guided by our humanity, we have a clear objective that all of our public policies should strive to serve: Maximizing the robustness, fairness, and sustainability of our social institutional landscape to the greatest extent possible, such that no individual, if fully informed and rational, would want to change any aspect of it if they did not know where or when or into what situation they would be born or what chance occurrences they would encounter in life. And we have a clear means of most effectively pursuing that objective: Robust public discourse in which we allow the most cogent, information-intensive, methodologically and analytically sound arguments regarding how best to maximize the robustness, fairness and sustainability of our social institutional landscape, on a case-by-case, issue-by-issue basis, to prevail.

And THAT, what I just described above in the preceding five paragraphs, is really the only ideology we need, the only ideology we should adhere to as we move forward as a polity, wise enough to know that none of us knows all that much, humane enough not to blithely dismiss –whether implicitly or explicitly– the suffering and gross injustices endured by numerous others, intelligent enough to know that the appropriate role of a democratically and constitutionally circumscribed government in the modern world cannot be intelligently reduced to a handful of platitudes, informed enough to recognize that the rule of law is predominantly a procedural rather than substantive ideal, and smart enough to recognize that it is our commitment to these procedural and methodological disciplines of informing and devising public policies that will define how intelligently, humanely, and effectively we govern ourselves.

What continues to stand against this simple and clear ideology of a commitment to reason and humanity realized through disciplined procedures and methodologies are the plethora of blind dogmas, substantive false certainties, and precipitous conclusions that litter our shared cognitive landscape. Whether it is Marxism, politically active evangelical Christianity, politically active fundamentalist Islam, Libertarianism, or any other substantive dogma which presumes to know what we are in reality continuing to study, debate, and discover, this perennial need by so many to organize in an effort to impose a set of presumptive substantive conclusions on us all, one ideological sledgehammer or another with which to “repair” the machinery of government, is an obstacle rather than productive contribution to truly intelligent and humane self-governance.

It doesn’t matter if any given adherents to such an ideology are right about some things and those arguing from a non-ideological perspective are wrong about some things; it would be extraordinary if that were not the case, because disciplined analysis seeks to track a subtle and elusive object (reality), while blind dogma, like a broken clock, stands in one place, and thus is right on those rare occasions when reality happens to pass through that spot. What matters is that we all say, “I am less committed to my tentative conclusions than to the process for arriving at them, and would gladly suspend any of my own tentative conclusions in exchange for a broad commitment by all engaged in political discourse and political activism to emphasize a shared commitment to reason in service to humanity.”

The claim made by some that libertarians aren’t against using government in limited ways to address our shared challenges and seize our shared opportunities, while insisting that the problem now is that we have “too much government,” ignores the incredible breadth and depth of challenges and opportunities we face, challenges and opportunities that careful economic analysis clearly demonstrate often require extensive use of our governmental apparatus to meet and to seize. That is why every modern, prosperous, free nation on Earth has a large administrative infrastructure, and why every single modern, prosperous, free nation on Earth has had such a large administrative infrastructure in place since prior to participating in the historically unprecedented post-WWII expansion in prosperity and liberty: Because, as an empirical fact, that is what has thus far worked most effectively. But that does not preclude the possibility that the approach I’ve identified would lead to an overall reduction in the size and role of government; it only requires that in each instance the case be made, with methodological rigor, that any particular reduction in government actually does increase the robustness, fairness, and sustainability of our social institutional framework.

The challenge isn’t to doggedly shrink government in service to a blind ideological conviction, but rather to wisely, with open eyes and informed analyses, refine our government by shrinking that which should be shrunk and expanding that which should be expanded, an ongoing endeavor which requires less ideological presumption and more analytical intelligence. We  neither need nor benefit from neatly packaged blind dogmas; we need and benefit from an ever-greater commitment to disciplined reason in service to unflagging humanity.

Now, the legitimate contention arises that that is fine in theory, but in the real world of real people, ideological convictions and irrational decision-making prevail, and to refuse to fight the irrational and inhumane policies doggedly favored by some by any and all means possible, including strategies that do not hamstring themselves by seeking an ideal that does not prevail in this world today, is to surrender the world to the least enlightened and most ruthless. To that I respond that I do not oppose the strategic attempts by those who are informed by reason and humanity to implement the products of their discipline and conviction through strategic and realistic political means, but only implore of them two things: 1) That they take pains to ensure that their conclusions actually are the product of reason in service to humanity, and not simply their own blind ideological dogma, and 2) that they invest or encourage the investment of some small portion of our dedicated resources, some fraction of our time and money and energy directed toward productive social change, toward cultivating subtler cultural changes that increase the salience of reason and humanity in future political decision-making processes. I have outlined just such a social movement in A Proposal: The Politics of Reason and Goodwill.

Another legitimate contention is the recognition of our fallibility, and the need to rely on bedrock principles rather than arrogate to ourselves a case-by-case, issue-by-issue analysis, much as we limit our democratic processes with bedrock Constitutional principles that we can’t elect to violate. There is much truth in this, but it either becomes one more rational consideration that we incorporate into our ongoing effort to do the best we can in a complex and subtle world, or it displaces our reason and humanity entirely and reduces us to automatons enslaved by a historically successful reduction of reality. We see these alternatives in regards to how the Bible and Constitution are utilized, by some as guides which inform their own reason and humanity and require conscious interpretation and application, and by others as rigid confirmation of their own dogmatic ideology, the latter often through selective or distorted interpretations of their own.

We’ve seen the value of improved methodology and increased commitment to methodological discipline in the realm of science, which has bestowed on us a greatly invigorated ability to make sense of a complex and subtle universe. We’ve seen the value of improved procedures and procedural discipline in law, which has increased the justness of our criminal justice system (certainly an improvement over “trial by ordeal,” or the Inquisitor’s securing of a confession by means of torture, for instance). We’ve seen the value of improved methodologies in selecting and holding accountable political leaders, through carefully monitored “free and fair” elections and the supremacy of the rule of law over individual power. To be sure, all of these are mere steps forward, not completed journeys; the human foibles they partially mitigated are not entirely erased from the new paradigms they preside over. But they are steps forward.

And, though it’s more debatable, with more and greater atrocities seeming without end challenging the assertion, I think our humanity has grown in recent centuries as well. Historians almost universally agree that a larger proportion of the human population suffered violent death the further back in time you go. Even while exploitation and inhumanities persist, they are increasingly viewed as morally reprehensible by increasing numbers of people in increasing regions of the Earth. We have, indeed, as a national and international society, improved our formal commitment to human rights, even if our realization of that commitment has woefully lagged behind. It remains incumbent on us to close that gap between the ideal and the reality.

What, then, are the logical next steps for civilization? How do we advance the cause of reason in service to humanity? The answer, I believe, is to extend and expand the domains of these methodologies and attitudes, to increase the degree to which they are truly understood to be the defining vehicle of human progress. If it’s good to have a small cadre of professionals engaging in science, it’s even better to have many more incorporating more of that logic into their own opinion formation process. If it’s good for the election of office holders to be conducted through rational procedures, it’s even better for the knowledge and reasoning of those who vote in those elections to be fostered through more rational procedures as well. And if it’s good for some of us to include larger swathes of humanity in the pronoun “we,” then it’s even better for more of us to do so to an ever greater degree.

Even if the effort to cultivate a movement in this direction only succeeds, over the course of generations, in making the tiniest marginal increase in the use of disciplined reason, and the tiniest increases in the degree of commitment to our shared humanity, by the tiniest marginal fraction of the population, that would be a positive achievement. And if, alongside such marginal increases in the reliance on disciplined reason and commitment to humanity, there is also a marginal increase in the acknowledgement that the products of disciplined reason are more useful to us as a society and a people than the products of arbitrary bigotries and predispositions, and that the recognition of the humanity of others unlike us is more morally laudable than our ancient tribalistic and sectarian reflexes, that, too, would be a positive achievement.

The influence of reason in our lives has been growing steadily for centuries and has had a dramatic impact on our social institutional and technological landscape, though it has only really ever been employed in a disciplined way by a small minority of the human population. The increase in our humanity as well, in such forms as the now nearly universal condemnation of slavery, the increasing recognition of the value of equal rights for all, the generational changes in our own society with some bigotries withering with time, can also be discerned. Even marginal increases in the employment of reason and its perceived legitimacy, and of our shared humanity being the ends to which it is employed, can have very dramatic effects on the robustness, fairness, and sustainability of the social institutional and technological landscape of the future, and on the welfare of human beings everywhere for all time. This is the path that all of our most laudable achievements of the past have followed and contributed to, and it is the path we should pursue going forward ever more consciously and intentionally, because that is what the ever fuller realization of our humanity both requires of us and offers us the opportunity to do.

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Click here to learn about my mind-bending epic mythological novel A Conspiracy of Wizards!!!

(The following is the beginning of an exchange on a libertarian’s Facebook page, with the first comment being his status update. It continued, as these exchanges often do, with my repeated suggestion that we step back from our substantive certainties and agree to base our discourse on the premise that we’re all fallible, and if we all strive to be rational and humane people, in disciplined and methodical ways, it would serve society better than our competing blind ideologies, and with this suggestion being responded to with every excuse imaginable for why it couldn’t be accepted. And this is the great ongoing tragedy of our shared existence, not just the persistence of irrationality, but the emotional investment in its preservation against all suggestions and invitations to work toward transcending it.)

KW: God Bless You for your choices, now kindly step aside as I make my own.

SH: What if your choice were to hurt others? Should I kindly step aside then? So, you have to qualify it to say “now kindly step aside unless my choice is to hurt others and good citizens need to stop me from doing that.”

But lots of things hurt others in subtle ways. We are interdependent, and our actions affect one another. So some of our laws have to recognize that there are individual actions that we each can engage in that cause one another more harm than we, as a society, can allow. For instance, if I do work in my home that produces some form of toxic waste, and I dump that waste on my own property in such a way that gets into the groundwater that others drink and causes deadly disease among those who drink it, then don’t we as a society have good reason to say that no individual can dump toxic waste on their own property?

There are so many things like that in our lives, so much interdependence, that the meme that each should be absolutely free to do whatever they choose really serves more to obscure the real challenge of determining where to draw the line between individual liberty and agreed upon limits to it for mutual benefit than to enlighten or guide us in any meaningful way.

RA: Live Free!

SH: Self-governing on the basis of slogans rather than in-depth, nuanced, and diligent thought isn’t really that good an idea. One of the things you’ll notice about every one of the most horrible chapters of modern world history is that the authors of those horrors were all always deeply immersed in moving slogans.

JW: @Steve you are dangerously close to the most dangerous slogan of all time “for the greater good”. How about, “my ability to swing my arm ends at your nose”. People have to learn to live in close proximity to one another without resorting to trying to live each others lives for them.

SH: J, our own Constitution declares the importance of governing for “the general welfare.” The fact is that I live by no slogan at all, but rather by the belief that there is only one ideology to which any of us should ever adhere: That of striving to be rational and humane people, wise enough to know that none of us knows all that much, working together to do the best we can in a complex and subtle world. That’s not “a slogan,” but rather a philosophy, and not a shallow philosophy that fails to capture the true complexity and subtlety of the world we live in, but rather one based squarely on the recognition of that complexity and subtlety.

As I’ve said repeatedly, I don’t consider the liberal-conservative divide the fundamental one, nor is it how I define my own commitments. I am committed to the disciplined use of human consciousness in service to humanity, period. That includes using disciplined reason, imagination, research, analysis, contemplation, and discourse, recognizing our limitations, uncertainties, and the value of allowing some organic processes to function without trying to impose ourselves on them at every turn. It includes many, many things that can be discussed and debated and ever better understood by ever more people.

If a person comes to that process with that attitude self-identifying as a conservative, that’s fine with me. If they don’t embrace that process at all, but self-identify as a liberal, then they’re as much a part of the problem as those who don’t come to that process at all and self-identify as conservatives. The blind ideologies are not the answer; the processes that best liberate and mobilize human genius are, including the genius of laissez-faire to the extent and in the ways and under the circumstances that laissez-faire is best recommended by our best understandings of how the world works. 

But that’s not what happens. What happens is that people come fully armed with an array of false certainties arrived at haphazardly, through socialization and indoctrination and emotional predisposition, and treat those false certainties as indisputable truths. We all do it to some extent, even those of us who do it to the least extent, because that’s how the human mind works: We reduce an infinitely complex and subtle reality to manageable form in order to function in the world, and mistake our cognitive models for the reality itself. A critical step toward being rational and humane people is recognizing that, and working with it.

But when people declare that they have the one right substantive ideology, they are digging into the opposite cognitive orientation, the cognitive orientation which clings most tenaciously to their own false certainties, and is most insulated from actual fact and reason and growing comprehension. Do I think that that is more closely associated with modern American conservatism than modern American liberalism? Yes, but that’s not really the point. The point is that all of us should strive to be wiser than that, and those who refuse, regardless of what ideology they identify with, merit criticism for refusing. 

I always refer to reason AND humanity, though in many ways humanity is implicit in reason, as long as we agree on certain underlying values of fairness and long-term functionality, because we are ultimately interdependent, and reason dictates that we recognize our interdependence and act not under the pretense that it doesn’t exist but with the constant awareness that it does. “Liberty” does not mean the absence of interdependence, but rather a particular orientation to it, a value embedded within it that only has meaning in its context. Those who neglect to understand that end up turning the beautiful and valuable concept of human “liberty” into a cruel and ugly excuse for acting in predatory and implicitly inhumane ways. 

It’s no coincidence that slave owners used the concept of “liberty” to rationalize their commitment to the institution of slavery (the greatest assault on human liberty in the history of our nation, matched only by the displacement and destruction of the indigenous population), arguing that to deny them (the slave owners) their property (their slaves) would be an assault on their (the slave owners’) “liberty” (see John C. Calhoun’s “Union and Liberty”). And it’s no coincidence that modern Tea Party/libertarian ideology is part of a continuous ideological thread reaching back into that same use of the concept of “liberty.” Knowing and understanding history, deeply and richly and thoroughly, is useful to our present understandings and commitments. 

I could go on. I could write books on this. But there is only one rational place to start, only one rational foundation to build on, and that is reason itself, not the arbitrarily claim of already having embodied it in one’s current substantive certainties (as some I’ve interacted with insist upon, as their way of rejecting the notion that we should all strive to be rational and humane people), but in a commitment to the methodologies and procedures which have proved in recent centuries to be the most robust for minimizing bias and maximizing accuracy, and using those procedures –which include debates that aren’t just shouting matches but actually adhere to the rules of debate, the rules of evidence, the rules of logic, or whose relative merits are judged by how well they adhere to them—in service to our shared humanity. 

It’s a simple premise. I think it would generally favor what are now considered liberal positions, but if I’m wrong, I’d rather surrender my own false certainties than insulate myself from reason in order to preserve them. It is the process of reason in service to humanity that I am committed to, not to any current assumption of what conclusions it leads to. 

And that’s something that all rational and humane people should be able to agree to, should be able to rally around. I know some moderate conservatives who do, and I identify more with them, am more reassured by their presence in our polity, than I am by dogmatic liberals who don’t. And if we can simply put aside the shouting matches over precipitous substantive false certainties, and instead agree to work at being that kind of a polity, a rational and humane polity, then this would be an even more admirable and extraordinary nation than it already is (if that’s what it already is), and an even greater gift to the world than it already is (if that’s what it already is). And we would leave on the margins, on the dust heap of history where they belong, the commitment to ignorance and bigotry and oversimplistic dogma that some insist on adhering to, moving forward instead as an increasingly rational and humane people. 

KW: Steve, why do you use my status to go on your diatribe. I respect your take but you immediately disregarded the simple fact that I am Libertarian and not a single one of my choices harm another. 

JW: I know better than to feed the trolls but I am going to respond to your essay Steve. Shakespeare said “Brevity is the soul of wit”. At least with the simple statements that K and I have made, a reasonable person might gather the basics of our personal philosophies. I read through your entire post and honestly could not make a determination of where you fall philosophically. Given the lengths to which you used as many words as possible to say as little as possible, I am inclined to believe that you are a statist leaning liberal that would bind us in the chains of some nebulous “social contract” that no party signs yet all are supposed to abide by. Orson Wells took such thoughts about “humanity” to its inevitable conclusion in Animal Farm where of course, all are equal but some where more equal than others. Unlike K, I will not respect your philosophy if it is one that would consign us to the politics of pull, where influence becomes the prime product of a society and the real producers are enslaved to the “greater good”.

SH: K, the whole purpose of the rule of law is that we can’t simply rely on each other to do the right thing, and that we must govern ourselves, as a people, with laws that bind us and limit us in certain ways for mutual benefit. You say that I disregard the fact that you are a libertarian and that your choices harm no one else. No, I dispute the notion that we don’t need laws because some people are not inclined to break them in the first place, or that the recognition that we do need laws is compatible with the ideologically exclusive emphasis on absolute freedom.

As for why I use your status to go on my diatribe: If one propagates defective ideas that can be harmful to humanity where I can challenge them, then I will challenge them.

J, you couldn’t make that determination because not all philosophies are dogmas, and mine is one such that is not a dogma. It is a commitment to the same foundations that inform science and law, a commitment to methodologies and procedures rather than to presumptions and false certainties. “My” philosophy is not reductionist, is not the folly of imposing on a complex world a simplistic panacea. It is, rather, a commitment to reason (which is served by disciplined methodologies and procedures that have proved their worth over the last several centuries) in service to humanity (rather than in service to some segment of humanity at the expense of other segments of humanity).

You assume I’m an adherent to your caricature of left-wing ideology, to which you relegate everyone who is not a member of your preferred reduction of reality, not recognizing the existence of any form of political economic thought that does not fit neatly into one or the other of your two caricatures of political economic thought. It’s a tidy but shallow world you live in. Maybe it’s time to consider the possibility that it’s not the last word of human comprehension. (And that’s the point, isn’t it? Knowing that we don’t know rather than insisting that we do, and, in the womb of that wise humility, actually learning, discovering, growing, approaching the challenge of engaging a complex and subtle world with imagination and analytical discipline rather than blind ideological fervor. THAT is the real political divide in America today, whether to be a raging ideologue, or an imaginative and analytical participant in an on-going enterprise.)

“My” philosophy is to start with the simple agreement among all who are willing to strive to be rational and humane people. It may seem insignificant, but I think that it is an important step, because both reason and humanity are easily lost to the zeal of blind ideologies. So, we say, “look, I know that I’m fallible, and that the world is complex, so lets agree, first and foremost, that we’re going to strive to be rational and humane, and take it from there.” it’s a good agreement to make, a good foundation to build on, and very much in the spirit of the formation of this nation, which was founded on the Enlightenment philosophy that a people can and should govern themselves rationally and humanely, debating as rational citizens rather than merely clinging to ideological assumptions.

Once we make that agreement, we can discuss how to realize it. Clearly, scientific methodology is better than other preceding and generally more haphazard approaches when it comes to understanding empirical phenomena, to ascertaining factual and systemic knowledge. Similarly, legal procedure is preferable to, for instance, trial by ordeal, for ascertaining guilt or innocence, or ascertaining facts and applying the law to them. These are developments over recent centuries that have increased the role of rationality in our lives. We can work to extend their domain beyond the halls of academe and the courts of law, and to employ more of their logic, and reap more of their benefits, in public discourse in general.

And it all starts with something as self-evidently desirable as simply agreeing to strive to be rational and humane people, and giving that agreement priority over any other ideological commitments.

George Orwell (not Orson Wells) wrote “Animal Farm” about an ideology coopted in service to oppression. Any ideology can be used as such a pretext, even one that claims to exist for the opposite purpose (as, indeed, Communism itself did). Ideologies always insist that every other ideology is the road to Hell, and that they alone provide salvation. It’s a common theme. They use rousing symbols and slogans to proclaim themselves the defenders of some noble ideal, and then, if they are not more procedurally than substantively oriented, inevitably betray that ideal.

A commitment to humanity is not a commitment to totalitarianism. But a failure to commit to humanity, to commit to reason, is an invitation to the institutionalization of irrationality and inhumanity, as has so often happened in so many times and places. Ironically, Libertariansim has something fundamentally in common with Marxism, and that is profound and oversimplistic political economic dogmatism. Marxism identified the state as the solution to all problems, and Libertarianism identifies the market as the solution to all problems, though economists well understand that neither is and that both have a vital role to play.

We should all act more like economists and less like ideologues when discussing economic issues. We should, in general, all strive to act more like rational and humane people, wise enough to know that we don’t know much, working together to do the best we can in a complex and subtle world. That should be our one and only ideology

By the way, the concept of ‘trolls” on Facebook has clearly become distorted to mean “anyone who invades an ideological echo-chamber with any perspective discordant with that of the pariticpants of the echo-chamber.” If that is the new definition of “troll,” than I’m proud to be one, because these echo-chambers are unhealthy to our democracy and do poor service to the growth of reason and understanding. We need, instead, a robust, informed and informative, rational and disciplined, public discourse, where ideas are exchanged and challenged, and we work together to improve our understandings and our ability to cooperate for mutual benefit.

I would limit the term “troll” to mean anyone, on any thread, whose contribution is intended or designed to drown out signal with noise, and reduce rather than increase the informativeness and rationality of the discourse taking place.

Click here to buy my e-book A Conspiracy of Wizards for just $2.99!!!

Buy my e-book A Conspiracy of Wizards

I had an epiphany during a panel discussion of Lobato v. State of Colorado (the Colorado district court holding that the Colorado public school system violates the state constitutional requirement that the state provide “a thorough and uniform” public education system, and that vastly increased funding would be necessary to be in compliance with the state constitution) at the annual policy summit of CLLARO/CLF (Colorado Latino Leadership, Advocacy and Research Organization/Colorado Latino Forum): A constitution is unenforceable in a state that allows direct democracy, or what I call “government by plebiscite” (usually in the form of the initiative process, through which the polity can directly amend the constitution or pass legislation, entirely circumventing the state legislature), and therefore such direct democracy is ultimately incompatible with both constitutionalism and the rule of law.

The panel consisted of Lisa Calderon (the mother of one of the plaintiffs), James Eklund (an attorney for the state), Prof. Kelly Hupfeld (UC Denver Assistant Dean of the School of Public Affairs) and Liane Morrison (Executive Director of GreatEducation Colorado). Two of the panelists (Lisa Calderon and Liane Morrison) were advocates of and in agreement with the Lobato decision; one (Kelly Hupfeld) was academically fascinated by and apparently somewhat favorable toward the decision; and one (James Eklund) had the thankless and clearly not entirely heartfelt task of presenting the state’s opposition to the decision to an audience of progressives overwhelmingly on the other side.

The discussion revolved around the familiar issues of quality of education, deficiencies in funding, the constraining constitutional provisions of TABOR and the Gallagher amendment (which constrain Colorado state government taxing and spending power, and require the state to submit any proposed tax increases to the electorate for approval), and the question of whether the court overstepped its bounds and addressed what is properly “a political question” and therefore not within the competence of the court to address (a separation of powers issue). For the record, I’ll state that I’m agnostic regarding the central legal question involved in the decision (i.e., whether it was the court’s role to quantify in dollars what constitutes “thorough and uniform,” or whether that is a political question to be addressed by the state legislature), but wholeheartedly agree with the decision as a matter of public policy, and am glad to see it as a potential catalyst for much needed systemic change.

(As an aside, non-lawyers aren’t always familiar with, or interested in, the distinction between legal analysis, on the one hand, and social/political/economic public policy analysis, on the other. But this distinction is a vital one to constitutional government and the rule of law, and I think we’d be well-served to make it a more commonly understood aspect of our social institutional landscape, a goal, ironically, that could be more effectively met through a better-funded and designed public education system.)

Of the facets of Lobato directly discussed, the reference to TABOR and Gallagher comes the closest to identifying what I think is really the most essential issue implicated by this decision, though it was raised in too superficial and limited a way to identify that issue clearly. Some might take exception with this claim, arguing that the deficiency in school funding and subsequently in quality is the central issue, but I am not talking about the obvious and fairly easy to understand political ideological battle between those who, on the one hand, recognize that we have underfunded and underperforming schools, and those who, on the other, believe that less government is always better government (the latter delusion being one I address at length and in depth is a series of essays hyperlinked to in the fourth box at Catalogue of Selected Posts). Rather, I’m talking about the subtler and more structurally fundamental question of whether the rule of law and governmental accountability can exist in the absence of a government to be held accountable.

Though TABOR and Gallagher don’t eliminate government entirely, they do diminish its role sufficiently to raise this question, because compliance with the court order to dramatically increase public school funding is, in reality, virtually impossible for the government to accomplish without the electorate agreeing to it, and if there is no concise and identifiable population of people (e.g., the state legislature) that can be held legally accountable for refusing to obey the court order, how can the court order possibly be enforced? And if a court order mandating governmental compliance with the state constitution can’t be enforced, how can the state constitution be said to exist as a legally relevant and effective document? In other words, in circumstances when direct democracy makes the enforcement of court orders mandating constitutional compliance impossible, direct democracy is incompatible with constitutionalism and the rule of law!

Certainly, there are subtleties and complications involved in this analysis. Courts never have troops to enforce their orders, and I may be exaggerating to some extent the distinction between a state legislature choosing to ignore a court order and a populace choosing to ignore a court order. But, while the distinction may be less stark than I have made it, I think it still exists, and is still critically relevant: A state legislature consists of a very limited number of identifiable individuals who can be held directly responsible for violating a court order, while an entire electorate is comprised of a large population of ultimately anonymous individuals who can not be held directly responsible for defying a court order.

Many, perhaps most, court orders directed against governments require state expenditures to be carried out. Desegregation in the Civil Rights era certainly did, for example. Those who hold the purse strings are those who can be held responsible for either complying with or disobeying such court orders. If the purse strings are held too diffusely to hold anyone responsible, then such court orders are essentially meaningless, and therefore so are the laws they serve.

One can argue that while direct democracy is incompatible with a bill of rights which protects the rights of individuals from the vagaries of power, including the rights of minorities from the democratic power of majorities, it is not incompatible with a constitution, since a constitution need not include a bill of rights. A constitution might say, instead, that as long as majorities exercise their power according to a prescribed law, which is ultimately up to those same majorities to interpret, then the rule of law has been adhered to. But this is a sham rule of law, only marginally better than the “rule of law” created on the spot by the whims of a ruthless dictator (since even dictators hold power in part by dispensing favors to supporters who form with the dictator a ruling faction, and the tyranny of the majority is nothing more than such a faction that is at least one person –though never necessarily more than one person– larger than half the population).

In other words, such a “constitution” is merely a ruthless dictatorship of a bare majority over all others, always subject to the caprice of that majority, regardless of how that maj0rity might choose to exercise it. If such a majority decided to interpret its constitution to permit the execution on sight of everyone with green eyes, then that would be within the law as defined by this “constitutional” society. A law which protects only those who wield power, whether they are few or many, is no law at all, but rather naked tyranny.

In reality, constitutions not only protect minorities from majorities, but also majorities from themselves, since it is often the case that foolish fanaticisms, sometimes entirely organic and sometimes fabricated or fanned by and for a minority with resources to influence popular opinion, inform mass decisions that are self-destructive. A majority mobilizing its genius through a process of careful reflection and contemplation to guide and channel its future passions (i.e., by drafting a constitution) is likely to fare better than a majority which simply surrenders to its own ephemeral whims.

This argument is related to the argument by the plaintiffs in Kerr v. State of Colorado, a challenge to the constitutionality of TABOR under the U.S. Constitution, which “requires all states to have a Republican Form of Government embodied in a representative democracy” (http://www.scribd.com/doc/56167554/Kerr-vs-State-of-Colorado-Challenge-to-Colorado-Taxpayer-Bill-of-Rights-TABOR-Amendment). In the complaint, the plaintiffs reference Federalist #10 (by James Madison), which states:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

But the observation in this essay goes beyond that of Madison: Not only does representative (as opposed to direct) democracy temper passions and protect minorities from majorities, but it is ultimately indispensable to the very existence of the rule of law!

“The Father of the U.S. Constitution” understood the defects of direct democracy, and condemned those who advocated for it. A careful analysis of the effects of direct democracy demonstrate that it is fundamentally incompatible with the existence of an effective constitution and the rule of law. Ironically, once again, it’s precisely those who arrogate to themselves the mantle of defenders of the Constitution who are the ones against whom it must be defended.

Buy my e-book A Conspiracy of Wizards

 (This essay was a final exam paper for a Legislative Practice class with Prof. Paul Campos – “the philosopher” referred to in the essay- at the University of Colorado Law School, written in December, 2008)

“The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”

-Edward Gibbon, “Decline and Fall of The Roman Empire”

One need not be a solipsist to recognize that he cannot refute the unreality of a law by kicking either it, or its unambiguous and definitive meaning, but neither need one be a Bishop Berkeley to recognize that the reality of law is precisely the fact that we imagine it to have one. We have focused this semester on the elusiveness of the meaning of any given law, and on the various fictions employed to disguise that elusiveness. This, of course, is not a phenomenon particular to law, but rather a basic linguistic (and epistemological) fact: The ambiguity of language (and, more generally, the individuality of perception and cognition) produces a multiplicity of possible interpretations. Any text (or communicative act), especially one that is authored by multiple people through some collective process (such as illustrated by the convoluted politics by which the Civil Rights Act of 1964 was passed), has no single intent or original meaning, nor does it remain tethered to the context of that process when later readers (or audiences) implement it. Even the meaning of a single text by a single individual is not a fixed entity: Is it what the author intended, or what each interpreter understood? Should it be interpreted literally when experience and context suggest that the purpose of the text is better served by filling in the blanks and adapting it to changes in circumstances?

Given the fact that the interpreted law is a chameleon molded by the various attributes of various minds employing various techniques serving various biases and predispositions, it is, arguably, merely a sham, an “opiate of the masses,” which the magistrate finds useful because it legitimates his power and enables him to better herd the beguiled sheep. To serve this function, the people must be duped by the sham, must accept the law –arrived at by all the various modes of legal interpretation employed by its practitioners (“the various modes of worship”)– as an objective reality, so that they will submit to its authority. And the philosopher deconstructs this system of fictions upon fictions, vacillating between an existential crisis and a concern that he may be abrogating his responsibility by destroying the illusion he is paid to maintain and to train others to maintain.

My thesis is that the philosopher need suffer neither affliction. The comedian George Carlin, somewhat paralleling the Gibbon quote above, said, “Some people see a glass that’s half empty, others see a glass that’s half full, but I see a glass that’s twice as big as it needs to be.” In other words, it is what it is. We can measure our social institutional framework, knowing that it is all smoke-and-mirrors, against some unattainable ideal of the just and transparent society, and despair that it has fallen so short (the utopian approach). Or we can measure it against it’s absence, and rejoice that we are, to some limited extent, spared the “short, nasty, and brutish lives” of all other creatures (the Hobbesian approach). Or we can, like the philosopher, strive to understand precisely what it is, to reveal the little man behind the curtain, to peel the onion away and find insight in the void thus revealed, but, while doing so, avoid the philosopher’s crisis by mitigating our angst with a combination of pragmatic utilitarianism and benevolent egalitarianism.

The Great and Powerful Oz, Toto, and the Little Man Behind the Curtain

Our legal system is a dialectic of mythos and logos, a functioning mythology operating according to its own internal logic, but also implicitly challenged by the logic of critical analysis. The mythos is employed to legitimate power, and in doing so, to co-opt logos, to convert (using Max Weber’s terms) “traditional authority” into “rational authority,” and to claim that “charismatic authority” (personal authority subject to personal caprice) has been vanquished from the realm of law. To articulate the Gibbon quote, the Wizard of Oz metaphor, and the dialectic of mythos and logos: The people are awed by the mythos (“The Great and Powerful Oz”), while the philosopher (Toto) tugs at the curtain hiding the magistrate employing his machinations (the little man pulling the levers). The magistrate, wittingly or unwittingly, uses mythos (the mechanisms of which are hidden behind a curtain of logos) to beguile the people, while the philosopher uses logos to pull at that curtain and reveal what’s behind it, creating a dialectic between critical examination and uncritical legitimation.

The mythos is that we are “ruled by laws rather than by men.” The curtain of logos that hides the magistrate’s subjectivity is comprised of various theories and techniques of legal interpretation (briefly summarized below). The people uncritically accept these theories and techniques as true and legitimate, the esoteric tools of legal wizardry. The philosopher rejects them all as the sophistry of actors who either accept the play they are in as reality, or pretend that they do. And the magistrate is untroubled by the question as long as order is maintained, and the status quo unthreatened.

The Dead Hand of the Past, the Capricious Hand of the Present, or the Mindless Alternative?

The pleats of the curtain of co-opted logos hiding the little man and his levers are intricate indeed, involving choices along the two primary dimensions of past (when legislated) to present (when interpreted), and narrow (literal) to broad (interpolative). The large folds are defined by three theoretical approaches: 1) intentionalism, which purports to discern and apply the original intent of a statute’s authors; 2) purposivism, which purports to discern and apply the statute’s purpose; and 3) textualism, which purports to discern and apply the statute’s “plain meaning.” Lodged within and draped across these broad theoretical approaches are both specific applications, such as legal process theory and cost-benefit calculations, and the canons of statutory interpretation, falling into three categories: 1) textual canons, 2) substantive canons, and 3) reference canons. There are folds within these folds, of course, linguistic rules, guidelines as to which statutes to interpret how broadly or narrowly, when and how to go beyond the text to “discover” its meaning. But the essence of the matter is that laws are, by the nature of texts rather than by choice, intersubjectively produced, that the interpretive techniques which contribute to their production do not discover something objectively in existence, but rather mold it through the act of delivery, each midwife attempting to finalize the product, but its finalization, to the extent that such exists, being achieved by the subjectivity of an institutionally powerful individual channeled through the artifice of these interpretive techniques.

The inevitability of interpretation is illustrated by Rex v. Liggets-Findley Drug Stores, Ltd., (1919), in which a municipal ordinance required that drug stores “be closed…at 10 p.m.” every day. A narrow literal reading of the ordinance would imply that the drug stores could close from 10:00 p.m to 10:01 p.m., and then reopen without violating the ordinance. The Canadian judge who wrote the decision held that “we should take the words to mean what they would quite clearly mean to the ordinary person,” that the stores should remain closed for the rest of the day (but could they then reopen at midnight?).

In Rector, Holy Trinity Church v. United States (1892), Justice Brewer employs a “funnel of abstractions” to argue that an “accurate” interpretation of a protectionist statute barring employers from paying for the passage of imported employees should not be read to bar the church from paying for the passage of an English minister: From the least abstract (the “common meaning” of the word “toiler”), up through the specific intent of the statute as applied to this case, through the general purpose of the statute, through the social policy it serves, and, at the highest level of abstraction, to the greater social good intended. Even had the argument been strained at some or most of these levels, the others could have been used to come to any preferred conclusion.

Steven Smith, in “Law Without Mind” (88 Mich. L. Rev. 1989), frames the conundrum this way: According to current legal theory, we have essentially three choices: 1) “originalism,” whose primary defect (setting aside the epistemological problems of determining original meaning) is to bind us to “the dead hand of the past,” thus limiting our ability to inform our implementation of the law with the values and challenges of the present; 2) “pragmatism,” whose primary defect is the replacement of “the rule of law” with the caprice of judges; and 3) “present-oriented interpretation,” which “seeks to appropriate the virtues of each,” but, by freeing itself both from “the dead hand of the past” and the living caprice of the present, relegates itself to the realm of the arbitrary. The defect of the present-oriented interpretation, according to Smith, is that it neither binds judges by the political will of the legislators who enacted the statute, nor empowers judges to pragmatically “promote present values and objectives.” Rather, it surrenders human rationality to an inanimate text detached from its authors but binding on its interpreters.

Zen and the Art of Legislative Interpretation

The theories and canons summarized above purport to address the fundamental ontological and epistemological questions of legal interpretation: 1) what is the law? and 2) how do we know what the law is? The normative as well as descriptive versions of these questions are implicit within them: 1) what should the law be? and 2) how best should we determine what the law is? As disciples of the philosopher, we know that it is ultimately impossible to determine what the law “is,” that it does not have a fixed objective reality independent of our act of interpretation. What it is is inherently elusive; what it should be is a debate framed by various fictions. How, then, should we conceptualize the enterprise?

“What is law?” and “What is the best way to determine what law is?” are both similar to the question Robert Pirsig asked in his novel Zen and the Art of Motorcycle Maintenance: “What is quality?” Is “quality” (in reference, say, to art or music) what a few self-anointed experts say it is, or what is most popular? Neither solution seems quite satisfactory: The consensus of experts (embracing, for instance, dots on blank canvases and atonal compositions) often appears more pretentious than insightful, but popular preferences (for, say, paintings of Elvis on velvet or songs by Brittany Spears) often appear more anesthetizing than aesthetically redeeming. Similarly, in academe, post-modernists and positivists ridicule one another for being either oblivious to reality or oblivious to the lack thereof, and no authority stands over these feuding camps to declare which paradigm is of higher “quality.”

But this elusiveness does not mean that “quality” does not exist. We know it does, can come to general agreement on some isolated examples (such as that a requiem by Mozart is of “higher quality” than the latest pop hit), and can wink among ourselves at some more contested examples (such as whether Sarah Palin or Joe Biden was a “higher quality” candidate for Vice President).

“What is the law?” and “what is the best way to determine what the law is?” are similarly elusive questions, similarly contested by the highest authorities, but referring to something as real, and a process as inevitable, as the recognition that “quality” exists. To arrive at the best (i.e., most functional and most fair) answers we need to embrace this reality rather than rage against it. The fundamental “defects” in legal interpretation we’ve discussed this semester are inherent ontological and epistemological limitations; they cannot be remedied, and therefore should not be cause for despair. They are parameters rather than variables, givens within which we operate rather than malleable factors upon which we can work our will. The self-help organization “Alcoholics Annonymous” has enshrined the appropriate attitude to take toward such parameters in The Serenity Prayer (“Give me the strength to change what I can change, the patience to accept what I cannot, and the wisdom to know the difference”). As obnoxious as it may be, it is none the less a pearl of wisdom: What sane alternative is there to this sage advice?

Therefore, the facts of diffuse authorship, unrecoverable original intent, and the inevitable injection of the interpreter’s subjectivity in the act of interpretation are not, per se, legitimate causes of concern, because they themselves (as opposed to how they inform strategies in response to them) are fixed constellations that can neither be wished nor legislated away. It is reasonable and useful to recognize and be informed by these facts, but not to lament them. To what extent these parameters should be openly acknowledged, and to what extent they should be discretely downplayed, is a question inevitably addressed by the process discussed in the next section.

The Political Epidemiology of Reifications (and other memes)

Within the parameters we are obliged to accept, we are confronted with sets of interrelated choices: To what extent should we prefer the “dead hand of the past” to the caprice of the present, and to what extent should we bind judges by increasingly elaborate algorithms of interpretation, perhaps, at the extreme, programmed to evolve by meta-algorithms as they encounter unforeseen circumstances, rather than delegating discretion to judges, incurring both the benefit of the latter’s more supple minds and the detriment of their prejudices and predispositions? How much caprice can be permitted without undermining legitimacy, and how much rigidity can be imposed without undermining substantive reason and justice? Steven Smith presents us with three alternatives, each of which reifies something clearly dysfunctional: either the increasingly anachronistic supposed intentions of the legislators who enacted the laws, or the prejudices and predispositions of judges largely untethered from those texts, or the decontextualized constraints that bear a disconcerting resemblance to medieval trials by ordeal. But to proffer no acceptable alternative is to beg the question: In this imperfect world, what is the best we can do?

In a sense, we are doing it right now. The people, the philosopher, and the magistrate are all just muddling along, individually and collectively pursuing desired goals, and, through some combination of trial-and-error and proactive innovation, carve our social institutions in the lathe of time and numbers. “Memes,” like genes, are packets of information that reproduce (are communicated), mutate (are altered through interpretation and innovation), compete for reproductive success (e.g., guns or spears? pantheons or Yahweh? socialism or capitalism?), and thus evolve (Richard Dawkins, The Selfish Gene, 1976). The myth of “the rule of law” is a somewhat successful meme, and in many ways beneficial to our collective existence: The magistrate is not wrong that the techniques by which it is maintained are all equally useful. But neither is the philosopher wrong to question the validity of those techniques, to analyze them, and to seek to refine them. Order without justice is oppressive; justice without order cannot exist. The reification of “the rule of law” provides more order than justice, but its absence provides neither. The challenge, then, is to accept its reification, and to maximize the justice produced by refining the particular form of that reification.

This is not a benign process, nor one actually pursued as a global collective enterprise. My use of the first person plural (“we”) has been a simplification that must now be unpackaged: The selection of genes according to their relative reproductive success produces organisms that are carved by the requirements of such success. This biological algorithm produces complex arrangements of both cooperation and competition, and a variety of strategies. Humans embody what may well be the epitome of the flexible strategy, one which in fact produces an echo of the evolutionary process in the form described above. We can conceptualize and communicate in order each to pursue his or her own fundamentally selfish agenda, which generates ever more sophisticated forms of cooperation along the way (just as biological evolution does, in the formation of ecosystems). Cooperation is so advantageous to those who can overcome the obstacles to it that our social institutions -our hierarchies, our markets, our norms, and our ideologies- are laden with mechanisms to align our individual and collective interests, through structures of legitimate authority, means of exchange, informal social approval and disapproval, and values and beliefs which create cognitive dissonance when we fail to police ourselves.

But the politics of the processes which produce these arrangements is an ever-present element. Cooperation is a means to compete more effectively: People, historically, band together to gain advantage over others. Human history is, in a sense, the story of conquerors and the conquered. Conquerors become rulers and nobles; the conquered become peasants and laborers. The competition between conquerors and their respective states, however, forces refinements to more effectively raise and finance armies, which forces some decentralization of power in order to better exploit the state’s human and natural resources in service to this competition. The decentralization of power fosters and facilitates resistance to power, while concessions by the powerful become increasingly expedient. By these and other mechanisms, the modern world saw the rise of “liberal” societies, and the ideologies that accompany them. But our social institutions still bear the imprint of violent power struggles which produced somewhat hereditary winners and losers, and our social institutions are still the arena within which such power struggles continue to ensue.

So, while order is useful, complacency about the existing order is always unjust. The reification of “the rule of law” facilitates our aggregate prosperity, but it disproportionately benefits the rich and powerful, because the rich and powerful were (and are) its authors. Justice requires resistance and criticism; justice requires Toto tugging at the curtain. It is a happy coincidence that evolutionarily successful memes have facilitated processes of decentralization of power and diffusion of wealth, and probably will continue to do so, gradually infecting even those societies less blessed by egalitarian social institutions. The egalitarian values that have gradually and incompletely matured in conjunction with this decentralization of power and diffusion of wealth reinforce the process, and motivate actions in service to it. But the underlying dynamic by which all this has happened, and will continue to happen, is essentially political, involving strategic behaviors in pursuit of personal and local advantage.

 By sublimating primal conflict and channeling it through peaceful social institutions, humans prosper. Belief in “the rule of law” has proven to be a powerful meme contributing to the effective sublimation of that primal conflict. But the struggle for an increasingly just society that can and should take place within that social institutional context necessitates vigilant attention to the reality behind the myth, to the political exercise of power inevitably embedded in the depersonalized reification. There is an inherent tension that cannot be escaped: The sublimation and pacification of human conflicts and passions accomplished by the reification of “the rule of law” is simultaneously oppressive and liberating. It liberates us from the “war of all against all,” but it institutionalizes the brutality of huge disparities of wealth and power. And as such it challenges us to strike the delicate balance between maintaining the myth and resisting its ossification.

In light of this analysis, the goal of legal interpretation, then, is not to be true to the political will of those who enacted the statutes, nor to avoid the “mindlessness” of “present-oriented interpretation,” nor to eliminate the caprice of judicial pragmatism; it is, simply, to maximize the justness of the imposition of authority on those who have been pacified by that authority. Clearly, the respective defects of these three modes of legal interpretation each reduces, in one way or another, the justness of the authority thus imposed. But just as “the perfect should not be the enemy of the good,” neither should it be the enemy of the merely possible. Identifying the most just, or perhaps the least unjust, option among all known alternatives (while simultaneously attempting to contemplate alternatives not yet known), and engaging in the political struggle to implement it, or to implement a compromise that approaches it, is the best we can do.

The fact that these competing flawed paradigms are discussed and debated, each having its own authoritative supporters and detractors, with the ever-present possibility of new additions entering the fray, is precisely the robust competition of memes required to prevent the ossification of a suboptimal status quo. Nor is it merely an ivory tower academic exercise: Judges themselves, by the choices they make, subject these paradigms to the crucible of human experience. It is a messy and often unjust process, but, at present, I can think of no way to improve upon it, and if and when I do, I will merely be participating in it. As John Maynard Keynes subtly put it (before Winston Churchill appropriated the quote in particular reference to Americans), “Men (sic) will do the rational thing, but only after exploring all other alternatives.”

The Emperor’s New Clothes

The law, like all social fictions, is a naked emperor whose clothes we are taught to admire. Law school is the in-depth analysis of the fine raiments the naked emperor wears. To the curmudgeonly philosopher who feels obliged to point out that the whole process is the reification of an unreality, that the real fates of real human beings are decided by a confused little man behind a curtain, that the Great and Powerful Oz is all smoke and mirrors, this vast fiction is malignant rather than benign, half empty rather than half full. But it is neither particularly malignant nor particularly benign; it is what it is.

Not all social fictions, not all social institutional contexts, are equal; not all are of equal “quality.” A quick survey of systems of justice and checks on power that the world has yet produced suggests that the myth of “the rule of law” is worth retaining for the time being.

That the fiction evolves, driven by some combination of psychological needs and material desires, through political struggles large and small, is, at the very least, one of nature’s fascinating wonders. Rather than apes foraging in the African savanna, naked and vulnerable to all of nature’s limitless injustices and indignities, humans now live clothed in the products of the mind, which inflict limitless injustices and indignities of their own. And yet, these fictions, these products of the mind, these technologies and social institutions, afford me the luxury of contemplating them, while sitting in this comfortable chair, sipping my favorite beverage. Through such contemplations, and a prospective career dedicated to helping sew and select the naked emperor’s imaginary wardrobe, I hope to marginally influence the evolution of legal memes in such a way as to ever-so-slightly increase human welfare. The American judicial system is still laden with injustices and indignities, with intolerable frustrations and galling deficiencies. There is no cause for complacency. But this horribly imperfect system fares well in comparison to known alternatives. And it certainly beats running from lions on the African savanna.

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