Friday, June 19, 2009 59 Comments

Émile Faguet on legal realism

If I may do a Deogolwulf:
The contempt for efficiency is carried far even in the liberal professions and in professional customs. We all know the story, perhaps a mythical one, of the judge who said to an earnest young barrister who was conscientiously elaborating a question of law: "Now, Mr. So and So, we are not here to discuss questions of law but to settle this business." He did not say this by way of jest; he wished to say: "The courts no longer deliver judgment on the merits of a case according to law, but according to equity and common sense. The intricacies of the law are left to professors, so please when conducting a case do not behave like a professor of law." This theory, which even in this mild form would have horrified the ancients, is very prevalent nowadays in legal circles. It has crept in as an infiltration, as one might call it, from the democratic system.

A magistrate, nowadays, whatever remnant of the ancient feeling of caste he may have retained, certainly does not consider himself bound by the letter of the law, or by jurisprudence, the written tradition; when he is anything more than a subordinate with no other idea of duty than subservience to the Government, he is a democratic magistrate, a Heliast of Athens; he delivers judgment according to the dictates of his individual conscience; he does not consider himself as a member of a learned body, bound to apply the decisions of that body, but as an independent exponent of the truth.

An eccentric, but in truth very significant, example of the new attitude of mind is to be found in the judge, who formally attributed to himself the right to make law and who in his judgments made references, not to existing laws, but to such vague generalities as appealed to him, or to doctrines which he prophesied would later on be embodied in the law. His Code was the Code of the future.

The mere existence of such a man is of no particular importance, but the fact that many people, even those partially enlightened, took him seriously, that he was popular, and that a considerable faction thought him a good judge, is most significant.
Émile Faguet, The Cult of Incompetence (1912, trans.), p. 162.

Note that in the English common-law tradition, this "code of the future" approach - which is, indeed, ridiculous on the face of it - is not even a 20th-century artifact. It dates not just to Holmes and Cardozo, not just to Marshall, but to Coke at least. Maybe Pepsi really is the choice of a new generation.

59 Comments:

Blogger Thrasymachus said...

The concept of "equity" goes way back in English law, but as I understand, it was a privilege of the sovereign- you could plead for a break, but you were getting it from the Crown, not from the judge, even though as a practical matter the king was not involved at all and you were getting it from the judge. The distinction still remains though.

In the absence of a sovereign though, who are you getting equity from? It can't be the crown, so it has to be the judge, formally and informally. It's called the Court (also starts with a capital C! same number of letters!) which sounds good but it's still just some guy.

June 19, 2009 at 8:42 PM  
Anonymous Miatot said...

Funny thing about this Faguet guy is that his name is pronounced "Faggot" in English.

June 19, 2009 at 10:01 PM  
Blogger AMcGuinn said...

The pronomian approach is put well on the website of a thinker currently in the news here:

If the leader is not acquainted with law, he will not be competent to govern people. Because if he follows [another person] ..., that will weaken his power; and if he does not, he cannot put the ... law into effect. The tradition that "the ... jurists rule over the kings" is undisputed.(2) ... [kings] should follow the ... jurists and ask their opinion. In this way the jurists themselves will be the real rulers and, therefore, the power should officially be given to them and not to those who are compelled to follow jurists as they do not know the law.

No Imperium in imperio there!

June 20, 2009 at 2:34 AM  
Anonymous nick said...

[a judge] delivers judgment according to the dictates of his individual conscience; he does not consider himself as a member of a learned body, bound to apply the decisions of that body, but as an independent exponent of the truth.

I observe that the author of this quote was a university-trained Frenchman who seems to be describing the 19th century French judiciary under their Roman legal tradition, and seems like MM to entirely unacquainted with the English legal tradition and thus can't imagine any alternative to "realist" despotism of the will.

To put the English common-law judges, prior to legal "realism", in the same category as judges under the imperial Roman legal tradition, such as those of 19th century France, is absurd. Coke, his contemporaries, and his followers were deeply respectful of the decisions of previous judges, citing them prolifically. So have been the vast majority of United States judges when it comes to the common law. This law of course can be seen to evolve over the long periods of history from then to now, as more is learned from the detailed facts of hundreds or thousands of cases. This is a vastly different procedure than naive legislation, the central planning of the law, whether from the votes of a Parliament or the mouth of the dictator MM would love bring to power and serve. If you can't recognize the huge difference between these two kinds of legal origin, do the hard work, whether at a law school or on your own, and get an education in the common law and its history before pretending to pontificate learnedly about Coke and the rest of the English legal tradition.

Thrasymachus pointed out that this quote is a much better definition in the English world of equity, not the common law. Equity was the job of the Chancellor, not of the King's Bench. The Chancellor was closely associated with the Church and often used imperial Roman and canon law, emphasizing "conscience", and quite purposefully ignored common law. The idea was to take a very different approach in those small fraction of cases where the strict formalism of English common law produced unjust results, as any law code will on occasion do (any system of logic or rules is incomplete -- cf. Goedel). Thus did our legal tradition have both a system of highly evolved formal rules -- the common law -- and equity to fill in the occasional gaps.

But it is not even equity that led to "realist" philosophy, it is the universities' revival of the twin brother of imperium maius, the legal Romulus to the imperial Remus "locus of sovereignty", namely "the emperor's will is law." That is the whole philosophy of legal realism -- that a judge in the United States must think and behave the same way ancient Roman lawyers said that their boss the emperor could behave -- that His Will is Law, with no distinctions to be made based on the institutions within which human wills operate.

According to this "realism", and according to Mencius Moldbug, all law-making is the same as law-making by the master of masters in a master-servant hierarchy. Moldbug, in promoting the form of law most based on will and whim, namely the law of dictators and emperors, is quite the opposite of the formalist he pretends to be -- he is an ultra-"realist" who would finish the job the Realists and the New Deal Court started and tear down the last vestiges of separation of powers and federalism that keep our law different from a dictator's will. (A previous generation of Romanists already tore down another traditional European bulwark against tyranny, political property rights).

June 20, 2009 at 2:46 AM  
Anonymous nick said...

[The Code Napoleon] really is the choice of a new generation.

MM now presents as our role model the will of Napoleon to impose by conquest the law of his role models the emperors of Rome. His Code is part of the tradition of absolutist law from Augustus to the Tsars to Hitler and Stalin. Now MM would have us take this seriously as a substitute for the highly evolved law of English origin with its formalism, separation of powers, and (in former times) political property rights.

In his quest to defame the traditions of our culture, under the guise of pretending to revive them, MM's memory of history seems have become bizarrely selective. Surely he has not forgotten what the Caesars and the Tsars and Hitler and the communist dictators did to whom?

MM seems to be coming out of the closet not only as a rabid anti-Protestant, but as a fanatic opponent the entire Anglo-Saxon legal and political tradition. The only Englishmen favored by Moldbug are those without a shred of appreciation for the English legal tradition, university-trained thugs like Hobbes and Carlyle who mindlessly promoted the universities' totalitarian ideology, in their time implemented in the absolute monarchies of France and Russia.

It's important to observe that English lawyers were traditionally trained at the Inns of Court, not at Oxford or Cambridge universities. Universities had been founded in order to spread Roman legal fundamentalism and impose the law of emperors in usurpation of the highly evolved European medieval law. This catastrophe, the Reception, successfully destroyed the evolution of liberty in almost all of Western Europe except in England -- because in England the lawyers were trained at the Inns of Court and not at the universities. University-trained scholars from their founding to today have smeared English law countless times in countless ways. The absolutist ideology of imperium maius and its corollary, legal "realism", has done much damage, but common law despite it all persists. As long as Commonwealth and U.S. lawyers keep caring about their profession more than about ideology, the common law will thrive in the face of these countless nattering amateurs.

The world beyond English law has been far less fortunate. Roman imperial idea of absolute master-servant hierarchy, and the resulting "realist" idea that law must be the product of the will of the master of masters, promoted by university-trained thugs like Carlyle and Hobbes, has caused more misery than any other idea in human history.

By the imperial dogma we have a single master over us all, an oriental despot as Westerners used to disparagingly call it, or else be in anarchy. Some unfortunates like MM seem to be incapable of envisioning civilization as anything but a master-servant hierarchy. MM would have us destroy the last vestiges we have of institutions that check and balance both lust for power and naive whim. The same tribal urge of master-worship that gave us oriental despotism, the Roman Empire, the post-Reception absolute monarchs, the Tsars, Napoleon, the Kaisers, and most recently Hitler, Stalin, Mao, Pol Pot, Kim Il Sung, and many such others -- all but the original oriental despots presiding over legal systems derived from the law of imperial Rome.

If "reactionary" meant this barbaric chief-worship, Moldbug would by now have converted me to "progressivism" with all its problems. Fortunately, we have much better choices when it comes to restoration. There is a vast and rich tradition, very different from the tradition of imperial Rome, a tradition much of which is becoming lost and some of which has been almost completely forgotten, the revival of memory and restoration of which would reverse many of the evils MM portrays. You can read about many of these highly evolved institutions at my blog.

June 20, 2009 at 3:57 AM  
Blogger Daniel A. Nagy said...

Write between the lines! Annotate this article over at Thiblo.com.

June 20, 2009 at 9:22 AM  
Blogger AMcGuinn said...

I suppose the point is that for law to be preserved, law and government have to be two different things. If the law overrules the government, then it is not law, it is government. If the government can decide what the law is, then similarly, it is not law but government.

Mencius insists that government must be responsible, and therefore that it be openly government, and not pretending to be science, or law, or the will of the people. The ideal is, therefore, that the courts say what the law is, and that the government, if it sees it as desirable, overrules it honestly and acts with responsibility.

June 20, 2009 at 10:53 AM  
Blogger Malchus X said...

Speaking of law - Godwin's law run amok in MM's comments section. I hate being the only university-trained thug out of step at the party, so allow me my wery own reductio ad Hitlerum: ancient Rome built the Via Appia. Nazi Germany gave the world something similar. And, sure enough, it wasn't long before good, decent, hard-working Americans were being forced to endure the construction and permanent presence of this. How's that for your international Roman-Nazi conspiracy? (Ice cream, Mandrake? Children's ice cream!")

June 20, 2009 at 12:31 PM  
Blogger Malchus X said...

Wait for it...wait for it..."technically, Hitler didn't start construction on the Autobahn, and Mussolini didn't really make the trains run on time..." Thought I'd spare the humorless the keystrokes.

June 20, 2009 at 12:35 PM  
Anonymous Vladimir said...

nick:
If "reactionary" meant this barbaric chief-worship, Moldbug would by now have converted me to "progressivism" with all its problems. Fortunately, we have much better choices when it comes to restoration. There is a vast and rich tradition, very different from the tradition of imperial Rome, a tradition much of which is becoming lost and some of which has been almost completely forgotten, the revival of memory and restoration of which would reverse many of the evils MM portrays.

Trouble is, the idea of polycentric law has been forgotten to the point where it's utterly alien to the modern mindset. The only people seriously interested in it nowadays are libertarian law theorists like Bruce Benson or David Friedman, but nobody outside their circle takes them very seriously. The basic problem is that a really serious scholarship of polycentric law would violate far too many norms of political correctness, not only in its conclusions, but in fact already in the initial stages where some "commonsense" assumptions of our age would have to be discarded.

Like in so many other areas, the requirement to be consistent with the fundamental PC assumptions, or at least not to voice any explicit disagreement with them -- which libertarian scholars generally try their best to uphold, trying not to lose what little institutional respectability they have -- is a serious barrier to the discovery of truth here. Our intellectual mainstream has evolved to the point where principled opposition to social engineering is enough place one on the far lunatic fringe. Such engineering certainly requires the full force of the imperium maius, even if it's not vested in an individual or a small oligarchy, but couched in phrases like "we as a society." Far too much nowadays hangs on the mandates entrusted by "us as a society" for anyone respectable to be able to seriously question this monolith.

June 20, 2009 at 1:03 PM  
Anonymous nick said...

There is another fallacy, which we might call "reductio ad Godwin", wherein any mention of Hitler or Nazis leads to reflexive invocation of Godwin's law, even though Hitler is perfectly on point to the discussion, as here. The "reductio ad Hitler" is defined as follows: "Hitler (or the Nazis) supported X, therefore X must be evil/undesirable/bad." I have committed no such fallacy. I have not singled out Hitler or the Nazis, nor am I talking about a political feature of Nazi Germany that is unrelated to Hitler's rise to power or abuses of that power. Instead Roman procedural law with its absolutist principles was central to the political system of not only Nazi Germany but a long line of governments run by emperors, absolute monarchs, and dictators. These absolutist principles and institutions were central to the ability of these tyrants to destroy checks to their power and then proceed to commit the genocides, mass thefts, and wide variety of other mass misery unchecked.

These tyrants arose and operated under systems derived from imperial Rome's: the Roman emperors, the Tsars, the post-Reception absolute monarchs, Napoleon, the Kaisers, Hitler (oh my gosh there I go again -- Godwin! Godwin! Godwin save us from hearing that evil name again!), Mussolini, Franco, many Latin American dictators, and the dozens of communist dictators that plagued the last century are among this long line of misery-wreaking thugs that Moldbug, following Hobbes and Carlyle, would have us emulate. Derivation (and often close mimicry) of the legal procedures and principles of these governments from the law of the Roman emperors is not a "conspiracy" theory, it is a fact universally accepted among legal historians. I am observing a major pattern of history among which The Dictator Whose Name I Shall Not Mention is only one of a very large number of data points, albeit one I'm sure of special significance to many readers here.

The Anglosphere (e.g. Commonwealth countries and the U.S.) have escaped this fate for the reasons I described. Most of the rest of the world is still under Roman-derived law and risks a recurrence of this tyranny, with Moldbug in the cheering section.

So let's try real debate instead of fallaciously accusing me of fallacy.

June 20, 2009 at 1:49 PM  
Anonymous nick said...

Vladimir: Trouble is, the idea of polycentric law has been forgotten to the point where it's utterly alien to the modern mindset.

There are however many scholars who still study separation of powers and federalism, which have become important not only in the U.S. but in the many post-WWII governments overseas that emulated the U.S. constitution. These are often an odd mixture of Anglospheric political structure jury rigged onto Roman legal systems, which historically has made the political structure dangerously unstable, but after WWII has often seemed to worked in terms of stability and relative reduction of political victims.

Scott Gordon is a very good example of a scholar of politics who stresses what he calls "countervalent" systems that lack any "locus of sovereignty" or imperium maius -- systems like Ancient Athens, the Roman Republic, the Venetian Republic, the Dutch Republic, pre-reform England, and the United States. He has been a big influence on me and I highly recommend Controlling the State.

Gordon BTW is very refreshing in focusing on institutions of actual government rather than obsessing about voting. He properly treats voting and issues of how "democratic" these kinds of republics might be, as peripheral rather than central to their actual institutions. In other words, unlike almost all modern political scholars who obsess about voting and democracy, he cuts through that bullshit and gets to the actual government.

Also, choice of law and choice of forum clauses are widely practiced and thus widely studied in legal circles. These clauses could be building blocks of a polycentric order that Tom W. Bell, Bruce Benson and David Friedman have studied.

As for political property rights, I seem to be the major scholar of that, although any good history of medieval and earlier colonial English law (Holdsworth, Plucknett, Maitland, Blackstone, etc.) discusses franchise courts, albeit giving them short shrift in their focus on the the king's courts. Legal histories of the rest of Europe tend to focus on the history of Roman law, engaging in the ancient Procrustean attempt to explain political property rights in terms of Roman law. But I'm only reading high-level surveys in English, there may well be good histories of political property rights in the rest of Western Europe relatively untainted by Roman law that I haven't found. The best short introduction to political property rights, albeit just focused on privately held courts, is still my Jurisdiction As Property.

June 20, 2009 at 2:29 PM  
Blogger Malchus X said...

"I have committed no such fallacy."

Oh yes you have - but it's not my problem you can't see it. Now go ahead and write us another five paragraph epistle explaining why your typed words don't mean what most English-speakers would perceive them to mean.

"So let's try real debate"

People who accuse other people whose ideas they do not like of being like Hitler - which you plainly have* - are not the kind of people I or any person with a decent respect for the meaning of the word are usually interested in interacting with. In fact, I find your ability to take yourself so seriously and without the slightest flicker of irony comic. So you go right ahead and keep typing; I'll keep laughing.

*"Hitler...this long line of misery-wreaking thugs that Moldbug, following Hobbes and Carlyle, would have us emulate"

June 20, 2009 at 2:48 PM  
Blogger Malchus X said...

Oh, and as a side note: I think the ancient Romans would find it hilarious that some savant actually believes that everything that has ever gone wrong with Western Civilization, from Hitler to the United States Supreme Court, would be due to the "taint" of their law. That's one Deus ex machina I'm sure they never would have seen coming.

June 20, 2009 at 2:56 PM  
Anonymous Anonymous said...

It does strike one as passing strange that someone who invokes the name "Hitler" eleven times (by my count) in the course of two different posts to describe the supposed philosophy of an opponent, would have the unmitigated cheek to claim that they were not wading hip-deep in the Godwin's law hot tub. I guess it all depends on what the meaning of "is" - errr, "Hitler" is...

June 20, 2009 at 3:15 PM  
Anonymous nick said...

"People who accuse other people whose ideas they do not like of being like Hitler."

(a) this is not the same thing as Godwin's fallacy as stated above, (b) I have met some people who are disturbingly like Nazis, albeit far more disturbing are the vastly more numerous living followers of communism, and (c) Moldbug AFAIK is not one of these -- I do not think that he personally is like Hitler and I have said nothing of the kind, as anybody with a modicum of reading comprehension would know. I have accused Moldbug of promoting the same kinds of political and legal ideas that brought to power Hitler among a long line of many other tyrants operating with Roman procedural law and principles and allowed these thugs to abuse their power. If you don't understand these kinds of distinctions, why are you bothering to try to read Moldbug or post comments? It is you, not me, who made a special point of singling out The Dictator Whose Name Shall Not Be Mentioned from among my long list of tyrants, as if I had only mentioned that one tyrant, and as if that somehow in any way refutes any part of my argument. Does anybody have a real argument to present against my theses?

I think the ancient Romans would find it hilarious...[that somebody believes in the crucial influence of their law on the modern world]

Perhaps they would indeed find it hilarious that the millions of lawyers who studied and applied their law since the founding of the universities were entirely serious and entirely real, as were the political philosophers and jurisprudes that spun off from the study and propagation of Roman law: Azio, Bartolus, Baldus, Alcatius, Zasius, Dumoulin, Gillot, Baro, Corasius, Bodin, Hobbes, Rosseau, Savigny, Hegel, Marx, Carlyle, Lenin, Kesel, ad nauseum. Facts that your ignorance of legal and intellectual history in no way rebut.

June 20, 2009 at 3:47 PM  
Blogger Malchus X said...

"...as anybody with a modicum of reading comprehension would know...If you don't understand these kinds of distinctions, why are you bothering to try to read Moldbug or post comments?...your ignorance of legal and intellectual history"

Straight from Godwin to ad hominem with nary a pause in between. Impressive.

"I do not think that he personally is like Hitler...I have accused Moldbug of promoting the same kinds of political and legal ideas that brought to power Hitler.."

This is what might charitably be called a distinction without a difference. Very charitably.

"It is you, not me, who made a special point of singling out The Dictator Whose Name Shall Not Be Mentioned"

*Ahem*:

"His Code is part of the tradition of absolutist law from Augustus to the Tsars to Hitler and Stalin....The same tribal urge of master-worship that gave us oriental despotism, the Roman Empire, the post-Reception absolute monarchs, the Tsars, Napoleon, the Kaisers, and most recently Hitler..."

That was before I had yet to make a single comment on the post. Pesky things, those facts.

"I think the ancient Romans would find it hilarious...[that somebody believes in the crucial influence of their law on the modern world]"

Here's what I actually typed:

"I think the ancient Romans would find it hilarious that some savant actually believes that everything that has ever gone wrong with Western Civilization, from Hitler to the United States Supreme Court, would be due to the "taint" of their law."

Your insertion of words into a quote of mine that I did not actually type is called "lying." To then go on to attack what I did not write to make some dreary point is called a "Strawman."

Gotta tell yah, Nicky, you hit it on all cylinders: Godwin's, ad hominem, and for the finale, just making some crap up. Charming stuff.

June 20, 2009 at 4:18 PM  
Anonymous nick said...

Someone who invokes the name "Hitler" eleven times (by my count) in the course of two different posts

How did three magically turn into eleven? Some of Moldbug's fans seem to so lack in reading comprehension that they can't even count the mentions of a name. If anybody else feels a similar urge to ignorant flaming against my comments, I strongly suggest you go back and read my two comments again, slowly and carefully, twice over each, before pretending to comment intelligently upon them, so that you don't make a complete mockery of Moldbug by demonstrating the idiocy of his partisans.

Of course I also mentioned the absolute monarchs three times. I also mentioned the Roman emperors, the Tsars, Napoleon, the Kaisers, Stalin, Mao, Pol Pot, and Kim Il Sung as being brought to power and allowed to abuse their power by legal procedures and principles derived from the law of the Roman emperors, but our anonymous Moldbug worshippers seem to lack Godwin's law as an excuse to ignore the fact that the legal and political ideas that Moldbug is promoting also resulted in their power and abuses of same, not just in the power and abuses of the Dictator Who Shall Not Be Mentioned. So they pretend that I focused on said dictator, operating under an assumption that their fellow Moldbug worshipers share their lack of reading comprehension.

Does anybody have any real arguments to present against my theses? I would love to have an actual intelligent debate about them.

June 20, 2009 at 4:29 PM  
Blogger Malchus X said...

"Does anybody have any real arguments to present against my theses?"

Present one, and if it doesn't read like a libertarian screed against lighthouses being publicly owned - which is about the intellectual equivalent of your posts to date - perhaps someone will take you up on it.

As for the rest, you simply are cranky because you got caught engaging in the silliest of logical fallacies, and resent having irrefutable evidence of it pointed out. "Reading comprehension" issues, indeed.

June 20, 2009 at 4:34 PM  
Blogger Malchus X said...

"As for political property rights, I seem to be the major scholar of that...The best short introduction to political property rights, albeit just focused on privately held courts, is still my..."

And that's another charming thing about you, Nicky: all that modesty.

June 20, 2009 at 4:36 PM  
Blogger Malchus X said...

"His Code is part of the tradition of absolutist law from Augustus to the Tsars to Hitler...Surely he has not forgotten what the Caesars and the Tsars and Hitler... and most recently Hitler...wherein any mention of Hitler or Nazis leads to reflexive invocation of Godwin's law, even though Hitler is perfectly on point to the discussion, as here. The "reductio ad Hitler" is defined as follows: "Hitler (or the Nazis) supported X, therefore X must be evil/undesirable/bad." I have committed no such fallacy. I have not singled out Hitler...the Roman emperors, the Tsars, the post-Reception absolute monarchs, Napoleon, the Kaisers, Hitler...The Dictator Whose Name I Shall Not Mention"

I count ten, so "Anonymous" gave you one more Hitler than you deserve credt for. His/her bad, I guess.

"How did three magically turn into eleven?"

Better question: how did ten turn into three? There is either a problem with your ability to count, or a problem with your ability to tell the truth. Either/or.

June 20, 2009 at 4:48 PM  
Anonymous nick said...

Malchus X accuses me of "lying" by paraphrasing the following sentence of his: I think the ancient Romans would find it hilarious that some savant actually believes that everything that has ever gone wrong with Western Civilization, from Hitler to the United States Supreme Court, would be due to the "taint" of their law.

My "lie" was to correct your lie about me in this sentence, in which you imply that I made this claim, when I made nothing remotely resembling this claim, as anybody who bothered to read my comments with a modicum of reading comprehension can verify. So I substituted the actual claim that I in fact made -- that Roman law was a major influence in the coming to power of a large number of tyrants, whereas countries under laws derived from England have avoided this fate. That this, and not your lie, is in fact the claim I made and am making anybody of reasonable literacy skills and care can prove for themselves. But again you are assuming that Moldbug's followers lack such abilities so that you can get away with lying about what I have said.

I again urge all who think there is anything at all to Malchus X's claims but utter garbage to go back and read my first two comments, think about them, and see for yourself.

June 20, 2009 at 4:48 PM  
Blogger Malchus X said...

"So I substituted"

Uh, if I didn't type it and you insert it any way as part of my quote, that is called "lying."

"That this, and not your lie"

Except that there was no lie. I, too, encourage all to go back and read over what Nicky has posted to date - such an excitable fellow, that one!

Over and over and over he raves about the international Roman-Nazi conspiracy (my name for it) to "taint" Western institutions from the Imperium onwards.
That is precisely what I was referring to when I typed this:

"I think the ancient Romans would find it hilarious that some savant actually believes that everything that has ever gone wrong with Western Civilization, from Hitler to the United States Supreme Court, would be due to the "taint" of their law."

Nicky makes a heck of an effort, but he just can't seem to get past those troublesome facts. Sucks to be in that position Nicky, I know it must, but whaddaya gonna do?

June 20, 2009 at 4:58 PM  
Anonymous nick said...

Malchus X: I count ten, so "Anonymous" gave you one more Hitler than you deserve credit for

I can guess why you lie so viciously about me -- you worship Moldbug and I have blasphemed your diety -- but why do you lie so obviously? Your falsehoods about what I have said can again be readily refuted by anybody who goes back to actually read my comments. Anonymous claimed that I mentioned Hitler eleven times in my first two posts, before you singled out Hitler and we started debating Godwin's law. Anonymous' claim, like yours, is a preposterous lie that assumes for its rhetorical success that Moldbug's fans completely lack in reading comprehension, or are at least too lazy to scroll back up in the thread and see who said what. Before you started foaming at the mouth about Hitler and Godwin's law, I mentioned both The Dictator Who Shall Not Be Mentioned and the absolute monarchs three times each, and listed a large number of other emperors, monarchs, and dictators, all operating in a legal system derived from the Roman emperors, such as the Code Napoleon which Moldbug lauded in his post, and in contrast to the English derived legal systems.

Obviously since you brought up Godwin and maliciously paraphrased my comments so as to fraudulently imply that I focused on The Unmentionable One, you and I have mentioned Hitler many more times. That you include these in your count shows that your purpose here is malicious slander, not anything resembling reasonable debate or truth.

Lacking any real argument in support of the Napoleonic Code specifically or absolutist principles and procedures generally, you seem to have successfully distracted the thread away from any real debate. Congratulations, you vicious moron.

June 20, 2009 at 5:18 PM  
Blogger Malchus X said...

"Congratulations, you vicious moron"

Ahhh, Nicky, Nicky, Nicky - I think you're just as cute as a bug.

But all that fancy semantics and 'splainin about why your plain words do not seem to mean what the rest of the English-speaking world thinks it does, and why when you type "Hitler" ten times and then claim you only did so three times, and on and on and on with the self-contradictions and outright, uhhh, "untruths" let's call them, your credibility starts to become, shall we say, strained.

I'm sorry about it, but that's just the way it is. Getting mad and throwing a tantrum about it really doesn't help. Just a little friendly advice, pardner.

Have a delightful evening!

June 20, 2009 at 5:25 PM  
Blogger Malchus X said...

"Anonymous claimed that I mentioned Hitler eleven times in my first two posts"

Oh, and by the bye, Nicky: you're either having some of those "reading comprehension" issues yourself, or you're having a troublesome tangle with the truth - again.

I only counted your "Hitlers" up to "Anon's" post - I counted none of your Hitler's after his/her post @ 3:15 pm.

"Reading comprehension," indeed.

June 20, 2009 at 5:32 PM  
Blogger Malchus X said...

" you seem to have successfully distracted the thread away from any real debate"

Nicky, you are free at any time to quit talking about me and start talking about your precious international Roman-Nazi conspiracy to subvert all that is good and decent in the world (Query, Nicky: did the Roman's invent fluoridation?).

I even encouraged you to do so, in case you've forgotten: "Present one, and if it doesn't read like a libertarian screed against lighthouses being publicly owned - which is about the intellectual equivalent of your posts to date - perhaps someone will take you up on it."

By all means, proceed.

June 20, 2009 at 5:39 PM  
Anonymous M said...

Without going into the substance of Nick and Malchius' disagreement, I will say that Nick is coming across as erudite and reasonable in his manner and argument style; Malchius is coming across as aggressive, bombastic, and sarcastic. When one side is looking to engage in ad hominem attacks instead of reasonable debate - "Now go ahead and write us another five paragraph epistle explaining why your typed words don't mean what most English-speakers would perceive them to mean" - I would say, Nick, it's best to ignore the offender lest facing the possibility of being dragged into a pointless and frustrating flame war.

June 20, 2009 at 5:41 PM  
Anonymous Devin Finbarr said...

Nick-

MM now presents as our role model the will of Napoleon to impose by conquest the law of his role models the emperors of Rome. His Code is part of the tradition of absolutist law from Augustus to the Tsars to Hitler and Stalin. Now MM would have us take this seriously as a substitute for the highly evolved law of English origin with its formalism, separation of powers, and (in former times) political property rights.


You and MM categorize these leaders along different lines. You categorize absolutist versus non-absolutist. When you do that, even fairly decent absolutists look bad by comparison to Hitler.

Mencius categorizes governments as legitimist versus demotists. Legitimists come to power via a defined process of lawful succession. Demotists come to power through power struggles. When you classify this way the Tsars, Bourbons, Hasburgs, Stuarts, etc are in a totally different category than Hitler, Stalin, and Napolean.

In this division the greatest sins of the legitimist rulers was not firing on the mob in 1790 and 1917. The British and Americans sinned in dismantling the Hohenzollerns and turning Germany into a Republic.

Absolutism and Roman law were not the problem. The problem was the Left that dismantled the absolute monarchies, which led to chaos and power vaccuums that got filled by revolutionary tyrants.

BTW, what exactly was wrong with the Roman empire in terms of government? My impression is that the 200 years from 30 BC to 192AD featured pretty good government. The years of the Republic before it - 150BC to 30BC - were in turn much more chaotic and violent.

many Latin American dictators, and the dozens of communist dictators that plagued the last century are among this long line of misery-wreaking thugs that Moldbug,

The history of Latin America is far more complicated than "dictators bad" and "democracy good". Some of the absolutists rulers provided pretty good quality of government (Porfirio Díaz, the United Fruit Company, even Pinochet). The current governments are pretty awful. Countries like Mexico and Brazil feel like they are on the edge of the abyss. Guatemala and Columbia fell in a while ago. The main problem in Latin America is not Roman Imperial Law or tyranny. It is a complete break down in order, an inability to control crime, and bureuacracies that are suffocating the economy. I can sympathize with MM's calls for a return of authoritarian law and order governments.

As long as Commonwealth and U.S. lawyers keep caring about their profession more than about ideology, the common law will thrive in the face of these countless nattering amateurs.

You are more sanguine about the current state of American law than I am. Business law seems to be in pretty good shape. But the rest of law is a mess. Family law is a disaster, the courts have basically outlawed the marriage contract ( I'm not talking about gay marriage, which is fine). If a man wants to enter into a contract with a woman that defines the terms of the marriage and what happens in cases of a breach, the courts simply refuse to enforce it. This has made marriage a dangerous and move for men. The ramifications of the judicial activism in this case are dire. Criminal law is also a disaster. The concept of trial by jury has been replaced entirely with trial by plea bargain.

June 20, 2009 at 5:43 PM  
Anonymous Devin Finbarr said...

Nick (continued)-


This catastrophe, the Reception, successfully destroyed the evolution of liberty in almost all of Western Europe except in England -- because in England the lawyers were trained at the Inns of Court and not at the universities.

Again, I'm not sure what you mean here. In what ways did an Enlighman of 1770 have more libterties than a Frenchman or a someone living in the Kingdom of Naples? In what way was a Russian of 1900 living under the Czar or an Austrian living under the Hasburgs less free than an Englishman?

In "The French Revolution" by Bosher, he points out that France had become considerably more free during Louis the XVI's reign. The problem France had was not Roman law and absolutism. The problem was the Louis the XVI bought too much into the enlightenment and liberalizing ideas, and thus was unwilling to crack down against people who would overthrow the regime. It was this weakness that led to the French Revolution and Napoleon.

England started losing its liberty when it opened up the voting rolls. Parliament started passing more and more legislation. I also do not get a sense that Parliament passing these laws was an intentional importation of the Roman legal system. I think it was something that happened more by accident ( but I could be totally wrong about this).

In the U.S. we lost our liberty because certain actors schemed for power, and won that power (Lincoln and the Radical Republicans, Wilson, and FDR). Again, I do not think this had anything to do with Hobbes or a conscious effort to import the Roman system. It happened because people scheme for power and democracy is a particularly bad way of allocating power.

, the revival of memory and restoration of which would reverse many of the evils MM portrays.

Say a lot of people started reading your ideas and a movement started to restore traditional English law. How would you propose the movement try and accomplish its goals? Trying to stage a new Constitutional convention? Pressuring Congress to change laws? And what does the restoration bill do? How does it divide up control and political properties? We can get even more specific. Let's take Baltimore. How does your reform result in a Baltimore that is restored to security, liberty, and prosperity?

June 20, 2009 at 5:43 PM  
Anonymous m said...

David - now that's a measured and intelligent response to Nick's argument :) Why havn't you updated your blog in a year?

June 20, 2009 at 5:51 PM  
Blogger Malchus X said...

"I will say that Nick is coming across as erudite and reasonable in his manner and argument style"

Yesiree, you can just feel the erudition and reason can't yah? Like here: "Congratulations, you vicious moron."

Ain't sockpuppetry fun?

June 20, 2009 at 6:54 PM  
Anonymous Molyuk said...

Since when is mentioning Hitler a faux pas on this blog? Nick, I think you've been trolled. I know Malchus X comments often, and sometimes intelligently. Here he's just baiting you.

June 20, 2009 at 8:14 PM  
Blogger Malchus X said...

"Since when is mentioning Hitler a faux pas on this blog? Nick, I think you've been trolled. I know Malchus X comments often, and sometimes intelligently. Here he's just baiting you."

I think the link to Dr. Strangelove would have been Clue #1.

The priceless reaction - a barrage of logorrheic paragraphs picking apart 77 words - was just too much to forgo. Excessive seriousness + Pompousness = Too, too easy.

Now, mind you I'm no detractor of either excessive seriousness or logorrhea by any means: our estimable host is often accused of the same. But always with a little humor, my dear Zilkov, always with a little humor.

Indeed, a "F*&$ you and the horse you rode in on" from jolly 'ole Nick would have been sufficient, I think. But not near the fun!

June 20, 2009 at 10:12 PM  
Blogger Thrasymachus said...

Gentlemen, please. I'm not sure how we jumped from legal realism to Roman law versus common law. It's an excellent topic but I think we are getting ahead of ourselves.

That said I read a book on the history of witch trials once (or scanned it extensively in the bookstore, it had an orange cover but I don't remember the title.) The author pointed out that while witch trials are associated with the Inquisition, some of the worst excesses occurred in Germany, a Lutheran country, and Scotland, a Calvinist country. The common denominator was Roman law, which allowed torture of suspects. Only in England, with common law, were witch trials less common, and when trials occurred convictions less common, and when convictions occurred death sentences less common. I don't think the institution of a jury trial in criminal cases as a protection against tyranny can be denied. Jury trials in civil cases is another story altogether and probably a really bad idea.

This predates the Glorious Revolution so I don't think it qualifies as part of the Whig conspiracy.

June 20, 2009 at 10:25 PM  
Blogger Malchus X said...

"When one side is looking to engage in ad hominem attacks instead of reasonable debate"

I'm all with my pal 'M' there - just like two peas in a pod we seem to have snuggled up to the same concept, and are now turning the pages together in unison.

Stuff like this, is, perhaps, better ignored:

* "...get an education in the common law and its history before pretending to pontificate learnedly about Coke and the rest of the English legal tradition"

* "In his quest to defame the traditions of our culture, under the guise of pretending to revive them, MM's memory of history seems have become bizarrely selective"

* "MM seems to be coming out of the closet not only as a rabid anti-Protestant, but as a fanatic opponent..."

* "Some unfortunates like MM seem to be incapable of envisioning civilization as anything but a master-servant hierarchy"

* "...are among this long line of misery-wreaking thugs that Moldbug, following Hobbes and Carlyle, would have us emulate...Most of the rest of the world is still under Roman-derived law and risks a recurrence of this tyranny, with Moldbug in the cheering section"

* "I have accused Moldbug of promoting the same kinds of political and legal ideas that brought to power Hitler among a long line of many other tyrants operating with Roman procedural law and principles and allowed these thugs to abuse their power. If you don't understand these kinds of distinctions, why are you bothering to try to read Moldbug or post comments?"

* "Facts that your ignorance of legal and intellectual history in no way rebut"

* "Some of Moldbug's fans seem to so lack in reading comprehension that they can't even count the mentions of a name. If anybody else feels a similar urge to ignorant flaming against my comments...before pretending to comment intelligently upon them, so that you don't make a complete mockery of Moldbug by demonstrating the idiocy of his partisans"

* "...the claim I made and am making anybody of reasonable literacy skills and care can prove for themselves...anything at all to Malchus X's claims but utter garbage..."

* "...why you lie so viciously about me -- you worship Moldbug and I have blasphemed your diety -- but why do you lie so obviously? Your falsehoods about what I have said...Anonymous' claim, like yours, is a preposterous lie...Before you started foaming at the mouth...and maliciously paraphrased my comments so as to fraudulently imply that I...shows that your purpose here is malicious slander, not anything resembling reasonable debate or truth...Congratulations, you vicious moron."

But now, gosh-darnet, if that almost isn't an instant classic in the exercise of the genre, I don't know what is.

How can a fellow be reaonably expected to just "ignore" such art? That there's the kind of dilemma sprouting some serious horns.

June 20, 2009 at 11:18 PM  
Blogger Malchus X said...

"How did three magically turn into eleven? Some of Moldbug's fans seem to so lack in reading comprehension that they can't even count the mentions of a name" (emphasis added).

And about that, by-the-bye (*ahem*):

"His Code is part of the tradition of absolutist law from Augustus to the Tsars to Hitler...Surely he has not forgotten what the Caesars and the Tsars and Hitler... and most recently Hitler...wherein any mention of Hitler or Nazis leads to reflexive invocation of Godwin's law, even though Hitler is perfectly on point to the discussion, as here. The "reductio ad Hitler" is defined as follows: "Hitler (or the Nazis) supported X, therefore X must be evil/undesirable/bad." I have committed no such fallacy. I have not singled out Hitler...the Roman emperors, the Tsars, the post-Reception absolute monarchs, Napoleon, the Kaisers, Hitler...The Dictator Whose Name I Shall Not Mention"

Bears repeating, since we're counting "mentions," and all.

Some folks look around at the hole, and yell up "throw me down the business end of a rope and haul me out of here." Others say "we need another shovel down this way 'cause the digging's just getting started."*

Nicky has consistently opted for the latter thus far.

*I would credit this if I remembered where I first heard it. I don't - so claim it and I'll name you the author with bells, whistles, and party favors.

June 20, 2009 at 11:37 PM  
Anonymous Vladimir said...

Nick,

I agree with the above poster that you've been trolled. You should just ignore people like this "Malchus X." Even if you were guilty of everything he's trying to accuse you of (and he hasn't even managed to write anything coherent enough to count as a sensible accusation), you're still the one who has something interesting to say, unlike him. So many people want to run before they've learned to walk, and this "Malchus" character is just another sad example of this. He wants to imitate the witty, erudite, and acerbic style for which MM is famous before he's even learned to make a simple and straightforward logical argument, so of course that he ends up making an ass out of himself. It's futile to argue with someone like that, and anyone worthy of your attention will instantly see all this.

Anyway, I've just downloaded your paper "Jurisdiction as Property," and I'll read it tomorrow before commenting further; so far, the abstract sounds very interesting. (BTW, the link you gave is incorrect -- for other interested readers, the paper can be found here.) I'll also look at Scott Gordon's book. Also, I've noticed that the "Essays and Papers" page on your blog doesn't contain some of your papers that you've mentioned in the comments here. I'm seriously interested in reading more about your thoughts on legal theory and history, so could you present a list of your online writings that would be a good primer for your position?

June 21, 2009 at 1:42 AM  
Blogger AMcGuinn said...

Nick - your ideas here are relevant and interesting. Please ignore the Malchus troll.

June 21, 2009 at 2:52 AM  
Anonymous c23 said...

nick: It seems that your complaint with MM is that he supports tyranny, which is sort of like complaining that blue crayons are blue. But I don't see you making a case that English common law is better than Roman law, or why.

Making a list of the hated dictator who shall not be named, along with some who shall, doesn't cut it, because it amounts to cherry-picking data points.

June 21, 2009 at 4:39 AM  
Blogger Blode0322 said...

But I don't see you making a case that English common law is better than Roman law, or why. - c23

Well now ... NS has a whole blog about that. I think he'll get in trouble with our host if he reprints it all here. (Naw just kidding, Moldbug doesn't read these much.)

June 21, 2009 at 8:30 AM  
Blogger drank said...

Wow.

I'm still up in the air on whether MM's writing is best understood as a spectacularly successful troll. But his comment section has certainly been infested with them of late.

June 21, 2009 at 10:31 AM  
Anonymous Anonymous said...

Wow.

Nick. Vladmir. AmMcGuinn. Drank. How many different monikers coming from the sam keyboard does blogger allow one to have?

June 21, 2009 at 10:54 AM  
Anonymous Vladimir said...

Devin Finbarr:
In what ways did an Enlighman of 1770 have more libterties than a Frenchman or a someone living in the Kingdom of Naples? In what way was a Russian of 1900 living under the Czar or an Austrian living under the Hasburgs less free than an Englishman?

Under the Czar, it could be pretty bad if you were a Jew. The harsh anti-Semitic legislation, such as the May Laws, was bad enough by itself, but even worse were the frequent violent mob pogroms that were not just tolerated, but often even supported by the regime as a way of venting popular anger. Also, the Polish uprising in the 1860s was crushed extremely harshly and followed by years of iron fist repression, although the situation for Poles was becoming much better towards the end of the 19th century, unlike for Jews. There were also intermittent Russification campaigns in other previously conquered lands such as Lithuania, which were also accompanied by extensive censorship and repression. This was however hardly without precedent in the Anglosphere -- witness the eradication of German language publications and institutions in the U.S. during WW1.

Otherwise, it is true that the Czarist regime was nothing like the extreme tyrannical despotism that it's often imagined to be. For example, its criminal law was unbelievably lenient -- people were punished by a few years of internal exile for things for which they would hang almost anywhere else in the world at the time. As a well-known fictional but realistic example, in Crime and Punishment, Raskolnikov gets only eight years of exile for a double premeditated murder and robbery, and his girlfriend is allowed to accompany him! Furthermore, after the reforms of Alexander II, the level of judicial independence was unbelievable. Vera Zasulich was found not guilty by jury nullification after she attempted to assassinate the governor of St. Petersburg! Imagine that happening anywhere in the Anglosphere, in any historical period.

As for the 1770 Ancien Regime and 1900 Habsburg Monarchy, I also don't see much difference in the level of liberty compared to the Anglosphere in the same period. However, both these jurisdictions had an extremely complex and polycentric constitutional structure, and they were nothing like the monolithic autocracies that they're often naively imagined to be. In fact, I'd say that when it comes to the concentration of the "locus of sovereignty," none of their institutions enjoyed anything like the supremacy of the English parliament.

June 21, 2009 at 12:57 PM  
Anonymous Vladimir said...

Also, I urge everyone to resist the temptation to feed the trolls!

June 21, 2009 at 1:03 PM  
Anonymous Devin Finbarr said...

Vladmir-

Good comment.

It seems like the Russian oppression of the Jews was very similar to the oppression of blacks in the Jim Crow South. So again, I don't see the case that the Continental model was so much worse than the Anglo model.

You could also flip the argument around and use the example of Jewish oppression to argue for stronger authoritarian rule. If the Tsar had been stronger, he would not have had to give in to the mob or use the Jews as a scapegoat. An example of this is post-Tiannamen China. After the leadership learned that it could trust its army to fire into a mob, it could afford to liberalize considerably.

As for the repression of uprisings, well, governments are supposed to do that. The track record of peasant rebellions in terms of actually increasing quality of governance is not good at all. Do you have any idea how bad the repression that followed was? Was it more of "watch what you say to your friends" police state? Or was it limited to published expressions of political speech?

The point about the lax nature of criminal law enforcement is interesting. Of course, this seems to me quite a bad thing. Again, it is similar to law enforcement in the U.S. during that time period.

In terms of liberty, the big difference that I remember reading about between Britain and France is the existence of the guild system. In France, the princes and monarchs were much more likely to raise money by establishing guild monopolies and then taxing them. The English I believe used a more direct system. As a result, the English had more freedom to invent new industries and challenge the guilds. All of this is from vague memory of books I read years ago, so I may be wrong about this. I think this came from Douglas North. Again though, I don't see what that this a matter of continental law versus Anglo common law.

none of their institutions enjoyed anything like the supremacy of the English parliament.

This goes along with what MM and Jouvenal have written. The idea of "Popular Sovereignty" is the real cause of the modern totalitarian state.

June 21, 2009 at 4:16 PM  
Blogger Alrenous said...

Nick, is it not true that law as taught in American universities is still common law, in the very least that the vast majority of the existing structure is the result of common-law procedures?

Two facts. You're a law professor at a university.

Mencius is not exactly kind to universities in general. (Please note that it doesn't matter if he's right or not.)

If we're going to talk about insulting idols and suchlike, we also need to consider this conflict of interest - normally I wouldn't expect someone with two essential conflicts to be able to argue dispassionately. (Heh, 'highly evolved institutions.' Well then! Let me just respond with my 'highly evolved commenting style.') Normally, I'd expect you to oppose what Mencius saying regardless of what it is, as long as he continues to oppose universities and separation of powers. But enough; I just wanted to bring it to the fore.

It's pretty obvious that Carlyle gets a pretty bad rap. However, Mencius is stating without justification that it isn't deserved, and you're stating without justification that it is. Now, I also read your blog, but not the entire archives, so if you've gone into it explicitly, kindly let me know.

In fact, as far as I know, neither of you are talking Carlyle at all - but rather, your own points of view, which may or may not have anything to do with Carlyle.

I could of course read him myself...but it's quite clear that two very intelligent people have perceived two very different things in the same text. Were I to do this, most likely we'd just have a third interpretation, none of which may actually match what Carlyle actually wanted to say.

God knows it's damn hard to tell when Mencius is serious and when he's not, although I find this part of the charm.

For and example for both paragraphs above:

Note that in the English common-law tradition, this "code of the future" approach - which is, indeed, ridiculous on the face of it - is not even a 20th-century artifact. It dates not just to Holmes and Cardozo, not just to Marshall, but to Coke at least.

Nick's reading; "Rarr! Common-law bad!"

Alternate reading; "Common law would be great without this Coke dude."

But to discriminate between the two, at least you have to reference other posts, and then you have to determine how much is what Mencius thinks and how much was him being playful and/or deliberately provocative. Imagine how much harder this would be if he wrote in exactly the style of 1850.

And, as Mencius has brought up, the blog is entertainment - unless you are doing it for enjoyment, this is all too much work.

So, my solution; I do not give a damn what Carlyle thinks. He's dead. I care what you think. What is it, exactly, that Carlyle is saying that you don't like? (For this question, it doesn't matter if Carlyle actually said it - I'll still learn what you're objecting to.)

While I'm here, I'd also like to say I find the whole 'realist' vs 'the-whatever-it-is-I-forget' to be an ill-formed distraction from the real point. Mencius should have stuck to pronomian and antinomian, as the point of the I-forget is basically to have personal whim trump law.

Which, Nick, makes your arguments about tyrants quite ironic, don't you think?

There's also Mencius' argument that separation of powers has failed - which I'd very much like to see an opposing viewpoint on, as I don't have enough evidence. It seems plausible, and that's all I've got.

However, the red-giant metaphor seems pretty much dead-on. USG is a red giant and getting bigger and more sclerotic. So to properly oppose the idea, you have to account for that.

June 21, 2009 at 6:37 PM  
Blogger chairmanK said...

Devin Finbarr nicely summarizes MM's central idea: Mencius categorizes governments as legitimist versus demotists. Legitimists come to power via a defined process of lawful succession. Demotists come to power through power struggles. When you classify this way the Tsars, Bourbons, Hasburgs, Stuarts, etc are in a totally different category than Hitler, Stalin, and Napolean.

Now can someone please, please explain to me the difference between "a defined process of lawful succession" and a power struggle? Who decides what is "lawful"? Does a ruler lack legitimacy if he comes to power by amending the rules of succession, judicially executing his rivals in a secret (but lawful!) court, and rewriting history to erase any record of the preceding power struggle? Legitimacy is an epistemological problem.

June 21, 2009 at 7:09 PM  
Anonymous Devin Finbarr said...

Now can someone please, please explain to me the difference between "a defined process of lawful succession" and a power struggle?

Obviously there are lot of gray areas. But on one end of the spectrum the leader comes to power via a succession plan that is well defined and accepted as legitimate by the major players in the system. Examples include: a civil service state where there is some sort of board, and the board appoints members to replace old members, and appoints the new executives. Another example is a monarchy, where there is a very well defined rule of succession that everyone accepts.

If a price changes the rules of succession to gain power, than no, that is not a legitimist ruler.

At the other end of the spectrum is a ruler who comes to power at the head of a rebellious mob. Or a ruler that comes to power via cutting the throats of his competitors. Or a system of gang alliances where a ruler comes to power by making the right alliances and building a coalition.

Gray areas include many democratic transitions. For instance, in the U.S. transitions are much closer to legitimist. But in times where there is lots of fraud, mob politics, and violent intimidation of voters, then the government is demotist.



I'm guessing that most people can agree that legitimist governments are better than demotist governments. The real question is what forms of government are most likely to degenerate into demotist governments.

June 21, 2009 at 8:01 PM  
Blogger G. M. Palmer said...

Nick,

First of all, quit with the whole "thug" thing. It makes you sound like a Democrat.

Now, I haven't gotten past your comments on "ancient Athens, the Roman Republic. . ." so someone may have brought this up.

However.

Do you have any idea what the last 150 years or so (from the Gracchi brothers on) was like in the Roman Republic? I mean really. Or exactly how Athens fell apart?

MM's general analysis is that limited suffrage democratic forms of government are unsustainable because IT IS ALWAYS in the best interest of one party to increase the number of eligible voters.

This leads to trying to rule the mob through sops -- which quickly leads to mob rule, chaos, anarchy, and violence.

If you doubt it, move to Detroit. I hear they're giving folks 25k for buying a house -- that ought to get you at least a dozen houses.

As I've said before,
come up with a better idea.

The first thing you have to engineer against is the dilution of the voting/ruling pool.

June 21, 2009 at 8:25 PM  
Anonymous Vladimir said...

Devin Finbarr:

It seems like the Russian oppression of the Jews was very similar to the oppression of blacks in the Jim Crow South. So again, I don't see the case that the Continental model was so much worse than the Anglo model.

I agree that this is a good parallel. In fact, I would argue that the other great continental reactionary polity, Austria-Hungary, put the entire rest of the world to shame at the time when it came to managing peaceful interethnic relations and protecting Jews and other local minorities against mob violence. (Jews enjoyed full emancipation under the Habsburgs after the Austro-Hungarian Compromise of 1867.)


As for the repression of uprisings, well, governments are supposed to do that. The track record of peasant rebellions in terms of actually increasing quality of governance is not good at all. Do you have any idea how bad the repression that followed was? Was it more of "watch what you say to your friends" police state? Or was it limited to published expressions of political speech?

Well, Polish uprisings can hardly be placed in the same category as peasant rebellions. I have no doubt that a successful Polish independence war in the 19th century would have produced a more or less decent polity, as it did in 1918. (Not as decent as England or the Habsburg Monarchy -- just observe what happened in the Habsburg part of Poland in 1918/1919 after the Habsburg Monarchy was broken by the victorious Entente -- but probably better than Imperial Russia.)

As for the post-1864 Russian repression, it's hard to say because most sources are tainted by propaganda. There was certainly a ruthless campaign of looting, executions, deportations, property destruction, and land confiscation in the immediate aftermath -- but then, Sherman was handing out similar treatment in the South at around the same time. Also, the numbers of reprisal victims I've seen (hundreds executed, tens of thousands exiled to Siberia) look mild when compared to, say, the Soviet invasion of Hungary 92 years later. My impression is that the subsequent regime was very harsh in theory, but relatively lax in enforcement, targeting only open sedition. I know that, for example, the entire education system was supposed to be Russified, but this was done in practice only with higher education; there was successful Polish resistance in the lower levels of the school system.

BTW, when it comes to cool footwear, the old-school reactionaries never disappointed even when painted by their bitterest enemies. Check out this Russian officer's boots:
http://en.wikipedia.org/wiki/File:Rok_1863_Polonia.JPG


The point about the lax nature of criminal law enforcement is interesting. Of course, this seems to me quite a bad thing. Again, it is similar to law enforcement in the U.S. during that time period.

I wouldn't say that the law enforcement was lax in the sense that you could get away with being a career criminal easily. My impression is that policing was reasonably effective, but criminal penalties were extremely lenient. I honestly have the impression that the Czars and imperial officials exercised some genuine mercy towards convicted criminals, mercy of a sort that has never been present in Anglo-Saxon legal systems, which never hesitated to hand out draconian punishments as long as the due process was observed. I really have no other explanation for the lenient treatment of so many criminals, both ordinary ones and political subversives, once they were already apprehended and their guilt proved.

June 21, 2009 at 9:39 PM  
Blogger Alrenous said...

Does a ruler lack legitimacy if he comes to power by amending the rules of succession,

You can't amend the rules of succession unless you're already the ruler. Otherwise, under the definitions here, doing so is demotist.

judicially executing his rivals in a secret (but lawful!) court,

If you have the legitimate claim to succession, why would you need to resort to secret executions? The assumption of rivals already presumes a power struggle, as the whole point of 'legitimism' is to transfer power smoothly and without conflict - which basically means the system has to clearly define one and only one candidate.

(Please note I've made no claim as to whether this system would work or not.)

and rewriting history to erase any record of the preceding power struggle?

Pretty sure lying is illegitimate. If the facts of your succession prove that you're illegitimate, you're illegitimate, and otherwise you don't need to hide them.

Notably, this actually links into what Nick's saying as well - Carlyle has this association with everything in the first two categories; actions that you can't take unless you're already the ruler, and actions you don't need to take if you're legitimate.

However, I don't know if this is because of a successful smear campaign or because Carlyle really was a thug, with apologies to G.M. Palmer. And, as before, it doesn't matter because Carlyle is dead, what matters is the ideas of the living.

June 21, 2009 at 11:16 PM  
Blogger nazgulnarsil said...

I have to second Alrenous. It feels like a lot of the ideological distinctions being made are just so much mistaking the map for the territory. Ideology is a narrative under which the things you want to do are morally justified and it's not really much more.

June 22, 2009 at 6:50 AM  
Blogger Blode0322 said...

"Does a ruler lack legitimacy if he comes to power by amending the rules of succession"

You can't amend the rules of succession unless you're already the ruler. Otherwise, under the definitions here, doing so is demotist. - Alreneous

Some of this theory stuff leaves me a little confused. Can't you just have the rules for amending the rules of succession built in? Like, 'Parliament can amend the rules of succession, but can't kick out an existing King unless he's named James II' or something like that?

If you were to combine this whole thing with a written constitution - don't see why you couldn't - you could just say changes in rules of succession only take place after the next king has been crowned. That would seem to reduce the incentive for power struggles.

June 22, 2009 at 9:28 AM  
Blogger Alrenous said...

Yeah, the whole issue is that polite power struggles like voting always have the potential to break out into less polite forms, see Nazi Germany, Soviet Russia, hell let's even bring up Iran, etc, etc...

I would suspect that if Parliament can alter the rules of succession, then they have a bargaining chip against the Crown. It's too much to hope that Parliament just agrees with the Crown, which means we have a conflict of interests. Parliament can now use this card to win concessions from the Crown, and eventually either the Crown has to act to rid themselves of Parliament, or else Parliament will instate a string of puppet rulers until it has full informal power.

So, summary; the power of succession just IS the power, period. As soon as you gain it, you've won. And the point of a 'legitimist' ideology is to end conflict over who has this power, so we can get on to worrying about important things.
(Again, please note that this is not an endorsement. I didn't think up legitimism, and I'm sure there's at least one other design that would work just as well, that I also haven't thought up. The point is the end, not any specific means.)

I guess some Demotists noticed this too and tried to give it to the people. It seems pretty clear that it didn't work. At the very least; I certainly don't have power, even though formally speaking I'm supposed to.

Also, Billy Ayers totally thought he had this with Obama. Uhhh, oops.

June 22, 2009 at 10:12 AM  
Blogger march said...

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June 22, 2009 at 8:51 PM  
Blogger march said...

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June 22, 2009 at 8:52 PM  
Blogger Steve Sailer said...

That's weird, I was just walking down the street and I saw an advertisement for a local real estate agent who is also named "Faguet," and I said to myself, "He must have had a difficult adolescence."

June 25, 2009 at 9:13 PM  
Anonymous Anonymous said...

there are still people naming their children "gaylord"

June 28, 2009 at 10:51 PM  

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