August 5, 2009

Where shall we find the Law?

As our political and economic situation becomes ever more precarious, the people will be increasingly faced with the most basic questions of power, constitution, and law. While we may think we understand these things, the course of our history does not seem to bear out the idea that we have correctly understood them.
Where power has been distilled and distorted to its most venal manifestations; where constituted bodies are just the waterboys, flacks, and rubber stamps of corporate greed; where law itself becomes the weapon of special interests against the people; where these prevail it becomes time for the people to re-examine the power relations, and their governmental and legal manifestations.
At the dawn of our supposedly revolutionary era, born of the Enlightenment, resolved to overcome and destroy forever the decrepit feudal system, the new ideas and actions of philosophers and political attempters were supposed to liberate us once and for all.
The core revolutionary idea was that power comes only from the people. Both the American and French Revolutions agreed upon this. But as Hannah Arendt discusses in chapter 4 of On Revolution, there was a divergence of thought on the derivation of law. Both theories had their origin among the French philosophes.  The American founders, following Montesquieu, believed law could be enacted only by the legislative body which the people’s power first constitutes. Thus they naturally sought to establish a republic.
The French, following Rousseau, saw both power and law as expressions of the General Will, which is simply the direct interest and aspiration of the people as a whole. By this concept legislative bodies are at best mediators and facilitators of this Will, and the law they produce is the expression of it. At worst, where such bodies become the playgrounds of special interests, they are tyrannical, usurpers, worthy of being destroyed according to classical political theory.
So how do we judge which theory is the better? By its results. And what have the results of American republicanism been? Have our legislative bodies consistently acted in the public interest? If you believe they have, you can support the American founders’ concept of the legislature as the real repository of legislative authority, of the Law itself.
But if they have not (and I think this is clear), we must find that legislatures cannot be the ultimate source of the People’s Law, that they are more likely to seek to hinder its expression and enact a special interest reactionary feudal law, and that we must return to the Rousseauvian General Will as the real and justified source of the Law as well as power. We must regard the concept of the allegedly different sources of power and law as being a flawed concept, or even as used today a class war fraud.
So that’s one issue, to which I’ll return in a bit. First I’d like to deal with another issue Arendt discusses as having vexed our forebears, the question of the derivation of any absolute concept of law. Once the revolutionaries had dispensed with god they still felt the need for some authority beyond the laws, to be the ultimate source of Law. This unfortunate crypto-theological hangover reached its most absurd expression in Robespierre’s “Cult of the Supreme Being”, which was meant to enshrine reason itself as pseudo-divine. This pathetic attempt at the pious fraud failed miserably and helped lead to Robespierre’s discredit and downfall.
But we have the benefit of two centuries more of political maturation. In particular, we can integrate the thought of Nietzsche and Marx to attain the correct concept of the General Will and its law, where we’ll find the key to the riddle.
Nietzsche discusses the origin of law in Toward the Genealogy of Morals Essay II, section 11. Here he differentiates between the active Law handed down by the affirmative lawgiver who seeks to impose justice and order on the seething, recalcitrant mass of egoisms, and the reactive, hijacked law of those motivated by the most petty manifestations of this egoism: hatred, gutter greed, class resentment. This is a spiritual and political delineation. At the same time Marx has described for us how law arises out of class conflict, and is always the instrument of the ruling class.
So Nietzsche and Marx have released us from the compulsion to look for our law beyond the clouds, residing among the gods. We now know there is no “absolute” law, only action/reaction perspective law (Nietzsche), and that these perspectives are class-dictated (Marx). We need only to reconcile Nietzsche’s contention that the struggle will never end with Marx’s vision of the stable classless society, and we find that while we cannot assume we’ll ever achieve universal goodwill, and we’ll still need “laws” to restrain the petty violences and jealousies of rogue individuals, the Law will no longer have to mediate, and often be weaponized on behalf of, structural class conflict. (This can be achieved if we’re willing to fight for our rights).
[I also take this opportunity to modify Rousseau’s concept of civilization as corrupting the naturally good individual, and stress that it is class war civilization which so corrupts us. Again, not that the end of class war means the end of all strife. But it means the end of large-scale, systemic and systematic conflict and crime.]  
So when we ask, in light of these insights, where do we find the General Will, it’s clear that for most of history selfish parochial Particular Wills, in the form of parasite classes and feudal strata, dictated the law. Now with the advent of the modern economic system the proletariat, the true source of all social wealth, has finally come into full cohesion as a class (though it hasn’t necessarily attained self-consciousness yet). It is now mature and ready to rule itself with its own affirmative law. This is the Law which, politically and socially speaking, will not have a “perspective”, since it will be the Law of the people, by the people, for the people. This, the law of the classless society, the law actively instilled by the people themselves as the rightful owners and enjoyers of all social wealth, will finally be the direct, uncompromised expression of the General Will.
Now we get back to the question of the basis of republic. Has the constituted legislature acted, actively, to facilitate the active law of a unitary people? It has not. It has done the opposite: it has become completely and absolutely corrupt, captured, rotted, rancid, stagnant. It acts purely reactively to defend reactionary paleointerests. It is fighting in a last-ditch effort to prop up calcified feudalism.
There are three reactive obstructions to the people’s active Law. The first is the structural fact of the feudal class struggling to hold on to its monopoly and privileges. Toward this goal it weaponizes the law, in reaction versus the natural progress of the people.
The second is the “human nature” aspect of Particular Will egotism and greed, along with the naturally hateful psychology of right-wing cadres.
Finally, there’s the petty resentment of the lumpenproles. The “cornpone nazis”, as James Howard Kunstler calls them, are economically distressed and have nowhere to go but down. But thanks to political and religious brainwashing they furiously resist any class identification as being part of the proletariat (let alone “the poor”). They cling desperately to their delusional “middle-class” identification (when there is no longer anything more than a steadily sinking zombie middle class), and see this as a cultural rather than an economic category.
Instead they let their exploiters manipulate them into acting as the political shock troops of reaction, desperately joining in with the demonization of any scapegoat they can latch onto: unions, “commies”, the poor (meaning blacks and hispanics), environmentalists, so-called “liberals”, etc.
So these are the reactive forces which have consistently captured our “legislatures”. It is clear that this social model does not express the General Will but only thwarts it.
But do we, in our drive to overcome these obstructions, also embody a reactive impulse? Arendt writes of the rage of the downtrodden which played such a pivotal role in the French Revolution, how it came close to sweeping the Revolution along with itself. This revolutionary rage is reactive against the crimes and insults of the feudal calcification. In that sense it is reaction vs. reaction, but enlisted for the sake of positive action.
So we have a dialectical dynamic of action enlisting reaction toward action. Or, reaction on behalf of the people’s will is reaction toward a higher action. We fight not for revenge, not merely for the negative freedom from oppression, not just to mitigate suffering; but for the active, positive Freedom beyond suffering, transcending all petty oppressions.
We fight a corrupted reactionary system, for action, for progress, for positive freedom.
And what does this mean for the Law? The law as we have known it has abdicated. We now have a Hobbesian free-fire zone, the anarchy of every kind of greed and selfishness reduced to its most gutter level.
The revolution affirmatively seeks to restore the rule of law by instituting the rule of Law, the law serving the people, for the people’s weal. 


  1. You write very elegantly about our predicament, and I thank you for sharing your thoughts, but I would welcome more talk about concrete, collective actions we might take.

    A relative of mine is one of the “cornpone nazis”. The irrationality of these people is simply amazing to behold. What can be done to eliminate the fear and hatred in their minds?

    Comment by Karl — August 6, 2009 @ 5:26 am

  2. When the guillotine is set up in Washington D.C., then the senators and congress will see the mob. Right now the protests are mild and polite. They may not remember the campaigning in the days of Andy Jackson, or Abraham Lincoln when the people were more outspoken. Welcome to our heritage, and to our living tradition of American Liberty not granted by law, but alive in each citizen.

    Comment by hoboduke — August 6, 2009 @ 7:33 am

  3. Karl, thanks for your encouragement. I confess I draw a blank on how to change the minds of such people. Sometimes they snap out of it, usually not. But I’m not aware of any particular therapy which gets consistent results. Certainly not reasoning with them…

    It may not be possible until a completely new system brings up an uncorrupted new generation.

    As for concrete action, I give this alot of thought and I hope to offer some constructive ideas on this soon. But here too things look difficult.

    Hoboduke, I fear you’re right that mildness, politeness, restraint just won’t be sufficient for some people, as I just mentioned to Karl. But we’ll see.

    Comment by Russ — August 7, 2009 @ 3:34 pm

    • In this new millenium, a new path may be emerging. Teddy Roosevelt had a personality and the country loved his dynamic action. We don’t need to wait for the Democrat or Republican parties to lead the way. A public distrust of both parties opens the way for a strong person to lead a new party. I humbly offer the Hobo Party as an alternative.

      Comment by hoboduke — August 7, 2009 @ 6:15 pm

  4. […] […]

    Pingback by Robinson Jeffers: “Apology For Bad Dreams” « Volatility — October 2, 2009 @ 6:48 pm

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