Comments on: The Philosophy and Practice of Law and Liberty https://www.peoplevstate.com/?p=1235 fairly undermining public confidence in the administration of justice Sun, 13 Nov 2011 19:49:21 +0000 hourly 1 https://wordpress.org/?v=5.4.15 By: Media Coordinator Update, 09/02/11 https://www.peoplevstate.com/?p=1235&cpage=1#comment-1998 Sat, 03 Sep 2011 04:36:03 +0000 http://www.peoplevstate.com/?p=1235#comment-1998 […] week’s pseudo-random reciprocal blogospheric link love: Decisions, Decisions, Decisions, People v. State, and Anti-Libertarian Libertarianism (hey, you don’t have to LIKE us to get a kiss thrown […]

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By: John Kindley https://www.peoplevstate.com/?p=1235&cpage=1#comment-1983 Sun, 28 Aug 2011 01:26:46 +0000 http://www.peoplevstate.com/?p=1235#comment-1983 In reply to Jeff Gamso.

I think you’re overstating a bit my assumptions and my estimation of human nature.

Here’s an interesting article regarding “vigilantism” in the context of the UK riots: http://www.wendymcelroy.com/news.php?extend.4162

Re: the Injuns. Yeah, it wasn’t Eden, like I said. And did I refer to them once before in another post? I’m sorry. It’s just that when somebody starts talking about the state of nature that’s the closest example that comes to mind. I’ll have to read up on my Injun history. Some of them were constantly at war? Some tortured? I’m glad we civilized citizens of the United States of America have outgrown all that. Admittedly, my knowledge of the Injuns is all second-hand. Sorry if I’ve quoted the following before. I’m a man of few books.

“Mr. Jefferson, for example, remarked that the hunting tribes of Indians, with which he had a good deal to do in his early days, had a highly organized and admirable social order, but were “without government.” Commenting on this, he wrote Madison that “it is a problem not clear in my mind that [this] condition is not the best,” but he suspected that it was “inconsistent with any great degree of population.” Schoolcraft observes that the Chippewas, though living in a highly-organized social order, had no “regular” government. Herbert Spencer, speaking of the Bechuanas, Araucanians and Koranna Hottentots, says they have no “definite” government; while Parkman, in his introduction to The Conspiracy of Pontiac, reports the same phenomenon, and is frankly puzzled by its apparent anomalies.

Paine’s theory of government agrees exactly with the theory set forth by Mr. Jefferson in the Declaration of Independence. The doctrine of natural rights, which is explicit in the Declaration, is implicit in Common Sense;2 and Paine’s view of the “design and end of government” is precisely the Declaration’s view, that “to secure these rights, governments are instituted among men”; and further, Paine’s view of the origin of government is that it “derives its just powers from the consent of the governed.” Now, if we apply Paine’s formulas or the Declaration’s formulas, it is abundantly clear that the Virginian Indians had government; Mr. Jefferson’s own observations show that they had it. Their political organization, simple as it was, answered its purpose. Their code-apparatus sufficed for assuring freedom and security to the individual, and for dealing with such trespasses as in that state of society the individual might encounter – fraud, theft, assault, adultery, murder. The same is clearly true of the various peoples cited by Parkman, Schoolcraft and Spencer. Assuredly, if the language of the Declaration amounts to anything, all these peoples had government; and all these reporters make it appear as a government quite competent to its purpose.

Therefore when Mr. Jefferson says his Indians were “without government,” he must be taken to mean that they did not have a type of government like the one he knew; and when Schoolcraft and Spencer speak of “regular” and “definite” government, their qualifying words must be taken in the same way. This type of government, nevertheless, has always existed and still exists, answering perfectly to Paine’s formulas and the Declaration’s formulas; though it is a type which we also, most of us, have seldom had the chance to observe. It may not be put down as the mark of an inferior race, for institutional simplicity is in itself by no means a mark of backwardness or inferiority; and it has been sufficiently shown that in certain essential respects the peoples who have this type of government are, by comparison, in a position to say a good deal for themselves on the score of a civilized character. Mr. Jefferson’s own testimony on this point is worth notice, and so is Parkman’s. This type, however, even though documented by the Declaration, is fundamentally so different from the type that has always prevailed in history, and is still prevailing in the world at the moment, that for the sake of clearness the two types should be set apart by name, as they are by nature. They are so different in theory that drawing a sharp distinction between them is now probably the most important duty that civilization owes to its own safety. Hence it is by no means either an arbitrary or academic proceeding to give the one type the name of government, and to call the second type simply the State.”

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By: Jeff Gamso https://www.peoplevstate.com/?p=1235&cpage=1#comment-1982 Sun, 28 Aug 2011 00:19:03 +0000 http://www.peoplevstate.com/?p=1235#comment-1982 Many of those native Americans (and this is the second time, at least, you’ve alluded to their more wholesome life than ours) were (by choice) constantly at war. They fought over territory. Some tortured. Some lived in rigid hierarchical societies. And despite the guy on the cliff with the tear running down his cheek, they were not the great husbands of the land we’ve mythologized them into.

None of that even begins to justify what we did, but a bit of honest appraisal goes a long way.

You’re assuming that power relationships and fear and greed wouldn’t exist (or would be happily channeled away somehow)absent fairly rigid political structures because people basically want to help each other and given the chance won’t adopt vigilantism and will be overwhelmingly respectful and careful despite some natural drive in the opposite direction.

I think that’s nonsense. I’m not favoring the political structures we have. I favor much less government in some areas (and probably more in others), but given free rein it’s our worst instincts that would control. Lord of the Flies. The Lottery. Hobbes. The Terror. Human sacrifice. Jump in where you like.

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By: John Kindley https://www.peoplevstate.com/?p=1235&cpage=1#comment-1981 Sat, 27 Aug 2011 22:04:47 +0000 http://www.peoplevstate.com/?p=1235#comment-1981 In reply to Jeff Gamso.

It’s sort of a chicken or the egg question. Worden argues that crime occurs disproportionately at the “bottom end of power imbalances.” But the State has its origin in such power imbalances (i.e., in conquest and confiscation), and is designed to reinforce and perpetuate those imbalances.

I wonder how “nasty, brutish, and short” the life of the Native American was prior to the arrival of us Europeans, although I know it certainly wasn’t Eden. Probably not nearly as “nasty, brutish, and short” as life in the inner city today, despite all the benefits and interventions conferred by the State.

How better to know human nature than to look inside one’s own heart? If I look inside, I indeed see pride and greed, the seeds of criminality, but I also see that I know better. I don’t think if I lived in a “natural state” of relatively balanced power I’d be one of those who’d consciously and purposefully conspire with others to conquer and confiscate, who’d be willing to kill and enslave others, to commit crime, for the sake of my own greed and pride. I hope, though, that I’d be more than willing to conspire with others to defend myself and others against such predations. And I agree with Worden that most people are like this: “In general, people tend to prefer to not have much violence in their daily lives.” The trouble is that some people are willing to commit violence, to conquer and confiscate, to commit crime, for their own ends, and from this the State originated. The question nevertheless persists: who outnumbers whom, in both numbers and conviction? Have we learned anything? The State is a manifestation of our instinct for predation, not its cure.

I was intrigued by something Sheldon Richman wrote a while ago: “Unless you want world government, you’re already an anarchist. We’re just haggling over the level.”

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By: Jeff Gamso https://www.peoplevstate.com/?p=1235&cpage=1#comment-1979 Sat, 27 Aug 2011 20:42:04 +0000 http://www.peoplevstate.com/?p=1235#comment-1979 Of course, to buy into Worden’s argument, you have to start with an assumption that people are basically decent, that left to their own devices they will treat others with decency and restraint, that when they believe they have a troublemaker in their midst, they won’t leap to conclusions but will apply more exactlng standards than the criminal justice system pretends to and will then treat the malefactor with restraint and gentleness.

All that strikes me as a lovely fantasy. Alas it also strikes me as a fantasy that bears almost no relationship to real people and to actual human psychology.

The myth of the golden age, of the Biblical Eden or its non-Biblical analogues, is myth not merely because the lion didn’t lie down with the lamb (unless it was sated with having eaten the lamb’s mother and was lying atop junior to preserve it from competing predators) but because the prelapsarian world presumes prelapsarian people – and they never were.

The Hobbesian conception of the natural state as “nasty, brutish, and short” isn’t primarily a function of a lack of amenities and modern appliances. It’s a reflection of human nature.

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