Curt: What is the difference between rule of law, rule by legislation, and discretionary rule?
The difference is that there is only one way to construct rule of law – which is just the empirical science of jurisprudence discovered by dispute resolution like any other science. Legislation is not law. It is command. it is command we justify. In theory, the legislators should be limited to the provision of commons and there should be no other laws, because there need be none.
The Natural Law is a universal law of behavioral science that we discovered logically and empirically, just as we discovered the logical and physical laws. It consists of:
0. Reciprocity in Display Word And Deed
Consisting of survival of the tests of:
1. Productive (reciprocal increase in inventory of interests that save time.)
2. Exhaustively Informed (disclosed) by test of:
… 1. Realism(materialism),
… 2. Naturalism(natural causes),
… 3. indentity consistency(non conflation),
… 4. internal consistency (logical),
… 5. operational consistency (existentially possible),
… 6. external correspondence (meaning empirical consistency),
… 7. Rational choice (rationality),
… … 8. of action or inaction
… … 8. and of Voluntary Transfer (non-coercive)
… … 9. of Demonstrated Interests (any interest that you have born a cost by action or inaction in order to obtain that interest, producing that value)
… … 10. Free of Imposition of Costs upon the demonstrated interests of others (negative consequences)
… 11. reciprocal rational choice (ethics and morality), and
… 12. completeness
… … consisting of:
… … … 13. stating limits,
… … … 14. full accounting within them,
… … and surviving;
… … … 15. competitive parsimony.
16. Reversible and Restitutable upon failure
17. involuntarily warrantied and liable for all of the above.
1. All disputes, without exception, are logically resolvable by the test of reciprocity, and any claim otherwise is an act of crime by parasitism predation upon the interests of others. Reciprocity is a logical necessity.
2. These are the only terms under which there is no incentive to retaliate, producing retaliation cycles, lowering trust, lowering cooperative velocity, increasing transaction costs and generating conflict in the economy and a demand for authority.
3. Rule of Law by the Natural Law of Reciprocity suppresses all involuntary impositions of cost upon the demonstrated intersets of others, forcing us all to cooperate by competitin in adversarial markets for the service of one another, thereby producing the incentive to treat everyone as a possible customer, for association, cooperation, production, reproduction, commons, polities, and defense.
Markets continue natural selection so those who cannot compete in them must be cared for in exchange for the suppression (prevention) of their reproduction.
This process evolves the population in parallel to the rate of our adaptivity (invention, technology, cooperation), preventing ignorance, poverty, stagnation, and decline, allowing the maximum well being for all people as we continue to evolve under a condition of maximum opportunity, safety, and joy.
Sovereignty is a legal term for the Judge of self-determination of last resort.
There are at least the following claims of sovereignty:
1. The sovereignty of the law (individuals) – for sovereign individuals.
2. The sovereignty of parliament (representatives) – for unsovereign citizens
3. The sovereignty of the State (authorities) – for unfree serfs
There are at least three theories of law:
1. Rule by Natural Law of self-determination by sovereignty and reciprocity (tort)
2. Rule by Legislation: Legitimate Law, say, of Democratic Parliaments
3. Rule by Command: Arbitrary law by any given authority
These are produced by:
1. Findings of Law by the Court (Law proper, juridical science)
2. Legislative Contract (Legislation), requiring legislative process.
3. Authoritarian Command (Command), requiring any arbitrary authority (regulation)
4. Regulation: general rules for the administration and enforcement of law, legislation, or command
Under Conditions of:
1. Windfalls (periods of wealth)
2. Productivity (periods of peace and productivity)
3. Transformation (periods of necessary rapid adaptation to external conditions)
4. War (periods of war of any kind)
However, there are only really two theories:
1. Natural Law of Reciprocity (tort) (as a going concern)
2. Arbitrary or “Positive” Law (as in transformational periods)
And one necessity:
3. Arbitrary (military) Command (as in war)
Legitimizing law and Arbitrary Law are just different excuses for not using natural law. 😉
Rule of Law, of Natural Law, Where the Law is Sovereign is the only possible Rule of Law.
1. Construction from self-determination by sovereignty and reciprocity
2. By findings of the Court Under the natural law of reciprocity consisting of self-determination by sovereignty and reciprocity
3. By negotiation of Legislation between groups, Consisting of Contracts Of The Commons, And Adjudicated as Legislative Contracts – not law
4. By regulations administering and enforcing contracts of the commons, approved by the legislature and the Court .
5. By Command of the Military in time of war or peace necessary for the defense of the demonstrated interests of the people.
Because the perfect government is one that escalates to war, de-escalates into transformation, de-escalates further into peace, and plunges into windfalls
Where those findings of the court, legislative contracts of the commons, and regulations pass the tests of:
1. General (universal) – not specific – to an individual or group.
2. Equally applicable, and exceptionless
3. Prospective, meaning non-retroactive (no law no crime)
4. Understandable, well-known, and not-secret or obscured. (no entrapment)
5. Possible to obey (no hazard)
6. Enforcible (not just symbolic)
7. Certain (predictable)
8. Warrantied by the signatories as within the natural law. (this prevents incrementalism)
The reason for differences and the problem in the US constitution is:
1. The common law is stated, but not defined.
2. The common law is the Natural Law is implied, but is not stated.
3. It doesn’t define the term natural right from the contractual or legislative right.
4. It specifies rights but rarely obligations.
5. It requires enumeration of rights because it doesn’t define the foundations of natural law, the common, law or rights, thus leaving them open to interpretation.
6. It does not require the court to test legislation for constitutional legality.
7. It provides no means for the court to return undecidable cases to the legislature, thus creating the problem of legislation from the bench.
8. It doesn’t maintain the British barrister vs advocate and the pursuit of truth vs victory, which has created all the distrust of the jury system, because of the malincentives of lawyers.
9. It doesn’t provide for the right of DISASSOCIATION which is the cause of most of our present social problems – because it eliminates the normative marketplace.
10. It doesn’t make the elective Sherrif the enforcer of the courts decisions and therefore a least line of defense against an irresponsible state.
The Optimum Government consists of :
1. A universal, trained, militia in reserve, a citizen corps for administration, logistics, supply, and support enlisted at will, a permanent professional fighting military
2. Rule of Law by the Natural Law Administered by an Independent, Professional “Cult” of the Law, with criminal, family, civil, commercial, administrative (state), and military courts.
3. A monarchy as the judge of last resort (see Elizabeth), empowered to restore the law because of violations of the law in the event of military, state, and civil failure.
4. A professional cabinet that administers the offices of the state.
5. A house for each of the classes and sexes, for facilitating contracts of the commons.
6. A treasury for the assets of the polity and facilitation of finance, cooperation and trade.
7. An Insurer of last resort for the unfortunate.
8. An Education system in:
… 1. fitness, hygiene, dress, manners, ethics, and morals, and testimony (truth).
… 3. reading, writing, money, accounting, contract and law, mathematics, engineering and economics, politics(commons) and war.
… 2. the ‘Grammars’ (logics) of the formal, physical, natural, and evolutionary sciences, and the grammars of deceit.
9. A “religion” consisting of training by the sacred (prohibition on self-satisfaction), mythology (group strategy as narrative), ritual, oath, feast,and festival, that provides intellectual, emotional, and social mindfulness regardless of ability in exchange for the observance of the laws of the universe.
Where, as in Rome;
1. The military takes authority in time of war at the expense of the totality of the people (discretionary rule)
2. The courts regulate the people and the economy (means of cooperation) (rule of law)
3. The state produces commons for the people (families, not individuals) and generations that follow (classical liberalism)
4. The legislatures decide what to do with windfalls (unexpected profits) but may not create enduring dependencies.
Where the Houses of the classes operate by:
1. Production of Legislation by the Cabinet
2. Production of Legislation by Representatives (now)
3. Production of Legislation by the citizenry.
1. Direct or representative economic democracy
2. Direct or representative proportional economic democracy
3. Direct or representative proportional democracy (now)
Where the people merely assent or veto legislative proposals.
1. Direct or representative economic assent or dissent
2. Direct or representative proportional economic assent or dissent
3. Direct or representative proportional assent or dissent
Where the people merely assent or veto to appropriations
THE IMPORTANT BIT
What Creates Demand For Rule of Law, Rule of Legislation, or Rule of Command?
- Rule of Law: a homogenous, ethnocentric, polity with less than 5m people
- Rule of Legislation, an homogenous, ethnocentric, polity with more than 5m people.
3. Rule of Command: a heterogeneous, multicultural polity of any size.
Why? Homogeneity or Heterogeneity of the Population.
- The government provides a market for commons under rule of law and only seeks to select priorities for scarce resources among people with nearly identical interests and where differences are mediated by the non-objection of redistribution in favor of kin selection
- If the population is large enough that there are competing economic interests then legislation can function as a means of performing trades between people willing to compromise, who find no benefit in access to power, and find benefit in mutual satisfaction due to kin selection.
- If the population is diverse, has different demographic distributions (abilities), are unequal in competition in the markets, unequal in tax contribution, seek access to power, and are in political competition, then the authoritarian government is necessary.
This is a natural law at scale.
I hope you found this useful.