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Response to a reader: Comparison of the systems, checks and balances, rule of law

 


So, there is a misunderstanding here. I am looking at what it means when states guarantee their subjects freedom, rights, and equality in reality. Our claim is that in this society indeed particular forms of freedom and equality are realised, which cannot be brushed aside. This is different than most leftists who insist that these "ideals" simply are not truly realized, and only Socialism would be the real deal, would finally realize the ideals of the bourgeois French revolution. Instead, I'm arguing that these (freedom, equality, democracy, rights) are the forms in which (economic) exploitation and (political) domination happen today. The critique of domination and exploitation must therefore take on and criticize this freedom and equality, not ignore them and posit an ideal outside of them.


So, a word of caution on inversion of arguments: if we criticize freedom, equality, humanity, democracy -- it's a bad habit in democracy to immediately assume one must simply want its opposite. Analysing how well the guarantee of freedom works for domination does not imply partisanship for domination. Highlighting indifference towards material dependencies as an obstacle to satisfaction of needs and wants does not imply subordination of needs and wants to some all powerful central committee. Critiquing the justifications by bourgeois democrats for suppressing Stalinists and Fascists does not imply partisanship for the latter two – our enmity to Stalinism and Fascism simply does not make us followers of bourgeois-democratic coping mechanisms.


>these totalitarian societies that you assure me I'm "misjudging", please explain what I'm misunderstanding about them and their relationship to their subjects.


I don't presume to know what you think of these societies, but what I had in mind with my comment was this: in today's democracies there is a very widespread judgement that fascism and really existing socialism -- "totalitarianism" -- were societies where law was thrown out and everything was left up to the pure whim of dictators who had no other purposes or aims than pure power and domination. Moreover the idea is that these dictators alone had all power. This is a wrong judgement about these societies and how the state and society actually functioned. Without a doubt power and domination played a part, but to reduce it to this without any further investigation into the aims of the political movements there is a wrong judgement. It minimizes the political rule there into a cartoonish judgement that supervillains simply imposed their own absolute and arbitrary will against everyone for no other reason than they were evil narcissistic madmen. The bourgeois rule of law in democracy is juxtaposed to "pure arbitrariness" and "unlimited power". 


This is a wrong judgement for two reasons. First, it is simply not true that Soviet Russia or Nazi Germany were lawless. (And not true of the various monarchies and kingdoms democracy carried their revolutions against). Fascism, for example, was not a lawless regime but a constitutional state, which fixed the fascist state reasons into law. It was not true that the fascists lacked any legal standards or conception of justice and just completely arbitrarily did whatever they wanted. They did not throw out the whole constitution or legal system, but modified it. They gained power and put into practice their volkish concept of justice. They made into law -- with lots of popular support -- their ideas about what counted as a true German who has his rights and obligations, his freedom and duties, and who was considered an internal and external enemy of the state. Everyone knows this excluded Jews, communists, critical intellectuals and people who weren't considered ethnically German. To acknowledge this fact is not praise, and certainly not on our part because we do not hold "law and order" in high esteem, but know that a thorough investigation into the content of "law" leaves little to celebrate for free workers subjected to this law. 


In the Soviet Union, it is also not the case that Stalin just clicked his fingers and everyone did what he said. There were all kinds of legal procedures, assemblies, arguments and debates, the conclusions and results of which were put into law. Elections took place. Of course, bourgeois critics accuse every election of which they do not approve the results of being a sham, of being manipulated, of being unfair.


The mere fact that something is codified as law or becomes a legal reality is not a reason to praise something. One has to look at the content and context of these laws, what they actually accomplish and what social relations they put into play and enforce.


The second wrong judgement is about democracy and the limitations and checks it places on itself. It is said to be a positive mark for democracy that the state limits itself with checks and balances. This makes it praiseworthy in comparison to authoritarian regimes. 


So, let's think through this praise of the rule of law/limited government. Why is rule of law usually praised? It's thought of as a restriction on arbitrary rule, a restriction of state power. The state isn't allowed to do whatever it wants. Those in power aren't allowed to do whatever they want to their subjects. This is seen as progress in comparison to the monarchies of yesterday where the rulers' pure subjective judgment was supposedly the basis of rule, not written down laws that benefitted everyone. So, what can we say about this argument? Is that the truth of the matter?


The state is praised for having a limitation placed on it. First off, ask yourself: who's doing the restricting? The state itself is doing the restricting through its checks and balances. Imagine, "listen: my brain comes up with the laws, my mouth tells you them, and my fists enforce them! My different parts keep my power in check! Nothing to worry about here!" The citizens are supposed to like a self-restrained monster, so to speak, because it restrains itself. That's not reliable. It's also a funny thing to praise it for. It assumes the state wants to use its subjects in a way that is hostile and harmful to their interests. That is the starting assumption and whole reason for the checks: a power over people that is harmful and hostile to their interests. This is the reason for the restriction in the first place. One often hears the refrain, "people need protected from the government".


 Well, what kind of government is it then if people need protection from it? It's the exact same state from which one wants to be protected that is supposed to be protecting you. It assumes that the state has an interest in limiting itself. Everyone learns in civics class that the laws of the state attempt to deal with this problem through checks and balances. So, what is wrong with the idea of the state restricting itself? What is the core of the mistake?


It's a fact that the state restricts itself-- but to what exactly? Not the private interests of politicians, but the rule of law. But this is no restriction of the state interest. The rule of law is precisely how the state exercises its rule and pursues its interest. The ideal is always, "look at how great it is that the state is restricted. It can't do everything." Well, the paramount question here is this: What does it do? What does it restrict itself to doing? 


So, the point is relatively easy and most communists and socialists will agree: the state is all about enforcing private property. This has all kinds of harmful effects on people.


Isn't it strange? The first principle of the state should be its abstinence, it's supposed powerlessness to act, the fact that it restricts itself? Doesn't that seem kind of odd? That can't be exactly right. What does the state actually restrict itself to? What is the interest to which it restricts its rule? What kind of relations and interests does it codify and make universal -- equally applicable to all -- through its laws? The answer is: private property.


 The praise for a state that restricts itself abstracts from what that state really wants. Why does the state have a rule of law? Rulers aren't supposed to really be rulers, but servants to a higher rule: i.e. law. But there's nothing higher about it. It's just the codification of bourgeois property relations posited as standing above and beyond these relations as "THE human rights" par excellence. If you investigate what kind of relations this law enforces and imposes, that's not so pretty. A state that enforces the rule of law is a state that wants private property interests. That's what it's all about. It restricts itself because it wants to set the private interests free to produce capitalist wealth, from which the state's power is derived. Praise for the rule of law always abstracts from what it is that's regulated by law. The assumption is that Law is a realm that excludes brutality and violence, and that this is just something that only comes about if the law is ignored. But this is far from the truth. The law itself utilizes violence to ensure the maintenance of its reign.


Many Democrats and liberals might respond, "yeah, we agree that it's about private property! That's a good thing." Does this really deserve praise? Is private property really a good thing? That's the question. What's so great about private property? What is it all about? I can assume that I don't need to go into what's so nasty about private property. 


>So as long as I enjoy freedoms, you're saying it's irrational and pointless for me to use my mind to evaluate the potential for me to lose them through historical developments similar to ones that occur in the past?


You need to ask yourself: what are these freedoms and tights good for in this society. What does the freedom of assembly or the right to free speech actually accomplish? What happens when the state treats all arguments as mere opinions? 


Democratic states today train every citizen to think along the lines that you're outlining: be grateful for your permission, be ready to defend -- and even willing to sacrifice your life for -- the state that grants you this right against all enemies of freedom. It is this comparison itself that plays a fundamental role in legitimizing democratic-capitalist rule, and it even justifies going to war to bring democracy and human rights to places like the Middle East, China, Iran, North Korea, and so on. 


With the freedom granted, the right to think freely, the citizen is called upon to use this right to think nothing else than about how grateful he is that he is given permission by his own state. He is to think affirmatively about it because the state sent soldiers to die in war, and people sacrificed and fought for it. 


The last thing to say: I am also not arguing against "theory". That would be odd. I am arguing against particular theories and explanations about what democracy, rights, etc. are. 


>The relationship between husband and wife in Iran is authoritarian relationship -- not matter who the husband in question is or his personal beliefs -- because of society, not because the man is personally "bad".


Exactly. I am not making a moral condemnation when I discuss rights, democracy, etc. I'm not saying it ought to be this way or that, but am analyzing what it IS. My claim is not about whether democratic and authoritarian rulers are good or bad. I am not talking about whether a person who "endorses or denies rights" is good or bad. But rather, what are rights and what kind of society is presupposed where rights are the means by which states carry out their rule?


Here you noticed with this example that an authoritarian relationship of power -- domination -- is implied and contained in the right of the husband, in the very fact that he stands in a position to issue a permission/prohibition. But then, this is no reason to jump for joy if he gives permission instead of prohibition! The other option is always on the table. You must criticize this overarching power-- and that means attacking the democratic idealism about democracy, rights, etc. it means ruthlessly criticizing the good opinion people have of the fact that their chains aren't pulled so tight by pointing out that they are, in fact, still in chains!

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