The very question, and its difficulty, reveals what we'd rather not admit. The question is whether there can be legitimate international norms. The difficulty of the question derives from the prefix "inter-," for we already know there are many legitimate national nomrs, i.e., laws. The question of the validity of laws is of course all the more treacherous, and will have to be confronted for both national and international nomrs. By "valid," as distinct from "legitimate," I means omething like "morally right" as distinct from simply "politically enforceable." Perhaps the very basis of validity is invalid--and then the question arises, does taht leave us only with legitimacy based on power, not truth? Might power be truth, or truth be power? The latter may be a hope for us: the hegemony of truth in the form of freely and widely shared beliefs. But might this dream of Reason not be more yrannical than the rule of force, which at least has the virtue of intellectual honesty? Now I have gone from questioning the possibility of international norms to doubting h e preferability o even national norms.
Generally, perhaps even absolutely, the choice posed as an either/or is a false dichotomy, and the answer is the dialectical synthesis: both. Let us then, for the moment, presuppose as much. First I shall re-pose the question, the more fundamental question: Are there conditions of rule over people that make that rule just, or at least preferable to other instances of rule operating under different conditions?
One standard by which to evaluate answers to this question suggested by my past questionings is freedom: the measure of a rule's affirmability is the degree to which citizens have power to create and fulfill possibilities in their lives. One might suppose the more power citizens have, the less power the state has, and so the standards i am setting forth affirms a rule to the extent it does not rule. But such a conclusion is not necessarily warranted, a point to which I will return.
Another possible standard (or perhaps another way of expressing the same standard?) is affirmation: the degree to which citizens affirm their relationship to the state. (Am I talking about their relationship to the state in the present configuration of that state or the state as an ideal behind and underlying itse present configuration?)
Again, might the answer be a synthesis of these alternatives? One might propose a correlation between the two: the more freedom citizens have, the more they affirm their relationship to the state. But aren't there repressive states with great affirmation by their citizens, e.g. Singapore? This question is difficult to answer because of the difficulty of measuring freedom or affirmation. In Singapore, for example, there is relatively little freedom to question the correctness of government policy, but perhaps this freedom is not a condition of affirmation for most Singaporeans. But the absence of this freedom makes any appearance of affirmation suspect, so the example is a bad test case, proving too much. A better example would be... better addressed later.
Distinctions must be made: by freedom I do not necessarily mean what is commonly understood as freedom in the U.S. and by affirmation I do not necessarily mean what is commonly considered patriotism. Perhaps a better word choice for the former to distinguish my meaning from the connotations of "freedom," and to parallel my use of the term "affirmation" instead of "patriotism," is creativity: the power of positing new possibilities and, to some albeit imperfect extent, actualizing such possibilities in the world. By affirmation I mean a relationship of positive evaluation, a saying "Yes, this is good and right," or at least beautiful -- in a word, love.
These standards appear to be in tension: creativity by its nature alters the reality (unless reality includes all possibilities, perhaps as features of tis essence) that affirmation affirms. But one can also say that creativity creates that which affirmation affirms, and that creativity can only create on a bsis of afffirmation -- for you cannot chanage somethigne except superficialy unless you truly, deeply apprehend and respect it at its core. So creativity and affirmation are indeed in tension -- and they are locked in a synthesis of tension; they are not mutually exclusive but mutually dependent.
Aggh, I've paved a path of increasing abstraction from the concrete questions with which I started, like a road that leads to a bridge to nowhere -- just ends at its apex, teetering over an abyss of meaninglessness. And that is the path of the law.
Law in its origin is the most visceral, all too real force of physical power -- a fist, a club, a whip a gang, an army. With words this power is reinforced and stories create legitimacy; words abstract from the imposition of brute power to the proposition of norms. The vengeance against taking a woman becomes the prohibition of adultery, which retrospectively prerequires the assertion of property (marriage). A retrospective, compensatory, penal act is translated into a prospective, preemptive, deterrent declaration. The case-specific is reformulated as a universal. "I want this woman back" becomes "Any man who takes the wife of another man shall be killed."
The path of the law did not tarry at this way-station of abstraction, but proceeded over even less certain ground -- from the smooth plane of absolutism grounded on the solid firmament of arbitrary power -- physical power -- to the precipitous arcing of moral value, the proposition of norms that upholds the bridge to nowhere. Norms purport to replace the original ground of law -- "because I said so and I have the power to physically compel obedience so you'd best just do it yourself" -- with a supposed higher ground "because it is right."
There is nothing new, at least since Nietzsche if not long before, in doubting the common understanding that there is a universal/objective right, good, value, norm. Of course, Nietzsche's inquiry was deeper than that, his question no the validity of values but of value -- What is the value of values? His concern was no particular value or system of values, but the clash of values and valuelessness, the worth of values at all. And his answer was no simple yes or no, but a necessity becoming dangerously scare -- and, hopefully, less necessary.
So with law. We know law is law because we have said so, not because it must be so. Just as values are born invalidly, so laws are bastards, the consummation of force and chance, hastily concealed through the matrimonial ceremony of legitimacy sanctioned by norms.
So far we have only established international norms in tow ways: physical force and economic inducement. (The same may be true of national norms, but here a greater case may be made for cultural values, though this may turn on the above.) In the first category falls the UN Declaration of Human Rights, which represents the assertion of normative power by the victors of the World Wars over the rest of the world (the American abstention from agreement only confirms its status as the sovereign who imposes these norms while itself enjoying a state of exception from them.) in the latter category falls the widespread respect for property rights across borders, facilitating trade and economic development. This form is no more benign, as it also relies originally in acts of conquest, taking possession, and asserting normative rights.
What third way do I envision? A purer form of the third way already proposed, and supposed to be in existence in many constitutional democracies. To a great extent these putative examples of freedom are so many layers of justificatory bullshit over a base of might makes right and history told by the victors. But just as science begins with the illusion of truth and becomes the truth of illusion, so perhaps does law begin with assertion of right and becomes the right of assertion. What do I mean? Science and religion were once indistinguishable -- the positing of a causal connection between merely adjacent events. Science distinguished itself from religion through its buit-in evolutionary mechanisms. Science never rest at truth, whereas religion clings to it like a capital criminal to life. Science's falsifiability principle attest to its own illusoriness and in its acknowledgement and affirmation of illusion it draws nearer and nearer -- though asymptopically - toward truth. Religion on the other hand, at least in its dogmatic forms, remains trapped in the illusion of truth. (Philosophy is the consummate synthesis of the two,a nd all three are but forms of art.)
Law at its most dictatorial is analgous to religion, and at its most democratic is like science. What we seek is their consummation, the philosophy of law -- and evantually that too will pass onto pure art, i.e. love -- not for wisdom but for living.
Science = creativity = democracy? Religion = affirmation = autocracy? Philosophy = ___ = ___? Art = ___ = ___?
Ok, what am I writing? Why? (How?!)
I am seeking -- seeking by writing.
No one could interpret this book as a guide
but it may be a book to live by
Precisely because you cannot follow it algorithmically
Its application is an invention, a performing.
Philosophy is the leaping from rock to rock in the river of becoming. Splashing in the water on occasion and sometimes plunging right in, but never tarrying on the firm ground of righteousness. Philosophy consists in critical-creative insights, bolts of intuition. It usurps the form of religion, intuition, and mixes it with the content of science, which is nothing. It usurps the major premise of science -- falsifiability -- and the minor hymn of religion: inspiration. It experiments with the indifferent, democratic abandon of knowledge, and yet with the discerning, despotic solemnity of faith.
I want to ask this question about international normative laws, but I can't even establish the basis of any law or norm.
