According to Professor Daniel Robinson of Oxford University, there were more law books sold in Revolutionary America than in all of England combined at the time.
Statesmen in British Parliament of the era in fact commented on how well read, erudite and versed in law that the Americans tended to be. Young men like James Madison wrote and thought well beyond their age. John Adams, who along with Thomas Jefferson kept one of the largest libraries in all of the United States, scribbled notes in his dog-eared editions, conducting running arguments with his philosophical competition – often referred to as luddites and dunderheads – but nonetheless considered. To Adams, the only "axis of evil" was ignorance.
Cicero, Roman senator and favorite among the revolutionary American thinkers, spoke of two kinds of Roman law: jus gentium and jus civili, with the former being the "laws of nations applicable to all human beings" and the later the "civic law or the specific laws of localities". For example, while the a parking ticket regulation might differ in Rome and Athens (jus civili), both had laws against murder (jus gentium). Jus gentium was the precursor to the enlightenment notion of natural law and the natural rights of men – on which the Declaration of Independence and the Constitution were based.
The Founders believed in the rational human being, who in his or her rationality understood as part of their very being that certain things were right and wrong – that it was not good to steal and lie, to murder or mistreat, and that such an understanding was in fact a requirement for entry into the body of human civilization. Moreover, it is the rule of law, as understood going back to Roman law – not the "laws of persons" – that should be the ultimate purveyor of justice in the human world. It is these precepts: the rule of law, the natural rights of human beings, the understanding that rational beings have as a very part of their nature an intrinsic understanding or right and wrong, and moreover certain rights – to life, liberty, happiness and (to some thinkers) property – that these rights are considered inalieanable, part and parcel to our very nature and birthright as people.
We must, in light of our current situation, consider these ideas and precepts. What is the current situation? I will posit two macro events of major impact on the current development of nations and individuals: Globalization and the War on Terror. Both have seen extra-judicial strategies, formulated and carried out with certain exigencies in mind that are not necessarily in concert with the needs of common people and through which the rule of law can be usurped and replaced by something else. For lack of a better term, let's call it the rule of capital – because it is capital that takes precedence over people's natural rights and the concept of jus gentium within the new world order.
The Founders believed in the rational human being, who in his or her rationality understood as part of their very being that certain things were right and wrong – that it was not good to steal and lie, to murder or mistreat, and that such an understanding was in fact a requirement for entry into the body of human civilization.
We have today herds of lawyers and administrators – perhaps well intentioned but certainly well paid – populating large buildings in Washington DC, who seem to have lost sight of the ideals on which this country and in fact civilization itself was founded, and the rule of law.
They are busy formulating both trade laws and terror laws that allow for the carrot and stick of the rule of capital. The carrot is the promise of global prosperty, the stick is that the status quo order must be maintained in order for security to be upheld. The lietmotif
of this situation has its roots in human nature itself; one could say that what is really working is as old as the ages – fear and desire.
In terms of the War on Terror, the thinking becomes quite simple: there are those human beings who have transgressed humanity and taken on the mantel of the subhuman when they became terrorists, and therefore we must respond with a subhuman response in order to make battle with these "enemy combatants". Such is war. The War on Terror.
The argument goes that this war justifies a subhuman response; we must react to the demon by using their own tactics; like Kurtz in Heart of Darkness we must become the darkness in order to control it. People like Vice President Cheney will note that any skirting of the "rule of law" while executing the War on Terror was in fact necessary to save the lives of scores of innocents. Whether or not he is right we can never know. What we can know that his thinking runs counter to the thinking of the Founders. What the Wolf Blitzer on CNN cannot tell us the lessons of history can. Dick Cheney would have appeared as a dangerous mind to John Adams.
In terms of Globalization, there is the supposed requirement for a meta-legal framework of capital which, through a series of international organizations such as the World Trade Organization (WTO), set up a meta-national and extra-judicial framework that perverts the notion of jus gentium and jus civili. For the trade laws of nations as reflected in the WTO and its agents quite plainly favors the rule of capital over the rule of law and of the natural rights of persons. The result simply put is that a few hundred people have become enriched beyond conception while poverty in the United States is on the rise. According to the Washington Post, the world's richest 400 are now all billionaires.
One could argue that globalization has literally lifted millions out of poverty, particularly in Asia, and that this in itself proves my argument wrong. However, while free traders have long argued that human rights and freedoms would rise quite naturally from free trade and consumer freedoms, this has not proved to be the case. In fact, the faddish Chinese youth often seem quite happy with their ability to dye their hair blue and dance to rock music, regardless of the fact they can't vote. This reality is more a failure of moral leadership than of China's young people – we simply have come to value consumer freedom more than political freedom. If Chinese and Americans share common human values, they certainly aren't related to human rights: any shared values have more to do with having fun and not thinking too much – particularly about politics and how one's rights are either non-existent or being slowly eroded. As a case in point, "extra-judicial" mechanisms are quite commonplace in the Chinese legal system: in corruption cases, forced detentions are quite the norm. This is a dangerous situation: with the War on Terror, we seem to be taking China's lead rather than providing an example. Ultimately these kinds of compromises to the rule of law will unravel the prosperity is based at its core not on capital, but on human freedom, initiative and entrepenuership.
The argument goes that this war justifies a subhuman response; we must react to the demon by using their own tactics; like Kurtz in Heart of Darkness we must become the darkness in order to control it.
Those arguing for the rule of capital state that it is the free flow of trade and capital is the precursor to human rights: that free trade must precede a free humanity.
The fact is that the quite the opposite is true. Even China, which one could say is the emblem of authoritarian capitalism on the rise, survives only on the back of freedom – that is, the freedom of the West within which the prosperity rose that gives the Chinese the primary markets that they can in turn exploit.
According to the International Federation On Human Rights:
Today, the WTO interprets the principles of international law in a limited fashion, even selecting certain principles according to its own interests and agenda. Under a pretext of wanting to "depoliticize" trade, the WTO tries to distance itself from obligations stemming from the primacy of international human rights law over other international treaties. Moreover, the actual functioning of the WTO gives priority to the wealthiest countries in a disproportionate manner, preventing entire regions from reaping the benefits of international trade.
The prosperity of the few and the War on Terror that seems strangely to exist in its wake is driven by the rule of capital. Tactics and techniques unthinkable within the framework of constitutional law become acceptable within this world view. Within this framework, the forced arrest of persons, without due cause, and their subsequent detention for months or years without trial, and the ability of the government to basically torture these individuals without due process – all common practices after 9/11, and the norm of behavior in numerous detention facilities maintained by the CIA and the military, dotting Eastern Europe and other locations, with one very visible example kept within the confines of Guantamo Bay, Cuba. This same kind of logic allows for extra-judicial alternatives to be set up that allow corporations to usurp national laws (ie., labor, human rights and environmental laws) and in essence function outside of any notion of jus gentium of jus civili; again, the notion of jus gentium or "laws applicable to all nations" becomes skewed and corrupted to the exigencies of the powerful. And again, in China extra-legal actions and torture can be the norm for citizens. The question becomes, how quickly will we follow? Are we one nuclear suitcase bomb away from becoming like China?
Recently, the US Supreme Court and US Senators of both parties have seemed anxious to reel in the more egregious problems of the extra-legal War and Terror, and a compromise has been sought between hawks and doves on the issue. Still, the limitations to torture will apparently not be sufficiently controlled; political commentators have been quick to note that Senator John McCain, a strong supporter of the Geneva Convention rules for prisoners of war, has simply "caved" to the conservatives. As of this writing, Senator Arlen Spectre (much to his chagrin) is battling to have even habeus corpus included among the rights of enemy combatants. So we should ponder on what has already been done, and what may continue to be done in extra-judicial organizations that somehow "transcend" human decency out of the utilitarian needs of social order, whether that be in the name of security or in the name of global capitalism.
It is precisely these utilitarian needs, which reduce human beings to mere cogs in the machine of global capital and trade – and whose hub and ultimate template is quickly becoming the evolving super power nation-hive of China – it is this new world order that we need to examine at its roots and comprehend it for its values, so we understand what is being challenged and what is being lost. If we don't understand this fundamental battle of values we will certainly put at risk all of the civil liberties hard fought for from the Magna Carta moving forward, and in many cases argued for among philosophers since ancient Greece.
The enlightenment of the East is used to justify an anti-rationalism that fixates on swarm politics and sacrifices critical thinking at the alter of individual conformity – all for the sake or social order, security and the prosperity of the whole.
In a sense what is at stake is the fundamental definition of what human civilization is.
Such a definition is by no means uniform and well-established, and is in fact still a work in progress. In the United States, humanistic tendencies and protection of individual rights are well-engrained in constitutional laws, enshrined in the Bill of Rights. We might take some time to read those rights. What they were understood to mean at their writing and what they mean now is at times in conflict; for example, the right to bear arms was primarily the right to bear arms against a potentially tyrannical government – yes, that means any government including today's government – to ensure that it could be overthrown by force of arms if required. It was not, as some would have us believe, to protect hunters.
In the philosophies of the Asian East, notions of individual rights can seem to run counter to the humility required of Eastern thought, which sees the "individual" as illusory and as the precursor to self-centered, egotistical and ultimately self-destructive modes of behavior. In the East, and in many ways in the Islamic world, the Western notion of individualism simply leads to a decadent and ultimately corrupt focus on individual pleasure under the guise of "happiness."
The term "happiness" as the Founders understood it, however, is not the interpretation you might find prevalent in a commercials for Gap Jeans or a McDonald's Happy Meal. Happiness, at its essence, can never be guaranteed – it is rather an ideal of what Professor Robinson at Oxford calls the flourishing life – the life well-lived according to the potentiality of that human being. And that potentiality might vary. But the idea was that happiness is the striving for individual perfection – emotional, spiritual, intellectual and material. It is here that the Enlightenment of East and West meet, for the pursuit of perfection or enlightenment is the goal of both.
What has happened is that a few very intelligent people (mostly advertisers, political consultants and assorted zealots) have, over a period of decades, figured out how to co-opt the ideals and enlightened thinking of both East and West and turn them into fertile ground for manipulative mischief that trumps the spiritual, emotional, intellectual and even material well being of the whole. While the enlightenment of the West becomes a pretext to justify a nihilism and hedonism used to promote a shallow, cynical, politically apathetic but shopping friendly populace (we can look back to the Marquis de Sade and advertising for the roots of this trend), the enlightenment of the East is used to justify an anti-rationalism that fixates on swarm politics and sacrifices critical thinking at the alter of individual conformity – all for the sake or social order, security and the prosperity of the whole (we can look back to Mao Zedong and advertising for the roots of this trend). Both bastardizations of the enlightenment agenda can be found in the rhetoric of globalization and the realities of a rule of capital that is fundamentally fascistic in its outlook. It is the rhetoric and rationale of advertising, pollsters and focus groups, of cynical linquistic manipulators for both the nihilistic hip and sound bite fundamentalists, of fear and desire quite effectively massaged in the mindless march toward material progress which in its wake leaves incredible waste and destruction to the planet and many of its inhabitants not only unfulfilled but in a blanket state of perpetual – and perpetuated – misery. And all of this to make a few hundred billionaires. And we're all trying to buy that same lotto ticket which will never exist, when the real key to prosperity lies in vibrant local economies and entrepeneurship, not the global hegenomy of the Fortune 100. This anti-enlightenment agenda is actually quite simple: keep people stupid so you can control them.
Poverty is, in fact, quite a relative thing: the lonely single person living in a "MacMansion" in Fairfax, Virginia is as impoverished as the 10 illegal immigrants living in a small apartment in East Los Angeles.
It is the new world order based on the anti-enlightment agenda and the rule of capital, the key word is of course capital and by inference the "market" (the "market" seeming to somehow exist as a thing unto itself outside of human activity). People have become slaves to both capital and the market, when in fact the opposite should be the case. Truth be told, markets and capital are a natural outflow of human inventiveness and freedom – which is the true source of prosperity – sustainable over the long term by an educated and aware populace. But not so say globalization apologists, who explain that in this new order global capital and the market is a thing unto itself – a thing that has ultimate power, freedom, intelligence and must therefore trump the rights of mankind. It is the importance of this capital, and its movement, growth, and preservation, that takes precedence over other legal, moral, ethical, spiritual and even natural laws. In essense, we have created our new God, and He exercises his Will through the whims of the Market and of the movement of Global Trade and Currencies.
Can we stop this? Do we want to? Many of us, whether because we wear the uniform of the military or of the Fortune 500, may not want to. Moreover, the intelligence of the powers that run the system cannot be underestimated. The ecology of its mindset may so quickly co-opt idealism and altruism into a greedy free for all of consumer proliferation that it will leave our mind's spinning. So Bill Gates and Charles Branson beware. And a message to Bono and Madonna: an end to world poverty may not mean your CDs and music should eventually be sold to hungry Africans. A world of consumers based on the American model may in fact destroy the world through environmental meltdown. So global prosperity may in fact require we move away from the consumer model and its values. This means global prosperity will require a massive rethinking about what both "poverty" and "prosperity" are. Poverty is, in fact, quite a relative thing: the lonely single person living in a "MacMansion" in Fairfax, Virginia is as impoverished as the 10 illegal immigrants living in a small apartment in East Los Angeles. And the two types of poverty are intrinsically connected. A prosperous life may in fact may just be a happy one that provides for basic needs, but in tandem has an unlimited potential of mind, education, expressiveness and inventiveness.
Well you ask, what then is the answer to the issues of poverty, globalization and environmental collapse that confront us? The purveyors of global capital, well heeled and able to procure endless numbers of lawyers, gun for hire intellectuals, utilitarian economists and reductionist, myopic yes-men, must be fought with a simple and straightforward retaliation of common sense and reason. It is only reason, so well loved by the Founders and the enlightenment agenda, that can crumble the system and expose in utter humiliation the bankruptcy of globalization's most pervasive ills. For it is reason – and a reaction to the assault on reason to take a phrase form Al Gore's upcoming book – that must prevail in order for the current system to adjust to the needs of the many and defeat the mad dash to cash out and provide the "golden parachutes" for the few.
It is reason, and an understanding that the global capitalist mindset being proposed as its alternative is intrinsically and fundamentally pathological and insane and will lead to eventual destruction of the planet and its inhabitants – it is this reason that will prevail or be lost and be our downfall.
Morris Berman, in his seminal work The Twilight of American Culture notes that it is the defeat of the rational mind that ultimately leads to the downfall of civilizations.
Morris Berman, in his seminal work The Twilight of American Culture
notes that it is the defeat of the rational mind that ultimately leads to the downfall of civilizations. So it was with Rome; so it is becoming with the United States. The ills of globalization, understood intuitively by many people, are often reacted to emotionally and without a critical framework or common cause leading to a unified front and alternative. This situation leads, eventually, to collapse and decay as the controlling elite lose their ability to both manipulate and sustain the dumbed-down, bread and circus masses with ever more largess. The piggy bank runs out as the underpinning rationality that must support any long term prosperity gives way to the entropy of stupidity and fundamentalism, usually manifesting itself in some sort of inflationary bubble.
The elite, fearing an empowered mass of people, create the seeds of their own destruction by undermining the rational, disciplined, educated and humanistic underpinnings that gave rise to the prosperity they currently enjoy. Seeking to control the goose that laid the golden egg, they destroy it. If we owe our current prosperity to the wisdom of men alive over 200 years ago, we will owe economic collapse to the current crop of myopic lawyers and accountants that seem to run the show.
So progressives must come to love reason. They must unite not under the guise of knee-jerk, emotional tit-for-tat politics, but go back to the fundamental notions that allowed this country to prosper and become great: rationality, moral freedom, humanistic tolerance, and an understanding of the need to balance the spiritual, the emotional and the physical with common sense laws that protect and promote the general welfare and not the needs of special interests.
It is still quite possible, should the will of the people be prodded enough, to change the current situation quite drastically so that a common sense, sustainable alternative to the globalization template is debated and implemented. In 1776, about 56 men got together and figured out how to start a country whose rational and humanistic basis allowed for many people to prosper on many levels – to realize their own brand of happiness until it got co-opted by the requirements of the American Empire and Pax Americana. We need to return to those times, to form our own version of a global Constitutional Convention (meaning the one that occurred from 1774 to 1789 in order to formulate the United States Constitution), controlled not by the myopic yes-men of capitalism, but by balanced, rational human beings (at least half of which should be women and the majority of which should be of color) who have as their intention the formulation of a global system that will not destroy the whole as it continues to enrich the few. The Clinton Global Initiative, just concluding its 2nd annual meeting in New York City, could either ultimately be or provide the template for such a convention. We may even want to vote Bill Clinton as the "international explainer" as he seems to be the only popular figure who has a grasp on the totality of global problems and one of the few minds capable of articulating a way out. On the other hand, we need to be wary that Clinton is not co-opted by the corporate elites described in this essay. We have to remember that lot of nasty things happened under Clinton's presidential watch, even while he made us feel like progress was at hand.
But the way out will not be through a single person: it can only be through collective action, and fortunately Clinton himself sees himself as a facilitator of ideas, not a molder or controller of them. Let's hope that we can work with Clinton and others who rise around him to put forth an alternative to the rule of capital. This is what we need. This is what we must start in motion. And there is still time.