Topic: 17. LAW, TECHNICS AND FORCE THEORY

To have a productive collaboration, men need between them an agreement.  Within this agreement the men are equal:  if they are equal in all ways they remain equal within the agreement; if they come into the agreement unequal, they are made equals in the terms of the agreement.  Equal means that parties to an agreement take from the agreement only what has been agreed upon.   If it is agreed upon that one party will receive X as his share, that is what will be his share, not more or less.  If X is to be one party's role in the collaboration, that will be his role, nothing else.  Each person is equal in that he cannot unilaterally change his position within the agreement.  It is with regard to the fact that no person has the power over another, that he (the first party) can change the agreement, that he is equal to the second party.  No party has this authority within the agreement.  That is not to say that one person cannot take away from the agreement more than another.  It is absolutely true that one person may in fact get more out of the agreement than another.  The issue of equality arises not in the point of equality of profit, or equality of contribution (one person may work harder than the other) but equality of standing in relation to the agreement.  The legal term "standing" is central here.  One has a certain standing in relation to an agreement, but it is essentially the same standing as any other person--it is the standing that the agreement stipulates.   In an important way equality means here "not arbitrary.  Where true or general inequality appears, one person or the other can exercise arbitrary power.  That person can unilaterally, through his own volition, to do this or that thing despite the will of anyone else.  In real life, obviously, some persons can act arbitrarily; and the higher the authority or the greater the status within the hierarchical system that a person has, the greater his ability to act unilaterally and despite the wills, combined or separate, of other people.  This has been said before, and is true.  The agreement stipulates that no person will act arbitarily within the agreement.  To the extent that persons are deprived--equally--of arbitrary power or ability within the agreement, they are equal or legal persons within that same agreement.  If they cease to be equals within the agreement, in any way, the agreement simply ceases to exist.  This meaning of the word equality--that the single person in relation to other persons cannot act arbitarily--is valid only in the context of agreements.  Conversely, equality has no "legitimate" meaning outside agreements.   If we ask, is the definition of equality by democratic theory valid?, we must ask if democracy is an agreement. 

I will mention the handshake:  the handshake finalizes the agreement as each touches the hand of the other, and ascertains in doing so that the other does not conceal within his hand a weapon.  The handshake is symbol of--no force here.

It is precisely equals-in-force who would, where each asserts his point of view within the close confines of a collaborative arrangement, destroy the arrangement and perhaps one another.  Were the men unequals-in-force there would be no such destruction.  In fact, the collaboration could continue.  The man with the superior force would simply en-force his own point of view.  All disputes would be resolved in favor of him.  Under conditions of hunting and gathering, where there is perpetual hunger and need, and the margin of survival of the people is very slim, such expeditious settlement of disputes is the norm.  It is precisely the issue of how to settle disputes between equals-in-force that belabors the whole cooperative process of large scale societies.  Communist theory is based on the assumption that collaboration is superior to competition--that goes without saying.  But the strategy of heavy-handed dictatorship is superior to equalitarian societies in the issue of dispute settlement.  In fact, equals in property and "rights" are more likely to be disputatious, I aver, that societies with unequal wealth and rights.  By this line of reasoning dictatorships are more efficient economic systems.  The point of statecraft has been, we may suggest, to bring equals together while negating the sinister fact that it is precisely equals who, through equal force that they possess, can readily destroy one another.
(RADICAL POINT OF VIEW CHANGE ALERT sad)

I said last forum that equals, qua equals, cannot live together because they cannot expeditiously settle disputes.  That stands as true in relation to what will be said later.  For now, by way of brief explanation, it can be observed that when equals fight they may destroy each other; neither has the upper hand, and they struggle until exhausted.   For that reason--that they know how serious a struggle will be--they decide to be equals not in any direct, unqualified way but equals before the law.    The men are equal, perhaps, but they do not on the other hand possess any force that would resolve disputes.  This force has been transferred, by their consent, out of their hands into the hands of a "third party," essentially a government.   We may jump ahead of ourselves a bit and say that society may consist precisely of just that--legal persons.  Legal persons are equal--but equal before the law.  Speaking of democracy, then, there is no consideration of unqualified equality; force still existss to coerce human behavior, but it is the impersonal force of law we are speaking of.  The common expression for democracy is "a society of laws."  Democratic theory does then offer a reasonable solution to human coexistence, but only by "objectifying" human beings, making them in other words in effect into objects.  Democracy achieves its goal of equality by creating artificial persons.  There is more to depersonalization under democracy than simply equality, however, in a court of law.  We are searching here for the eternal question--one asked by Friedrich Engels, L. Feuerbach, Max Stirner among others--of the "real man."  Democracy does constitute a real social order, but one whose citizens are unreal people.  A legal person is not real (he does not, as I say, have personal foce); as such he is by all measures the most complacent, amenable and compliant creature--as only an abstract entity can be.  Unfortunately, many Americans fit this image of the "perfect citizen."

In the American South some human beings, as slaves, were treated as objects. They were treated as tool-objects.  The upper class for their part were "legal objects."  In any case, both classes of society had been transformed from persons to abstractions by the experience of living in a slave society.   Their equality with the white class was achieved simply by making everyone, black and white alike, "legal persons."  Earlier, whites imposed this abstract order of equality upon themselves.  Then they extended the legal definition to Negroes.  This was a theoretical advance and one very easy to make:  there needed to be a simple proclamation from the main authority, the victorious Northern government. 

Law and technics are talked about in social philosophy and historical writing mostly separately, as different kinds of human activity.   What law and technics have in common will be the topic here, and how, finally, the two ideas resolve themselves into the single idea of force.  History is a clutter.  As we examine the role of technics and law in history it appears that humanity is a single thread of activity whose elements interwine in an inpenetrable conflux.  History writers are no help.   History writing attempts to reduce events, as Christian wisemen do, into a battle between good and evil; as good rises, evil sinks and vice versa.  What we search for presently, on the other hand, is some tangible idea or trend that we can take hold of.  Ironically, what is described as evil appears in history as more definite and substantial than what is so-called good.  Hegel said that evil, or what people call evil, is the moving force of history.  That appears to be true.  We may suggest, too, that what is called evil is what is important in history; while what is good is unsubstantial and ephemeral.  Our effort here will be, finally, to expunge the entire question of good versus evil from our problem.  The choice of labels--fascism, communism, democracy etc.--to describe tendencies in our philosophy must remain tentative.

Law is said to pertain to the mutual relation of one human being to another. Law is simply the force of words.   In these terms law is a special instance of a concept of force that began with technics but is extended, finally, to human beings in their mutual relations. Technics is said to pertain to the unilateral relationship the human being has, as an individual or group, to the world of things.  Both statements are correct.   Here we will talk about law and technics together, inasmuch as, as derived from and dependent upon human abstract thought, they summarize, together, much if not most human behavior.  Law and technics are both mental objectifications of behavior.  I talked in my first forum about the general process of objectification, in other words, externalization.  In these terms law would be a "symbolic" rather than a personal relation between two or more humans. Law and technics both are relations, in Hegel's terminology, that are mediating and mediated.  In sum:  the same capacity allowing human beings to understand an object as a tool allows humans to understand, as well, the word as a human relationship.

Technics preceeds language by two or more million years.  Human beings had tools long before they could speak, and also, obviously, before they had law.  But the same capacity that allowed humans to see as tools objects outside themselves, that were not extensions of their bodys, allowed them finally, as the brain evolved to three times its previous size, to use words and to share concepts among themselves.    I want to emphasize here that words allow human beings to make promises; and the promise of one man will influence (force?) the behavior of another man.  Thus it may be said without hesitation that the first words spoken were probably in the form of a promise of some sort.  It is precisely through such promises that human behavior is coordinated and formed, vaguely or rigorously, into group action.  Words in this sense are power.  But the power of words was anticipated, or so I'm saying here, by tool use.  The basic issue is very simple.  Tools were and still are an extension of human force to coerce the behavior of objects; to intercede, in other words, in nature.  Tools are media, in a sense; but words too are media, only with the provision that words affect (or force) human behavior.  In this connection we may identify three periods:

     1. Foraging.  The period in which human beings use, for their individual purposes, objects as tools to affect other objects.  This period corresponds with what we call the Eolithic period, or earliest period of tool-using in the context of an essential foraging or gleaning economy, similar to the Tasaday of the Phillippines.

     2. Hunting and gathering.  This is the period in which human beings use words, which began as symbols for objects, to coordinate objective activites, as in hunting.  Planning, giving directions, arranging meetings in future time and so forth are all part of the hunting and gathering way of life. Such a way of life, as for example among the Bushmen of the Kalahari, is structured to a point impossible without words and language.

     3. Combat and subjugation.  This is the period of the separation of human beings into two classes:  freeman and slave.  The relationship between master and slave is essentially technological.  That is, only with weapons can one man subdue another; also there is a strategy to subjugation that can only be described as "objective," as one would plan any economic enterprise.  The slave is held in check by the same essential strategy whereby a farmer or herder restrains his animals (the comparison is an altogether fair one).  Language in this vertical (from higher to lower) relation does not function, particularly, without force of arms in the background.  Language functions to direct activities, not to plan them.


     4. Obsolescence of slaves and slavery through machinery.  In the new technological age, every man, essentially, becomes a free man.Every human being in relation to the machine is a free man, and in this sense an equal, in relation to every other man.  When the slave is free of the master, we may say, also, the master is free of the slave.    Every man is "equally free" in relation to every other man.  The principal mode of force between man and man--and there will be force--is in words.

     5. The rise of democracy:  the period of "the universal word."  What it meant to rise out of slavery meant, first and foremost, to share in the universality of language.  That is, under slavery words were used, in effect, as laws--two sided words, or agreement-words--only in the free class of humans.  This has already been said.  With the elimination of slavery, then, thanks to advanced techics, all men had at least the theoretical right to use words in a two-sided, bilateral or mutual way; in effect, use words as agreements.  There was an equality, then, essentially in access to language.  This access was and is tantamount to equality under law:  to use words in power relations, to affect human behavior through words, and so forth.

     6. The fascist reconstruction:  here words are used unequally.   More to come...

In earlier forums, and on Philtalk.de. (now verbannt and verschoben by Philtalk but cached by google) I laid down a general theory regarding the relationship of human beings and the tools which mediate his relation with nature.  All that material was reduced to the simplest possible terms.  In technics the person does not lay hands on objects, directly, but inserts in the relationship with objects the mediating agency of another object, or tool.  With law it is much the same.  This was the basic position of the Philtalk papers.  At present we are attempting to pass from technics, on the one hand, to a corresponding theory of language.  That theory says, as stated above, that words are used as instruments of force in the same way, essentially, that tools are used to coerce "nature."  Law is words understood as force.

What happens in law is that between two humans there intrudes itself some law or rule or custom that is more than a personal inclination; the law is the symbolized institution of a whole group.   This should be entirely clear.  Technics is not physical strength in dealing with objects, so much as technics mediates in the relation between the physical person on the other hand and his objects on the other.  Law deals with persons; technics with things.   Again in simple terms, law deals with the mutual relations human beings; and technics deals with the properly speaking unilateral relations between a human being, as individual or group, and the world of objects around him.  To speak of human social relations, on the one hand, and practical or technical relations on the other pretty much exhausts, obviously, most of what concerns human beings.   The person has on the one hand relations with other humans, and these relations may be reduced to, and derived from, the abstractions of laws.  The person has on the other hand relations with objects, such as exist all around him and mean various things for his life; these relations are unilateral, or one-sided.  The person acts uponthese objects in a technical, one-directional way; the objects themselves, while they may in turn affect the person, do not precisely act upon the person with purpose, intention or strategy.  Technics is a one-sided relationship.

Last edited by richard_swartzbaugh (2009-06-02 14:53:51)

Re: 17. LAW, TECHNICS AND FORCE THEORY

HUMAN BEINGS AS LEGAL-FACTS AND ARTI-FACTS
That human beings, as they are defined in large societies, are "facts" goes without saying.  Our existence in relation to other humans is itself a "factual"--or objective--relationship.  By fact is meant a state of being that is observable by two persons.  If for instance I am aware of my state of mind or feeling, that is a subjective awareness; my state of being is directly accessible only to me, not to another person (although I can describe this personal state to another person).  These observations--that subject and object are two sides of being--is common to philosophy world-wide.  But there is more.  We still can distinguish orders of fact, the most important of which are, as I say, arti-fact and legal-fact.

An artifi-fact, as I define the word, is acted upon but has no inherent purpose of its own.  Thus in these terms the slave, as I define this person, is a tool among others, an arti-fact, meaning that he is there in his place, and performing his function, as any other tool that a tool possessor may possess.  It remains only to distinguish the slave from other kinds of tools in their degree of usefulness.  A shovel is a useful tool; but a slave weilding a shovel may be even more useful.  All this is obvious.  Whatever the slave is "to himself," subjectively, he is precisely this--a tool--in the eyes of "society," with its laws and whatever further infrastructure exists simply to enforce these laws.  The slave properly speaking is "oppressed."  The relationship of a slave to his master is one-sided, all volition being imparted from the side of the master.   Artif-fact means that the person is veritably, and under law, created by a power outside himself, over which he has no control, to do the function that he does.

A master in a society that defines the master-slave relationship as a legal relationship is a different sort of "person."  He is a "legal person" or, as I said above, a "legal-fact."  Both master and slave are defined by society with "social definitions." The only definitions master and slave have are social definitions; to society, the only existence these men have is through the social definition.   The master is defined socially as a legal-fact.   The master creates himself, but then he must also "register" himself as master and be "authorized" by the central authority, without which he cannot hope to enforce his wishes in relation to a slave. In order to secure his relation to his slave he must turn to a "higher" authority, the state; and through the state he enters into a relationship with other likewise constituted "persons."  These people with whom he is related are "equals under law."  They may distinguish themselves in some way or other, in their possessions or some other way, but they have equal access to the law; and the law is obligated to uphold their claims, when these arise, "fairly."  Fair means that they are precisely that--treated as equals.  There is a great deal of discussion still needed to define a "legal person" (legal fact).

An arti-fact is a thing of human making. A stone fashioned by human hands into a spearpoint or axhead is an arti-fact.   A legal-fact, on the other hand, is not of human making--or so society says.    Actually we do know that a legal-fact is a thing of human making; but as the cornerstone of society, the legal-fact should not be considered an artifact among others. This last point requires explanation.  A stone lying on the ground, scattered there with other stones through no human agency, is not an arti-fact.  Anthropologists call this stone a "nature fact."  Of the three things talked about here--the stone lying randomly here or there, the stone shaped into a tool, and a law or rule governing human behavior--the second two of these are arti-facts, made by human agency.  The legal-fact, on the other hand, is held by human beings to be of some "eternal order of things," like the cosmos.  It is most important that the legal-fact not be regarded as produced by humans, insofar as the legal-fact is a "fair" principle.  The title of legal-fact bestowed on a human being, much like the title "king" bestowed on a great leader, is above all human machinations and politics. There was at one time or other a "divine order (or right) of kings."   This is what is stated.  Otherwise, the law--a network of legal-facts--would not be "fair."  The fairness or impartiality of the law is the overwhelmingly most important thing about the law that commands its respect.  In fact, although human laws to finally eminate from human beings themselves, and can be changed by humans, there is a "majesty of the law" that is supposed to transcend politics of the present.  Finally we may draw a conclusion.  That is, the slave derives his status and role from the imposition of force by other men, who are called masters.  The master himself, on the other hand, derives his status from a law that is not of other men. His status comes from a source that in some ages is called divine, in other more secular times from some "categorical imperative" or other philosophical obfuscation. In order to appear "fair," then, such laws and all the legal-facts the laws include, must be "just there," along with nature as a whole.  Some philosophers indeed attribute legal-facts to pure nature or "natural law."  This was the position of the Natural Law philosophers, of which Rousseau, Locke and Hobbes were examples.  Their point of view ushered in the modern era of democracy; yet, whether philosophers called laws "just there" with other things of nature, or called laws of divine origin or inspiration, the social order of equals does not permit doubt:  what is legal is not human.

The issue of property rights and slavery....

Last edited by richard_swartzbaugh (2009-05-05 17:05:07)

Re: 17. LAW, TECHNICS AND FORCE THEORY

GENERAL
I said earlier that men who are equals cannot effectively live together because the fact of force is not inherent in their relationship; and this element--force--is essential to settle disputes. There are a number of ways to express this simple idea.  History, I suggest, is the story of the attempt by humans to settle disagreements without compromising the (likewise necessary to human life) idea of equality.  It should be understood that force and equality are incompatible ideas.  Logically and in practice, where there is equality there is no force--or what is the same, the force exerted by one man cancels out the (equal) force of another man.  There has to be, in the settlement of disputes, a prevailing force; yet that force cannot be possessed by one partner in an agreement, otherwise the men would not be equals (and would be disinclined to enter into any agreement at all.)  Thus the whole premise of democracy--equality and brotherhood (trust)--is self-contradictory.  We are allowing the fact that human history is full of ideas that exist together but are mutually contradictory.  From a Hegelian standpoint we do not reject history simply because it contains contradictories (Widerspruche)  We are left with a long discussion before us of the (Hegelian) notion of contradiction as it pertains to human history.  I said that where equality exists, there can be no trust; trust, based on superior force, negates equality as a forceless relationship.  This contradiction on the other hand does not exclude human relationships altogether--relations that are truly human, or through agreements--but spins these relationships into new relaltionships which, for their part, are attempts to resolve contradictions in the old ones.  Thus the fact that humans enter an agreement on the basis of mutual equality, an agreement that is not binding or enforcable solely through some provision of the agreement itself, does not mean that the agreement is worthless.   What is meant is that some provision to enforce the agreement must be found outside the agreement. 

The force that enforces the terms of the agreement constitutes one more virtual inequality in human relations in general.  Thus we see the paradox that equality does engender inequality.  It is precisely the equality in human relations wherein a specifically human kind of inequality occurs, as a compensation for the self-contradiction inherent in the idea of an agreement between equals.  All these considerations follow logically from our established premise.  Abstractions do commonly contain some self-contradiction.   Equality is a pure or logical idea that is imposed upon a relationship, but does not belong to this relationship "by nature."  In other words, human beings are inherently unequal.  It is still possible to call human beings equal; but if they are called equal they also cannot participate--without contradicting their inherent inequality--in real relations, which are always disrupted by disagreements as would occur between unequals.  These disagreements in real situations must be settled.  So long as the situation the men are in is a real situation, as I describe it, then these same men, or men before them, have no choice but to posit a way to resolve disputes among equals.  This way of settling disputes is itself an abstraction.  There arises not just force, such as would inhere in the (unequal) personalities of two men, but an abstract force.  The "dialectical movement" of an abstraction is brought about by the inadequacy of any abstraction to control a real situation.  This point should by now be clear. We may consider some specific examples.  The history of humanity is replete with such examples.  I can think of no example more to the point than marriage, which is--has become, whatever it has been in the past--a contract of inequality.  The separate roles of man and wife are recognized, not in any document outlining these roles, but in the way disagreements are settled in cases of conflict.  The law of marriage is contained in legal proceedings; here it is that marriage is defined.

At this point we should more fully understand what an agreement is.  I said earlier that an agreement is possible only through language, which alludes to future and past events.  An agreement is essentially two promises set forth by at least two men.  Language is an essential part of this problem.  I said also that an agreement is always basically an agreement of human beings (those beings capable of understanding agreements) who are, together and mutually, on a basis of equality.  Thus the very word agreement presupposes equality.  These agreements, and the corresponding ideas of equality, appeared long before democratic theory in the Age of Enlightenment or before.  I said before, but must emphasize:  an agreement is as such essentially a relationship of equals.  Without agreements, which were a very early form of human relationship, and came about, probably, at the beginning of human time, there would be no equality.  Without equality, conversely, there would be no agreements.  The precise point of an agreement is in the first place to suspend the possibility of force within the relationship, force being an "unequal" element.  An agreement of course could involve humans with unequal traits and capacities; but the agreement itself, as a two-sided relationship, is between persons who in the framework of that agreement are equal.  Otherwise, the agreement would not exist.  If I say "I agree" to this or that, that means that I enter the agreement "freely."  Of course at this point the entire idea of freedom appears--and I could capitalize the word as Freedom.  Freedom ultimately means "free"--to voluntarily, with no compulsion, enter the agreement.  We could give examples, some of which appear problematic.  If I "agree" to pay a gambling debt to a mobster, that is not precisely an agreement in the formal sense I mean the word here; the agreement was not an agreement, because it was not voluntary--recognizing the free will of the gambler.  The idea of a "forced" agreement is a contradiction in terms.  Rather, any true agreement will be made with each person freely promising something (or other) to the person promised.

Re: 17. LAW, TECHNICS AND FORCE THEORY

AGREEMENTS OF INCLUSION AND AGREEMENTS OF EXCLUSION
An agreement, as we just said, is a specifically human relationship requiring language, a conception of a future state of affairs, and so forth.  An agreement is possible among humans, so long as they are human, at the very earliest stage of human culture.  Thus, two men at the stage of Eolithic or early paleolithic culture, may enter into an agreement, as, for example, they agree to participate, together, in a hunt and as they also plan the details of that hunt.  The point to be emphasized here is that the two men are together in the hunt, in a relaltionship that is set entirely within the framework of the idea of the hunt.  This is what in fact it means to be a hunter in the human sense of the word:  all hunting that is truly human hunting requires planning and prior agreed upon commitment to participation.  It is with this agreement, which we may identify as "said primal agreement," that we must start our philosophical anthropology.   The one remaining point, however, but the point we must make as we anticipate a further extrapolation to the society that evolved in more recent times, is that this primal agreement, as I have stated it, is not then and there enforced or enforcable.  Or, what is more precisely the case, the only enforcement possible of the primal agreement would be through the physical and personality force of either individual, whichever individual, obviously is stronger.  The said primal agreement refers to no party outside the principals of the agreement, whom we will call hunter 1 and hunter 2.