Ghitus, I apologise for having taken 5 weeks to read Rory FitzGerald's essay
on natural law and come up with some kind of response to it. Laziness is my
only excuse.
My first line of response is that he never directly states the origin of
this 'rule of law' (natural law). The example of overpopulating a hill being
an "evil" act suggests that the rule of law is different in different
societies, depending upon the established static patterns. If a society was
founded upon a hill that was indefinitely lush with vegetation, yet was
sparse in wildlife, then it would not be contrary to the rule of law to
overpopulate and overcultivate the hill, but it might well be contrary to
the rule of law to eat too much meat and therefore wipe out the animal
population of the hill. Not because the society would have made a species
extinct (for the MOQ appears to regard animals as purely biological), but
because the society valued meat and its continued health was dependent upon
it. Therefore, 'what is natural law?' is in esssence the same as Pirsig's
'what is good/moral/just?' - it is the conflict between the levels, the
quality of the highest level, and the evolving pressure of DQ.
However, does the rule of law exist without society? Is it according to the
rule of law that biology triumphed over the inorganic? The MOQ would appear
to answer 'yes' - it is more moral for biological patterns to subject
inorganic ones. Therefore, the rule of law is a consequence of quality, and
and exists independent of human intellectualization. Yet it is only through
the process of passing quality through the static filters that morality/ the
rule of law is obtained. The rule of law is, to an extent, 'subjective' in
that it depends on the static patterns processing it.
Here then, can the rule of law and the positivist doctrine of the rule of
man be united. Man, on behalf of society and intellect does make the law,
yet it is made by the force of some 'higher authority' - that of quality.
But it is still man-made law, and where different individuals possess
different patterns of value to the law-makers, then it appears to those
individuals as if the 'higher power' has been neglected, and a disproof of
the rule of law appears obvious. Where there is consensus of static patterns
within a society, the rule of law appears to exist, for the law upholds what
every individual 'just knows' to be just.
There is a further complication that is discernible in the British common
law of judge-made law and the doctrine of precedent. Some judges follow
quality to decide cases as they feel is right, and then justify them as
skilfully as they can, leaving the law right at the time, but without any
underlying principle (except that of morality). Deciding cases upon value
judgements is dangerous, even with the rationalisation that the MOQ gives to
it, for value receptors and hence value judgements vary between individuals.
On the other hand, some judges follow precedent and existing principle to
decide cases, regardless of the evolution in static patterns, creating
unjust decisions. Thiss is perhaps the unwanted legacy of the scientific
logic applied to the rule of man; it justifies such an approach by saying
that because man makes laws then the only justice is the justice that man
declares to be law - the objection to the genocide under Hitler etc.
Yet, if Hitler had managed to so (d)evolve social and intellectual patterns
so that genocide was intellectually acceptable (by making his and Houston's
theories the predominant ones) and in the interests of society, then it
would have been moral - justice is dependent on the prevailing patterns of
value. It is only viewing from outside, from a position of other patterns of
value that genocide would be wrong. In those societies, even intervention
was justified, because of this so-called rule of law, a rule of law that
changes between societies and individuals. Only increased travel and
globalization has allowed the harmonization of the rule of law (under
Western morals although there is often still a large culture gap). And
despite the MOQ's attempted harmonization of Eastern and Western
philosophies, it still provides a rationalization of the arrogant idea of
the supremacy of western North-Atlantic morals. And that is a major flaw, it
is a rationalization of common-sense, gut feelings of what is right
developed into a hierarchy of what is good on the basis of what western
idealists/liberals feel. I am a supporter of the MOQ because of its
versatility, its ability to recognise different rules of law, different
concepts of good and bad; but where it can rationalise arrogance and
interference in other patterns of value, then surely that is a flaw that
needs some work.
The Hitler case is an imbroglio, for it would have been immoral for the west
not to interfere, yet at the same time it is immoral to interfere. (Having
studied the period, it appears to me that it was Hitler's expansionism, not
anti-semitism that induced the allies to fight him, and the starting of
genocide in 1941 was an impotent response to a failing war by a man deranged
by failure.) The way in which Nazi patterns of value were shed after the war
shows that they were never made the predominant patterns, and hence the
Final Solution was immoral from whichever perspective it is viewed.
But, hypothetically, if Nazi value patterns were predominant, what then?
Brazier (IIRC) has said "declaring what is a just society is a complex value
judgement"; the MOQ gives an answer, but dilemmas still remain.
Yours for consideration,
Simon
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