Thursday, March 3, 2011

It's Not the Rule of Law

We westerners like to witter on about the importance of the rule of law--compared to those lawless Islamic radicals, for example. The importance of law in the western canon goes right back to Homer and the Iliad. "A clanless, lawless, hearthless man is he that loveth dread strife among his own folk." So spake Nestor to his fellow Greeks at the gates of Troy. In modern terms, meat-and-potatoes conservative Sean Hannity speaks about people who go to work, follow the rules, pay their taxes, and obey the law. Yet this rules and laws principle reaches its apotheosis in the administrative welfare state where every social need is provided somewhere in a vast bureaucratic rulebook. This is what the culture of rules and laws leads to?

In fact, the world doesn't work on rigid rules at all. It may be that the lifeless world of cold steel and plastic works in a mechanical way, according to universal laws that provide one rule for all motion. But the social world does not, and we can get a clue from an unremarked fact about the mechanical world. The world of Newton's mechanics only works because of lubrication. The great clanking steam railway locomotives that I remember from my youth only worked because of the oil and grease in their bearings. Without the lubricating oil keeping the metal parts apart, every machine in existence would grind to a halt in seconds. Sure, the laws of mechanics and heat engines apply, but they are all framed by abstracting away the fact of friction. Friction is an annoying problem that gets introduced into mechanics by the back door. The same applies to social life.

Clausewitz famously introduced friction into his theory of war. Friction and the "fog of war" are what makes nonsense of every plan of attack. Shakespeare's Portia famously exposed the difficulty of enforcing a contract gone wrong. How do you measure out the pound of flesh that is specified as the forfeit? You can't live just with contracts and rules, you need also mercy, that falleth like the gentle rain from heaven. And people in their day-to-day activities replace strict rules with the flexibility of give-and-take. In British law this used to by symbolized by the two-track legal system, with courts of common law and courts of equity.

Even the lordly President Obama has already started to shade the majestic rules of his universal comprehensive health plan with waivers--for the politically connected big corporations and labor unions.

In the hunter-gatherer culture, humans worked up many answers to the friction problem. They designed their religion to deal with the freeloader problem; they organized all-night ritual drumming and dancing to soften and melt their feuds and animosities. Their political structure was remarkably egalitarian.

In our times we have capitalism which is a social system to reward flexible adaptation to the needs of others. It lies upon a hard bed of rigid commercial and contract law, but its everyday operations use give and take. Whatever the rules may say, it is the aim of every business owner to charm and please his customers, to create a long-term relationship that shades the starkness of buy-and-sell into a practical friendship.

Our great clanking welfare state is built upon a classic mistake. It built a vast machine of great complexity but forgot about the lubrication.

The great task of the next age of reform to to replace the clanking mechanical monstrosities with new institutions based upon the eternal principles of social life shared by all the social animals. For social animals, rules are not chiseled on tablets, or promulgated from a throne; they hover in the air suspended in a mist of social cooperation and give and take. This is a lesson that many forgot in the mechanical age. The sooner we relearn it, the better.

No comments:

Post a Comment