Motivation vs. causation

[Bob's World]

there is a difference.

I see "rule of law" as something that arises from the People (and yes, I agree with Dayuhan that "village factions" exist); but, if a rule of law develops, it results from a sythesis of the theses and anti-theses of those factions. As such, it (the rule of law) is a valid expression of "self-determination" - something that could be called "legal" ("hey, Mr Lawyer, is this legal ?") or "legitimate".

Much of the world (and too often us - USAians) translates our self-determinate "rule of law" as "rule by law". The latter could be called "positive law" imposed from above - that is, by whatever elites happen to be be ruling the roost. The dichotomy between "rule by law" and "rule of law" is illustrated in Manchu law, where the imperial codes represented "rule by law" and village traditional law (preferred by the villagers) came closer to our "rule of law".

The bottom line is that in most of the world (and often in the US), I will have to do a lot of explaining to get across what I mean by "rule of law". And, after all that, the listener may still think that I am speaking about "rule by law".

Another case where closely-sounding terms mean very different things.

Mike

Mike,

I'll probably have steal this, as it nests in well with my line of thinking regrading these types of well intended, but slightly off azimuth, concepts/programs.

The problem is that we say "enforce the rule of law; whereas to expand your remarks as I understand them, we would more accurately say enable the rule of law. One would enforce the rule by law.


This is critcal as it links directly back to:

1. One of my key causal factors of perceptions of Justice/Injustice; and

2. One of the West's current "easy button" cures for insurgency "enforce the rule of law."

My take is that when one has a populace in subversion due in part to perceptions of injustice; and the government comes in to resolve the problem by enforcing the rule of law, they more often than not push a larger setment of the populace into the movement, and the movement deeper into insurgency.

But, if they came in, recoginzing both the perceptions of the populace in regards to injustice (note to all Americans, our own civil rights based insurgency with the African American popualce is in no ways "over", it is merely "contained," and there are strong perceptions of injustice toward that segment of our society that we would do well not to ignore) and also then set out to "enable the rule of law" instead, they could move problem down and to the left on the chart I provided earlier.



I confess, most people just look at you and say "whatever" when you attempt to explain such critical subtleties as:

Effective Governance vs Good Governance

Rule of Law vs Rule by law

Legitimacy of governance vs officialness of government.


But I firmly believe, that it is in the understanding of these subtle differences and the design of words and deeds that are sensitive to those differences that mark the difference between a long, drawn out, effort with to suppress an insurgent vs a much shorter, and more enduring effort to address an insurgency.

[jmm99]

and some day, we might meet (over your Bud Lite and my Bud Regular) and determine who has the larger ego. I'd like that.

To be consistent (and swallowing a bit of ego), I have to admit sloppiness in using the term "rule of law". Typically, I've used "rule of law" to refer to civilian law (domestic or international), as opposed to the "laws of war" (LOAC, or a term I think is terrible: "international humanitarian law"), or to the UCMJ (consider whether that is "rule of law" or "rule by law" - how much of it bubbles up from the military, and how much is imposed on it ?).

Let's leave aside that confusion (which might be better expressed by the terms "Civilian Law" and "Military Law" - would that be better, Polarbear ?).

The contrast between "rule of law" and "rule by law" (as used in my prior post) continues through the entire process of development, acceptance and enforcement of the rule. Enforcement does not suddenly change the "rule of law" into "rule by law".

I could illustrate that by reference to Manchu law, contrasting the imperial codes ("rule by law") to the traditional village law (more akin to "rule of law"). But, that would entail more writing than I want to do and what you want to read. So, let's take something that we've already discussed: Mao's doctrine of "from the people, to the people" (a positive feedback loop) in development and implemention of the "Narrative Cause". That process also sums up the "rule of law" process, including enforcement.

Interestingly (but not surprisingly) enough, Mao did not use the "from the people, to the people" process in developing the Chinese Criminal Code, which was (when I studied it: and probably still is) much more "rule by law" than anything we would recognize as "rule of law". The imperial codes still live.

Now, "rule by law" can be accepted by the people (or at least a substantial majority of them); if so, it is "legal", "legitimate"; and the government has "legitimacy" (at least in that area of acceptance).

Also, what may be called the "rule of law" may not be accepted by the people (or at least a substantial majority of them) where the development or implementation process is via a representative democracy with a republican form of government - and there is a disconnect between the "law makers" and the people. Perhaps, the by-elections in VA, NJ and MA were evidence of that disconnect. We shall see.

As to this (and what follows):

from BW

This is critcal as it links directly back to:

1. One of my key causal factors of perceptions of Justice/Injustice; and

2. One of the West's current "easy button" cures for insurgency "enforce the rule of law." ......

one of our (US) problems is not understanding "rule of law" ourselves, or by using sloppy language about it (my mea culpa is above). Their (much of the world, especially where "insurgencies" exist) "problem" is that the "rule of law" is totally foreign to them - and they enforce "rule by law", as their autocratic governments have done for thousands of years.

As a practical matter, we (US) would be better served by recognizing their "rule by law" - and by suggesting changes in those rules to make them acceptable to the people. But, as Dayuhan will say, the Powers That Be are not likely to gore their own oxen by doing that - and may in fact act outside of their "rule by law".

In that case, we have "Blazing Saddles" where the populace's logical response is bringing in "foreign fighters", "mobilizing the masses", "accepting allies" (except for the Irish ! ) and "setting IEDs". All in the script.

Agreed to this:

I confess, most people just look at you and say "whatever" when you attempt to explain such critical subtleties as:

Effective Governance vs Good Governance

Rule of Law vs Rule by law

Legitimacy of governance vs officialness of government.

But I firmly believe, that it is in the understanding of these subtle differences and the design of words and deeds that are sensitive to those differences that mark the difference between a long, drawn out, effort with to suppress an insurgent vs a much shorter, and more enduring effort to address an insurgency.

but these are difficult terms in their understanding; and even more difficult in reducing them to practice.

Now, a truly interesting meeting would be Bill Moore, Ken White, you and me, to engage in a discussion of "good governance", which still needs a bit of work.

As to this:

from BW
I'll probably have to steal this, as it nests in well with my line of thinking regrading these types of well intended, but slightly off azimuth, concepts/programs.

feel free to dog rob with reckless abandon. The work you are doing is far more important than my "proprietary rights" (which you as a lawyer, know don't exist in this stuff; but thank you for asking first).

Regards

Mike