A member of the attackthesystem group asked the following: A common criticism of libertarians and anarchists is that we don’t need more freedoms than what western democracies allow us today.
So, let me ask you:
What freedoms do YOU want, that you don’t have today?

Keith Preston responded: I think your point here illustrates very well the central intellectual question of our time concerning political theory. We need to intellectually attack the basic presumptions of the ruling class, particularly “democracy” and legal positivism. These two things are the cornerstones of the modern state’s ideology of self-legitimation.
Virtually all educated people in modern societies recognize the illegitimacy of absolute monarchy, military dictatorship, communism, fascism, aristocracy, theocracy, etc. Only “democracy” and “rule of law” retain supposed legitimacy. What this view means is that the state can legitimately do whatever it wants to anyone so long as there is an existing parliament, elections are held periodically, and laws are made according to some kind of formal institutionalized procedure. Discredit these ideas like the divine right of kings has been discredited, and the modern state is finished.

I wrote: I’ll stick up for “rule of law”. The phrase does not indicate that a law is dandy just because it is on the books, but that the government is restricted by law rather than the whims of those in power. Of
course the Constitution can’t protect itself, but establishing the norm of not violating it (even if I would prefer the Articles of Confederation) is helpful. Similarly “state’s rights” proponents don’t actually think states have rights, only that the central government does NOT have certain rights over them.

Expanding on that, I wrote: Hume’s is-ought would seem to preclude ever establishing anything to be objectively valid or good, but we can still insist on standards or boundaries for officials and a Constitution can serve as a Schelling point.

Keith wrote: This is my take on this issue:

Laws simply reflect the self-interest of those who make them. Nothing
more, nothing less. Whether or not a particular law gets enforced
depends on the wishes of the powerholders of the moment. To the
degree that “law” restrains powerholders, it is only because of
competing power centers in society, or wider historic traditions or
cultural norms that preclude certain state actions. For instance, it
would be impossible to outlaw Christianity in the US, not because the
First Amendment says so, but because of the wider cultural power of
both organized religion, the self-interest of powerful Christians and
the historic tradition of church/state separation.

On the other hand, from my studies of the “war on drugs” I would say
that “the constitution” does absolutely nothing to restrain drug
enforcement officials or the courts, for the simply reason that drug
users/sellers lack cultural power, historic recognition, powerful
advocates, etc.

“Law” is simply as mask for the ongoing war of each against all. The
law will reflect the views of those who have succeeded in this war to
the degree necessary to institutionalize their own interests.

I responded: My point is that “rule of law” is a norm that serves to restrict the government. It doesn’t do so as much as we would like, particularly in the case of marginal folks like drug dealers or prostitutes (I assume you already read the Levitt article about how pervasive police-rape is), but that doesn’t mean it doesn’t do it at all. I suspect that living in a country that doesn’t even pay lip-service to rule of law would make you nostalgic for the Great Satan.

Keith replied: Yes, I agree, but is not this “rule of law” that restrains the state (sometimes) not an expression of wider historic and cultural traditions derived from the Anglo-American Enlightenment? Is it really “the law” that’s the issue or is “the law” merely a euphemism for this wider cultural/historical milieu?

I replied: I think the idea was cemented with the Magna Carta, which was the result of elites being angry that their traditional privileges were being encroached on, but the idea is not just the English tradition of limited government but that the government is subject to the law just as much as people are. The issue is alive today in the wire-tapping amnesty where some people say it’s okay for the law to be broken under extreme circumstances, or in Mansfield’s ideas on the executive.