The Just King: Global Rule of Law and its Proper Fidelity

Solving some of the world’s greatest challenges

Cyrus “Kir” Komrik

I. The Presenting Issue

Have you ever wondered why humanity, with all its technological advances and sophistication, has been so palpably unable to tackle some of the world’s most pressing dilemmas and crises? Its an innocent but perfectly fair set of questions: why haven’t we ended starvation, wars that kill millions of innocent civilians every decade, the very real threat of global, nuclear annihilation, terrorism so vile and destructive that it produces some of the most dangerous and reactionary responses by the worlds most powerful nation and threatens global anarchy, environmental degradation so severe that it threatens the very habitat in which we exist and live, inefficient and grossly wasteful application of human effort and on and on?

To allow the answer to this to present itself we can ask the corollary question with regard to the internal affairs of any number of appropriately chosen individual nations: why have we ended starvation, wars that kill millions of innocent civilians every decade, the very real threat of national, nuclear annihilation, terrorism so vile and destructive that it produces some of the most dangerous and reactionary responses by the nations most powerful state and threatens national anarchy, environmental degradation so severe that it threatens the very habitat in which we exist and live, inefficient and grossly wasteful application of human effort and on and on. The answer is now made clear. The reason, or at least a primary reason, why the horrible injustices of our world exist is ineluctably due to the absence of a global rule of law that governs human behavior – the same kind of law and order that exists in any number of individual nations.

But the simpler response is to just claim that its human nature and we can never solve it. It sounds reasonable on the face of it. But there are a couple of problems with that response. First, it denies any human capacity whatsoever to solve problems, something we know is not a fair assumption. Second, and perhaps more significant, it conflicts with observed history and what the corollary question above makes obvious: if these same kinds of problems have been resolved intra-nationally then why can’t they be solved internationally? I think the reason why some people don’t see the obvious irony of rationalizing the existence of national governments but disdain and suspicion about global government is because of deep-set fallacious assumptions that, for various reasons, they are unable to see beyond. It’s a matter of seeing beyond where we are now into a world that we can only imagine – to look at the ‘world’ the same way the Founders saw the problems faced by the American colonies; and to do so with courage.

Many think that this question cannot even be asked – it’s too idealistic or too large a problem to address. But this defies human experience. We’ve asked much bigger questions without pause or hesitation; how to put a man on the moon, what are the fundamental forces of nature and how are they related, what was Earth like 2 million years ago, etc.? Clearly, there is no a priori reason why the same kind of governing structure that exists at the national level cannot also exist at the global level. Old objections to global rule of law predicated on the idea that the global community is too large and geographically spread out to centrally manage ignore the vast and dramatic ‘shrinking’ of the world due to technological change. The one objection that still bears some currency, however, is that the diversity and dissonant cultures, mores and beliefs that exist across the globe present a serious roadblock to any kind of unified administration. General Federalism – as we shall see – addresses by design that very point. To those who fear global government I would simply say “if global rule of law is what you fear how much more should you fear the status quo!”? When you think of that it is well to keep in mind the current situation in which we find ourselves; the global terrorism, the unilateral military actions nations are now taking against one another, the seemingly unstoppable nuclear weapons proliferation and so on. The alternative to global rule of law is continued anarchy, backwardness, human suffering and general confusion. The more I thought about this the more obvious the need for rule of law became.

II. The Nature of Rule of Law

It finally occurred to me that if any kind of global governance were to work it would have to be the most fair and neutral system humanity has ever devised. This realization was not easily won for me: it did not appear obvious in the beginning that it was precisely ideology and cultural differences that, at least to a great extent, served to divide the world and deny rule of law. A global government can not favor one ideology or culture over another if it is to have any chance of working, or of being “durable” as academics would put it. Given the diversity of people throughout the world an incredibly neutral system would be essential. It’s hard enough to get the entire world to agree to a common rule of law but another matter indeed to keep that alliance together. The only way to do that is with a system that is exceptionally even-handed, just and fair to all. I reckoned that this requires two things:

  1. The application of justice in an      exceptionally even-handed way unlike anything we’ve seen before. Equity in      law must be re-thought and expanded to accommodate virtually every kind of      injustice imaginable – it must be      fair.
  2. It must be ideologically neutral;      objections of conservatives and progressives, and other ideological      viewpoints, must be sincerely and genuinely addressed with respect in a      way that balances the rule of law between these sometimes very disparate      world views – it must be neutral.

In summary it must genuinely be both fair and neutral. It is these two things that constitute the sine qua non of success in global rule of law. If you think about the diversity of all of humanity any thing less is obviously disingenuous. So, that is the question I have been attempting to answer for months and this paper offers my thoughts on the question of how to solve the world’s greatest challenges.

My next question was in a global context what kind of governance is most fair and neutral? This is a question embedded in a very specific context. So, to answer this question I laid out the essential political and economic characteristics of the global community that distinguish it most clearly from existing national governments:

  1. It consists of a very large and incredibly      diverse population. That diversity would need to be brought together in      consensus if a globally governing body is to be effective. Diversity without      consensus reflected at the level of global policy-making would be      disastrously paralyzing if excessively heterogeneous – the government must be able to build a      credible consensus.
  2. There must be a set of constituencies to      whom politicians are accountable; and those constituencies must be      identifiable, countable and limited in number. In an extremely diverse      population the danger arises that the constituency is so heterogeneous      that no effective accountability exists – the government must be accountable both on paper and in practice.
  3. The impact of various risks are especially      severe in a globally governed world with no political accountability to      higher or peered powers:
    • The impact created by a global system       in which political equilibrium is lost would be dire as no other       balancing global power exists; such a government (in the European sense       of the term) must be designed as one that cannot be easily brought down       or abruptly removed from power – the       process of governments entering and leaving power should be predictable       and smooth.
    • The impact created by a global system       in which the powers of a governing body cannot be effectively constrained       by an outside force; for the same reason as above, no counterbalancing       force exists in the world, would likewise be dire. Decentralized       political ‘units’ of representation would be needed to ensure that       constraining forces outside the strictly global domain exist – Both ‘lower’ State powers and specifically       enumerated powers reserved to the people would be essential.
  4. In such a large governing jurisdiction      decisions will naturally tend to be made on a ‘local’ level; a global      governing body should be one that fits that paradigm rather than one that      opposes and works against natural forces – some system of genuine, limited local autonomy must be in place if      the Union is to survive (or “be      durable”).

The aforementioned considerations are an almost perfect description of pluralistic, federal systems. Any kind of functioning and successful world governing authority is inconceivable without federalism. Dictatorships obviously do not fit the criteria. Socialist and Marxist-Leninist systems don’t work in such a context either. Parliamentary systems are best suited for smaller, less diverse and statistically more educated populations. Thus, the rationale I used for choosing a pluralistic system is clear, but it is still not clear what I mean by “General” federalism. Let me turn to that now.

III. Fair and Neutral Rule of Law

Fairness in rule of law means that justice be defined very carefully so as to include all manner of it, that it is applied in a uniform and predictable way and that it is enforced in like manner. Alexander Hamilton once said that the end of all government is justice. What he meant by that was that the end of government is to correctly and reliably assess and enforce fairness between its citizens. True, justice strictly defined only means the proper application of law. But in Hamilton’s mind the “law” was the will of the people. Thus, the proper application of the “will of the people” can only happen if fairness between people is enforced because the “will of the people” is the consensus of many drawn from the democratic representation of the will of individuals. Seen this way, the term justice makes a lot more sense. It can be thought of like a function that receives the collective will of the people and produces a set of rules and rulings that sort out how that collective will is actually applied even-handedly, fairly, in real world situations. In the paper On General Federalism I called a hypothetical government that can do this without error functionally symmetric. In a world government this consensus of will informs the enforcement of fairness best when it considers the will of the people in the broadest way possible. In other words, the application of true justice, and by extension, true fairness, admits of no boundaries. So, to be true to fairness the notion of justice must be expanded to include every imaginable area of individual will, not just strictly legal but economic as well. An example is in order: While one nation might be able to endure the economic disparities that exist within it’s borders, the economic disparities between the richest and the poorest on the global scale is far too vast to exclude economic considerations from fairness. Without it world government would not last long. But how do you do this in a way that is neutral; that is, in a way that doesn’t treat economics ideologically (that economics be considered a justice issue could lean the conversation toward a socialist view of economics)? It is this interplay between fair and neutral considerations that must be constantly on the table for a world government to work well.

IV. Law and Economics indistinguishable

The more I thought about this the more I realized just how indistinguishable law and economics really are. Both areas of academic interest, in their more noble forms, deal with the fair and neutral allocation of value in a society. Finally, the solution to the example of the previous section came to me. The only way to bring law and economics together in a fair and neutral way so that both could have principles of justice applied to them is to apply a two-step process to economic justice:

  1. Create a system that      allows for the voluntary      inclusion of economic assets (value) into an absolutely unbreakable, irrevocable      Public Trust (to make it involuntary would defeat the purpose, I reasoned)      in which the government is named as the Trustee. The effect of doing this is      to avoid making the economic system ideological: such a Public Trust is      not socialist or capitalist by definition but is a free-market system in      which the means of production are owned by the people directly and in      legal equity. But the sole purpose of the Trust is to lay the groundwork      needed for applying economic equity (not to be confused with the term      “equal” – they are two different things). An irrevocable Public Trust is a      legal entity of collective ownership which cannot be revoked, amended or      altered in any way. The term “absolutely unbreakable” means that no court      can break up the Trust for any reason – which prevents the Trust being      suborned – because the Public Trust is a Constitutional construction. A      “trustee” is an entity that manages the Trust. That, in this case, would      be the government – and it is that entity that deserves more attention. This      Trust constitutes the least intervention a government can introduce into      economics while still satisfying the conditions of item 2 (two).
  2. With item 1 (one) in place the following      second item becomes feasible: All remuneration in the Public Trust would then      be determined on the basis of financial productivity within that Trust; in      other words, all people would have to be compensated on the basis of their      financial productivity – as best as it can be measured, rather than on      salary or hourly rate bases. This “allocates value” in an even-handed,      fair way. This assures economic equity in law, as it would be described      academically, because the system inherently applies principles of justice      not just on the basis of the basic natural laws of economics but on the      economic circumstances that present. The only fair economic consideration      that can be made is the remuneration for time and work put into the Trust      as measured by the increased value of the Trust as a result. Another way      to see this point is to think of what decreasing amounts of financial      productivity mean – the less productive an entity is the more value it      draws from the community around it. Equity requires that this be taken      into account. Compensation by financial productivity has the natural and      inherent quality that it invokes economic equity without any additional      rules, laws or adjustments. Equity in such a system is automatic.

The Trustee, in this case the government, would retain certain rights in the Trust; namely, the right to determine the manner in which assets of the Trust are invested. A democratically elected, representative Trustee would have the power to determine what economic goals should be achieved, what should be produced and the work conditions and standards that apply within it. In this sense the economy of the Public Trust is a planned economy. But skirting the ideological minefield, the Public Trust would be a collection of voluntarily transferred assets and would co-exist with any economic entities that exist outside the Trust. It would openly compete with the capitalist, entrepreneurial system allowing the market to decide which is preferable. This allows different nations within this Federation of Nations to retain their economic systems more or less intact without having to adapt to the vastly different economic systems of other nations or to surrender their assets to collective ownership. Private property, as a legal concept, is fully retained and has the legal status that it does presently in the United States. [this point has been contentious and the debate continues as to whether or not commercial private property should be legal. Currently, the Constitution denies it.]

V. A General Federalist set of Fundamental Laws

I decided to refer to such a world government as The Federation, which seemed eminently appropriate since no other federation could be confused with it; hence it does not need an adjective before it (such as “United” or “World”). And I came to call the kind of federalism I was describing as General Federalism because it’s most salient characteristic that distinguished it from, say, the federal system in the United States, was that it seeks a general solution to the problem of governance in which there is, at least in principle, no theoretical limit to the degree of diversity of the populace that is presumably within its jurisdiction. Put another way, I realized that the “American” model of federalism was not universally applicable because it was a product of a particular culture and time. To wit, the “American” system is in fact a form of “Special Federalism”, that is, a federalist system that is modeled party on the culture in which it operates. But that does not mean that nothing of value can be drawn from the American experience. An invaluable storehouse of information has been amassed in theUnited States, making it a 200 year-old living experiment. I would be well advised to observe it.

VI. Lessons learned from Special Federalism

It occurred to me that what better an opportunity to examine the past and learn from it than when discussing global governance. The leading exponent of federalism thus far is unquestionably to be found in theUnited States, and I started with that. By understanding the successes and the failures of this special federalist system I could refine and adjust my description of General Federalism. What I found was surprising even to me and it will take some effort on my part to explain this in a way that doesn’t give the wrong impression. Let’s take a step back into history and explain the generation of the so-called “Founders” of the United States Constitution. As it were there were three key philosophical viewpoints each struggling for the greater expression in the inchoate nation of the United States and, for lack of existing phraseology, I’ve named them; Hamiltonian Federalism, Madisonian Federalism and Popular Federalism. Their primary exponents were Alexander Hamilton, James Madison and Benjamin Franklin, respectively. The system the United States ended up with was Popular Federalism. It is here that we see the apropos use of the term “special” in my description: The culture of the pre-revolutionary colonies was such that a populist form of governance was almost certain to win out in the marketplace of ideas at that time. It is still the prevailing cultural view in theUnited States today. But those in the know who have years of experience and extensive knowledge about political philosophy know this to be the less favored system. The result was that a Madisonian Federalist system was ratified and it quickly evolved into a Popular Federalist system (the decline of the Federalist Party essentially mirrors the decline of Hamiltonian Federalism as a viable political force in theUnited States). Thinking of these three systems as positioned on a continuum of populism, Popular Federalism was the most populist, Hamiltonian Federalism was the least populist and Madisonian Federalism fell somewhere betwixt. Unfortunately, Alexander Hamilton’s ideas about federalism were quickly run over by the steam roller of populist fervor that existed at the time. He was written off as an elitist, an aristocrat out of touch with the “common man” and the popular sentiment (despite the fact that Benjamin Franklin was a much bigger aristocrat than Hamilton could ever have dreamed of becoming). Many people still mistakenly look atHamilton’s views the same way today. Now, I said “unfortunate” because history now seems to be revealing thatHamiltonwas, in fact, right. It is this tragic fact that affords me the confidence to say that the government of theUnited Statesis not durable and I believe we will soon see in more dramatic detail the effects thatHamiltonwarned us about. The key difference in Hamilton’s understanding of federalism and the views of the other Founders I gleaned from the “Federalist Papers”: while all the Founders more or less agreed in the so-called “checks and balances” of a three-branch government only Hamilton understood the full meaning of this. What Hamilton realized was that not only do the powers of the different organs of governance need equilibrium to ensure durability, so too must equilibrium exist between the interests of the Community as a whole and the interests of sub-groups within that Community (which they referred to as “popular faction”). The more you dig into the form and function of theU.S.government the more you see the fingerprints of this half-implemented understanding. The Senate, in particular, was initially created as a body of appointed officials, not directly elected ones. In the populist fervor of the early twentieth century this was changed by Constitutional amendment. They were to hold longer terms than their House counterparts and were to have their terms staggered. The ideas behind all of this were that the Senate was to be the organ, the entity that best represented the interests of the Community as a whole. Now, what I’m describing is the U.S. Constitution extant; the populist remnants of the Madisonian Constitution we inherited.Hamilton’s Constitution, however, was quite different. And what has happened since ratification is that, in a federalist system in which equilibrium between the interests of the Community and popular faction fails toward favoring popular faction, popular faction has taken a modern face we now call “special interests” and it is rapidly corroding the government’s ability to govern effectively. Here again, if we ask those on the inside who know the inner workings of the federal government they will quickly tell you, as soon as you turn off the cameras, that almost all the difficulties in public policy we see today are due to the undue influence of special interests; the $800 toilet seats, the notoriously inept and incompetent bureaucracies that carry out the day-to-day business, the sometimes bizarre and irrational policies of presidents who seek diplomacy with who should be our greatest enemies and go to war with nations on what seems like some kind of random roll of dice, the general phoniness of politicians and their almost locker-room mentality of trying to win elections regardless of principle, the soaring taxation that seems to send money to the Bermuda triangle never again to be seen, the diminishing federal services available to the public, the scandals, and on and on. Yes, it all goes back to popular faction AKA special interests.

VII. So, how does it work?

I thought about how all this happened in the first place. At ratification in 1787 the form of federalism favored by James Madison won the day. By exploiting and riding the wave of the cultural sentiment favoring populism, people like Benjamin Franklin began moving the country inexorably toward a populist form of federalism. It happened very quickly. By the early 1800’s Federalism (which was really at that time a moniker for Hamiltonian Federalism) began to lose favor and the Federalist Party vanished from the scene. Then the transition from Madisonian Federalism to Populist Federalism took hold.  In 1930 or so an amendment was written that changed the manner in which Senators were determined. Previously they were appointed by the legislatures of their respective States. Now, they are determined by popular vote. Since then an interesting phenomenon has occurred. The government bureaucracy has ballooned in size and scope and the day of “special interests” has taken hold. Because Senators are now directly elected, the purpose of a bicameral Congress is defeated and the Senate now works in much the same way as the House: politicians are elected by direct, popular vote making them vulnerable to organized pressure from professional lobbyists. If the politicians are not responsive to the lobbyists demands the lobbyists proceed to ensure that they are not re-elected. Now, this is perfectly fine when one considers the need for direct representation of the population – the system wouldn’t be all that bad – it’s just that there is little left in the Congress to counter-balance that influence. The purpose of the bicameral Congress is thus vitiated. Now, the Senate still has staggered elections and longer terms, but the I could see from this that the balance had moved once again toward populism; opening up even more room for special interests. And because the Governors of the States are directly elected once again pressure from special interests can be brought to bear on all the Governors of the Union, threatening to ensure their defeat in the next election cycle if they don’t heed the demands of the special interests. Governors, in toto, are quite influential at the national level and professional lobbyists understand this quite well. As time goes by more experience is gained, more money pumped into the apparatus and the special interests become ever more effective. Elections in the United Statesare now absolutely dominated by money. It is no wonder that lobbying is now a multi-billion dollar industry. If I have enough money (either through individual wealth or the combined interests of several thousand citizens – but not all citizens) I can use it to compel certain laws to be written, certain language to be used and certain politicians to be elected. I don’t have to do this overtly for the politicians are not so dull that they don’t realize what is going on. I am, through access to money, the de facto ruler. But alas, the ruler is nothing more than a mélange of special interests, coming and going transiently over the years as one issue or another becomes popular. The situation is chaos. There is so much to be gained financially and economically from pressuring politicians to cast certain votes, or draft legislation a certain way, that the government itself, the intended vehicle for the representation of The People, gradually becomes impotent and ineffective and special interests, popular faction, rules the nation like a “hand in a glove”. When officials are appointed via other representative bodies, representation is broadened and when terms of service are lengthened and staggered the ability of lobbyists to influence public policy diminishes considerably. Though there is still much denial of this simple and obvious fact those who are closest to the process know that what I’m writing is no revelation. This is the irony in which the populists now find themselves: in their zealous pursuit of ever more popular representation they have reached a point of diminishing return, a zero sum game, in which the very thing they are pursuing they are in fact destroying bit by bit. But by their very transient, singular-issue nature, they don’t care. They are pursuing their issue seeking immediate gain from it. By not taking the national interests adequately into account the Founders have insured non-durability. The degree to which representation of national, long-term interests and the degree to which popular representation should be curtailed is obviously greater than what the Constitution of the U.S. extant provides. Part of the reason for the continued denial of this, I suppose, is that people don’t want to think that democracy doesn’t work. But alas, that is not the case anyway. It’s just that the system in place needs revision and its time that open discussion of that fact is heard in the public square. It isn’t that populism is a bad thing rather it’s a bad thing that populism isn’t balanced against other interests that we all value just as much. Balance is key.

VIII. Hamilton’s brilliant answer

Hamilton’s answer to balancing the influences of popular faction and national interests was to build into the federalist system elements that were likely to be far less influenced by popular faction combined with elements that would represent popular factions. This is similar in concept to the oft-repeated separation of powers in government but rather applies to competing interests within society. The idea, as it appears to have been in Hamilton’s thinking, was to equalize the influence of the two competing forces. Of course, the question for us today is, of the three Founders and their schools of thought, which one was closest to achieving that equalization? It seemed to me that that could only really be answered by the historical record; to have tried to do that in their day would have been nigh impossible. But we have the advantage of some 200 years of ‘performance’ data to look at. It was when I did that that it became clear to me who was closer to the mark and it was the much maligned Alexander Hamilton. How did he do this, I wondered? I researched the matter and found a copy ofHamilton’s notion of what the Constitution should look like. At first glance it was shocking, but when I pondered the equalizing nature ofHamilton’s ideas I realized I was staring genius in the face. Here are some of the shocking differences:

  • Hamilton     proposed that all State Governors be appointed by the President in much      the same way that Supreme Court Justices are appointed.
  • He proposed (and got in the early years)      a provision to have the Senators appointed by the legislatures of the      States.
  • He proposed a Presidential term for life

But the shock quickly wore off as I realized what he was really saying. Now, with Hamilton’s genius and history at my disposal I began to work out a refined version of the Populist Constitution extant in the U.S. First, I’ll describe what I found about Hamilton’s ideas. History has revealed that the first two are essential and, indeed, would have prevented many of the crises and issues that the U.S. government ending up facing later. The last one however, history seems to show, was not the right vehicle to achieve what Hamilton had in mind. For one thing, politicians and justices for several decades have expressed pretty grave concern about even the number of terms that a President can serve, not to mention the idea of having Presidents serve for life. Moreover, it was finally restricted to two terms. These concerns were born of observed Presidential behavior that truly gave pause to anyone watching. I won’t get into all those details here, suffice it to say that I pretty quickly concluded that the last idea was probably not prudent. And I shouldn’t be too critical here:Hamilton was probably the strongest advocate of all for an “energetic” executive and I can see why he saw his balancing solution, at least to some degree, as being effectively addressed by longer Presidential terms. But before I get ahead of myself, I should point out what I thinkHamilton was really trying to do here.  Hamilton was trying to assign attributes to the Senate that would make it more immune to popular faction. But he was wise enough to realize that that provision must be counter-balanced by another element more representative of faction – the House of Representatives. He was doing the same thing with the Governors – creating a condition in which the States Executives were influenced by the federal system in order to counter-balance the factional representation that was sure to be strong and to exist in the State legislatures. The War of Rebellion is evidence enough of that.Hamilton was right again. It is unclear, but certainly interesting to wonder, what would have happened had the Governor of South Carolina been a strong supporter of Abraham Lincoln! There are numerous historical examples of howHamilton’s ideas played into American History. So, I knew I was on the right track and I sought some mechanisms to substitute for the lifetime Presidential term. I thought of two that went directly to the source ofHamilton’s concerns:

  1. A limitation on the right to engage in organized lobbying of the government
  2. A census-based broadening of the representation of Representatives to dilute the strength of faction in the House

Finally, I had all the elements together. The next step was to discuss it with others, which is what I’m doing here.

- kk

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2 comments
  1. archaeopteryx1 said:

    The answer to your initial question, “Why?” is a simple one, in fact, “Deep Throat” said it best: “Follow the money –”

    This globe doesn’t right its wrongs because, other than a “warm and fuzzy feeling,” which is clearly an insufficient motivator, there’s nothing personal to be gained.

    Wat one might call a jaded outlook on the Human condition, another might well call, insight.

    pax vobiscum,
    archaeopteryx
    http://www.in-His-own-image.com

  2. I don’t think it is jaded; just incomplete. Your statements involve non sequitirs and straw men. You are defining “rights” and “wrongs” for me. Also, you are assuming that there is no condition under which personal gain is obtained for doing the “right” thing, whatever you ultimately mean by “right”.

    – kk

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