Tuesday, January 17, 2006

Do the words legal, popular and right mean the same thing?

just some scribblings today, nothing that seemed to cohere together well but in lieu of nothing....

Readers of the comic strip, Dilbert, are likely quite familiar with the Peter Principle, a phrase coined by Lawrence J. Peter which means, in a hierarchy, every employee tends to rise to his level of incompetence. The phrase was the title of a book which aimed to answer the question, why do things always go wrong, at least in a hierarchy? In general, I think the skills necessary to rise to the top of an organization are opposite to the skills necessary to see the world clearly and respond correctly. Consider how difficult it would have been to get an established investment group to dump Nasdaq shares in late 99 or early 2000. Ah the madness of crowds, as Charles MacKay put it.

Of course, this is not a new phenomenon. Plato's analogy of the cave notes the distinction between popularly held "truths" and real truths. That the Nasdq would continue to rise was a very popular idea that was, unfortunately for its adherents, quite false.

Perhaps this seeming peculiarity of humanity was one of the reasons Plato thought of Democracy as the worst form of government in that it was based on a clear falsehood, that popular ideas are necessarily true.

Plato's view, with which I agree, is that discerning the truth is a tricky thing made almost impossible be close association with any hierarchy. To the extent readers find clarity in my perspective, you should know that my current views are formed in almost total isolation and were far more muddled when I previously worked in an organization.

Getting back to the Peter Principle, imagine an ambitious guy who wants to climb the old corporate ladder. His concerns will mainly center on how certain people perceive him, which in many jobs may have little to do with how well one performs their function. Yet, once this guy gets to the point where he is beyond those concerns, once he is, in truth, in charge, he needs new skills. To wit, to get to the top you need to make people believe you are clever, once there you must actually be clever. Yet, harking back to the Nasdaq crash, the guys who were proven right were, until after the fact, thought to be silly.

The early 18th Century French diplomat Charles Maurice de Talleyrand famously observed, C’est plus qu’un crime, c’est une faute, which, in English, means, this is worse than a crime, it’s a blunder. The famous American Justice Oliver Wendell Holmes, in his The Path of the Law, wrote, If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. Here again we see the distinction perhaps more easily seen when observing Monarchical/Dictatorial political systems that one can be within the law but totally wrong, or conversely doing something illegal but moral.

These thoughts have been bumping around my head lately as I contemplate Supreme Court Justice nominee Alito's support for a "unitary executive" or a President who is in some senses above the law. It is an idea which elicits horror from some quarters but not much from me. Far more important than being legal, in my view, is being right. Hitler, Stalin, Mao and Napoleon were above the law yet this did not stop them from making mistakes with horrible effects. To the contrary, I think the sense of being above the law invites error in all but the most disciplined minds.

I get the sense that in the coming months the distinctions between legal, popular and right will become a bit more clear, to some at least.


diogenes said...

Kinda like how some fiat has risen in value because of it's perceived usefullness by some key people (CBs and gov'ts).

We'll soon find out what it's really made of.

jeff poppenhagen said...


Count me as one who is horrified at the thought of some being above the law. Being above the law in general, and above the moral or natural law concepts that western legal tradition is based upon more specifically, means that there are those who can usurp my God given rights. I am not sure that one can be "right" enough to usurp these things. Of course, I assume that there exist God given rights that are encapsulated in us all.

Dude said...


I'm only horrified in the sense of watching Icarus fall from the sky for flying too high and dragging down many people along with him.

Don't confuse being above the law of the land, by which is meant the state's ability to retroactively sanction a person for their behavior, and being above natural law or God's law, depending on your persuasion.

Indeed, I think the problems occur when those in power conflate the two notions. I think it is the nature of legal systems that leaders will be above the law of the land, barring really nasty behavior. Yet they will never be above the laws that matter most, at least to me, although they might believe so for a time. As the Chinese put it, the mandate of heaven does not change hands on the whims of man.

I agree with you that man has God given rights, like free will, which, unfortunately, many do not discover by virtue of a lack of faith. In that regard the Consitution doesn't guarantee my rights, it merely envisions a world in which I have them.