In Religious Arbitration, Scripture Is the Rule of Law
nytimes.com
nytimes.com
(Link: http://www.esvbible.org/1%20Corinthians%206/ )
I get very wary when I see that same argument used by those on the receiving end of accusations. It's one thing to maintain a personal conviction that you will resolve things in person or through non-court mediation. It's another to run around trying to prevent other people from using the courts, while simultaneously hiding from the church, the intended alternative.
There's also a long tradition in biblical interpretation of distinguishing between imperatives (commands, like "thou shalt not sue other Christians", if it were hypothetically written) and indicatives (statements of fact, like "to have lawsuits at all with one another is a defeat for you"). Making the case to bind others' consciences is much harder when you have only indicatives.
And every affinity fraudster in five miles suddenly became extremely interested.
This makes you extremely vulnerable to affinity fraud.
Religion, initially, came in two flavors. One for the aristocracy, which was oriented around finding meaning in the many ethically and morally awful things they had to do to maintain their territories, human capital, and privileged lifestyles.
The other was for commoners, who needed ways to cooperate and trust each other. If two people didn't know each other, then they could still trust each other if they spoke the same language, worshipped the same gods, paid tithes to the same temples. Religion was how they ordered their thoughts about what was right and wrong. It didn't matter for the people at the time what was scientifically or rigorously right, just that it was the same throughout a people.
Until the age of Christianity, rulers had no interest in how the commoners believed. But as the world became more and more connected and the scale of warfare grew to where conscription became more and more necessary, rulers increasingly started to try to control how their populace worshipped.
Fast-forward to the age of Gutenberg. Bibles getting printed in the vernacular, so that ordinary people could read them, was a game changer. All of a sudden, religious hypocrisy became a thing, people with power became accountable for how they used that power, rather than just making up interpretations amongst themselves as they went along.
Laws themselves, of course, are as old as civilization.
Religion is, as you say, older than civilization, but it is worth examining how religion worked pre-historically and after the rise of civilization, as they are very different. You can learn about prehistoric religion in the aforementioned Fields of Blood. Essentially humans have three brains, the basal ganglia, the limbic system, and the neocortex, all of which gives us various drives. Religion is the child of the neocortex and serves to make sense of the other two drive us to do.
A fun thing to do is to go through different countries you're interested in and analyze how much of the rule of law each of them actually implements, rather than just professes to have. Laws and justice are such appealing notions that even tyrants feel the need to put the people they want to execute on "trial". Plenty of totalitarian governments have nominal "constitutions" that aren't worth the paper they're printed on.
I personally consider it a measure of how advanced and robust a society is. One should not think of democracy as "people having elections", but rather as a collection of different principles which society forces the people that would want to rule it to follow. Is there a functioning legal system? Is there a system for transfer of power? Is there a working constitution? The rule of law is an emergent property that rests on all of these things.
I can't think of any reasonable standard where England actually has subjugated the head of state to their laws and is also the first to have done so by that standard.
I mean, surely we aren't holding up the military purge of Parliament that produced the Rump Parliament and that Rump Parliament's creation of the "High Court of Justice" and its prosecution of the King as an example of the rule of law... At best, that would give the English credit for the creation of the revolutionary kangaroo court (and, even at that, it probably wasn't original.)
And, even if you were to credit that as establishing the rule of law (and certainly, a lot of the language popularly used -- e.g., in the US's own revolution -- about the relationship between the monarch and the law stems from that prosecution and the propaganda around it), you'd have to recognize that that was hardly a durable principle established in England, having been somewhat forcibly repudiated when everyone who participated it that was caught by the post-Restoration government having been executed for their participation in it.
It was tenuous when it was first established. It became less so over time. Nothing happens all at once. If the North Koreans suddenly decided they wanted to ape the rule of law and passed a whole bunch of laws and killed a bunch of people French Revolution style, I would hesitate to say that the new nation has rule of law for at least a hundred years, unless I lived there and could observe the process directly so I could ascertain whether they're moving overall towards robust rule of law or more towards modern Russian oligarchy.
From the Restoration to now the complete immunity of the monarch to civil and criminal law has been given; and its only in the mid-20th century that British law recognized some claims against the monarch's government being of-right rather than by-license.
The idea of the monarch being subject to the law was more of a momentary, fleeting, and swiftly violently repressed concept in English law that had already been generally repudiated in England itself when the idea got raised as part of the Revolutionary propaganda in some of England's American colonies a century later, rather than something that was tenuous when first proposed in England but which later became firmly established.
(To the extent Britain has made progress in the rule of law, accountability of the chief of state to the law is pretty much the worst place to look for examples; the bloodshed on both sides of that issue has led to most subsequent progress in the direction of rule of law focusing on making the monarch irrelevant to the law in anything other than a symbolic sense rather than accountable to it.)
Many, many important battles have been fought to change the nature of power between state and nation to form a real difference from the normal state of affairs. That is what I'm arguing is the real crux of the matter.
Let me guess... you are English? Seriously, the English did not invent the notion that leaders are to be held accountable to laws just as subjects. Just take the roman republic.
As I said before, it's not hard to dream up the idea and to try to implement it. What makes the difference is follow-through. Now, the Romans implemented a great deal of political reforms aimed at democratizing power and, most impressively, provided for peaceful transfer of power.
But the descent into tyranny renders all that moot. The world just wasn't ready for rule of law anywhere, I think very few citizens actually trusted law even though they were excited by the possibilities. They could pass laws dividing up power, but that doesn't mean that the people holding that power would respect the law just because it was passed.
When the English implemented it, they stuck to it and never went back. The English respect laws in ways that few do today, except perhaps Germany.
Pre-WWII Germany is a great example of what rule of law isn't. If your elected leaders can significantly alter those laws such as to allow a dictatorship to take over, you don't have full rule of law. It's not just the written laws on the books. If they get ignored and nobody can enforce them, it's not rule of law. The whole society has to participate in protecting it.
It's why we say Edison invented the light bulb even though he wasn't the first to come up with the idea. Having an idea isn't enough.
And no, I'm American.
Honestly your argument seem quite hand-wavy. How would you precisely define rule-of-law in such a way that you can decide if a particular system is rule-of-law or not? Why is England rule-of-law and say pre-christian Iceland not?
The monarchy lost successively more and more powers and today mostly serves as a cultural symbol.
> How would you precisely define rule-of-law in such a way that you can judge if a particular system is rule-of-law or not?
The main lesson I learned studying history is that it's messy. Concepts take a lot of time to emerge. Eventually you have to stop calling something by one term and start calling it by another, otherwise important meaning gets lost. The Romans were really good at peaceful transfer of power, among other civic traditions. To easily refer to how they differed in that regard from the British Empire, the term at hand is 'rule of law'.
The key idea of rule of law is that it's law that functions as the force guiding human action, not humans guiding themselves. What I see is that once rule of law is settled, the power struggles happen along other lines. People agree that the acceptable way to answer the question of "who should be the ruler?" isn't to go raise an army and go fight a war against your brother. So they fight about other things, like "how much and who can I tax?" Once the whole society says, "no more dictatorial kings", then you have that important part of rule of law handled and you can move on to other aspects.
Now you have societies that never fully developed the bulwarks against tyranny that England did. They can be peaceful for awhile but at a bad moment devolve into totalitarianism. You could argue that it could happen in the UK, but the more you read about the history, the more laughable it looks. You could, with a large enough military, conquer the UK from the outside. Subvert its democracy from the inside? Never gonna happen.
Attempting a coup in any state, especially a modern one, is not the work of one man, but is an act of violence against the entire legal and political system. The UK has the most robust laws and procedures of anywhere that decide what happens. If you slaughtered all of Parliament, they'd kill you and then go about electing a new one. Anything you'd try to subvert the UK political process would be met with an appropriate response by the appropriate people whose job it is is to protect the political process.
It's the combination of all these factors that makes for rule of law. All these factors are required to protect a people from the people that hold power over them.
If your system of laws is so weak that you can have such internal strife that a little bit of pressure from another country's king is all it takes to annex you, you don't have rule of law. Your civic institutions are supposed to be able to prevent these kinds of circumstances. It's the whole reason they're there, the primary role of the state is to protect you from other states.
So far we've identified these criteria, in order of evolution:
a) A tradition of civic participation
b) A strong state
c) Traditions and rules that prevent would-be tyrants from subverting civic institutions
d) Leadership that respects limits on power defined not by him, but by the nation
D arises out of the first three, if d fails to happen, then you didn't have a-c.
Republican Rome lacked c and therefore d. A and b protected them for awhile, but the tradition wasn't strong enough to prevent devolution into tyranny. Iceland lacked b, so even having direct democracy isn't really enough. You have to have both a and b before it makes any sense to have c.
Small states where everyone knows everyone else are bound by stronger ties than law. You have decision-making processes rather than machinery of state. Rule of law protects the weak from the predations of the strong, if you don't need it, then those institutions won't have a chance to become resilient through constant testing. The first serious challenge to your nascent state will cause it to crumble, as happened in Iceland.
States today tend to have b without a.
Cromwell damaged English rule of law, but he didn't destroy it. He was able to dissolve Parliament but ultimately could not rule effectively without it. He had popular support of the army but could not fund it properly. The army would have refused orders to act as tax collectors so ultimately Cromwell was simply one more would-be tyrant in a line of English kings who had to limit his ambitions to foreign policy after being frozen out domestically. Which suits the nation fine because foreign policy is exactly what they want him to be pursuing. So long as the army is busy away from home, they're not free to terrorize the legislature or interfere with the political process.
Funding and taxation was a major reason why the English were able to implement rule of law first. A would-be dictator has to be able to enforce his whims, but cannot if the army won't follow his orders or is left to rot, unsupplied on the battlefield.
Parliament in Cromwell's day refused to simply do his bidding. That is a key necessity for protection against dictatorship. A mad tyrant can run around declaring things, but if nobody is listening to him, all he's doing is barking orders. Eventually, they made peace and Parliament offered Cromwell the crown, but he was a dedicated anti-monarchist and refused it, thinking of himself as a dictator in the Roman mold. Despite this, the tug of war between the legislature and the executive continued, just Cromwell managed to get the upper hand for awhile.
After he died, his son Richard became Lord Protector, and the balance of power swung back towards Parliament. "Richard was never formally deposed or arrested, but allowed to fade away. The Protectorate was treated as having been from the first a mere usurpation." The Council of State took back over and invited Charles I's son to claim the throne.
This is how it happens in rule of law countries. Coups do not have the desired effect, your power is going to be circumscribed anyway by tradition, law, and all the other politicians at play that you don't control.
Have you yet provide a concrete explanation of how, exactly, the claim that England had rule of law before other nations (either in a binary sense, or in a continuous sense where England consistently over some significant period of time had a greater degree of "rule of law" than anyone else) is justified?
Because it doesn't seem like there is anything really concrete here.
The continuous sense does exist, but you have to deeply analyze historical events to ascertain distinguishing factors. You have to have analyzed numerous other countries to see how they play out with different polities, different cultures, different geopolitical imperatives. How the Soviets used law, how the Chinese use it. People find all kinds of ways to collect power. Other people oppose them.
Things are cultural and not just codified. You can't just look at a collection of facts and make the determination. Politics is messy. The concrete sense you're looking for doesn't exist. I've laid out a lot of rationale and historical context to lay out what the terrain of rule of law looks like, how it's threatened, protected, and codified; and analyzed four different countries in four different time periods.
This is a lay hobby of mine so I can't claim any kind of authority here. I could understand if you disagree with my findings. But neither of you have offered up any substantive analysis of your own or your own definition. Just isolated incidents in history with no surrounding context. I try to provide that context and it seems like I'm talking to a brick wall. You can't just cherry-pick events and expect that to be very insightful, all people do when they do that is reinforce their existing beliefs.
All of these things are connected, they all contribute to rule of law.
Also you are using a lot of "no true scotsman"-logic. Cromwell wasn't a true dictator since he still had to struggle with parliament. But the same is the case with the Roman emperors. There was an ongoing struggle between the senate and the emperor, and for example the senate deposed Nero, which shows he wasn't a sovereign dictator.
Republican Rome definitely had c and d for most of its time; they broke down in the Late Republic, but that just says that progress in the rule of law isn't a one-way ratchet. As, even you have explicitly acknowledged, it wasn't for England, either.
I think its a mistake to view "rule of law" having a "won" state. Like an Empire (another thing Rome and Britain have in common), rule of law is something you have -- as long as you can manage to actively maintain it. When you fail, its gone, and not easy to get back. And even the best efforts toward maintaining it don't have a 100% guarantee, so, over an infinite time horizon, gambler's ruin is a real concern.
Rome had rule of law, until it didn't. England has rule of law, until it doesn't.
England isn't the first to have had it, and England hasn't achieved some state where it is automatically self-maintaining and no longer a matter of concern.
> I don't see why that's so difficult to grasp.
Its not difficult to grasp, its just wrong.
This seems reasonable, but I don't believe this to be correct. As I outlined in the other thread continuation, it's not just about political machinations. It's also about the rest of society and the economy and the judiciary.
If you analyze those in turn, you can see why England succeeded and Rome failed. You don't have to limit your analysis just to certain select states that we consider to have it, you can also look at countries where the rule of law is non-existent or weak and see how those get threatened as well. You can look at countries where it looked strong from the outside then crumbled, and find out where the weaknesses were.
The main Anglosphere nations, in my view, have broken through to a critical point and no tyranny is possible according to current understandings. People can complain about how Obama or Bush or whoever is a fascist, but analyzed, the events complained about will bear no real semblance to the historical events they're trying to draw similarities with.
We could drill down, look at the fundamentals, connect all the dots to each other, I do this all the time in my spare time, but if you're holding on to an existing ideological viewpoint, it won't matter whether we do or don't.
I have yet to really study the Spanish Inquisition in detail, which is what you appear to be referring to, as it was convened some twenty years after the first Gutenberg was published, but I doubt the it had much to do with it. The Gutenberg took a hundred years to wreak its particular havoc in the form of the Reformation. It was Martin Luther himself who had translated the Bible into German.
There have been attempts to set up Sharia courts in the US, but there's much opposition.[2] Sharia family law also explicitly favors the husband.
[1] http://www.nylslawreview.com/wp-content/uploads/sites/16/201... [2] http://www.huffingtonpost.com/2013/07/29/sharia-law-usa-stat...
"Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers? To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded?" (1 Cor 6:5-7)
He appears to be saying Christians shouldn't sue Christians at all, especially not in a secular court, and grievances should be settled by a wise member of a local church.
Maybe I'm biased because I know a couple of divorced religious jews, but as I see the only example of favoritism to the husband is on get refusal, if the husband refuses to give the divorce the wife can't remarry, all the court can do is put pressure, in Israel they have more powers, they may imprison the husband until he agrees to the divorce.
What people don't tell is that the wife may refuse to accept the divorce, maybe is not that common or maybe people don't talk about it much, but in practice the husband can't remarry the same way until the wife agrees to accept the divorce. The difference is that the court don't apply pressure the same way they do to men.
Also there's the ketuba, on divorce the husband must pay an amount for "breach of contract", and this goes only one way, meaning there's no way the wife will ever need to pay any money, she has only money to receive.
Also children custody goes to the mother, while this is not a problem exclusive of Bet Din's, the court doesn't have powers to assure the father right's of seeing the children, meaning the ex-wife can create problems and difficulties and the court can't do much in practical terms
If you don't grow up in an area that has a very heavy Christian presence it can be hard to understand how very conservative/evangelical Christians think. Many of them believe, honestly and truly, that they are incapable of being wrong because they have been sanctified and saved and therefore even if they perform a transgression no one on Earth has the authority to call them out on it. But see, since they're saved, Jesus forgives them, so no one can call them out on their sin because no one is without sin, so best to just let it go.
It's an extremely insidious mindset because there's no arguing with it. There's no way to get someone who believes that they are morally right to budge even an inch because they 100% do not believe in capitulating to anyone other than Jesus Christ- and since the only source of what He thinks is the Bible and it can be interpreted in about a thousand different ways... you see where this is going. Their personal definitions of what's "good" and "bad" are very, very different from people who did not grow up in the religious culture and there's no way to bring them around to another way of thinking. It happens within the culture too- my father in law and his lifelong best friend had a falling out about 10 years ago over a very small, nitpicky religious matter (they were both elders in their church and disagreed over the way some church finances were distributed) and my father in law straight up stopped talking to his best friend because his friend would not capitulate and come around to my father in law's way of thinking. My Father in Law believed, and still believes, that he was 100% in the right and that his best friend was deceived by the devil and that's why their friendship had to end. And this is over something like "Should we put the church's nest egg all in a savings account or should we take half of it and put it in a Money Market account instead?"
I point this out to add some context to this type of arbitration since, if you didn't grow up in an area where this was just a normal fact of society, you're probably scratching your head wondering how in the world this is even a thing.
Even growing up Southern Baptist below the Bible Belt I had no idea that Religious Arbitration was a thing until I read this article. I had heard of Orthodox Jews having their own set of laws and rules and that being a thing in some very small neighborhoods of NYC, but I didn't realize there was a Christian equivalent being played out across the US.
See: lawyers, constitutionalists, Marxists, objectivists, free marketers, etc.
>A good majority of them believe, honestly and truly, that they are incapable of being wrong because...
their ideology tells them so.
I'm not against arbitration; speaking to this article specifically, the apostle Paul directs Christians to resolve their differences without going to non-Christian courts. There's nothing inherently wrong with the concept.
But in either case, it'd be nice to have some sort of a provision that allows for escalation to a court if you can't get things resolved in arbitration. That's my concern with the credit card I just signed up for; I feel like the company is setting the rules in a way that stacks the deck against me, and if I get slighted I'd have no recourse.
I would find it difficult to imagine Paul, the Roman citizen who appealed to Caesar himself, wanting to shut people out of certain aspects of the legal system entirely.
I'm surprised by the power of arbitration clauses in contracts. My understanding is that you cannot sell yourself into slavery in the US because the contract will not be considered valid. Perhaps if you put an arbitration clause into the contract, you could?
That is everything you'll ever need to know about why religion will never leave humanity. Substitute literally any belief system for Christianity, and then realize that every single human who holds that belief system also holds that refactored sentence to be true. Possibly in a more grammatically correct manner.
I think there needs to be an 'arbitration by combat' service.
If you sign a contract with someone with one of these clauses, you have legally opted-in to the arbitration process. I'm against drive-by EULA's, but other than that I can't really see a reason not to uphold them.
The difficulty is when there is a power asymmetry in the original agreement, as there normally is when it's an individual signing a contract with a larger organization.
Two large companies agreed to arbitration? Stick to the original agreement, as both sides paid lawyers to advise them on what to do, and there was almost certainly a negotiation. But individuals don't, usually, have the resources to hire lawyers or the ability to do the kinds of negotiations required to get favorable contracts. In such situations, I am troubled that we can end up signing away our ability to appeal to the courts to intervene on our behalf.
If this issue gets enough press for a long enough time, I could see legislation that voids arbitration clauses in certain cases.
I can see value, and certainly abuse, in people agreeing to allow their religious organizations to arbitrate civil disputes... it would seem that people should be allowed to make the choice and suffer the consequences if the agreement is within the established law.
The problem is that, currently, I can't get wireless from Sprint, ATT or Verizon without signing away my right to sue. If this is the case, I feel like I have been forced into signing an arbitration clause (I don't really have a choice not to have a phone). Comcast allows me to opt out (though at the time I didn't realize this was an option).
At what point am I no longer able to make a choice to live a life without entering into an arbitration agreement with someone, and if that point comes, have my rights been violated?
Technically, I've entered into a contract for a service. However, if every contract for that service includes an arbitration clause, I no longer have a choice, and I haven't really "opted in" to the arbitration process, because I can't "opt out".
I'm pretty sure this isn't a valid legal argument, but that doesn't make it right. At the very least, controls need to be put into place to make sure that arbitration is neutral: otherwise the clauses are similar to a clause that says "if you wish to sue us, we win by default: tough shit", which feels like it should be illegal (or unenforceable).
Perfect pull quote. The article buries the lead by putting this line so far down in the body.
The article cherry-picks a few religious examples to support the headline, but there's nothing inherently religious about arbitration clauses. If they are infringing on the rule of law, this article hasn't demonstrated how.
You might get more interesting results if both sides had to be represented by a duelist of equivalent skill. ("If you cannot afford a champion, one will be appointed for you by the court"?)
If I go to your showroom, purchase 100 sq ft of hardwood floor for my home office, hand over my AmEx, not entering into a written contract, come home and find it faulty/unfit and the retailer protests, they can't then turn around when I sue them and say "actually, according to our web site, you can't sue us, you have to go to arbitration".
It would be extremely difficult to make that binding, save a written contract with the presence of that clause.
It looks like the specific company mentioned only sells online and through dealers.
Of course, please consult professional legal services before signing any agrrement.
Happens with employment contracts all the time around sexual harassment and workplace disputes. It's not to say it's unreasonable though. Disputes are common and court is expensive while arbitration is usually cheaper and more efficient.
Honestly, the bigger concern is contract signing practices more so than arbitration. I'm 100% for people or businesses being able to sign a contract with an agreement between them for just about anything, from buying a house to getting married.
The problem is the way contracts are presented. "The fine print" is meant to be something huge and intimidating enough that you won't take the time to read it. Lawyers are expensive and in most situations you're not going to have one read every single contract that you're presented with.
I went to lease a vehicle a couple of years ago. Talked to the sales person, sat at their desk, filled out a bunch of paperwork, sat and waited while he stepped out of the office to do something with it. After I'd been waiting for about an hour he comes back in with a huge stack of paperwork for me to sign.
At this point a few things can happen:
A) I spend 2-3 hours pouring over every one of the documents, asking him specific questions about wording, to which he'll call his manager to get an answer, etc potentially dragging on for hours before finally reaching an agreement.
B) I ask to have my attorney look at the documents, taken them and leave. He will review them when he gets free and in a couple of days send me his concerns. I will then pass them back along to the sales person who will pass it on to a manager who will either approve or escalate it to their own attorney. At the end of this process, assuming everything can be worked out I will PROBABLY lease the vehicle assuming it's still on the lot. I will then get a bill from my attorney.
C) I will rush through and sign the documents, trusting the business not to screw me, simply because I'm tired of waiting and want to get out of there.
All of these are a problem and the result is usually C "just sign the damn contract"
At some point, we need to establish some legal rules around SIZE of contracts and the strength of those agreements. Under scenario B where each party has an attorney involved and gets the details worked out to exactly the terms everyone is happy with a contract should be borderline ironclad.
Under scenario A or C where an attorney wasn't involved and the signing process was engineered to produce a signature, significantly more leeway needs to be given to the terms of that contracts and/or the penalties for breaking it.
That's one of the great things about working in Right to Work states because even the most ironclad of noncompete agreements are basically unenforceable in all but the most specific of circumstances.
I'm not really sure how to fix this, or if it should be fixed. Is it a problem that I can't get phone service without agreeing to give up my right to a class action? It seems that it is: it allows companies to essentially have one sided contracts. I must abide by the rules of the contract or be taken to arbitration (where I will lose), but the company can feel free to break the contract whenever they wish. If I complain, we will go into arbitration and I will lose.
I suppose the way to fix it is to put legal controls on arbitration, but if enough controls are put on arbitration, it starts to look a lot like court, at which point, the value of arbitration has been lost. However, at the moment, the lack of controls make outright fraud much too easy.
Here is a question: can you sue the arbiter for a bad decision? It seems this idea isn't unheard of[0], but it is definitely not perfect.