See Disclaimer Below.

Posts Tagged ‘the State’

Law and Locality

In Arts & Letters, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy, Politics on August 7, 2013 at 8:45 am

Allen Mendenhall - Copy

On one common definition, law is a practice or set of rules based in custom and habit.  Law is not diktat.  It arises spontaneously through the interaction of human agents operating within and among social groups and precedes State promulgation.

Legislative enactment can reflect the law as it is constituted in the mores and traditions of groups, but it can also be the result of governmental usurpation.  The legislator does not embody the peoples he represents, and as society grows ever more complex and populations ever denser, as technologies link us more and more to one another in cyberspace and other virtual fora with disembodied communicants, the notion that the legislator speaks on behalf of his constituents becomes increasingly dubious if not downright absurd.

Local groups such as schools, clubs, community organizations, and churches have complex rules of exchange derived from shared mores and traditions.  They are more likely to speak accurately about the wants and needs of their community.  Their rules are not necessarily articulated, but tacitly understood.

These local groups recognize regulations not as monolithic, governmental impositions but as integrated schemes of social principles.  Group-members who fail or refuse to follow rules and regulations are punished.  On this local level, punishment can be simple: ostracism or public disapproval. A businessperson who violates another businessperson’s trust will lose business, just as he will lose clients by losing consumers’ trust; a church-member living in sin will likewise suffer from the judgment of his peers or, more appropriately, from the canon law pertaining to his sin.

In these examples, it is clear that the State should not intervene in punishing the wrongdoer; local custom and habit suffice to regulate conduct without resort to State violence or compulsion; therefore, private associations suffice to generate rules and their corresponding punishments.  Distant government bodies are not likely to conform to the intricate constitutions of local peoples and therefore are likely to exercise their disciplinary powers using punitive, exploitative, or arbitrary means.


Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall


“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »

%d bloggers like this: