Law in Contemporary Society
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The Invisible Fist

-- By JeffreySchatz - 26 Feb 2010

Introduction

It pleases us to celebrate the "developed world" as a testament to the success of human freedom. We like to think of ourselves as in a profoundly better and freer place than our fellow humans of the past and present who lived and live under oppressive, iron-fisted governments. However, this freedom is largely illusory. The establishment of the "free" market economy merely replaced the iron fist with an invisible one. Our governments are less actively oppressive not because the human desire to maintain stability has declined, but because this desire is sufficiently fulfilled by the Invisible Fist.

Humans are hostile to change

People are fundamentally hostile to change providing their current situation is tolerable. This sentiment has discernible biological roots. In the natural state, the individual's only real goal is survival. If their current strategy accomplishes this goal, it would be evolutionarily disadvantageous to change strategies and risk failure. In this way, evolution programmed people to be resistant to change.

This is pop sociobiology. Maybe it is true, maybe it isn't. You've given no evidence whatever, and I am not credulous. If you want to see a more thoughtful and complex Darwinian approach to the biological sources of social change, you should look at Frank Sulloway's extraordinary book Born to Rebel.

In society, this hostility to change becomes directed at the actions of other individuals as well. In society, an individual is affected by the actions of others. One cannot hope to maintain the stability of one's own lifestyle in the face of changes by others. Thus, ever since societies were created, there have been systems (governments, rulers, etc.) in place to ensure this stability.

As an account of the origins of power, this is nonsense. It's a short form of the social contract myth.

The Iron Fist: One way to ensure stability

From early societies until quite recently, rulers ensured conformity to the status quo with an iron fist. Rulers are naturally even more anti-change than the people as a whole because they are the ones deriving the greatest benefit from the current system. This is why governments in early societies had a fanatical obsession with deterring changes. The Spartan law criminalizing lyres with too many strings was less the exception than the rule.

It never makes sense to speak of anything about Sparta as the rule rather than the exception: Sparta was an exception to almost every rule of ancient society. And your information about the law criminalizing lyres is unattested here, and probably false. Cicero introduced the story of Spartan conservatism in music in a comment in the Laws, (2.39) with the usual mechanism by which he introduces a useful fable: "If it be true that the Spartans, ..." He was speaking 300 years after a supposed event (the cutting of all the strings above seven from the lyre of Timotheos, as a protest against new musical forms), for which there is no earlier evidence. Thereafter, Plutarch and others retold the story, but there is no reason to believe that they had any direct information about something that was said to have happened 500 years earlier. You don't have any evidence to offer that Timotheos' lyre was vandalized, much less that it was as a result of a general criminal law, much less that this supposed law was characteristic of Spartan law, about which you don't know anything much, much less that this supposedly characteristic Spartan law demonstrates a "rule" about societies. This is just sloppiness masquerading as erudition. For some actual information, see Martha Maas, "Polychordae and the Fourth Century Lyre," in the Journal of Musicology, 1992.

Nor did this anti-change obsession fade much with time. Adam Smith's Wealth of Nations was banned by his country (arguably one of the "freer" states of the time period) due to its criticism of the dominant theory of mercantilism.

This is utter nonsense. You provide no citation and you did not check. There was no censorship or book-banning in the United Kingdom in 1776. The Wealth of Nations was an enormous publishing success, both at first and afterward. Wherever this tale came from, you cannot trust the source. That's one obvious falsity and one unverifiable factual claim based on careless use of sources within two sentences. A careful reader will now have acquired sufficient doubt about your reliability to stop reading.

In retrospect, this was fairly ironic, as the Invisible Hand that Mr. Smith identified proved able to stabilize society just as well as the iron fist.

The Invisible Fist: A new way to do the same thing

In the last two centuries, a significant part of the world has undergone a transition towards less repressive governance. Notably, there is a strong correlation between a successful market economy and a less repressive government.

Really? How do you establish that?

This could lead one to draw the conclusion that a freer and more successful economy gives rise to a freer people. However, this freedom is largely illusory. A successful market economy creates an Invisible Fist that rewards those who maintain the status quo and punishes deviants. With the status quo guaranteed by the invisible fist, the iron fist simply becomes unnecessary.

The basic mechanism of the Invisible Fist is fairly simple. Markets are extraordinary at allocating resources efficiently and maximizing production (even Mr. Marx conceded this).

Would you mind showing you have read some Marx by pointing out where this statement supposedly occurs?

One of these resources is human capital. Thus, in order to get the full benefits of capitalism, individuals must place themselves into a certain market-established niche. To reject this niche, the individual has to risk giving up the high income that market economies provide.

This is nonsense. The whole point about the nature of the bourgeois economy, as seen by both its adherents and its critics, is its hospitality to change.

However, the Invisible Fist's power extends further. The success of the capitalist economy leads to significant increases in living costs. Thus, the market economy does not merely give an opportunity that the individual is free to accept or reject. Rather, through cost increases, it also makes it more difficult to survive without accepting one's niche. Therefore, rejecting one's place leads to an impoverishing punch in the face by the Invisible Fist.

This too. Neither secular price rises without capitalism nor price stability in market economies is unknown, and whatever the theoretical relationships are they cannot be successfully cimplified this way.

An illustration: The Invisible Fist in the legal profession

We can see the Invisible Fist at work in the legal profession. The efficiency of the market creates a large amount of high-paying, and perhaps miserable, legal jobs. This in turn causes an increase in law school tuition, forcing law students to take on more debt. The Invisible Fist discourages law students from breaking the mold because doing so would take away the guarantee of the high income needed to recoup their costs.

Also nonsense. Every one of these supposed steps in logic contains an error. American capitalism was quite successful between 1900 and 1970, without any significant increase in the real wages of salaried lawyers, even the associates in elite firms. Debt levels are not related to law school tuition levels alone: they are also related to which students are admitted and choose to attend high-priced law schools. Debt financing of legal education has its own history, which is not captured by your account. There are much better ways to pay back debt than by working at large law firms. Etc.

The Invisible Fist coerces Law Schools as well. The market has allocated them into the niche of producing the human capital for large law firms. If they chose to go a different route, they would need to lower tuition. However, the high tuition has increased professor salaries. Thus, opting out of the niche would dramatically reduce their ability to recruit and retain talented faculty.

Wrong again. All these are conclusory statements, offered without evidence and either radically over-simplifying or directly missating the nature of the relations described.

Corroboration for the existence and role of the Invisible Fist: Communism and Fascism

The Invisible Fist explanation is corroborated by two interesting phenomena: the tendency of communist countries to be authoritarian and the tendency of collapsing market economies to embrace fascism. At first glance, it does not seem inevitable that a communist government is incompatible with political freedoms. However, from the Soviet Union to Cambodia, this seems to generally be the case, and it is quite logical. Society desires stability. With the Invisible Fist of the market gone, the iron fist must return.

That's not the history of either the Soviet Union or Cambodia. Was there a noticeably less repressive government in Russia before state socialism? Is there a noticeably unrepressive government there now? Which is "Communist": Cambodia under the Khmer Rouge, or Cambodia under the rule of the Khmer Rouge's mortal enemies, the Vietnamese? Do you really think that Cuba is a more repressive state now than it was under Fulgencio Batista? Or than Nicaragua was under Anastasio Somoza? Where is the repression in Kerala, which has been ruled for two generations by Communists?

A similar process is seen in the rise of European fascism during the Great Depression and the resurgence of European Ultranationalists in the wake of the recent recession. When the market economy falters, the Invisible Fist is weakened and iron fists become an appealing option to a society that does not want change.

When non-market economies falter, social instability rises too. You might want to consider the logical consequences of that readily-demonstrated fact.

Conclusion

People like freedom, but they hate change more, and these two concepts are realistically inseparable.

Two propositions that are undemonstrated, and probably wrong.

We like our system because it provides the stability we crave while facially appearing to be free. However, this freedom is not real. The fist is still here. It is just harder to see.

This is a conclusion only in the sense that it's conclusory. No idea has been actually developed: if one wasn't convinced already after the first graf, nothing said later made any difference.

This essay needs hard, careful editing. What will be left after the subtraction of erroneous or misleading material will be disarticulated bones, pretty much, which will need to be rebuilt in a new frame.

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r3 - 29 Mar 2010 - 17:15:08 - EbenMoglen
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