Law and the Origin of Human Conduct

[aurelieus]

The basis of every legal system is the notion that law is an active directorial force, capable of determining everyone’s conduct, particularly that of lawyers, police and prosecutorial officers, judges, and legislators.
The notion that law is a determinative force is a scientistic attitude, wherein concern is strictly limited to matter in motion. In law the Aristotelian model of the origin of motion is observed, in which human substance is in motion moved by something other than itself, which model is known as the cinesiological principle, wherein language of law is deemed to be a prime mover of persons. However, human ontological freedom is a bird of a different feather, and is not subject to being forcibly moved to action originated by a movent other which is law.
With the publication of Jean Paul Sartre's (1901-1980) ''Being and Nothingness: An Essay on Phenomenological Ontology'' (1943), an avant guard model of the mode of origin of human action is cast in the language of non-being/nothingness/negation. Human action is described as arising ex nihilo, wherein all determination to action is of negative origin, in the sense that every human act is predicated upon desideratum, absence, lack, non-being, via a modus operandi dubbed the ''double nihilation''; and, it is via Sartre's radically negative theory of the nihilative origin of human action, whereby all positivist materialist causalist theory of the origin of a human act, including that entertained by the jurisprudence of decisional and legislated law, is rendered ontologically unintelligible nonsense.
The blindly mistaken, tacit, universal presupposition that published language of law is determinative of human conduct, is defeasible in the light of Sartre’s description of the human ontologicaI modus operandi of the origin of an act:
Whatever each and every one of us is thinking at this instant, that thought involves an intention to bring to pass what is not yet accomplished.
We humans are a perpetual engagement in negation/nothing/non-being constituting our absent, lacking, intended future action. I am constantly, ineluctably, making, i.e., nihilating, the nothing which constitutes my prefigured intended future act(s).
All human acts originate within a milieu of nothingness, which is precisely the nihilative operation of intentional consciousness determining itself to act; hence, the 1674 dictum declaring “determinatio negatio est”, i.e., “determination is negation”, authored by Baruch Spinoza (1634 -1677), which George Wilhelm Hegel ( 1770-1831), restated as “Omnis determinatio est negatio.”, i.e., “All determination is negation.”.
Jean Paul Sartre, (1901-1980), via employment of Hegel’s restatement of Spinoza’s dictum, explains that what already exists in the world does not, cannot, participate in the originative upsurge of a human act, thus:
” No factual state whatever it may be (the political and economic structure of society, the psychological “state,” etc.) is capable by itself of motivating any act whatsoever. For an act is a projection of the for-itself toward what is not, and what is can in no way determine by itself what is not.” (Sartre, J.P., "Being and Nothingness", Chapter Four, “Freedom”). And, further: “But if human reality is action, this means evidently that its determination to action is itself action. If we reject this principle, and if we admit that human reality can be determined to action by a prior state of the world or itself, this amounts to putting a given at the beginning of the series. Then these acts disappear as acts in order to give place to a series of movements...The existence of the act implies its autonomy...Furthermore, if the act is not pure motion, it must be defined by an intention. No matter how this intention is considered, it can be only a surpassing of the given toward a result to be attained. This given, in fact, since it is pure presence, can not get out of itself. Precisely because it is, it is fully and solely what it is. Therefore it can not provide the reason for a phenomenon which derives all its meaning from a result to be attained; that is, from a non-existent…This intention, which is the fundamental structure of human reality, can in no case be explained by a given, not even if it is presented as an emanation from a given.” (Sartre, J. P.,”Being and Nothingness”, Chapter Four, “Freedom”].”
Human conduct originates ex nihilo and, never on the basis of a given factual state of affairs, extant law being the cardinal factual state of affairs to which we now mistakenly, delusionally, ascribe a determinative efficacy within our sociosphere.
Human beings are ontologically barred from being determined to action or inaction by given states of affairs.
Only the ''double nihilation'' is the negation, i.e., the negative process, the means, whereby human action originates/upsurges.
To ''nihilate'' is to make nothing. Within the double nihilation are contained two negative moments wherein nothing is made such that on the one hand, the present is made nothing by transcending it toward the intended project, and, the intended project, as an absent, lacking, unaccomplished objective, constitutes the other negative moment which is precisely the moment wherein consciousness makes the nothing which is the not yet achieved objective of the intended project.
Human existential absurdity designates givens as cause/motive/determinant of one’s action, while, in reality, ontologically, human action exclusively originates ex nihilo, via consciousnesses’ nihilative capacity. (Sartre, J.P., “Being and Nothingness”, Part Four).
Jurisprudential illusion is an instance of human existential absurdity, wherein the illusion consists in blindly, mistakenly, presupposing given language of law to be determinative of human action and inaction; --- jurisprudential illusion is the ontologically unintelligible misconception of mistakenly presupposing given language of law determines one’s acts, and/or, that one determines one’s self to act, or forbear action, by given law. Hence, when a police or prosecutorial officer, magistrate or legislator, tacitly claims to be determining, or determined, to act against any person or persons on the basis of or by given law, that ignorant determinative claim is unintentionally mistaken, dishonest, and dishonorable.

[ClaytonB]

Modern policymaking imagines men like marbles running down an inclined plane and it imagines government policy as obstructions or races erected on that plane that will effectively move men -- like passive marbles under the influence of gravity -- left or right. The power of this illusion consists in the fact that, for the bulk of the public, it is basically true. Most people will choose the lowest-tax retirement investment vehicle. Most people will avoid the parking ticket. And so on. So the carrot and the stick of policy are, indeed, effective in the vast majority of instances.

But the significance of the minority of "law-breakers" is mistakenly assumed to be only as large as their proportion. If just 0.01% of citizens break a given a law, then this law is clearly "effective" and the law-breakers "pay" for their "crimes", the punishments having been adjusted so that it would have been better for them to have just followed the law to begin with. But this is not how things work in actuality --

When punishments for street drug-dealers were drastically increased, many dealers began soliciting the assistance of minors to complete the last step of the deal so that, if it turned out they were selling to the police, it would be a minor arrested and he would be able to cop out on "juvenile first offense", while the dealer himself would skip town and hopefully avoid a warrant. This is just one example out of countless examples that can be mentioned to demonstrate the point that it is not within the power of the State to reconfigure the flow of marbles across the plane howsoever it wishes, no matter how supremely blissful the carrots it offers, nor how abjectly terrifying the stick it wields. Instead, the State, like all of us, is subject to the dictum "Nature, to be commanded, must be obeyed", where "nature" here refers to human nature.

The Influence of Socialist Writers

How did politicians ever come to believe this weird idea that the law could be made to produce what it does not contain — the wealth, science, and religion that, in a positive sense, constitute prosperity? Is it due to the influence of our modern writers on public affairs?

Present-day writers — especially those of the socialist school of thought — base their various theories upon one common hypothesis: They divide mankind into two parts. People in general — with the exception of the writer himself — form the first group. The writer, all alone, forms the second and most important group. Surely this is the weirdest and most conceited notion that ever entered a human brain!

In fact, these writers on public affairs begin by supposing that people have within themselves no means of discernment; no motivation to action. The writers assume that people are inert matter, passive particles, motionless atoms, at best a kind of vegetation indifferent to its own manner of existence. They assume that people are susceptible to being shaped — by the will and hand of another person — into an infinite variety of forms, more or less symmetrical, artistic, and perfected. Moreover, not one of these writers on governmental affairs hesitates to imagine that he himself — under the title of organizer, discoverer, legislator, or founder — is this will and hand, this universal motivating force, this creative power whose sublime mission is to mold these scattered materials — persons — into a society.

These socialist writers look upon people in the same manner that the gardener views his trees. Just as the gardener capriciously shapes the trees into pyramids, parasols, cubes, vases, fans, and other forms, just so does the socialist writer whimsically shape human beings into groups, series, centers, sub-centers, honeycombs, labor-corps, and other variations. And just as the gardener needs axes, pruning hooks, saws, and shears to shape his trees, just so does the socialist writer need the force that he can find only in law to shape human beings. For this purpose, he devises tariff laws, tax laws, relief laws, and school laws.

- Frederic Bastiat, The Law

[aurelieus]

Modern policymaking imagines men like marbles running down an inclined plane and it imagines government policy as obstructions or races erected on that plane that will effectively move men -- like passive marbles under the influence of gravity -- left or right. The power of this illusion consists in the fact that, for the bulk of the public, it is basically true. Most people will choose the lowest-tax retirement investment vehicle. Most people will avoid the parking ticket. And so on. So the carrot and the stick of policy are, indeed, effective in the vast majority of instances.

But the significance of the minority of "law-breakers" is mistakenly assumed to be only as large as their proportion. If just 0.01% of citizens break a given a law, then this law is clearly "effective" and the law-breakers "pay" for their "crimes", the punishments having been adjusted so that it would have been better for them to have just followed the law to begin with. But this is not how things work in actuality --

When punishments for street drug-dealers were drastically increased, many dealers began soliciting the assistance of minors to complete the last step of the deal so that, if it turned out they were selling to the police, it would be a minor arrested and he would be able to cop out on "juvenile first offense", while the dealer himself would skip town and hopefully avoid a warrant. This is just one example out of countless examples that can be mentioned to demonstrate the point that it is not within the power of the State to reconfigure the flow of marbles across the plane howsoever it wishes, no matter how supremely blissful the carrots it offers, nor how abjectly terrifying the stick it wields. Instead, the State, like all of us, is subject to the dictum "Nature, to be commanded, must be obeyed", where "nature" here refers to human nature.

In so far as human beings are concerned, law is not a force; law is not a determinative causal instrument efficient to move a human to action or inaction, because, human conduct in fact cannot possibly be determined by an existing state of affairs like law; for, all human determination to action is negation, originating on the basis of what is not/not yet. Thus, since language of law is not in fact a determinative force among persons, said law can actually neither be obeyed nor disobeyed, for law is not originally a determinative efficacy among human consciousnesses.

Human consciousness/freedom is absolute nothingness, determining itself to action via a doubly nihilative movement unto a non-existing future, and, does not possess a "nature", however, consciousness has a particular ontological structure, predicated entirely upon and within non-being/nothing/nothingness. Given that most of us do not understand how we tick totally in terms of non-being, and, are totally positivist in our understanding of how a human act originates, it is nigh impossible to attempt to impart to the positivist/materialist/causalist other what his freedom actually consists in, and, to convey how, given the ontological structure of the origin of a human act, law is a vain and imbecilic attempt to control human freedom...