On Brainwashing

I often here that suicide bombers are brainwashed morons. Whether this be from a guy at the pub, friends, family, respected political commentators or politicians. Lets make no mistake, they are but it's far more understandable than our brainwashed armed forces. Unlike 'them' 'we' are rich, we're not being constantly bombed, occupied, starved and treated like vermin. An elementary moral truism is with with privilege comes culpability. We are millions of times more privileged than the people we occupy and slaughter. Even those in the slums of Harlem, LA or Brixton.

Our armed forces are far more brainwashed than any suicide bomber. Worse than killing in the name of religion, we kill on command for a state. We take 18 year olds, usually straight of high school with no other prospects, enlist them, put them through grueling boot camps that have no athletic or training goal but to break one's spirit so they blindly follow commands. We then equip these boys with M-16's, M1 Tanks, we equip our pilots with B-52s and tell them to slaughter on command thousands of innocent villagers below. We tell them to purposely target dams so they can starve the population by flooding their lands. We tell them to inflict gruesome, sadistic 'interrogation' methods on their fellow men, because they are designated the 'bad guy' without any evidence, without a court of law reviewing the case. All this because we defer to authority. I recall the most ironic thing back in 1999, there were loads of people whining about Kosovars (or as the locals say 'Kosvans') coming into England and stealing shit. That is astounding. We go round bombing their country, causing a pogrom against them and we have the audacity to complain about them stealing ? I was working with a guy from Nigeria recently, he said something damn funny: "you guys whine about people wanting to come here, yet you go about bombing other countries, keeping others down. Of course people are gonna come here. It's nice here". Another example I can whittle off is the minor £37 million given to Asslym Seekers to go back home, pennies in budget. This sparked outrage in the press and pubs alike. Yet the government gives tens of billions of tax payers money to Northern Rock, a large corporation, money it may never get back. I've not heard one person whine about this.

I think the scene in The Bourne Ultimatum where Bourne's trainer instructs him to kill on command, without any knowledge of his victims crimes is a perfect image of our armed forces. As Emma Goldman put it

The military spirit is the most merciless, heartless and brutal in existence. It fosters an institution for which there is not even a pretense of justification. The soldier, to quote Tolstoi, is a professional man-killer. He does not kill for the love of it, like a savage, or in a passion, like a homicide. He is a cold-blooded, mechanical, obedient tool of his military superiors. He is ready to cut throats or scuttle a ship at the command of his ranking officer, without knowing or, perhaps, caring how, why or wherefore. I am supported in this contention by no less a military light than Gen. Funston. I quote from the latter's communication to the New York Evening Post of June 30, dealing with the case of Private William Buwalda, which caused such a stir all through the Northwest. "The first duty of an officer or enlisted man," says our noble warrior, "is unquestioning obedience and loyalty to the government to which he has sworn allegiance; it makes no difference whether he approves of that government or not."

I wonder how brainwashed we all are.

More lulz from Bush

Apparently he was on the phone to Musharraf and told him, "You can’t be the president and the head of the military at the same time". I wonder if Musharraf informed him that is precisely what the president of the United States is, as commander-in-chief the US Constitution provides the president shall be:

shall be Commander-in-Chief of the Army and Navy of the United
States, and of the Militia of the several States,
when called into the actual Service of the United States

Bush is not ignorant he's CIC. As he constantly goes on about, the nation is at war, you don't change CIC's at a time of war. This is indeed epic lulz.

Furthermore, this is not just of academic importance. The substantive effect of the president being CIC has enabled the executive to effectively unilaterally declare war without Congressional approval, evidenced by a long bloody history in Latin America and Indochina that is so obvious it doesn't even need to be discussed. In the words of Dean Baker, it would have been useful to point this out to readers.

Prototypical example of a lack of empiricism in jurisprudence

Guido Calabresi, in his paper on the roots of Tort law distinguishes criminal and contract law as such:

Contract law reflects the most libertarian set of relationships, in which – once
an entitlement has been given or recognized by the polity – that entitlement can
only be transferred if the parties themselves agree to do so at an individually
determined price. Regulation/criminal law represents the most collective set of
relationships in which the State not only decides who owns what, but determines,
under pain of criminal sanction, when that entitlement can be removed,
transferred or abrogated.

In all of legal theory this is just a given, it is beyond debate. It is seen as a fundamental axiom from which all other theories derive. However as I constantly bang on about, this just isn't the case. There is hardly a distinction between the two when we consider what it means in reality for the majority of the world. Perhaps jurists should consider reading the history of the United States as a great example of what the sanctity of contract meant in reality for the working class, rather than reading hundreds of pages of judgments and law journals.

Some arguments in favor of a Common Agricultural Policy

The European Union's Common Agricultural Policy (CAP) has been under some scrutiny for, well yeah for how long now? Over 25 years? The general mainstream economic opinion, and even the opinion of a large part of 'the left', has been that the EU should move from the current protectionist agricultural policy position towards a more open free trade policy. The arguments on which this is based are usually: it costs too much, unfair towards the developing world farmers and the developing world would profit from an open market and so would European consumers.

Neither of these arguments seem to make sense to me nor weigh up to the possible strategic role of food. I'll try to 'debunk' them by addressing first the economic realities by focussing on what would happen when a more free trade agricultural policy would be achieved. Secondly, something which most people forget, I'll address the political-economic nature of agriculture. Note that I'm arguing in favor of a Common Agricultural Policy, this doesn't mean that I consider the current policy 'amazing', there are lots of things that can and need to be changed (increases of scale, bringing down the number of small scale farmers). But what I'm trying to prove is that it makes sense to be protectionist from a strategic perspective and that it also makes sense from a leftist point of view because opening up of agricultural markets would make the developing world worse of in the longterm.

First, the economics. Current protectionism means that European farmers get higher prices than what they would get under free market conditions. The excess harvest which is the result of overproduction (which has decreased in recent years) usually gets dumped below world (and domestic) market prices in the developing world. Which also means that consumers in those countries profit from it, except the ones who work in agricultural sector (a large part of the workforce) . Now what would happen if we open up markets. There would only be a few few countries capable of being large scale export producers: Argentina, Brazil, the USA, New Zealand, Canada and Australia (because of land, technology and climate).

What would this mean vis à vis the other developing countries? Given that the current dumping prices are below market prices they would suffer from a price increase. Yes this would of course stimulate the export there too (which would be small compared to the big 6), except that would make an even larger part of the local population starve, the ones that can't afford world market prices. However this pricing fixation, which can be debated because I went over it without much caution given that its not the core of my argument, ignores the concessions the developing world would have to make at the WTO to get an agreement with the developed world. They would have to give up protectionist measures in industrial related sectors which would harm their longterm development and economic growth. So the short term gains by an increase in export would be offset by the limits on investment measures the government can take to stimulate local industry. A wiser decision would be for them to focus upon agricultural products designed for export, the ones the developed world doesn't produce itself.

What would it mean for the EU and the European consumers? Well for the latter it won't mean that much given the % of food expenditures in their overall budget. For the majority of European farmers, it would probably lead to bankruptcy. But what would it mean for the European Union as a whole? This brings me to strategic and political-economic part of agriculture. I'd wish everyone had learned a thing or two about foreign energy dependence but apparently they haven't. Since there are only a couple countries with the possibility to 'feed the world' (as the Brazilians like to say of themselves) it would make us dependent on a couple of countries. Given that Argentina has already suspended the export of beef in the past because of domestic price concerns and the Ukraine appears to do the same with its sun flower oil, it doesn't seem wise to me to be too dependent on imports when it concerns such a basic necessity as food. Which could undoubtedly be used the same strategic way as oil and gas are used today, especially if it would be in the hands of only 6 producers.

Racial sensivity in hypermode!

It's everywhere in the papers and the TV news. James Watson has made some comments about black people being 'dumber' than white folk. There's been angry letters written into newspapers, fellow scientists denouncing him in the strongest terms and lots of other hypersensitive stuff.

Firstly, the man is a scientist. Lets take his assertion as a hypothesis and test it against the data. It clearly doesn't fit, so just say so. I'm not sure why to get hyper over it. It's no worse than recent studies showing short people have shitty lives. It's a hypothesis, test it against the data and report back in a sober fashion. If Watson had meant it seriously he should have written a paper on it, he didn't, so let it be. The height study was a peer-reviewed scholarly study, so that has weight.

Judiciary can judge scientific facts

A couple weeks ago I posted

If suddenly the legislature decided to legislate on scientific facts no one would use them to analyse what the actual law is, because those facts existed long prior to law.

It seems the judiciary has taken on the mantel of 'legislating' scientific facts. Al Gore's film, An Inconvenient Truth has some scientific errors in it and does not reflect the scientific consensus. I'm not sure why Justice Barton's LLB qualifies him to be a judge on scientific facts, as I'm sure no climate scientist would argue their PhD entitles them to make declarations of law (even though the climate scientist is far better educated). But nonetheless, this is how the decision turned out. If I had a kid in school I'd want to bring a complaint that free market economics taught at A-Level has no basis on empirical facts and is rather an ideological sword to stab the third world with. A judge could actually decide on that, because economics is no where near as complicated as climate science. But I'm sure this will never happen.

The decision is a surprise to me because in medical tort cases the test for breach of duty relies heavily on expert testimony, not judges reading medical journals which they cant possibly comprehend.

Best summary of logical-positivism

if two people have differing opinions but no way of settling their differences through empirical facts then their conflicting statements are meaningless and they should go and have a beer instead - Jim Al-Khalili

Humans are weird

Mayan royalty threaded cords through their penises as their assembled subjects watched in awe. In an annual sun dance, Blackfoot and Arapahoe males of the American plains tore their flesh open as they danced backward from a pole to which they were attached by thongs hooked into their chests. Men of traditional Hawaiian and Australian aboriginal cultures ritualistically cut their penises in order to induce bleeding. [From Ehrenreich, Blood Rites 26 ]

Maybe emos who cut themselves have a genetic excuse?

Anarchy in the UK and the very serious people

A 17 year old boy in Britain who allegedly had a copy of the "The Anarchist Cookbook" has been charged with two counts of terrorism-related charges under the Terrorism Act 2000. Luckily he didn't have a copy of the Improvised Munitions Handbook by the US Department of Defense.

A quick Google news UK search shows that this story is mentioned less than 15 times, unlike the Ayaan Hirsi Ali story which has been mentioned over a 100 times. The latter with the obvious outcries by the very serious people about the restrictions of freedom of speech by the Dutch government, because the Dutch government doesn't want to pay over 2 million euros in protection fees for her while she works for the neocon American Enterprise Institute in the US. If only the British boy had insulted some Muslims instead of reading a book. That would have resulted in all the very serious people automatically writing columns and opinion pieces to his defense. Even if the boy was, according to the BBC story, "wearing a baggy, blue hooded top". Right?

Why "on average" in econspeak is bad policy

Even libertarians are sometimes right, well almost right at least. In an opinion piece on electricity deregulation in The Wall Street Journal (text available at the CATO institute). Peter van Doren and Jerry Taylor argue correctly that "regulation certainly delivers lower prices than the market during shortages. But regulation delivers higher prices during times of relative abundance".

Regulation delivers lower prices during shortages, because the end price is a weighed average of the cost of the different producers. So when for instance natural gas prices increase, the price increase is only based on the weight of natural gas in the total production chain. In a deregulated market, the price during shortages would be based on the price charged by the most expensive plant. This price would obviously be higher than the weighed price. During the times of abundance it's the opposite.

So should policy makers let markets dictate the price or not? Well, unsurprisingly, the guys from the CATO institute argue that we should because "in sum, allowing markets to dictate electricity prices is a good thing for consumers, even if they are sometimes higher than under regulation." So according to them consumers are on average better off, because times of abundance will outweigh the shortages and this will result in a net benefit for consumers.

I disagree, there are more convincing arguments for policy makers to be in favor of regulation (I'll ignore the obvious argument of a finite resources) :

1. During market shortages the price increase under deregulation will make it impossible for people with low incomes to be able to pay for electricity (which is a basic necessity in modern day life). Besides this being bad in itself. This might result in negative publicity and a voter backlash against politicians who favored regulation.
2. The sudden rise of prices during shortages (under deregulation) will be felt throughout the population, the negative impact of this on politicians is obvious. More stable prices under regulation are to be favored.
3. Stable prises make longterm planning and investment easier for both business and private consumers. Sudden spikes in prices and an unstable energy market will put investors off.

The article further makes some interesting arguments in favor of bundling both production and transportation of electricity. Arguments I agree with. Too bad the EU has just favored unbundling and further deregulation. Why? Probably because deregulation and unbundling is a good job opportunity for consultants, free trade economists, lawyers and bankers.

Free will is against the laws of physics

Without indulging in Cartesian metaphysics which posits the mind and body are in two separate worlds; the body in the material, the mind in the meta-physical, and assuming that we are all constituted purely of sub-atomic particles (quarks, leptons) i.e. a materialist conception, is free will even a possibility? I don't think it is.

Take Newtonian mechanics where the universe is entirely predictable if we had enough information (spin, velocity, mass, vector etc.). If we had all this information Newtonian mechanics can predict the behaviour of every particle in the universe therefore showing us the future. As each particle is inherently predictable, so are their reactions when they interact. This is as deterministic as a system gets and there can be no free will. How can one's will be free when it is merely the result of sub-atomic interactions that are always knowable. To truly possess free will, one would have to break Newtons immutable laws.

Sadly, this nice predictable view of the world did not last with the discovery of quantum mechanics. At the quantum level it is impossible to ascertain the crucial variables of the sub-atomic particles (position,velocity) together. Furthermore in the quantum world you can never be certain about anything, merely assign probabilities determined by a wave function associated with each particle.

there are features of the universe, like the position and velocity of a particle, that cannot be known with complete precision. Such uncertain aspects of the microscopic world become ever more severe, as the distance and time scales on which they are considered become ever smaller. Particles and fields undulate and jump between all possible values consistent with the quantum uncertainty. This implies that the microscopic realm is a rolling frenzy, awash in a violent sea of quantum fluctuations.

This is seen by many as saving free will, since we cannot know predict anything with certainty - only assign a probability. Huxley famously argued after discovering his Action potential that quantum uncertainty lives between the subatomic interactions that occur cell membranes which is where free will or god 'lives'. And on the more extreme side are biologists like Bruce Lipton and psycholgists like S.D Hart who fundamentally mis-interpret quantum uncertainity.

The premise of this train of thought is that free will is anything which physics cannot predict with absolute certainty. However, this is a vacuous, hollow definition of free will. How are random quantum fluctuations actually free? They're completely capricious and totally random. They are no more free than a ball is on a roulette wheel to land on any random number.

Levels of determinism

There seem to me differing levels of determinism in philosophy and science in regards to human activity. There are significantly 'blurry' abstractions like psychology that show how an abuser is likely to abuse or how phobias are learned from parents. These then restrict the possible behaviour that a person can do. How free is a child that was bullied by his farther, not free to bully other kids? Then it gets progressively clearer, there's sociobiology or genetic-determinism or evolutionary-psychology, our behaviour is a result of our genes with some environmental conditioning. A socio-biologist would postulate that gene X results in a higher probability of behaviour Y. Then it progresses to the most clear - particle physics which seeks casual certainty** - our behaviour is determined by subatomic particles interacting which we have no control over, whatsoever. They are the cause our behaviour is the effect; if we were to break from this cycle of cause and effect it would would break the laws of physics.

Predictability epistemology

There's the famous 'three body problem' in physics, we can describe the behaviour of one body in isolation, or a pair of bodies interacting, but put together three and the equations become unimaginably complex a fortiori for a human brain made up of trillions of particles. I'm not denying we cannot possibly know the future with absolute causal certainty, we can only use abstractions (psychology, socio-biology etc.) but this fact cannot lead to the conclusion that we have free will. Our epistemological shortcomings have no bearing on the question.

A good example of this problem and how it can lead to predictable outcomes is the tossing of a coin. Tossed once, classical mechanics has no way of predicting the outcome the variables are just unimaginably complicated. However, tossed 100 times the laws of probability can give us a probability of either heads or tales as 0.5. The probability result of 0.5 is an abstraction of mechanical interactions that we cannot possibly fathom.

In conclusion, our behaviour is the reaction of subatomic particles in the quantum world, how can we truly have free will? We are merely the result of these interactions and cannot change that. Heisenberg's Uncertainty Principle does not save free will, merely observing yourself does not change anything *

Notes

*If you do think that you misunderstandthe importance of Planck’s constant (ћ). If ћ were a big value then indeed we could not predict anything because quantum effects would apply to bigger macroscopic objects. But because ћ is tiny (1.05 x 10^-27) quantum mechanics only ruins predictive ability at the tiny microscopic subatomic level. It is simply incorrect to argue it does at the macroscopic level. And since human brains are made up of billions of cells and resulting human behaviour is a combination of cells, it qualifies as a macroscopic object. Furthermore, as I argued above exotic quantum effects are no freer than a roulette ball on a wheel.

** Quantum uncertainity obviously applies here.

arXiv:quant-ph/9711064v1 p7 on the applicability of quantum effects to Hodgkin-Huxley equation.

Here - Using a non Copenhagen interpretation, but rather Von Nuemann's the act of conscious observation collapses the wave function and chooses from a range of alternative possibilities. Rather than this being completely random as in Copenhagen, it's chosen by the brain. Free will? I don't see why it needs to be an actual concious observer. Our constiution doens't make us special, we're made of the same stuff as the rest of the universe.

Here - Quantum effects occur between synaptic nodes as wave function spreads across the gaps between synapses. Therefore the formulation of a thought, which is a firing of snypases has an element of choosing between possible outcomes and collapsing the wave function. However, doesn't withstand the critique that our epistemological shortcomings don't have bearing on the matter of free will. Throws determinism out but does not make a case of free will.

We're neutral except when you're black, brown...

In Europe's on going "quest" to become more racist and backwards, the Swiss People's Party (Schweizerische Volkspartei) is next. Currently the largest party party in the Swiss lower house with 55 out of 200 seats. And with a general election in 2 weeks (21st of october), which it appears it'll win again means it'll mark another downturn for the "old" continent.

Currently the party is already holding a campaign to gain signatures for a referendum which will enable judges to deport foreign criminals (and their families in case of a minor). This comes after last years referendum which resulted in Switzerland adopting some of the strictest asylum and immigration laws in Europe. Lets hope the Swiss get some intelligence before the next elections, anyway here is some of their propaganda which is typical right wing populist stuff:

"A priori" reasoning disagreement

In the previous post Dush argues that a priori reasoning is impossible, at least in a Darwinian sense. Meaning that what we consider currently a priori knowledge or reasoning, as for instance linguistic capabilities (see Chomsky, Pinker, ..), is the result of experience of our distant ancestors. He sums up his argument like this:

Postulating natural selection has lead to us evolving the faculty of reasoning and the ability to perform mathematical operations in abstract. However far from being outside experience, the very reason we evolved this faculty is because of our genetic constitution. It is precisely the experience of our distant ancestors over billions of years we can reason a priori, if the environment had not lead natural selection to select the faculty of mathematics, we could not reason in such a manor.

This, in my opinion, leads to the question of why "species" would start experiencing in the first place? And I think the answer to this question is actually an example of a priori knowledge or reasoning.

Namely trying to survive and procreate, if these drives wouldn't be "a priori", evolution would be at a literal stand still. Of course this might be also a semantical argument if one doesn't consider concepts as survival and procreation worthy to be called reasoning.

Is there such a concept of "A priori" reasoning?

A priori reasoning is reasoning without experience nor empirical evidence:

A priori knowkedge is knowledge which can be established independently of experience or reasoning from experience. Examples of a priori truths: ‘Bachelors are male’; ‘2+2=4’. ANALYTIC truths are a priori

I realised yesterday, much of what I despise in jurisprudence, economics and philosophy in general is down to a priori reasoning. I guess that makes me a logical positivist or empircist. I just think it is completely fruitless to reason without looking at the world. But the more fundamental question is: can you even begin to reason without experience?

I submit you cannot. Pure axiomatic systems are often given as examples of pure a priori reasoning i.e. mathematics, so lets take that. In a Darwinian analysis we are copies of information that has been generated, imperfectly and with mutations, over billions of years. Postulating natural selection has lead to us evolving the faculty of reasoning and the ability to perform mathematical operations in abstract. However far from being outside experience, the very reason we evolved this faculty is because of our genetic constitution. It is precisely the experience of our distant ancestors over billions of years we can reason a priori, if the environment had not lead natural selection to select the faculty of mathematics, we could not reason in such a manor.

Perhaps this is fanciful semantics. I just cannot fathom how one could reason, instantly, without any experience. Perhaps this is what Socrates theory of universal forms would look like with a Darwinian spin. His theory concluded:

we do not learn anything - we remember what we already know; all the knowledge of forms or universals, is already in our minds.

Infinity, The Universe and Probablity

A couple years ago I thought in an infinite universe anything that has the merest possibility of occurring, will occur. So the chance of me sitting here turning into a rock may be 0.01e99 (no maths notation on blogger:(], but assuming an infinite universe and basic probability theory:

∞ * 0.01e-99= ∞

i.e. that is something (probable) rather than nothing (impossible). Thinking of it without mathematical notation we can just use the infinte Infinite monkey theorem:

The infinite monkey theorem states that a monkey hitting keys at random on a tpewriter keyboard for an infinite amount of time will almost surely type a particular chosen text, such as the complete works of William Shakespeare

I always assumed however that:

∞ * 0 = 0

Meaning that, an event that is simply impossible, will never occur because infinity multiplied by an impossible probability (0) is still zero. However, reading The God Delusion I came over Aldous Huxley's mathematical 'proof' of the existence of god

You know the formula: m over nought equals infinity, m being any positive number? Well, why not reduce the equation to a simpler form by multiplying both sides by nought? In which case, you have m equals infinity times nought. That is to say that a positive number is the product of zero and infinity. Doesn’t that demonstrate the creation of the universe by an infinite power out of nothing? [p108 GD]

I don't think this is a decent proof for the existence of god, in googling this I came across this proof that ∞ * 0 is not 1:

no one can EVER finish multiplying zero times infinity, therefore the answer will always be undefined. Even though logic dictates that the answer will never not be zero, this answer will never be reached. Therefore, trying to multiple zero times infinity is undefined.

Therefore, postulating the universe is indeed infinite (many worlds, brane worlds parallel or sequential via big bangs/crunches) then nothing, absolutely nothing, is impossible. Because the product of 0 and infinity != 0.

I don't think this is just of philosophical significance, because many current theories in cosmology postulate infinite parallel universes/branes etc.

Is the law the gunman situation writ-large?

Herbert Hart argues:

“The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory. Yet this apparently simple characteristic of law is not in fact a simple one”

An easy way to show it is the gunman situation,

“the gunman orders his victim to hand over his purse and threatens to shoot if he refuses; if the victim complies we refer to the way in which he was forced to do so by saying he was obliged to do so.”. [Hart:6]

To Austin, this, that is, an order backed by threat is “the key to the science of jurisprudence”. However instinctively we cannot think the law is the gunman situation writ large, which Austin (who heavily borrowed from Hobbes) theory would have necessarily conclude. Legal scholarship has endorsed Hart’s idea that the law isn’t the gunman situation writ-large. The command theory of law is ‘demolished’ [JG Riddall:31] by Hart for three main reasons, one of which has 3 parts:

Laws as we know them are not like orders backed by threats –

• Some laws are, Hart concedes the criminal law is. However there are also many types of law which do not resemble orders backed by threats. Hart terms these ‘power conferring rules’ for they “provide individuals with facilities for realising their wishes by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties.” Giving examples such as contracts and marriage.
• In Austin’s scheme the law maker is not bound by the command he gives. Many systems of law hold the “government of laws and not men” principle, which means sovereigns are also bound. What a legislator does is to exercise power conferred by rules.
• Not all laws stem from a deliberate datable act. An order backed by threat has to.

I’d argue that the law is, in fact, the gunman situation writ large. It’s uncontroversial to say the criminal law is but Hart’s critique argues that power conferring rules that enable contracts and marriages cannot be reduced to a threat. Any attempt to treat a void contract or marriage as sanction is an absurdity; a nullity cannot be a sanction.

In my view, marriage has nothing to do with the law. It has existed in even the ‘pre-legal’ societies Hart himself cites from Anthropological studies. Marriage law does not enable marriage; people got married long before complicated legal procedures had to be undertaken. The mere congruence of marriages and family law therefore cannot elucidate any light on law as we know it. If suddenly the legislature decided to legislate on scientific facts no one would use them to analyse what the actual law is, because those facts existed long prior to law.

I agree that contract law unlike marriage, is an example of law ‘properly so called’ to borrow Austin’s term. However, at its heart it is as coercive as a penal code, this is easily seen as soon as we adduce empirical evidence rather than relying on ex-hypothesi arguments as Hart does. Contract law crucially indulges in a legal fiction that both parties are of equal bargaining power. Ex hypotesi, this looks like a pure power conferring rule and not one backed by threat. But in reality it is nothing of the sort. Take an employment contract, one party (employer) has massively greater power than the other (employee). The compulsion to enter into the labour market and sign a contract cannot be a free choice, if one does not rent themselves as labour, one starves. The history of the war against organised labour in the US and UK clearly show any attempt at parity in bargaining power will be heavily stamped upon by the governing classes and in Latin America you'd be slaughtered. The very real sanction in this case is either starve (assuming no welfare state) or have the state crush any attempts to organise.

Take another common contract, an ISP or mobile phone provider. Consumers in these situations are ‘term takers’, you cannot begin to negotiate terms you’re just one atomized individual bargaining with a huge corporation. Of course there’s always the effect of competition, but giving that so many industries act in concert (illegally) and competition enforcement is so understaffed, consumers have little choice.

And we can go through other instances of non-criminal law that is inherently coercive. Take private property, which I’ve already argued is. Any law that is not coercive in nature is, most probably, that we humans would still do in the absence of a statute or case law. It’d be part of, what Kropotkin termed “Maxims of society”. The only difficulty in boiling law down to the gunman situation is the refusal of constitutional law to succumb to a coercion based analysis. Laws that state what courts have jurisdiction over what matters, who has the right to legislate cannot be boiled down to force. They truly are power conferring rules.

So then, Hart's distinction between primary and secondary rules, the latter being power conferring, the former orders backed by threats have are not great illuminating tools for understanding law. All they are merely saying is that what constitutes a legal system is a constitution, which sets up a judiciary, legislature and executive - as Johnathan Cohen has argued back in 1962. This, obviously, is a very western chauvinistic point of view and ruins any universality of Hart's legal theory applying to all systems in all places.