Toward a Post-Apocalyptic Rule of Law
“The outer world has surpassed science fiction.”
“Information has become a form of garbage, not only incapable of answering the most fundamental human questions but barely useful in providing coherent direction to the solution of even mundane problems.”
The world runs by law and treaties, or so it sometimes seems; so, one can hope; the granite of the careening world held in gossamer nets. And if one were to argue that the world actually run by way of guns in your face, as Mao so trenchantly pointed out, still, the guns often get aimed by way of laws and treaties. If you give up on sentences you end up in a world of gangsters and thieves and naked force hauled into the street at night to be clubbed or shot or jailed.13
1.1. The Legal Question
1.1.2. Intellectual History: From Technocracy to Technopoly
[T]wo opposing world-views—the technological and the traditional—coexisted in uneasy tension. The technological was the stronger, of course, but the tradition was there—still functional, still exerting influence, still too much alive to ignore. This is what we find documented not only in Mark Twain but in the poetry of Walt Whitman, the speeches of Abraham Lincoln, the prose of Thoreau, the philosophy of Emerson, the novels of Hawthorne and Melville, and, most vividly of all, in Alexis de Tocqueville’s monumental Democracy in America. In a word, two distinct thought-worlds were rubbing against each other in nineteenth-century America…With the rise of Technopoly, one of those thought-words disappears. Technopoly eliminates alternatives to itself in precisely the way Aldous Huxley outlined in Brave New World. It did not make them illegal. It does not make them immoral. It does not even make them unpopular. It makes them invisible and therefore irrelevant. And it does so by redefining what we mean by religion, by art, by family, by politics, by history, by truth, by privacy, by intelligence, so that our definitions fit its new requirements. Technopoly, in other words, is totalitarian technocracy.43
Taylor’s book, the Principles of Scientific Management, published in 1911, contains the first explicit and formal outline of the assumptions of the thought-world of Technopoly. These include the beliefs that the primary, if not the only, goal of human labor and thought is efficiency; that technical calculation is in all respects superior to human judgment; that in fact human judgment cannot be trusted, because it is plagued by laxity, ambiguity, and unnecessary complexity; that subjectivity is an obstacle to clear thinking; that what cannot be measured either does not exist or is of no value; and that the affairs of citizens are best guided and conducted by experts.44
Like the Sorcerer’s Apprentice, we are awash in information. And all the sorcerer has left us is a broom. Information has become a form of garbage, not only incapable of answering the most fundamental human questions but barely useful in providing coherent direction to the solution of even mundane problems. To say it still another way: The milieu in which Technopoly flourishes is one in which the tie between information and human purpose has been severed, i.e., the information appears indiscriminately, directed at no one in particular, in enormous volume and at high speed, and disconnected from theory, meaning, or purpose…All of this has called into being a new world.46
Those who feel most comfortable in Technopoly are those who are convinced that technical progress is humanity’s supreme achievement and the instrument by which our most profound dilemmas can be solved. They also believe that the information is an unmixed blessing, which through its continued and uncontrolled production and dissemination offers increased freedom, creativity, and peace of mind. The fact that information does none of these things—but quite the opposite—seems to change few opinions, for such unwavering beliefs are an inevitable product of the structure of Technopoly.47
In particular, Technopoly flourishes when the defenses against information breakdown… When the supply of information is no longer controllable, a general breakdown in psychic tranquility and social purpose occurs. Without defenses, people have no way of finding meaning in their experiences, lose their capacity to remember, and have difficulty imagining reasonable futures…. One way of defining Technopoly, then, is to say it is what happens to a society when the defenses against information glut have broken down. It is what happens when institutional life becomes inadequate to cope with too much information. It is what happens when a culture, overcome by information generated by technology, tries to employ technology itself as a means of providing clear direction and human purpose. The effort is mostly doomed to failure. Though it is sometimes possible to use a disease as a cure for itself, this occurs only when we are fully aware of the process by which disease is normally held in check.48
1.1.3. Rule of Law as the Destruction of Information?
In even the simplest law case, thousands of events may have had a bearing on the dispute, and it well understood that, if they were all permitted entry, there could be no theory of due process, trial would have no end, law itself would be reduced to meaninglessness. In short, the Rule of Law is concerned with the ‘destruction’ of information.55
[A]lthough legal theory has been taxed to the limit by new information from diverse sources—biology, psychology, and sociology, among them—the rules governing relevance have remained fairly stable. This may account for Americans over use of the courts as a means of finding coherence and stability. As other institutions become unusable as mechanisms for the control of wanton information, the courts stand as a final arbiter of truth. For how long, no one knows.57
1.1.4. Informational Virality: Vaccinating against Forms of Contagion Virtual and Real
As Raymond Gozzi, Jr., discovered in his analysis of how the mass media described the  event, newspapers noted that the computers were ‘infected,’ that the virus was ‘virulent’ and ‘contagious,’ that attempts were made to ‘quarantine’ the infected computers, that attempts were also made to ‘sterilize’ the network, and that programmers hoped to develop a ‘vaccine’ so that computers could be ‘inoculated’ against new attack…59
1.1.5. Contagion: Who Is the Virus and Who Is the Host?
1.1.6. Information Glut and the Marketplace of Ideas: Normalizing the Unprecedented
It is often said that these new [right-wing nationalist/populist authoritarian] political figures—Trump, to be sure, but many others in the world today—resemble fascists of the 1930s. There is indeed a certain resemblance. But, alas, there is also a major difference: today’s new political figures do not have to confront the powerful and intractable enemies that were the Soviet Union and the communist parties. In fact, we could speak of these new figures in terms of a kind of ‘democratic fascism’, a paradoxical but effective designation. After all, the Berlusconis, the Sarkozys, the Le Pens, the Trumps, are operating inside the democratic apparatus, with its elections, its oppositions, its scandals, etc. But with this apparatus, they are playing a different score, another music. This is certainly the case with Trump, who is a racist, a male chauvinist, violent—all of which are fascist tendencies—but who, in addition, displays a contempt for logic and rationality and a muffled hatred of intellectuals. The music proper to this type of democratic fascism is a discourse that does not worry in the least bit about coherence, a discourse of impulse, comfortable with a few nighttime tweets, and that imposes a sort of dislocation of language, positively flaunting its ability to say everything and its opposite. For these new political figures, the aim of language is no longer to explain anything or to defend a point of view in an articulate manner. Its aim is to produce affects, which are used to create a fleetingly powerful unity, largely artificial but capable of being exploited in the moment.70
1.2. Literature as Primary Source: Mining Literary and Pop Culture for Meaning
1.2.1. What Is Stranger? Truth or Fiction?
1.2.2. Valuing Speculation
1.2.3. In the Absence of the Rule of Law: Law and Literature as Legal Theory?
1.2.5. Affectivity: What Fear of Contagion Feels Like
Living in the modern world, we have a vast array of personal, social, and technological ways in which we can fight fear, avoid it, or simply make it disappear. Yet at the heart of all of them is our ability to foresee and to viscerally imagine the consequences of futures that we would rather avoid.97
1.2.6. Mass Cultism
1.3. Re-Examining the Rule of Law for the 21st Century Media Ecosystem
1.3.1. Biopolitics: Thinking about Our Central Nervous Systems, Bodies, and Minds as Components of Collective Subjectivity
The dangers of information on the loose may be understood by the analogy…An immune system, in short, destroys unwanted cells. All societies have institutions and techniques that function as does a biological immune system. Their purpose is to maintain the balance between the old and the new, between novelty and tradition, between meaning and conceptual disorder, and they do so by ‘destroying’ unwanted information.107
1.3.2. Affectivity (Over Rationality?)
1.3.3. Cult of the Personality over Impersonal Rule
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Conflicts of Interest
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(Ibid., p. 73). Postman uses the term “information chaos” and it is used interchangeably herein with “information overload”. See Footnote 4 below.
The phrase “information overload” has been used by a variety of authors to mean a variety of related ideas, all of which relate to the quantity of available information in our culture, and the difficulty or impossibility of rationally processing that information and applying or acting on it meaningfully. Most of the key works have come from the fields of management and behaviourism. For the coinage of the term see (Gross 1964; Toffler  1971). For more recent usages see (Speier et al. 1999; Blaire 2011; Horrigan 2016; Lincoln 2011; Roetzel 2019). From the perspective of popular politics, conspiracy theories and the Trump era see (Rauch 2021).
See Section 1.1 below.
Postman, Footnote 2 above at 51.
Although empirical evidence of global declines in the Rule of Law can of course be disputed, there is significant data backing the observation. To the extent such things are measurable in the same way as natural science data about atmospheric pollution and changes in ocean or air temperature, Freedom House reports 15 years of decline in all regions across the world in 7 categories: electoral process, political pluralism and participation, functioning of government, freedom of expression and belief, associational and organizational rights, the rule of law, and personal autonomy and individual rights. See (Bussey and Buyon 2021, p. 16); see also (World Justice Project 2020a), see e.g., (World Justice Project 2020b); Human Rights Watch World Report 2021 (at 7 in the preface, written by Executive Director, Kenneth Roth, the report itself is framed as a reflection of rising “autocratic tendencies” at the global level). See Contra (Versteeg and Ginsburg 2017) for the argument that most purported empirical or quantitative studies of decline in the Rule of Law are really more narrowly capturing indicators about the “impartial administration of justice” which is of course a part of what is understood by the Rule of Law but reflects a thin and formal understanding inadequately attuned to the thick and substantive understanding of the concept, inclusive of its normative commitments to liberal democracy counterbalanced by the protection of minority rights, etc.
See Section 1.1 below.
See Section 1.2 below.
These include various forms of unconscious bias and cognitive short circuits, which the social and behaviour sciences continue to uncover around things like risk perception and the personal level as well as more broadly at the social, communal, or even species level. See e.g., (Javanbakht and Capotescu 2020; Allen and Marco 2020; Slovic 2000; Slovic and Peters 2006). See more recently (Kunreuther and Slovic 2021).
See Section 1.3 below.
(Ibid., p. 358).
At the intersection of affect and politics see (Durnová 2019). From a popular sociological perspective see (Jacoby 2009) tracing out the deep sociological roots of social Darwinism and pseudo-science in America’s history and how that relates to the treatment of unequally valid ideas and theories as equally valid in the public and popular imagining. In a similar vein but with a greater emphasis on the role of technology see (Nichols 2018).
See Footnote 11 above.
(Fukuyama  2006). See Contra (Vattimo  1988, vol. 5—distinguishing between postmodernity as the end of history in the disastrous or dystopic sense from a more nuanced understanding in the context of a nuclearized world that the possibility of “atomic catastrophe” might permit us to finally understand that “the idea of history as a unitary process is rapidly dissolving”).
This is the essence of Ronald Dworkin’s imagining of the Herculean judge or the idea of the common law judgment as a chapter in a chain novel “working itself pure”. For a forceful critique of the teleological aspects of this theory of adjudication see (Hutchinson 2005, pp. 71, 86). For a discussion of the role and value of narrative and storytelling to answering the fundamental question of what the law is at the intersection of Indigenous and non-Indigenous legal traditions in Canada, see (Borrows 2010), see e.g., at 118: “In order to have the common law, civil law, and Indigenous law work together in more harmonious ways, we will have to find better words, phrases, and frameworks to acknowledge and facilitate their coexistence”.
Some modern natural lawyers have attempted to lay out such decisive list of human goods, see e.g., (Finnis  2011) (who stipulates the universal values of life, knowledge, play, aesthetic experience, sociability, practical reasonableness and religion). Some liberal political philosophers have attempted to do the same, see e.g., (Nussbaum 2000) (arguing that for a theory of social ordering to be just it must do certain things, e.g., recognize need of all human beings for food, shelter, and other basic resources for survival, give an account of procedures through which existing rules, laws, and norms can be changed, etc.). Among those writing on the Rule of Law there have also been attempts to set down such lists, see e.g., (Bingham  2011) (distilling the Rule of Law into foundational rules, e.g., The law must be accessible and intelligible; questions of right and liability should be determined by the application of the law and not the exercise of discretion, the law should apply equally to all unless objective differences justify differentiation, etc.).
This can and should correspond to a critique of the integration/accommodation binary which continues to dominate constitutional design debates. See (Meyers 2010).
See Footnote 15 above, widely available popular scientific literature warning of inevitability of global pandemic and consequences thereof.
While the UN continues to report lower numbers of nuclear weapons, today’s forces are vastly more capable and instead of planning for nuclear disarmament, the nuclear-armed states appear to plan to retain large arsenals for the indefinite future. See (Kristensen and Korda 2020) “Disarmament Resolutions and Decisions of the Seventy-fourth Session of the United Nations General Assembly” in (UN 2019a). In a more philosophical register see Vattimo, Footnote 18 above at 5 (distinguishing between postmodernity as the end of history in the disastrous or dystopic sense from a more nuanced understanding in the context of a nuclearized world that the possibility of “atomic catastrophe” might permit us to finally understand that “the idea of history as a unitary process is rapidly dissolving”). For a palpably realist, well researched and executed imagining of a near future exchange of so called “tactical” nuclear weapons between the US and China see (Ackerman and Stavridis 2021) as discussed below in Section 1.2 below.
See footnotes 7–8 above.
In the context of qualitative case studies drawn from the Canada, the US and the UK, see Footnote 7 above.
(Ibid., p. 46).
(Ibid., p. 111).
Deleuze and Guattari (ibid., p. 22).
There are two ways to do this pursuant to the US Constitution. The first is by a simple majority of the Senate after a conviction at trial for impeachable offences, this obviously did not happen on the two occasions it was attempted. The other is a more obscure approach which has not been tried, see Amendment XIV §3. See also (Trautman 2019, p. 529).
United States Constitution, Amendment XXII § 1.
See Meyers, J. “What We Talk About When We Talk About the Rule of Law” Footnote 7 above.
Postman Footnote 2 above at 175.
See Footnote 11 above.
See Meyers, J. “What We Talk About When We Talk About the Rule of Law”, Footnote 7 above.
Postman Footnote 2 above at 48.
(Ibid., p. 51).
Around the same time that Postman was writing, Antonio Negri made a similar argument (Negri  1999, pp. 153, 178–81, 242–47).
Postman Footnote 2 above at 69–70.
(Ibid., p. 71).
(Ibid., pp. 71–72).
(Ibid., p. 73).
(Ibid., p. 74).
Postman, Footnote 2 above at 73.
Postman, Footnote 2 above at 74.
Postman Footnote 2 above at 74.
In Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (Para 171), Chief Justice Wagner of the Supreme Court of Canada recognized climate change as an “existential threat to human life in Canada and around the world”.
Postman Footnote 2 above at 113–14.
In her book on the way that the climate emergency has altered culture and consciousness, Sally Gillespie describes the psychological complexity behind the existential threat that climate change poses. See Gillespie Footnote 25 above. See also (Robinson 2014).
See e.g., (Napoli 2018).
See generally (Larson 2021).
See Brown, Rex, Herrera et al., Footnote 62 above.
(Klingberg 2009). Also see generally Footnote 4 above.
(Ibid., p. 1).
Badiou, A. Footnotee 27 above at 13–14.
Available online via Netflix.
Roth, P. Footnote 71 above.
See Footnote 24 above re UN & scientific reporting on nuclear weapons proliferation and disarmament efforts.
Elliot Ackerman & Admiral James Stavridis Footnote 24 above.
Larson, Footnote 73 above.
Roth, Footnote 71 above at 64.
Larson, Footnote 73 above.
See Footnote 15 above on popular science reporting on likelihood of pandemic disease and preparedness required.
For a powerful meditation on binaries and dialectical thinking, specifically of their productive, transformative and constitutive capacities see (Jameson 2009). Arguing that it is mediation itself which permits the dialectical relationship to form meaning and bear fruit: “Mediation is not only the ‘black box’ through which one state passes, on its mysterious metamorphosis into a radically different one. It also names the relationship itself, the very inner link of the binary opposition, the equal sign which can signify either identity or difference, or indeed both at the same time.”
This form of “materialist” narrative analysis is inspired by the work of Peter Goodrich. Goodrich, Footnote 30 above at 27 “while law seeks to portray a system of rules that are general in nature and abstract in their orderings, this self-image omits a key aspect of so-called black letter law…which is that even its letters are material, coloured, haptic, housed and bound or now more often flickering across a screen but nonetheless special organized, material and mattering.” Or at 28, “The very word for law derives from nome and thence nomos—from which we derive the normative or rule bound—means earth, dirt, the humus, in the human. Matter precedes law.” Again at 39, “materiality precedes classification and normative iterations, however age old they may be”. Making the same point while highlighting the subtlety of meaning conveyed by the written word at 44: “The letters of the law arrive already marked matterphorically and metaphorically.”
The coinage is traceable Foucault’s 17 March 1976 Lecture at the College to France, entitled “Society Must Be Defended”. These essays along with other seminal works on biopolitics are usefully published together in (Campbell and Sitze 2013). For a contemporary reading of biopolitics, see (Negri 2008; Hardt and Negri 2009).
A note about terminology, the English language translators of Gilles Deleuze and Felix Guatarri’s A Thousand Plateaus explain that their usage of the term “affect” or “affectation” is translated from the French “l’affect” as much as the more ancient usage in Spinoza which Deleuze and Guatarri call term “affectus”. Together, the concept of affectivity is described by Brian Massumi, Deleuze and Guatarri’s editor and translators as, “[A]n ability to affect and be affected. It is a personal intensity corresponding to the passage from one experiential state of the body to another and implying and augmentation or diminution of that body’s capacity to act. L’affection (Spinoza’s affection) is each such state considered as an encounter between the affected body and a second, affecting, body (with body taken in its broadest possible sense to include ‘mental’ or ideal bodies).” In terms of affective politics or “governance by tweet”, see Delage, C., Goodrich, P., Wan, W. Footnote 54 above at 9–10 on the collapsing line between law and politics. Contra Marshall McLuhan’s the medium is the message “the messenger is the message, the medium is the law…” At 14: Now we “circumvent the traditional criteria of truth in discourse in favour of impact and effect, circulation and adhesion…”
Wright, Footnote 84 above at 22.
Camus Footnote 87 above at 37.
(Ibid., p. 100).
(Ibid., p. 173).
In the US, it is well reported that the Trump administration shuttered the Obama administration pandemic preparedness operation (Cameron 2020; Tracy 2020; Obama Team 2020). On general lack of preparedness and foreseeability of a Covid-like pandemic in the years before the pandemic see (Young 2018). Then in March of 2020 (Frankel 2020).
See S. Hasan Footnote 93 above.
Reference re Secession of Quebec,  2 SCR 217, paras 70–78.
See Jamieson Footnote 89 above.
See generally Footnote 91 above re biopolitics.
See e.g., governance by Delage, Tweet C., Goodrich, P., Wan, M., et al., Footnote 54 above at 9–10 on the collapsing line between law and politics. See Contra Marshall McLuhan’s the medium is the message “the messenger is the message, the medium is the law…” At 14: Now we “circumvent the traditional criteria of truth in discourse in favour of impact and effect, circulation and adhesion…”
For a study of the Trump Presidency as mass cultism see Steven Hassan Footnote 93 above.
(Foucault 1984). Biopolitics Footnote 91 at 43.
Postman Footnote 2 above at 72–73.
Few make this case more powerfully or comprehensively than historian Yuval Harrari in the follow up to his 2014 magnum opus, Sapiens, see Footnote 21 above. Then see (Harari 2015).
Reference re Greenhouse Gas Pollution Pricing Act, Footnote 58 above at para 171.
Robinson, K.S. Footnote 13 above.
Rauch, J. Footnote 4 above.
Hassan, S. foonote 93 above.
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Meyers, J.B. Toward a Post-Apocalyptic Rule of Law. Laws 2021, 10, 65. https://doi.org/10.3390/laws10030065
Meyers JB. Toward a Post-Apocalyptic Rule of Law. Laws. 2021; 10(3):65. https://doi.org/10.3390/laws10030065Chicago/Turabian Style
Meyers, Jeffrey Benjamin. 2021. "Toward a Post-Apocalyptic Rule of Law" Laws 10, no. 3: 65. https://doi.org/10.3390/laws10030065