Hanging Saddam

In a longish thread Oranjepan raises this great question:

“Take the example of capital punishment – how exactly do you differentiate between criminal murder and a legitimately-sanctioned execution of duty without a concept of universal, or state community?”
Would the death of Saddam Hussein have been more acceptable if it had taken place by public stoning in the street? How could you decide that his death was legitimately obtained or make criticisms that it wasn’t unless there had been a regulated court procedure?”

Libertarians Advise

The stoning would be understandable, perhaps even forgivable given the depredations he heaped upon his people. It would not though have been legitimate.

It would be illegitimate because as Oranjepan rightly points out the regulated procedure is essential. The existence of the state adds nothing in the way of legitimacy.

The legitimacy of the execution – or other violent actions – arises because we see the operation of a formal process rather like a program or the expression of a set of rules which are and can be seen to be applied “blindly” or mechanistically without special privilege or prejudice. It’s this mechanistic rule following that conveys legitimacy rather than legitimacy somehow flowing from the existence of a state.

What I’ve just said is only part of the story. It’s not enough that the rules are deterministically applied it’s that the rules themselves are created and changed by other equally formal or mechanistic processes.

Further, the rules and their operators need to have been shown to be effective and “just” over long periods of time and in a wide range of circumstances.  To some extent this is cause of some of the doubts of the legitimacy of Hussien’s execution stem from.

Yet more, they need to be seen or perceived as moral rules. Morality itself is constructed by evolutionary social processes over generations though ultimately it derives from aspects of our biological existence in the physical world.

States do not convey legitimacy either in principle or practice. The show trials of Stalin’s era are seen as illegitimate even though they’re the actions of a state precisely because they where not the blind application of rules to circumstances.

I cannot imagine being able to buy or sell moral systems but perhaps I just lack imagination. On the other hand I can see no reason to assume that sets of rules or entire legal systems couldn’t be bought and sold on the market. In fact, of course, they are. Non state arbitration and other dispute resolution services are already quite widespread. There’s no reason to assume that the role of such services couldn’t become more widespread and more profound and that healthy competition might develop leading to refinement and improvements in both justice and efficiency.