NIETZSCHE ON RULE OF LAW

Simmonds’ Legal Theory

At the University of Cambridge …,

… that “marvellous University” where the “Right Very Most” finest minds are (!!!!) …,

… there was a Reader in Jurisprudence who thought to have discovered the “hot water” in 2005!!

He was a very lovely and enjoyable person. Indeed, rarely have I found (in the entirely World) so pleasant lectures. Each time I demonstrated the inconsistency and wrongfulness of one of his theories and/or teachings, he was used to reply that those theories/teachings were thought by one of the Finest Cambridge Mind!! For most people, a sufficient reason to prove the rightness of those theories / teachings!! Of course, populaces agreed with him, clapping at those “self-evident” words.

On the contrary, I was used to laugh a lot. I found so hilarious his sense of humour that I laughed so much that I wept for Happiness!! His lectures were so entertaining and mirthful that they were a blessing break from the usual pedant, doctrinaire and hollow, vain Cambridge speech.

Simmonds (2005a; 2005b) claimed to have archived a Legal Theory able to support “an understanding of law as a substantive moral idea” versus “an understanding of the law as a morally neutral instrument, serviceable for wicked purposes as well as good”. But, his theory is: both, wrong; and, NOT original at all. It was copied from Plato and the Italian Ardigò. Actually, the theories of Plato and Ardigò were far, … far… , far better than Simmonds’ theory. The latter was a bad copy, which “corrupted” the good ideas of the formers.

Simmonds believed to have overcome the conflict between Rule of Law and the “mundane view of law” with his Legal Theory: Law as a Moral Archetype. According to Simmonds, Law is an “approximation to an intellectual archetype”. His theory is based on two assumptions:

1. the first postulate is: Law is “structured by archetype”;
2. the second postulate is: the “archetype is an intrinsically moral idea”.

But, both his postulates / assumptions are wrong!!

Moreover, although Simmonds attempts to deny that his archetype lives in a metaphysical realm, he fails to prove this.

At a first look, Simmonds’ theory seems to be a mere reformulation of the two platonic worlds.  The strong affinity between Simmonds and Plato is supported by the example of archetype, he used: the concept of triangle.

Simmonds rejected the empirical definition (which had been made by Euclid[1]) as he preferred an understanding of triangle in term of: degrees of approximation between a geometrical form and an ideal archetype of triangle. Does it sound like Plato (!!), does it not?

Indeed, he wrote: “So triangles do not constitute triangles by satisfying a set of criteria” (!) “but by approximating to an ideal archetype; and not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a)[2].

There is only one difference between Plato and Simmonds. For the former, there is not prejudice and discrimination among triangles. Triangles are equally triangles, even if they can have different forms and characteristics. Equilateral triangles, isosceles triangles, scalene triangles, right triangles, obtuse triangles, acute triangles are all equally triangles for a Platonic idea of triangle. But, for Simmonds, they are not equal, since they reflect a different degree of approximation to the ideal archetype of triangle!!

But, are we sure that exist only an ideal archetype of triangle?!?!

Why is the existence of six different ideal archetypes of triangle not possible?!?!

Is it possible that those six different archetypes of triangle come from a common meta-archetype of triangle?!?!

And, if so it is …, are we sure that the function / role / nature of this meta-archetype of triangle is to discriminate among triangles?!?!

No, we are not. Simmonds was hugely wrong.

Law of Hume versus Simmonds’ Moral Archetype 

According to the Law of Hume, this meta-archetype belongs to a Descriptive Realm. It does not belong to any Normative Realm. So, it cannot be used to discriminate among triangles. It can only say if A is: either, a triangle; or, not a triangle. In other words, it defines the entities that belong to the set of triangles. If we apply it to Law, it will be the same. The Archetype will only say if something belongs, or not, to Law.

That is all, Folks.

But Simmonds makes his archetype say something of very different.

According to Simmonds, not all triangles are equally triangles but “they are triangles to the degree to which they approach the ideal”.

In other words, Simmonds violated the Law of Hume. He passed from an entity, which belongs to the Descriptive Realm, to an entity, which belongs to a Normative Realm. He confused between these two dimensions.

Simmonds’ archetype is not an archetype. It is a normative choice that has been masked behind a descriptive form.

For this reason, he arrived to state that: “not all triangle are equally triangles: they are triangles to the degree to which they approach the ideal”.

All the Legal Theory of Simmonds is based on this huge mistake. He confound between the Descriptive Realm and the Normative Realm.

An entity can only belong to one of these two Realms. An entity cannot pass from one of them to another one. So, Simmonds’ Legal Theory implodes in itself. On one hand, it was the result of a very wrong reasoning (which was done by one of the “finest Cambridge mind”). Simmonds misused philosophical ideas without: having awareness of them and their implications; knowing what he was doing!! On the other hand, if he knew what he was doing, he was willingly cheating. He used one of the most antique logical fallacies.

As a result (it does not matter how or why), he created a wrong and dangerous theory able to “prostituting” itself to support any intolerant and totalitarian Regime, which wants to impose its own ideal onto any other one else!!

Ideals, indeed, change: from Culture to Culture; from Time to Time; from Person to Person; etc… .

The Holy Inquisition, on the contrary, would have found very interesting the Legal Theory of Simmonds!!

Simmonds Background

Where does Simmonds’ Legal Theory come from?

The University of Oxford and the University of Cambridge have a long tradition of rivalry. Thus, when Oxford says A, Cambridge says Z.

It makes quite easy their job!!

As Finnis (Oxford) had taken a lot from Saint Aquinas (Aristotelism), Simmonds (Cambridge) was forced to take a lot from: Saint Augustine (Platonism); and Ockham, who opposed his teaching to those of Aquinas.

So, Finnis and Simmonds played this historical endless recursive game between these two Universities and these two opposite philosophical points of view.

But, Simmonds “corrupted” the ideal of Plato with Ockham’s philosophy.

From Saint Augustine, Simmonds took: the strong dualism; and, the idea of Law as a Moral Archetype. The imperfect human beings tend endless to, without reaching it, a Moral Archetype.

From Plato, Simmonds took: both, the Theory of Form (Phaedo); and, the Doctrine of Love. From the former, Simmonds took his first postulate[3]. As nothing in the World is more than a shadow (Plato, Cavern’s Myth), Law comes from an immaterial ideal that is neither physical nor mental. According to Plato, this ideal comes from nowhere in the space-time, as it lives in a Metaphysical World (the World of Ideas). From the Doctrine of Love, Simmonds took the dynamical relationship between Law and its Ideal.

But, neither Plato nor Augustine stated what Simmonds affirmed later: “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a).

Simmonds took this idea from Ockham’s thought. Ockham fought Aquinas’ teachings. As Simmonds wanted to fight Finnis’ theory, he: either, had to pick up from Ockham; or, had to create something new.

Simmonds picked up from Ockham (… it was far easier…).

According to Ockham, Moral and Legal norms cannot be found with reason (and/or introspection a là Finnis and Saint Aquinas). Behaviours are good only if they are conformed to God’s commands. There is no intrinsic reason in them. Good and Bad are only the outcome of arbitrary norms / commands of God. So, even the wickedest things can be the absolute Good if God commands them.  Bad is only to disobey to (to not comply with) God’s norms and/or commands.

Now, Simmonds does not speak about God, as God has never ever commanded anything. Moreover, nowadays, God is an unfashionable argument among Scholars. On the contrary, the Moral Archetype is based on Power’s Will. As there is not any intrinsic reason of what Good is (Ockham), Simmonds’ Moral Archetype becomes an arbitrary normative entity used by Power to make triangles homologate to its Will. So, Simmonds’ Moral Archetype discriminates among triangles. This is the reason why not all triangles are equally triangles. They are “triangle” due the degree to which they comply with Power’s Will.

At the end, the Legal Theory of Simmonds has opened the doors to any Totalitarian Regime behind vacuum, in appearance agreeable, void words.

Nietzsche versus Simmonds

“Where you see ideal thing, I see – human, alas all too human things”

Friedrich W. Nietzsche, Human All Too Human

Both Nietzsche and I agree that different triangles have different forms and characteristics[4] as different Human Beings have different: Culture; Race; Ethnicity; Nationality; Ideas; Beliefs; Experiences; etc… . BUT, neither Nietzsche nor I agree with Simmonds when he says that “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” of  triangle.

This is for the reasons I have explained supra (above) et infra (below).

Prototype versus Archetype

When Simmonds speaks about Moral Archetypes, he creates:

1. a surreal hybrid: between Plato’s Epistemology and Ockham’s Ethics;
2. and, a monster (chimera) which continuously swing between a Descriptive Realm / Dimension and a Normative Realm / Dimension.

Simmonds does not have any clear idea about the difference: between Epistemology and Ethics; between Descriptive Realm and Normative Realm. Simmonds’ Legal Theory confounds the Nature of Law with the Political Domain of a Legal System.

On the contrary, when I speak about Law as a Social Prototype, I speak about empirical things. I speak about a Descriptive Theory that explains the Nature of Law without: both/either, entering inside the normative contents; and/or, judging among triangles. I keep a distinction: from Epistemology to Ethics; from the Descriptive Realm to the Normative Realm.

What is a Social Prototype?

A Social Prototype is exactly the opposite of the Simmonds’ Moral Archetype. To understand the prototype, you have to change the perspective. You cannot start from any metaphysical Realm, but you have to start from the empirical and physical Realm.

Simmonds, indeed, made the same mistake of Raz (Epis L., 2015). As he could not found “his” theory in the empirical facts, he founded it entirely onto ontology and metaphysics. It was a way to deny the reality of facts. But, Law does not come from any metaphysical Realm!! On the contrary, Law comes from the historical living experience of a society.

As this writing is to say, Law as a Social Prototype is the final evolution of the Ardigò’s Social Ideal. On the contrary, Simmonds Law as a Moral Archetype is the last regression of the Ardigò’s theory from a Positive Stage to a Metaphysical Stage.

According to Ardigò (1901), every society creates its own Social Ideal (Idealità Sociale). The Social Ideal does not come from any metaphysical Realm. It is the natural outcome that is caused by the inborn and innate Law of the Nature. They are “written” inside: both, the Social Organism; and, the Human Beings.

The Social Ideal is also called Justice. It is: the Specific Force of the Social Organism; the set of the implicit norms (Natural Law) that are naturally created by the Society and its members. Those norms are innate and necessary. The Social Organism, indeed, cannot exist without them.

So, Ardigò created an empirical theory that was able to sketch out a framework for understanding the two dimensions of the Legal System: the implicit dimension (Social Ideal); and, the explicit dimension (Positive Law). But, Ardigò gave merely a sketch. He was not able to find and to indicate those innate and inborn mechanisms.

Epis’ Social Prototype ends “what” Ardigò started. Epis’ Social Prototype applies the framework of the Social Psychology, Cognitive Psychology and Social Cognition, to Ardigò’s Social Ideal.

Indeed, in all its dimensions, Law is nothing more and nothing less than a particular kind of social norm. So, Law as a Social Prototype is a very empirical and positive theory able to explain:

1. the Nature of Law;
2. the Legal Interpretation;
3. the relationship and dynamics between the implicit and explicit Legal Dimensions;
4. the innate psychosocial mechanisms that rule the Legal System;
5. the whole Legal Domain / Realm in its every levels and aspects.

Law as a Social Prototype is also able to explain the relationship among Morality, Justice and Law. All of them are sub-sets of the main set of the social norms.

Whereas several scholars have linked the moral norms to the legal norms, none of them was able to explain their relationship. They refused to proceed with an interdisciplinary approach. They refused to apply the Social Psychology, Cognitive Psychology and Social Cognition, to their disciplines. So, their theories are weak, … very weak.

Simmonds’ Moral Archetype is an example of this in Jurisprudence. Wikstrom’s Situational Action Theory of Crime Causation is another example of this in Criminology. Indeed, Epis has always advised Wikstrom to improve his theory and studies, using the Social Psychology, Cognitive Psychology and Social Cognition, since 2006. For instance, you can give a look to Epis’ writing: Morality and Crime.

Finally, Law as Social Prototype resolves several legal and philosophical problems such as: the violation of the Law of Hume; the conflict between Natural Law and Positive Law.

Epis’ Prototype and Simmonds’Archetype: the Final Conflict

Simmonds’ Moral Archetype and Epis’ Social Prototype represent the final opposite views that are possible to have about the Nature of Law.

They evolve and synthesis all the previous Legal Thought.  Simmonds re-elaborated the antique theological and metaphysical perspectives into a modern lay one.  Epis re-elaborated the empirical and positive legal theories (which have been developed inside the Legal and Philosophical Thought) into an Integrated and Interdisciplinary Theory. Exempli gratia, Epis enriched and advanced the Ardigò’s Legal Thought with the framework of the Social Psychology, Cognitive Psychology and Social Cognition. At the end, Epis’ Legal Theory is able to:

1. understand the Legal Phenomenum in its Whole Unity;
2. illustrate the different layers, strata and levels, which constitute the Legal Reality;
3. describe “how” those levels work and interact together.

In other words, Epis’ theory is a Model, which is able to consider all the different factors and variables of the function: f (Law). Of course, the Model has some limits!! It considers only the factors that belong to the Social and Psychological Sciences. In other words, it cannot tell you “how” the fly of a butterfly in Amazon Forest can affect a legal proceeding in Italy. But, actually, … it can … in somehow.

According to the Chaos’ Theory, the movement of atoms, which has been caused by a Brazilian butterfly, can influence the outcome of a rain and/or a storm in Italy. For instance, at least, it can make some drops of rain and/or hail fall more somewhere instead of somewhere else. A little difference of few millimetres and/or centimetres can cause an unpredicted slip to a Lawyer, who is going to notify a Legal Act. Well, if the Lawyer has waited for the last legal day (as most of the time, they do), this little unpredicted bother (… which was caused by an innocent Brazilian butterfly…) is a sufficient factor[5] that, alone, is able to affect deeply the entire legal proceeding[6].

Exempli gratia, there is no time for notifying the summons before the end of the legal term. This will cause: the invalidity of the notification of the summons; and, the loss of the rights.

This is “why”, I strongly advice Lawyers (… and more generally any reasonable person …) to not wait for the last moment. Fate is a capricious Child, with an extraordinary sense of humour. So, you cannot ever know when He decides to play a joke on you.

According to Nietzsche, the Simmonds’ archetype is an idol as: it comes from metaphysics; and, it demands faith.

On the contrary, the Epis’ Social Prototype is not an idol. It does not demand faith. It is a descriptive theory that is able to indicate those clear psychosocial mechanisms that rule entirely the Law’s Realm.

Law and Responsibility

Law itself is neutral. Legal Systems themselves are neutral.

Law is not: either moral or amoral; either good or bad.

As Bernard Show said: “everything has its abuse as well its use”.

Law’s moral qualification depends mainly on “how” people use Law.

Indeed, every Legal System can be misused and abused. For instance, different weights and measures can be applied from case to case. Although the norms, rights and liberties, are formally the same for every person (Paper Rights), they can be applied substantially in a very different way from person to person (Real Rights).  Exempli gratia, the norms and facts can be interpreted in different ways[7]. Moreover, Economical and Psychological factors can deny people to access their Rights and Liberties.  Different economic conditions make people have different degrees in the access to their Rights and Liberties. Social Pressure, Groupthink, Propaganda, Authority’s Compliance, Psychopathological Constructs and Standard Deviations do not allow any free determination. If there is not any real free determination, no responsibility exists at all. Responsibility asks for a real and substantial individual freedom. So, no responsibility can exist in a flock of sheep. People, at the end, discover themselves to be nothing more than slaves “in chains”, who pay for responsibilities of other persons.

So …, the question is: who is the responsible one for the actions that are done by the flock of sheep?

Well…, the answer is obvious. The shepherd, who leads the flock, is responsible with all his guard dogs[8].

Responsibility and Democracy cannot exist in a flock of sheep. They need a different kind of social group. The flock of sheep must to be transmuted in a group of Free Individuals. This will be possible if, and only if, the Human Being transmutes himself from man to superman.

Epis’ Legal Theory: Law as Social Prototype. A new Legal Theory able to overcome: both, the Law of Hume; and, the conflict between Natural Law and Positive Law.

Law as a Social Prototype is a Legal Theory able to overcome: both, the Law of Hume; and, the conflict between Natural Law and Positive Law.

Law as a Social Prototype overcomes the Law of Hume as it belongs only to the Descriptive Realm. This theory clarifies: the Nature of Law; and, “how” the Legal Domain works in all its different aspects and levels. In other words, it tells us everything about “triangles” (a là Simmonds) without judging among “triangles”.

Law as a Social Prototype overcomes the conflict between Natural Law and Positive Law. It explains clearly the relationship and dynamic forces between these two Legal Dimensions of a Legal System: the implicit dimension (Social Ideal / Natural Law); and, the explicit dimension (Positive Law). It evolves the Ardigò’s framework with the inborn psychosocial mechanisms, which govern those intrinsic natural processes. Without them, Law and Society cannot exist.

As both the implicit norms and the explicit norms are social norms, it is possible to understand clearly the underlying forces behind their endless recursive interaction.

But, … wait a moment, I have already heard Simmonds’ legal theory with a better formulation!! Simmonds “thieves” the Italian Ardigò of his ideas!!

Whereas I recognize the Ardigò’s Thought, Simmonds took a lot from Ardigò without: both, recognizing it; and, evolving his’ framework.

Actually, Simmonds regressed and retreated the empirical ideas of Ardigò from a Positive Stage to a Metaphysical Stage. Moreover, he “transmuted” the Ardigò’s theory from a good descriptive theory to a huge philosophical nonsense: something that was tremendously in violation of the Law of Hume.

Simmonds took a lot from Ardigò; it is self-evident. Ardigò was one of first philosopher, who clearly described the Legal Domain and Dynamics like a recursive endless interaction between an implicit dimension (Social Ideal / Justice) and an explicit dimension (Positive Law)[9].

Simmonds has simply translated the Ardigò’s theory in English. Instead of using the Italian terms, Social Ideal and Justice, he used Moral Ideal and Moral Archetype.

But, the structure, the dynamics and the connexions between the implicit and explicit Domains, are those that Ardigò used.

There is only one difference. Whereas Ardigò evolved the previous Thought from a Metaphysical Stage to a Positive Stage, Simmonds regressed it from a Positive Stage to a Metaphysical Stage!!

On the contrary, Epis wanted to advance the Ardigò’s Positive Thought. Actually, he did it as it was explained supra (above).

Justice and Morality

The philosophy of Nietzsche criticizes any attempt to found the Rule of the Law “outside the compass of the earth”. But, Nietzsche is not amoral. Nietzsche does not renounce values. On the contrary, Nietzsche advanced a Positive Idea of Morality. The Positivism of Nietzsche was an Individual Positivism. As I explained supra (above), he overturned the perspective.

So, Nietzsche’s Morality and Ardigò’s Justice can be integrated.

Whereas Morality comes from the Living Experience of each Individual, Justice comes from the Living Experience of each Social Organism (Society).

In other words, something is either just or unjust in terms of Social Life and Existence; something is either good or bad in terms of Individual Life and Existence. Both of them are the best values’ adaptations, which both an Individual and a Social Organism can do, living in those particular historical environments, they experienced.

So, the Social Dimension and the Individual Dimension coexist in harmony.

Between Justice and Morality, the same dialogical recursive interaction, which exists between the implicit and explicit Legal Domains, happens. Justice is the outcome of the Social Dialectic among the different Individual Moralities. But, Justice leads the Social Organism, leaving as freer as it is possible the Individuals.

When Morality moves from Society to Individuals, Morality and Justice (Social Ideal) overlap. This is not good. It means that all the Individual Dimensions are uniformed and homologated to the Social One. As a result, Justice cannot be the outcome of the Social Dialectic among the different moralities and values of the Individuals. As Individuals have to conform themselves to the Social Ideal, they cannot have and develop any their own different Real Morality and Values. In fact, a homologated individual is nothing more than a lemming and/or a sheep of the flock. Homologation becomes part of his/her habitus, forma mentis. As the Social Ideal does not come from the Social Dialectic among the ununiformed individual moralities and values, the Social Ideal comes from somewhere else.

So the question is: Where does Social Ideal come from?

If it does not come from the Social Dialectic among the different moralities of the Individuals that are at the bottom of the Social Pyramid, then it can only come from the top of the Social Pyramid. It means that the Social Ideal is a creation of the Power. It is an arbitrary construct that has been created by Power to advantage its own interests. As Power does not want to reveal the Real Nature of the Social Ideal to its servants, Power presents its Social Ideal like an Idol. But, Social Norms (it does not matter if they are: Law; Morality; Values; etc…) do not come from any Metaphysical Realm. Social Norms are the most concrete and empirical thing that can exist. As I have widely explained and demonstrated, Social Norms come from the Social Conflict and Social Dynamic Forces that govern and underlie the Social Organism.

So, the Individual Morality cannot be homologated to the Social Ideal. If it happens, Justice is reduced to be “the interest of the most powerful” a là Trasimacus.

This is why Nietzsche does not want believers, but people who trust themselves.

“… Verily, I advise you: depart from me, and guard yourselves against Zarathustra! … Ye say, ye believe in Zarathustra? But of what account is Zarathustra! Ye are my believers: but what account are all believers! Ye had not yet sought yourselves: then did ye find me. So do all believers; therefore all believers is of so little account. Now do I bid you lose me and find yourself; and only when ye have all denied me, will I return unto you.” (Thus Spake Zarathustra, I, XXII).

On the contrary, if each individual is free to create his own Morality, then Justice is the outcome of the Social Dialectic among all these different views. So, Justice comes from the bottom of the Pyramid, instead of the top. In this case, a Real Democracy can exist.

Only Individuals, who are really free and self-determined, are equal forces that are able to equilibrate and to balance the forces of the other individuals, who are members of that Social Organism. So, each Individual can be an Independent Power that is able to limit the Power of the other persons. This equilibrium of forces is the best insurance for the Democracy.

Moreover, Individuals can only live and testify their own values and truths. The only things, they can know and understand, are their unique living experience. Each time they acts, attests and say, something that come from outside their own individual experience, they make themselves be ridiculous. Indeed, they do something without having any idea of what they are doing. They are just marionettes in the hands of someone else, who uses them like stupid pawn.  This is as: “Ultimately, no one can extract from things, books included, more than he already knows. What one has no access to through experience one has no ear for” (Ecce Homo, Why I write good book, I).

Each person is the Best Adaptation to his/her particular kind of Historical Experience.

Each person brings to the Social Dialectic his/her particular Experience, Morality, Truth.

This is essential for the survival of the Social Organism. The ability of the Society to adapt itself to the new circumstances depends entirely on the ability of its individual members to adapt themselves to the new circumstances. If they are (or have to be) uniformed to an Ideal, then they cannot adapt themselves to the new circumstances (as they come). As a result, Society will be unable to adapt itself to the new situations. So, the Social Organism will be dying.

Homologation is Death: Social and Individual Death.

Who preaches for homologation is a “priest” of death. Nowadays, psychologists are them. They preach for: homologation; standard deviations and their constructs. The latters are, at the end, nothing more and nothing less than moral ideals (that are expressed with a misleading form). They are instruments that are used to control people. They are instrument that are used to homologate people to the Power’s Will. But, they lead to one of the most dangerous outcome, as I explained supra (above).

At the end, Nietzsche recognizes the importance of the Rule of the Law inside the actual level of Conciseness of the Humanity. But, the Rule of the Law does not come from Metaphysics. The Rule of the Law comes from: the Individual and Social Empirical Live; and, the Rational and Logical Thinking that is made on these Experiences. Nietzsche would have agreed with Ardigò.

Rule of Law like Supremacy of Law above Power

Rule of Law could be understood like the Legal Principle: pacta sunt servanda.

It is a Latin brocard[10] that means: the agreements have to be respected.

Pacta sunt servanda is the first and essential principle for any Legal System and any Social Organism. Any Legal System and any Social Organism to exist needs this principle. Indeed, no Legal System, no Social Organism can exist without it. If the agreements are not respected, then an endless conflict and war will exist among the members of the Social Organism. So, the Social Organism will be weak and divided. Therefore, it will be defeated by another Social Group that it is able to:

1. both, have more free and ununiformed individuals;
2. and, have a stronger cohesion among its members.

The former makes the Social Organism be stronger. The absence of homologation (among the Social Members) allows the Social Group: to deal with wider different situations and environments; to adapt itself better to the new circumstances.

The latter makes a good balance between the Individual Freedom and the Social Needs.

If everyone respects the other different views …;

if everyone complies with the principle Pacta sunt servanda …;

… solidarity and empathy are the natural outcome.

As a result, the Society will have cohesion.

But, the principle pacta sunt servanda does not apply with the same intensity to every agreement.  Indeed, the Social Contract is the highest Pactum. The Social Contract is both an implicit and an explicit agreement among individuals, who decide to form a Society and/or Nation. It contains the main values (Social Ideal) of the Society. The Social Contract is the hard core of the Ardigò’s Social Ideal.

As the Government receives its powers from the Social Contract[11], Government has only those powers that the Social Contract gives to it. So, Government must comply with: both, the regulations that limit its power and its exercise; and, the values and legal principles that come from the Social Ideal.

In other words, this means that Rule of the Law is the Supremacy of the Law above the Power. Power is submitted to the Social Ideal that comes from the Historical Social Dialectic among free Individuals with different Moralities and Values.

Only in these terms, an impersonal Power a là Ardigò can lead the Society.

On the contrary, we have a Power that betrays the Social Ideal to impose its own tyranny. Therefore, the Social Ideal will be reduced to be a Horse of Troy as I wrote in Rule of Law and English Legal System.

According to Nietzsche, individuals learn from their Living Experiences the Prudence. Prudence advices people to use the Rule of the Law as a mean.

“Rule of law as a mean. – Law, reposing on compacts between equals continues to exist for so long as the power of those who have concluded these compacts remains equal or similar; prudence created law to put an end to feuding and to useless squandering between forces of similar strength. But just as definitive an end is put to them if one party has become decisively weaker than the other: then subjection enters in and law ceases, but the consequence is the same as that previously attained through the rule of law. For now it is the prudence of the dominant party which advises that strength of the subjected should be economized and not uselessly squandered: and often the subjected find themselves in more favourable circumstances than they did when they were equals. – The rule of law is thus a temporary means advised by prudence, not an end” (Human, All too Human, II, 26).

Accounting to Nietzsche, the Rule of the Law has two origins.

The former is originated inside a Utopian Society where everyone is formally and substantially equal to any other person. In this case, Rule of Law comes from a Social Contract that is done by Equal Forces. Rule of Law is the outcome of the Social Experience that has been done by those equal forces/persons. They have learned that it is useless an endless conflict among them for the reasons I explained supra (above).

The latter is originated inside a society where there is not a substantial equality among its members. Nevertheless, the dominant persons have learned that it is sager to economize their forces than to waste them with useless conflicts.

In both the cases, the Rule of the Law does not come from Metaphysics. Rule of Law comes from the Individual and Social Living Experience. It is a conscious, empirical and rational, choice.

In other words, the Rule of the Law is a mean to avoid the Hobbesian bellum omnium contra omnes (Hobbes, 1909). But, Nietzsche does not advice to create a Leviathan a là Hobbes (1909). Nietzsche recommends, on the contrary, overturning the perspective. This leads, as I explained, to Ardigò’s Social Ideal. So, at the end, the Rule of the Law is not compatible with the Simmonds’ Moral Ideal.

The Simmonds’ Moral Ideal is a Horse of Troy for the tyranny of the Leviathan. In fact, Popper (1995) declared Plato an enemy of the Open Society. But, Simmonds did not consider Popper. Maybe, he neglected him: … Popper was not a member of his College!! Maybe, Simmonds did it: … he was also an enemy of the Open Society!!

On the contrary, the Rule of the Law is compatible with the Ardigò’s Social Ideal.  The Ardigò’s Social Ideal and Epis’ Social Prototype are the mean for the creation of a real Democracy. They are friend of an Open Society!!

[1] According to Euclid, a triangle is a two dimensional geometrical form with: both, three angles, whose sum (α + β + γ) is equal to 180°; and, three sides, which are composed by a straight line segment, whose the length of one of them is never: both, the same; and, longer; … the sum of the others two.

[2] Simmonds (2005b) repeated this concept: “Actual instances of triangles constitute triangles in virtue of the degree to which they approximate to the ideal “triangle” of mathematical definition. So the triangles that one comes across do not constitute triangles by fully satisfying a set of criteria, but by approximating to an ideal archetype. Indeed, not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal”.

[3] The first postulate is: Law is “structured by archetype”.

[4] Some of them are equilateral triangles; some of them are isosceles triangles; some of them are scalene triangles; some of them are right triangles; some of them are obtuse triangles; some of them are acute triangles.

[5] Which is not considered by my model.

[6] Actually, this example is taken by real cases. It happened that lawyers, who waited for the last useful day for notifying a summons, slipped and broke one of their legs. So, their clients lost all their rights.

[7] So, even if the Paper Rights tells that an identical Legal System exists for everyone, the Reality is different. The Legal System changes from person to person.

[8] Nowadays, we live in a very strange time. The responsible one is always the poorest sheep. The shepherd is never responsible with his guard dogs!!

[9] Ardigò was one Italian scholar. He belongs to the Italian Positivism.

[10] Brocards are Legal Principles that have been created during the Medieval Age. They have been taken by the Roman Law (which was considered an expression of Natural Law). The name “brocard” came from the name of the bishop of Worms, Burchard, who died in 1025. The bishop Burchard wrote 20 volumes: Regulae Ecclesisticae. These books are a collection of maxims and sayings. Some of those Legal Principles were collected in those tomes.

[11] The Government does not receive those powers from God.