casual thinking between platonic dialectic and anarchist theory
It would be interesting to argue (I wonder who has argued) that the legitimacy of positive law is restricted to a selection among indiscernibles in cases where such a selection is itself rationally required. This would amount to saying that a paradigm of valid positive law is the historical decision to drive on the right (left) rather than the left (right) – there’s no reason to prefer the one to the other, but there’s every reason to prefer that there be a decision. Note that a choice of this kind between symmetric Nash equilibria seems to require nothing more than the toss of a coin in the ab novo case, or appeal to a standing, presumably stable, social convention in the historically-sedimented case; accordingly it would fit a (hypothetical) critical factoring of authority into the principles of form and chance. Probably a more nuanced view is appropriate, but it’s interesting to consider the extreme version.