I once tried to correct someone who really should have known better, but who claimed that the law was “the only civilized means” of dispute resolution. (Of course, the claim is demonstrably false, as everyone knows some civilized adults who manage to work through issues without dragging each other into court). Every day we mediate among friends, have debates, engage in dialogues, argue, and come to some reasonable agreement or at least some compromise or resolution without the intervention of the law. The fellow got upset at me, perhaps because he has a vested interest in ensuring a steady supply of lawyers (he’s a law professor), but I stand by my counterexamples, which are abundant, and whom every day manage to work things out without codes, rules, regulations, or the courts. The law has its use still, but we must be careful how much weight we give it, and how much we vest ourselves in it as a means of solving social or even personal problems, or even of ordering our society at anything but the most general levels.
There is a school of thought that says that in the absence of laws people will behave in intolerable ways toward one another. The sort of Hobbesian notion of a war of “all against all” in a “state of nature” has often been used to justify the state and its laws as a necessary means of reining in our natural tendencies to harm one another. This argument reminds me much of the church’s threat of a hell as an inducement to good behavior. Hobbes used the “state of nature” as a justification of the Leviathan, the beast of a state that curbs man’s baser instincts, just as a god and her edicts are necessary to stifle our instincts to sin. Both are myths, and once people come to grips with the idea that law is not the only, nor even necessary, enticement to behave well, lawyers would start to suffer the sort of job insecurity we often hope the clergy will someday face. There is no evidence, for instance, that pre-legal humans were in a perpetual war with one another, just as there is evidence from the animal world that at least within species, cooperation abounds. The state and the church have everything to gain by convincing us otherwise, however.
Consider the recent “win” regarding same-sex marriage. I applaud the ruling, of course, and it’s good to see the constitutional principles of free association, equal protection, and full faith and credit finally applied as they ought to be to the legal institution of marriage. But how did the injustice afforded by years of state-sanctioned discrimination occur? In the first case, marriage was a clerical and state institution, created by churches and recognized by them, concomitantly with states (which were all too often, of course, one in the same.) It was states and churches, in other words, that dictated who you could associate with and how, and afforded various forms of status to married couples as part of its enticement to abide by its power, and punished those who attempted to associate outside the bounds of its dictates. If one thinks the state is the source of justice, then that situation was just. Absent states and churches, however, only love and a recognition of the notion of autonomy would dictate with whom and how one could associate. It was only by giving up our autonomy to gods and states that our freedom to associate came to be limited. The law constricted our freedom, and it took millennia to fix that. The law, in other words, finally corrected the law’s own injustice, and injustice it was if one recognizes that freedoms derive not from the state or some god, but rather from our nature as humans.
What if we had disregarded the power of the law as many of us disregard the power of the church? Every time we sort something out without recourse to the courts, seek answers through social agreements, private discussion and dialogue, settle our associations among each other, and form our own communities under principles that we agree upon, we wrest power from the state to dictate our lives, our conscience, and our emotions. Of course, the state or others seeking power over us try to prevent us from civilized, consensual, and peaceful means of pursuing our version of the good life, and sometimes confrontations are settled in the courts. So be it, when necessary. Meanwhile, many of us believe and hope for a blossoming of human freedom, peace, and security in the absence of either the Leviathan or gods, pursued according to reason, recognizing the role of emotion, and expressing our liberties which pre-exist those institutions that have so often tried to strangle them.