Law as 'Reason' or as 'Violence?'

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other day, I received an alumni fund-raising letter from my old
law school. It opened with a post-September 11th quote
from a present faculty member who praised our current civilization,
declaring that one of its most impressive accomplishments has been
the development of a "legal order committed to resolving disputes
between humans by reason and not by violence."

There is nothing particularly remarkable in this man's observations:
one would find virtually unanimous agreement with such sentiments
at any gathering of lawyers, judges, politicians, or other professional
groups. What is noteworthy in his words is how far removed
they are from the reality they purport to describe. Like so many
of the litanies and bromides by which most people sustain their
faith in systems such as the state, these words have a reassuring
quality to them, at least as long as one does not examine them closely.

My experience in analyzing institutional behavior for many years
has convinced me that, when those in power speak incessantly of
one thing, they invariably mean its opposite. Ronald Reagan's insistence
on "getting government off people's backs" was a cover
for his administration expanding federal power. So, too, the current
President Bush is in the process of putting together a Draconian
police-state, the elements of which comprise his "Operation
Enduring Freedom." Apparently what Mr. Bush has in mind is
that the United States government has been "enduring freedom"
long enough, and intends to bring it to an end!

The idea that modern "law" substitutes reason for
violence as a means of resolving disputes is but another
of these propositions that camouflages its own contradictions. That
such ideas can be mouthed by their defenders with the utmost sincerity
illustrates the effectiveness of the illusion.

There have been times in which "law" was, indeed,
a means for peacefully resolving disputes. The ancient system
known as the "law merchant," for example, developed among
men of commerce as a way of settling quarrels in the marketplace.
Judges were men well-experienced in the customs and usages that
prevailed in various trades. When a dispute arose – such as when
a buyer thought he had been dealt with dishonestly by a seller – it would be brought before one of these merchant judges who (a)
heard the facts, and (b) rendered a decision based upon his knowledge
of business custom.

What was most interesting in this tradition was that the merchant
judges had no formal means of enforcing their decisions. The judges
were more like arbitrators, whose decisions the losing parties were
free to ignore without repercussions from the state. And yet, these
judges' decisions were almost universally upheld. The pressures
of the marketplace – such as the ostracism of those merchants who
would not abide by a judge's decision – provided the most effective
means of enforcement.

The attitudes of the merchant judges were remarkably different from
modern-day judges: the former would often be heard to state that
their function was to "find" the law (i.e., by discovering
the customs and habits that prevailed among men of commerce), while
the latter tend more to the view that their role is to "formulate"
the law (i.e., to construct rules out of their own preferences
instead of out of the common expectations of people in the community).

Over time, the political system took over the roles of these merchant
judges, and "law" became more completely politicized.
Because the state enjoys a monopoly on the use of force within a
given area, its strong arm is now available to enforce decisions
formulated by the legal system. Should anyone doubt that our formal
system of law is grounded in violence, they need only consider the
punitive prospects of refusing to abide by the decision of a court.
Further evidence of the coercive nature of modern law can be found
in a reading of federal or state statutes, which bear the ultimate
sanction of "fine and/or imprisonment" for the violation
of legislative mandates.

There is an illusion, shared by many intellectuals, that there are
processes of "reasoning" which, if properly engaged in,
will lead to conclusions that are free of the preferences and prejudices
of the one engaging in such pursuits. What such people fail to understand
is that to "reason" is to do nothing more than develop
"reasons" to justify one's desired conclusions. The word
"rationalize" (i.e., to attribute one's behavior to plausible
motives while ignoring their true purposes) is particularly revealing.
Does anyone doubt that Osama bin Laden and George Bush have articulated
"reasons" for the violence each seeks to impose upon the
world? The violence of the Holy Crusades, the Inquisitions, the
Nazi holocaust, the Soviet and Maoist butcheries, and the nuclear
slaughters at Hiroshima and Nagasaki, were all conducted by those
who had clearly expressed "reasons" for their actions.

Perhaps the most significant example of the effort to produce a
legal system grounded in "reason" instead of "violence"
can be found in the creation of constitutional governments.
The basic premise of constitutional systems is found in the fiction
of a "social contract," whereby millions of free individuals
would create a government which would, by virtue of specifically
enumerated powers within the constitution, be limited in the scope
of its authority. That such systems have never been created
by unanimous agreement, but have always been imposed by a
minority upon the rest of the population, should have been a tipoff
as to the fallacies upon which they have been grounded.

But if the coercive origins of constitutional governments are not
enough to convince one that violence cannot be restrained by such
devices, perhaps the history of the 20th century will
provide insight. Suspicions might first be aroused by the awareness
that the Soviet Union operated on the basis of a "constitution" – modeled upon the American system, complete with a "bill of
rights." But further evidence can be found within the history
of the United States Constitution itself.

If one reads a history of the cases decided by the United States
Supreme Court, one finds the following fairly consistent patterns:
(1) powers granted to the federal government have been given
expansive definitions – as witness the court's "reasoning"
that the "commerce clause" powers are not "limited
to" economic transactions that cross state lines, but may be
used to force social change, control undesirable personal conduct,
and virtually any other end Congress might have in mind. Likewise,
the “necessary and proper" clause has not been confined to
such measures as are absolutely essential to some stated
end, but has been expanded to embrace any means that are convenient
to such purposes.

(2) At the same time, personal liberties that were supposed
to have been protected by the "Bill of Rights" have been
given a very restricted definition. Case after case reverberates
with such phrases as "freedom of religion does not include,"
or "free speech does not mean," or the 13th
Amendment prohibition against "involuntary servitude"
"does not prohibit military conscription or jury duty."
Perhaps the best evidence for the incessant restriction of liberties
under the Constitution is to be found in the 9th Amendment,
a supposed "catch-all" for all other liberties
not enumerated within the Bill of Rights. Only a small handful of
cases have ever found such additional "rights" that were
subject to 9th Amendment protections.

For those who still cling to the sentiment that formal, politically-backed
systems of "law" can divorce themselves from the underlying
violence that defines such systems, I draw your attention to the
events of the past two months. An imperial president declares "war"
upon an ill-defined "enemy," without feeling any need
to have an obsequious but thoroughly marginalized Congress exercise
its constitutional authority to make such a declaration. There followed
a mixture of legislated enactments – usually by 100-0 Senate votes – executive orders, and proposals for practices that would allow
government agencies to wiretap our telephones and enter our homes
without our knowledge or consent; allow for the indefinite incarceration,
torture, or even assassination of "suspected terrorists,"
as well as secret military trials for such suspects; increased inspections
of our persons; as well as proposals for national identity cards,
mandatory smallpox vaccinations (based upon purely hypothetical
threats), and the employment of the U.S. military to police the
American people. Various rationales have been offered by the defenders
of such practices.

Contrary to the sentiments expressed by the aforementioned law school
professor, those who have recommended "reason" in place
of the "violence" now being practiced by massive government
bombing abroad, and police-state mechanisms at home, find themselves
accused of cowardice or appeasement. Some jingoistic militarists
have gone so far as to suggest prosecuting, on charges of treason,
anyone who opposes this now-described "permanent" state
of war! To those who have watched the untold number of "Nazi
holocaust" films and wondered: "how could the German people
have gone along with such tyrannical measures?," they can now
find the answer in the ease and quickness with which so many Americans
have, with barely a whimper of doubt, rationalized the creation
of tyranny in their own land.

For those who are willing to move beyond their high-school civics
class conditioning, and examine what is implicit in all political
behavior, it should be evident that the experiment with "constitutionalism,"
though offered with the best of intentions by our ancestors who
believed that power could be limited by reason, has proven an illusory
dream. The bloody, tyrannical history of the 20th century
gives us a perspective that requires us to abandon such naïve
hopes. In the words of Anthony de Jasay, in his book Against
Politics: "collective choice is never independent of what
significant numbers of individuals wish it to be." There are
no principles, no matter how carefully articulated, by which the
forces of state power can be restrained when they
have their "reasons" for resorting to "violence!"

17, 2001

Shaffer [send
him e-mail
] teaches at the Southwestern University School
of Law.

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