Resurrected Diatribe on the Social Role of Law, or "How to rob Peter to pay Paul to rob Peter some more."

Like most of my writings these days, this one comes as a lengthy response to a two-part question posed by a friend of mine: “Why do you hate cops? Also, aren’t you friends with some cops?” The simplest response would be “I don’t” and “I am,” but that doesn’t begin to approach the complexity of my real answer, which is that I don’t hate law-enforcement officers per se but I definitely hate laws, and not just the uniquely American laws that don’t make any logical sense (i.e., helmet laws, jaywalking, drinking and smoking ages, certain drug laws, …) but the very idea of law and of codified legal systems. Codified legal systems are an example of cultural evolution and, further, how “evolution” does not mean the same as “progress” – and can, in fact, mean exactly the opposite. An old Roman proverb asks, Quis custodiet ipsos custodes (who will guard the guards)? In our own society the answer is as obvious as it is frustrating: nobody. 

All human societies have sanctions against undesirable activities, like murder and rape and theft, going back to the earliest roots of humanity. Sometimes rooted in mysticism, sometimes in material economics, sometimes in inherent psychological abhorrence, these sanctions almost always make some sort of sense upon close scrutiny. Among the early Abrahamic tribes, for instance, it was taboo to eat swine, a mystical paradigm that most likely arose from plain old fear of death by trichinosis. In the pre-Hindu Vedic tradition it was forbidden to kill a cow, again a mystical paradigm that very likely boiled out of simple economic sense: a dead cow can provide meat for maybe a week, but a live cow can provide dairy for years (it’s tough for Americans to get their heads around that sort of logic, but remember we’re talking about a marginal Mesolithic ecology that didn’t offer a whole lot of alternatives). The near-universality of taboos against incest is most likely an adaptation based on myriad generations of “oops”-looking children, although that doesn’t stop some societies from condoning it to this day. And of course sanctions against rape and murder are best explained by the mechanics of simple psychology: anytime something makes somebody scream in horror, you probably shouldn’t do it.

Theft… is a tricky one. In order for theft to even exist, there has to be private ownership. I would say that nobody likes having his or her stuff taken, it just seems so obvious and self-evident, but in fact that may be a reflection of my modern Western upbringing. Ethnographic accounts of so-called primitive societies are rife with examples of people just taking things from each other, although the ideologies that often surround this “taking” appear to be based on a fundamental and important difference between their societies and ours. As one !Kung bushman explained to anthropologist Richard Lee (paraphrased), “We don’t exchange with things, we exchange with people.” In other words it’s the relationship between the individuals that matters most, not the relationship of people to their things.

Meanwhile the punishments for disobeying these sanctions or taboos also speak volumes about their respective societies. In some Native American groups, particularly in the Southwest, the practice of “clowning” – literally making fun of someone’s actions during a public ceremony – was (is?) adequate punishment for minor infractions like cheating on a spouse or being a jerk, while more serious infractions invoked banishment or possibly death. That was for the group to decide. In even simpler societies, like the hunter-gatherer groups of the Kalahari, group fluidity solved many of these problems: someone who brought social ruckus was either asked or forced to leave camp. And even the Biblical law of like for like, summarized in the popular phrase “an eye for an eye and a tooth for a tooth,” which also derives from the practices of early Abrahamic tribes, essentially suggests that individuals should mete out punishments that befit infractions. In these and countless other examples the burden of decision falls on the individual or the group, and is not explicitly codified. 

Thus we come to the issue of codification, my favorite example of which comes from China. During the Shang Dynasty (1766-1027 BC, or about 3756-3017 BP) the Chinese created large, beautiful bronze cauldrons and used them for public cooking of sacrifices. Writings often adorned the sides of these cauldrons, and many of these writings referred to laws or judicial ceremonies consistent with local practices. Thus, whenever anyone came to offer his or her sacrifice the laws of the land were right there to see, literally written in bronze. The Confucians considered this an excellent practice, reasoning that explicitly-written laws will eliminate confusion (no pun intended) about exactly what is and is not permissible; but the Taoists thought it was ridiculous, reasoning that explicitly writing laws fails to account for human nature and the tendency of people to enjoy solving puzzles. When sanctions aren’t made explicit in the form of laws they’re simply aspects of society, taboos and no-no’s that you either do or don’t do depending on whether or not you feel like dealing with the social fallout. Codifying those sanctions converts them from tacit traditions into overt obstacles, and boy-oh-boy do people love trying to negotiate obstacles, or so the Shang Dynasty Taoists believed.

This is one of the earliest and most delightful examples I can think of where ancient scholars were already way ahead of modern psychologists. People really do enjoy solving puzzles, it’s an evolutionary trait that helped us survive and become what we are, and among the most fun puzzles you can present for someone is that of getting through a maze. Codifying laws is an abstract form of creating a maze, with solid walls representing forbidden or off-limits or not allowed, and the moment you do that people immediately start trying to figure ways to get around, over, under, or even through those walls. This is known as “litigiousness,” a tendency to attempt to wangle around laws based on the language of their codification. It is the principle – if not sole – occupation of lawyers, the sum of whose careers was best exemplified when Bill Clinton asked, “What do you mean by ‘is’?”

So: taking social sanctions and taboos out of the hands/minds/hearts of individuals or groups of living, breathing people and codifying them as a set of concrete abstractions engenders litigiousness. I can live with that. But it also engenders officiousness. The literal definition of officious is “volunteering one’s services where they are neither asked nor needed; meddlesome.” The common-usage definition is somewhat more concise: self-righteous incursion into others’ affairs. The only difference between this and simple bullying is that bullies don’t believe they’re doing something moral, virtuous, or socially justified; they just think it’s fun. An officious person is one who gets in your way, pushes you down, lectures you and embarrasses you and frightens you, and sometimes even physically restrains and/or beats you – in other words, bullies you – all with the motivating benefit of rationale. That rationale is law.  

Finally, there is the issue of material consideration. Recall the !Kung example and what “taking” means in a society that places principle emphasis on people rather than things. This is an important distinction to bear in mind when considering the fact that because codifying laws and punishments begets litigiousness, and because litigiousness begets lots and lots of people trying to wangle around those laws, it is necessary to erect an entire societal subcomplex in order to enforce those laws and punishments. This creates its own problems, chief among which is that of allocation: you can’t get something from nothing, not in this universe, so who pays for all of that? Why, the people being policed and disciplined of course – who did you think? This is easily justified by the tacit (and sometimes overt) explanation that it’s for our own good, because the taxes and fines that we pay to support the penal system are visited back upon us in the form of protection and a sense of safety in our cities and towns. Right? Don’t you feel safe in modern American cities and towns? Don’t you feel like the amount of money put toward law enforcement – not just salaries, but cars, guns, office buildings, courthouses, and of course prisons, among rather a lot else – is offset by the warm and fuzzy feeling of total security you have, just knowing that nobody will ever hurt or wrong you in America? For those who have been wronged by criminals: didn’t they catch the crook and punish him or her to a degree that you found personally satisfying? Doesn’t that happen like all the time? And for those who have been punished for doing something that is, for either stupid reasons or no reason at all, considered unlawful: don’t you feel like you deserved it because you’re a bad person? Don’t you feel like it’s okay for your tax dollars to finance a mechanism that reaches back around into your wallet again when you park in the wrong place or cross the street outside of a pair of painted lines? Doesn’t that seem totally sensible and not at all like some sort of racket?

If the answer to any of those questions was “no,” then you get my point. Our legal system, like any other codified legal system, exists for the ostensive purpose of maintaining social order but operates primarily as a way to a) protect the interests of our investments rather than our selves – this is why mall cops and retail outlet security guards deserve all the hassle that meth heads and teenagers give them; they don’t even entertain the illusion of serving and protecting people, they serve and protect things and are apparently totally okay with that – and b) generate their own capital. So that they can keep growing. So that they can enforce more laws, hire more policemen and buy more guns and cars and prisons and high-tech gadgetry. So that they can arrest more people and levy more fines. So that they can keep growing…

If this sounds suspiciously like what a cancer cell does, that’s because it is.

So that’s why I hate the legal system, and not just our legal system but all of them. We as a species got by just fine for over a quarter of a million years without scrolls and books and cauldrons telling us what to do, what not to do, and how we can expect to be punished if we disobey the latter. Non-penal social sanctions operated just fine during this entire era, and in fact I – and many sociologists – think those sorts of sanctions are tremendously more effective than what we’ve got now. If you disobey the law of smoking marijuana you’ll lose some money, either directly to the penal system via fines or indirectly via paying for a good lawyer; but if you disobey the social taboo against being an asshole you will be ridiculed, ostracized, and possibly beaten-up by your friends and neighbors. Which form of punishment has a deeper, more lasting, and more meaningful impact? And the threat of which one is more likely to deter an infraction? Our society has raised us to think it’s the former, because money is of such inordinate importance and nobody wants to have his or her money taken away (this applies to “time” and “life” as well, both of which are also inordinately important and useful tools for take-away threats, but I’ll leave that alone for now). But let’s be honest: what’s really more important? Your monetary currency or your social currency? We answer that question all the time when we use our money to buy expensive showoff items; e.g., if money really was of apex importance we wouldn’t so readily transpose it into fancy baubles. So fines against stupid laws are, at best, a toll that you pay to do things that society doesn’t want you to do, and you only have to pay that toll when you get caught. If it wasn’t for the extremely obvious fact that the whole thing is a self-serving racket I would criticize it for being a lousy way to ensure public safety. Which is true – but the more true statement is the one about it being a racket.

On a final and interesting historical note, Thomas Aquinas, aka Saint Thomas Aquinas, wrote in one of his Epistles that the Ten Commandments, those most sacred examples of codified stricture in the history of Christendom, were not passed into the hands of humankind as a set of rules to be followed. They were passed into the hands of humankind precisely to demonstrate that they couldn’t be followed. Thou-shalting us not to murder, steal, worship another God or commit adultery are reasonable enough requests, but *requiring* people to love God and their mothers and fathers (“love” being a thing that’s pretty difficult to achieve under duress) is a tall order, as is not doing any work on Sabbath day. What if the roof is leaking…? And forbidding jealousy is just plain ridiculous; that’s like forbidding people from salivating when they smell pizza. Granted, I’m pretty sure every armchair philosopher who has ever really considered the Ten Commandments came to his or her own conclusion about this stuff, tucked it away and then trotted it out during a “this is why religion is stupid” rant, but again: Saint Thomas Aquinas beat you to the punch. A set of impossible rules means that everyone is a sinner. If everyone is a sinner, then everyone goes through life feeling penitent and humble. If everyone feels penitent and humble, then everyone will constantly be trying to repent and make a better life for him/herself and others through acts of faith and charity. In sum, according to St. Thomas, the most canonical and easily-recognizable set of codified rules in the Western world was specifically designed so that everyone who knew about them was always guilty and would therefore always be trying to do better. Our own laws are very similar, in that pretty much everyone is guilty of something-or-other pretty much all the time, but the state of constant guilt they inspire is not designed to compel us to be better people. It is designed to fuck us over.  

As for why I hate cops: again, I don’t. Most of the law-enforcement personnel that I’ve known had a genuine desire to protect and serve the interests of their fellow citizens. Many of them aren’t cursed by deep thinking the way that I am, and none of them are anthropologists, yet even then I’ve known plenty of cops who had a sense of equity (that is: they know when the “letter of the law” doesn’t apply and are willing to employ independent thoughts rather than just follow orders). The legal system engenders officiousness and state-mandated theft of property via ridiculous punishments for infractions against ridiculous laws, but not intractably, and at the end of the day cops and judges are still people and I’ve known and liked quite a lot of them. If anything I feel bad for them, the way that I feel bad for Wal-Mart employees. I would like to shake them by the shoulders and scream, “Don’t you realize you’re doing awful work for an awful system that cares more about things than people? Don’t you realize your paychecks are consignment dregs from a vat of misanthropic terribleness?!” But of course I would never be so rude. Not in this economy.

First Post Script: this… this whatever-this-is is titled “Resurrected” because I began writing it over a decade ago and only recently decided to finish it – by which I mean I recently stumbled across it and wondered, by typing them out, if my opinions had changed since then. I think the setup to this piece was when I was at a party that got busted by some cops and I said to a friend, “fucking pigs…” So: a belated “sorry” is due to all of my friends in law enforcement. I don’t hate you, I just hate how the legal system has become as much of an insidious racket as the modern medical system and religious and educational institutions. It’s okay; really, it is. Everybody needs a job.

Second Post Script: I am indebted to G. K. Chesterton, Richard B. Lee, Alan Watts, Marvin Harris and Lao Tzu for material relevant to this… for this… for being too dead – except Lee – to prevent me from indiscriminately squishing their ideas together despite (and I’m serious about this) all of their theories being at diametric odds. Research!