This essay is the fourth in a series and follows on from the essay on Natural Law:
The Skeptical Case Against Natural Law / 1
The Fallacy of Universalism / 2
The Skeptical Case against the UN Declaration of Human Rights / 3
Justified Coercion: The Purpose of Law and Legal Systems / 4
Introduction
A human legal system, in a strict, historical and anthropological sense, is a structured set of rules (laws) backed by some recognized authority and enforcement mechanism for a society to manage and regulate behaviour among its members. Law emerges wherever human societies have needed (and need) predictable patterns of conduct, conflict resolution, resource allocation, and exercise of power. (The exercise of power is when one person orders and effects the behaviour of others in accordance with instructions.) Law is a tool for social control and and effects this by social behaviour management even if some may flinch at the word control. Even the interactions in small gatherings of people (say 3 or 4 in a family group) are sufficient to give rise to laws. A semblance of laws is discernible even among animals which live in groups and where the complexity of interactions leads to rules (lion prides, baboon troops or even hunting gangs of orcas). Neither laws nor legal systems have anything absolute or universal or even objective about them. If all societies had behaviourally identical members there would be no need for any social management or any laws. It is the inherent diversity of human behaviour which means that in every society the behaviour of some will not be desirable as viewed by others. Those who have assumed the task of managing societies (by whatever means) need – in performance of their task – to limit behavioural friction among members to a level which is compatible with the satisfactory functioning of that society.
In his classic 1935 paper Cohen introduced his critique of “transcendental nonsense” which necessarily appears in the philosophy of all legal systems. Transcendental nonsense and the functional approach, Felix S. Cohen, Columbia Law Review, Vol. 35, No. 6 (Jun., 1935), pp. 809-849 (41 pages)
Cohen used the term to mock a style of traditional legal reasoning that treats abstract legal concepts (e.g. “property rights”, “corporate personality”, “contract”, “title”, “fairness”, or “due process”) as if they are real, independent, almost supernatural entities with their own inherent logical properties and existence separate from human behavior, social facts, or observable consequences. He saw that transcendental nonsense decided cases by manipulating these disembodied concepts and deducing results from their supposed “internal” logical relationships, rather than by openly examining the actual social effects, policy consequences, human behaviors, or empirical realities the decision would produce. These are concepts which cannot be assessed against any verifiable reality. By using transcendental, Cohen was referencing philosophical transcendentalism where reasoning tries to deduce truths from abstract, a priori categories rather than from empirical consequences. By using the word nonsense, he meant that such reasoning produces arguments that sound logical but do not actually resolve real social problems or explain what courts are doing in practice. In addition to his specific example of a corporation, other examples of transcendental nonsense include legal personalities, property as an absolute natural thing, sovereignty, doctrines of jurisdiction, formal contract freedom and many other legal fictions.
The purpose and practice of human laws and legal systems is shrouded in a thick fog of various kinds of nonsense. But what Cohen described as transcendental nonsense, is just a part of what I would call metaphysical nonsense. Here we find all the sanctimonious trappings which always appear as justifications of laws and legal systems (which are not verifiable against reality but may have other collateral benefits). These include viewing legal systems as a grand pursuit of Justice, or a reflection of Natural Law, or for the upholding of righteousness or as the sacrament of a sacred contract between the governor and the governed. These descriptions are intellectually comfortable and purport to be of high moral standing but they are functionally fraudulent and intentionally self-serving. If we strip away the pomp of high-ceilinged paneled courtrooms, the archaic robes, and the sanctimonious rhetoric of “fairness,” we find a far more visceral reality. At its core, a legal system is a tool for behavioural management and is designed to contain social disorder (a social entropy) through the threat or actual application of force. Its fundamental purpose is not the attainment of a moral ideal, but the maintenance of social stability through coercion, or the threat of coercion, as deemed to be necessary.
The functional purpose of law
To try and understand the purpose of any legal system, we must first define what a law is at its most basic, operational level. A man-made law is a tool to elicit desired behaviour. It is a formulation of prohibited (or occasionally compulsory) behavior, coupled with a specific enumeration of penalties for those found in breach. Any higher-level description that omits the threat of force is not a definition of law, but a definition of advice. For a law to be “useful” in a functionalist sense, it must exist in a state of tension. Behavior that humans are physiologically incapable of performing, such as flying, requires no legal prohibition. Conversely, behavior that all humans invariably comply with, such as breathing, requires no legal mandate. Therefore, the only “useful” laws are those that address behaviour that people are both capable of doing and inclined to do, yet which the societal power wishes to suppress for the sake of order. It is in the nature of human association that minority behaviour that gives offense to a majority is discouraged and even suppressed. It is very rare (and impractical) for majority behaviour to be suppressed by a minority.
This leads to a central paradox. A law that is never broken is redundant, as it reflects a pre-existing social or biological certainty, but a law that is never complied with is futile, as it represents a failure of societal power. The “success” of a law is found in the middle ground as that which permits a “judicious” amount of unwanted behaviour (crime or civil disruption or civil conflict for example). The societal power acknowledges that a certain section of society will always oppose its dictates. The purpose of their law is to coerce a sufficient number of these dissenters so that the disruption they cause remains within manageable bounds. No legal system ever has the objective of achieving complete compliance with the law. “Just enough” compliance is the name of the game. As long as enough criminals are held accountable others may go unchecked. As long as the limited number of cases that the legal system system deals with is seen to be “fair and just” then the quest for “fair and just” for all cases can quietly be ignored.
If the purpose of law is primarily management of social behaviour (via coercion), why do we then invest so much energy in the “camouflage” of purpose by invoking majesty, sanctity, divinity, royalty, and honour? They are all, of course, metaphysical nonsense and invented, artificial, empirically unverifiable concepts. But in their sanctimony and appeal to metaphysics they do provide crucial psychological sustenance for human legal systems. They are principally cosmetic in nature though many people invest form with imaginary substance. The reality of societies is that raw force is expensive. A societal power that must place many policemen on every street corner to ensure compliance will eventually go bankrupt or collapse under the weight of its own friction. The “sanctity” of the legal system serves as a social lubricant. By imbuing the law with a sense of metaphysical justice or fairness, the societal power achieves a psychological victory that force alone cannot buy. When a citizen obeys a law because they believe it is right, or because they respect and accept the authority of the court or the majesty of the law, the cost of enforcement drops to zero. The robes and the wigs and the collars and the gavels may be steeped in tradition but their main function is to imply that law and the legal system is supra-human. Metaphysical. Majestic. Even Divine. This theatre in a circus serves to camouflage the messy, coercive, necessary code running silently in the background. Legal systems and law are tools for threatening, and doing, harm to some as deemed necessary for the greater good.
The transcendental illusions
Much of the metaphysical nonsense is sanctimonious packaging. It exists to create justifications in the form of moral illusions for imbuing a false notion of high purpose and of easing the conscience of individual practitioners in being party to doing harm. It is difficult for a person to spend their life suppressing the impulses of their fellow humans if they see themselves as a mere bully. By framing their work as serving justice, they are granted a moral alibi and a place in heaven. They are no longer crass individuals exercising or threatening harm. Instead they are elevated to be instruments of an abstract, higher Good. This depersonalization is essential for the sustenance of the system. In a legal system cloaked in theism and honor, the enforcers use sanctimony to create a moral subsidy. Practitioners adopt the illusion of great moral significance into their own actions as a way of increasing worth and job satisfaction. Young lawyers and police are often recruited on the premise that they are protecting the innocent or upholding the Right. This belief allows them to perform tasks that would otherwise be psychologically damaging (levying penalties, seizing property, depriving people of liberty, enforcing evictions and even inflicting pain). If the system were stripped of its false camouflage, the cost would also include a psychological tax. To recruit a person to be an admitted instrument of raw coercion, would need to compensate for the perceived social stigma and the internal mental stress. Public servants would seem more like mercenaries. When the system is wrapped in apparent sanctimony, it attracts, and above all retains, people who value stability and order. These individuals are often more reliable and less prone to individual corruption because they believe they serve a Higher Power (be it God, The Law, or The Constitution). The trappings (the robes, the ritual, the language, the architecture, the pondus) also serve to clothe the practitioners with the paraphernalia. the trappings of a high calling with metaphysical goals. Not unlike the priests of suspect religions. When a judge says, “It is the law that sentences you,” they are distancing their own humanity from the act of coercion. This depersonalization is a vital retention strategy. The “sanctimony” allows the practitioner to remain “cold” and functional over a forty-year career.
The “divinity” and “pomp” of the law is a cost-saving measure in the labor market. It allows the state to recruit high-quality, stable, and disciplined “mechanics” at a fraction of the price of mercenaries, while shielding them from the psychological consequences of their own coercive actions.
The primary purpose is social stability
In this functionalist framework, the “goodness” of a legal system is decoupled from morality. A “good” system is not one that eliminates crime. To do that would require a level of surveillance so total and a cost so high that the society would cease to function. Rather, a “good” system is one that allows some necessary social friction and yet maintains a level of equilibrium judged necessary by the societal powers. The system monitors social friction and adjusts its coercive output accordingly. It allows for a certain amount of undetected crime and a certain number of unjust decisions, provided these outliers do not threaten the overall perception of order. If a law becomes too difficult to enforce (such as by the prohibition of a widely practised behaviour), a “good” (rational) system will eventually abandon it, not because the behavior has become “moral,” but because the cost of coercion exceeds the benefit of stability. In a system or thermodynamic sense social entropy is a measure of disorder in the system. In this perspective the legal system is essentially a tool for managing social entropy. In any collection of eight billion unique individuals, the natural state is chaos. The legal system is the energy expended to keep that chaos at bay. It is in the nature of every adversarial court judgement that one party is favoured and the other penalized. The penalty always involves the doing of some form of explicit harm to the disfavoured party and may, in civil cases, involve some real benefit to the other party. Some of the transcendental and metaphysical nonsense helps the losing party to accept, even if reluctantly, the institutional harm imposed upon him. The law threatens the doing of harm (and thus coerces) and every application of a legal judgement does always involve the doing of harm to the losing party. A modern state is characterized by its effective monopoly on the legitimate use of physical force within a territory. The access to superior force is the necessary, but not sufficient, requirement for any legal system to function. Without this the system is advisory rather than legal. Advisory or normative systems rely on persuasion, reputation, or voluntary adherence. Legal systems rely on the availability of institutional enforcement backed, at the final resort, by coercive power. But force alone does not generate a legal system. That requires an institutionalized, routine, rule-bound deployment of structured coercive capacity rather than the discretionary use of raw force.
The “rights” we cherish are not inalienable truths. There is a pretense, but no real attempt, of legal systems pursuing absolute justice or absolute fairness (even if they could exist which they don’t). Over 60% of a thousand murderers every day go free. The global society finds that not unacceptable. Over 85% of car theft does not lead to any prosecution. Society (with its insurance industry and the high cost of apprehending petty criminals) finds this not unacceptable. Most car thieves get away with it. A quest for absolute fairness never comes into play. The 40% of murderers who get caught and are held accountable might even think it unfair that 60% go free. The law and the legal system need not do more than enough (and only just enough), to convince the general citizenry to remain productive, cooperative, and, most importantly, compliant. It does not need to do any more for societal needs. More is often pretended to as part of the metaphysical camouflage.
Conclusion
I am left with a somewhat cynical but logical conclusion that for a legal system to be truly “good” (meaning effective and sustainable), it must camouflage its own nature to protect its own functionality. If a system were to be perfectly transparent, if the judge were to say, “I am taking your property because it serves the current stability of the state to do so”, the illusion of legitimacy would shatter. The coerced minority would no longer feel they had “lost a fair trial”; they would feel they were victims of a hostile power, and they would act accordingly. The “Justified Coercion” of the title is therefore not a moral justification, but a functional one. The coercion is “justified” only in the sense that it is required for the machine of society to continue turning. The purpose of the legal system is to manage the inevitable conflict between individual desire and social necessity, using just enough force to keep the peace and just enough “sanctimony” to make that force palatable.
To view the law through this functional lens is to see it as a tool. It is an artefact, a social construct rather than a sacred text. In many ways it is not dissimilar to a religion. But that is because every religion, is about controlling the social behaviour of its members. We must judge law not by how “just” it is in some abstract, transcendental sense, but by how well it performs its cold, rational task of behaviour coordination and suppression. The legal system is a necessary evil of the human condition; a complex, expensive, and often deceptive engine built to ensure that our collective life remains “manageable.” By stripping away the false camouflage of Natural Law and universal morality, we gain the clarity to evaluate our laws for what they truly are; the tools of a species that has learned that it is better for their societies to be managed than to be “free” in a state of anarchy and chaos.
There is no righteousness or divinity or sanctity in laws and there are no such things as Natural Law or Divine Law.
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