Table of Contents:
Life under Contract
The tyranny of yes and no, the migration of life to a wholly domesticated realm, and the dwindling of the uncertain and undefined in favor of the expressly permitted and explicitly forbidden takes another form in laws, rules, and regulations. Here the program of control manifests as a spreading legalism that infiltrates all aspects of modern life.
In the ecological sphere, the shrinking of the wild is domestication, confinement, and the Great Indoors. In the personal sphere, it is the conquest of the child’s spontaneity and creativity. In the social sphere, it is the codification of previously informal agreements, ethics, and mores. As legal scholar Paul Campos puts it, “Anyone who compares the legal domains of our society to those of the premodern state immediately becomes aware of a tremendous and ever-increasing contraction of formally unregulated social space.”
Our dependence on authority to delimit the realm of the permissible projects onto the collective level as “the urge to regulate—to medicalize, juridify, and police every act of labor or play.” Thanks to our schooling, we are accustomed to being told what is allowed, accustomed to authority determining right and wrong, and accustomed to coercive enforcement of these distinctions. Implicit in a world under control is that if something goes wrong, it must be someone’s fault. Someone must bear legal responsibility. Someone must be punished, and I should be compensated. And so, children in authoritarian institutions (such as schools) resolve disputes by telling on each other—going to teacher, the source of authority. In religion the same tendency manifests in the idea of God as a referee who will reward the just, punish the wicked, and make everything fair in the end. In law, this attitude motivates the burgeoning realm of the regulated, the “ever-increasing contraction of formally unregulated social space,” and our endemic reliance on lawsuits to resolve disputes.
The rule of law has become a necessity as other forms of social coordination have broken down with the dissolution of community. In olden times, informal social pressures were far more potent than they are today because people depended on their neighbors to meet economic and social needs. The goodwill of the community was extremely important and the consequences of social shunning severe. Today in America there are few real communities to speak of, only neighborhoods, and the opinion of the neighbors matters little. As long as I obey all the laws, who cares what the neighbors think? I am safe from anything they might do. I don’t need to buy things from them, I don’t need them to watch out for my children, I don’t use the things they make, I don’t depend on them for recreation. The conversion of social capital into money means that just as with all the rest of life’s necessities, we rely on remote strangers for dispute resolution. The local and personal has been replaced by the formal and remote.
Suppose my son breaks my neighbor’s window with a baseball. My neighbor asks me to pay for it. In the past, if I refused, the opinion of the whole neighborhood would turn against me. If I who consistently behaved like that, I would find myself unable to get credit at the local grocer’s, unable to receive emergency service from the local doctor, unable to get babysitting help when something happened. People depended on the favors and non-monetary reciprocation that we call neighborliness. In most places in America today, few of those mechanisms of social pressure still operate, and my neighbor has no choice but to sue me, resorting to the outright coercive force of a distant and impersonal authority.
Impersonality is built in to the very concept of law, which is supposed to be objective, rational, and impartial. Disputes are to be resolved not according to who knows who, not according to one’s reputation in the community, not according to whom the judge likes, not according to emotional judgments of right and wrong, and not according to popular sentiment, but rather by the impartial application of legal reasoning. That disputes in general can and should be resolved according to logic and principle is a fundamental assumption springing from the Newtonian-Cartesian worldview and modeling itself after axiomatic mathematics. In formal mathematics we start with basic axioms—the equivalent of a constitution—and reason from those, adding new axioms (legislation) as necessary where the old ones fail to prove or disprove a proposition (resolve a new type of dispute). At the zenith of the Age of Reason in the early 20th century, David Hilbert enunciated the final goal of mathematics: a complete set of axioms from which all mathematical truth could be deduced. Though Hilbert’s program crumbled with the work of Godel and Turing in the 1930s, in the realm of law we seem to think that any failure to rationally resolve the disputes of our day can and should be addressed with yet more laws. The end result would be a Hilbertian complete set of principles by which the legality of any act could be determined through unassailable logic. Then the ambiguity of human interaction would be gone. We would have in human relationship the same certainty that the physicists have sought for centuries in their quest for a complete universal law, a “theory of everything,” in which everything would be of well-defined legal standing.
Every act would either be legal or illegal. Already we are so thoroughly conditioned to a world under control that I suspect many people would not see this as an alarming statement. It might even be hard to conceive of any other status, just as it is hard to conceive of a piece of land just existing, without being owned. “Someone has to own it—it can’t just be there!” We find it easy to understand, “Everything is legal unless explicitly prohibited,” or “Everything is illegal unless explicitly permitted,” but not that some things simply have no legal status.
In any realm, the regime of control demands the elimination of uncontrolled variables, the domestication of the wild. In the realm of law, the wild is the unregulated social space and the variables represent uncertainty. Law represents the social reification of the Technological Program, whose goal is, as Campos puts it, “the final elimination of risk itself.” He goes on to interpret “the urge to regulate—to medicalize, juridify, and police every act of labor or play” as a “contemporary by-product of the need to deal with the loss of any broadly held belief regarding… the point of human existence.” Intuitively, Campos has come close to a central theme of this book, which is that the compulsion to control the world arises out of an alienation which has shorn life of any meaning except the maximization of comfort, safety, and pleasure. Except it is more than a need to “deal with the loss of a belief” that generates the urge to control; control rather is the inevitable, logical conclusion of our beliefs themselves.
Here’s an amusing example of the legalistic program to eliminate uncertainty. Some years ago, I read that the student code at a certain college was amended to require that each new step in erotic foreplay be preceded by the explicit consent of both parties, as in “May I kiss you?” “Yes.” “May I caress your breast?” “Yes,” and so forth. No doubt this rule was written to clarify certain situations in which sexual consent was ambiguous, as in, “Just because I kissed him doesn’t mean I gave him permission to grope me!” The solution: define consent with even more rules. Forget the absurdity of the whole thing for a moment and consider the fundamental assumption that a sufficiently minute set of rules can resolve all ambiguity. It’s the technological program again! One can imagine a case where the meaning of “explicit consent” comes into question. Is a sigh of passion enough? Does reciprocation of a caress need prior consent? What about “uh-huh” instead of yes? Where does a sigh end and “uh-huh” begin? No doubt we could create even finer distinctions to resolve these ambiguities, but there would be still more—ambiguities created by the very attempt to define them away.
The parallel with mathematics is uncanny. Godel demolished Hilbert’s Program by proving that given any consistent axiomatic system of sufficient complexity, there will be true sentences in the formal language of that system that are unprovable from the axioms. The true sentence (or its negation) could be added as a new axiom, but no matter how many are added there will always be yet other true statements unprovable from the expanded set of axioms. Similarly, no matter how fine the distinctions of law, there will always be situations that are not logically resolvable from the law. We can add new axioms, new laws, finer distinctions, but still there would be logically irresolvable situations. Steeped as we are in the mindset of the Technological Program, the solution is nonetheless to always add on more laws, more regulations, in hopes of finally encompassing every possible situation within a legal framework: everything either expressly forbidden or explicitly permitted, with no gray areas. The result is, as Campos puts it, “the 100-page appellate court opinion, the 200-page, 500-footnote law review article, the 1,000-page statute, the 16,000-page set of administrative regulations.” And yet, as the letter of the law swells in exactitude and scope, the spirit of the law withers away and its power to control human behavior diminishes.
The extension of law into every corner of life is visible in the increasing pervasiveness of the contract. We enter into contracts all the time without even noticing it. Have you ever noticed fine print saying, “By purchasing this product, you agree. . .” At Penn State, by enrolling in the university the student is legally consenting to abide by the regulations of the voluminous student handbook, and by enrolling in my class is agreeing to the syllabus, which is accorded the status of a contract between the student and the university.
A contract is a legal agreement, one that is “real” in the eyes of the law. Here is the culmination of the confusion between label and object that representational language invites: the reality of an agreement depends on being written down, while consent devolves into a signature. What “counts” in an agreement? Not the unspoken understanding, nor its social context, but only what is in “black and white”—words on a page. Of course, the seeming objectivity of a law or contract is an illusion, since the words’ interpretation and enforcement indeed still depend on these, more human, factors.
Expanding legalism rises out of the dissolution of community; equally, it contributes to it. By relying on an outside authority to adjudicate and impose a solution, we are relieved of the necessity of working things out among ourselves. “You won’t hear from me again—you’ll hear from my lawyer!” These were the last words a friend of mine heard from a business partner of many years. Another variation: “Tell it to the judge.”
Another consequence of social governance by lawsuit and threat of lawsuit is the further reduction of life into money that I discussed in Chapter Four. Damages are calculated in dollars, and it is through dollars that we redress matters of betrayal of trust, negligence, pain and suffering, and all the other subjects of lawsuits. Generally speaking when people bring a lawsuit they are seeking money. What else can you sue for? Remorse? Sympathy? Admission of wrongdoing? When someone is financially “compensated” for a wrongful death or dismemberment, the underlying message is that money is the equal of life or limb.
The technological program to make life safe, the conversion of life into money, and the pervasion of the law converge in the realm of liability insurance. The very word insurance hints at the assumption that life can indeed be made secure, that the unsure can be made sure. One of the industry’s own terms for itself is, after all, “risk management”. The consequences of this assumption are far-reaching indeed. Have you ever wondered why all the fun playground equipment—really high swings, jungle gyms, and slides—have disappeared? Liability. Why doesn’t anyone allow skateboarding in their public areas? Liability. When the justification of safety is baldly absurd, liability serves in its place.
For the last twenty or thirty years, deterrence has been the mainstay of our penal code and prison system. The assumption behind deterrence, implicit in the very definition of the word, is that without the penalties people would commit the associated crimes. The law stands between my innate depravity and your life, liberty, and property. Interestingly, this is what Thomas Hobbes was saying in that oft-quoted passage from Leviathan. It is instructive to read the whole paragraph:
Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
Hobbes was not talking so much about a pre-technological state, but rather the human condition in the absence of government. Without government, he argued, there could be no commerce, no buildings, no creative achievement, because what would stop someone else from just seizing the fruits of another’s labor? We would always live in fear of robbery and would therefore be unwilling to do anything productive. Hobbes is talking about the ungoverned state of being.
Because it is based on the Hobbesian-Calvinistic precept of the innate depravity of man, law rests on a coercive basis that seeks to make socially undesirable behavior no longer in a person’s rational self-interest. Law is more than codified social agreements, as in “We all agree to stop at red lights.” It also includes explicit penalties for breaking those agreements. This is true not just of criminal law, with its threats to life and liberty, but of civil law too insofar as it seeks the enforcement of contracts. Think about that word. Law comes down to the application of force.
But what else could we expect in a civilization so deeply invested in Newtonian principles? Force, after all, is the only way to influence a mass—or, ultimately, change the behavior of a person—in a Newtonian universe.
Inescapably, law based on Hobbesian assumptions and coercive mechanisms disrespects the citizen by assuming that coercion is even needed. Consider a trivial example: a sign that says, “No littering, $300 fine” versus a sign that says, “Keep America beautiful, please don’t litter.” The first almost implies that if it weren’t for the fine, we would want to litter. The fine appears as the reason for not littering. The second comes across as a reminder based on the assumption that the reader certainly does want to keep America beautiful. Or consider an agreement sealed by a handshake. Isn’t it a disavowal of trust to insist as well on a financial penalty for breaking it—especially a penalty to be enforced by an outside authority?
Is it really deterrence that prevented you from stealing this book from the store? Is your true nature that of wanton acquisition? Or is that kind of behavior the artificial product of the discrete and isolated self, and the painful response to the survival anxiety implemented through our economic and social institutions? Is that really us? Are you really a murderer, if not for threat of the electric chair? If not, then the laws are insulting.
The implicit insult of a deterrence-based or coercion-based legal system is really no different from the other means by which our culture corrals the human spirit and denies its innate goodness, divinity, and creativity. Really, the essential presumption of deterrence is, to use playground language, “I’m gonna make you do it.” How do you “make” someone do something? By having power over them. And the ultimate power over someone is the power to threaten their survival. The threat to survival implicit in the policeman’s gun is little different from that in a parent’s shaming. The physical restraint of a jail is little different from that of a parent’s superior physical strength. The fact that I am not actually afraid a policeman will shoot me is beside the point. The fear was internalized and integrated into concepts of propriety, practicality, and prudence long ago. For most people, the gun is just a little reminder of that, a token of an omnipresent threat to survival. It reminds us of the fear that is “gonna make us do it.”
To reform the law along non-coercive lines would be impossible without reforming all the other structures of our society that arise from our conception of self and world. The Hobbesian-Calvinist assumption of our inherent selfishness that underlies our legal system and logically necessitates deterrence is actually true—given the conception of self we have today. However, as our current misconception of the self crumbles, a new system of law will arise alongside a new system of economics, technology, and education. Its forerunners are already being tried out in various communities throughout the world. They do not require a return to a society without specialization of labor, villages and tribes where everyone knows each other, but they do draw upon these social forms for inspiration. Such a system of law fosters community rather than short-circuiting it, respects ambiguity and the developmental function of conflict, and most importantly, assumes the goodness, and not the depravity, of all human beings.
 Campos, Paul F., Jurismania: The Madness of American Law. Oxford University Press, 1999. p. 5
 Campos, p. 29-30.
 I have simplified the statement of the theorem by neglecting the distinction between a formal system (or theory) and the interpretation (or model) of that system. The correct statement would be that there are unprovable sentences that are true in an interpretation of that system. The difficulties inherent in the distinction between mathematical theory and model also pertain to the law, and are partly responsible for the endless elaboration and repetition that characterize legal writing.
 The exception is for axiom systems that are not consistent, that contain an embedded contradiction, from which it is possible to prove anything. This is actually closer to the state of the law, which embodies many contradictory principles arising from contradictory social values. An example is free speech versus restriction of hate speech. If both these principles are written into law, certain actions will be legally justifiable according to one and unjustifiable according to the other. And this contradiction seems to persist no matter how fine a distinction is made.