The legal system is the shadowy underpinning of any large society. Even where the rule of law is absurd, reckless or disproportionate there are basic principles of civilisation that need something to stand on. If we could evolve to a point where law was unnecessary, I suspect we’d be in paradise. I don’t think it is likely to happen except by some kind of miraculous planet wide telepathy, which seems like a long shot.
Jurisprudence is the only thing that allows us to walk down the street and know we aren’t likely to get shot, or have our house stolen by our return. It allows us to spend our lives living, instead of defending ourselves and what we have. Sure, there’s a spirit of co-operation that reinforces that, but there is likely to be enough people who would take advantage if there was no threat of punishment.
The law is the reification of the social contract that keeps the world in order. Not least because people can feel confident enough that they are receiving the same sort of protection as anyone else (speaking idealistically).
This feels like far too cynical a standpoint for me to take, but I can’t get past it. Even utopian communities will have to deal with disagreements.
So if we accept that there needs to be some kind of defence of some sort of rights, then we need to work out what is needed.
It’s actually quite flexible, but I think constitutes three key ingredients that must be present. Without them you haven’t got a legal system. The three parts can be constituted in ways that in no way represent our legal system though.
I see the three as ‘law’, ‘judgement’ and ‘response’.
There has to be something that holds what is acceptable. Something that notes when something unacceptable has been done. There has to be something that responds to breaches of the acceptable.
Where I am, the ‘law’ is created by parliament, the ‘judgement’ is made by a system of courts, and the ‘response’ is custody, fines or community service.
All of that is flexible. In a more small scale system, they could all be combined, a whole community could get together when one person has a complaint, decide what is the right way to proceed and what to do about it. One institution (a group meeting) constitutes all three parts, or at least the deciding of what they are. This is worryingly pliable, and probably even more corruptible and manipulable than our present kyriarchy.
We need to rebuild our version though. We need to think about how we build our law, how we make our judgements and whether we understand the right way to respond.
I think our problem is that we aren’t willing to talk about what a legal system is for. Justice is a scary word to think about it, wrapping up desires for vengeance and fairness together as one. Retribution and rehabilitation aren’t necessarily compatible.
We need to think about justice.
Illustration by Emma