The Necessity of Law
It may seem strange that at the very outset of our inquiry into the Idea of Law the question should be raised whether law is really necessary at all. In fact, however, this is a question of primary significance which we ought not and indeed cannot take for granted. For it arises out of the uneasy and perplexing doubt not only whether law may be 'expendable' as being unnecessary for the creation of a just society, but also whether law may not perhaps be something positively evil in itself, and therefore a dangerous impediment to the fulfilment of man's social nature... Moreover, the feeling that law inherently is or should be necessary for man in a properly ordered society receives little encouragement from a long line of leading Western philosophers from Plato to Karl Marx who, in one way or other, have lent their support to the rejection of law.
If Lloyd asks such a question, it is almost certainly because he tends to regard the condition of humanity as one of complete freedom. In this view, human society is a sort of game that we all play, and human civilisation is the product of human choice and will, and is consequently 'our chosen way of life'. Given such a rosy vision of human life, it is indeed rather hard to see law as anything other as an unnecessary restraint upon humanity, and an impediment to human fulfilment.
But in Idle Theory, such a condition of complete freedom is one of two theoretical extremes of the human condition. In Idle Theory, human life is suspended somewhere below a condition of perfect idleness and complete freedom, and above a condition of unremitting toil, death, and extinction. Technological innovation, trade, industry, and - critically - ethical behaviour, serve to improve the human condition, by increasing idleness. Unethical conduct - theft, murder, etc. - serves to reduce idleness. The ultimate price of unethical behaviour is not unhappiness, or even pain, but death.
And it is against this prospect of death that ethical behaviour within interdependent human society becomes imperative. And it is out of this imperative that the necessity of law arises. Ethical conduct is not some sort of take-it-or-leave-it option behaviour: it is instead imperative for human survival.
The entire purpose of technological innovation, trade, industry is the increase of human idleness, and therefore of human freedom. And the entire purpose of ethical codes of conduct is also the maintenance and increase of human idleness. And so also is the entire purpose of law. The law acts, or ought to act, to increase human idleness, and to increase human freedom - not arbitrarily restrict it. Good laws will regularly act to maintain or increase human idleness. Bad laws will decrease human idleness.
For example, a Highway Code that enjoins drivers to keep to one side of the road provides an example of a law which expedites the movement of traffic, speeds the activities of toiling humanity, and thus increases their idleness. And since murder and theft and assault and vandalism act to decrease idleness, so laws that prohibit such activities also serve to maintain human idleness.
But while technological innovation and trade and industry are concerned with the increase of human idleness, it might be said of the law that it is in large part concerned with preventing or mediating any decrease in idleness - such as may be caused by assault, murder, theft, vandalism and the like. The law proscribes such conduct, but also offers redress in the event of it.
Human societies are essentially self-regulating. But, even with the best intentions, there are always likely to arise disputes or conflicts of interest of one sort or another, which individuals cannot resolve themselves, and must turn to some higher authority to adjudicate upon the matter. And individuals may not know the law, or have forgotten the law, or reject the law, and consequently act in ways that reduce social idleness in one way or other that demands the intervention of the formal apparatus of the law.
It is very difficult to increase idleness, but it is very easy to decrease it - just like it is difficult to climb a mountain, but very easy to fall off. Everyday life might be regarded as a stream of autonomous individuals walking along the narrow path across a bridge. These people are perfectly free to stop and talk, or turn around and go back, or do anything they choose. But should they stray off either side of the road across the bridge, and fall, they will be injured. And here the law might be regarded as a safeguard against this eventuality, in the form of handrails on either side of the bridge. These handrails may seldom be used by people walking across the bridge. But every now and then, should someone trip, or collide with another, or lose direction, these handrails will save them from falling, and guide them back onto the road. And if such handrails proved ineffective as barriers, they might be built higher and stronger, and with perhaps even a row of spikes to deter anyone from climbing over them. In such manner the law acts to obstruct, as far as it possibly can, people from straying too far from the narrow path of prudent self-governance, and acts with increasing force the further they stray.
The Unitary Purpose of Law
The sole purpose of the law, and the entire justification for it, is the maintenance and increase of human idleness, or the prevention of decrease in idleness - and nothing else. It is not the purpose of the law to bind and constrain men: it is the purpose of the law to set them free.
And this is a general covering principle or law, of which all particular laws are simply particular instances. All particular laws ought to be derived from the general covering law, and should be able to demonstrate in what way they serve to maximize idleness. And if still more particular laws are derived from these particular laws, these further laws should also be able to demonstrate their accordance with the general covering law. In this manner, a whole set of general and particular laws may be derived from the single covering law, in a hierarchy of laws, each of which is ultimately nothing other than the general covering law as it applies to a particular matter in a particular place at a particular time. And the purpose of having particular laws derived from the general covering law is to simply save the time and trouble of deriving the particular from the general in every single case.
Thus laws governing the rules of the road, or protecting private property, or requiring safeguards in vehicles, building sites, factories, and the like, should be laws which are designed either to increase social idleness or to prevent its decrease. The rules of the road are or ought to be concerned with expediting the flow of traffic, and increasing social idleness. And laws requiring buildings to be constructed so that they do not collapse and cause injury, or requiring manufacturing processes to include protection for workers, and the like, are particular laws intended to prevent the loss of social idleness that accompanies injury.
And even where no particular law can be found that covers some new circumstance, it ought always to be possible to invoke the general covering law. Thus no action whatsoever ever falls outside the scope of the law. Just because there is no explicit law against something, it does not mean that it is perfectly legal. It only means that the general covering law may not have been extended to deal with it.
And the law must always be adapted and adjusted to prevailing circumstances. The law must be kept in good repair. The law can never be final and fixed. Laws, just like tools, can rust and decay, or become obsolete. Bad laws, like bad tools, can cause more harm than good. What is a good law in one circumstance may be a bad law in another. And therefore it follows that any body of law should be under the constant scrutiny to weed out useless and obstructive old laws, and propose useful new ones.
And it should be open to anybody to call particular laws into question. What matters is not that anyone breaks the law, but that they do not act to decrease social idleness. If they can show that, although they may have broken some particular law, their actions have not harmed society, and even benefited society, then the law should be amended.
And if the sole purpose of the law is to maintain or increase idleness, or minimize any decrease of idleness across society, then there is no place for laws which serve any other purposes. Nothing should be enshrined in law that merely derives from custom, or prejudice, personal preference, or anything else. Nor can the law be invoked merely because somebody judges some conduct to be shocking, or outrageous, or insulting - because such opinions have no effect upon the idleness of those that hold them. It is not the purpose of the law to enforce dress codes, or to restrict free speech, or require adherence to any religious belief, or require them to behave in any way that others might wish them to do, if these have no effects upon social idleness. Nor is it any part of the law's purpose to determine what people may or may not do in their idle time, except if it has detrimental consequences for social idleness.
And it is not the purpose of the law to stop people from governing their own lives, and putting them under the command of law. Societies made up of self-governing individuals will always be more idle than societies in which the law is continually being invoked. And this is because the exercise of the law, by police and courts and judges, always entails a reduction in social idleness. And the more the law is invoked, the greater the fall in social idleness. The law should instead always encourage people to responsibly govern their own lives, and resolve their differences and disputes among themselves, and resort as little as possible to the formal process of law. And the formal operation of the law should be swift and final. And particular laws must be clear and concise.
The Force of Law
And since law does not act directly upon men, but requires both their knowledge and acceptance of the law, it follows that the law must be backed by the threat of force - much as the handrails on a bridge exert force upon those who collide with them. When some dispute is brought before the formal apparatus of the law - courts, judges, juries, and the like -, the final judgment that they pronounce must be backed by some terminal power. So that if, in some dispute between individuals A and B, a court a court orders that A compensate B in some manner, but he refuses to do so, then the court may physically force A to compensate B. Without such force, the rulings of judges would simply be non-binding legal opinions, that anyone could ignore with impunity.
But the force of law may vary. As, partly under the beneficial influence of law, social idleness rises, so the force of law must gradually relax. And in a condition of perfect idleness, the law will have no force at all. And this is because idle human societies are not in imminent danger, and so the law can be relaxed, and misdemeanours let pass.
Equally, if social idleness falls, the force of law must strengthen. For as social idleness falls, and the existence of human society comes under growing threat, then the law must be increasingly rigidly applied and observed. And should social idleness fall to near zero, then human societies will be found to be regulated by law in their every activity, living under something like martial law, and facing summary justice. (Indeed if, during time of war, martial law is invoked, it is because war always entails a fall in idleness.)
In a land flowing with rivers of fresh water, the theft of a bottle of water is a minor inconvenience. But in a desert wasteland, the theft of the same bottle of water may pose a threat to life. So in the former circumstance, the law is mild, and in the latter it is harsh.
Justice as Restitution
It ought never to be the purpose of the law to judge men's character, but solely the consequences of their actions. No judge should ever say of anyone brought before him: "You are an evil man."
Revenge is no part of the purpose of the law. And it should never be the purpose of the law to punish men for their misconduct. If some man acts in some manner which decreases social idleness, then the infliction of some punishment upon him only compounds the damage done. If we are to demand an eye for an eye, we end up with two blind men instead of one.
Nor can it be the purpose of the law to maintain an equality of idleness across society. If someone's misconduct causes a loss of idleness to one or several persons, it is not the purpose of the law to distribute this loss equally among every member of society. If it was, the operation of the law would consist entirely of a mechanical redistribution of idleness, without investigation or trial.
The goal of the law ought instead to be that of requiring restitution. If individual A acts in some way that decreases the idleness of individual B, then individual A should compensate individual B for his loss. Thus if a man takes something from another, and is brought before a court of law, he should be made to give it back, and to compensate for any inconvenience to its owner, and to also compensate the officials of the court for the time they have devoted to the trial. And since such restitution will almost certainly outweigh any gain made, it will regularly result in a deterrent punishment.
Of course, there are undoubtedly many cases in which such restitution is, for one reason or other, impossible. And there may also be cases in which someone is such an habitual offender that he poses a continuing threat, or even menace, to society, a court may determine that he should be expelled from society.
Restitutive or restorative justice will not act to create a social equality of idleness. It will generally act to restore the status quo ante. But the increase of social idleness does not necessarily entail such equality, even if such equality is preferred.
The sketch outline idea of law presented here is of a system of law that has at its centre a single guiding principle - the maintenance and increase of human idleness -, which principle is used in particular cases to determine whether the conduct of persons has resulted in losses of idle time for other persons, and require the restitution of such losses. Particular laws dealing with particular common occurences are simply useful shortcuts to avoid repeating complex arguments from the general to the particular. In principle, anyone who feels that they have been injured by anyone else in any way may have recourse to the law to seek restitution, regardless of whether there does or does not exist any particular law that deals with it.
Unsurprisingly, it is an account of law which is at odds with existing notions of law. And this is because Idle Theory's fundamental conception of the human condition is not one of present freedom, but one of an existing toil and suffering and constraint, from which it is the primary human purpose and endeavour to escape. In Idle Theory, almost all human activity, from tool innovation and trade, through ethics and politics and law, is ultimately concerned with the relief of humanity from toil and suffering.
Most Western philosophy, however, starts with an aristocratic assumption of a datum of human freedom, and describes human history as primarily the consequence of the exercise of this freedom. The economy is simply a system of manufacture and exchange of goods that are psychologically desirable, that give pleasure or satisfaction. And our political organisation is regularly described as "our chosen way of life", sometimes with an additional assumption that we have "the right to life, liberty, and the pursuit of happiness". And if humans built civilisations, it is because they "got off their backsides, and made it happen, rather than sitting around doing nothing". And ethics is largely thought of in terms of free moral agents choosing different course of action, and Utilitarian ethics has the psychological goal of "the greatest happiness for the greatest number". Equally the law treats people as though they were free moral agents, and punishes them for their transgressions. And given that some people freely choose to do evil, and others freely choose to good, it is supposed that some people are naturally good-natured, and others naturally malevolent. And this results in human life being seen in terms of a struggle between Good and Evil. Almost the entirety of Western thinking is founded upon an idea of humans as free agents, whose conduct is determined by their psychological disposition.
By contrast, Idle Theory denies any such datum of human freedom. In Idle Theory, such a freedom is the goal of human endeavour, and not something it already has. Human technological innovation is not mere playfulness, nor the economy merely a market for toys and trinkets and amusements, but instead of tools that emancipate humanity from toil. Nor is ethics concerned with how free agents should behave, but rather how people should behave so that they might nearest achieve such freedom. In Idle Theory's vision of human life, it is not what people think that determines what happens, but rather what happens that determines how people think. Instead of human mind and will determining everything, it decides almost nothing. If some people become criminals or warlords, it is not because they are evil in the hearts, but because such conduct offers a short cut to freedom, gained at the expense of everyone else. Thus Idle Theory is an essentially forgiving vision of a bound and tied humanity, stumbling and falling, dazed and confused, forever helplessly making mistakes, and deserving of compassion rather than condemnation and punishment.
Author: Chris Davis
First created: November 2006