IS LAW NECESSARY

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 an uneasy and perplexing doubt not only whether law may
be 'expendable' as being unnecessary to 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.

Fantastic though this viewpoint may seem to the members of a well-ordered democratic society -
whatever its particular shortcomings or imperfections may be - it is useful to remember that in
many less well-regulated societies the operation of law may appear in a more unfavourable
guise.

Moreover, the feeling that law inherently is or should be necessary for man in a properly ordered
society receives little encouragement from the long succession of leading Western philosophers
from Plato to Karl Marx who, in one way or another, have lent their support to the rejection of
law.

Hostility towards law has also played an important part in many of the great religious systems of
East and West, and was a crucial element in the ideology of the Christian Church in its formative
period.

And, apart from Marxists, there are still to be found other serious supporters of a doctrine of
anarchism as an answer to man's besetting personal and social problems.

Every age - and certainly our own is no exception— produces individuals or groups who feel a
general restlessness against all authority and who respond to this feeling by giving vent to
various acts or demonstrations against the forces of law and order. No doubt such people are
often sincerely motivated by the vague notion that in some mysterious way their demonstrations
will lead to a better and happier life for mankind, but such sporadic outbursts have generally had
little influence on the main currents of human thought and feeling.

We must therefore look deeper than the external manifestations of social restiveness in trying to
explore the ideological foundations of dissatisfaction with the very idea of law in order to find
out what it is that has urged so many, in civilizations geographically and culturally so far apart,
and throughout human history, either to reject law altogether or to regard it at best as a necessary
evil suited only to an utterly imperfect state of human society.
THE NATURE OF MAN

When we talk of some idea or concept as being 'ideological' in character, we mean that it forms
part of our outlook upon the world, upon the relation of man to the world and to society in all its
manifestations. The idea of law certainly partakes of this ideological character so that our view
of it will inevitably be coloured by our general thinking about man's place in the world, the view
we may adopt of the nature of man, or of the human condition, as some modem writers prefer to
call it, and the aims or purposes which man may be called upon or required to fulfil.

When we assert that law either is or is not necessary to man, we are clearly not just trying to state
a simple physical fact, such as that man cannot live without food and drink - we are engaged in a
process of evaluation.

What we are really saying is that man's nature is such that he can only attain a truly human
condition given the existence or non-existence of law.

Such a statement contains implicit within it an assumption as to man's goal or purposes, as to

what is good for man, and what he needs for the attainment of those objectives.

It is no doubt because of man's pernnial and intense preoccupation with such issues that thinkers
of all ages and societies have been drawn into the interminable dispute as to the ethical quality or
potentiality of man's nature.

This dispute may indeed be thought by many today to be not only interminable but also
senseless, but whether this is so or not, the position taken up has formed the major premiss in
leading to the deduction whether, or to what extent, law is necessary for man, and so its
importance for this purpose remains undeniable.

For those who see in man either the incarnation of evil or at rest an amalgam of good and bad
impulses constantly in conflict, the bad tending repeatedly to prevail over the good, it seems
evident that here are dark and dangerous forces implanted in man's very nature which need to be
sternly curbed and which, if not curbed, will lead to the total destruction of that social order in
whose absence man's state would be no higher than that of the animals.

Law then, in this view, is the indispensable restraint upon the forces of evil, and anarchy or the
absence of law the supreme horror to be warded off.

On the other hand, those who view man's nature as inherently good seek to find the sources of
the ills of man's present condition in situations external to man himself and hence look for some
fundamental defect in man's social environment as the true cause of the evils which afflict him.

And as the most conspicuous features of this environment are of course the government of the
reigning powers and the legal system through which they exert their political authority, it is
hardly surprising that criticisms centre upon these as the true source of human tribulations.
THE LAW AND THE FORCES OF EVIL

Two very different starting-points were taken by those who looked upon law as a means of
attaining social harmony by the curbing of the evil passions of man.

On the one hand, some postulated that man's nature was intrinsically evil and that no social
progress could be attained without the restraints of penal laws.

On the other hand were those who held that man was originally created good by nature but that
due to sin, corruption, or some other internal weakness, such as avarice, man's original and true
nature had become distorted and thus required for its control the rigours of a punitive system of
law.

Those who favoured this more optimistic assessment of human failings tended to look backwards
to an earlier Golden Age of primeval innocence when men lived simple, happy, and well-ordered
lives without the need for any external system of legal rules or coercion to restrain their iris
pulses, which were wholly unselfish and directed to the common good of mankind.

Such was the idyllic primitive scene as depicted by many writers from Seneca to Rousseau and
even in our-own day, and this roseate view of man's remote past has often served as a pattern for
a movement towards a return to nature, in the sense of man's primitive, unspoiled nature, and
therefore opened up a future prospect of a happier society in which uncorrupted natural impulse
will replace a coercive régime of law.

Examples of both these ideological views of man's nature and destiny can be drawn from very
widely scattered sources.

Only a few need be mentioned here.

In ancient China of the third century B.C. we find, for instance, the important school of so-called
'Legists', who argued that man's nature was initially evil and that the good ways in which men
often acted were due to the influence of the social environment, particular the teaching of rituals
and the restraints of penal laws.

A single law, enforced by severe penalties, is worth more for the maintenance of order than all
the words of all the sages, was one of their governing maxims.

About the same period the shastra writers in India were asserting that men are by nature
passionate and covetous and that if left to themselves the world would resemble a 'devil's
workshop', where the 'logic of the fish' would reign, that is, the big ones would eat up all the little
ones.

Comparable views are not difficult to locate among some of the seminal writers of modern
Western Europe.
Thus for Bodin the original state of man was one of disorder, force, and violence, and Hobbes's
description of the life of primitive man as a state of perpetual warfare, where individual existence
was 'brutish, nasty, and short' has become classical.

For Hume, too, without law, government, and coercion, human society could not exist and so in
this sense law was a natural necessity for man.

The hypothesis of a primitive Golden Age has in one form or another also played an important
role in the history of Western ideology.

Two of the best-known statements of this hypothesis in classical antiquity are to be found in the
pages of Ovid and of Seneca.

Ovid, in the first book of his Metamorphoses refers to it in these terms:

The Golden Age was first; when Man yet new,

No rule but uncorrupted reason knew;
And with a native bent, did Good pursue.
Unfore'd by punishment, unaw'd by fear,
His words were simple, and his soul sincere:
Needless was written Law, where none, opprest;
The Law of Man was written in his breast; -
No suppliant crowds before the Judge appeared:
No Court erected yet, nor cause was hear'd;
But all was safe, for Conscience was their guard.

Seneca's celebrated account, as befitted a philosopher, was more circumstantial:

In this primitive state men lived together in peace and happiness having all things in common;
there was no private property.

We may infer that there could have been no slavery, and there was no coercive government.

Order there was of the best kind for men followed nature without fail and the best and wisest
men were their rulers. They guided and directed men for their good, and were gladly obeyed as
they commanded wisely and justly.

As time passed, the primitive innocence disappeared; men became avaricious and dissatisfied
with the common enjoyment of the good things of the world, and desired to hold them in their
private possession.

Avarice rent the first happy society as under "... and the kingship of the wise gave place to
tyranny, so that men had to create laws which should control their rulers".
Although Seneca asserts that this primitive innocence was rather the result of ignorance than of
virtue, he attributes the later social evils and the necessity for the introduction of a regime of law
to the corruption of human nature from its initial state of innocence, and this corruption he
explains as due specifically to the development of the vice of avarice.

This idea of vice and corruption as the reason for the establishment of coercive institutions
became a key feature of Western thought for many centuries, adapted as it was by the early
Church Fathers to the Judaeo-Christian version of the Fall of Man.

The Biblical account of paradise was equated with Seneca's primitive state of innocence, and the
necessity if for human law and all its familiar institutions, such as the coercive state, private
property, and slavery, was derived from man's sinful nature, which resulted from the Fall.

Law was a natural necessity after the Fall to mitigate the evil effects of sin.

Even the family was treated as a consequence of the Fall, for it represented the coercive
domination of the male as against the freedom and equality of the primitive paradise.

Slavery, too, was regarded as one of the inevitable consequences of the Fall, for man, though in
his uncorrupt state free and equal, as a result of sin was made a fit subject for enslavement, and
thus in a corrupt age slavery was a legitimate institution.

This theory of law and government attained its classic restatement in the writings of Augustine.

State-law and Coercion were not in themselves sinful but were part of the divine order as a
means of restraining human vices due to sin. Hence all the established legal institutions and the
state powers were legitimate and coercion could properly be used to enforce them.

Augustine saw the future hope for mankind, not in the sphere of social reform by promoting a
juster social régime on earth, but rather by the attainment of a commonwealth of God's elect, a
mystical society, which would ultimately, in God's good time, replace the existing régime
dominated by man's sinful nature.

Augustine's assertion that law was a natural necessity to curb man's sinful nature held the field
for many centuries. Augustine wrote at a time when the great system of the Roman Empire was
on the point of disintegration and there seemed but little prospect of a rise of an orderly, let alone
a just, society by mere human dispensation.

But gradually life became more settled and provided scope for social and economic
advancement.

Moreover, by the thirteenth century, some of the more scientific and philosophic reflections of
classical antiquity upon man's social condition, especially those of Aristotle, had filtered through
to Western Europe.
The time was ripe for a change of emphasis. Man's nature might be corrupt and sinful but he still
possessed a natural virtue which was capable of devlopment.

Leaning heavily upon Aristotle's conception of the natural development of the state from man's
social impulses, Aquinas held that the - state was not a necessary evil but was a natural
foundation in the development of human welfare.

Aquinas, as a pillar of orthodoxy of the medieval Catholic Church, strove to reconcile this
position with the established theology of his day. Nevertheless, he also provided an important
basis for the later secular view of law as at least potentially a beneficent force, not merely for
restraining the evil impulses of man but also for setting him upon the path of social harmony and
welfare.

In this way law came to be envisaged not as a pure negative force, for the restraint of evil, but as
a positive instrument for realizing those goals towards which man good or social impulses tend
to direct him.
IS MAN NATURALLY GOOD? THE ANARCHIST'S VIEWPOINT

We have seen how the attempt to regard law as a natural necessity directed to restraining, in the
only way possible, the evil instincts of man gave way to a new view of law as a means of
rationalizing and directing the social side of man's nature.

Yet in all ages there have been thinkers who have utterly rejected this approach to the coercive
forces of law and order.
For such thinkers man's nature is and remains basically good, but it is the social environment
which is responsible for the evils of man's condition, and above all, the existence of a régime of
law imposed by force from above.

A mood of wistful primitivism, a nostalgia for a primeval Golden Age, has coloured a good deal
of what may be termed anarchist thought from ancient to modern times.

Plato, for instance, showed strong leanings towards primitivism as is illustrated by his assertion
that the men of early times were better than we are and nearer to the Gods.

Yet this approach tends to be an altogether more sophisticated one, concentrating far less on a
mythical past than on man's potentiality in the future for an ideally just society. Moreover, such a
society is not to be one with an ideally conceived legal régime but, on the contrary, one free from
all legal rules in which rational harmony will prevail as a result of the good sense and social
impulses of its members.

An idealist picture of a state without law, whose inner harmony derives from human reason
carried to its highest potential of development by a succession of philosopher-kings chosen for
their wisdom and knowledge, is presented by Plato in his Republic.

Plato pins his faith upon a system of education which will not only produce adequate rulers but
will also serve to condition the rest of the population to the appropriate state of obedience.

Modern experience certainly supports Plato in his belief that education or 'brain-washing' may
condition people to subservience but remains divided on the notion that any system of education
can provide a royal road to wisdom, or that there is any foolproof manner of selecting or training
persons who are naturally preordained for rulership.

It may be said that Plato's leanings were not so much towards anarchism as towards what we
should today term 'totalitarianism', as his proposals for an inflexible and rigorously enforced
legal system in his late dialogue, The Laws, sufficiently demonstrate.

Again, though there was unquestionably an anarchic flavour about certain aspects of primitive
Christianity this was manifested in a contempt for, rather than a rejection of; human law, and
indeed the injunction to render unto Caesar what was Caesar's became accepted as conferring a
divine legitimacy on the established powers.
At the same time the cult of non-violence appeared to many opponents of the early Christians as
a threat to state authority and has afforded a base for the anarchistic doctrines of some influential
later writers, such as Godwin and Tolstoy.

The modern period from the seventeenth century has been marked by the rise of science and
technology and with this has developed the ideology of human progress, a world-view which
rejects the belief in a primitive paradise and looks forward to an ever brighter future for
mankind. For long this doctrine was wedded to the notion that the social evolution of man could
be left to the free play of economic forces which, if not interfered with, could be assumed to
work towards ultimate social harmony.

This was the theory of laissez faire, which, though applied by Adam Smith especially to
economic affairs, carried with it the broader doctrine that all government and law were in
principle evil in so far as they constricted or distorted the natural development of the economy
and of society.

Far from being anarchist, however, this theory strongly favoured the use of coercive law for the
protection of private property, which it regarded as an indispensable feature of a free market.

The nineteenth century represented perhaps the heyday of the more sophisticated anarchist
writers, though Godwin's celebrated contribution, Political Justice, first appeared in 1793.

Godwin argued that the evils of society arose not from man's corrupt or sinful nature but from
the detrimental effects of oppressive human institutions. Man is inherently capable of unlimited
progress and only coercive institutions and ignorance stand in the way.

With touching faith in human reason and perfectibility Godwin held that voluntary cooperation
and education would enable all law to be abolished. Such moral and social norms as were
required for maintaining social order and progress would be made effective in that their violation
would incur the moral censure of the free individuals of which society would consist.

This type of philosophic anarchism was further expounded by the leaders of the Russian school
of anarchists, Bakunin and Kropotkin, for whom the state, law, coercion, and private property
were the enemies of human happiness and welfare. These writers stressed the beneficent role of
cooperation in human history and believed that in the inevitable course of evolution the principle
of mutual aid would replace the miseries of the coercive community.

Tolstoy, on the other hand, propounded a form of anarchy based on his conception of the simple
Christian God-inspired life led by the early Christian communities. Many of his enthusiastic
supporters attempted to set up 'Tolstoy colonies 'on these lines in various parts of the world, but
the results were hardly inspiring.

In his very sympathetic Life of Tolstoy, Aylmer Maude relates some of the strange and comic
ways in which these societies speedily collapsed.
In one such colony, for instance, a boy stole a waistcoat from a fellow-colonist. This youth had
previously been indoctrinated by his companions in the view that private property is wrongful,
and that the police and the law courts are part of an immoral régime of coercion.

When the return of the waistcoat was demanded, the youth proved to have learned his lessons
only too well.

If property is wrong, be inquired, why was it more wrong for a boy to have it than a man? He
wanted the waistcoat as much as the man did.

He was quite willing to discuss the subject but he would not alter his opinion that he was going
to keep the waistcoat and that it would be very wrong to take it from him.

Another such colony came to a rather drastic end.

The Property of the colony was bought in the name of a member who held it for the use of his
fellow-members. One day an eccentric individual appeared on the scene and after some
discussion with the colonists suddenly rose and made the following announcement.

'Gentlemen! I have to inform you that from today your colony will have neither house nor land.
You are astonished? Then I will speak more plainly. Your farmhouse, with its outbuildings,
gardens, and fields, now belongs to me. I allow you three days to go!'

The colonists were thunderstruck but none of them resisted and they all cleared out of the place.
Two days later-the legal owner presented the property to the local Commune

A cynic might well chuckle at this vindication of his disbelief in the natural goodness of man, but
the outcome of these naive anarchist exercises undoubtedly points to the fundamental dilemma
which must face those who believe that human society can function without the external cement
of coercive law.

As Maude remarks: 'Remove the law, and induce men to believe that no fixed code or seat of
judgment should exist, and the only people who will be able to get on at all decently will be
those who, like the Russian prerevolutionary peasantry, follow a traditional way of life. .

The root evil of Tolstoyism is that it disdains and condemns the result of the experience gained
by our forefathers, who devised a system which, in spite of the many defects that still hamper it,
made it possible for men to cooperate practically and to carry on their diverse occupations with a
minimum of friction.
Perhaps the most remarkable of the theses of the modern anarchists, and certainly the most
influential, is that of Karl Marx. Marx envisaged the overthrow of the capitalist society by a
violent revolution of the oppressed proletariat.

Law was nothing but a coercive system devised to maintain the privileges of the property-
owning class; by the revolution a classless society would be brought into being, and law and the
state would 'wither away' as being no longer needed to support an oppressive regime.

The Marxist looks forward rather than backward to a Golden Age when social harmony will be
attuned to the natural goodness of man unimpeded by such environmental snares as the
institution of private property. Such a social paradise cannot, however, arise overnight and
therefore we have the paradox that during an interim period - likely to be of indefinite duration -
there is need for a vast increase of state activity supported by all the apparatus of legal coercion
so abhorrent to the anarchist.
INNATE GOODNESS AND THE PRICE OF CIVILIZATION

Despite these discouraging experiences there still remain distinguished exponents of the view
that man at the primitive level is innately good and that it is the social and political organization
of civilized life which has introduced the seeds of violence and disorder and which in their turn
have led to systems of legal coercion.

One of the main theses of Elliot Smith's book on Human history, first published in 1930, is the
innate goodness and peacefulness of mankind.

'The evidence is so definite and abundant that it becomes a problem of psychological interest to
discuss why men persist in denying the fact of Man's innate peacefulness.

Each of us knows from his own experience that his fellows are, on the whole, kindly and well-
intentioned.

Most of the friction and discord of outlives are obviously the result of such exasperations and
conflicts as civilization itself creates.

Envy, malice, and all uncharitableness usually have for the object of their expression some
artificial aim, from the pursuit of which Primitive Man is exempt.

Few will deny that numerous ills from which we suffer are the direct result of the stresses,
tensions, and conflicts characteristic of a civilized and therefore complex mode of existence.

All the same Elliot Smith's contrast between natural and civilized man seems one-sided and
oversimplified.

Readers of Mary Shelley's Frankenstein will recall how Frankenstein creates a monster in human
form, which, though possessed of human feelings, eventually turns upon and slays its creator.
The romance seems symbolic of the duality of human nature. Man may well possess innate
tendencies towards what we call 'goodness', namely, those relationships which arise out of
sympathy and cooperation, for without these all social life - the distinctive character of man -
would be impossible.

But there is also a dynamic side to human nature, which may be directed to either creative or
destructive ends.

The well-meaning philosophic anarchist, even when he is most concerned to give scope to man's
creative impulses, is apt to gloss over or ignore the darker side of the nature of man.

Sir Herbert Read, for instance, argues that human groups have always spontaneously associated
themselves into groups for mutual aid and to satisfy their needs, and so can be relied upon
voluntarily to organize a social economy which will ensure the satisfaction of their needs.
The anarchist, he tells us conceives society as a balance or harmony of groups. The only
difficulty is their harmonious interrelation. But is not the promotion of such harmony a function
which must be conferred on some state organization?

Sir Herbert Read's answer is two-fold. In the first place, he believes that this function would
largely disappear with the elimination of economic motivation from society. Crime, for example,
is largely a reaction to the institution of private property.

And secondly, matters such as infant education and public morality are matters of common
sense, to be solved by reference to the innate good will of the community.

With the universal decentralization of authority and the simplification of life, including the
disappearance of 'inhuman entities' like the modern city, any disputes can be resolved on a local
basis.

'Local associations may form their courts and these courts are sufficient to administer a common
law based on common sense.'

It will be noted that Read differs from some anarchists in recognizing the need for some kind of
general law and insists only on rejecting all the coercive apparatus of centralized control.

'Anarchism,' he explains, 'means literally a society without an arkhos, that is to say without a
ruler. It does not mean a society without law and therefore it does not mean a society without
order.

The anarchist accepts the social contract, but he interprets that contract in a particular way,
which he believes to be the way most justified by reason.

The recognition that even in the simplest form of society some system of rules is necessary
seems almost inevitable. In any society, whether primitive or complex, it will be necessary to
have rules which lay down the conditions under which men and women may mate and live
together, rules governing family relationships; conditions under which economic and food-
gathering or hunting activities are to be organized; and the exclusion of acts which are regarded
as inimical to the welfare of the family, or of larger groups such as the tribe or the whole
community.

Moreover, in a complex civilized community, even if simplified to the degree dear to the heart of
an anarchist like Read, there will have still to be a large apparatus of rules governing family,
social, and economic life. The idea that human society, on whatever level, could ever
conceivably exist on the basis that each man should simply do whatever he thinks tight in the
particular circumstances is too fanciful to deserve serious consideration.
Such a society would not be merely, as Read puts it, 'a society without order', but the very
negation of society it self.

At this point then, the discussion can move over from the necessity of law in human society to
the c1osely related question: whether the idea of law can be divorced from a régime of coercion.
This is the issue which will engage our attention in the ensuing chapter.