It is strange, if not downright hard to imagine a society without law, as the idea of legalism – the notion of there being a virtue in regulating societal behaviour through a system of expressly structured rules is a hallmark of Western civilization. German sociologist and philosopher, Max Weber (1864-1920), expressed an interest in informal methods of social control and stated, “Judicial formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions”.[1] Weber was ambivalent about the importance of legal-rationality, as he suggested it could easily trap us in an ‘iron cage’ of meaninglessness, as administration categories with highly developed bureaucracies tend to drown-out creativity and fashion a society which is completely uniform and sterile.[2] What could be ‘strength in diversity’ becomes lost in the ‘iron cage’. The outcome of disputes are more often than not under-determined by the law, thus the appearance of predictability becomes merely a façade.
A world without strangers would seem conducive to a ‘society that does not produce any law’. This reasoning rejects rather than welcomes a rule of law. As the rule of law creates artificial bonds of legal rights between strangers in a society where inter-human relations are opaque and values are constantly subjugated to conflict and dispute. In this reasoning it does not seem out of question to consider whether law might be dispensable. During the early days of the Christian Church, believers were admonished about resolving disputes among fellow followers in pagan courts.[3] This scepticism of the rule of law is found in the theories of Karl Marx (1818-1883), which promulgate the elimination of law as a vehicle to class oppression. Marx argued in his early writings, The Critique of the Gotha Programme, under communism, law will ‘wither away’ following the proletarian revolution, in which the bourgeois state would be swept away and replaced by a classless society, without a need for law.[4]
Marx (i) saw law as an ideological cover for capitalism; along with (ii) being a tool of the capitalistic class to constantly suppress the working class. As (iii) a reflection on the economic base, modern Anglo-American law is highly capitalistic; the concept of juristic legal personality and limited liability in company law encourages risk and domination by business. Marx (iv) sees the law as a site of struggle between the classes. A French philosopher once said, ‘the rich and the poor are forbidden from sleeping on the banks of the river Seine’. The problem here is that telling a wealthy person not to sleep on the river banks is quite different from telling a poor person. For Marx, law is an iron fist in a velvet glove and indeed to many of us, the law tends to appear as such from time to time.
A view which seems to move from a codified or dictatorial system of law to more a convention and administrative system, was espoused by Soviet Jurist, Evgeny Pashukanis (1891-1937), who advocated a view of law as a contractual relationship, whereby all law could be explained by this contractual commodity exchange. Pashukanis wrote about law disappearing to administration; however this view was seen as too extreme a theory and Stalin had Pashukanis killed.
The weakness I tend to find in considering a society without law is more or less a practical or logistical one – such as road and traffic laws or laws which are focused on protecting the citizenry from one another. In a perfect world no laws would be necessary, nor would class, culture and race, along with religion, politics and ethnicity divide people. Two barriers would seem to be geographic land mass distances and the sheer number of people whom are scattered around the globe. Barriers seem to rise from a dearth of human mobility, but are broken down by the sharing and diffusion of knowledge. A society without law would seem more suited for a small population, whereby an organic bond of friendship and community ties the members, who share a similar set of values and morals.
[1] G Roth and C Wittich (eds) M Weber, Economy & Society (Bedminster Press, NYC 1968) 811
[2] L Green, ‘Review: Legality and Community’ (1985) 5 OJLS 463
[3] I Corinthians 6:6-7
[4] S Moore (tr) K Marx and F Engels, ‘Manifesto of the Communist Party’ in Collected Works (vol 6, Lawrence and Wishart, London 1976)
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