New Hopes for a Changing World, Chapter Nine

“Law,” pages 74-82

Law is organized force, force transferred from individuals to larger groups. Civilization involves the renunciation of private uses of force, in favor of a state, rule-bound monopoly. These rules, the law, make some allowance for private force, as in self-defense, and typically give the strong and rich more scope to use force than the weak and poor.

The rules that constrain the powers of government to arrest and imprison, for instance, also show a similar tendency for some breaches to be admitted. In many nations, those breaches are legion. “But although in most countries at most times the rule of law is subject to limitations, it is, nevertheless, important, and governs a very large part of those human relations that are liable to give rise to disputes [p. 75].”

Law originated as the formalization of the rules decreed by the powerful – justice was not part of the mix. Though the unfairness of law past is hard to stomach today, it was necessary to incentivize the powerful to become rule bound. Bad law trumps no law, by and large, even though on occasion it is worth paying the steep price of revolution to move closer towards justice.

At some point law protects property, either the products of one’s labor or the lands of one’s conquering. But technical advance means that most products become the result of many people’s labor. As a result, modern property law is a confusing entanglement of ancient notions of property with modern production techniques. Much property law has no connection to traditional property, including those parts dealing with patents, copyrights, and corporations. Russell adopts a Marxian line: “Property, in fact, is what the dominant political group chooses that it should be [p. 78].”

Nonetheless, the law is valuable, in part by taking the individual (if not his or her class) largely out of the equation. In conflicts among social equals, it can be impartial, and some justice towards the lower classes will emerge in the service of reduced incentives for rebellion. Disagreements that might have been resolved by violence are resolved in a relatively bloodless fashion, and the habit of bloodletting declines. Custom has a significant hold over preferences and behavior, so the custom of non-violent dispute settlement – a custom that law is necessary to nurture – itself reduces the impulse towards violence. “Most civilized men abstain from murder, not by means of an iron self-control, but because the thought of murder never enters their heads [p. 79].”

Plato’s conception of justice amounts to circular reasoning, that it is just to give each man his just deserts. The tautology could be transformed into prescription if it were possible to independently determine of just what those just deserts consist! Contributions to society might be the standard, but who can compare these across occupations? In practice, conceptions of just deserts are usually aligned with power, though the spread of democratic ideals reduces the appeal of such a concordance. Equality is the main element of the democratic alternative, but deserving lurks in the background.

Indeed, it is widely accepted that particularly valuable social contributions merit reward, while costly criminal acts deserve punishment. (The extreme view that some hold, such as that the large fortunes of successful business people are fair recompense for their effort, is harder to maintain.) But connecting rewards and punishments to the social consequences of behavior is valuable, so full equality should not be the goal. Nothing is either good or bad, but its likely consequences make it so. “If crime could better be prevented by rewarding criminals than by punishing them, I should be in favor of rewarding them [p. 80].”

Russell offers up again a vision where criminals, though believed to be punished severely – indeed, in this telling, executed – are instead sent to live happily on a remote, gorgeous island. [RBR covered a slightly later retelling in Chapter VII of Human Society in Ethics and Politics.] This system preserves deterrence “without being vindictive [p. 81].” It would contribute to the happiness of criminals, and their happiness should be included in an assessment of social well-being. The sole problem is that the system is not sustainable, as the secret would get out.

Departures from equality, then, can be tolerated, if by doing so good consequences are likely to follow. But the world is not even close to this degree of equality – look at the discrimination against blacks, Jews, and women, for instance. Inheritance gives the children of the rich a leg up. These inequalities do not add to overall utility – indeed, they detract from it, in that they stoke resentment and unrest – so they should be redressed. “Every approach towards equality, other things being equal, promotes social stability, and social stability is the fundamental purpose of law [p. 81].”

This discussion now approaches the Marxian topic of class conflict. Marx’s analysis put class conflict at the center, and maintains, implausibly, that when the proletariat takes over the conflict magically vanishes. Marx’s vision and Marxian-style revolution are driven not by justice but by resentment and hatred, and out of these sources no lasting good can emerge. [Russell will later offer similar sentiments on Marx and Bolshevism in Portraits From Memory, in at least two places.] The habit of hatred will not disappear when the revolutionaries take over; in the Soviet case, the Bolsheviks re-targeted their hatred among themselves. “This illustrates the principle which Marxists are apt to forget, namely, that it matters not only what is done but why it is done, since all passions, good and bad alike, have a certain momentum and a tendency to self-perpetuation [p. 82].”