Law and Society

The Social Contract

Laws tend to reflect social standards of civility, that is, the tenets of acceptable behavior or ethics, if you prefer. Social standards of civility foster the general welfare of a society by creating a “social contract” or understanding among its members that encourages constructive behavior and discourages destructive behavior.

The essence of the social contract is captured in the admonition to “do unto others as you would have them do unto you” (the Golden Rule) and its corollary to “mind your own business.”

Erosion of the Social Contract

Laws that violate the social contract breed contempt for the rule of law, and thus undermine social cohesion, in three ways. First, such laws are often flouted or not enforced consistently (e.g., Prohibition and euthanasia). Second, when such laws are enforced rigidly (e.g., affirmative action) the result is heightened tension between those who stand to gain from their enforcement and those who stand to lose from it. And, third, such laws conflict with and undermine the moral force of accepted social standards.

The written Constitution embodies the social contract. It does not, for example, favor a particular race, gender, or economic class. Rather, it gives individuals enough room in which to pursue their own aims without trampling on the hopes of others.

In spite of the written Constitution, we have come to live under governments — federal and State — that do unto us what we would not do unto others and which mind our business for us. The price of such paternalism is paid not only in high taxes and intrusive regulations but also in the loss of social cohesion and civility. Laws made in Washington and the State capitals through the collusion of special interests undermine the Golden Rule, breed contempt for the rule of law, contempt for lawmakers, and contempt for the special interests they favor. Contempt spills over into incivility and, from there, into unlawfulness.

The Consequences

Is it not mere coincidence that life in this century has become less civil and more dangerous as “activist” governments have sundered the social fabric. We have gone from double-entendres on radio to explicit sex on TV; from dirty election campaigns to perpetual political rancor; from the law as a last resort in disputes to the law as the first resort; from welfare as a disgraceful state to the welfare state; from fifteen minutes of sanitized news to twenty-four hours of salacious speculation; from lyrics you could sing to noise that hurts your ears; from suits, ties, and polished oxfords to tank-tops, shorts, and no shoes at all; from Sunday dinners after church to lost Mondays after drug- and booze-filled weekends; from juvenile delinquency to “routine” rape and murder by juveniles….

And, oh yes, how are racial relations today compared with what they were, say, fifty years ago?

Is There No Balm in the Law?

There are some who believe that government can impose civility, or that it should do so in some circumstances, without heed for the social cost. Well, if government could impose civility, the Civil War and the Civil War amendments would have done the job. As Mr. Lincoln might have said, you can impose civility on some of the people, some of the time, but you can’t impose civility on all of the people all of the time.

Isn’t involuntary civility (e.g., affirmative action) better than voluntary barbarity? The question overlooks the proper role of law, which is not to impose a certain type of civility (e.g., “equality” of the races) but to deter and, if necessary, to punish specific acts of wrongdoing (e.g., murder). The question also overlooks the corrosive effects of coercive laws on the social order.

But isn’t it wrong and uncivil, for example, to refuse a person “a place at the inn” because of his or her color? Answer: It is no more wrong than the refusal to grant a person a place at the inn because he or she is “improperly” attired. The government that may dictate the color of the inn-keeper’s guests and employees is a government that may force the inn-keeper to admit the unkempt and unshod. Discrimination solely on the basis of race is, and was, uncivil and shameful, but the inn is the inn-keeper’s, not society’s and certainly not the government’s.

It is right and civil for the law to say that one person may not kill another person with impunity. Period. Any reference to the color of the victim is gratuitous. Murder is murder. Why should the punishment for murder be tied to the characteristics of the victim? Is it somehow less of a crime to murder a white male than, say, a black female? If it is a capital offense, in some States, to kill a police officer, why is it not a capital offense to kill an “ordinary” citizen?

Re-declaring Independence

When the law was based on social standards of civility, we understood it and respected it. Turning the law on its head by attempting to dictate social standards has had the doubly destructive effect of corrupting our standards and eroding our respect for the law.

This diagnosis points to the remedy, which many have already adopted: a re-declaration of independence. Instead of violently overthrowing the existing order, there is a growing tendency to opt out of it by become less dependent on those institutions that have been corrupted by government. Thus we see more home schooling and private schools in lieu of public schools, just as we see more law-abiding citizens flock to enclaves where they find security and traditional values: rural communities where crime remains relatively rare, “magnet” communities that attract persons who share certain religious or social views, and gated communities with their own security forces.

Government tries to thwart such efforts because they are a threat to its legitimacy and, more importantly, to its ability to collect taxes. Without tax revenues, government cannot support its bloated bureaucracies and the welfare-state junkies (of all economic classes) who cling to it because they have nothing else in which to believe.

The official argument against re-declarations of independence is that they undermine society. The truth is that government has undermined society by undoing the terms of the social contract. Declarations of re-independence are our best hope for restoring the social contract and rebuilding society.

Let us take heart from the closing words of Lincoln’s first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.