“Most of the time, when one analyzes the role of the state in our society, either one focuses attention on institutions—armies, civil service, bureaucracy, and so on—and on the kind of people who rule them, or one analyzes the theories or the ideologies which were developed in order to justify the existence of the state.
What I am looking for, on the contrary, are the techniques, the practices, which give a concrete form to [the] . . . relationship between the social entity and the individual.”
Michel Foucault, “The Political Technology of Individuals” (1981)
“. . . in so far as we believe in law, we condemn existence. . . .”
Peter Goodrich, Reading the Law (1986)
“The concept of a person’s ‘rights,’ for example, is basic to legalism. It is one of the most powerful formulations in gaining and sustaining popular support for the operation of the legal system.
The common understanding of this concept is that law takes the side of the people against governmental or other systematic injustice. This uncritical view is elaborated upon in law school and throughout the legal system. Actually, however, once one understands that the central concern of legalism is with the maintenance of its own power system, one sees that the law only appears to take the side of the people. In fact, the real concern of legalism in its recognition of popular claims of right (civil rights, etc.) is to preserve the basic governmental framework in which the claims arise.”
Peter d’Errico, “The Law Is Terror Put into Words,” Learning and the Law (1975)
“An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be. . . . [A]nd until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.”
Howat v. Kansas, 42 S.Ct. 277, 280–281 (1921)
“[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it. . . . [E]xperience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.”
Declaration of Independence (1776)
“State is the name of the coldest of all cold monsters. Coldly it tells lies too; and this lie crawls out of its mouth: ‘I, the state, am the people.’ That is a lie! It was creators who created peoples and hung a faith and a love over them: thus they served life.”
Friedrich Nietzsche, “On the New Idol,” Thus Spoke Zarathustra (1891)
“The deliberate infliction of pain . . . we call torture. The interrogation that is part of torture, [Elaine] Scarry [The Body in Pain (1985)] points out, is rarely designed to elicit information. More commonly, the torturer’s interrogation is designed to demonstrate the end of the normative world of the victim—the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes that ‘in compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying.’ That is why torturers almost always require betrayal—a demonstration that the victim’s intangible normative world has been crushed by the material reality of pain and its extension, fear. . . .”
Robert M. Cover, “The Violence of Legal Acts ,” 95 Yale Law Journal 1601
“The nation’s Founding Fathers were acutely aware of the latent contradiction in the democratic form of government, as indeed were most political thinkers in the late eighteenth and early nineteenth centuries. They recognized the possibility that the propertyless majority might, once it had the vote, attempt to turn its nominal sovereignty into real power and thereby jeopardize the security of property, which they regarded as the very foundation of civilized society. They therefore devised the famous system of checks and balances, the purpose of which was to make it as difficult as possible for the existing system of property relations to be subverted. American capitalism later developed in a context of numerous and often bitter struggles among various groups and segments of the moneyed classes—which had never been united, as in Europe, by a common struggle against feudal power. For these and other reasons, the governmental institutions which have taken shape in the United States have been heavily weighted on the side of protecting the rights and privileges of minorities: the property-owning minority as a whole against the people, and various groups of property-owners against each other.”
Paul A. Baran and Paul M. Sweezy, Monopoly Capital (New York: Modern Reader, 1966), pp. 157–158
“Crime is naught but misdirected energy. So long as every institution of today, economic, political, social, and moral, conspires to misdirect human energy into wrong channels; so long as most people are out of place doing the things they hate to do, living a life they loathe to live, crime will be inevitable, and all the laws on the statutes can only increase, but never do away with, crime.”
Alix Schulman, ed., Red Emma Speaks (New York: Vintage, 1972), p. 57
“When a . . . government desires to borrow money it must divest itself for the time being of all sovereign powers, and come before its subjects as a private corporation. It must bargain with those who have money to lend, and satisfy them as to questions of payment and security. . . . The broad theory of constitutional liberty is that the people have the right to govern themselves; but the historical fact is that, in the attempt to realize this theory, the actual control of public affairs has fallen into the hands of those who possess property. It follows from this that when property-owners lend to the government, they lend to a corporation controlled by themselves.”
Henry Carter Adams, Public Debts: An Essay in the Science of Finance (New York: D. Appleton, 1887), pp. 7, 9
“. . . Wherever there is great property, there is great inequality. For one very rich man, there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. The affluence of the rich excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions. It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labor of many years, or perhaps of many successive generations, can sleep a single night in security. He is at all times surrounded by unknown enemies, whom, though he never provoked, he can never appease, and from whose injustice he can be protected only by the powerful arm of the civil magistrate continually held up to chastise it. The acquisition of valuable and extensive property, therefore, necessarily requires the establishment of civil government. Where there is no property, or at least none that exceeds the value of two or three days labor, civil government is not so necessary. . . .
“. . . The rich, in particular, are necessarily interested to support that order of things, which can alone secure them in the possession of their own advantages. Men of inferior wealth combine to defend those of superior wealth in the possession of their property, in order that men of superior wealth may combine to defend them in the possession of theirs. All the inferior shepherds and herdsmen feel that the security of their own herds and flocks depends upon the security of those of the great shepherd or herdsmen; that the maintenance of their lesser authority depends upon that of his greater authority, and that upon their subordination to him depends his power of keeping their inferiors in subordination to them. They constitute a sort of little nobility, who feel themselves interested to defend the property and to support the authority of their own little sovereign, in order that he may be able to defend their property and to support their authority. Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.”
Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 4th ed., vol. 2 (Dublin: Colles, Moncrieffe, et al., 1785), pp. 224–225, 229
“The lowest police employee of the civilized state has more ‘authority’ than all the organs of gentilism combined. But the mightiest prince and the greatest statesman or general of civilization may look with envy on the spontaneous and undisputed esteem that was the privilege of the least gentile sachem. The one stands in the middle of society, the other is forced to assume a position outside and above it.”
Friedrich Engels, quoted in Stanley Diamond, “The Rule of Law Versus the Order of Custom” in In Search of the Primitive (New Brunswick, NJ: Transaction Books, 1974)
“. . . [W]e live in a law-ridden society; law has cannibalized the institutions which it presumably reinforces or with which it interacts. . . . [W]e are encouraged to assume that legal behavior is the measure of moral behavior. . . . Efforts to legislate conscience by an external political power are the antithesis of custom: customary behavior comprises precisely those aspects of social behavior which are traditional, moral and religious—in short, conventional and nonlegal. Put another way, custom is social morality. The relation between custom and law is basically one of contradiction, not continuity.”
Stanley Diamond, “The Rule of Law Versus the Order of Custom” in In Search of the Primitive (New Brunswick, NJ: Transaction Books, 1974)
“Today the land is dotted with towns, cities, suburbs, and the like. Yet very few of these political subdivisions are in fact communities. They are rather transitory locations for the temporary existence of wage earners. People come and go as the economics of the situation demand. They join churches and change churches as their business and economic successes dictate. . . . People may live side by side for years having in common only their property boundaries and their status as property taxpayers. . . . Today many of the Indian tribes are undergoing profound changes with respect to their traditional solidarity. . . . Massive economic development programs on the reservations have caused population shifts that have tended to break down traditional living groups and to cause severe strain in the old clan structure.”
Vine Deloria, Jr., God Is Red (New York: Delta, 1973), pp. 221–22
“…[T]here are deviations from law, and there are crimes in the land; for no race of men can be free of these things. But there are also certain forces which the People control and which in turn direct the actions of men, and these forces keep the law-breaking within narrow bounds. To understand these forces is to realize why the Ihalmiut have no need of our laws to maintain the security of their way of life.
“There is absolutely no internal organization to hold authority over the People. No one man, or body of men, holds power in any other sense than the magical. There is no council of elders, no policeman. There are no assemblies of government and, in the strictest sense, the Ihalmiut may be said to live in an anarchistic state, for they do not even have an inflexible code of laws.
“Yet the People exist in amity together, and the secret of this is the secret of cooperative endeavor, limited only by the powers of human will and endurance. It is not blind obedience or obedience dictated by fear. Rather it is intelligent obedience to a simple code that makes sense to those who must live by its rules. . . .
“. . . Should a man continuously disregard the Law of Life, then little by little he finds himself isolated and shut off from the community. There can be no more powerful punishment . . . in a world where man must work closely with man in order to live. . . . The law does not call for an eye for an eye. If possible the breaker of law is brought back to become an asset to the camps. His defection is tacitly forgotten, and to all intents and purposes it never happened at all.”
Farley Mowat, People of the Deer (Boston: Little, Brown, 1951), pp. 176–178
The first thing to understand is that the public peace—the sidewalk and street peace—of cities is not kept primarily by the police, necessary as police are. It is kept primarily by an intricate, almost unconscious, network of voluntary controls and standards among the people themselves, and enforced by the people themselves. In some city areas—older public housing projects and streets with very high population turnover are often conspicuous examples—the keeping of public sidewalk law and order is left almost entirely to the police and special guards. Such places are jungles. No amount of police can enforce civilization where the normal, casual enforcement of it has broken down. . . .”
Jane Jacobs, The Death and Life of Great American Cities (New York: Random House, 1961), pp. 31–32
“Legal institutions must back up the social ethic by punishing those who transgress the social bounds, but reliance on legal mechanisms alone is inadequate to create a society of trust. A strong “civil society” with its network of non-governmental institutions and relations invariably exists in a high-trust society. Once government superimposes itself on that society and begins to intervene in interpersonal relationships, relationships of trust are replaced with relationships in which the intervention of the state becomes necessary to mediate disputes. . . .”
James Bennett, “Cyberspace and the Return of Trust,” Strategic Investment Newsletter, October 16, 1996, pp. 11
“When people lost sight of the way to live
Came codes of love and honesty,
Learning came, charity came,
Hypocrisy took charge;
When differences weakened family ties
Came benevolent fathers and dutiful sons;
And when lands were disrupted and misgoverned
Came ministers commended as loyal.”
Lao Tzu, The Way of Life (Witter Bynner, trans., Capricorn Books, 1962)
“For security against robbers who snatch purses, rifle luggage, and crack safes,
one must fasten all property with ropes, lock it up with locks, bolt it with bolts.
This (for property owners) is elementary good sense.
But when a strong thief comes along he picks up the whole lot,
puts it on his back, and goes on his way with only one fear;
that ropes, locks, and bolts may give way.
Thus what the world calls good business is only a way
to gather up the loot, pack it, make it secure
in one convenient load for the enterprising thieves.
Who is there, among those called smart,
who does not spend his time amassing loot
for a bigger robber than himself?
“In the land of Khi, from village to village,
you could hear cocks crowing, dogs barking.
Fishermen cast their nets,
plowmen plowed the wide fields,
everything was neatly marked out
by boundary lines. For five hundred square miles
there were temples for ancestors, altars
for field-gods and corn-spirits.
Every canton, county, and district
was run according to the laws and statutes–
unitl one morning the attorney general, Tien Khang Tzu,
did away with the king and took over the whole state.
Was he content to steal the land? No,
he also took over the laws and statutes at the same time,
and all the lawyers with them, not to mention the police.
They all formed part of the same package.
“Of course, people called Khang Tzu a robber,
but they left him alone
to live as happy as the Patriarchs.
No small state would say a word against him,
no large state would make a move in his direction,
so for twelve generations the state of Khi
belonged to his family. No one interfered
with his inalienable rights.
of weights and measures
makes robbery easier.
Signing contracts, setting seals,
makes robbery more sure.
Teaching love and duty
provides a fitting language
with which to prove that robbery
is really for the general good.
A poor man must swing
for stealing a belt buckle
but if a rich man steals a whole state
he is acclaimed
as statesman of the year.
“Hence, if you want to hear the very best speeches
on love, duty, justice, etc.,
listen to statesmen.
But when the creek dries up
nothing grows in the valley.
When the mound is leveled
the hollow next to it is filled.
And when the statesmen and lawyers
and preachers of duty disappear
there are no more robberies either
and the world is at peace.
“Moral: the more you pile up ethical principles
and duties and obligations
to bring everyone in line
the more you gather loot
for a thief like Khang.
By ethical argument
and moral principle
the greatest crimes are eventually shown
to have been necessary, and, in fact,
a signal benefit
Thomas Merton, “Cracking the Safe,” The Way of Chuang Tzu (New Directions, 1965)