To argue that law is, at its heart, a mechanism for expressing anarchic ethical duties leads
to some difficult conclusions. Can the law compel us to be ethical, and if it does, are we really
being ethical in the anarchic, pre-ontological sense that Levinas describes? I would argue to the
contrary. Take the famous English case of Donoghue v Stevenson  AC 562, where the concept
of proximity in tort was first developed.51 If the law states that a drinks manufacturer cannot
allow people to suffer nervous shock by distributing ginger beer containing decomposed snails,
this provides a clear social benefit (namely a reduction in the amount of psychiatric injury
resulting from snail-infested beverages). But this does not mean that drinks producers are more
careful because they are ethical; they are being more careful because they do not want to be sued.
In this context, Upendra Baxi has rightly argued that tort law, instead of encapsulating our infinite
ethical responsibility, actually allows for responsibility to be constructed, contorted and
discharged by payment of damages in a manner that ‘affirms an infinite lack of responsibility,
engendered by the capitalist notion of human rights as a license to cause “lawful” harm to
others.’52 He offers the juridical response to the events in Bhopal in 1984 as the most cogent of
ANARCHY AS A BAD CIRCUMSTANCE
While anarchy is lambasted as a very bad circumstance, it may not have always been historically true… not in the earliest days. After all, there seems sufficient evidence violence is relative to the population density. Still, it couldn’t have been too bad otherwise we wouldn’t have the situation we find ourselves in today (over-populated). To whatever degree anarchy was a violent atmosphere, the sum total of individual incidences would seem to pale in comparison to civilized warfare.
Also, while the injected element of ‘civilization’ created the right environment for science advancements… they’ve turned out to be a double-edged sword. The environment is paying a heavy price. As for improving peace and security, violence still seems relative to the population density as the problems are growing. Of course, given the population today, anarchy would surely be doing much worse… at least in the urban areas.
Unfortunately, although beyond the scope of their imagination, the ancient architects of civilization could not have foreseen the ultimate impact. Only recently have we awakened to the environmental dangers from too much consumption. We haven’t yet, however, fully recognized the dangers of civilization’s aggressive social policies.
From a broader point-of-view, as an injected element to improve matters civilization has only produced superfluous positive results in light of its overall impact.
Furthermore, the realities it creates are often contradictory. For example, it is paradoxical that civilized warfare effectively cancels out the gains from modern medicine. Or that other life-saving advancements are cancelled out by automobile accidents worldwide which kill nearly 100,000 people annually. Yet, “that’s life”, as the saying goes today. While population gains are more than offsetting losses, it is only the survivors of this gauntlet which benefit. There’s no denying it, whether anarchy or civilization, they’re both gauntlets.
In trying to be objective and make a case against anarchy as well, it’s more difficult. We can’t compare modern-day anarchic situations following the collapse of a government during war or civil strife since those situations would be due to the failure of civilization, not anarchy. Since we’d need a ‘settled’ example, only a people living under anarchy for several generations could serve as a comparison. Yet, apparently none exist… at least not intellectual equals. So, the only way to envision anarchy is to subtract the effects of civilization.
In subtracting the effects, anarchy would have been a world of far fewer luxuries. Items of every variety, large and small, and especially those which require hundreds of skilled craftsmen probably wouldn’t exist. Education would suffer immensely and social programs would be non-existent. So too, power grids. These and other such benefits and ‘comforts’ would be the tradeoff for living under anarchy just like the loss of personal freedoms is the tradeoff for being ‘civilized’.
Yet, at what price these luxuries? Well, the cost has been deferred. While modern gadgets and conveniences are great, although we could live without them, neither the 21st century, nor any future century, will have the comforting thought that our natural resources are ‘limitless’. It’s a high price to pay.
Civilized societies aren’t coping with the current population it created either… tens of thousands die each day from starvation. So, is civilization serving the best interests of mankind in the long run? Perhaps though, it isn’t a fair question. The current situation may have been inevitable whether civilization was ‘in charge’ or not because civilization is really only a progressive state of anarchy. In other words, civilization is only a system for which to control undesirable anarchic situations. To blame civilization for over-population would be like blaming a broken dike for flooding a valley. Without the dikes, of course, the flooding would have occurred anyway but in going too far in trying to manage things often makes matters worse.
Despite the negative impact of over-population, the idea to control it isn’t on any political agenda since it would have a negative effect on the world economy. In need of ever-expanding marketplaces, big business and their lobbyists would fight the idea tooth and nail. Only China sees it differently.
The ethically unfit and civilized law
The primary reason civilization can’t function humanitarianly is not only because good leaders are hard to find, or because institutions invariably fail, but because millions upon millions of unethical and egregious acts are committed daily. Humans seem to beg for tyranny… making a police state inevitable under any political system.
Today, a justice system deals with the unfit whereas under anarchy it was reprisals. While laws provide for punishment, reprisals might either be harsher or more lenient but jailing would rarely occur. The matter would likely be dealt with swiftly and, unlike today, done cost effectively. While we know civilization has proven itself ineffective in controlling crime, although largely due to legal definitions all over the map, incongruous as well, anarchy probably didn’t do much better. Without a standard, likewise its justice was all over the map. Roving gangs of murderous thieves would have been the biggest problem in anarchic societies but neighborhood militias could have met this challenge.
The essence of anarchy
Whether it is legislating morality (blue laws), or passing laws to punish smokers, or the overly-strict drunk driving laws, the injustices persist. Smoking laws go so far as to ignore the 800 year-old tradition of honoring property rights dating back to the Magna Carta. And, as evidenced by ballot propositions such as Arizona’s proposition 203, the will of the majority riding herd over the will of a minority is also occurring even though majority rule has been proven unjust for centuries. It’s an anarchical situation unto itself.
If civilized society collapsed back into anarchy, everything would soon revert back to how it was in ancient times… when veracity and honor kept people alive. For those without these attributes, it was open season. One had to be very careful who they killed however, lest start a blood feud. Often however, few people would care who killed the really bad guys… unless that bad guy belonged to a gang of other bad guys. Nonetheless, anarchy surely did a better job ridding society of scum.
Stuck with civilization now, for better or worse… there are many things we could do to improve it. A good beginning is to abolish sovereign immunity in order to hold more accountable public employees and officials. Under the protection of sovereign immunity, government employees have a license to harass, injure or even kill without much fear of retribution. They might only lose their jobs.
The attributes of civilization and its stutter-step march
Even though the question is now academic as to whether the benefits from being civilized outweigh absolute freedom, success is still linked to the freedoms extended. It’s relative and cannot be disentangled. Freedom is the foundation on which greatness is built and failure to recognize it is demonstrated by many less-than-grand countries.
While progress has often been called the ‘march of civilization’, sometimes it marches in the wrong direction which forces a painstaking correction which usually takes centuries. Although we may be better off than five centuries ago, it’s doubtful we’re better off than the 19th century. Aside from bankrupting government, today’s trend of trying to cure all ills of society would eventually require everyone in strait-jackets. Restricting freedom too much ruins the experience of life for everyone. We must be willing to accept some risks otherwise lose the joys of living. In the meantime, our juices are being sapped.
Like smokers, if we’re not watchful everyone will be punished for their particular pleasures. All dangers could be outlawed like skydiving, mountain climbing, boxing, rodeos, auto racing, football and scuba diving. These days, new restrictions are often rooted in ‘political correctness’, a term which has elbowed its way into the social arena. Utilized to built a head of steam, it says obesity will be next. As one thing usually leads to another, jurisprudence would then say that if one danger can be justifiably banned, then all dangers can be justifiably banned. Of course, behind it all are the insurance companies… the monetary beneficiaries.