But on rereading it and thinking about it, I realize there's a bit more I wanted to say about Professor Carter's argument, because there's something a bit misleading about it. Indeed, I think it's dead wrong on one level. Here's the passage I mean:
On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.
To begin with, I agree with Professor Carter about the seriousness of invoking the power of law. Every law is by definition a constraint upon someone's freedom, and we should be very reluctant to impose such constraints without good reason. As I've written many times before in this blog, the only reason that justifies such limits on freedom is that, on the balance, the law should make us more free than we would be without it; we invest some freedom here to enjoy greater freedoms elsewhere.
And Professor Carter is correct that enforcement of the law, even in a civil contract dispute, may ultimately end up involving violence. I could quibble that the sheriff, behaving lawfully, would not shoot the breacher for non-violent resistance, but the sad fact is that sheriffs and police officers also behave unlawfully sometimes, and use unwarranted force. And so there is always the possibility that invoking the power of the law could result in an escalation to violence.
But that is where I think his argument is dead wrong, because the risk of escalation to violence is not some special danger peculiar to law, but an inherent feature of human conflict. It's always possible that the person you're dealing with -- or an ally acting on your behalf -- might get violent, and so the caution that one should only invoke the power of law when willing to kill is misplaced. If you're in a contract dispute with the kind of person who is likely to violently resist lawful execution of a lawful judgment, then you're also dealing with someone who is likely to violently resist any other attempts you might make to vindicate your rights, whether or not you invoke the power of the law.
Let me back up a bit, though, because I want to make a distinction between Law and the law, and it's analogous to the difference between Science and the science. It always annoys me a bit when someone says "Science says Bigfoot doesn't exist" or "According to science, global warming is real," not because of whether I agree or not with the claim itself, but because Science doesn't say any such thing. Science isn't some authoritative canon of facts; it is a process for evaluating whether or not any particular theory about the world is consistent with the world.
But saying "According to the science, Bigfoot doesn't exist" is fine, because "the science" reads as shorthand for "the results of the science we have done on this particular question so far", a tacit acknowledgment that while the science we have done so far leads to the current conclusion, there may be other science yet to do that supersedes it.
Like Science, Law is not some canonical body of obligations, but rather a process. Specifically, Law is a process of dispute resolution, where the parties to a dispute present their evidence and arguments to a disinterested decision-maker, who considers their arguments and decides by applying generally accepted principles. These generally accepted principles, by the way, are often called the law, and I want to suggest here that this is just like the science, in that the current consensus on what rights and obligations exist is a result of the law-ful process we've done on the issue so far, not necessarily the final definitive pronouncement of Law Itself. Since Law is fundamentally a dispute resolution method, and there can be disputes about what the law should be, that can change. Statutes are struck down as unconstitutional, old precedents are overturned as values and understandings change. This is all part of how Law works. Law does nothing more and nothing less than resolve disputes.
(It's worth noting that in the ordinary course of things, Law also prevents disputes, because most of the time people have a pretty good idea of how a court will decide, and act accordingly. So, for example, people who might otherwise be tempted to breach a contractual promise choose not to, because they know they'll almost certainly lose if it goes to trial.)
All right, so maybe capital L-Law isn't coercive or violent, but what about the law, the various rules that may be in force at any given time? What about Professor Carter's example of the potentially violent consequences of enforcing a civil judgment? Or more to the point, what about the outright threat of imprisonment or even capital punishment that is supposed to deter people from defying the criminal law? How is that not a coercive use of violence?
At first glance, it certainly looks like one: "Don't do that, or we'll lock you up." And indeed, it's very useful for certain people to think of it that way, to see imprisonment as a consequence of criminal activity. And that "or else!" formula is exactly what coercion is all about, so it's quite naturally to think of the law as coercive. But it's a mistake to attribute that coercion to the law, because coercion is a background fact about nature, quite independent of the existence of Law. Laws can only constrain options, not create them (except by pruning away other options that interfere with their practical exercise).
Law does not empower the state to use violence against you. In lawless states, they have no trouble at all using violence. Rather, in rule-of-law countries, Law generally prohibits the state from punishing you, except when certain narrowly defined conditions are met. (Usually, those conditions include the requirement that the state prove beyond a reasonable doubt that you are guilty of some transgression.)
So again, even in criminal matters, Law is simply a process of dispute resolution. The prosecutor wants the accused to be locked up, and the accused wants to be set free. Both parties are given the opportunity to present their evidence and argument, and the court decides. If there's no dispute, there's no trial; either the prosecutor declines to bring charges (and the court isn't involved at all), or the accused pleads guilty, and the court's involvement is mostly ceremonial, giving a formal assent to the joint sentencing submission. (Mostly. Sometimes the judge wants to impose a harsher sentence than the prosecutor recommends. But in such cases, the judge can be thought of as trying to consider the interests of people not present but who could could be expected to dispute the sentence. Again, no dispute, no need to involve the court.)
I argue, then, that Law is not itself coercive at all, because all the coercion that exists is independent of law. All Law does is decide when coercion should be allowed, ideally with an eye to minimizing the total amount of coercion and maximizing freedom. The natural world is one in which we humans can and do coerce each other in many ways, and prohibiting the state from any coercion means permitting individuals and groups to engage in coercion with impunity. It's a difficult balance, to be sure, and doomed to imperfection. But the perfect is, after all, the enemy of the good.
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