Below, I offer some musings on the nature and sources of social order, in the broadest sense. Social order is what stands between us and chaos, war, dislocation, violence, unrest, destruction. It is a sort of rationality or "logos" embedded in the fabric of social life, through language, social norms and customs, family structures, legal constitutions, civil and criminal law, collective and personal narratives, a host of interpersonal and institutional bonds, the moral and professional education of future generations, and a wide range of public rituals and symbols, some this-worldly and others pointing to a world beyond. These thoughts are not meant to be anything like polished arguments or definitive statements, more a series of queries, off-the-cuff observations, and exploratory remarks (in no particular order) on this fascinating subject.
1. When we define "law" as a system of coercive norms, created by a sovereign state, do we mean to say that all social rules NOT coercively enforced and/or NOT created by a sovereign state are so different in their content and operation that they are entirely separate phenomena, or that even if related, they are sufficiently distinct that they deserve to be treated as separate phenomena? Does this separation of "official law" from other law-like rules blind us to the ways in which both direct, motivate, and coordinate the actions of persons who share the same social space? Indeed, is it possible that we misunderstand both the laws of the coercive state and the rules of social organizations, when we analyze them as fundamentally different in kind to each other?
2. Why does coercion mark off the laws of the state as different in kind from any other social norm? Surely the pressure of conformity to a custom or norm may be just as irresistible as the pressure of legal coercion? If I am depicted publicly as a bigot or a racist, for example, that may spell the end of my career. Notoriety may result in public shunning and painful isolation. Public shame may for many people prove an intolerable burden to be avoided at all costs. The desire for acceptance and the fear of rejection may be just as powerful as the aversion to incarceration, and public shaming, exposure as social misfit or pariah, may be as damning and more damning than a short stint in prison for a minor misdemeanour.
3. When we speak of law as being "coercive," we presumably mean that a tangible material sanction is attached to noncompliance, and applied in a more or less systematic way by the lawmaker or someone acting in the name of the law. But what happens when that sanction is quite idle, beside the point, or even irrelevant from the perspective of those subject to the law? For example, most people know that there is a serious sanction attached to murder, but that is not the reason they refrain from killing people. So, in what sense is the law against murder "coercive"? Only in the sense that a material sanction waits "in the wings," so to speak, ready to kick in for those who do not freely and of their own accord embrace the precept, "thou shalt not kill." Coercion, in this sort of case, is not a typical feature of the functioning of law, but a safeguard that law resorts to for the morally intransigent, wicked, or antisocial. Therefore, to say that "coerciveness" is an essential feature of law must be carefully qualified - the "threat" lurking behind law, in many, many cases, is not actually what makes the law effective or motivates compliance. Presumably, laws that do not track people's moral sense so directly, such as laws requiring the surrender of taxes or compliance with elaborate safety standards, rely much more often for their efficacy on the sanction attached to noncompliance.
4. When the driver on the bus announces that it is "required by law" for passengers to wear a seatbelt, and after a brief pause and short-lived deliberation, nobody opts to comply, what is one to infer about the meaning of the driver's statement? Here, let us assume that neither the driver nor the passengers perceive any significant risk of a sanction, either social or legal, being applied against them for noncompliance with the rule, and many of the passengers, let us assume, do not feel guilty about disregarding the rule either. So here we have a case of an action that is supposedly "required by law," yet can be ignored with impunity, and does not track the moral sense of those subject to it. Of course, we could say that using a seatbelt is "required by law" in the trivial sense that a law to that effect was passed in the national parliament, but why should that ritual be dispositive for deciding whether or not this action is in fact a legal requirement? Surely a law that meets with generalized disdain and meets with no expectation of enforcement is only a law in a very narrow and uninteresting sense, like a skeleton or a body that has breathed its dying breath? What is the best theoretical explanation for a "law" on the books that behaves as little more than a moral exhortation outside parliament?
5. Every human organization requires a set of rules, ideals of character, and some authority structure in order to accomplish its purposes. One way we distinguish between the state and "voluntary organizations" within it is that the state is an involuntary organization; another is that the state's social purposes are thought to be more universal and encompassing than those of a voluntary association: for example, police protection and healthcare are valued by all; whereas only some value the Catholic Church and its spiritual and pastoral services. What happens if a nonstate organization begins to offer a wide range of services, and even a secure environment, for its members? Its regulations begin to affect a broad spectrum of activities, and it may even develop its own system of "private" arbitration. Think of the Kurds in Turkey or the Palestinians in the West Bank or the autodefensas in Mexico. Here, we are not dealing with a full-scale "State" because it lacks international recognition and does not exercise the "sovereign powers" of the State. But it is providing social order and a certain level of social stability to its members. What is such an association, then, if it is neither a State nor a mere voluntary organization? And what is the status of its internal rules, if not laws? Can we honestly say that this is an organization that is simply operating with powers delegated from, or permitted by, a state? That is one possible description, but it suggests that such an organization is the creature of a state, when its own members may see themselves very differently. And this description would be patently untrue in the case of an organization at enmity with the State, yet existing within its geographic borders.
6. One of the much belaboured problems in global political theory is how to create institutional mechanisms to bring democratic legitimacy to law and policy in the international or global arena. To many, these efforts appear to encounter insurmountable obstacles - international law, policy, and adjudication seem to necessarily involve complex negotiations between elite actors from different nations, often on rather technical issues, so that at best they may respond to pressures from NGOs and a variety of interest groups, which can hardly claim to represent a demos, let alone all the demoi implicated in the policy or law in question. Does this mean that global law is condemned to illegitimacy? Or does it mean that there is something wrong with our traditional benchmark of democratic legitimacy?
7. What can we mean by the term "republic" (res publica, public thing), if there are many diverse communities with diverse goals and values at large within the boundaries of the national state, and governance of the public domain is increasingly dispersed across multiple organizations not tightly integrated within a single state? It might seem more accurate to speak of geographically coterminous or overlapping "mini-republics." What makes matters even more intriguing is that each community, however distinctive its values and beliefs may be, relies on neighbouring communities in a variety of ways to advance its own collective and individual interests, and finds its language, way of life, and perspectives inexorably shaped by the life of society at large. Thus, we see an emergent civic culture, of sorts, though this would surely be insufficient, by itself, to coordinate the interactions of diverse individuals and communities.
8. The existence of an active parliament and an extensive government bureaucracy does not necessarily give the government a monopoly over the meaning of citizenship or even a monopoly over the governance of public affairs. So we may find ourselves in a situation in which the very meaning of the "republic" and its core values are shattered or at least fragmented by the existence of rival and incompatible narratives and communities in the bosom of the same "republic," and governance of the public space may become a function that is assumed by non-governmental actors. This does not mean that there is no res publica, but if there is one, it surely looks VERY different to the republics envisaged by Aristotle, Cicero, or any of the modern writers, which seemed to assume a much higher level of integration and centralized control over the body politic.
9. We typically associate the notion of rule of law with settled authority and jurisdiction. Social conflict and arbitrary domination is reduced because the lines of authority are clearly demarcated and disputes are handled through settled law and impartial arbitration procedures. But the State very often has an interest in interpreting its jurisdiction quite expansively, and gradually enlarging it through more and more expansive interpretations. What happens if an association (be it a church, a university, or some other association) feels its rightful jurisdiction is being usurped? How can it defend itself against an overweening state authority? The state's own judges may be the very ones who are propagating and enforcing an over-reaching view of state jurisdiction. So the idea that standard forms of legal arbitration may be employed in defense of associations in these circumstances is hard to sustain. Is there any non-violent and law-like procedure that can be used to contest an overreaching interpretation of the legal and political jurisdiction of the state? Or must we appeal to a sort of "realpolitik" combined with threats of noncooperation, or, worse still, threats of violent resistance? In other words, can we create a space of rational and nonviolent contestation of an overweening state authority that does not depend exclusively on state-sponsored arbitration bodies?