Law & Society Blog

The world is chaos. The future is unknown. Reality is unreliable, and our sanity is fragile. We cannot rely on how things are, and have to instead rely on how things ought to be. There is certainty in that, at least. And there is comfort in certainty.

Law therefore is the opiate for the people. The factual uncertainty of the future is hidden behind a Chinese wall of normative certainty. Since the unbridled force of reality will not leave our persons and property alone (cars get stolen), the state must at least preserve our expectations intact (my car ought not to have been stolen). Without normative certainty, who would bother working toward an uncertain future? What reward in productivity?

Two things follow. First, this view explains how law breaks down in times of war, catastrophe, or famine: The uncontrollability of reality drowns out the controllability of normativity.

Second, not only retribution (”punishment is not overly concerned with the perpetrator at all”) but also justice has been cancelled from the equation. The only justice conceptually possible is what appeals to the harried populace, whose ruffled expectations the law attempts to soothe. There is no justice as a concept against which to measure law vs. non-law, good law vs. bad law.