This article was published in the Spring 1996 issue of Formulations
by the Free Nation Foundation
Justice Without Law?
by Jerold S. Auerbach
Oxford University Press, 1983, 147 pages
reviewed by Sean O. Haugh

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In a free nation, how can we best ensure justice? Should we follow the example of the country we find ourselves in now, placing our trust in an explicit body of written law? Or should we instead trust ourselves to devise extra-legal methods, rooted in the values of the free nation, which might better serve to safeguard the rights of the individual?

In Justice Without Law?, Jerold Auerbach examines this dynamic at work throughout American history. While the text limits its relevance to American legal tradition, there is much for us to learn from Auerbach's observations.

There are, of course, many reasons why we would want to avoid placing all of our faith in law. Our current attempts to address every conceivable social issue with a written proscription has led to a centralized state which attempts to control every facet of our lives, while it slowly and painfully suffocates under the enormity of this task. We see the fruits of excessive reliance upon law in our clogged courts, our overcrowded prisons and in our moribund economy. Perhaps most frightening, we see how the ever burgeoning law has caused the proliferation of lawyers and politicians. In short, the rule of law in America has led not to justice, but to widespread and systematic injustice.

Auerbach takes a look at several communities that recognized this problem and tried to develop alternatives that better suited their indigenous conceptions of justice. Most of these attempts concentrated on various forms of arbitration, mediation or conciliation, and almost all of them have been consumed by the federal government and its legal system. There is still agitation for nonlegal justice, not just from liberal community activists, but also from such establishment organizations as the American Bar Association and the U.S. Justice Department. But it's become all snake oil. As Auerbach puts it, "dispute-settlement processes that traditionally were non-legal alternatives have now become thoroughly legalized." (p.15.)

Auerbach proceeds in chronological order. The first chapter is devoted to colonial patterns of dispute resolution. Group solidarity was of utmost importance, so conflicts within the group had to be reconciled swiftly and surely. The great majority of colonists were deeply religious depending on ecclesiastical authority for mediation. Lawyers and litigation, due to their adversarial nature, were explicitly banned in most colonial communities. Auerbach quotes the Rev. John Cotton describing the idea of one church member suing another as "a defect of brotherly love." (p.23.)

Disputes were often heard by two or three men considered understanding and judicious by the community. Mediation procedures were developed to set the disputing parties as ease, and to devise a settlement satisfactory to all concerned. Rarely did people take their disputes to court, since English common law was one of the things they were deliberately escaping from. Dissenters were usually quickly ostracized.

Early American merchants also saw the need for mediation. Private tribunals, staffed by "informed business experts", were deemed superior to ignorant judges and juries. They saw conflict as a hindrance to commerce, and moved quickly to settle their disputes. "Disputes not only disrupted business but, when litigated in public, invited the intrusion of outsiders into private business practices." (p.33.)

Colonial society, however, was bound to change with its rapid growth. Banished dissenters often founded new communities, with different forms of dispute settlement. As trade grew, people became less dependent on the community for survival, and thus began to assert more individual rights. As the original visions of the first colonists faded, so did the cohesiveness of their settlements. People had more reason to pursue their personal advantages. Law, with its enforced adjudication, was ready to fill this void.

As we move into the period covered in the second and third chapters, the federal government and its various states have managed to impose the law in most areas. However, several intentional communities arose that saw the same need for non-legal justice as did the colonists. They ranged from utopian socialists and diverse religious sects (discussed in Chapter Two) to tight-knit immigrant enclaves (examined in Chapter Three). Like the early colonists, they were united by strong leaders and ideologies. From these flowed the authority to resolve internal conflicts without threatening the order of the community. In many cases, once the leader died or lost the faith of his followers, the group would lose its cohesiveness and become more likely to turn to more adversarial processes of resolution. This phenomenon corresponds to the process of assimilation of the immigrants. One notable exception were the Mormons, whose Bishop's Courts dispensed justice relying on voluntary cooperation from disputants or those who transgressed against community principles. This process remained successful until the federal government, emboldened by their success in the Civil War, forced the Mormons to accept government law.

The aftermath of the Civil War also saw the beginnings of arbitration used as a tool of the state to relieve the pressures building up from excessive reliance on the law. The Freedmen's Bureau, charged with solving conflicts arising from the new role of black workers, instituted arbitration panels to hear labor disputes. These largely failed for lack of support from both sides. Often the freed blacks wanted to appoint one of their own to the tribunals, and became disenchanted when this opportunity was invariably denied them. On the other hand, white planters were generally only interested in results that would maintain or strengthen their control over labor issues.

This pattern has been repeated throughout this century. The common reasons why arbitration enforced from an outside source remains unpopular stem from the power imbalances that have arisen in American society. Disputants see themselves as unfairly matched. The stronger party most often has a keen interest in developing the guidelines and selecting the arbitrators, but if they go too far in exerting their control they risk losing the interest of the weaker parties.

For example, at the hospital where I work, insurance companies will ask patients to sign a form agreeing to arbitration, instead of litigation, to resolve any challenges the patient may have to their course of treatment or billing for these services. When I look at this form, I think about how the insurance company has probably already rigged this system against me, and how I'd be renouncing my "legal rights," and thus decline to sign it. I'd rather take my chances before an ignorant judge or jury.

In Chapters Four and Five, Auerbach fleshes out the emerging duality. Non-legal forms of dispute settlement flourish only under certain conditions. There must be a unity of vision guiding the community, upholding communal goals over aspirations of the individual. The disputing parties have a need to respect the fairness and integrity of the resolution process, and a common interest in a just decision. Mediation relies on people restraining their competitive and acquisitive impulses.

Without these conditions, Americans have turned to the legal tradition. Our law was written to favor individual rights, leading people to use it when their grievances were not placated by an appeal to community values. But most importantly, the value of the law is that it is backed by the power of the government. A disputant who felt on unequal footing with their foe, or who did not trust their opponent to abide by the results of arbitration, had need for an adjudicating disinterested outside force to impose an objective ruling.

Today, the arbitration movement continues to be revived by outside social reformers as an outlet for our clogged courts. Rarely do these reformers recognize that arbitration imposed from the outside is a contradiction in terms. The only times we witness a successful arbitration or mediation project, it has sprung from the grassroots of a given community. The problems created by an ever-growing law continue to escalate at an alarming rate. Yet, Auerbach concludes, the desire for non-legal forms of justice will always remain. As time and social priorities continually change, special circumstances will again create the political space for justice without law to flourish.

This analysis leaves those of us who wish to develop a new free nation in a bit of a quandary. Do we place our trust in a body of law, or can we rely upon ourselves to develop an attractive and self- enforcing way of settling our differences without law?

Given the horrible example of a society dominated by the law, we would be inclined to avoid it as much as possible in our new free nation. And yet, before we start on the task of ensuring justice without law, we must ask ourselves some hard questions.

First, do we have a shared vision strong enough to create community values? Can this vision be realized without the reliance upon an exalted person or persons, without whose leadership the vision would disintegrate? How can we develop strong community values without coercing conformity?

Those interested in creating the new free nation, at least in this forum, are by and large staunch individualists. Our vision emphasizes individual freedom and free-market capitalism. Given those who have come before us, can we preserve this outlook while trying to live without law? How can we convince people to value social harmony along with personal gain? How can we channel the competitive spirit into agreeability with our shared community values? Can we really become a true nation of individuals?

One trap libertarians should always be careful for is giving too much weight to the needs of the individual over the needs of the society. We rightly perceive that individual liberty is vital to the health of our communities. Free people are more likely to create tolerance and prosperity for the good of all. However, these free people must also forge deep alliances and understandings between each other, not just to maintain social harmony, but even to survive. If our new free nation is to be successful, we not only require maximum independence, we must also develop a healthy system of interdependence.

I thank Auerbach for helping to bring these issues into sharper focus for me. This book is a fine introductory overview to a fascinating aspect of America's quest for justice, citing numerous examples. There were several times where I wished that Auerbach had gone into significantly more detail on the inner workings of all these non-legal dispute resolution systems. My desires are only somewhat mollified by the 28 pages of notes and citations, giving anyone who shares my feelings ample opportunity to investigate matters meriting further inquiry. D


Sean Haugh is a member of the Free Nation Foundation. He is the Editor of The Tarheel Libertarian, the newsletter of the Libertarian Party of North Carolina, and has been active in various libertarian and anarchist organizations since 1980.

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