Benjamin Bestgen: Law in Utopia
Benjamin Bestgen discusses law in utopian fiction. See his last jurisprudential primer here.
Dystopian fiction has enjoyed significant popularity again in recent years: Day of the Oprichnik or Hunger Games followed the footsteps of classics like The Handmaid’s Tale, 1984, The Dispossessed, Darkness at Noon or We.
A common feature of dystopian thought is that law and justice have either been replaced by Walking Dead-like anarchy or serve totalitarian or corporatist regimes to control and oppress people.
In contrast, utopian fiction tries to imagine better ways of living and arranging societal affairs for the benefit of humanity as a whole. As law is commonly used to regulate societal interactions, selected utopian thinkers have implicitly or expressly commented on it, with interesting results.
Republic and Laws
Plato’s Republic depicts Kallipolis, an idealised city-state lacking written laws or a court system. Plato, speaking through Socrates, seemed to think that cooperative, pro-social behaviour is very likely when the population enjoys good nutrition, health and individuals are engaged in meaningful activities befitting their talents. Education of both intellect and character is crucial, as an ignorant, uncouth population is more likely to behave destructively.
Good governance and justice are embodied by philosopher-kings: these individuals are exceedingly well educated for many decades, devoted to wisdom and knowledge, have a reliable, even temperament and live a simple life, as excessive wealth or comforts could corrupt sound judgement. In such an ideal society, a formal legal system or lawyers should be unnecessary.
In Laws, Plato depicts a city closer to reality, which has written laws and a court system, with a focus on appeal courts to mitigate against miscarriages of justice. Various offices, councils and control-mechanisms exist to provide checks and balances between officials to guard against abuses of law and injustice. Citizens are part of law-making and administration, with legislators obligated to provide the reasons for legal proposals, including their ethical basis. As in Republic, thorough education, public health and fostering pro-social, just conduct are thought to increase happiness and social stability.
Thomas More’s island of Utopia has no private property rights, few laws and no lawyers. Private property regimes, bolstered by complex laws, are seen as the key cause for social ills, unjustifiable inequalities and disputes. To ensure the economic wellbeing of society, every able Utopian must apply themselves for six hours a day to some essential trade. The remaining time is free. Acquiring a broad education from childhood on, including moral philosophy and liberal arts, is encouraged and widely pursued, as Utopians believe that intellectual and spiritual cultivation is key to a happy life. The laws of Utopia are easy to understand, quickly studied and every Utopian knows them. Lawyers are seen as obscuring and distorting the law for personal gain, so there are none in Utopia. People represent themselves instead. Magistrates have a yearly tenure and are chosen from the population, one for every 30 families. They have great discretion in deciding civil and criminal cases and are selected for their even temperament, incorruptibility and benevolent wisdom.
Looking Backward, Equality and News from Nowhere
Edward Bellamy and William Morris wrote their respective accounts of a socialist/communitarian utopia, Bellamy considering state-socialism and Morris a libertarian variety. Both considered that most civil and criminal laws as well as government institutions and courts are unnecessary following the end of private property regimes and the inequalities and injustices coming with them.
Most crimes are considered social or medical issues, with focus on rehabilitation and treatment. Attorneys don’t exist, as they are seen to have an interest in colouring what the law says for partisan interests. Juries are likewise abolished.
Bellamy retains judges, with legal cases being debated by three professional arbiters, one defending, one prosecuting, one considering both sides. If all three cannot agree a verdict, a retrial takes place.
Morris imagined that lust for material gain or the goods and services money can buy no longer inspires crime, as society is liberal regarding all sorts of human passions. If a person mistreats another in a moment devoid of reason, wider society and family of victims and wrongdoers both would facilitate appropriate atonement, without need for lawyers, judges, torture, prison or other punitive measures.
Scottish writer Ian M. Banks envisioned a society containing humans, aliens and highly advanced artificial intelligences living in mobile socialist communities in a post-scarcity world. Defence and diplomacy with other civilisations in the universe not being part of the Culture as well as administration and what minimal governance is required is done by Minds, exceptionally developed AIs. As individuals can be or obtain almost anything they could possibly want without the need to work or gain personal resources, crime and civil strife are rare. Law enforcement through courts or police has likewise almost disappeared, with the Minds handling any disputes appropriately.
What struck me as most interesting in my – by no means exhaustive – research on law in utopian literature was that almost all authors greatly value widespread education and are sceptical towards private property regimes. Law and lawyers are either perceived as agents of such regimes through which powerful and wealthy parties maintain their control over resources and society or as somewhat undesirable institutions for which a more advanced society has little need.
To me, this reflects the acute awareness of these writers that lawyers, trained in understanding, interpreting and applying the law, play a central role for the day-to-day functioning of society, be it family law, property law, commercial law, government or employment relations. If laws are unclear or unjust, lawyers are inevitably part of obscurity and injustice.
But the opposite is also true.
Given that utopian imagination wants to inspire us to think about how we can be better people and live in better societies, lawyers can do their part by promoting fairness, intellectual honesty, justice and reason, all desirable traits associated with the legal profession. If, at some point in the future, this leads to many of us being obsolete, the benefits of living in an advanced, prosperous society should quickly allow us to find new occupations, away from billable hours, complex contracts and exhausting court battles.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.