Document Type

Article

Publication Date

2013

Abstract

The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also illustrate the dependence of social order and cooperation on a group's commitment to justice.

The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the use-of-force rules under international law, the procedures for fairness in criminal adjudication, and crime-control policies in fighting organized crime and terrorism.

Keywords

Criminal law, absent-law, state of nature, philosophy of law, vigilantism, evolution, Darwinian theory, altruistic punishment, natural experiment, social cooperation, social cohesion, subverting justice, utility of desert, restorative justice, non-incarcerative sanctions, transitional justice, legitimacy, organized crime, terrorism, shipwreck

Publication Title

University of Illinois Law Review

Publication Citation

2013 U. Ill. L. Rev. 433.

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