Law is Inherently Violent?

By Mattias A. Caro
July 16, 2018

As a lawyer and theologian I recoil every time I hear some variation of the argument: "The law is inherently violent." The latest comes from Yale Law Professor Stephen L. Carter
Law professors and lawyers instinctively shy away from considering the problem of law’s violence. Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.
This is a law professor at the top law school in the nation essentially saying "all law is violence." That's bunk. Law is related to violence because it deals with imperfections in our nature—i.e., evils. But it can be interpreted and respected beyond the mere threat of violence.

Violence is inherently evil. It produces effects that overpower and disrupt what would naturally occur. If we want to go down the path that law is fundamentally violent, we've adopted a fairly dark view of humanity. Even if violence is sometimes required to avoid worse evils, it's not—it can't be—a solution to evil, itself. And law must afford some type of a solution if we're to take it seriously.

More troubling is that "law is violence" completely inverts the relationship between reason and will that is at the heart of all law. Violence is an act of the will, but law is, according to Aquinas:
An ordinance of reason promulgated by competent authority for the sake of common good.
Think about it. Ninety-nine percent of the laws you follow, you follow precisely because the command you are given is reasonable. Stop on red. That property line means that's his side of the yard. Fair dealing in business makes sense. People don't obey the law primarily because they fear the most ultimate of ultimate violent ends. They follow the law because it makes some immediate sense.

A "law is violence" approach is anti-intellectual, anti-Western, and certainly anti-Christian since it reduces man's highest good and moral flourishing to the sum of his basest desires for self-preservation. And we can tell just by thinking about it that's just not enough.

Mattias A. Caro is the Executive Editor of Ethika Politika.