By Max Borders
If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth — certainly the machine will wear out… but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.
— Henry David Thoreau
In the peer-to-peer revolution, the most important elections will happen outside the voting booth. And the most important laws won’t be written by lawmakers.
Consider this: The first time you hopped into a Lyft or an Uber, there was probably, at the very least, a legal gray area associated with that trip. And yet, in your bones, didn’t you think that what you were doing was just, even if it wasn’t yet clearly legal?
If you felt that way, I suspect you weren’t alone.
Today, ridesharing apps are operating in most major cities around the country. And municipalities are having to play catch-up because the people have built massive constituencies around these new services.
This is just one example of what Yale political scientist James C. Scott calls “Irish democracy,” where people simply stop paying attention to some rule (or ruler) because it has outlived its usefulness.
One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy,” the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.
Now, let’s be clear: the right rules are good things. Laws are like our social operating system, and we need them. But we don’t need all of them, much less all of them to stick around forever. And like our operating systems, our laws need updating. Shouldn’t legal updates happen not by waiting around on politicians but in real time?
“But Max,” you might be thinking. “What about the rule of law? You have to change the law through legitimate processes.”
And that’s not unreasonable. After all, we don’t want mob rule, and we don’t want just anyone to be able to change the law willy-nilly — especially those laws that cover our basic rights and freedoms. There is an important distinction, however, between justice and law, one that’s never easy to unpack. But Henry David Thoreau said it well, when he wrote,
Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them?
Today’s peer-to-peer civil disobedience is tomorrow’s emergent law.
In other words, the way the best law has always come about is not through a few wise rulers getting together and writing up statutes; rather, it emerges among people interacting with each other and wanting to avoid conflict. When peaceful people are engaging in peaceful activity, they want to keep it that way. And when people find new and creative ways to interact peacefully, old laws can be obstructions.
So as we engage in peer-to-peer civil disobedience, we are making choices that are leading to the emergence of new law, however slowly and clumsily it follows on. This is a beautiful process, because it requires not the permission of rulers, but rather the assent of peer communities. It is rather like democracy on steroids, except we don’t have to send our prayers up through the voting booth in November.
— Voice & Exit (@VoiceAndExit) March 26, 2015
Legal theorist Bruce Benson calls this future law the “Law Merchant.” He describes matters thus:
A Law Merchant evolves whenever commerce emerges. Practices that facilitated emergence of commerce in medieval Europe were replayed in colonial America, and they are being replayed in Eastern Europe, Eastern Asia, Latin America, and cyberspace. Law Merchant arrangements also support “underground” economic activity when states constrain above-ground market development.
It might be a while before we evolve away from our outmoded system of sending politicians to capitals to make statutes. And the issue of lawmakers playing catch-up with emergent systems may be awkward and kludgy for a while. But when we think that the purpose of law is to help people interact peacefully, peer-to-peer civil disobedience might be a necessary ingredient in reweaving the law for the sake of human flourishing.
This article was originally posted at FEE.org.