Proto-law

Richard Ostrofsky
(April, 2000)

Post-modern society is an urbanized crazy-quilt of ethnicities and sub-cultures,

each aspiring to its own customs and, in the limit, to its own law. There is no
global sovereignty that could impose a single law. As matters stand, the world
fears, much more than it desires or hopes for such a sovereignty – a United
Nations with tax power and a legal monopoly on the use of military force. The
necessary levels of common interest and political trust simply do not exist.
As an alternative to world government and law, we need to look more closely
at the possibilities for a global proto-law, evolving from the treaties and trade
relationships of autonomous polities with differing legal systems of their own. To
some extent, this is already happening, driven by necessities of trade, diplomacy
and conflict resolution. Indeed, such proto-law has always existed: In the most
primitive societies, there are already systems of custom, precedent and ad hoc
understanding guiding the activities of tribes and individuals along normal lines.
These systems may be highly sophisticated, elaborate and effective; but, by
comparison with systems of law proclaimed and enforced by the sovereign power
of an organized state, they remain poorly understood.
We can speak of proto-law when affairs are shaped by conventions and
understandings of sufficient weight to be capable of adjudication. It is something
more than a sense of propriety; we cannot speak of proto-law until custom has
become solid enough to plead and interpret before a mediator or arbitrator, or
before the virtual bar of “public opinion.” Proto-law exists when actual or
potential disputes can be resolved by invoking known agreements, conventions
and precedents before a third party or the group as a whole that has standing to
render judgment. There need be no coercive power involved, no formal authority
or sovereignty. The only requirement is for adjudicability of the case at hand in
light of mutual understandings. We can say that a bunch of kids playing sand-lot
baseball are already practicing proto-law in deciding if a pitch is good, or if a
runner is out.
Proto-law differs from custom in being something more than a matter of habit
or taste. There are principles and reasons involved – general principles that can
be invoked and argued as binding or not binding for the particular case at hand. It
differs from full-fledged law in that its principles have not yet been articulated
and proclaimed in definitive form by some authority committed to enforcing
them. Law flows from the top down, proceeding from a constituted sovereignty
which either makes it up as it goes along or adapts existing proto-law and
sponsors this as its own will. Proto-law seeps upward, distilling general
principles from specific cases – specific intuitions of justice and injustice. Thus,
British Common Law is full fledged law because, or to the extent that, Her
Majesty’s government is committed to enforcing it. It remains valid proto-law
even when the government itself behaves lawlessly (as has been known to
happen), for political reasons, or for reasons of state. It might be argued that our
concept of “natural law” is really proto-law backed by a long tradition and a
widespread public.
We can turn the definition around, and say simply that proto-law is law in the
absence of a sovereign power. This allows us to make sense of the notion of
“International Law,” which is really less of an oxymoron than it seems, and
which might become more effective than at present if its nature were better
understood. For what we call “International Law” is really a proto-law; and it is
limited much less by the absence of global sovereignty than by the imperfect and
rudimentary state of global consciousness and the paucity of global
understandings. The weakness of International Law is not so much that we lack
world government – a United Nations that could levy taxes and send in its
policing and peacekeeping army. Its greater weakness is that only some of the
conflicts that reach the international scale are justiciable – capable of
containment by adjudication.
Now, there are various reasons why an issue may not lend itself to legal (or
proto-legal) settlement: The matter may be too private or petty to lend itself to
adjudication, as when children try to get their mother to settle a quarrel she does
not want to get involved in. Or it may be so vague or elusive that no arbitrated
decision could be enforced, perhaps not even implemented. Or an issue may be
so huge so virulent, so ferociously contested that no adjudication could contain
and settle the matter. By the 1850's, slavery had become an issue of this kind in
the United States. The notorious Dred Scott decision that returned Scott to his
southern owner is considered the worst the Supreme Court ever made, but a
finding for Scott would have led to civil war at least as surely. The best course
would have been to refuse the case on grounds of judicial self-restraint, as a
question for the politicians and finally for society at large – though it was already
clear that the question was beyond political compromise. The issue of slavery
was not justiciable – but not because it was outside the Court’s jurisdiction.
Rather, it was not amenable to jurisdiction; it was too vexed for rational
settlement. Only a test of strength could settle it.
Unfortunately, many international disputes resemble the Dred Scott case in
their bitterness and intractability. But many do not; and it is in these areas that
international proto-law is becoming articulate, and gaining some authority. For
the rest, what is most needed perhaps is some way of testing relative power short
of actual violence; and this too seems to be evolving in the world’s money
markets. The role of law and proto-law in establishing economic power and
keeping it orderly would take us beyond the scope of this article.