The Yale Law Journal


The Rise of Lawless Power: A Book Proposal

16 Mar 2020


July 25, 2008

Estimated length: 50,000 words

Estimated time: image003.pngimage004.pngsix months from Nov. 2008

I. humans the power seeking animal

It is the essence of being human to seek power. This is what distinguishes us from all other animals. From picking up a stone to use as a tool to creating a global corporation, the search for power never ends. Emerson famously declared that all life is a quest for power. The great dilemma for human society is that power can result in harm as well as good. One individual picks up a stone to grind corn, the other uses a stone to kill another human being. Atomic power can supply energy for a city or destroy the population of a city.

II. limits on power

Just as human beings are always seeking new forms of power, they are always attempting to limit its use. If one nation possesses a large army, other nations will attempt to create a “balance of power” with armies of their own. The Framers of our Constitution attempted a “separation ofimage004.pngpowers” between three branches of government, and a further division between national and state governments. Competition is a common device for limiting power. So is democracy. Often power is limited to a particular group within society—the police or the armed forces.

III. law and power

Law is the preferred instrument for guiding and limiting the use of power. Law frequently attempts to regulate the use of power: a gun may be used in self-defense but not to commit a crime. An employer may not utilize child labor. A lender may not charge an excessively high rate of interest.

But law has inherent limits which power increasingly does not share. Law is territorial; damage to the environment ignores territorial boundaries. Law attempts to fix individual responsibility for harm; many different actors contribute to environmental damage.

All too often law becomes the captive of power, and in totalitarian countries law is frequently the preferred instrument of power. Law is based upon past practice whereas power is often the result of new creations.

IV. powerlessness

The growth of power may be accompanied by the development of unnatural powerlessness. If giant corporations monopolize the means to life—food supplies, housing, and transportation—the individual in today’s society may be far more powerless than an individual member of a society based on hunting and gathering. Powerlessness brings with it many ills and evils, including antisocial behavior and mental or physical illness. When we render nature powerless we may cut off our own supply of food or fresh water.

V. new forms of power

There are an infinite number of forms of power, from tools to machines, from one-person services to giant corporations, from feudal aristocracies to bureaucratic hierarchies. Forms of power are readily combined to greatly magnify power. A corporation is a machine that utilizes people as machine-parts, while combining individual units of wealth into a single powerhouse of wealth. An army combines weapons and organization. Such combinations multiply the impact of separate forms of power. At the same time, individuals who contribute a share of labor or wealth to corporations are immunized from liability for harm caused by the power they create.

As forms and combinations grow, power disparities also grow. Today an individual with billions of dollars in wealth is able to exercise billions of times the power of an ordinary individual. The disparity is far greater than the difference between the power of an emperor and a serf before the machine age. Even an emperor did not have the advantages in health care, travel, power over knowledge and information, media and technology commanded by today’s megahumans. And emperors, kings and czars were all limited by religion, tradition, customs of reciprocity and inherited beliefs, none of which limit the megahumans of today, who command governments, corporations, and private armies.

VI. weapons of mass destruction

Humans have always had weapons and used them to kill other humans. But in 1945 the dropping of atomic bombs on the civilian population of two Japanese cities, exterminating noncombatants, women and children, ushered in a new age in human history. Previously human beings, no matter what their intent or goal, lacked the capacity to destroy all life onimage004.pngthe planet. We could kill each other, but life would survive. After 1945 humans have held the power to destroy both nature and human life.

VII. mass media

Equally new in human history is the combined power of newspapers, television, radio, advertising, and the ability to influence human desires, human opinions and beliefs, and our entire view of reality. Previously humans were guided by the promptings of their own inner nature, their own direct observations, their own traditional beliefs. Now what people see, what they know, and what they want or fear are all subject to power and propaganda.

VIII. corporate entities

A corporate entity combines the wealth of many individuals into a single unit like an army, plus the labor of many individuals, again like an army, plus machines, resources, knowledge, and opinion-forming mass media, plus perpetual life, and places this amalgamation of power under dictatorial rule from the top down, with all of those below subject toimage004.pngobedience and to whatever rules and conditions the top may impose, often depriving these individuals of rights they would otherwise enjoy as citizens under a Constitution. Thus, the corporation is a totalitarian government that makes its own rules. This form of government, unknown to our Constitution, has been superimposed upon our earlier form of democratic government.

IX. power and conflict

Earlier forms of power were subject to dangers such as misuse. The new forms of power create a new danger deriving from success itself. By using overwhelming force to achieve its goals, the corporation and other new forms of power cause other values to be neglected. But these neglected values, which are deprived of power, may in fact be essential to survival. If a corporation has the single goal of producing a useful commodity such as consumer appliances, the long-run danger is that other necessities of life, which may not be as profitable, will be neglected. Thus success itself produces conflicts that ultimately threaten survival. Human beings depend upon multiple values to survive. Arbitrarily forcing the production of a few values, while neglecting other values that may not offer an opportunity for profit, produces an unbalanced, lopsided human universe lacking some ingredients necessary for life.image007.pngimage004.pngThus, excessive power leads inevitably to conflict, and our society possesses no mechanism for peacefully and intelligently resolving such conflicts.

X. new consciousness

As we begin to recognize that governments, laws, corporations, and our educated elites are all failing to avert looming environmental and economic catastrophes caused by uncontrolled human power, we must also begin to see that no one is left to save us but ourselves acting as individual human beings. As individuals we have delegated responsibility for directing society to others; now we have no choice but to take back this responsibility and power. This increasing alarm and awareness of need for fundamental change—personal, political and environmental—is what has come to be known as new consciousness.

New consciousness began to emerge in the 1960’s, spontaneously and without leaders. It took many forms, some fanciful and foolish, some musical or artistic, some activist and focused on particular issues such as the war in Vietnam or injustice in this country. But every manifestation of new consciousness, from the most playful to the most serious, had this in common: it was a response. They were all a response to an urgentimage005.pngimage004.pngsense that things were out of control, and that no one was minding the store, least of all those in positions of responsibility or those possessed of presumably superior education and knowledge.

Every aspect of new consciousness, from the early songs of Bob Dylan to the student protests at universities, contained at least a fragment of this frightening message: the machines have taken over, and they will carry us straight to catastrophe. At the same time, every manifestation of new consciousness has held out a message of hope: the oncoming catastrophes are not inevitable because they are entirely human-created. We have created these destructive forces, and we alone can change their course.

New consciousness has therefore had an overriding goal—power for individual human beings, to balance the runaway powers we have delegated to machines and organizations.

XI. the empowered individual

New consciousness is a portal leading to the discovery of hidden riches and resources within each of us, unexplored and undeveloped because our present schooling ignores and even suppresses them, and because our consumer society fears them lest they make us less needy and dependent. A person with a rich inner life has far less need to seek new and expensive diversions at the mall. A person with an independent, fully developed mind and intense awareness of feelings needs far less costly outside entertainment. A person with an independent mind can connect the dots and see how individual choices—whether to drive or walk—combine to create the forces that are destroying both our economy and our environment.

What makes us the prisoner of these destructive forces is dependency on material resources and services, a dependency that is masked by the superficial allure of limitless wealth. Today’s billionaire megahumans are the most dependent members of the human species ever to appear. They cannot walk outside without armed bodyguards. They depend upon machines or other human beings for every function in life. Their needs are insatiable, and can only be filled by others. They have every imaginable possession except independence and autonomy. New consciousness, by contrast, makes independence and autonomy its highest goal.

New consciousness aims to produce billionaires of internal wealth. It also aims to produce human beings who are capable of restoring true self-image008.pnggovernment by guiding and limiting the power of organizations and restoring the rule of law. Such individuals can assume the responsibility that government and corporate organizations have abdicated. The acceptance of a responsibility to guide society—a responsibility that is truly ours—is not a burden to be avoided but the definitive liberation from the tyranny of lawless power.

XII. new consciousness activism

Consciousness begins with the individual but it does not end there. The concerned individual seeks the help of others to influence the decision­making process of society. An early and successful example is how the beautiful and historic Chesapeake and Ohio Canal, with its hikers’ towpath paralleling the Potomac River, was saved from being turned into a highway for rush-hour traffic by the bold and imaginative action of a single man who loved to hike the towpath—Justice William O. Douglas. In the spring of 1954 Justice Douglas led a group of outdoor enthusiasts on a 189 mile hike along the Canal’s entire length, arriving in Washington, D. C. with enough press coverage and publicity to stop the highway and preserve the Canal and towpath as a national historic monument.

Today intrepid individuals such as Bill Douglas are needed to join with others in many similar efforts to preserve jobs, schools, homes, health care and democracy itself.

New consciousness activism begins on the outside and moves toward the center. It begins at the bottom and moves toward the top. Instead of creating new conflicts, it seeks to resolve conflicts, something those within the system are in no position to do. It imposes much-needed limits on machines and organizations. And ultimately those limits can be codified in laws, in constitutions, and in expanded and updated bills of rights.

New consciousness rejects the idea that government is powerless to control machines and organizations. New consciousness asserts that machines, organizations, and the forces they generate are only servants. New consciousness restores the power of citizens to ordain their political systems and laws. New consciousness affirms that human beings working together can again become masters of their own destiny.