The natural experiments of history present an opportunity to test Hobbes’ view that government and law are 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, despite, the wide variety of situations, common patterns emerge 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. These 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 limitations on use-of-force rules under international law, fairness procedures promoting the legitimacy of criminal adjudication, and crime-control policies for fighting organized crime and terrorism.
The full text of this Article is available to download as a PDF.