Children are getting ready to play hide and seek. To determine the “counter” (I don’t know what these unfortunates are called in modern children’s language), they conduct a counting-out rhyme — whoever it lands on closes their eyes and counts loudly to a given number.
The counting-out procedure is nothing other than law, and this entire story is a vivid illustration of how society develops laws for the common good. Look. The participants have a certain goal — in most cases, to have fun playing the game. To reach this goal, they must resolve a certain conflict. The rules of the game itself stipulate that the “counter” is the loser. But the loser doesn’t yet exist — the game hasn’t begun. Someone is needed to fill this role. That’s what the counting-out rhyme is for.
The procedure doesn’t specify details like how high to count, how many times to shout “tra-ta-ta for myself,” and the like. These decisions are made on the spot, through discussion among the interested parties.
The procedure exists because it is known to everyone and can be easily explained to a newcomer. The one on whom the last word of the counting-out rhyme falls is “it.”
The procedure exists because it’s hard to cheat. You’d need exceptional abilities to predict where the last word will fall. For the same reason, three- or four-word counting-out rhymes are considered “illegitimate” — they simply won’t be used. By the way, the counting-out rhyme “on the golden porch sat…” has built-in protection against cheating: it’s conducted twice, and the first time, when assigning the “counter,” you must already choose which word to end on. But this is just a detail.
The enforcement and sanctions that everyone so desires are here simple to the point of ugliness. If some boy (or girl) doesn’t agree with the results of the counting-out rhyme… well… the boy (or girl) goes home — doesn’t get what he came for.
The procedure isn’t a mandatory condition for achieving goals. Children can do just fine without a counting-out rhyme if someone agrees to be “it” first. The same procedure can be used in different games, and different procedures can be used in the same game — everything depends on the situation. For example, when I was a child, there was an alternative thumb procedure. If it was necessary to split into two teams, a potential leader would raise his thumb. Whoever wanted to join had to press his own thumb against it, raising his own in turn, and so on. But sometimes counting-out rhymes were needed anyway — if, say, two teams wanted to settle fairly which of them would get the local hero of the courtyard.
Finally, the procedure exists not to arrive at a “general opinion,” but to organize interaction. The participants may disagree on how “fairly” various moments were handled, but as long as they’re playing, the procedure works.
In fact, we have just described the parameters of law as society produces it. So, law:
Is not a goal but a means. To achieve goals, people choose to use law themselves, or choose none at all. People’s goals lie outside the law itself.
Applies equally to everyone participating in the process. It doesn’t concern those outside it.
Exists as long as it is capable of resolving (preventing) conflicts. Counting-out rhymes have been around for a very long time, but if children find another procedure more convenient, they will be forgotten.
Exists as long as there is agreement with the procedure. Gollum accepted Bilbo’s muttering as a riddle, and Bilbo took advantage of this. Gollum himself considered the riddle unfair, but as they say, no one pulled him by the tongue — if he started guessing it, it means he participated in the game (and lost).
Is simple, obvious, and can be explained to a newcomer. By the way, I think many have noticed that fairy tales are such law textbooks — these are stories about possible cheating and cheaters.
Well, as for murder (I think many already have the question on the tip of their tongue — what about “people choose themselves” in the case of murder, and how does it “concern those participating” and where is “agreement” here), everything is simple. Murder encroaches on the very foundation of every person’s activity, on “to be or not to be” in the most brutal sense. The law here is that everyone prefers to be alive rather than dead. Those not participating in this law simply don’t exist. And on this matter there is unconditional agreement, since the murderer also belongs to those who prefer to be alive rather than dead. Therefore murders have always been prosecuted in all societies, regardless of whether there existed a state and written law punishing murder.
By the way, in decent countries, written laws were traditionally “discovered.” That is, the state legislator proceeded from the idea that society itself creates laws, and his task was only to discover them, similar to how the laws of nature are discovered. However, this opinion was far from widespread everywhere, and today it has been forgotten entirely.
If we compare the laws of “common law” and state laws, we will see that the latter do not correspond to the characteristics we listed. Often these laws prescribe certain goals to people. Laws are not the same for everyone (privileges), the participants of the process do not choose laws themselves, but are appointed by the state regardless of their desire (you register as an entrepreneur — you get all the relevant legislation as a bonus), law exists regardless of its ability to resolve any conflicts, and, understandably, it more often creates conflicts. I will not even mention that “ignorance of the law,” which for some reason “does not free from responsibility,” is the normal state of affairs. Often one must make enormous efforts to understand how this or that law actually functions, and even then, you can never be certain that you know everything.
As a result, we live in a world in which law eats law. Society does not stop (and cannot stop) developing procedures for people to interact with each other. On the other hand, the state stamps out more and more laws, increasing their number year after year. State laws interfere with the laws of society. The laws of society distort state laws (“corruption”). This conflict is becoming increasingly obvious, and it must be resolved. Someone here is clearly superfluous. And I know who.