The decision in Epic Systems Corp. v. Lewis has a clear, unavoidable, and devastating takeaway: the system doesn’t work.
Supposedly, we have this thing called “society” which organizes everything to allow for normal people to live happy and productive lives, as long as they follow the rules. If you behave and get good grades in school, you’ll be able to go to college, and then get a good job, which will allow you to participate in the market economy with the money you make and thereby pursue whatever goals you might have (because of course the market provides everything you could ever want). And if anything in this process goes wrong, there are also rules for how to resolve it. If someone steals from you, you can call the police in order to get your stuff back. Even in the case of outright unpredictable and unavoidable disasters such as tornadoes or earthquakes, we have insurance and emergency management services.
Naturally, nothing’s perfect, so there are plenty of times when things don’t go as they should: when cops kill the people they’re supposed to be protecting, when corporations don’t pay the amount of taxes that the law says they’re supposed to, when people make electoral decisions based on false or misleading information, etc. But these things aren’t necessarily system failures. They may just be unintended consequences, or mistakes in how a law was drafted, or new technological developments that haven’t been accounted for yet. So the natural recourse here is to reform: fighting fake news, closing tax loopholes, and retraining the police. This is also built into the rules: we have various mechanisms for making these sorts of changes when it’s recognized that there are problems of this sort that need to be corrected.
It’s important, therefore, not to respond to these types of things by changing the structure itself, because the structure is what allows you to respond in the first place. If, for example, you were to respond to police violence by delegitimizing the police, you would a) no longer have their protection, opening you up to more violence, and b) implicitly create a new structure without police protection in general, meaning no one would any longer have any recourse against unjust violence. (This is essentially the argument that cops have tried to make in response to Black Lives Matter, except that they’ve been too stupid to make it correctly; they’ve instead gotten defensive and petty and thereby conceded the moral high ground.) This means that more important than any particular violation of the rules is the rules themselves, because as long as we have the rules, we have a functioning society. It’s all well and good to try to fix things, but this must always be done through the proper channels, and never by attacking the channels themselves.
What the Epic decision demonstrates is that this is formally not the case. The rules are intentionally designed not to work for you, and this includes the rules that are supposed to account for the times when the rules fail. The case specifically concerned the fact that the company wasn’t paying overtime. In other words, they were stealing from their employees, meaning they were both breaching the contract they had with them and breaking the law. So this is already a failure of the normal rules. The recourse for this is supposed to be that the affected parties can file a lawsuit, and the only thing that an arbitration clause does is to remove this recourse; it specifically prevents the rules from being followed. Arbitration clauses are an explicit power grab by corporations, and the only reason they exist is that corporations have the power to make it so: they dictate terms that are not open to negotiation, and these terms include the clause that, if you get fucked, there is nothing you can do about it. And what the Supreme Court of the United States has just decided is that this is absolutely correct. Powerful people should indeed have free reign to ignore the rules for their own benefit.
So, as it turns out, there really is no such thing as society. There are individual teeth and claws. The thing that Hobbes was wrong about was the idea that the social contract gets us out of the state of nature. It doesn’t. The state of nature is still there, the whole time, waiting. Nothing can actually stop someone from murdering you; all society can do is provide sets of incentives and disincentives to affect people’s behavior. The kind of “law” that says you can’t murder people is qualitatively different from the kind of “law” that says that if you get shot in the face, you die.
Furthermore, the social contract itself is just another state of nature on top of the default one, because nothing prevents it from being exploited. A court of law can potentially arbitrate a dispute to reach a just resolution, but it can also allow an unethical lawyer with a vindictive client to destroy someone’s life just because they want to. And anyone capable of preventing this will necessarily have the power to commit the same abuse themselves (this is the “who watches the watchers?” problem: whatever the highest level of authority is in any given situation, someone at that level can simply choose to do whatever the fuck they feel like). Regardless of what kinds of “rules” and “regulations” there are, there’s always going to be underlying material conditions that determine what people can actually do, and what will (or won’t) happen to them as the result of particular actions.
This dynamic has seen some surface-level discussion recently in the guise of “norms,” but this has mostly been cheap handwringing about the fucking filibuster or whatever. The real issue here goes all the way down: to the home you live in, the clothes you wear, and the food you eat. You do not have a “right” to anything: you either have the ability to steal or the luxury of noblesse oblige. Your very existence is contingent on the random whims of senile jackasses and stunted sociopaths. The only reason you are alive is that no one has yet chosen to kill you.
This is cause for one type of fatalism: it means that utopia is logically impossible. Any possible society will include avenues of exploitation. More practically, in our current situation, it means that we never were and will never be in a situation where the “rules” and being “followed” and we are therefore “safe.” “Normalcy” is only ever a pocket of delusion created by fortuitous circumstances. Every atrocity ever committed was a free choice made by someone who had the power to do so, and the worst thing that will ever happen is, at this very moment, locked and loaded, waiting for someone to pull the trigger.
But this is also true of everything good that has ever happened. Nothing worthwhile was ever supposed to happen; it happened because people made it happen, the hard way. It happened because someone was willing to bloody their hands, or willing to scar themselves. But I’m not sure anyone has ever really learned this lesson. Pretty much everyone goes back to sleep as soon as they get an official proclamation or a law passed or a president elected or something. Indeed, the vast majority of the time people settle for almost nothing: they’re happy to get bread crumbs and call it a banquet. No one ever pushes the knife all the way in.
It’s not enough to simply have a court system and to say that it allows people to resolve disputes. Contracts don’t matter if one side can dictate terms that the other must accept, courts don’t matter if powerful people can force arbitration, and laws don’t matter unless something actually happens when you break them. In order for any of these things to do what they’re supposed to, we have to fill in the other side of the equation, and by the very nature of the problem, this cannot be done with “rules.” It must be done with force.
I don’t know how to do this. Like, I can assure you that I am not making a self-interested argument here. This is the worst possible conclusion for me. I am a child of order, and I do not know how to live wild. But I have to accept this, because the highest court in the land just told me that it’s not going to countenance any alternative. This is a war, and the only rational response is to act like it.