As a trial lawyer for over fifty years, learning to distinguish between what people assert and what the evidence actually supports has been the essence of my work. While assertions are everywhere, evidence is rarer and far more demanding.
Believe me, judges know the difference. The same with juries when properly instructed. After five decades of standing before both, I have developed a deep respect for the discipline of keeping those two categories separate.
I apply that discipline now to a proposition I have heard asserted my entire professional life, stated with great confidence by people who hold positions of authority and who do not, in my observation, subject their own assumptions to the scrutiny they demand of others.
The proposition is this: without supervision, regulation, and the force of law behind it, human society collapses. Neighbors become predators. Shared resources disappear. Institutions decay. The implication, always present and sometimes stated openly, is that ordinary people are fundamentally incapable of governing themselves and must be managed by those who know better.
I submit to you, with the full weight of my legal experiences behind me, that this proposition is not proven. In fact, the evidence when examined fairly, runs substantially against it.
This is my argument.
The Prosecution's Theory and Its Defects
The standard argument for state control over human cooperation rests on a theory that economists formalized and policy makers adopted as settled law. The tragedy of the commons, as it was named by Garrett Hardin in 1968, held that shared resources would inevitably be destroyed by rational self-interest.
Each individual, pursuing their own advantage, would take more than their share. The aggregate result would be a state of ruin. The prescribed remedy was always central authority: ownership or regulation from above, because people could not be trusted to discipline themselves.
It is a clean theory that’s logically coherent and internally consistent. In a courtroom, this would be deemed a strong opening statement. What it is not, as Elinor Ostrom demonstrated with the methodical patience of a career devoted to actual field research, is accurate.
Ostrom, who received the Nobel Prize in Economics in 2009, did something her colleagues had largely neglected to do: she went and observed what communities actually did with shared resources, rather than modeling what theory predicted they should do.
What she found, documented across Swiss alpine villages, Japanese fishing communities, and irrigation cooperatives throughout the developing world, was that people repeatedly and successfully managed shared resources through locally developed norms, mutual accountability, and trust-based cooperation.
No central authority designed these systems and there wasn’t a governmental body enforcing them from above. They evolved through the lived experience of people with a shared stake in outcomes, people who understood their situation with a precision no distant planner could replicate.
Many of those systems endured for centuries. The commons did not produce tragedy but voluntary order, because the people inside it understood what was required of them and chose to provide it.
In a trial, when the opposing party's central theory of the case is contradicted by the weight of the evidence, you are entitled to ask the judge or jury to return a verdict in your client’s favor. Ostrom's research in my view provides strong evidence that, many times, compulsory management is unnecessary if not harmful. Let’s examine some historical examples where citizen cooperation, without government interference, has worked well.
Exhibit A: What Strangers Built Without Anyone in Charge
In 2001, Jimmy Wales announced a project that, described plainly, should not have worked in theory. He proposed that strangers around the world, operating without pay, without editorial authority vested in any institution, and without any mechanism of compulsion, would write a comprehensive encyclopedia, editing each other's contributions, enforcing quality standards through voluntary compliance, and sustaining the enterprise indefinitely on shared purpose alone.
Every reasonable objection was available. Anonymous contributors would introduce errors. Bad actors would corrupt entries for personal or political advantage. Without professional gatekeepers, standards would collapse. The project, in other words, would fail, or survive only as an unreliable curiosity.
Today, Wikipedia hosts more than 62 million articles across 300 languages. It is among the most consulted reference sources in the world. Its volunteer editors, not paid employees, write and maintain the substantial majority of its content.
Its dispute resolution mechanisms, developed organically by the community rather than imposed by institutional authority, handle thousands of content disagreements every year. The errors Wikipedia contains are real and documented. So is its demonstrable utility to hundreds of millions of people who use it daily.
The free software movement produced a similar result through parallel means. Linux, the operating system that now runs the majority of the world's servers and most of its mobile devices, was built by programmers who joined the project voluntarily, contributed without salary, and were governed by norms and reputations rather than employment contracts.
Linus Torvalds did not recruit his contributors through institutional authority. He released working code that demonstrated its value. People chose to improve it. The result is infrastructure on which much of the modern world depends.
Because I introduced evidence over the course of fifty years of trials, I know what a pattern looks like when it appears across independent data sets. Voluntary cooperation, when the conditions for it exist, produces results that the theory of inevitable self-interest predicts should be impossible.
The Human Capacity for Voluntary Commitment
Alcoholics Anonymous was founded in 1935 by two men, Bill Wilson and Dr. Bob Smith, who had arrived at their understanding of addiction and recovery not through academic study but through personal experience and the frank exchange of that experience with others.
The organization they built rests on principles a philosopher would recognize immediately: radical honesty, personal accountability, voluntary participation, and the conviction that human beings, given the right conditions, are capable of sustained transformation.
There is no required attendance at an AA meeting and no regulatory body licenses its facilitators. And there aren’t any government agencies that oversee its operations. The organization has no officers with enforcement authority, no mechanism for removing a member who fails, and no institutional resource to offer beyond the gathered experience and commitment of the people in the room.
Consider the specific situation it addresses. A person enters a church basement having broken the same promise to himself every night for years. His credibility with the people closest to him is exhausted. His own confidence in his capacity to change is at its lowest point. The institution offers him no contract, no threat, no professional treatment protocol. It does offer him an environment where other people share truths about their own failures and an open invitation to return.
AA’s success is based on the well-known “12 Steps of Recovery” that were not driven by laws or rules prescribed by a governmental body. They were a framework voluntarily produced by those seeking recovery from addiction. This offers a perfect example of progress through cooperation and mutual respect.
The evidence on long-term recovery is contested across methodologies, as I would expect any honest researcher to acknowledge. What has not received blowback is the durability of the institution itself, the geographic reach it has achieved without central direction, and the consistency of the mechanism it employs: freely chosen commitment, sustained by community accountability, operating entirely without coercion.
Television personality Fred Rogers understood this at a level beneath sentiment. He recognized that the capacity for cooperation is not independent of the belief that one is capable of it. When people are treated as capable of responsibility, many of them rise to meet that expectation. On the other hand, when they are seen as subjects requiring management, many of them stop trying. This is not a soft observation but a structural one, with consequences for how institutions are built and how communities function.
Crisis as Witness: What People Do When the System Fails
A courtroom has a tradition I respect: the eyewitness who was present when the event occurred carries a particular kind of authority. Not superior to documentary evidence, but specific and direct in a way that documents are not.
I now want you to consider what was witnessed during two crises in the last two decades, because the testimony is direct and the events are recent enough that the record is clear.
When Hurricane Katrina struck the Gulf Coast in August 2005, the failure of official response systems became a matter of public record. What received less sustained attention was what happened in parallel.
Civilians with fishing boats organized rescue operations before many official agencies had fully mobilized. These were not trained emergency responders. They were people with boats who understood the water, and who refused to wait for authorization to do something they were fully capable of doing.
They pulled people off rooftops and moved through flooded streets with equipment they brought themselves. They operated without coordination from any central authority and achieved results that the authorized response, whatever its eventual scale, did not achieve in the first critical hours.
Fifteen years later, during the COVID-19 pandemic, mutual aid networks formed across the country with a speed that the academic literature on voluntary organization had not predicted and that government response systems did not match. Neighbors coordinated grocery and medicine delivery for people who could not leave their homes. They arranged transportation for those without cars, childcare for essential workers, emergency housing for people at immediate risk.
The organizational tools were informal: group chats, shared spreadsheets, personal networks. The results were concrete and documented. In many cities, these informal networks were operational and effective within days of the initial shutdowns, substantially ahead of official response timelines.
Dean Spade, who has written on mutual aid as both practice and theory, identified the operating principle concisely: “we have what we need if we share it. What I observed in the record of both crises was not altruism as an exceptional response to emergency but competence.”
We are talking here about organizational knowledge and logistical competence, the kind of practical intelligence that five decades in courtrooms have taught me to recognize and to respect. The capacity was present in ordinary people before the crisis required it. The crisis simply created the conditions in which it was expressed.
The Verdict the Evidence Supports
I want to be precise about what I am not arguing, namely, that voluntary cooperation always succeeds, that communities are immune to corruption or dysfunction, or that institutions built without coercive authority are invulnerable to the human failures that compromise all human enterprises. I have seen enough of human nature in fifty years of practice to harbor no illusions on that point.
What I am arguing is that the proposition that people cannot govern themselves without compulsion is not supported by the weight of the evidence. The contrary proposition, that ordinary people are capable of substantial and sustained self-organization when trusted to exercise that capacity, is supported by a body of evidence that spans centuries, cultures, and domains of activity.
The record includes:
• Swiss alpine communities managing shared resources through voluntary norms, without central administration, for over 700 years
• Wikipedia with its 62 million articles in 300 languages, built and maintained by unpaid volunteers operating under community-developed standards
• Linux servicing as a primary infrastructure of the modern internet, written by people who chose to contribute because the work merited their contribution
• AA’s emergence a recovery fellowship operating in over 180 countries, without officers, without enforcement authority, without any mechanism beyond voluntary commitment and mutual accountability
• Mutual aid networks that organized effective community response to a global pandemic faster than official systems in most jurisdictions
• Civilian volunteers who conducted rescues during Hurricane Katrina before authorized response systems reached operational capacity
Frederic Bastiat, writing in the nineteenth century, described the state as the great fictitious entity by which everyone seeks to live at the expense of everyone else. The sharper analytical point beneath that formulation is one I have observed in practice: when people fully transfer responsibility to institutions, something in their own capacity sometimes atrophies. Not immediately or completely. But measurably, over time, in ways that are difficult to reverse.
The alternative is not the absence of structure. It is a system chosen rather than imposed, maintained through earned trust rather than enforced compliance, and renewed through the ongoing decisions of participants who find it worth sustaining.
Closing Argument
I have argued cases before many federal and State courts. I have presented to juries in courtrooms where the stakes were a person's freedom, livelihood, or life. In fifty years of that work, the most important thing I learned is not a technique but a disposition. In other words, take the evidence seriously and follow it to where it leads. Assertions and arguments are not a substitute for evidence.
The evidence on human cooperation is compelling. It leads to the conclusion that ordinary people, when given genuine freedom to organize themselves and genuine responsibility for the outcomes, demonstrate a capacity for cooperation, accountability, and sustained commitment that the prevailing political culture consistently underestimates.
You are one of those ordinary people. The question this evidence places before you is not abstract but personal and direct. Where in your own life are you waiting for permission to do something you are fully capable of doing? In what ways are you deferring to institutional authority where your own judgment and the people around you are better positioned to address?
Free societies are not built by experts with good policy. They are built by people who decide, without waiting for authorization, that they are capable of more than they are currently being asked for. The historical record says those people are usually right.
I rest my case. The weight of the evidence shows cooperation by earnest, well-intentioned people with common sense often rules the day.