Un-Civilizing America

Chapter 5Win‐Win … or Lose

The message of Genesis is that in the most vital areas of human life there can be no progress, only an unending struggle with our own nature.

— Philosopher John Gray¹

We are going to back up to the very beginning, ab ovo, just to make sure we're all in the same coop. There are only two ways to get what you want: win‐win deals or win‐lose deals. There is no other way. You either cooperate or you defect. You either give to get … or try to get without giving anything in return. It's either reciprocal or it's not. It's either voluntary or it's forced.

Of course, there are gray areas. The two parties to a transaction can have very different opinions about what actually went down. Juries are often asked to decide when a woman has succumbed to seduction … or when she has been raped. Likewise, sometimes salesmen are so persuasive that customers later feel like they've been robbed. Over hundreds of years, people learned how best to manage these frontier areas. They developed the “common law” as a way of settling disputes and establishing a legal principle to help judges and juries make their decisions. Stare decisis means “to follow precedent.” It is a conservative legal principle, allowing each new generation to build on the decisions of the past.

But while it is “conservative,” it is not trying to stop progress. Instead, common law is cumulative. One decision helps bring forth another one. Judges and juries don't have to figure it out from scratch. They ...