[ I'm presuming you're not making the distinction "civil law" as compared to "common law", but as compared to "non-codified warlord/monarch/group decisions". If you really are talking about how legislation differs from precedent, I have a completely different set of thoughts. ]
For contracts and property not to just be custom and violence we need civil law.
This implies a model where "civil law" is an ontologically different thing than "custom and violence". I don't agree. Civil law is an encoding of the customs, and an indirection of the violence, but it's the same thing at it's root. There is, of course, more infrastructure in modern law to make cooperation-competition work somewhat efficiently in much larger groups of people.
You'd be simply incorrect if you claim that planning and mostly-non-violent dispute resolution didn't happen in non-literate tribes, or before the Magna Carta (or before the Thracians, or before the Israelites, or pick any case you like as "the start of civil law").
Without regular, intelligible, governing principles that are known at least implicitly by the governed, the resolution of a dispute is determined by whatever people happen to decide at the time, not by the text of the original commitment
Sure, but the bar for "regular, intelligible, implicitly known" is VERY low, especially for smaller, poorer groups. Social expectations of what property is to be shared and what can be hoarded, and punishment by shunning (which is a death sentence in many situations) is enough. Yes, it's "whatever people happen to decide at the time". But there is likely to be some consistency across time in those decisions. In modern times as well, you might be surprised at the amount of effort and argument that goes into interpreting "the text of the original document". Text neither makes nor enforces decisions. People do.
You'd be simply incorrect if you claim that planning and mostly-non-violent dispute resolution didn't happen in non-literate tribes, or before the Magna Carta (or before the Thracians, or before the Israelites, or pick any case you like as "the start of civil law").
I meant to assert the opposite - that what we now know as civil courts are a formalization of an investigative process that must have been happening since the beginning of descriptive language, before people had the idea of courts to refer to, and that we mainly need a distinct idea of it in response to interference with investigative processes as such, motivated by commitments to antinormativity.
The purpose of this essay is to clarify to YOU, the mind reading this essay, your relation to law, your characteristic blind spot around adversaries, and what sorts of processes are competing for attention in the humans you’re instantiated through.
For contracts and property not to just be custom and violence we need civil law. We can have civil law without an explicit formalization, just like we could have speech before Kant formulated the Categorical Imperative. But the structure of civil law, like the categorical imperative, is at least implicit in the orientation that permits speech.
Without regular, intelligible, governing principles that are known at least implicitly by the governed, the resolution of a dispute is determined by whatever people happen to decide at the time, not by the text of the original commitment. Therefore, persons subject to the law must be able to demand that it be explicated and applied to specific cases concerning them in a timely manner. This requires open lines of communication for people to clarify who did and said what, and which acts match which words.
In practice, people get defensive and block communication, not just on their own behalf, but in any case that might require them to acknowledge the transgression of a powerful party. So we are effectively in a state of total lawlessness and have neither property nor contracts. Because of the "on demand, in a timely manner" requirement - since otherwise the outcome would be decided by the decision rule for when to give a timely answer - any uncompensated gap constitutes a total rupture. And too many are transgressing for compensation to be plausible.
Therefore, if we are to have law, it must be new, and none can claim the right of law, only custom, to any property, reputation, or relationships they possessed before. Likewise all blame and debt was incurred in a lawless world and cannot be recognized by the legitimate law.
The above account leaves a kind of negative space in which lawlessness is described formally as the complement to law, with the minimal characterization of “people get defensive and block communication […] in any case that might require them to acknowledge the transgression of a powerful party.” This is described as an impediment to or deviation from law. But this negative space would not be important if it were not actively optimized for something; it would simply be error.
What is the optimization target of coordinated lawlessness?
(Tax evasion is an important edge case. There are regularities to e.g. peasants hiding their productive capacity from extractive central authorities, and maybe sometimes norms of supporting others’ concealment. As long as this concealment is directed by members of one easily identifiable group at members of another, it isn’t a strategy of generalized concealment, it’s a countermeasure against a specific adversary. It needn’t take initiative or advance territory claims.)
Coordination that requires planning implicitly requires speech and contracts. All long-term technical production is of this type. All coordinated resistance to law has to be fundamentally organized around something other than specific plans.
The kind of coordination that remains when we exclude coordination for reasons, is coordination without reasons. Lawless coordination is structured around power, the social ability to make someone do something against their interests. Since lawless memory is nothing but behavioral conditioning, one becomes powerful by first acquiring actual or perceived leverage over others within the current frame, and then using that leverage to habituate others to respond to one’s threats, commands, and wishes. Since acting in your own interests or speaking according to your own judgment is not evidence of someone’s power over you, those attaining power have to specifically demonstrate their willingness to compel others to harm themselves and to lie. One occupies power for oneself through sadism, and responds to it with masochism.
Military boot camp is an instructive, comparatively explicit functional example. While there is some amount of explicit skill instruction, soldiers are not rationally persuaded to learn these skills. Instead, they are verbally abused and bullied into following orders, many of which are specifically optimized to be painful or humiliating to follow. Soldiers are also drilled to repeat what their commanding officer says, to march together in contrived, specified ways, etc. Drill sergeants are supposed to behave sadistically in order to acculturate soldiers into a specific, military sort of structured power relation. (For clear examples, see the drill sergeant in the film Full Metal Jacket or read the section on Corporal Himmelstoss in Erich Maria Remarque’s book All Quiet on the Western Front.)
More explicit is the story implied by the Chinese four-word proverb, “point deer make horse.” From the Watson translation of The Records of the Grand Historian, via Wikipedia:
Zhao Gao was contemplating treason but was afraid the other officials would not heed his commands, so he decided to test them first. He brought a deer and presented it to the Second Emperor but called it a horse. The Second Emperor laughed and said, "Is the chancellor perhaps mistaken, calling a deer a horse?" Then the emperor questioned those around him. Some remained silent, while some, hoping to ingratiate themselves with Zhao Gao, said it was a horse, and others said it was a deer. Zhao Gao secretly arranged for all those who said it was a deer to be brought before the law and had them executed instantly. Thereafter the officials were all terrified of Zhao Gao. Zhao Gao gained military power as a result of that.
This is an elegant demonstration of the function of gaslighting. By openly gaslighting the emperor about whether a deer was a horse, Zhao Gao and his allies were able to isolate him and reverse the flow of commands so that the emperor could receive but not transmit. They also made it common knowledge that the emperor had no friends – those who spoke out were dead, and those who remained silent were complicit.
Rome provides us with the reverse tale, point horse make consul, in which the Roman Emperor Caligula demanded that his subordinates treat his horse socially as a Roman aristocrat, making it common knowledge that the Emperor can make the Senate falsify social reality arbitrarily, thus reinforcing the pattern that commands flow down from the Emperor to the Senate.
Related: On Drama, Towards optimal play as Villager in a mixed game, Eliezer Yudkowsky's Twitter thread on civil law, The Shield of Achilles