The Lawlessness of Unsettled Settlements

When a party takes money to end a civil matter, the civil matter is ended. When the state gives its word to induce reliance, the state is bound by that word. These are not legal technicalities. They are the foundation upon which every subsequent transaction, agreement, and institution in a civilised order rests. The moment a legal culture permits consideration to be accepted, reliance to be induced, constitutional protections to be waived, and the same resolved conduct later revived through criminal machinery, it has not refined the law. It has unsettled it. What remains is not justice with exceptions. It is power with procedures.

The Bill Cosby case is the entry point, not the subject. In 2005 the Montgomery County District Attorney offered a non-prosecution assurance to obtain civil testimony. Cosby relied on that assurance, waived his Fifth Amendment protection, and gave evidence. A civil settlement followed in 2006. Consideration was paid and accepted. Years later a successor District Attorney unsealed the deposition and built a criminal prosecution upon it. The Pennsylvania Supreme Court overturned the conviction in 2021, recognising that the state had induced reliance and then punished the reliance it induced. The court was right. The civil settlement alone did not bind the Commonwealth. The binding point was deeper: the Commonwealth had given its word, obtained the benefit of that word, and then attempted to disown the consequence. That principle extends far beyond those facts. It reaches every non-prosecution agreement ever signed, every citizen who has ever relied on the state’s word, and every private settlement whose finality the state later claims the power to dismantle.

I. Contract Law: Election and Finality

A settlement supported by consideration is a contract in the fullest legal sense. One party purchases finality. The other sells it. The payor does not buy an apology or an admission. He buys the extinguishment of the claim. The payee does not surrender her grievance cheaply or carelessly. She makes an election, with counsel, in exchange for certainty. When consideration is accepted the claim is extinguished as between the parties. That is the bargain. To permit the accepting party to retain the benefit of settlement while repudiating the finality that was purchased is to sever consideration from consequence. The payment remains. The finality disappears. The contract is enforced against one party and not the other. Courts do not permit that in ordinary commercial contracts. There is no principled reason to permit it here.

This is not a defence of wrongdoing. It is a defence of the agreement the claimant chose to make. The law routinely enforces hard bargains because predictability is the condition of order. A party who wishes to preserve the option of further action may refuse settlement, carve out claims, or decline to sign. What she cannot do, without destroying the instrument itself, is accept its benefits and later deny its binding effect.

Covenant is the deeper category. Scripture treats covenant as binding not because of sentiment but because of the character of the promisor. Let your yes be yes. The command is not mystical. It is structural. If yes can become no after value has changed hands, the system ceases to be law. It becomes negotiation without end.

II. Systemic Corrosion: The End of Settlement

Settlement is the architecture of civil dispute resolution. Most disputes do not go to trial. They resolve because both sides can trade risk for certainty. If settlements are unstable, rational defendants will not settle. Why would they pay for finality that is not final? The rational response is to litigate every claim to exhaustion and make exhaustion the strategy. The burden falls on the claimant: less resourced, less patient, less able to absorb years of adversarial procedure. Nor is the principle confined to sexual misconduct claims. Once settled obligations can be reopened under changed statutory conditions, commercial actors will price that uncertainty into every transaction. The cost of lawlessness is never confined to the case that produced it.

A stable settlement regime allows claimants to convert a claim into cash and closure. An unstable regime converts every claim into a war of attrition. It is a category error to believe that weakening settlement strengthens victims. It does the opposite. It removes the primary avenue by which most claims are resolved at all. The well-resourced defendant deploys every procedural weapon. Settlement rates fall. Court backlogs rise. The very mechanism designed to spare claimants the ordeal of trial is destroyed by the instinct that claims to protect them. This is not accountability. It is cruelty dressed in the language of justice.

Law that cannot hold its own resolutions is not merciful. It is chaotic. Mercy requires a structure within which it can operate. When that structure dissolves, the strong endure and the weak are exhausted. The biblical warning in Matthew 24 that lawlessness will abound and the love of many will grow cold finds its institutional echo here. When covenants lose their force, trust evaporates. Relations between citizen and citizen, and between citizen and state, become relations of power rather than relations of promise.

III. Prosecutorial Abuse: The State Bound by Its Word

Nowhere is the danger more immediate than in the prosecutorial abuse the Cosby case exposed. The state is not a single person. It is an institution whose authority derives from the consistency of its conduct across time. One arm of the state made a promise. Another arm broke it and claimed the authority to do so. If one prosecutor may induce testimony by promising non-prosecution and his successor may treat that promise as worthless, then no citizen can ever safely rely on any undertaking the state gives.

The constitutional protection against self-incrimination exists precisely because the state's coercive power must be constrained. Non-prosecution agreements are an extension of that constraint: the mechanism by which a citizen may speak to the state without arming it. To permit the state to accept that speech and then use it as a weapon is to make the protection illusory. The citizen stands naked before power. This is not a minor administrative lapse. It is tyranny in procedural dress. 2 Thessalonians 2 speaks of the mystery of lawlessness already at work, the force that unmoors restraint and prepares the way for raw authority. A prosecutorial culture that treats its own agreements as provisional exhibits precisely that mystery in the ordinary administration of justice.

Authority is legitimate only when it is bound. Power unbound from promise is tyranny, whatever its form.

IV. Legislative Anomia: The Retrospective Voiding of NDAs

The Cosby case illustrated one prosecutor breaking one promise. What followed in the legislature is structurally identical and categorically worse.

In 2022 Congress passed the SPEAK OUT Act (Pub. L. 117-224, Dec. 7, 2022), restricting the enforceability of certain pre-dispute non-disclosure and non-disparagement clauses in sexual harassment and sexual assault disputes. Several states have gone materially further, limiting or voiding confidentiality provisions in sexual misconduct matters, including in some circumstances agreements already signed and disputes already resolved. Texas enacted Trey’s Law in 2025 (Tex. S.B. 835, 89th Leg., eff. Sept. 1, 2025), rendering certain existing confidentiality provisions void and unenforceable in sexual abuse matters unless preserved through declaratory relief. Missouri and other states have adopted comparable measures limiting the enforceability of NDAs in childhood sexual abuse cases (Mo. Rev. Stat. § 537.046, as amended 2025). Where the Montgomery County District Attorney broke a promise the state had made, these statutes dissolve promises that private citizens made to each other. The legislature is now doing formally and systematically what one prosecutor did opportunistically. The principle is identical in both cases: agreements bind until the state decides otherwise.

It is also anomia enacted by statute. Once the state asserts the power to reach back and dissolve private agreements because public sentiment has shifted, no agreement is truly final. Every contract becomes provisional, held at the pleasure of future legislative majorities. The covenantal foundation of private ordering is fatally undermined. Anomia does not require a tyrant. It requires only a legislature convinced that the importance of the cause justifies the dissolution of the structure.

The reformers’ case deserves direct engagement. Serial predators have used successive settlements to silence victims while continuing harm. Power imbalances are real. Claimants under financial or psychological duress may sign agreements they would not otherwise accept. These concerns are serious. They are also not a justification for categorical retrospective nullification. Contract law already provides targeted remedies. A party who signed under coercion may seek to void that specific agreement on those specific grounds before a court, with evidence, on the merits. Courts have long held contracts void against public policy, including agreements that conceal ongoing criminal conduct. Legislatures may also require mandatory reporting of settlement patterns, enhanced compensation funds, extended limitation periods, and cooling-off periods before execution. These tools address abuse without treating the freely negotiated agreement and the coerced agreement as identical. That is the difference between reform and abolition.

V. Res Judicata: What Has Been Settled Is Settled

The principle at stake is older than the common law. Roman jurisprudence gave us res judicata: the matter once judged is judged forever. It was not a Roman indulgence in formalism. It was a civilisational achievement, born of the recognition that ordered commercial and social life requires finality. Without finality there is no planning, no trust, and no security.

To abandon this principle selectively, when the sympathies of the public or the ambitions of a prosecutor demand it, is not legal evolution. It is regression to a pre-civilisational condition in which outcomes depend on power and sentiment rather than principle. The courts become instruments of politics rather than of law. The citizen learns that the rules may be rewritten whenever the mob or the media demands it. What replaces principle is not a better system. It is sentiment in the place of law, and then power in the place of both.

VI. Biblical Anomia: The Dissolution of Structure

The New Testament names this condition precisely. Anomia (lawlessness that dissolves structure itself) is not crime in the conventional sense but the dissolution of the structures that make ordered life possible. Christ warns in Matthew 24 that the increase of anomia will cause love itself to grow cold. The sequence is diagnostic: first the structures erode, then the relationships they sustained collapse. Paul writes in 2 Thessalonians 2 of the mystery of lawlessness already at work, not as a cataclysm but as a quiet force that loosens what was fastened and unsettles what was settled. John in his first epistle defines sin itself as anomia: the refusal to live within the ordered boundaries that sustain human flourishing.

A legal culture that dissolves its own covenants is not committing a procedural error. It is participating in that condition. The rot is not announced. It accumulates in each exception that appears justified, each departure from principle that appears necessary, each settled matter reopened in the name of a higher cause. The higher cause is always compelling. The cumulative effect is always the same.

VII. Covenant Across Traditions

This diagnosis is not the exclusive property of Christian theology. The Torah places covenant fidelity at the centre of righteous conduct. Numbers 30:2 is unambiguous: a man who makes a vow must not break his word; he must do everything he said. The rabbinical tradition develops this into a comprehensive ethic of contractual finality. A party who has accepted benefit cannot unsay his word by retaining its proceeds. The concept of emet, truth, governs the whole structure. A system that permits a party to call a matter settled and then reopen it is not merely inefficient. It is, in the precise sense of that word, untrue.

The Quran is equally categorical. Surah 5:1 commands the fulfilment of contracts without qualification. Surah 17:34 warns that every covenant will be questioned on the Day of Judgement. Islamic jurisprudence develops the doctrine of 'aqd: binding agreement upon offer and acceptance with consideration, whose violation is a breach of amanah, the sacred trust that underlies all lawful human relations. Unjust enrichment is prohibited. A party cannot take benefit under a contract and later repudiate the obligations attached to it. Across all three traditions the conclusion is identical: agreements bind because truth itself is covenantal. A culture that dissolves that binding does not merely malfunction legally. It severs itself from the moral foundation upon which all ordered society depends.

VIII. Civilisational Stakes: Covenant or Power

The choice before Western legal culture is not between rigour and compassion. It is between a covenantal order and a power order. Covenantal order holds that agreements bind, that the state must honour its representations, that finality once achieved is final, and that the legislature may not retrospectively dissolve what private parties have freely settled. Power order holds that outcomes depend on the will of whoever currently controls the machinery of justice. Western legal culture was built to prevent the second condition. It is drifting toward it.

A settlement is a settlement. The state's word is its word. A matter concluded with consideration paid is concluded. These are not aspirational principles. They are the minimum conditions of a legal order that deserves the name. Abandon them and you have not achieved accountability. You have achieved anomia. And anomia, as every tradition that has thought carefully about the human condition agrees, does not remain confined to the cases that seemed to justify it. It spreads until nothing is settled, nothing binds, and power stands alone where covenant once held the line.