THE ENTERPRISE OF INTEGRATIVE JURISPRUDENCE

Copyright by Barnabas D. Johnson

Introduction

The word "jurisprudence" has several meanings. In the civil-law tradition, it means essentially what the common-law tradition calls "case law" law that "exists" in a line or tapestry of reasoned judicial decisions. But that, itself, is changing, as civil-law countries give increasing heed to previous judicial interpretations, and therefore applications, of constitutions, treaties, statutes, etc.

As civil-law countries adopt such jurisprudence, they increasingly adopt the broader common-law definition of jurisprudence, namely, the "science" of law by which humanity is engaged, case by case, in a sort of "long term controlled experiment" upon itself upon our institutions of governance most broadly defined. Indeed, this "experiment" will test whether the evolution of intelligence on this planet is evolutionarily viable.

Although referred to above as "science" this conception of a long-term self-examination and self-transformation embeds "jurisprudence" in realms that are less scientific than cybernetic. And that leads to a third meaning for this word, the broadest: The sum and substance of emergent legal philosophy that (a) integrates what are often referred to as natural-law jurisprudence, positivist jurisprudence, and historical jurisprudence, and (b) integrates these three with the entire Ecology of Mind undergirding an emergent Ecology of Values. These are terms of art, and fundamentally unsatisfactory; I discuss them here for their heuristic value, with a view to replacing them, as indeed they are already being displaced.

They are being displaced less by a "school of thought" than by an enterprise a "metaphrandal inquiry" that gathers up and "impounds" meaning focused on governance, self-governance, global cybernetics, etc. It is this enterprise that I wish to explore here. This essay must remain as unfinished as is this enterprise, as "theoretically flawed" yet "manifestly successful" as is distributed intelligence and, hence, dispersed governance.

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Initially, it might be useful to reproduce a recent, standard statement of the three main schools of jurisprudence. The following is by one of the leading advocates of integrating these schools, Harold J. Berman, from his essay, Toward an Integrative Jurisprudence: Politics, Morality, History (July 1988 California Law Review), 76 Calif. L. Rev. 779:

Each of these three main schools of jurisprudence has developed in various directions. Some positivists, especially those of the Kelsen school, have adopted an extreme conceptualism: Consistency of legal norms is for them the only criterion of legality once a sovereign lawmaker is postulated. [FN2] At the opposite pole of positivist jurisprudence, self-styled American legal realists and many adherents of the Critical Legal Studies movement treat legal rules as rationalizations of the empirical behavior of legal officials and find the sources of that behavior in economic, political, and other non-legal factors. [FN3] Natural-law theory has also moved in various directions. Some Roman Catholic theorists, building on Thomistic premises, have found in an elaborately constructed set of moral principles the criteria for judging the validity of legal rules and for analyzing, interpreting, and applying them. Other naturalists have found such criteria in broad conceptions of procedural and substantive fairness. Still others have looked to an 'oughtness' or 'purposiveness' presupposed in the very nature of legal rules and in the very enterprise of making and interpreting them. The historical school has also undergone division. Some of its adherents have emphasized the specific historical traditions of given national legal systems while others have turned to sociological concepts of the relation of law to custom, to class structure, and to other social and economic factors. (779) (Footnotes omitted.)

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Otto von Bismarck had it wrong; in a healthy society, we should all pay attention to how laws and sausages are made; constitutional democracy fails unless all sentient participants accept at least a minimal obligation to know what it consists of.

Integrative jurisprudence reveals that a "constitution" is essentially a verb, an activity aimed at securing largely-self-evident "inherent rights" that coevolve with similarly-evident "inherent obligations"; these tacit rights and obligations are embedded in logic as well as history, and a worthy global future must be embedded in them. Constitutions and governments do not "give rights"; humans make constitutional democracy to secure and advance "liberty bounded by law" the legacy of isonomia. In this sense, the most important passage of the Constitution of the United States is the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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Legal positivism was the "ruling paradigm" prior to the Second World War, and remained strong in the Soviet Union and Mao's China. Legal scholars in the post-Soviet world seem generally unaware that this supposedly "scientific" conception of law was rejected in the West half a century ago, especially in the United States. This rejection had much to do with the evident incapacity of "German legal science" essentially, legal positivism to provide any corrective to Nazi, Communist, and similar totalitarian ideologies and practices. See The Theory of State and Law. Popularized by Hans Kelsen, legal positivism defined law as essentially the "authoritative command" of that power which has the capacity to force compliance. The lawyer's job was to be a scientist who focused on what the law "is" without reference to what it ought to be. In some fundamental sense, legal positivism showed little interest in how law came to be that "is"; legal positivism did not focus on how law and civilization coevolve. See Note on Coevolution. See Evolution and Coevolution.

The only "ought" of legal positivism was that the law's commands must be consistent and knowable. Interestingly, places like Hitler's Germany and Stalin's USSR claimed adherence to legal positivism (to the extent that their shifting intellectual grounds claimed adherence to any jurisprudence whatsoever) yet much of their "law" was secret and especially in the USSR contradictory. The resulting fact that nobody could "follow the law" served the State inasmuch as everyone was subject to "legitimate arrest" (in a manner of speaking) for violations of something somewhere called "law"; this condition persists throughout most of the former Soviet Union.

Legal positivism is generally contrasted with two other schools of jurisprudence:

The older, "natural law" (with origins in Canon Law, which itself has deep roots in Western philosophy and theology), has long taught that law must have a moral and rational component in order to deserve that name. In the late 1930s, Professor Lon L. Fuller (1902-1978) asserted that "natural law" thinking supplies a necessary corrective to legal positivism. For Fuller, the law that "is" must be grounded in fundamentals reflecting the "ought" else the law becomes mere "description" of the commands of those who monopolize coercive power rather than prescription and proscription rooted in fundamental ethical and intellectual values. Fuller's general thesis is summarized in my essay, Rule of Law: Ten Principles Governing Law and Law-Making. I supplement Fuller's "nine principles" with an important one that was central to his thinking yet is not "listed" in his seminal book on this subject, The Morality of Law (1964-1969). That tenth principle, the first in my list, is that the sources of law must be hierarchicalized.

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What is set forth in the above-referenced ten principles is not a pure instance of natural-law jurisprudence, however, for it emphasizes the role of history, of experience, in shaping these fundamentals. Law to be worthy of the name must "exist" within the Ecology of Mind; that is, law is a cultural construction, as discussed generally in my essay, The Conversation of Democracy.

Indeed, the term "natural law" carries implication that are highly problematic, for "liberty" and "law" coevolve as second-nature (i.e., cultural, not natural) creations. And there are "third-nature" implications, too, as culture becomes consciously cybernetic, self-corrective a culture that nurtures deliberation. As we know, the U.S. Constitution is "designed to force us into a conversation, a 'deliberative democracy' in which all citizens are required to participate in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent." Barack Obama, "The Audacity of Hope" (2006), p. 92. See my essay, RISE.

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Historical jurisprudence arose about a century ago, but was eclipsed in Europe by legal positivism. For the past two decades, however, Professor Harold J. Berman (1918-2007), first of Harvard and later of Emory, raised a powerful voice favoring a "historical jurisprudence" corrective, thereby balancing legal positivism and natural law jurisprudence. Accordingly, Berman proposed an "integrative jurisprudence" in which the "is" and "ought" are born of and tested by time, by history, by human experience.

Having studied with both Lon Fuller and Hal Berman, both of whom have influenced me greatly, I have been preoccupied with these question for several decades.

Berman's writings on integrative jurisprudence are especially deep, and this website will address them further in due course. See Note on Berman.

Suffice it to say that I believe "integration" must go further, in the sense that, although law is not a science (see Mythos, Logos, Nomos), it must coevolve more fruitfully with science. Put differently, law must be freed from being categorized as one of the sciences in order to become an "art" that makes much better use of its substrates of philosophy, ethics, logic, science, and empiricism generally.

Put yet differently: Law is, in fact, a science in the exhilarating yet sobering sense that we humans are engaged in a long-term controlled experiment "upon ourselves" testing whether the evolution of Mind on this planet is evolutionarily viable. It might not be. We might "outsmart" ourselves. (See Hubris.) Our brilliant tools might become the talons that tear our civilization asunder, destroying vast eons of mammalian evolution. We might literally kill our planet, although that is unlikely. Cockroaches are very hardy.

Further Development of This Theme

The use that law (properly understood) currently makes of science (properly understood) is not good enough.

For example, during a trial the court must establish the facts and the law. This is not a simple sequential quest, however, because "finding the facts" is ongoingly influenced by determinations of what points of law seem to be emerging as relevant to further fact-findings. The "relevant law" emerges conversationally, as it were, with the "relevant information" that must be brought to bear in framing the controversy ... and ultimately resolving it. Trials, adversary proceedings, especially jury trials with warring experts and restrictive rules of evidence, etc., often sink into absurdity when complex scientific and technological issues are of the essence.

The kind of "integrative jurisprudence" we need to focus on developing must become better integrated with the entirety of the Ecology of Mind. Jurisprudence needs a firm theoretical foundation in order to make a healthy contribution to the practical running of our world. As our world is a pragmatic enterprise, so too jurisprudence must become a practical undertaking, an art ... the art of building planetary law.

[Essay under development, as is its topic.]

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Note on Coevolution: Societies, no less than individuals, are products of both nature and nurture. These are coevolving historical legacies. Nurture is often called second-nature. Animals (including some animal societies) exhibit second-nature in rudimentary ways. But, through humans, nature and second-nature have been forming increasingly-complex ideas, institutions, cultural know-how, and networks of distributed intelligence — including law which, together, compose our emerging global civilization. See Conversation of Democracy. (Go back)

Note on Berman: Professor Berman was the leading advocate of integrative jurisprudence. Here is an illuminating excerpt from his writings: "Prior to the late eighteenth century it was possible for a legal philosopher to hold these three forms of the triune law its political form, its moral form, and its historical form in what Christian theologians, speaking of the Trinity, call perichoresis; that is, each of the three interpenetrates the others. Only in the so-called Enlightenment of the latter eighteenth and nineteenth centuries were the links finally severed, in legal philosophy, between positive law and morality, on the one hand, and between each of those and historical tradition, on the other. With the virtual demise of the historical school among contemporary American writers on jurisprudence I seem to be one of the last of its defenders the battlefield has been left to the multitude of positivists and naturalists, locked in combat on mutual terms of unconditional surrender. Indeed, as a believer in historicity, I would argue that they cannot possibly be reconciled, except in the context of the ongoing history of a given legal order. That, in fact, is how they are often reconciled by American courts, which in deciding cases will turn a positivist eye to the applicable legal rules, a naturalist eye to the equities of the particular case in the light of the moral principles underlying the rules, and a historicist eye (they do have three eyes!) to custom and to precedent, having in mind not only the precedents of the past but also the significance of their decisions as precedents for the future. A conscientious judge cannot be solely a positivist or solely a naturalist or solely a historicist. The three "schools" are three dimensions of his judicial role." Harold J. Berman, Law and Logos, 44 DePaul Law Review (1994), pp. 143-165, copied from internet, http://www.argobooks.org/berman/law-and-logos.html (3-30-2006). See my essay, First Trinity. (Go back)

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