THE RULE OF LAW BASED ON THE RULE OF REASON
Copyright © by Barnabas D. Johnson
"Reason is the life of the law." Edward Coke, 1552-1634.
One - Introduction
The Rule of Law must be based on the Rule of Reason, a special kind of reasoning that transcends logic and science (as precious as these are) and partakes of something that is essentially an art: the art of choosing, and doing, and then reviewing and learning from results ... over time, generation after generation. It is, in short, the art of governance, of cybernetics ... properly understood.
Let us explore this special kind of reasoning,
Let us explore this special kind of reasoning, legal reasoning.
To do so best, I am convinced, we must be mindful of what is probably the purest, oldest, and most instructive example of how ideas interact with each other and with the culture they serve and thereby coevolve, "growing" civilization.
I delve into this in First Trinity. That topic involves the coevolution of ontology, epistemology, and teleology, which (among its first fruits) "called forth" the Nomos, the art of law, and isonomia: equality under the law.
Two - Looking Beyond Law to Discern Law
The phenomenon I want to explore in this Essay is the making, interpreting, and applying of rules of conduct that govern us and our institutions. The "conduct" that especially interests me here is legal reasoning in its deepest sense: establishing and modifying rules about rules.
Who will watch the watchman? How do we govern governments? What reasons should judges focus on in giving litigants and society at large the "reasoned decisions" so central to maintaining the Rule of Law based on the Rule of Reason?
These questions are of course important in their own right. They have preoccupied me for several decades. Yet it was only after I started teaching law, indeed managing a law school in the former USSR, that they attained the level of urgency they now have. Their frames of reference focused on the following:
1. What reasons compel me to insist that law students should not learn "legal doctrine" in the abstract (as they do in most law schools in most of the world, including continental Europe, Russia, and China) but should, instead, study judicial decisions where "the rubber hits the road" and the law is necessarily interpreted as it is applied to actual controversies, including (a) controversies about the meaning of this or that phrase in a statute, and (b) controversies regarding the "true law" to be applied where sources of law are unclear or contradictory?
2. Why is "case-law" necessary for law-making and law-teaching?
Analogies are tools of thought and communication. Here is a useful analogy: "Seeing" law is often like seeing with natural night-vision, where if we focus on something it disappears but if we focus beyond ... to the side ... it returns, it becomes "visible" again. This, in relation to law, is of course a metaphor. Having identified it as such, we have changed it (see below).
To "see" law properly we must look beyond, to the side, to what touches law, to what surrounds law ... most notably, to the ideas and historical processes that have shaped what we now think of as law, or (better) ought to think of as law. Thus, "law" includes consideration of its future, and of our responsibilities towards the future.
The life of the law is not logic but experience, history, and consequence.
Here is another useful analogy: Examining the deepest rules of rule-making, exploring how the fundamentals of legal reasoning and legal education are (or ought to be) related, and probing a host of associated issues, can be best approached by reflecting: How do genetic codes "grow" babies? In what sense is a child the "parent" of an adult?
More important, however, posing these analogies opens the door to examination of something even more fundamental to law, law-making, law-implementing, and law-scholarship:
A central tenet of "reasoning by analogy" teaches us that everything is both similar to and different from everything else. What we seek, in legal reasoning and in the larger Ecology of Mind embracing us, is significance.
We seek similarities and differences that are significant, not in the abstract, but in concrete contexts, including actual controversies whose resolution changes people, institutions, our world.
Significance always depends on context. The parameters of each question supply the parameters of any answer(s) we can recognize as responsive to that question.
Protagoras of Abdera (c. 480-410 B.C.E.) is said to have said, "Man is the measure of all things." Whether he said that or not, surely it is true (as indeed Protagoras probably intended) that we humans are the "measurers"; in that sense we supply the context of many inquiries. Indeed, arguably, we "are" the context (or an important part of the context) of all our questions.
Seeking significance is the essence of legal reasoning. Context supplies significance. And the context of greatest significance, surely, has "goodness-seeking" at its heart: Building a future civilization based on liberty, justice, sustainable ecologies (whether of Mind or of Matter) and, hence, viable economies ("oikos" = "household"; "nomos" = "laws"), and ... but ... above all, building and maintaining and enhancing reasoned discourse about these challenges, enhancing "truth seeking" anchored in empirical observations, including the "lessons of history" as best we can obtain them, and reflect upon them, and inspire and empower future generations to do so with ever-greater enthusiasm and competence. What a mouthful! What an earful!
As noted below, and as discussed in Framustans, perhaps a better formulation of these challenges focuses not on "goodness seeking" but, rather, on avoiding that which causes needless oppression, suffering, etc. However articulated, the task is to challenge current and future generations without coming across as a Global Village scold ... yet, with global warming looming, with weapons of mass destruction proliferating, with failed states and starving millions increasing, and with all the other problems facing our world and in light of our astonishing potentials for making our world so much better who would not risk seeming overwrought at times?
"It is an ancient mariner, and he stoppeth one of three ... ."
Three - Metaphors, Identified, Become Similes
Genetic codes and the codes of conduct by which humans and institutions are governed offer "idea sets" food for thought regarding cybernetic, self-organizing, self-governing phenomena. Of course, "food for thought" is only a metaphor and should not be pressed too far.
As suggested, metaphors, once identified, become similes (pointing to both similarities and differences) still tools of thought ... but, being more transparent, "honed" for better service. Making our metaphors transparent, and thereby acknowledging the limits of our understanding (whether current or abiding), is of the essence to living with wisdom, to incarnating the examined life. Without such honest acknowledgement of territories still to be mapped, our explorations become cramped, our Ecology of Mind becomes unworthy of what it might most competently become.
This might be a good point to pose a crucial question anchored within the terms, used above in relation to defining cybernetics, of "self-organizing" and "self-governing":
What is a "self"?
This question is actually a "question set" an invitation to wide-ranging inquiry. Thus: What is a "something" that is (how shall we say?) participating in existence with lots of other "somethings" touching it, influencing it, perhaps even defining it? Where is the "skin" of a something that might tomorrow consciously reach out and touch, and change, and even make, other things, ideas, etc.? And so on.
One of the most fascinating aspects of this question-set is the question: What is a self that can "know itself"? By dividing into the "knowing" and the "known" (according to classical logic) we run afoul of the self-referential paradox ... stated most unambiguously by the lament: "I am certain that I cannot be certain about anything!"
This provides a superb instance where, of course, logic is trumped by experience, indeed by that subset experience-cultivating knowledge which is so central to cybernetics. None of us has difficulty with the idea of humans seeking to know themselves better so that we may (for example) govern ourselves more wisely. Yet it is crucial to pose this "self-knowledge" problem, for it goes to the heart of understanding the cybernetics of society. This "knowing-thyself" phenomenon has its origins in our remarkable capacity (compared with animals) for empathy: to stand in another's shoes, and to see ourselves as others see us. See Freedom of Contract and the Infosphere of Democracy: What Kropotkin Didn't Understand Until He Stopped Being a Master of Serfs.
We shall put this question-set on the shelf, yet leave it in full view ... to be brought down for closer examination in due course. Suffice it to note, however, that you and I contain mitochondria whose "genetic composition" is entirely different from "ours"; without our mitochondria, we are truly nothing. Put differently, we are each "motile colonies" of something else, including distinct life-forms without which we are dead. By fertile analogy, motile colonies of people "compose" civilizations made from us yet also, by order and dimension, fundamentally distinct from us. And the question I am focusing on is this: What holds civilizations together, and what role does law play in that process ... or should play ... or must play if civilization is to evolve further?
Legal reasoning is what it is, and above all "it" is dynamic, an "evolving tool" (another metaphor) that must evolve, indeed improve, to serve evolving civilization better ... and thereby help future civilization become superior.
Let us not be too dainty in identifying what we are about. This essay seeks to report what that evolving tool "is" so as to change "it" and thereby change "us" ... improving the tools of civilization and thereby transforming civilization itself into a yet worthier meta-tool serving the cause of worthwhile global evolution. Determining what is "worthwhile" is both a means and an end indeed, it is the fundamental goal of our evolving Open Society, of constitutional democracy most deeply understood. The Open Society is more a verb than a noun.
At this level of analysis, ends and means are a false dichotomy. They compose a much-of-a-muchness.
The idea that our choices and actions today can "help future civilizations" is, indubitably, metaphorical: food for thought. How is it that thinking and writing and choosing and acting today can (as I put it above) "reach out and touch" tomorrow?
How is it that past, present, and future are "bound" by the conscious creative activity of humans?
Four - Back to First Principles, and Hence to Their History
Arguably, the First Trinity it is one of the greatest "idea sets" of all time, and it is almost certainly the first of Western civilization.
In simplest terms, it provides the "ruling paradigm" for our modern Ecology of Mind guided by our emerging Ecology of Values, telling us how what we now call ontology, epistemology, and teleology converted (and still converts) the Mythos-Logos dyad into the Mythos-Logos-Nomos triad.
Words like "ecology" and "economy" have their roots there, as already noted. Living language, evolving ideas, the coevolving "stuff" of regenerative intelligence, the institutions of constitutional global governance, obtain provender from their provenance.
Understanding the origins and evolution of these earliest "nested fundamentals" is
essential to comprehending the currently-conceived fundamentals ... and
hierarchical ordering ... of logic, science, and cybernetics .
Although it is essential to impart understanding of the general phenomenon of the Ecology of Mind, it is not coincidental and is arguably equally important to understand that the first dawning of that phenomenon was, in fact, the first dawning of logic, science, and cybernetics (that is, feedback-enriched, reflection-informed governance); that dawning remains the proper starting point for imparting wisdom and inspiration regarding the Rule of Law based on the Rule of Reason.
The basic building blocks of modern thought are very old and necessarily mutually-defining. They come to us burdened and ennobled with history, including the checkered history of "trial and error" experiences that have taught us one of the most crucial lessons undergirding law, the Rule of Law, and much else: Nothing that has a history can be understood except within the context of its history ... indeed, of History Writ Large.
A. Practical Context
It is no mere happenstance that the Soviet Union had no use for "history told with fidelity"; like the photos accompanying Soviet accounts of past and current events, truth was "airbrushed" to conform to the Party Line of the moment; despite its derivation, "ideology" was bereft of ideas rooted in the "logos" of truth-seeking, including "historical-truth" seeking. As Soviet dissidents joked: "History isn't what it used to be." Or: "We cannot predict the past."
Unfortunately, it is not merely the former Soviet Union that institutionalized contempt for historical fidelity. Modern "spin management" has too easily veered into efforts at "information control" that ought to be condemned by all who value truth, honesty, informed debate, enlightened governance. Modern "information societies" and their ecologies and economies cannot function well if governments, businesses, and others withhold or distort information that belongs in the public domain, knowledge that is needed by all of us as we seek ... for lack of a better phrase ... Truth Writ Large, including (as I argue in my essay First Trinity) Truth about the Good.
The relationship between law and history is no joking matter. Indeed, it is, or ought to be, sacred. Keeping the channels of "truth seeking" open, unclogged by party-line contempt for well-informed debate, etc., should command highest commitment within the Ecology of Values by which our world gropes optimistically yet realistically towards a new, evolution-affirming, "ideology" of sustainable development. That ideology must, among its elements, affirm the value of "case law" as a primary source of legal meaning and hence of law and the Rule of Law. Put bluntly: It is sheer lunacy to suppose that "law" can exist "in the abstract" divorced from history including the history of "case-law" by which the words and phrases of law obtain their true intendments and their practical, dispute-resolving, justice-upholding, ramifications.
Far too many law students in far too many countries (especially countries beholden to Napoleonic precepts), are taught that law is essentially a "science" which, on examination, one finds to be considered by its advocates as essentially "pure logic" bereft of its most necessary empirical content: the history of previous disputes and (a) how they were resolved and (b) why they were resolved that way including a sufficient account of the judge's actual reasoning, point by legally-relevant point and (c) whether those resolutions turned out, in historical hindsight, to be practical, sensible, wise ... enhancing liberty, securing justice, building reason-sustaining civilization.
Caution: The phrase above "point by legally-relevant point" should not be construed to support the view that these points must always follow syllogistically from earlier points, as if the statute were the major premise, the facts were the minor premise, and the conclusion follows "logically"; sometimes that suffices; but the key is that the judge must impart the actual reasoning processes used. Sometimes good judicial reasoning includes parallel elements, none of which "follows" from others yet all of which (a) persuaded the judge and (b) ought therefore to be set forth in the judge's decision. The key is "transparency" that, first, the litigants may know why their dispute was resolved as it was, and second, so crucial to the viability of the Enterprise of Integrative Jurisprudence, that judges, lawyers, law students, the general public, and future generations may study, dissect, and debate all decisions of relevance to advancing that Enterprise. Not every judicial decision requires a fully-reasoned "opinion"; arguably, not every decision needs to be "published" (although modern technology makes internet-mediated publishing easy and inexpensive); but all decisions that contribute to that Enterprise by contributing to its intellectual life must, in fact, contribute: Significant judicial opinions should be published, available for scrutiny, and (increasingly) available in "searchable libraries" of law and jurisprudence, worldwide. See Why Publish Judicial Opinions?
B. Historical and Philosophical Origins
At the dawning of systematic thought in the West, starting 2,500 years ago with Thales, who is generally considered the first true philosopher of Western civilization, the Mythos contained in songs and stories, but not yet written begat the Logos.
Thales was a remarkable Ionian Greek, a well-traveled merchant and engineer who resided in a great cultural center, Miletus, in what is now Turkey. He seems to have impressed others as a truly original thinker, not content with "received truth" that lacked empirical support. He is said to have predicted a local total eclipse of the sun (astonishing, if true) and measured the height of Egypt's Great Pyramid (a simple task, in retrospect). He apparently saw triangles and circles everywhere, as befits a good engineer. He also cornered the local olive-oil market, almost on a lark, after studying local weather cycles. Fixing his attention on the night sky, apparently his greatest passion, he once fell into his well ... to the delight of analogy-makers and practical people ever since.
To Thales, the word "logos" had several meanings: truth, writing, mathematical verities, the ultimate rules governing physics and metaphysics. In simplest terms, Thales sought the "changeless something" from which all change emanates. As such, he was (as we now see) the first of the "Cosmologists" essentially, seekers of the One composing the Many (perhaps the Many composing the One, according to possible interpretations of Aristotle's notes on Thales) and, arguably, this "cosmological perspective" remains deeply imbedded in modern memetics: cultural mindscapes generating the cultural landscapes that, together, compose our emerging global civilization.
In many ways the world of the Mythos, of numerous immortal
and changeless gods governing human affairs, "called forth" a search for that
changeless "Cosmological Principle" from which all fundamental truths, values, and rules were thought to
emanate (or to which they were thought to migrate). Interestingly, this
focus on the One occurred at about the same time that a single God was exalted
by the Children of Abraham. More
interestingly, Thales' student Anaximander disagreed with his teacher who thought this
Cosmological Principle is water (including vapor and ice) and asserted it must be
less physical, more metaphysical: apeiron, beyond naming, not too different
from the "name" Yahweh, or Jehovah, which means nameless.
In many ways the world of the Mythos, of numerous immortal and changeless gods governing human affairs, "called forth" a search for that changeless "Cosmological Principle" from which all fundamental truths, values, and rules were thought to emanate (or to which they were thought to migrate). Interestingly, this focus on the One occurred at about the same time that a single God was exalted by the Children of Abraham. More interestingly, Thales' student Anaximander disagreed with his teacher who thought this Cosmological Principle is water (including vapor and ice) and asserted it must be less physical, more metaphysical: apeiron, beyond naming, not too different from the "name" Yahweh, or Jehovah, which means nameless.
Most interestingly, however, Anaximander's student,
Anaximenes, thought that the Principle must be both physical and metaphysical:
he said "it" is (a) air, which when compressed becomes water and then stone, the
changeless, and when rarefied becomes vapor and then fire, the agent of change,
and (b) number, ratio, compression and rarefaction as such. Not
surprisingly, of course, Anaximenes' star student, Pythagoras, disagreed and said
"it" is entirely metaphysical: number, ratio, compression and
rarefaction, mathematics, pure logic,
knowledge of which requires (according to some of the "schools of thought" he
spawned) a process of knowing which is even more
"fundamental" or precious than what is to be known. Ontology (what is) begat
epistemology (how we know what is).
Most interestingly, however, Anaximander's student, Anaximenes, thought that the Principle must be both physical and metaphysical: he said "it" is (a) air, which when compressed becomes water and then stone, the changeless, and when rarefied becomes vapor and then fire, the agent of change, and (b) number, ratio, compression and rarefaction as such. Not surprisingly, of course, Anaximenes' star student, Pythagoras, disagreed and said "it" is entirely metaphysical: number, ratio, compression and rarefaction, mathematics, pure logic, knowledge of which requires (according to some of the "schools of thought" he spawned) a process of knowing which is even more "fundamental" or precious than what is to be known. Ontology (what is) begat epistemology (how we know what is).
Most (seemingly predictably?) interesting of all, however, is that the Pythagorean schools of thought diverged ever further in their "dialectical" (conversational) disagreements as to the identity of that One, thereby generating various Ones. But in large measure they all ended up accepting that the way of discovery must be something all can agree on. And most agreed that this "way" is dialectics, systematized conversations, methodical observations carefully recorded epistemology, the heart of logic and empirical science.
Two crucial points:
First, by "ended up accepting" I mean, essentially, that a several-centuries process which apparently started with Thales ... and beyond doubt reached a measure of maturity with Socrates, Plato, and especially Aristotle ... moved towards "acceptances" that, in retrospect, we recognize as constituting the "basic grammar" of philosophical and scientific discourse which allows "time-binding" historically-evolving, systematically-developing, empirically-enriched written knowledge that undergirds our global civilization's quest for meaning, for justice, for sustainable progress. (I'll get back to time-binding in a moment.)
Second, by "logic" and "science" I do not mean static concepts. They have deep roots, and these roots are important, yet obviously they have evolved. Indeed, both have evolved significantly during very recent times.
For example, modern "scientific method" has been greatly influence by Karl Popper (1902-1994), the great philosopher who apparently invented the term "Open Society"; his book The Open Society and its Enemies (fifth ed., rev. 1966) remains very influential.
Popper's writings on the scientific method, starting with his 1934 bombshell The Logic of Scientific Discovery, are even more important than his writings on political science, etc. Yet his work is now dated, I believe, due to more recent work on cybernetic theory and jurisprudence which, beyond doubt, was influenced mightily by Popper's work.
Popper was very critical of Aristotle. But he misses the main point, I submit: Aristotle's greatest contribution was to "time-binding"; above all, he "tamed" the Greek language, the language of philosophy, contributing vastly to devising a written language that could "cause" or at least "allow" (see my essay, Synergism) a multi-generational endeavor: the future learning from the past, future thinkers "standing on the shoulders" of previous intellectual giants.
Aristotle 's systematized and thereby consolidated the prior three centuries of Mythos-become-Logos, etc., and especially of Greek epistemology. Before him, the language of philosophy was too wild; he tamed and "regularized" it into a powerful instrument of systematically recorded thought that allowed subsequent generations (a) to comprehend past progress and thereby make new, responsible, thought-filled, future progress, and (b) to improve that instrument itself, embracing the medium and message of philosophy within a cybernetic, self-improving "culture of progress" that was, is, and will remain Aristotle's greatest legacy. Sure, Aristotle was wrong on many things; he gave the future self-improving tools that would make his own work "obsolete" ... and, therefore, especially precious.
In short, Aristotle contributed massively to starting an evolutionary process which would allow future thinkers, such as Popper, to build far further, "correcting" Aristotle, Plato, Socrates, Parmenides, Heraclitus, Pythagoras, Anaximenes, Anaximander, Thales, and all their colleagues and "students" ... past, present, and future.
C. Binding Time, Standing Ever Taller
It is absurd and dangerous to think that new progress can be made without looking back. We live and learn, as individuals and societies.
The life of civilization is not "pure reason" (as precious as that is, when not misapplied) but experience. A civilization, like an individual, is cast adrift without memory. Without memories we are imbeciles!
Wise leaders do not march blind into the future, flags waving and trumpets blaring; no, if they would make a good future, they must "back" into the future with humility, avoiding the manifest errors of the past, including the worst error of all: hubris.
False confidence is always dangerous. True confidence must be founded on genuine competence, and good leaders are ever mindful of those who in the past were not sufficiently mindful. The legacy of mindless government is needless suffering ... and the condemnation of those who must deal with the mess left behind.
Time-binding is crucial. Our infant Global Information Age would be impossible without a "stable language" of discourse, including legal discourse, by which successive generations may cultivate and harvest feedback, the lessons of history, the abiding contributions of giants like Abe Lincoln. The further healthy development of this infant civilization requires fidelity to truth, truth-seeking, and the lessons of the past.
What is the most important
What is the most important lesson?
The bifurcation of the Logos into ontology, asking "What is?", and epistemology, asking "How do we know what is?", was as stable as any two-legged chair until the Cosmologists' quest for the One became "trifurcated" with the great preoccupation of philosophers (the word had not yet been invented) who, indeed, eclipsed the Cosmologists: the pre-Socratic Sophists.
These teachers, or at least the best among them, were asking a different kind or question not "What is?" or "How do we know what is?" (questions which, unanchored, were driving Greek philosophy insane) but ... "So what? How do we convert knowledge and wisdom into choice and action? How shall we live our lives with excellence? How shall we construct a just society?"
This third "leg" is now called teleology. Its preoccupation became the key preoccupation of the Sophists: aretι, excellence in all things.
Teleology, like cybernetics, is by order and dimension goal-oriented; they focus on finding not truth, as such not truth in the abstract but, in essence, Truth about the Good ... wisdom aimed at choice and action, which soon became even more specific: wisdom aimed at finding happiness, or more precisely aimed at avoiding causing needless unhappiness to others ... which, in turn, requires "doing justice" by participating with others in the creation of a just society.
In simplest, most elegant terms,
the addition of teleology to ontology and epistemology allowed (caused?) these three
to transform the Logos by converting
the Mythos-Logos dyad into a triad: Mythos, Logos, and Nomos.
Mythos, Logos, and Nomos.
Socrates was the greatest of the Sophists. Plato did not give the Sophists their fair due, as he blamed them for causing (or allowing) his teacher Socrates' death ... by self-administered poison.
Plato wrote beautifully, and his writings are nothing if not thought-provoking, but he was ultimately (in retrospect) both unfair to those he attacked and, dare we say it? ... plain stupid. He was contemptuous (or astonishingly unaware) of the ultimate rationale for what he popularized as "Socratic dialogues": participatory governance, constitutional democracy, government "under law" that limits the king, even the wisest philosopher kings he championed.
Basically, Plato was a fascist. Thus, Popper's book, The Open Society and its Enemies, commences with the following Plato quote:
The greatest principle of all is that nobody, whether male or female, should be without a leader. Nor should the mind of anybody be habituated to letting him do anything at all of his own initiative; neither out of zeal, nor even playfully. But in war and in the midst of peace to his leader he shall direct his eye and follow him faithfully. And even in the smallest matter he should stand under leadership. For example, he should get up, or move, or wash, or take his meals ... only if he has been told to do so. In a word, he should teach his soul, by long habit, never to dream of acting independently, and to become utterly incapable of it.
Aristotle, Plato's student, is our main source for understanding pre-Socratic philosophy; he seems to have had access to writings, including those of Thales, that we do not now possess. Yet it is essential to understand, first, that what we know of as "Aristotle's writings" are mostly composed of his students' notes, etc., and second, that Aristotle's thinking on many issues developed, and changed, over a long life. He started as a Platonist; but, according to what I consider the best current scholarship, Aristotle ended up far less dismissive of democracy than Plato.
Aristotle can be quoted as taking numerous and contradictory positions. His main contribution, I emphasize, was in "taming" the language of philosophy, setting forth rules of discourse which allowed time-binding, indeed encouraged "memetic processes" (the Ecology of Mind) to carry philosophy, science, ethics, governance, regenerative intelligence, far further than Aristotle himself could have carried them.
Mythos, Logos, and Nomos composed the First Trinity of Western civilization, but its begetting required Logos to first generate the germ-trinity of ontology, epistemology, and teleology, and then for ontology and teleology to "feed back" and powerfully enrich epistemology logic and science converting part of epistemology into a meta-science, cybernetics: what we now see as the art of converting wisdom into choice, choice into action, and action into subsequent evaluation and resulting refinements of future choices and actions especially those choices and actions which Socrates, according to Plato, associated with the art of governance.
Such "cybernetic thinking" was crucial to
defining and then enriching Nomos. Note that the ancient Greek verb "kuberne" is embedded in both
"cybernetics" and "governance", and their association
apparently originated with
Socrates' analogy to the
Such "cybernetic thinking" was crucial to defining and then enriching Nomos. Note that the ancient Greek verb "kuberne" is embedded in both "cybernetics" and "governance", and their association apparently originated with Socrates' analogy to theart of the kubernetes, the helmsman, the pilot, who must integrate knowledge of the changeless ("stars") with the naturally changing ("winds and waves") in order to choose and act with reference to that which is humanly changeable to alter the angle of the rudder, the trim of the sail. Altering either must feed back into choices affecting the other. This involves a complex kind of thinking, the rudiments of cybernetic thinking, and this kind of thinking has itself evolved, of course coevolved with all other elements of civilization. but understanding the origin of the "idea of governance" as here summarized is essential to understanding modern constitutional theory, and hence to engaging effectively in law reform and legal-education reform in the post-Soviet region and our entire world.
The word "art" used above comes
from the Greek techne, and refers to those
things humans make using skill, reasoning, intelligence. Aristotle wrote extensively on
this subject, and is our main source for understanding the evolution and ecology of ideas
leading to the concept of governance as an art honoring but transcending science,
as science honors but transcends logic.
The word "art" used above comes from the Greek techne, and refers to those things humans make using skill, reasoning, intelligence. Aristotle wrote extensively on this subject, and is our main source for understanding the evolution and ecology of ideas leading to the concept of governance as an art honoring but transcending science, as science honors but transcends logic.
Such cybernetic thinking is "proper to"
participatory systems in which what we know and do changes the systems we are embedded in,
changes our relationships to them, and changes our concept of "understanding" to
require an ecology of reasoning-rich activity, a participatory endeavor spanning time,
often spanning generations, centuries, millennia.
Such cybernetic thinking is "proper to" participatory systems in which what we know and do changes the systems we are embedded in, changes our relationships to them, and changes our concept of "understanding" to require an ecology of reasoning-rich activity, a participatory endeavor spanning time, often spanning generations, centuries, millennia.
Thus, when we talk about the Rule of Law based on the Rule
of Reason, we are talking about a special kind of reasoning feedback cultivating
and feedback harvesting, seeking not only the True but also the Good
and then doing
something about it, and monitoring the consequences, and refining, revising, improving. We
live and learn, as individuals and societies; we plan our further living and learning
accordingly; and we see in a good constitutional democracy a fit "learning
organism" that enables us to do all this better, securing liberty with justice,
wisdom with will.
Thus, when we talk about the Rule of Law based on the Rule of Reason, we are talking about a special kind of reasoning feedback cultivating and feedback harvesting, seeking not only the True but also the Good and then doing something about it, and monitoring the consequences, and refining, revising, improving. We live and learn, as individuals and societies; we plan our further living and learning accordingly; and we see in a good constitutional democracy a fit "learning organism" that enables us to do all this better, securing liberty with justice, wisdom with will.
D. Law as Science
D. Law as Science
Law is "science" only in the astonishing sense that we humans are engaged in a long-term "controlled experiment" testing whether the evolution of intelligence and of the capacity to choose based on knowledge, including self-knowledge is evolutionarily viable.
Such intelligence is powerful indeed, allowing us to eradicate all forms of intelligent life on this planet, but also, perhaps, all forms of human mayhem. Possibly these things should go without saying. Then again, many requisites of "sustainable development" can benefit from explicit identification.
We must examine, inform, and inspire. We must find a basis for hope, for without it our world will not be viable. This hope must be based on genuine confidence born of genuine competence the capacity to combine and embody the quest for Truth with the determination to find, and do, the Good.
Doing these things, we go beyond any conventional definition of science. Hence, we need a new word to denote what we are doing. On balance, reclaiming "cybernetics" from popular and misguided definitions is worth the benefits.
It would be immoral to conduct conventional "controlled experiments" upon societies for example, to divide a population into those who get fair trials before imprisonment and those who don't, in order to see what happens, etc. Yet, through comparative legal studies, we can accomplish fairly solid empirical research, and we can also compare based on accounts of past legal systems, or previous eras within a single legal system.
Indeed, in the United States, with 50 state constitutions and (in significant respects) 50 different legal systems (plus the federal system and systems of international and transnational law), comparative law is deeply imbedded within all lawyers' work. Indeed, I believe that wisdoms generated by U.S. federalism contribute invaluable commentary in aid of building as eventually our world must a federated global polity.
America's greatest contribution to establishing global constitutional democracy, I believe, is its method of legal education and legal reasoning. In much of the world, as noted, law is considered to be essentially "logic" whose mappings are transferred from a law professor's notes to law students' notes without benefit of thought, discussion, and analysis centered on how "the law" has in the past resolved real controversies and should in the future do so better. In the Soviet Union, and the post-Soviet region, students can go through five years of so-called legal education without encountering an actual dispute and the judicial decisions (whether trial or appellate) by which that dispute was resolved ... and why, and whether that resolution accomplished the court's goals, the law's purposes, etc. French legal education is hardly better. Chinese is worse.
Five - Law as Art
I dwelt above on the importance of history in general and, for law, of specific (and well-reasoned) case "write-ups" in particular, because these are absolutely crucial to the Enterprise of Integrative Jurisprudence, mentioned above, and hence of legal reasoning and its close ally: competent constitutional democracy, government under law. There are several interdependent elements here.
1. Broadly defined, competent constitutions empower parliaments to enact legislation which often requires or allows sub-legislative enactments. Courts must interpret this hierarchy of law in order to apply "the resulting law" to specific facts, concrete disputes.
2. Fact-finding occurs in light of relevant law, but to determine what law is relevant one must determine the relevant facts. Disputes do not come to judges, or law offices, with tidy labels classifying them and identifying what field of law should be applied to their resolution. Finding "the facts" and "the law" is a quintessentially cybernetic challenge, involving continuous "co-definition" by which facts and law are mutually clarified, indeed co-creative.
It is not unusual for an appellate court to hear an appeal and then remand (send back) the case for further fact-finding because (among other reasons) it concludes that "the law" initially applied by the court below was inadequately framed or otherwise flawed and hence the trial court's fact-finding was inadequate: It did not ask the right questions, or it barred one or both sides from asking the right questions, etc.
3. One cannot emphasize too strongly the value of "settled law" by which the words and phrases of constitutions and statutes and administrative regulations, etc., have been previously interpreted and applied within the context of official judicial resolutions of actual legal controversies.
This is not a "natural resource" but a "cultural resource"; it is arguably more precious than any natural resource; but it cannot "exist" without (a) case law, and (b) law schools that study case law and debate the actual decisions of courts that interpreted the law as a necessary aspect of applying it to specific factual settings.
Countries whose courts provide only formulaic syllogisms to "resolve" disputes have a much higher proportion of disputes needing to be litigated (or resolved by extra-legal means, including bribes and protection rackets) because their law is much less settled; it is not embraced within that larger Ecology of Mind thinking-rich governance so essential to societal health and prosperity. And such countries' law students graduate with a profoundly cramped view of what their role as lawyers and judges should be. Indeed, their lawyers and judges become mere functionaries in a system that denigrates anything but formulaic "thinking" ... pseudo-logic that too often ignores experience, the lessons of history, and the wisdoms of generations of judges and other conflict-resolvers trained, through experience, to apply law to facts.
4. Applying law to facts requires a sophisticated understanding of similarities and differences ... within context.
As emphasized above, everything is both similar to and different from everything else. Intelligence, legal reasoning, lies in perceiving relevance differences that "make a difference" and similarities that "make a difference" (as it were) ... that is, make a significance.
Indeed, arguably, every "bit" of significance is what we call information, and "legal information" necessarily partakes of both law and facts. In that sense both law and facts are "law-facts" ... bits or encyclopedias of "significance" which, through several ... or hundreds ... or thousands of specific-dispute-resolutions, make a difference or similarity that ought to be paid attention to, not only by courts but also long before disputes require judicial involvement by lawyers advising clients how to arrange their affairs so as to avoid judicial involvement.
To be continued.
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