MESSAGE REPAIR INITIATOR
Supporting the Ecology of Mind
And Hence the Ecology of Choice, of Will,
And of Feedback-Cultivating, Knowledge-Harvesting,
Wisdom-Accumulating, and Evolution-Affirming Excellence in Governance
DEDICATED TO THE MEMORY OF NELSON MANDELA
AS PROPOSED BY LOWRY WYMAN (1950-2015)
“Huh?” is a message repair initiator, inviting further mutual inquiry.
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.
The map is not the territory. The blueprint is not the bridge. The name is not the same as the thing, concept, relationship, institution, or system named. In a civilization worthy of that name, what a component “is” is often “called into being” as humans learn or design — and name — what it is not … or what it is evolving away from being. This is especially true of law, governance, and constitutional democracy.
Too complicated and abstract? For whom? Confronting the fundamentals of thinking and knowing, discussing and communicating, is not a curse but a blessing. A blessing and a responsibility. This ought to go without saying.
Let us be clear: This website is not Constitutional Law Made Simple.
(In a metalogue, the subjects to be illuminated must include the participants and their relationships.)
Regarding an important instance of deliberate and systematic debasement of the language of law and governance, as reflected in 1922 correspondence between Lenin and Stalin discussing the “voluntary” nature of the USSR, see Soviet Constitutional Law: Towards a New Federalism? (1990), by Lowry Wyman.
Central to any constructive discussion of self and society, of law and governance, is our awareness that these terms are (or should be) tools to facilitate thought and communication about an evolving reality which those tools — and their improvements — help us to construct, generation upon generation.
Self and society coevolve, as do liberty and law.
Our awareness of this “circularity” illuminates many concepts, dichotomies, and “explanatory principles” allied to those of self and society, such as psychology and sociology, competition and cooperation, property and contract, and (as we shall see) synergetics and cybernetics.
All their many points and “pernts” partake in this Inquiry.
To be fully human means to comprehend that, as I am a “me” with various attributes of selfhood that are “proper to” me — that are, indeed, “naturally fitting” to me, and in a word are “mine” — so, also, you are your own “me” with various attributes of selfhood that are “proper to” you and are, therefore, “property” of yours. Your body — most naturally and obviously — is yours. So is your mind, although — if it is any good — it contains the harvested genius of many centuries. You did not build that. But we … humankind … can improve it.
Life, liberty, property …. What is proper to each of us, and what is proper to all? And, while we are at this enterprise, let us bear in mind that (a) we are constitutionally entitled to pursue happiness, not necessarily to attain it, and (b) there is a huge literature on what “happiness” is, for it was the highest goal in Aristotle’s philosophy, 2,400 years ago. Happiness is not a drunk smashing pottery at 2 a.m. and laughing at the resulting neighborhood disturbance.
The drunk’s true happiness must start, if at all, in empathy and remorse. As does a constitutional democracy.
The happiness we seek is not a Utopia ever reached, but an ongoing process of reaching, of becoming.
Of inquiring: How shall we live?
In the game of Twenty Questions we learn almost as much from “no” as from “yes”; but we must always be “getting to yes” as our destination. Is it smaller than a breadbox? Is it larger than our galaxy? Is it an idea? Is Freedom of Inquiry its highest value?
We are allotted a maximum of twenty questions to identify what “it” is; if we need more, we lose. But we gain by discovering that the “information” — significant similarities, differences, patterns, paradigms — generated in consequence of twenty thoughtful questions and twenty truthful answers … can be staggering!
Constitutional democracy is a transcendent Idea deduced over thousands of years of countless questions, not all of them thoughtful, and even more answers, not all of them truthful. Indeed, this Idea denotes or points to or “calls into being” a sort of learning organism that facilitates evolving awareness of achievable goals — distinguishing gradations of plausible from implausible, thoughtful from thoughtless, likely from unlikely, just from unjust. Constitutional democracy learns from many sources, including its mistakes, including (perhaps) yours and mine.
What “is” a constitutional democracy? Well, in a metalogue we must cultivate the denotative, metalinguistic, and metacommunicative elements of this question. Doing so, we shall wend our way towards concluding that a constitutional democracy is its own best metaphor or, more precisely, as Julian Jaynes proposed, metaphrand: in essence, an invitation to further inquiry … searching beyond metaphors … touching the unarticulable major premises of human existence.
The game of Twenty Questions provides a provisional metaphier (idea multiplier, pronounced “meta-fire”) beckoning us to explore the metaphrand “constitutional democracy” as if it were a verb, an activity, a process — some “thing” we are working on. We would be building. We would be building answers to “building questions”! We would be thinking as we work. And sometimes we might be whistling. It goes without saying:
A constitutional democracy is less a “thing” than an enterprise, an intellectual and practical endeavor that calls into being something which is itself evolving — or, more precisely, coevolving with all the other particulars and potentials of our seedling planet.
We shall select and harvest as we have sown and cultivated, mindful of our own role in these evolutionary processes.
The greatest philosophical question of all time is, What shall I do in the morning?
Here is the “working definition” of a constitutional democracy that I proposed around 1990 while urging the Baltic States to reestablish their independence as constitutional democracies:
A constitutional democracy is a government under law in which coalition and majority rule is balanced by minority and individual rights, and in which most rights are balanced by responsibilities — including the responsibility of each citizen to study the history of constitutional government in order to illuminate it in ways that no definition ever can … and in order, thereby, to allow it to evolve further in light of ancient wisdoms and the needs of our evolving global civilization.
This definition has circulated widely. I seek to improve on it here, partly by reconceptualizing what “defining constitutional democracy” means. As often noted, nothing that has a history can be defined without reference to history.
The first “message” that needs “repairing” is that constitutional democracy can be dumbed down.
The fact that constitutional democracy is an “elevated message” — a transcendent Idea — is one of its most important attributes, requiring us to stand tall … intellectually and morally.
This message celebrates unavoidable complexity in the governance — or, properly understood, the cybernetics — of self, society, and civilization.
The origins and evolution of the transcendent Idea of constitutional democracy as an embodiment of Ordered Liberty and the Rule of Law is a fascinating and instructive story in its own right. It also offers deep insight into the origins and evolution of Mind, or — more accurately — the Ecology of Mind, which (if the ancient Greeks are correct) generates an Ecology of Values. We inquire. We inquire of each other. We inquire of history. And we know we stand on the shoulders of giants. We are One, in that regard.
I propose starting with Thales (c. 624-547 BCE), the first of the ancient Greek philosophers. He was seeking that One Changeless Cosmological Principle from which all change emanates. He thought he had found it. But he had the “misfortune” of having a brilliant student, Anaximander, who disagreed with him (I’ll skip the details for now).
Anaximander, in due course, had his own student, Anaximenes, whose cosmology was more akin to that of “grandfather” Thales. One sees an inter-generational “conversation” emerging; and, not surprisingly, Anaximenes was less interested in defining the Cosmological Principal than in examining how that conversation (“dialectic”) came into being. And what it was becoming. Ontology had called forth epistemology. Soon, both would call forth teleology. So what?
“Thales, Anaximander, and Anaximenes held that the world evolved from a simpler state into a more complex one,” according to The Encyclopedia of Philosophy, Vol. 6, p. 50 (1967). They seem to have discovered or invented the Idea of Progress, but their systematic, evidence-based study of complex phenomena was hampered (as Aristotle would show) by a language that was too fresh and wild; it made poetry, not science; it needed taming.
Those Cosmologist’s successors included Pythagoras, who founded several “schools”; Heraclites, whose “changeless principle” was change itself; and the great Parmenides, who championed teleology, areté, impeccable conduct. So what? Seated at the aged Parmenides’ feet, we are told, there fidgeted the young Socrates, who would later seem somewhat obsessed with the thought: “The unexamined life is not worth living.”
More to the point, Socrates’ student Plato (somewhat to his regret?) “brought forth” the brilliant young Aristotle (384-322 BCE). Their arguments remain remarkably fresh. Yet it would be far off the mark to suggest that all philosophy since Plato and Aristotle consists of mere footnotes to their work. Whether those Ancient Greeks discovered or invented the Idea of Progress, beyond doubt progress has been made during the past two and a half thousand years.
Aristotle’s Organon, an astonishingly insightful text on clear and effective thought and communication, was the anchor for an amazing range of other “writings” (probably including compilations of students’ notes). Above all, Aristotle tamed the Greek language and set forth the fundamentals — the “grammar” — of what has become modern logic, science, and cybernetics.
That “grammar” (formula?, formulary?, tool-making toolbox?) included “historicity”: How ideas and institutions have interacted and evolved over time, and — the focus of Nomos — how we should “evolve” them further … and to what ultimate “ends”?
Mythos, Logos, and Nomos animate what I call the Conversation of Democracy. It might just as well be called the Framustan. Whatever “it” is, or is called, is worthless without Freedom of Inquiry.
Freedom of Inquiry should be limited only by “rules of engagement” aimed at making sense, not nonsense, thereby inclining the arc of the moral universe towards finding and enhancing the truth about the good, the science behind areté. Huge subject ….
To be examined further.
The word “evolve” (in whatever language) had apparently not yet evolved in Aristotle’s time, but the Idea was … (like the name of a future philosophical thriller) … Immanent in Athens.
The concepts “deliberative evolution” and “conscious coevolution” were in the air.
Discovery and invention were in our Nature … and now our Nurture. In the centuries following Aristotle, that immanence became transcendent.
The transcendent Idea of Progress is rooted in ancient concepts of natural and cultural evolution. Aristotle wrote extensively on this, but without coining a word for it, apparently. A superb work on this subject is Robert A. Nisbet’s History of the Idea of Progress (1980). The following passage is from the subsection entitled “Roman Philosophers on Progress”; it is available on the internet; just swipe a string of seven words and search same in any competent browser:
“Perhaps the greatest description (in the sense of a systematic and developed awareness) of human progress to be found in all of ancient thought is the Roman Lucretius’ On the Nature of Things written in the first century B.C. It is an Epicurean account of complete sciences — astronomy, physics, chemistry, anthropology, psychology. In very modern fashion, Lucretius explains the beginnings of the world through atoms in the void forming clusters which then become tangible matter, and the eventual development of the world with all that grows and lives on it. Book V of this general evolutionary treatise is concerned solely with mankind’s social and cultural progress. It commences with primitive man living naked and shelterless, dependent upon his cunning and ability to join forces with other men in order to find safety from larger and more predatory beasts, in constant fear of the elements. To assuage this fear mankind generally formed religions for mental protection, and step by step (pedetemtim progredientes) advanced to huts, then to houses and ships, diverse languages, the arts and sciences, medicine, navigation, improvements in technology, making for an ever richer existence. And, Lucretius is careful to tell us, despite the grandeur of all that man has achieved on earth through his own efforts, the human race is still in its infancy, and even greater wonders may be expected.”
In simplest terms, 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 quest for the One became “trifurcated” and dynamically stabilized with the great preoccupation of the ancient Sophists:
Huh? So what? How do we convert knowledge and wisdom into choice and action? How can we live our lives with excellence and accountability? How might we construct and secure a just and peaceful world? How shall we balance justice with mercy? What should humanity do in the morning? What shall I do now?
This “third leg” of Cosmology is called teleology.
Plato gave the Sophists a bad press. Yet he idolized the greatest Sophist of them all, Socrates. Is it possible that Plato made too much of Socrates’ assertion that he himself was not a wise man, not a “Sophist”? That he was merely a lover (philos) of wisdom (sophos), merely a befuddled philosopher?
Apparently Socrates coined that word. And he seems to have deeply comprehended that philosophy requires an integration of ontology, epistemology, and teleology. Accordingly, he coined the word “cybernetics” … and gave that term its most powerful exemplar or metaphier, the ship’s captain, the kubernetes, who must integrate knowledge of the changeless, the naturally changing, and the humanly changeable in order to trim the sail, adjust the rudder, and … then do it again, never finished until journey’s end. This kubernetes was an artist. Governance is artistry. Life under Law makes Art.
Teleology, wisdom leading to choice leading to action, plus feedback, plus further wisdom … and, thus again, round and round … all this “cybernetic consciousness” implies “prior” ontology and epistemology. “Prior” in the deepest sense that, as we shall see, the “first distinction” creates not a duality but a trinity. Teleology, the third leg of Greek philosophy, institutionalizes systematic “feedback” and therefore “historicity” that alters Logos by converting the Mythos-Logos dyad into a triad: Mythos, Logos, and Nomos. The first tri-unity.
Three-legged chairs tend to be stable, even on rough terrain. As builders of rock sculptures know, each rock must have “three points of bearing” … however small.
The 1930s invention by Fergusson of the three-point hitch saved many tractor drivers.
Young Abe Lincoln proposed a bridge over the Mississippi based on triangles.
Bucky Fuller’s tensegrity structures are 3-D elaborations of triangles.
They are based on the timeless values “pi” and “triangle” reified.
As we shall see, G. Spenser-Brown’s “Forms” are three-step.
And then, of course, there are those Three Branches.
What is it about “three” that soars so … high?
Philosophy and governance as poetry.
Ancient Greek philosophy and governance as poetry will be my starting point.
Our path forward must include Francis Bacon (1561-1626), whose Novum Organum proposed a brilliant improvement upon Aristotle, namely, the scientific method. See Note on Advancement of Learning.
Of even greater significance to our story, however, will be Bacon’s jurisprudential rival, Chief Justice Edward Coke (1552-1634).
And then, of course, there was Abraham Lincoln.
Not so long ago.
And what will be my ending point?
The evolving Idea of constitutional democracy has advanced in salutary measure by perennial conscious integration of ontology (“What is?”) and epistemology (“How do we know what is?”) to call forth teleology (“So what?”). This teleological domain is ultimately pragmatic: What shall we do in the morning? The ancient Greeks settled on areté, a sort of “impeccable journey” … towards creation and advancement of a “public thing” (res publica, by its later Latin name), to wit, in our time, a “democratic republic” or “republican democracy” (they are the same) under that Rule of Law which advances Ordered Liberty, terms of art that we shall often revisit.
This “public thing” is, or strives to become — for “institutions” develop “purposes” — a cybernetic or self-monitoring and self-governing “One-as-Three” creation which, not surprisingly (almost self-evidently?), calls forth the similarly-transcendent Idea, E pluribus unum— “out of many, one” — a glimmering of the New Order of the Ages, the Novus ordo seclorum.
We presumably approve. These mottos of the Great Seal and Coat of Arms of the United States of America predate the 1789 Constitution by seven years. They grace the dollar bill. Presumably, they should incline our hearts to a mystical, indeed mythical, quest. Do they also have constitutional significance? Yes, I think they do, or should.
That significance lies partly in the “mythicality” of all transcendent Ideas, yet it lies mostly in the centrality of what I conclude must be and remain our highest value, Freedom of Inquiry.
For, as should go without saying, we depend on Freedom of Inquiry to illuminate what “In God We Trust” means, or meant at the Founding, or should mean today. At least some of the Founders were “spiritual” in the sense that their God was “Yahweh” or something similar — less a Being than a Becoming. As Kennedy said, “here on earth, God’s work must truly be our own.” Was it Stewart Band who said, “we are as gods, and need to get better at it”?
How can we do so without free and reasoned discourse?
Washington, Franklin, Jefferson, even Kennedy, could not have imagined the prospect of (how shall we say?) internet-based distributed intelligence wielding “its own” logic, science, jurisprudence, and political influence, etc. Can we imagine this? Should the potential promises and perils of “crowd-sourcing” and “wiki-government” have constitutional significance? Make your argument!
Make a noise like a lawyer!
In building a mutually-evolving Ecology of Mind and Ecology of Values, we construct a sort of chambered nautilus of ever-larger “reminiscences” of choices made, truths defended, consequences borne, triumphs celebrated, and defeats turned towards enlightenment.
Should the evolution of microbes and planets, of knowledge and wisdom, “possess” constitutional significance?
Is the evolution of intelligence on this planet evolutionarily viable?
Does this question have constitutional significance?
Should it? How would it? How might it?
History records that the integration of ontology, epistemology, and teleology called forth a deeper integration of Mythos, Logos, and Nomos. As we shall see, however, the Mythos element could not have been discerned — and named — until after Logos (in essence, logic and science) and Nomos (in essence, jurisprudence and cybernetics) had made significant theoretical and existential headway.
Myths come and go, but Mythos abides … if only to remind us that, unlike Logos, Nomos cannot be content to describe “what is”; Nomos must always attend to the moral or normative dimension: What is good, or at least what is preferable?
The famous German “legal science” of a century ago focused on what is, not ought to be, and that focus was not good enough. Germany’s judges crumpled before Hitler.
Law is less a science than an art — the quintessentially cybernetic art.
It focuses on normative choices: What is preferable?
And why? And who decides?
Whatever a constitutional democracy is, it is largely “self-defining” based on history, including the details of thousands of disputes about the proper meaning and application of emergent constitutional principles like “Due Process of Law” and “Privileges or Immunities”; these principles evolve within the context of human intentions.
As Justice Field stated in Cummings v. Missouri (1867): “The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation.”
The map is not the territory, the name is not the deprivation. Aristotle’s Organon urges us to look beyond all maps and blueprints and “explanatory principles” towards …
The term “Mythos” generally refers to that mass of “knowledge” (much of it erroneous) preceding Thales’ systematic, logical, and above all evidence-based inquiries, which pioneered what would become ontology, epistemology, and teleology; but — as already twice alluded to — the “true meaning” of the word Mythos could not have risen to human consciousness unless defined and refined and “self-corrected” over time by Logos and Nomos.
The above self-referential or “circular” observation is typical of cybernetic advances on wisdom. This integrative philosophical and historical endeavor, especially its “So what?” component, impels thoughtful humans towards broader inquiry, deeper exploration, symphonies in refinement, toccatas and fugues of implication, as the swift seasons roll.
Nomos is that “Law of the Land” which undergirds all law-making, including constitution-making.
A document called “the Constitution” is not the most important part of what “constitutes” (for example) the United States, whose Founders would have chosen freedom without a written constitution over a written constitution without freedom. More to the point, the highest or most transcendent value animating America’s “constitutional freedoms” — Freedom of Inquiry — is not even mentioned in the U.S. Constitution. Why? Because, as we shall see, it went (and still goes) without saying … as it also “goes” that the prosecution shall carry the burden of proof and that the standard of proof in criminal cases shall be guilt beyond a reasonable doubt.
True, the U.S. Constitution (the document as such) is silent on these matters, but those unenumerated, unarticulated, even unarticulable rights, privileges, immunities, entitlements, and similar “major premises” of Ordered Liberty thunder on!
The Ninth Amendment, following eight that “enumerated” certain rights, commanded: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In 1987, a nominee to the U.S. Supreme Court seemed dangerously confused about the meaning of this constitutional command; his nomination was wisely rejected by the Senate.
The blueprint is not the same as the cathedral, and the cathedral itself “stands for” something else — less a Being than a Becoming. Rooted in history, it calls forth the Idea of Progress.
Liberty and Law, properly understood, are co-causal. It goes without saying. Yet we need to continue saying it. Always. All ways.
It is to this goal that these Jurlandia writings are devoted.
Words, symbols, extended metaphors, tacit or unarticulable know-how, the wisdoms embodied in individual and institutional show-how, even web-empowered inquiries and proposals devoted to elevating comparative constitutional jurisprudence, etc., are tools of thought and communication. Tool-making tools. Metaphorical tongs. Metaphrands.
When properly deployed, this cultural software enhances responsible progress by time-binding past wisdoms, contemporary understandings, and plausible future choices — as did the Gettysburg Address — thereby allowing, but not causing, our successors to build “more stately mansions” of free inquiry, equal opportunity, and sustainable civilization based on reasoned choice.
The Gettysburg Address deserves memorization for several reasons, including that it illuminates our sense that wisdom and art are interwoven. Lincoln was the wisest of humans, the most articulate of lawyers. And he comprehended that our worthiest tools, including constitutional blueprints, instruct the construction of something else — an emergentNomosphere (“law-sphere”) premised on equal liberty and justice … isonomia … bounded by reason, science, the lessons of history, and the best arguments animating Regenerative Intelligence governed by theRule of Law.
As I would not be a slave, so I could not be a master of slaves. As I would not be duped, so I must not dupe others. The reason of the law is the life of the law. The heart has its reasons that reason cannot know. We grow up internalizing such contrasting fundamentals. They go without saying, yet — medium and message being interwoven — these fundamentals invite our ongoing efforts to give them a more nuanced voice, a more integrated contextualization.
Must justice be tempered by mercy … even where that mercy might be deemed further “punishment” for victims? Well, let us reason together, over time. History without philosophy is meaningless. Philosophy without history is empty. Knowing what something “is” and “is not” depends largely on contexts.
Some maps can become territories. Some blueprints are empty icons.
Lincoln, making of his life the most abundant icon — the outward manifestation of an inner truth — said it better than anyone else: “That we here highly resolve ….” Knowledge into choice and action.
Among the unenumerated, unarticulated, sometimes unarticulable rights, privileges, immunities, and “it goes without saying” components of the Constitution of the United States, we must include the prosecutor’s burden of proof and the “beyond a reasonable doubt” standard of proof (already alluded to); the right to speak in ones own defense when being prosecuted (although the Founders’ understanding and practice was the opposite); the prohibition against judges judging their own “causes” (Vice Presidents must not preside in Senate impeachments of themselves, although a literal reading of the Constitution “says” otherwise); the common law premise that legal rights imply legal remedies (or, where necessary, so-called “equitable” remedies); the general proposition that judges must be “learnéd in the law” and trained to apply “legal reasoning” in their judicial decision-making (which, as already noted, evokes over 2,600 years of philosophy, history, and jurisprudence regarding the proper meaning of “reason” or “Right Reason” or “legal reasoning” or “Natural Law” and similar terms of art); and, most crucial among the unenumerated constitutional standards implied by Ordered Liberty, we in our time should endeavor to understand why the Founders in their time concluded (a) that their phrase “Due Process of Law” meant what “the Law of the Land” (in Latin) meant in the 1215 Magna Carta, also called the Great Charter of the Liberties of England, and (b) that this “Law of the Land” necessarily “constitutionalized” ancient and evolving jus commune (“Natural Law”) prohibitions against absurd or unjust or disproportional laws, or law-making, or legal interpretations and applications, etc.
The pioneers of this thousand-year synthesis made an art form of believing (by Faith) and concluding (by Reason) that God can do anything except work an absurdity.
The story of Job still gives us pause. Could the Mythos help us come to terms?
The wilderness cries lonely for a coherent voice. Who will answer?
Magna Carta, the Great Charter — “idea made law” — “Word made Flesh” — “is” a metaphrand pointing to a “weigh station” along a road, already over 150 years in the making, which traces a remarkable philosophical, theological, and jurisprudential synthesis.
This synthesis had started around 1080 in Bologna with so-called “Justinian rediscovery”; its purpose was to establish the Kingdom of God on Earth based on Christian law; put differently, its purpose was to establish that the Pope was the ultimate authority over kings and princes throughout Western Christendom.
Justinian (c. 482-565) had been a Christian emperor and law-giver. Hence, his vast collection of law was “Christian law”; that was that. But in “the West” Justinian’s law was not “operative law”; in some regions, it suffused folk-law; in others, it was of “historical interest” only. And there were no historians.
Except for Irnerius, who was hired by Pope Gregory VIII to be the first teacher at the new University of Bologna.
The method used by the Church to impart to its priesthood the intricacies of penitential case-law (casuistry) was repurposed to synthesize Justinian law with the larger body of Church law, medieval knowledge, and the so-called Patristic Tradition. This tradition revered Aristotle, but did not in fact have much of Aristotle to go on; indeed, what “the Church Fathers” had of Aristotle’s “teachings” was utterly distorted.
Then, with rediscovery in the air, so-called “Aristotelian rediscovery” got started. By 1117, at least one man, Abelard, and one woman, Héloïse, had studied writings (probably originating in Muslim Spain) that gave them the capacity to guess that “the West” knew far less of Aristotle, and of everything else worthy of inquiry, than was … literally … imaginable. Except, perhaps, to Abelard and Héloïse!
Some day historians might conclude that the key to understanding Renaissance Man is one extraordinary medieval woman. In any event, if I were to sum up the entirety of “Aristotle’s teaching” at that critical historical juncture, it was this: The map is not the territory.
Abelard’s teacher Roscelin had been convicted of heresy for hazarding this very assertion, namely, Nominalism: The name is not the same as the thing or relationship named.
As a corollary, universals are the names humans give to generalizations based on systematic observation of particulars … almost Bacon’s scientific method.
Actually, Aristotle advocated “working up” from particulars (induction) and “working down” from generalizations (deduction); he “did” induction and deduction “in parallel” (as we say), as a sort of cybernetic or self-revelatory dance.
His focus was on organizing and categorizing “what was known” as a framework for learning more.
The Papal Revolution’s eleventh-century attempts to forge a synthesis of “civil law” with “holy law” led to a larger synthesis, or attempted synthesis, which we know retrospectively as Scholasticism.
The more we probe, the clearer it seems that the so-called Renaissance originated in rejection of Scholasticism. The reason was that Scholasticism depended on a kind of “reasoning” which presumed the validity of a pre-ordained conclusion.
We are all familiar with this kind of thinking, of course. It is not based on genuine Freedom of Inquiry. It parrots a “Party Line” of prescribed dogma, and the better you can articulate this dogma the more “acceptable” you are.
Scholasticism was “scholarly” without allowing for true Freedom of Inquiry … wherever it might lead. Yet Scholasticism highlighted a fundamental problem:
Are all pre-ordained conclusions worthless? Is there a hierarchy of the sources of knowledge? Is faith an acceptable source of knowledge?
If so, what pre-ordained conclusions shall we adopt as our starting premise?
What about the premise: God can do anything except work an absurdity?
The modern democratic state evolved from that medieval synthesis of Athens, Jerusalem, and Rome. Islamic and Jewish scholars in Spain and elsewhere played a crucial role, building upon the works of others in far-flung civilizations. The result transcends all nationalities, philosophies, and theologies. The result is Ordered Liberty, a verb.
As an unintended consequence, this increasingly transcendent Synthesis “invented” what became the jus commune or “common law” (including international law) of Western Europe. England’s evolving Common Law was deeply rooted in this European jus commune, although many common-law and civil-law lawyers are ignorant of that relationship.
This jus commune was taught in all the Western universities. It was called “Natural Law” and was based on “Right Reason” … including a perennial balancing or triangulation among “discordant canons” of individual, group, and societal conduct. This would give rise to a hierarchy of sources of law, the first of which is that there is (or ought to be) a hierarchy of sources of law. For example, higher than “written constitutional law” are the rules by which constitutions should be adopted, interpreted, and applied. See Rule of Law.
That great Synthesis of Athens, Rome, and Jerusalem is, I submit, the substrate of modern synergetics and cybernetics. Constitutional democracy is not a “finished” Idea. It is still evolving.
It dies if Freedom of Inquiry dies. A victory by Hitler would have “ordained” a new Dark Ages — a Closed Society from which, perhaps, humankind could never have liberated itself. The same must be said of Stalin, Mao, and … let’s not go down this road!
We must never ever get that close again. We have learned our lesson!
Ordered Liberty under the Rule of Law should not be taken for granted. Every successive generation must be prepared to fight in defense of Open Society values.
Absurd, irrational, unjust, disproportionate conduct “under color of law” has never been compatible with the U.S. Constitution, which is a creature of, and must abide by, the Rule of Law, properly understood.
The Founders’ law teacher, William Blackstone (1723-80), whose Commentaries on the Laws of England composed the most authoritative statement of English Common Law during the American Revolution (and significantly beyond), grounded America’s “Law of the Land” in Magna Carta — and its restatements — as interpreted and applied over many centuries of case-by-case development and evolution.
Liberty and the Rule of Law “came to us” in coevolving form.
And that coevolution was itself grounded in Western Christendom’s great Synthesis of the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the Judeo-Christian-Muslim “invention” of a single Humanity “under” a single Divinity and, hence, “under” what came to be called “Natural Law”: fundamental rationality and fairness.
Again, that great Synthesis started in Bologna around 1080.
Fast-forward a moment to the Age of Shakespeare:
The first modern oracle of the Rule of Law, a contemporary of Shakespeare, was Chief Justice Edward Coke, the jurisprudential rival (as mentioned) of Novum Organum’s Francis Bacon. Coke sought to establish the constitutional principle that kings and parliaments are beholden to and governed by lex terrae — “the Law of the Land” — something they cannot themselves alter in any significant way.
Bacon, in contrast, asserted that the “maker” of law, the monarch, in this case King James I of England (publisher of the King James Bible), was sovereign, and therefore “above” the law. Bacon supported the Royal Prerogative, something akin to the modern idea that the Party of Power is always right … as in autocracies such as contemporary Russia, China, North Korea, and Zimbabwe.
Over a long life focused on establishing law, justice, and accountable governance, Coke concluded that under the Law of the Land all are equally sovereign — and will, over time, rid themselves of outworn feudal prerogatives that are insupportable by the Rule of Law as “produced” through fidelity to the Rule of Reason. Again, this “Rule of Reason” involves a special kind of “reasoning”; upon due reflection, I call it cybernetic reasoning. Constitutive reasoning.
Coke called it no such thing, of course. He called it the Law of the Land. It was the Common Law, grounded in Equity and, hence (as we shall see), in Natural Law. Natural Reason. Case-by-case reasoning. Principled adjudication.
To the revolutionary Coke, this Rule of Law was self-evidently evolving. Again, the word had not yet been invented.
Such evolution was implicit. It went without saying. It has inspired a vast literature, nonetheless.
Shakespeare, Coke, Bacon, James, the fresh dew of foggy mornings ….
That dew is still fresh. Genius is not dead. Questions abide.
The original 1215 Latin term lex terrae (or legem terrae when used as the object of a sentence), is holy ground.
Coke asserted that the Great Charter’s 1354 English-language restatement during the reign of King Edward III reconfirmed the pre-existing command that no person shall be deprived of life, liberty, property, or any privileges, immunities, and entitlements that are fundamentals of personhood, “without Due Process of Law” — that is, in violation of “the Law of the Land” — whose legal essence requires rationality and fairness in the making and administration of all law, including everything done “under color of law”!
Coke specified: “For the true sense and exposition of these words, see [King Edward’s 1354 translation] where the words, by the law of the Land, are rendered, without due process of Law ….” Quotation marks had not yet been invented, apparently.
That English translation of the original Latin text of Articles 39 and 40 commands and promises:
Article 39: No Freeman is to be taken or imprisoned or disseised [deprived] of his Freehold, or Liberties, or Free Customs, or outlawed or exiled or in any way ruined; nor will we go against such a man or send against him save by lawful judgment of his Peers or by the Law of the Land.
Article 40: To no one will we sell or deny or delay Right or Justice.”
Read that again.
This almost-800-year-old declaration of “the Law of the Land” is still operative constitutional law in the United Kingdom. And its essence has always been at the heart of U.S. constitutional law. That essence predated the 1789 Constitution, the 1787 Northwest Ordinance, the 1781 Articles of Confederation, and the 1776 Declaration of Independence.
The operative meaning here is that no person “is to be” (or “shall be”) denied fundamental rights “save by” (except by, or in absence of) the Law of the Land, which is “rendered” (translated) by the transcendent English phrase Due Process of Law.
Such “Due Process of Law” goes way beyond mere procedure!
Is the right to a speedy trial procedural or substantive? Is distinguishing “substance” from “procedure” procedural or substantive? Is the right to a republican form of government procedural or substantive? Does Due Process of Law require statutes enacted by truly representative legislatures? Does Due Process of Law require campaign-finance restrictions?
The substantive and procedural elements of Due Process of Law are inextricably entwined. Indeed, “Due Process of Law” stands for a vast and evolving edifice of “Natural Law” — including “Natural Rights” — grounded in the above-referenced Eleventh Century synthesis which, as we shall see, gave rise to the Western Legal Tradition. The modern term “Rule of Law” can only be understood within the context of that ancient tradition. It forbids irrational and unjust laws and practices. Indeed, it affirmatively requires rationality and fairness. We “coevolve” such rationality and fairness. It “coevolves” us.
Constitutional democracy is still young, unfinished.
Make your argument!
As already alluded to, the term “property” in the constitutional phrase “No person shall be … deprived of life, liberty, or property, without due process of law” should be given broadest meaning. Here is James Madison:
“In its larger and juster meaning, [property] embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. . . . [A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may equally be said to have property in his rights.” James Madison, “Property,” National Gazette, March 29, 1792; reprinted in The Papers of James Madison, vol. 14, 6 April 1791-16 March 1793; ed. Robert A. Rutland et al. Charlottesville: University Press of Virginia (1983).
A. V. Dicey, the great English constitutional scholar, famously argued in his book Law of the Constitution (8th ed., 1915) that “the law of the constitution … [is] not the source but the consequence of the rights of individuals.” (p. 199)
In point of fact, I think Ordered Liberty and the Rule of Law are demonstrably co-causal — but that only reinforces the conclusion that Dicey’s “rights of individuals” extend beyond mere procedural rights, or should. These rights even include the “it goes without saying” right to a republican form of government … or should. In England, that choice is up to the sovereign, which presumably (in this day and age) is “the people”!
Interestingly, and most significantly, Article 4, Section 4 of the U.S. Constitution commands: “The United States [namely, the federal power] shall guarantee to every State of this Union a Republican Form of Government.” The fifty States (and their populations) have no choice in this matter. Each must constitute and live within the bounds of “a republican form of government” which, again, is essentially what the phrases “democratic republic” and “constitutional democracy” have evolved to mean.
Fortunately, however, our most elevated definitions of law-based, representative governance already incline the arc of our moral universe towards truth and justice, Logos and Nomos, thereby “smarting up” rather than “dumbing down” what Article 4, Section 4 requires of the United States.
Although the Constitution expressly guarantees “a republican form of government” to each State, surely it goes without saying that the Constitution requires the U.S. itself to be a paragon and paradigm of “true” Ordered Liberty — that is, a “true” democratic republic and/or “true” constitutional democracy.
This topic is ripe for development. Louisiana in the 1930s was definitely not “a republican form of government”; it was a criminal enterprise. It was not a Government under Law.
Huey Long was unconstitutional. “The Kingfish” was a populist dictator. Was his 1935 assassination justified?
See Robert Penn Warren, All the King’s Men (1946), for a portrayal of populist tyranny in America.
Whereas the post-colonial United States rejected the British kingdom and aristocracy, etc., it adopted — “it goes without saying” — what England already understood to govern kings and all:
The transcendent Idea that the “Law of the Land” or lex terrae “is” (Sanskrit asme, “breathes”) the Rule of Law based on the Rule of Reason, which “comes to us” in evolving form and must be passed on by us with due regard.
Liberty under Law must evolve in healthy, reasonable, non-absurd, history-enlightened emanations. Logic, science, and cybernetics must compose a much-of-a-muchness that “is” — breathes — a “constitutional value” of the highest order: Further evidence-based deliberations sustaining the Conversation of Democracy.
However, again, the heart has its reasons that reason cannot know. Is this also a constitutional “value”?
Should empathy become a constitutional value?
Isn’t it already? Let us reason together.
What instructs the Golden Rule?
We know more than we can tell, yet less than we can digest. Our encyclopedias should now be organized not alphabetically but … as a sort of “hologram of implications” that we can walk or fly around, as it were, seeing each part “shape-shifted” by what it touches, by its contexts. That is a metaphor, of course; another that comes to mind is herding cats. Orwell warned against shape-shifting words; yet their relationship to shape-shifting realities is as much an invitation as a warning: How else shall we face the future?
In this era of nanotechnology, quantum thermodynamics, neuromorphic computing, genetic engineering, advanced materials science, derivative financial “instruments” warp-speeding into “global markets” offering weapons of mass destruction and awakenings of mass enlightenment — albeit with “truthers” of every stripe battling “debunkers” of every puzzlement — humankind must foster a synergetic and cybernetic integration of philosophy, science, ethics, economics, and law, etc., whose resulting “blueprints” (biological “green prints”?, cultural “rainbow prints”?) are capable of generating the meta-instructions for building — constituting — a house of many global mansions (metaphors fail), which is more a verb than a thing.
It is an enterprise — or, more plausibly, a beta-test metaphrand of an enterprise — integrating ontology, epistemology, and teleology in service of reasoned choice, ethical behavior, intelligence-affirming impeccability. This enterprise is utterly dependent on Freedom of Inquiry. It inquires: How can we and our successors succeed? Honoring two modern pioneers of this trans-disciplinary enterprise, professors Lon L. Fuller and Harold J. Berman, I shall call it the Enterprise of Integrative Jurisprudence.
Fuller and Berman focused on integrating three distinct “schools” of jurisprudence — Naturalism, Positivism, and Historicism — but our purpose should be to cultivate and harvest all credible knowledge and wisdom undergirding all choices, actions, and feedback-informed responses, etc., aimed at securing the survival and success of Regenerative Intelligence Still Evolving, or RISE.
There is, of course, a large and varied literature on “things trinitarian” — heuristic metaphrands, metaphiers, metaphors, sacramental constructs, and (arguably) icons and idols in which the parts of a tri-unity form an interpenetrative, integrated whole, a perichoresis. The perichoresis undergirding our understanding of RISE, however, must transcend mere jurisprudence, integrative or otherwise. Professor Berman sets the stage:
“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/l (3-30-2006).
Upon due inquiry, we find that the enterprise of integrative jurisprudence enhances our sensitivity to the supernal value not only of Freedom of Inquiry but also of its most precious “products”: empathy, and hence remorse, and hence the reciprocal alleviation of remorse … arguably integrating law with religion.
Adam Smith said that our reciprocal capacity for empathy and remorse constitutes our most distinguishing human characteristic. “Huh?” you ask, using a pre-Neanderthal “word inviting inquiry” (in cybernetic argot, a “message repair initiator”), a word that is plausibly thought to have been used at the dawning of humankind ….
Yes, I answer. It goes without saying: Inquiry reveals that empathy, remorse, freedom, and accountability, ERFA, a much-of-a-muchness, all coevolve, “constituting” any “civilization” worthy of these words. Such constitutive activity “is” (is, are, am, all from Sanskrit asme, to breathe) — and celebrates — the “unwritten constitution” of free and accountable self-government.
Significantly, Smith did not use the word “empathy”; that word was coined later; yet there is no doubt in my mind that what he was “getting at” was empathy: walking in another’ shoes, intuiting another’s sentiments, weaving the synergetics and cybernetics of distributed intelligence, and perhaps (such a lovely word!) tendering (ditto!) humanity’s heart and soul.
Central to all cybernetic or self-corrective enterprises or “learning organisms” is (breathes?) the fact that the very concept of self-governance calls into question both the “nature” and “nurture” of “self-hood” itself. What is a “me”? What is a “company” (in the U.K.) or “corporation” (in the U.S.)? What is a community or town or city or country or any other “many-as-one” … without tyranny? Can there be “good cooperation” for an evil purpose?
What are the “wise restraints” that undergird Ordered Liberty? Why is Freedom of Inquiry paramount? Can we embrace the reality that all cooperative endeavors should include a metalogue focused on finding the common good and pursuing it through democratic means that safeguard legitimate countervailing values and interests, including a citizenry’s reasonable expectations of safety and privacy?
Our world is becoming a sort of inquiring cell developing ambitions to build a self-knowing and self-governing skola or School of Life, embraced (as it were) within a metaphrandal equipoise of empathy, remorse, freedom, accountability, and all that this ERFA generates … thereby fueling RISE.
Socrates built upon the Sophists’ prescription to “know thyself” better so that you may govern yourself more wisely, in your own and the world’s “self-interest” … defined by further “conversations to be had”?
Plato, Aristotle, and those following, including Smith, carried that “credo” forward: Know thyself, because ….
Far from being unrelated to “self-interest”— see First Trinity — empathy, as Smith saw, originated in remorse caused by inadequately-constrained self-interest, including selfish “group-interest” … sins, large and small, that are arguably explainable as reflecting inadequate “cultural commitments” to self-knowledge as the foundation of self-governance and, hence, of Government under Law generally — whether individual or corporate, national or international, tacit or explicit, or further extended … over time, space, and circumstance.
Does Freedom of Inquiry encompass inquiry into “the subconscious” — whether individual or societal?
“Walking in another’s shoes” is a concept with deepest roots. It bets on the evidently-superior distributed intelligence capabilities of free individuals and institutions, properly bounded.
Empathy is also the central premise of what scholars call Theory of Mind. Look it up. I see you seeing me observing you wondering about my capacity for complexity and yours for illumination.
We recognize our mutual “kinship” as makers of the Ecology of Mind. We “be” (Sanskrit bhe, to grow) this kinship; we “make friends a garden, let it bloom”; indeed, we cultivate constitutional democracy, thereby animating an Ecology of Mind coevolving with an Ecology of Values whose highest value is (breathes) Freedom of Inquiry. Freedom to ask Huh? Freedom to say No. Without which there can be no meaningful Yes.
We inquire. It is a self-evident truth. We inquire of each other, over time and space. Within every word and phrase of the Constitution of the United States there “grows” a sort of genetic meta-code inclining humans to inquire as to its best meaning and proper application. As Obama said, humans must “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.”
Experience and logic, contextualized by virtual herds of curious cats, confirm that such “alliances of consent” require our First Consent to be “constructive” or “construed” — much as our “consent” to be jostled in a crowded market is “construed consent” — and, furthermore, that this First Consent composes a tacit agreement that each sentient adult shall accord to all others their fundamental dignity as embodiments of that highest of all values, Freedom of Inquiry.
Put differently, the Social Compact we all read about in school requires free and autonomous participants who, however, deeply know that to “think for yourself” — always a good idea — requires your responsible participation in an Ecology of Mind that, coevolving with an Ecology of Values, celebrates Meta-Ideas that “think us” as much as we “think them” (if you see what I mean).
Freedom of Inquiry, thus harnessed, must in logic and experience become our paramount value because it guarantees that each of us may freely inquire (for example) how the phrase “God is Yahweh” should be interpreted in light of plausible evidence that the seldom-pronounced tetragrammaton “YHWH” — or the “thing” it “stands” for, “Yahweh” or “Jehovah” — the Nameless? — is (breathes) less “a Being” than … “a Becoming“: a metaphrandal finger beckoning sentient humans towards further inquiry, ever-further seeking. We are seekers.
We are finders.
We are explorers, cultivators of principled living — world-shakers and world-makers. Our explorations dive to the heart of the tacit or unarticulable major premises of existence. And seemingly everything we discover in this existential quest partakes of the “turtles all the way down” meme, trope, metaphor, etc.
Indeed, this metaphor is the “relic meme” of innumerable idea-multipliers, or metaphiers. Oh, say, can you find an apt pointer, image, word, phrase, or “volume incarnate” to midwife an aborning metaphor, or formula, or proposed local-to-global constitutional arrangement, or perhaps even a future Icon like Lincoln?
Or, alas!, those mostly-nameless, too-easily-forgotten First Circle prisoners whom Solzhenitsyn celebrated and mourned, who “enjoyed” their Freedom of Inquiry because they and their fellow martyrs had nothing left to lose … as they starved to death … while quarrying granite … and discussing the interdependence of Mythos, Logos, Nomos, and hence (by whatever name) the Nomosphere.
For the time being, we shall let a turtle be the “outer raiment” of that supernal Icon. Slow and steady, finding (a gerund, a word-noun) being our path, as it were. Let us call that turtle “Huh?” — the seemingly universal human “word” for Tell Me More.
An invitation to further introductory inquiry, perhaps?
FURTHER INTRODUCTORY INQUIRY
“Some assertions are ‘pernts’ — pertinent, but not necessarily worth raising to the full dignity of points.” Prof. Clark Byce, talking with students at Harvard Law School, Autumn 1967.
We do not yet know how life started, but we can plausibly conclude that on this planet an ecology of life-stuff has over time given birth to an ecology of mind-stuff — including, increasingly, evidence-based distributed intelligence — regarding our origins, our fundamental values, and the goals we promote when upholding Freedom of Inquiry as paramount.
This Ecology of Mind started long ago among hunter-gatherers … pondering and sharing their own and their neighbors’ thoughts about … stars, planets, gods, triangles, children, dogs, birds, bees, human ingenuity, various forms of associations, competing proposals for governance, and … aha! … stories, always stories, including — in our time — increasingly-sophisticated means of accessing and processing reports of “cases and controversies” and how each was resolved, and whether such resolutions engendered unintended or unanticipated consequences — synergies, welcome or not — and what lessons or insights might be gained, generally, from cybernetic “feedback loops” designed to shed light on what works and what doesn’t. Additionally, those data banks of “case law” tell a meta-story about the necessary coevolution of questions and answers. Of course, as we shall see, that process is still in its infancy, even in modern constitutional democracies. The gap between us and Aristotle is not that wide. As noted, the ancient Cosmologists “concluded” rather than “believed” that our world is evolving.
Builders of a civilization worthy of our best capacities cannot be neutral regarding the theory of evolution because evolution — more precisely, coevolution — is the explanatory principle undergirding the Ecology of Mind, etc., without which self-correcting “higher thought” and “better civilization” would not be possible. The Idea of History calls forth the Idea of Progress.
As suggested in my summary definition of constitutional democracy, nothing that has a history can be defined except with reference to its history … and, hence, arguably, to History Writ Large.
“So true” … philosophers over the ages have nodded. Yet it is also true that not everything has a history. The eternal ratio of circumference to diameter “exists” outside of history, as do the rudiments of logic and mathematics. These rudiments were “called forth” into coevolution with human history, yet they partake of a “permanence” that humanity — and the physical universe — cannot attain.
A triangle is immortal, bridge trusses decay (even though triangles are immortal), and legislative-executive-judicial triangulations “evolve us” as we “evolve them” … into a different kind of triangulation: Which is What?
Gregory Bateson quipped, “Ask me a question and I’ll probably reply: ‘That reminds me of a story’….”
Once upon a time ….
Two and a half millenniums ago Aristotle, building on the work of his teachers and their teachers, made “historicity” part of the “grammar” of clear thought and persuasive expression.
In our time, no less than his, wisdom must be rooted in timeless logic and time-binding experience; but in our time, far more than his, we can engage in systematic observation, including continual peer-review and crowd-sourced error-detection; this arguably enhances science, jurisprudence, and a culture that celebrates plausible hypotheses plausibly advanced. Yet here be dragons!
Throughout history, meanings have shape-shifted; words have been repurposed; realities, and the phrases denoting and explaining them, have coevolved; and Jaynes’ metaphiers (“idea multipliers” and/or “idea-dividers”?) have arguably advanced the need and provided the wherewithal to both integrate and “discipline” everything that we might plausibly know and do, thereby inclining the arc of the moral universe towards truth and justice.
Our evolving understanding of the term “political economy” (an old “name” that merits a new chance) alters the very enterprise(s) that we seek, under the umbrella of that term, to understand: Economics, politics, law, science, logic, ethics, intellectual history, History Writ Large, and the synergetic and cybernetic integration of wisdom, choice, will, action, feedback, and further wisdom, etc. All these “enterprises” compose a much-of-a-muchness: the Enterprise of Integrative Jurisprudence.
It is premised on the fact of evolution.
Professor E.O. Wilson may have said it best:
“You remember Darwin’s line, ‘Endless forms most beautiful and most wonderful have been, and are being, evolved’? We see this far more than Darwin ever could. We see right down to the molecular level, how truly extraordinary life is as a phenomenon. There you have more to summon spirituality than anything provided by the late Iron Age desert kingdom scribes who wrote the Holy Bible. They created an impressive piece of literature. But they really didn’t understand the world around them or the stars above. They metaphorized them, put poetry into them — they did the best they could. But still and all, they fell far short of what humanity is capable of feeling in a sense of the sacred and of aesthetic beauty.”
“… what humanity is capable of feeling in a sense of the sacred and of aesthetic beauty.” We need Freedom of Inquiry to advance our explorations of these territories. Evolution, as such, is neither good nor bad, but Freedom of Inquiry about what constitutes “good” (for example, sustainable prosperity) or “bad” (unsustainable greed) is almost always good.
Even holy ground must be dusted.
A superb compilation of recent scholarship on the origins of constitutional democracy is Josiah Ober and Charles Hedrick, eds., Demokratia: Conversations on Democracies, Ancient and Modern (1996). One is struck by how much more seems known now than was known even recently about the origins of Nomos, isonomia, and demokratia. But one is also struck by how many points remain shrouded in linguistic and historical fog.
To be an ancient Athenian citizen was special. You were free, and equal in your freedoms with those other great men who could similarly put on armor, climb upon a horse, and gallop off to defend Athenians (Athenian citizens) from slavery. Later, smaller landholders, who could not afford a good horse but could afford a shield and spear, realized that their close-formation phalanxes were also essential to Athenian defense, and hence freedom. These “hoplites” accordingly demanded and eventually got equal status as citizens. Later, when the value of close-formation rowing on warships was proved with Persia’s defeat at sea — Persia won on land, but lost its fleet and had to abandon its effort to subjugate the Greeks — the simple artisans and shopkeepers who had mustered for such vital marine service were included among Athens’ citizens; accordingly, they too were entitled to isonomia. This word initially included what demokratia would be invented to denote: equal political participation. Such participation was a corollary of isonomia. Put differently, demokratia means nothing without isonomia. Democracy, alone, is never enough. In our own time we see, again and again, that democracy must be grounded in justice, equality under law, or it fails. It must be constitutional democracy — government subordinated to personal liberty and equal justice, governance (most broadly defined) secured by the Rule of Law.
The use that law (properly understood) currently makes of science (properly understood) is not good enough. Their mutual support in establishing the facts and proclaiming the implications of “evolutionary consciousness” will benefit both.
This consciousness is closely allied with “cybernetic consciousness” or, most generally, an appreciation of how interdependent systems (co)evolve. For example, during the “trial process” (broadly defined) the Judicial Branch must establish the relevant facts and law. This is not a simple sequential quest, however, because “finding the facts” is continuously influenced by “pernts” or points of law that might be emerging from prior fact-finding. Facts and their legal implications tend to emerge in parallel, not sequentially.
The “relevant law” emerges conversationally, as it were, with the “relevant facts” that must be brought to bear in “deconstructing” the controversy … and, ultimately, perhaps, 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 (DNA sequences, Wall Street shenanigans, etc.) are of the essence.
Accordingly, the kind of “integrative jurisprudence” we need to foster must become better integrated with the entirety of the Ecology of Mind and its dancing partner, the Ecology of Values.
Students should not study law until they have become grounded in the arts, humanities, and sciences.
We know that empathy, remorse, freedom, accountability (ERFA), and all they imply, coevolve within a larger “environment” of philosophy, theology, jurisprudence, social psychology, the sciences generally, and what Smith called “political economy” — the wellspring of integrative jurisprudence.
That environment, we know, includes tacit, self-evident, too-obvious-to-mention truths, including the supernal acknowledgement:
Nothing worth calling “human” can exist, let alone blossom, without celebrating our highest value, Freedom of Inquiry, including inquiry with others … which implies freedom of association and expression, etc.
Freedom to become embraced within a new kind of “bondage”: subordination to the Rule of Law based on the Rule of Reason. What Abelard called Right Reason.
This, in essence, is the Social Compact. It “bounds” us all.
Or should. Does it bound, or limit, Putin?
We shall see. Time will tell.
One of the first courses (often the first) studied in law schools throughout the Soviet Union, and still studied by entering students in post-Soviet law schools, is the famous — no, the infamous — Theory of State and Law (TSL).
The TSL focused, and still focuses, on “interior” and “exterior” functions of governance. The interior functions include the state budget, focused on enhancing the economic development of the country; the reduction of unemployment; the social protection of citizens; the improvement of public health and public infrastructures (transportation, water, sewage, electricity, gas, etc.); and law enforcement, especially the “struggle against infringement of laws” (but without discussion of whether the government is itself governed by laws). The exterior functions include “maintaining mutually beneficial relations with foreign countries” and “defending the country against aggression.”
Students are assured that “every country” understands and adopts the fundamental goals and institutions of law and government set forth in the TSL. Not surprisingly, during Soviet times the TSL did not give a whiff of attention to liberty, equality under law, and the need for an independent judicial branch to determine facts and apply law without fear or favor; the TSL did not mention the necessity for free and fair elections; and it was bereft of the history of constitutional democracy and the fundamentals of the Rule of Law.
And what of today? What is taught as the ruling paradigm governing “state and law” more than two decades after the Soviet Union collapsed?
Apparently the leading text thereon is still Valentin L. Khropaniuk, Teoriia gosudarstva i prava (1997). It is essentially a recitation of the doctrines taught three decades ago during the Brezhnev era, a slight improvement over those taught during Stalinist times but still bereft of any awareness of the problem — the many problems, starting with the questions: What of liberty?
Where, in the Russian Federation’s Theory of State and Law, is Ordered Liberty?
What of the coevolved ideas and institutions of modern constitutional democracies? Where is a reasoned explanation of why Putin’s Party of Power is such a terrible blight and blot on the face of this Earth?
As I write these words, in May 2014, I must confess to great fear that Putin genuinely “believes” that his training under the TSL was sound. I’ve had too many students like that. Indeed, I’ve talked with numerous scholars who, steeped in TSL “mentality” (a powerful word in its Russian rendering), believe — for it is truly a matter of religion — that the TSL is safe and sound.
It is not safe and sound. It is dangerous and dysfunctional.
Russia needs a truly “revolutionary” Revolution.
It desperately needs Rule of Law.
Not Putin’s old TSL.
As noted, I am struck by how much more seems known now than was known even recently about the origins of Nomos, isonomia, and demokratia. But I am also struck by how many points remain shrouded in linguistic and historical fog. Specifically, it has been my experience that English-language scholarship focused on constitutional democracy does not translate easily into Russian. I ascribe this to the fact that Russian and Byzantine law and legal institutions originated in “Justinian Law” that did not partake of the great synthesis, starting in Bologna around 1080, of Athens, Rome, and Jerusalem, which gave birth to the post-Justinian Western Legal Tradition.
But the matter is complicated, as the famous German legal science that capitulated to Hitler showed, and still shows. The current Russian Theory of State and Law is little different from the earlier Prussian formulation.
Was Prussia part of “the West” in 1914?
Tacit, unarticulated, unarticulable “truths” of Ordered Liberty compose “customs and usages” that reflect humanity’s subconscious quest to plumb the depths of (words fail) Sin, Redemption, Forgiveness, Salvation. No integrative jurisprudence would suffice if it did not integrate law and religion as methodically as it integrated science and cybernetics.
So-called “fundamentalisms” of every kind must be transcended. We need a global “reformation” of theology, a revolution premised on understanding that the name “God” is an invitation to further inquiry. The map is not the territory.
We hope through despair.
In discussions during the end of his teaching career, Lon Fuller sometimes used the phrase “unarticulated and even unarticulable major premises” undergirding the Rule of Law. I recall an after-class discussion in which he elaborated on his use of this phrase. That discussion referenced Korzybski’s discussion of “maps” and “territories” … and it was clear to me that Fuller used the term “unarticulable” advisedly. He was, after all, among the greatest teachers of contracts law during 1938-72; unarticulable “mutual undertakings” such as “good faith” compose a significant portion of contract law, where in many cases “acceptance” is communicated not by word but deed. Contract law has been a major metaphier for constitutional law. Fuller was interested in the subject of “good faith” in law generally. And that “faith” was based on humankind’s demonstrated capacity to learn and reason our way towards a fairer, more considerate future.
The words, phrases, blueprints, and tacit understandings composing the U.S. Constitution are embedded in a history of case-by-case interpretations defining (even when not mentioning) “terms of art” such as Natural Law — the moral and intellectual wellspring of both substantive and procedural Due Process of Law — which are terms that receive their most persuasive meaning from a jurisprudence that blends all lessons learned (often relearned, refined, modified, even rejected, etc.) during the course of our evolving “living-and-learning” civilization. Homo sapiens sapiens, the collective noun we give our kind, has lived and learned; but we have to get better at it.
We have to get better at it. A worthy constitutional democracy is a learning organism. RISE is mere shorthand for a much-of-a-muchness that humankind will discover, indeed invent, as we proceed. RISE implies a sort of long-term “controlled experiment” that we are conducting upon ourselves … aimed at determining whether the evolution of intelligence on this planet is evolutionarily viable. It might not be.
But let’s give it our best “law-school try”! The legal profession should be inextricably woven into every quintessence of fair and rational governance. Our world cannot survive or prosper if lawyers pursue the “law business” in ways that defile the Rule of Law.
The life of the law is experience, not logic. But that experience must be “processed” logically. Some find it logically discomfiting that the transcendent Ideas that compose “topics” of this discussion — Ordered Liberty, Rule of Law, Rule of Reason, and Due Process of Law, etc. — are mutually-defining. Coevolving. How can something “be” something — anything! — if it is “continuously disappearing” into an environment it participates in changing, like Bateson’s cybernetic chameleon inside a mirrored box?
As discussed in Framustans, perhaps a better formulation of cybernetic challenges focuses not on “goodness seeking” but, rather, on avoiding that which causes needless suffering, etc. We do not march confidently into the future, bugles announcing! No, mostly we “back in” unceremoniously while “backing away” from — indeed, fending off — what we know is worse.
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 … .”
The law is a blueprint. It is about something else — a territory, the evolving global house. And its most fundamental rules govern how this blueprint should be constructed, organized, interpreted, and applied. Again, without Freedom of Inquiry, this whole enterprise is rendered absurd.
The fact that the sources of law must be hierarchicalized is central to how all law should be made, interpreted, and implemented. This hierarchy grows “naturally” from that Rule of Reason which animates the Rule of Law.
A good constitutional horse should be harnessed in front of the legislative cart prior to loading decrees, edicts, regulations, and the machinery of administration. But the “genetic code” by which good horses are made deserves paramount consideration; in essence, that “code” of good constitutional law is Freedom of Inquiry — its presence or absence governing the viability and legitimacy of the resulting product. Process and substance are inextricably tied; how you get there will determine where you will arrive.
As any good biologist knows, genetic codes are less “things” than evolving activities, less nouns than verbs.
So are constitutions.
The activity of thinking about, debating, and adopting a constitution is, arguably, as important as the resulting document.
Highest in the hierarchy of law are those standards by which the adequacy of any constitution — including the methods by which it was adopted and has been interpreted, applied, tested, and refined — must be judged.
These standards focus on the central question: What is a constitution?
Here is a thought experiment. We have constructed a box, with an opening to let in pigeons. Outside this opening is a black button, and inside are several different-colored buttons. We have designed this experiment as follows: If a pigeon enters the box and pecks the green button, a two-day supply of food pellets will enter the food trough, but thereafter that pigeon will get no food for one week; if a pigeon pecks any other button inside the box, little or no food will reward it. However, if a pigeon, before entering the box, pecks the black button outside, then pecking any color inside will reward it with a nice little meal — unless it is in the seven-day punishment period for having pecked the green button without first pecking the black button. Question: Will pigeons learn the value of pecking the black button before entering? Will they thus “limit” themselves by a hierarchy of rules — thereby improving their lives?
This thought experiment was suggested by Professor Lawrence H. Tribe. It helps to focus our attention on a key aspect of constitutional law: self-empowerment through self-limitation.
As a good constitution empowers and limits all legislation, etc., so too a good constitution must itself be empowered with limits.
Empowered with limits? Yes. Did you know that you have the right to be sued? And to lose such suits?
Because, if you cannot lose, nobody will do business with you.
If you cannot lose, you cannot win.
When we press that metaphrand-rich “black button” securing Ordered Liberty, we cast our lot with the Rule of Law based on the Rule of Reason — reasoning grounded in logic and disciplined by experience, by observation, by experimentation, and … by systematically-cultivated, stoically-harvested feedback, self-knowledge, self-correction.
We press that button and then step through a portal into a self-referential “conversation” about what we have just done, or are doing, namely, self-government.
This Conversation of Democracy is a metalogue regarding the metaphrand constitutional democracy. It seeks to bring alive the fundamentals of participatory coevolution, participatory co-creation.
This Conversation of Democracy must continuously inquire about its own health, broadly defined, thereby earning special respect for that Freedom of Inquiry which elevates the Nature and Nurture of republican democracies or democratic republics. The State of the Nation is not “well” when too many fight too vehemently over whether “democratic republics” should be distinguished from “republican democracies” … or whether the “privileges and immunities” guaranteed in the U.S. Constitution should include “the right to privacy” among consenting adults. The map is not the territory, and “priv” and “inq” are mere pointers towards the next best … quiz.
Freedom of Inquiry is our highest value because, without it, no values — not even the Examined Life — can form and grow and experiment and flourish, yet also be pruned and disciplined “in the public interest” … pursuant to compelling countervailing values.
Freedom of Inquiry must itself be limited by responsibility, that is, bounded by reason grounded in logic and disciplined by time-binding observation.
Freedom of Inquiry cannot work an absurdity.
It goes without saying that Freedom of Inquiry implies freedom of association with other seekers; and true freedom of association implies freedom of expression, assembly, publication, and … where does it lead?
In far too many places and contexts, including contemporary Russia and China, constitutionally-guaranteed “freedom of association” is interpreted merely as freedom to form associations (clubs, advocacy organizations, NGOs, corporations, etc.); indeed, their constitutions give with one hand what they take with the other. They guarantee “freedom of association” which, however, they ordain can be “restricted by law”; and, too often, such “law” impairs the fundamental, self-evident, still-evolving rights and responsibilities of association, as such — the right to “be” (bhe) and “grow” with others, to gather and associate with others, to learn from each other, to build an Ecology of Mind limited only by … ah, let us reason together!
Freedom of Inquiry is only secured when “self-limited” by other legitimate rights, including reasonable expectations of privacy. The rules of engagement are complex and evolving. So-called “social media” are tools that can be used for good or evil. Inquiring of the Cloud, these media will presumably master the art of selecting worthy flowers from among the commonplace garbage.
From cradle to grave, humans are nothing without other humans; without friendship; without love. Our “association” in “society” is like breath itself, a right and a necessity that is (or should be) self-evident, too basic to have to be spelled out or “enumerated” in any constitutional text.
Natural Rights are “natural” because they are nurtured by inquisitive human nature.
The enterprise of integrative jurisprudence is a tool-making tool. It is self-referential, necessarily altering what it seeks to comprehend. Accordingly, it is tentative, always unfinished.
Much as an economy is altered by our understanding (or, alas, misunderstanding) of economic and other relationships, so also a constitutional compact — indeed, all law that is worthy of the name — coevolves with the logic, science, technology, economic development, and cultural surround which, together, call this compact into existence.
Yet let us be prudently repetitive:
Much of the “stuff” that binds and bounds a well-functioning global civilization is tacit, unarticulated, even unarticulable.
This “unarticulable stuff” nurtures a shifting alliance of meme-impounding forms, norms, and know-how. The word “impounding” is here used to conjure beavers building dams and thereby impounding water … and thereby creating new habitats.
When beavers alter physical habitats, this is often not so good. Near my home, septic systems are backing up.
When humans change mental or cultural habitats, it is always worth asking: Is this good?
Memes surround and envelop us as water envelopes beavers.
Meme-impoundment is a deepening subject.
Let us swim upriver ….
When humankind ordains that no person shall be deprived of life, liberty, property, or other fundamental rights, privileges, or immunities, etc., without Due Process of Law — that is, without benefit of fundamental rationality and fairness — then in the same breath we also ordain that “rationality” and “fairness” are neither self-defining nor self-refining; the same goes for “property” and “fundamental”; remember, some “property” originated in theft, and some now-condemned practices were once deemed “fundamental” — indeed, sacred — such as the Founders’ prohibition against defendants testifying in their own behalf.
The rationale was that defendants always perjure themselves, which leads to eternal damnation of ones soul, whereas the worst a wrongful guilty verdict can lead to is mere bodily death … with the opportunity (in the Hereafter) of redemption and resurrection. That seemed a good enough reason at the time.
Now it strikes us as fundamentally wrong and unfair, indeed absurd, rather like the “peculiar institution” (not named) which Thomas Jefferson’s generation of constitution-makers knew as slavery.
And the meme I see us impounding here is benign neglect of ancient logical inconsistencies and rapacious venalities that greased or graced the way towards a better tomorrow.
The original United States “had” slavery, the Unmentionable Original Sin.
Then, after Lincoln, the U.S. “had” a Rebirth of Freedom.
A “resurrection” worthy of fields of lilies.
Our diversity as our glory.
We must descend further into the use and misuse of knowledge that is tacit, unarticulated, sometimes unarticulable.
Yes, know-how is mostly taught through showing, not explaining. On the other hand, much know-how has been shown over time to be dysfunctional; knowing how to treat a slave, or how to devalue the opinions of all women, suffers when such “knowledge” needs to be explained.
Unexamined truths are not worth having. This is also true of unexamined tacit knowledge. Augustine, Luther, gurus galore, embodied know-how premised on their faith that “this world” is fundamentally and irredeemably evil; it is “of Mammon”; whereas the “other world” — the “Kingdom of God” — ought to preoccupy us day and night. This outworn dualism between a wholly evil “this world” and a pie-in-the-sky “other world” is a main reason why “this world” is so shot through with problems.
Faith seems to be what we “do” when we can’t or won’t sort among and explain subtle distinctions … and then choose the better course rather than obsess at our inability to inhabit and embody perfection. For example, our fealty to Augustine’s “Kingdom of God” keeps us alienated from what ought to be obvious: the “good enough” is not all that bad, and could get much better if only humans stopped trying to explain why God “sends us” occasional hurricanes and pestilences, and then … hmmm … sends us a somehow-avoidable “death”?!
Life presents us with many intractable problems — double binds, Hobson’s choices. Damned if we do, damned if we don’t. Consider all the arguments for and against helping Syria throw off the tyranny of a dictator who is prepared to destroy his country to save his “presidency” (so-called). These are not mere double-binds or trilemmas or multi-horned monsters in need of taming and training; they are, I submit, powerful inducement to reconceptualize the human condition. Aggressive attacks are illegal almost everywhere, embodied (for example) in the jurisprudence of the Nuremburg and Tokyo war trials. Is it possible to treat each intractable Gordian Knot as … just another legal dispute? I think our world is moving in that direction. Government under law is in its infancy. The Hague stands ready to prosecute warmongers.
Going to war to expand ones territory is now a crime against humanity. Going to war to “defend” those whom ones own provocateurs are stirring up and even killing is not only a crime, it is … hubris, gross obscenity beyond words. International law has yet to confront it.
Putin has committed it.
The words and phrases of legal discourse are defined and refined not only by many thousands of specific judicial decisions and administrative determinations, etc., but also by millions of choices and actions that cumulatively instruct “distributed” meaning, choice, action, review, reconsideration, and further meaning, etc., thereby inclining the conduct of individuals and societies towards avoiding conflicts that might otherwise require judicial or quasi-judicial resolution. Or even war. Such tacit guidance bends civilization towards justice as a trim-tab pulls upon the rudder of the Ship of State.
But whose hand shall hold the tiller? Towards what goal shall we guide this vessel? And, always a recurring question: If the right and the good reside in “shifting alliances of consent” that compose the res publica, the “public thing” we are constructing, then who shall determine what has been consented to?
And, always, since time immemorial: Who, or what, shall watch the watchman?
Law, including especially constitutional law, is an art that honors logic and science by transcending them with cybernetics, self-organization, deliberative co-creation. It focuses on shaping evolving wisdoms into practical consequences whose results are monitored and fed back to inform further wisdom. It is, as I have emphasized, a cybernetic enterprise — cultivating and harvesting feedback, self-knowledge, self-correction.
This is best pondered in light of the important fact (already alluded to) that “government” and “cybernetics” share the same ancient Greek root, originating in the word denoting the art of the navigator-helmsman (kybernetikes) who must integrate knowledge of the changeless (“stars”), the naturally changing (“winds and waves”), and the humanly changeable. That art, said Socrates, who proposed this extended metaphor, controls the angle of the rudder and the trim of the sail. More crucially, as every sailor knows, rudders and sails must be in “empathy” — a sort of cybernetic dance. Altering either affects the behavior of both. Socrates probably saw this, and Aristotle definitely did.
Most crucially, the Muslim-Jewish-Christian “rediscovery” of Aristotle — who had been the earliest systematic explorer of the map-territory distinction and of how to think and communicate effectively — provides the key to appreciating the origins of the Western Legal Tradition, starting with the Medieval synthesis of the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the ever-evolving understanding that a single Divinity (however defined) implies a single Humanity (still being refined).
True, before Aristotle, the Athenian law-giver Solon (c. 638-558 B.C.) had deduced that equality of liberty implies equality of limitations on liberty, and hence equality under the law, and hence equality in the making of law, but these powerful insights and ideals were repudiated during the Roman Empire; indeed, equality under “God” and “Law” was antithetical to Justinian law, in which all rights and obligations varied depending on a “classification” of affected parties: aristocrat or plebeian, slave or free, male or female, etc. Furthermore, Justinian ordained that, as a matter of logic, the emperor — the “law-giver” — is not subject to his own … or any? … law.
The ideal of equality “under law” was revived, starting sixteen centuries after Solon, as an unintended consequence of the so-called Papal Revolution. As noted, this revival probably commenced at a law museum that gave birth to a law school that evolved into the “Universitat” of Bologna, an incorporation (many as one) of law students. Conceived by Hildebrand and Mathilda around 1072, before Hildebrand became Pope Gregory VII (he had refused the papacy twice in earlier times), this law school was devoted to “Justinian rediscovery” as a means of (in effect) creating the Kingdom of God on Earth … based on Christian law. Justinian was revered as a great Christian emperor and law-giver, but this “ancient law” was no longer operative in “the West” — as it came to be called after “Western Christendom” and “Eastern Christendom” divorced in 1054.
This new law school became a major driver of “Aristotelian rediscovery”; that, in turn, became a major driver of what has come to be called Scholasticism, culminating in Thomas Aquinas’ massive summaries and attempted syntheses of theology and philosophy. But, as we shall see, the “rediscovery” of Justinian law, and its study and application in light of Aristotelian philosophy, resulted in the eventual toppling of Justinian’s premise that law derives from monarchs who are themselves “above” the law.
One might argue that “rediscovery was in the Western air” largely due to the great let-down following the Second Millennium’s arrival unaccompanied by universal rejoicing. The West had a kind of mental or emotional breakdown, followed by a breakthrough. That breakthrough, starting with what Harold Berman calls the Papal Revolution, was crucial to development of the Western Legal Tradition.
Not coincidentally, that law school was the first universitat. The word “university” relates to the “universal citizenship” of students while in Bologna or traveling to and from; this unique status protected them from some of the hazards of foreign travel and residence. All these students were, of course, clerics: professional “mediators” between God and Man. Priests. Soon they would become “mediators” between humanity and the Rule of Law, as it would become.
The modern Idea of constitutional democracy evolved from that medieval synthesis of Athens, Jerusalem, and Rome. Islamic and Jewish scholars in Spain and elsewhere played a crucial role, building upon the works of others in far-flung civilizations. The result transcends all nationalities, philosophies, and theologies. It is a fascinating story, told well by Prof. Harold J. Berman in his book, Law and Revolution — The Formation of the Western Legal Tradition (1983).
(This book has been published in German translation by Suhrkamp Verlag, 1991; in Chinese translation by China Encyclopedia Publishers, 1993; in Italian translation by Il Mulino, 1994; in Russian translation by Moscow University Press, with a new introduction, “An Introduction for the Russian Reader,” 1994; in Polish translation by PWN, Polish Scientific Publishers, 1996; in Spanish translation by Fondo de Cultura Economica, 1996; and others.)
See also, Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition (2003).
Now a new global civilization — based on Due Process of Law as that concept has evolved since Magna Carta — is struggling towards self-consciousness, self-governance, self-transformation.
But how do Russia and the countries of the former Soviet Union fit into this picture? Not easily.
Roman law was not a “system” of law but a collection of rules of pragmatic administration. It recognized many kinds of contracts, for example, including contracts to buy a house, a horse, a wife, a slave, whether involving an agreement between two aristocrats, an aristocrat and a commoner, or a citizen and a non-citizen. But Roman lawyers showed little if any interest in developing the “idea” of a contract, as such, let alone the “concept” of a legal system embracing all humans and, indeed, governing horses and houses and lands and countries. And emperors.
Only in Western Christendom, partly because of its backwardness, did the “need” for a synthesis of reason, morality, justice, mercy, and pragmatism arise. And only in the battles among secular and ecclesiastical princes of Western Europe did the need for a legal system based on that synthesis emerge … until the modern age, of course, when all countries have been forced to pay heed to a world made “modern” by that very synthesis.
Russia obtained its law primarily from Byzantium, in “pure” form, “unadulterated” by the scholars of Bologna. In 1054, that “pure” Justinian law had been “operative law” throughout “the East” — Byzantium — for half a millennium. But, again, in “the West” that law was essentially inoperative … sort of ancient folk-law.
As we know, Bologna, the site of an ancient museum containing that same “pure” Justinian law, became the locus of Hildebrand’s Papal Revolution.
The Roman Catholic (i.e., Western) Church turned this museum into a law school. Within half a century of its founding, this first “university” (for that is where this use of that word originated) apparently had over 10,000 graduates. Their purpose was to revive Roman law — that is, Christian law (it follows logically, right?) — the foundation of Gregory’s response to the failure of the Return.
But events took on a life of their own. In due course, these students gave birth to something wholly new, what we now call the Western Legal Tradition. Soon, graduates of Bologna and (eventually) other law schools were as apt to go into the service of secular princes as ecclesiastical princes. One of several results was utterly new: The beginnings of the Idea of the secular state governed by the Rule of Law.
Synergism — disguised, typically, as “the law of unintended consequences” — was alive and well then, as it is today. Synergism “causes” nothing but “allows” much, and the Western Legal Tradition has been its beneficiary, if only because modern law institutionalizes processes by which the “permissible” can be channeled in feedback-sustaining, self-correcting, evolution-affirming directions. Science is a creature of the Age of Causality. Cybernetics is a child of the Age of Synergism. The child is parent to the adult it might become. See Synergetics.
The benefits of those “unintended consequences” did not accrue to Byzantium. Accordingly, Russia received its law in “pure” form, not synthesized — not adulterated — in the metaphrandal furnaces of Aristotelian Nominalism and the vibrant “Scholasticism” that flowered in Bologna, and then in Paris and Oxford, and then in all the other new universities of Western Christendom.
But not in Russia.
Russian law was especially untouched by the “case method” of instruction — medieval casuistry — as it developed in those Western universities, and by the ways in which the pedagogical method of “putting cases” evolved, over time, into the idea, and eventually the reality, that law “resides” in cases — in recorded experience, in history told with fidelity.
The development of such case-based law is beyond the scope of this Introduction. See Why Publish Judicial Decisions? Suffice it to note that Bracton, the thirteenth-century English lawyer, contributed significantly to this development. He apparently used made-up cases as a pedagogical tool to educate British yokels on the finer points of Roman law, that is, the “adulterated” Greco-Roman-Bolognese-Synergistic synthesis — although nobody in those days thought of it as anything other than the “real thing”: Roman law, the law of Justinian’s Christian empire.
Having become accustomed — through Bracton — to learning their law from cases, English lawyers carried case-law far beyond its cradle of “putting cases” at moots.
Following the 1066 invasion, the conquering Normans blew England open to the latest in Church and State, including the “New Learning” as Damiani had called it as early as 1050. In time, Oxford would eclipse Paris. But by then the English Common Law was no longer being taught in any universities.
In England, “Common Law” was hugely influenced by “University Law”; but it was taught as “case law” — especially after Coke pioneered systematic case reporting. The Inns of Court became libraries and schools, Schools of Argument. Soon, law was “found” as much in cases as in legislation, governmental edicts, etc.
According to Coke, as we know, legal reasoning and legal results were essentially interdependent. To him, the case method, the Law of the Land, and the rights, privileges, immunities, and entitlements, etc., of Due Process of Law, were all a much-of-a-muchness. They were all part of law’s coevolution with liberty.
But what of modern Russia?
The Russian Federation is heir to a fundamentally tyrannical, lawless “mentality” — to use a word well known to students of these regions, especially with reference to democracy-building, legal-education reform, and even elementary law reform.
That mentality is, essentially, Byzantine. It was not superseded, in Russia, by the Western Legal Tradition. It is this tradition which Russia lacks.
It is the basis of what we now call Rule of Law. It stands on three metaphrandal legs: Athens, Rome, Jerusalem. And it is what makes the Rule of Law quintessentially cybernetic: focused on self-governance premised on Ordered Liberty.
The Russian Federation is not, and never was, “part” of that Western Legal Tradition which “is” Ordered Liberty.
Perhaps the first general statement of this thesis, much-discussed five decades ago, appears in Vera Micheles Dean, The Nature of the Non-Western World (1957, rev. 1965). For example, at pages 31-32:
“The anti-Westernism that Westerners find difficult to understand in the Middle East and Asia had been a marked characteristic of the Russians long before Karl Marx wrote Das Kapital or Lenin seized power through soviets of workers and peasants. The Russian people have been affected little or not at all by the ideas of ancient Greece and Rome in philosophy and law. Their concepts of religion and of the relationship of the church and state were inherited from the Christianity not of Rome but of Byzantium. … Nor was Russia affected by the Renaissance and the Reformation, which powerfully molded thought and action in the Western world. The English, French, and American revolutions were not a part of Russia’s experience.”
Over the centuries, Russian law has suffocated in a vast tangle of inconsistent decrees — a “collection” at best — and much of this law was not even “collectible” because it was secret. Alexander I (1801-1825) commissioned the first great jurist of Russia, Michael Speransky, to codify this law, but Alexander’s successor, Nicholas I (1825-1855), would not allow Speransky to “change” that law. As the students of Bologna discovered long ago, however, one cannot turn a collection of decrees into a system of law without “changing” something. What medieval Western lawyers changed was not merely the law, but the very structure and concept of governance.
True, Speransky and his successors did make significant strides in modernizing Russian law. But, in my opinion, Russian law — and Soviet law thereafter — remained essentially a “collection” rather than a “system”; and, most important, Russian law and Soviet law never developed the cybernetic feedback processes so essential to a healthy legal system.
The people of the former Soviet Bloc should take great pride in the courageous souls who sought to “speak truth to power” and sought, thereby, to reform Soviet concepts of law and governance. But courage and truth-seeking are not enough. Deeply-rooted understanding is essential.
Our task is to illuminate the theory and advance the reality of something which is not self-defining: law. We shall define it not as logic, not even as science, but as an essential aspect of a “learning society” — a civilization that can learn from the past, build for the future, and grow as a seedling planet grows.
The relationship between law reform and legal-education reform is a major theme of these Jurlandia writings. Here is a portal to that subject: Post Soviet Law Reform and Legal-Education Reform.
Moving beyond metaphorical sails and rudders and the significance of Justinian and Aristotelian rediscovery: Upon reflection, we note that the “energy” and “guidance” inputs of complex systems, including our nomospheric planetary enterprise, are many — yet all, in principle, participate in the “sort of cybernetic dance” here posited.
Indeed, no participant in any self-organizing, self-correcting system is “entire of itself”; each, to quote John Donne, is “a piece of the continent, a part of the main.” Our knowledge of this fact is largely tacit; it composes one of the unarticulated and even unarticulable major premises of civilization; yet even the unarticulable deserves exploration.
That exploration will likely reveal the close coevolution of empathy and remorse: Hurting others hurts us. Should the insights of Donne have constitutional significance?
What once we knew by faith or religious authority, we now ponder more deeply in light of logic, science, cybernetics, and integrative jurisprudence.
As earlier suggested, Adam Smith was deeply insightful when he asserted that the key difference between humans and other creatures is our capacity for empathy, which is related to our capacity for remorse.
We inquire of the universe directly but we also inquire indirectly; we inquire of each other; and we criticize ourselves and others in light of Right Reason and, in a word, conscience.
We become increasingly mindful of a “global conscience” and of the need for global norms defining the right and the good. We even have nascent international tribunals to uphold fundamental norms and, where necessary, to endorse humanitarian interventions.
See, generally, Adam Smith, A Theory of Moral Sentiments (1759).
A viable constitutional democracy is a verb, a learning organism whose life-blood requires free inquiry, a free press, periodic free and fair elections, representative democracy with checks and balances among the organs of governance, countervailing powers among public and private interest groups, good universities, and better law schools.
A viable constitutional democracy must be “under” the Rule of Law, which itself must be a creature — a creation — of the Rule of Reason, a special kind of reasoning that is both synergetic and cybernetic. It is itself governed by the Ecology of Values and its “Little Helpers”: Look before you leap; many hands make light work; too many cooks spoil the broth; do as I say, not as I do; you are as you act; repentance must precede forgiveness; forgiveness benefits the giver more than the receiver; live and let live; I cannot say it as well as I can dance it; the life of the law is experience, not logic; and so on.
Looking ahead, humans should focus beyond the rise or fall of this or that race, nation, empire, or region. Our only worthwhile focus ought to be the success of our emerging global civilization — within deepest ecological, intellectual, and nomospheric context — premised upon a conception of “human nature” that is evolutionary, reality-based, scientific (in the broadest sense), and inseparable from Freedom of Inquiry.
As Aristotle states in the first sentence of his Metaphysics, “All humans by nature seek to know.” As Socrates first insisted, we must know ourselves better so that we can govern ourselves more wisely.
Without free inquiry, nothing else of value is possible, let alone worthwhile.
Our starting premises must be (a) the exploratory and hence unfinished nature of Homo sapiens sapiens, leading (with luck, hard work, and good will) to evolution of (for lack of a better name) Homo sapiens unitus — a currently nascent “product” of our coevolving Biosphere, Memesphere, and Nomosphere — and (b) how this “immanent singularity” is being called into being by a human nature that is essentially inseparable from human nurture … indeed, inseparable from a culture of deliberative nurturance.
Whereas natural evolution (that is, the coevolution of biological species) can be explained without resort to teleology — without the need to hypothesize a purpose-driven existence — cultural evolution represents an existential discontinuity whose defining characteristic is its need, and hence (arguably) its capacity, to discern, define, and refine goals.
Or, arguably, as already suggested, a single, transcendent goal, to which all others are subordinate: to know our “selves” better that we may govern ourselves and our planetary “self” more wisely.
As Socrates seems to have deduced, and as subsequent experience abundantly confirms, necessity is the mother of invention. Invention, which starts with inquiry, is the perennial Child.
That transcendent goal, being true to its essence, must remain subject to logical, scientific, and cybernetic refinement.
Self-improvement calls forth or ordains self-doubt, open-minded exploration: “Open Society” values premised upon Freedom of Inquiry.
To live fully we must learn, perennially and unceasingly, that unexamined truths are not worth having.
Our ending premise might become a deepened understanding of freedom generally and of free inquiry specifically. Such understanding leads to the complimentary truths that (a) it is better that some be wholly free than that all be partly free, and (b) it is best that all responsible adults be fully free and hence fully accountable within a global constitutional system in which majority and coalition rule is balanced by minority and individual rights. The worthwhile survival and healthy future of Homo sapiens sapiens transcforming into Homo sapies unitus requires this.
Freedom, accountability, and constitutional governance have coevolved; our task is to ensure that they continue to coevolve in worthwhile ways. Defining and thereby embodying “worthwhile” constitutes one of our greatest challenges. Here, seeking “the truth” about “the good” is never an abstraction, always a pathway towards the good.
We have discovered and must perennially rediscover that, when properly nurtured and acculturated, humankind can reason our way towards understanding our selves, the human condition, and our Universe. That is the purpose of the Conversation of Democracy, without which RISE will perish.
That is the purpose of these writings: illuminating societal intelligence, thereby enhancing global competence.
The evolution of our distributed knowing and doing composes an Ecology of Mind undergirded by an Ecology of Values. Corrupt and thought-deficient engagements in society, the economy, governmental processes generally, and political discourse specifically, feed upon each other and impair our capacity to live as free, rational, responsible humans. Dumbing-down constitutional governance, subverting evidence-based reasoning, and negligently or knowingly distorting the “marketplace of information and ideas” harms the Conversation of Democracy and endangers liberty, justice, rationality, accountability, and similar Open World values so crucial to global peace and sustainable progress.
When a democracy guarantees freedom of inquiry, association, and expression, including a free press; and establishes checks and balances among governmental organs that include an independent judiciary; and ensures free and fair elections for legislators and highest-level executive officers; and forbids electoral and governmental corruption in its many sordid guises, including debasement of the Conversation of Democracy by lies, defamations, unfair restrictions on media access, unwarranted governmental secrecy or manipulation of truth, and the silencing or unjust prosecution of critics; when, in short, a democracy ordains institutions by which majority and coalition rule is competently balanced by minority and individual rights — and otherwise establishes Ordered Liberty based on the Rule of Law governed by the Rule of Reason — then, and only then, does it merit being called a constitutional democracy.
As used in these Jurlandia writings, a metalogue is a dialogue or discussion in which the “topic” includes the following:
(1) Simple linguistic or denotative messages, as in “the cat is on the mat” or “look before you leap”;
(2) More complex metalinguistic messages, as in “the word ‘cat’ is not on the mat” or “when I say ‘look before you leap’ I’m offering a metaphor that endorses thinking before acting”;
(3) Highly complex metacommunicative messages about all mediums or tools of thought and communication, including, especially, the people producing the suppositions of facts and values under consideration, as in (from my perspective) “how nice of me to warn you not to take metaphors too literally” or (from your perspective) “I think you are making too much of linguistic, metalinguistic, and metacommunicative distinctions, but I’ll ‘play along’ for a few more paragraphs to see whether you can carry your burden of persuading me that these distinctions are worth highlighting.”
Yes, you have been “doing metalogues” all along. And, yes, people are “tools” of each other’s thinking, communicating, and even “perceiving” (see below) — instruments of collaborative enlightenment or, too often, the fog of faith, dogma, and “received authority” which, being merely received, cannot possibly render us wise. To “know” without “inquiry” — trusting our world’s future to the hubris of those who proclaim that their faith-based “received” knowledge is the best kind — is foolish, a contradiction in terms, like a fried snowball. It takes courage to say this, especially to oneself.
Wise or foolish, we belong to the “human family” and, hence, to one another. When wise, we take on noble responsibilities towards each other’s enlightenment; when foolish, we perpetuate unexamined living, the feeblest excuse for clinging to relic conceptions of “civilization” that collide — potentially calamitously — with others’ equally-unexamined zealotries. It is a boringly-prevalent malady to believe that one belongs to a “chosen people” whose faith-based certitudes shall, with divine endorsement, trump the certitudes of all others who, believing themselves to be chosen too, are deluded infidels.
That we serve as one another’s tools in the metalogues that “make culture” — and thereby distinguish us as humans — should be self-evident; even so, we can benefit from self-reflective examinations that explicitly state what hitherto remained tacit, implicit. The Conversation of Democracy, dedicated to enhancement of Regenerative Intelligence Still Evolving (RISE), is by order and dimension a metalogue whose metacommunicative elements require conscious attention. Bringing them to consciousness can be interpreted as “insult” to some, perhaps many. No insult is intended in these Jurlandia explorations. The capacity to give and take gentle but firm criticism is essential to humanity’s healthy future.
Feedback is the “engine” (“engineer”?) of cybernetics; well, it is what it is — metaphiers in search of adequate metaphrands. (See Note on Cultural Software, below.) Yet, whatever it is, this metaphrand is essential to the governance of self and society. President Jefferson was asked which he preferred, a polity with a constitution but without a free press, or a polity with a free press but without a constitution; he was inclined towards the latter; but the point of this story is that both are essential. Institutionalizing feedback requires Freedom of Inquiry, the parent of free association, expression, assembly, press, and broadcast media, plus periodic free and fair elections, plus everything else we ought to think of when we ponder establishing and maintaining healthy constitutional democracies.
By drawing attention to the linguistic, metalinguistic, and metacommunicative “tools” of thought and communication, I hope to make these Jurlandia contributions to the metalogue of Constitutional Democracy more palatable, less painful. It is not enough to identify and turn away from ignorance; one must have something better to turn towards. Some find “must” in this context too overbearing; they would rather contend with respectful suggestions. To welcome them into the fold, I shall whisper that they might wish to embrace not only information but also inspiration. I shall not beat them over the head by insisting that humanity must wed wisdom with meaningful choice and energetic will. Yet I must shout from the rooftops, and whisper too, with Socrates: The unexamined life is not worth living.
RISE depends on this.
Metacommunicative elements focus on building healthy relationships among present as well as contingent-future participants — relationships to each other and to these linguistic, metalinguistic, and metacommunicative elements coevolving — including their interdependent histories and their potential future participatory co-creation of new inquiries and, hence, new ways of being, of governing, and of co-creation.
As an example of such metacommunicative discourse, I pose (as my opening gambit, as it were) this question: “Why is it necessary that I share with you about cats and ‘mats’ and the triune nature of metalogues and hence of self-knowledge and self-governance based on an emergent planetary reconceptualization that ought to enlighten no less than it might discomfort?”
Answering this question in our time requires going beyond the information, insights, and inspirations of earlier times. Our capacity for empathy — standing in others’ shoes — emerges as a key to any answer worthy of our past, our present, and our potentially-bright future.
Some call this capacity “love”; some, “charity”; some, “mercy”; it certainly partakes of the Golden Rule, the quintessential endorsement of empathy and, hence, remorse … and altruism .. and justice … and mercy: Do unto others as they should do unto you. Perhaps better: Conduct yourself in ways that you could endorse as proper or necessary for others to adopt as a general rule of conduct, including exceptions that “prove the rule” and teach humility.
Far from being unrelated to “self-interest” — see First Trinity — empathy, as Adam Smith saw, originates in remorse caused by inadequately-constrained self-interest, including selfish “group-interest” … sins, large and small, that are arguably explainable as reflecting inadequate “cultural commitments” to self-knowledge as the foundation of self-governance and, hence, of Government under Law generally — whether individual or corporate, national or international, tacit or explicit, or further extended … over time, space, and circumstance. That concept is the premise on which constitutional democracy stands or falls.
It should also be the premise of “liberal arts” education: Know yourself — and your cultural surround — better, ever better, so that you — and your culture — might know and govern your co-evolving “selves” better, ever better.
Seeing others seeing us seeing others, etc., invokes above all a “theory of mind” — the recognition of others’ possession of consciousness and, by extension, conscience. This subject is highly speculative, of course, and relies on imperfect metaphors and analogies, etc. With this caveat, I propose that each individual’s capacity for empathy can also generate a “theory of mind” which perceives our world, as such, as evolving something akin to a “mind” that “chooses”: our world possesses something akin to consciousness and conscience; but of course it only “has” this if it “has” us and … we have each other. Again, “thinks” and “chooses” and “consciousness” and “conscience” are place-markers, metaphorical pointers to what our “theory of mind” gropes towards comprehending.
To carry that metaphor into even more tantalizing territories, note that children develop a “theory of mind” (usually before age seven); much of the research to date involves their acquisition of “skills” associated with “lying”; yet at a deeper level what they are acquiring is empathy; and what is most fascinating here is that empathy has as its main objective, or at least result, the “institutionalization” of personal skills and social manners aimed at avoidance of self-deception.
As we get better at seeing ourselves as others see us, we come to appreciate that others do this too. And, in somewhat analogous manner, our world is developing the capacity — as a world — to “see” other, contingent, future “selves” … and to choose among them.
In this, our world is the principal and we are its agents.
We are fiduciaries of our world’s future.
Metacommunication require candid sharing about consequences. As mentioned, one should be as gentle as possible, as firm as necessary. The most unpalatable consequence for many, it seems, is unavoidable: “disrespect” (by whatever name) of faith-based refusals (a) to address fact-based arguments and (b) to abandon dogma-based conclusions and resulting ways of being, etc.
Unexamined dogmas are dysfunctional to the worthwhile survival and continued evolution of our emerging global civilization.
In a metalogue, I must risk “insulting” others if the alternative is “respecting” untenable assertions and values which, the evidence demonstrates, endanger our prospects for elevated existence.
Mere existence, being locked within a changeless Orwellian “perfection” that has immunized itself against genuine inquiry, evidence, illumination — has vaccinated future generations against “contaminating insults” to reigning dogma — ruins health, trivializes happiness, and cramps horizons.
Professor E.O. Wilson bears repeating: “You remember Darwin’s line, ‘Endless forms most beautiful and most wonderful have been, and are being, evolved’? We see this far more than Darwin ever could. We see right down to the molecular level, how truly extraordinary life is as a phenomenon. There you have more to summon spirituality than anything provided by the late Iron Age desert kingdom scribes who wrote the Holy Bible. They created an impressive piece of literature. But they really didn’t understand the world around them or the stars above. They metaphorized them, put poetry into them — they did the best they could. But still and all, they fell far short of what humanity is capable of feeling in a sense of the sacred and of aesthetic beauty.”
In some fundamental sense, it is simply unfair to “spiritually bully” others for questioning their own dogmas, or dogmas they “hold in community” with others. Freedom of religion does not free us from thinking and being accountable to study the facts.
Freedom of religion that is subordinate to Freedom of Inquiry allows us to appreciate, with Professor Wilson, “how truly extraordinary life is as a phenomenon.”
Never forget: If it is true that “the unexamined life is not worth living” then this is true not because Socrates said so (although he did) but because the Ecology of Mind generating an Ecology of Values assists us in concluding (respectfully but not obsequiously) that unexamined truths are not worth having.
As I refuse to respect your faith-based belief that cats fly on mats, so too I cannot see how regenerative intelligence can continue evolving in healthy ways if Muslims, Christians, Jews, and other ‘true believers’ continue asserting that their particular holy books provide inerrant truths about cats, mats, linguistics, metalinguistics, the tools of scientific inquiry, and the means by which a globalizing civilization can best advance towards goals that are worthy of our loftiest potentials … as distinct from goals reflecting the necessarily limited capacities — including vast scientific blunderings — of visionaries, philosophers, theologians, and potentates who lived, worked, and preached thousands of years ago.
True believers’ methods of obtaining and ascertaining their so-called truths, and of generating their so-called wisdoms based on such flimsy foundations, constitute a terrible and potentially-fatal impediment to humanity’s prospects for developing, ah!, words fail!, but try: a global constitutional democracy — a “learning organism” that remains gloriously uncertain about its ultimate ends and, therefore, truly celebrates Ordered Liberty and all that this implies.
The triune enterprise of messages, mediums, and human relationships should illuminate all human communications and permit the healthy development of a superstructure of nurture and culture — second nature — to grow out of the substructure of nature, including the biosphere.
This, in turn, allows (but does not “cause”) a sort of third-nature construction, the focus of this essay. This structure requires the development of “virtual interlocutors” to guide humanity: candid commentators who, addressing us from the standpoint of contingent futures, some good and others bad (including non-existent futures brought on by present-day absurdities) force us to confront our present predicaments squarely, based on facts, not faith. Our best contingent futures obviously shame us to the extent we fail to heed their needs and do the work of bringing them into existence.
This future-guiding cultural enterprise carries into “internal communication” or “thinking” as conventionally defined. Both internal and external thought and communication depend on many unarticulated and even unarticulable elements, the experience of shame — of moral inadequacy — being a good example: it might be hard to define, but we know it when we feel it. Such knowledge is what we call enlightenment. It includes eschewing the arrogance, the hubris, of faith-based certainty that one is among some elect — a chosen people — whose Holy Book is the Word of God, immune from free inquiry, immune from disrespectful commentaries regarding elements that (in all fairness) should evoke shame.
Such frank exchanges, as already noted, are of the essence in constructive criticism, an essential part of human discourse; such healthy candor, enhancing the future-guiding enterprise of global metalogues, provides the best foundation for reconceptualization of the human condition.
Trying to make these usually-implicit elements of the human condition explicit does not debase their value — so long as we continue to honor life’s fathomless mysteries, and hence the sacred nature of elevated thought and communication, choice and will, and hence conscience. Indeed, our efforts to give voice to our tacit or unarticulable insights — if done with gentle humility — can enhance our appreciation of complex topics like history, economics, the Rule of Law, Ordered Liberty, and the future of civilization.
As discussed further in this essay, I credit Gregory Bateson for coining the term “metalogue” and for his insights into linguistics, metalinguistics, and metacommunications. But my focus is somewhat different: distributed intelligence, where many participants each know some things yet no participant can possibly know all things … albeit all can benefit from the fact that those things are probably known, and hence — given the right socio-economic, constitutional, and “traditional” foundations (especially, “tacit” understandings about what humans mean to each other) — the totality of human knowledge can be put to good use, indeed best use.
In simplest terms, synergetics denotes the behavior of whole systems not predicted by the behavior of their subsystems, as discussed further in these Jurlandia writings. See especially Note on Synergetics. See also my essay, Synergetics.
Cybernetics, properly understood, is the theory of self-organizing, self-correcting, feedback-dependent phenomena in which the concept of “self” is at issue and the concept of “goal-orientation” becomes central. Cybernetics is less ontological (asking What is?) and epistemological (asking How do we know what is?) than teleological (asking So What?), and as such is inescapably preoccupied with ethics, with normative questions, with generating an Ecology of Values undergided by the Ecology of Mind. Cybernetics is further discussed in this essay and in The Cybernetics of Society, and is central to all Jurlandia writings.
To the best of my knowledge, this term was first used in published form by Professor Paul O. P. Ts’o, a Johns Hopkins University geneticist, in Basic Principles in Nucleic Acid Chemistry, Vol. 1 (1974), pp. 76-83. I welcome further information confirming, modifying, or debunking this attribution. I recall discussing this topic with Professor Ts’o, around 1973, at our only meeting, in connection with translating his writings from Chinese to English. Anyone having any knowledge of this term’s origins, please let me know: email@example.com, topic line: Homo sapiens unitus.
Good writing requires consistent use of the final serial comma. Some assert that this comma should only be used where it is essential to avoid confusion — as where someone undertakes (confusingly) to “thank my parents, Joan Sutherland and God.” But that rule itself invites confusion — or at least requires the brain to process a sentence “both ways” before deciding whether there is a confusion that needs to be resolved — and this gets in the way of the brain’s already-formidable task: processing as-clear-as-possible sentences regarding unavoidably-complex matters. If, in speaking, we would provide a “brain-pause” that makes it clear we are thanking our parents, Joan Sutherland, and God, then that brain-pause should be “cued” when one is writing this thought. Thus, for my overnight camping trip I packed supplies that included bacon, brandy, coffee, eggs, juice, milk, and sugar. Next morning I enjoyed a breakfast of juice, eggs and bacon, and coffee with milk, sugar, and a tad of brandy.
While on the subject of punctuation, let me also note that hyphens and dashes should be distinct. Hyphens draw words together, and should not have spaces on either side, except when linking concepts like computer- or internet-mediated phenomena. Unlike hyphens, dashes — specifically, “M-dashes” — separate words or strings of words, and should have spaces on either side. Such spaces are especially necessary because, when writings travel from one computer- or internet-mediated platform to another, the M-dash often gets “converted” (debased?) into a hyphen-length “dash” (but it is still a dash); those spaces on either side usually survive such travel. If so, not all is lost; significant information is retained; those spaces can make all the difference.
Generally, M-dashes (the width of an “M”) set off text that is not parenthetical; for parenthetical text we have parentheses. Dashes should not be used where parentheses should be used. Dashes serve to induce brain-pauses of a more complex kind than those induced by commas, and are aimed not only at separating elements but also at highlighting or emphasizing an element … although, hmmm, especially-thoughtful brain-pauses are often best induced by three dots, called ellipses. N-dashes (the width of an “N”) do not travel well from one computer- or internet-mediated platform to another; whether they will survive currently-evolving communications protocols is unclear. This is a good example of ways in which our tools “make us” as much as we make them; they and we coevolve; grammar, punctuation, vocabularies, and our capacities to use them well, are co-creative. Hotlinking has changed writing. Good writers have always been “composers”; now, all writing must attend to enhancing the power of co-creative composition. The dew is fresh upon the leaf of hyper textual metalogues.
Imparting complicated ideas as clearly as possible requires many tools of thought and communication, including emerging tools to facilitate “societal thinking” — especially cross-cultural dialogues that become metalogues whenever their focus is upon enhancing societal thinking. Some of the tools used by the Jurlandia website, such as dashes, are used quite differently in other languages; for example, Russian does not have “is” and therefore often uses a dash to impart what in English “is” imparts. But one of the main purposes of this website is to model good English-language writing, including punctuation, because English is attaining a special place within the emerging Ecology of Mind. Among its many assets, English is a language which (with the exception of dashes) travels well from one computer- or internet-mediated platform to another.
Two final points:
First: Jurlandia essays often place quotation marks (called inverted commas in England) around a word or phrase when first introduced, followed by a definition or other contextual pointers regarding that word or phrase. It is not always clear where this device should be employed. This website probably errs on the side of overuse. It does so in hopes of combating the tendency towards “over concretization”: thinking that maps are territories, names are the things or relationships named. I plan in due course to take up this subject — first introduced by Aristotle and recently advanced by Korzybski — in far greater detail.
Second: I follow Friedrich A. Hayek and others in using initial capital letters for “Rule of Law” and similar fundamental concepts in order to denote that they are “elevated” terms of art.
Not every “rule of law” reflects the Rule of Law.
My initial-cap usage throughout the Jurlandia website reflects the crucial distinction, for example, between so-called “laws” and that fundamental Rule of Law by which any law — or governmental action taken “under color of law” — must be judged.
In this regard, I quote an early work by Hayek, Road to Serfdom (1944, 50th anniv. ed., Chicago, 1994):
Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts. [Hayek, Chapter 6, p. 80.]
The above includes the following footnote:
According to the classical exposition by A. V. Dicey in The Law of the Constitution (8th ed.), p. 198, the Rule of Law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.
I should note that, for Dicey, “regular law” is also a term of art. His “law of the constitution” is about a specific model, that of England, in which “the constitution” and “the rule of law” are essentially identical. They start with the 1215 Magna Charta, the “law of the land” by which “due process of law” is secured. In addition to that “absolute supremacy” of regular law, Dicey notes that there must be “equality before the law” and a recognition that “the law of the constitution … [is] not the source but the consequence of the rights of individuals.” (p. 199)
Interestingly, while Dicey’s text does not use initial-caps, his “side notes” accompanying the text do. His side note to page 198 is “Summary of meanings of Rule of Law” and his side note to page 199 is “Influence of ‘Rule of Law’ on leading provisions of the constitution.” The first edition of Dicey’s classic was published in 1885. The eighth and final edition was published in 1915
Throughout these writings, I provide numerous hotlinks. But, obviously, the discerning modern reader can follow “leads” without my coaching. For example, Alfred Korzybski (1879-1950) has generated a huge literature; readers who are unfamiliar with his work can easily find references to credible sources. I don’t suggest hotlinks for Korzybski or Aristotle, etc. Trying to be sparing with links, I supply them only where I think my proposed links might enhance efficient, intelligent inquiry. (Go back)
Every person knows many things, including that many things we do not personally know (or do not know well) are known by others (or known better by others).
Constitutional democracies are “learning organisms” that enhance the opportunities for each “me” to become the best “me” possible, each of us following our bliss (well, whatever we think is worth following!) and, accordingly, learning — as best we can — about what most interests us.
This requires that we become humble, recognizing our dependence on those who know more than we do about some subjects. As we do this, of course, we come to respect the processes that allow — indeed, encourage — each human to contribute fractionally to the whole of human knowledge … without (let us hope) fragmenting “Knowledge” — the Advancement of Learning (see next Note) — as such.
Friedrich A. Hayek provided the classic analysis of “distributed intelligence” — although he did not use that phrase. He asserted that in economics, for example, a huge number of individual choices based on each individual’s fractional knowledge of the whole (of competing products, services, prices, etc.) provides a vast feedback system that processes vast amounts of information … far more than economic planners and Soviet-style commissars could ever be able to know and process.
A modern example of this phenomenon is the blogosphere. The limited knowledge that each blogger possesses, added to that of all others, filters vast pools of information in ways that the conventional, centralized media (newspapers, television networks, etc.) cannot compete with. Of course, the topics of the blogosphere often include issues first raised by the mass media; increasingly, the converse is also true. Individual bloggers and mass-circulation opinion-leaders become mutually co-dependent; none (other than the truly disconnected) can exist and think and write in isolation from the Ecology of Mind.
Yet I think we need to be careful: The nascent error-correction processes associated with the blogosphere can result in informational “perfect storms” that go haywire, insane, drawing all into a vortex of misinformation that “informs” public-policy formulation, and commentary thereon, with “reliable” (almost everybody believes it) nonsense. Where a government intends to deceive, or institutionalizes a reckless disregard for the truth or falsity of its claims, a well-functioning press and blogosphere, etc., aided by conscientious whistleblowers, will eventually ferret out the truth; we hope; but much damage may have been done in the meantime. Fox News, for example, teaches by “negative example” that distributed nonsense can overwhelm distributed intelligence, at least for a while. Even so, resolute wisdom remains our best defense against “know-nothing” excrescences. Is the evolution of intelligence evolutionarily viable? Time will tell.
Distributed intelligence is a fact of life; but we need to examine it’s strengths and weaknesses very critically. Doing so, however, we must make use of distributed intelligence; we have no choice. No individual can possibly know enough to safely unplug from the Ecology of Mind.
This is the fascinating challenge: We must use distributed intelligence (a) to discover what it is (and where it is heading), and (b) to counsel together about how to make it work better.
Understanding anything requires our growing appreciation of its connections with everything. Human intelligence becomes increasingly distributed and decentralized. Understanding becomes increasingly emergent (see Note on Synergetics, below). (Go back)
This is an ancient phrase, and also the title of a major work by Francis Bacon on the scientific method.
It is clear from Bacon’s essays that he conceived the “advancement of learning” as an “embodiment” with a sort of life of its own, borne forth by history, science, jurisprudence.
It is synergistic, emergent: the whole being unpredicted by its parts. See further discussion, next Note.
Some claim that Bacon wrote the plays attributed to William Shakespeare. Bacon’s coat of arms showed the Goddess of Wisdom shaking her Spear of Learning at the Serpent of Ignorance.
“Will Shake Spear” conjures ancient Greek commitments. (Go back)
I have been puzzling over synergy, synergism, or synergetics for a long time. My “Third Year Written Work” (a sort of thesis), required for my graduation from Harvard Law School in 1970, was entitled Cosmic Synergism and the Global Village Discontinuity. One of the goals of the Jurlandia website is to delve further into synergism, discontinuity, and the Rule of Law.
Modern synergetics teaches that the whole is greater than the sum of its parts or, more specifically, that the behavior of whole systems is unpredictable based on “full knowledge” (whatever that means) of the behavior of constituent subsystems. You cannot “predict” a molecule based on “full knowledge” of atoms. Of course, nobody tries to “understand” atoms from the standpoint of ignorance about the existence of molecules, so the point seems somewhat artificial. Yet it does have its deeper implications, the most important being a rejection of “reductionism” — the sort of silliness one often encounters which says, for example, that we are “nothing more than atoms” or that we are merely the products of our conditioning, etc. Synergetics (more precisely, “synergism”) started as a theological idea: God depends on human cooperation to carry out, well … Creation. Although I am not religious in any conventional sense, I find this earliest meaning of “synergism” worth pondering. Rejecting reductionism, I embrace synergism: the premise (for it cannot be proved) that “reality” is emergent, that the whole shall be greater than the sum of its parts.
Around 1972, I started to contrast “synergetics” with “cybernetics” — based partly on the works of Gregory Bateson (see next Note) — in the sense that synergetics allows all sorts of things and ideas, etc., while cybernetics weeds out those that are flawed or dysfunctional, etc. Obviously, both synergetics and cybernetics are “heuristics”: ideas, mental constructs, intended to promote further thought. The last thing I want to promote is a new reductionism which asserts that we are merely synergetics bounded by cybernetics. Obviously, we are far more. (Go back)
Metalogues are discussed in Gregory Bateson’s book, Mind and Nature: A Necessary Unity (1979). See Catherine Bateson’s discussion of her father’s work. (Return to discussion of metalogues.)
The use of “cultural software” to denote tools of thought and communication, etc., is suggested by J.M. Balkin’s book, Cultural Software: A Theory of Ideology (1998). Balkin’s first paragraph supplies a powerful metaphor: “As God completed the work of Creation at sunset of the sixth day, according to the Talmud, God created the first set of tongs — the first tool — because tongs can only be forged using other tongs.” The idea of tool-making tools is central to the coevolution of Matter and Mind, the evolution of culture, and the Advancement of Learning … including the evolution of cultural know-how regarding governance and self-governance.
Perhaps the greatest contribution to our understanding of cultural software is offered by Julian Jaynes’ book, The Origins of Consciousness in the Breakdown of the Bicameral Mind (1976-1990). One does not have to accept the entirety of Jaynes’ astonishing speculations, etc., to recognize the power of his treatment of metaphors. “There are … always two terms in a metaphor, the thing to be described, which I shall call the metaphrand, and the thing or relation used to elucidate it, which I shall call the metaphier. A metaphor is always a known metaphier operating on a less known metaphrand. I have coined these hybrid terms simply to echo multiplication where a multiplier operates on a multiplicand. … It is by metaphor that language grows. The common reply to ‘what is it?’ is, when the reply is difficult or the experience unique, ‘well, it is like — .’ … The human body is a particularly generative metaphier, creating previously unspeakable distinctions in a throng of areas. The head of an army, table, page, bed, ship, household, or nail, or of steam or water; the face of a clock, cliff, card, or crystal; the eyes of needles, winds, storms, targets, flowers, or potatoes; the brow of a hill; the cheeks of a vice; the teeth of cogs or combs; the lips of pitchers, craters, augers.” (pp. 48-49).
Indeed, says Jaynes, “language is an organ of perception, not merely a means of communication.” (50) Our sense of “reality” is mediated by metaphor. “Even such an unmetaphorical-sounding word as the verb ‘to be’ was generated from a metaphor. It comes from the Sanskrit bhu, ‘to grow, or make grow,’ while the English forms ‘am’ and ‘is’ have evolved from the same root as the Sanskrit asmi, ‘to breathe.’ It is something of a lovely surprise that the irregular conjugation of our most nondescript verb is thus a record of a time when man had no independent word for ‘existence’ and could only say that something ‘grows’ or that it ‘breathes.'” (51).
Interestingly, not all languages have a word for “is”; Russian uses a dash, thereby conferring upon one of my favorite (most necessary) punctuation marks a completely different duty, as in: “Ah, building a global ‘cultural software’ equal to the challenges at hand — a difficulty!”
Even “metaphor” started as a metaphrand in search of a metaphier.
Furthermore, meta — “over” — and pherein — “to carry” — doubtless had precursors, no less than bhu and asmi did.
Our communicative grunts and stunts preceded agriculture and, hence, the movement from “grow” to “make grow”; and metaphorical “carrying” (as in a mother “bearing” her child, whether in her womb or on her back) may have originated in a baby’s first cry of dependency, or perhaps second, or third. Ah! Huh? Ahah!
We humans are deeply “immersed” in our knowledge. Surely there is a “real reality out there” that is distinct from our metaphors, etc., but when it comes to cultural institutions, including law, we are the “makers” of what “is”; law “breathes”; and let us never forget that “Natural Law” and “Natural Rights” are essentially cultural constructions. They have coevolved with our knowing, our liberties, our limitations on evolving liberties, and our most general “carrying capacity” of … that Child which is the “parent” to our Future. We know more than we can tell.
Natural Law and Natural Rights are not primarily “of” nature; they are not even “of” second nature or culture. They are remarkably-recent metaphrands in search of adequate metaphiers; and we — carriers of civilization — are their parents and, as a species, their originators.
RISE is an extended metaphrand in search of a “third-nature” metaphier that we are growing: a “self” that transcends the natural and even the cultural; the culturally self-conscious; the self-consciously self-governing; the post-modern modernity; and the (words fail us!) … a sort of something that does not yet “exist”! It is a baby being carried “over” our present time into a potentially-better future time.
RISE is an extended metaphor. If you don’t like it, invent a better metaphor. By doing so, you will make a better “baby” bhu.
We are fortunate to live when the dew is fresh upon computer-aided, internet-mediated “thinking” — at both individual and societal levels — but our progress will be enhanced and safeguarded if we never forget just how tentative these toddling first steps are. Let us celebrate with circumspection, not with strutting.
Hubris, including the arrogance of believing that ones own tribe or sect or nation is the “chosen people” and that all others are inferior, deluded, or damned, is the worst enemy of RISE. Ironically, however, the consequences of such hubris are so dysfunctional that we learn by negative example to avoid bullies.
We learn from history why autocrats like Putin give freedom-loving constitutionalists the creeps. Or should. We must be prepared to say, gently but firmly, that all chosen-people dogmas are inferior, deluded, and damned.
Cultural software is delved into more deeply in First Trinity.
Note on Kennedy’s Inaugural Address: This quotation is from President Kennedy’s Inaugural Address, 1961. I must emphasize that for me the word “God” is a place-marker for that depth and ground of all being which, alas, our world’s religions generally put to trivial and often dysfunctional uses that impede development of a “religion” worthy of what we now know, as distinct from what was believed millenniums ago. Kennedy’s words here should serve as a starting point for our inquiry into synergetics — participatory co-creation of ideas, things, institutions, and all aspects of a worthwhile global future. (Go back)
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