Dedichotomizing Law and Economics
By Recontextualizing Self and Society
Address to Law Students
American University of Armenia
16 March 2000
2014 Note: The following inaugurated a lecture series at the Department of Law of the American University of Armenia. The purpose of these lectures was to examine and illuminate "soviet mentality" — a term our students often used. Several non-law faculty (notably members of the Diaspora) found references to the persistence of "soviet mentality" in Armenia demeaning. This presentation sought to begin an honest examination of deep and controversial issues. These are discussed in greater detail in my final writing for AUA, Post-Soviet Law Reform and Legal-Education Reform.
This 2000 writing essentially summarized a decade of research and discussion on "soviet mentality" instigated by this and other presentations of that lecture series. These presentations were thereafter uploaded to the AUA Server, becoming the backbone of the "Jurlandia Project" from 1998 to 2003 at "www.jurlandia.am" (an Armenian website now discontinued). That student-focused Project was the precursor to the Jurlandia Institute and its new home at www.jurlandia.org (an American website). Put differently, although something called the "Jurlandia Project" was started before I took up my duties at AUA in 1998 (first hosted under U.S. Justice Department auspices), it is fair to say that for three years starting in early 2000 all Jurlandia writings were aimed at "conversations" with students and others within a specific university-focused context.
I am grateful to my students for their help and encouragement. Now they are AUA alumni, and are entering positions of increasing responsibility in the life of Armenia, the former Soviet Union, and the world. To those who might be reading these words in later years, perhaps using different "media" than we had "back then" when the 21st Century was new … well, it all has to do with the freedom of inquiry: Free participation in the Conversation of Democracy based on the Rule of Law which is itself based on the Rule of Reason, a special kind of reasoning that is quintessentially cybernetic, feed-back dependent, feed-forward enabling.
May we never forget the joys of mutual enlightenment.
(Hotlinks were added starting in 2001.)
Fellow students, fellow teachers, fellow law reformers: My subject today is property, and the necessity for constitutionally-guaranteed private property rights undergirding something we have come to call the Rule of Law based on the Rule of Reason.
I will come to this subject by a somewhat circuitous path. The best route is not always the straightest or shortest. Indeed, the metaphor of a path is a good point of departure. To find the path we must become the path. And, in doing so, we might find ourselves coming back to where we started.
The ancient Inca word "hamarev" means both "find" and "make"; sometimes our dichotomies can be a hindrance to rigorous thought and enlightened action. Let us dedichotomize our intellectual landscape and break free from dangerous dualities. But not too free: first there is a mountain, then there is no mountain, then there is …. well, let's see.
Karl Marx asserted that "economics" is the causal infrastructure of society, and that law and politics are mere superstructure. But economics — what used to be called "political economy" — has coevolved with law. Law and economics are co-causal, like rivers and banks. Before returning to this point, let me delve deeper into the uses and misuses of language, symbols, ideas.
The ancient concept "makara" — whose origin we do not know, partly because the concept (the symbol) existed before it was named — is a concept which, like that denoted by the "name" Yahweh (the Nameless God), denotes or points to a concept that lies outside all conceptual frameworks. It is not this, it is not that, it is not these or those; rather, it is a finger pointing to a finger pointing beyond what symbols, words, maps, blueprints, libraries, the Internet, can ever "capture" or do justice to.
Yet we must try to do it justice, nonetheless. And the tools we must use to perform this uniquely human job of finding, making, and expressing meaning — the tools of thought and communication — must include words, symbols, language. By the way, the makara symbol can be recognized by any trained eye; it still adorns many rooftops and doorways; and it is the "relic idea" giving rise to the story of Jonah. In earliest depictions of this ancient metaphor, we see Jonah flying through the air from the mouth of one whale into the mouth of another whale. Actually, it is not a whale, it is a dragon-like sea monster that symbolizes the "oceanic body" from which we are born and to which we must return. Originally, one never depicted merely one monster, or one mouth (often the rest of the body was omitted); one always depicted both. The focus of this image, however, is not the two mouths, not the start and the finish. Rather, the focus is what lies between, the "now": consciousness, the quest for understanding, the obligations of wisdom, choice, and action. The focus is what it means to be a human "flying" briefly through life.
The makara symbol stands for, points towards, a truth that can only be conceived and expressed in terms of two truths which point to a third truth. This truth is … Truth. What do we know, and how do we know, and why do we care? This theme is explored in Arakam to Jurlandia.
Of the many ways in which humans differ from animals, the most interesting — from the standpoint of law and economics — is that we, as individuals, not only can but must "stand in the shoes" of others, and can and must see the world from others' standpoints. We are born into a world in which individuals, by virtue of our human nature, form societies — in which our very thoughts are "imbedded" within language, logic, science, the "society of mind" … tools of thought which "think us" as much as we "think them"! It is not that the distinction between "self" and "society" is a false dichotomy; rather, it is that "self" and "society" are co-creative, and are known by their "child creations" — which are not definable in either/or terms but in both/and terms. See Leaning Empathy.
I am not merely a noun, a this or that. I seem to be a verb, a complex of "becoming" which, by the way, includes the activities of the mitochondria that compose the cells of my body yet are themselves "colonies of beings" possessing in some strange sense their own separate existence. Their DNA and RNA is not part of my own genetic makeup. I am not a me. I seem to be a we. But, as my mitochondria are not really separate from me, so too I am not really separate from society. We are co-causal; more, we are synergistic. You cannot define a river without its banks, or banks without their river. Together, they compose a verb — "rivering" — which over time has carved mountains, nourished oceans.
Every distinction creates, not a duality, but a trinity — that which is within the distinction, that which is outside, plus the distinction itself, which is neither "outside" nor "inside" but which, upon the making, partakes of the whole. Upon deepest reflection, we see that every distinction — every perceived difference — bears a ghost-like relationship to the distinguisher, the perceiver. As humans find or invent distinctions, we see our "mental presence" imbedded within them, almost as if the act of recognizing a difference gives birth to a new-order similarity that "spiritually unites" what we have mentally parted. We are like a moving ship plowing through waves that then come back together behind us … leaving a ghostly path to mark our passing. Every cleavage of One, of Universe, of the Whole, bequeaths a "Holy Ghost" signifying the resulting similarities and differences.
Indeed, everything is both similar to and different from everything else, including the concepts "everythingness" and "nothingness" — which, in juxtaposition, denote extreme difference, yet are similar in this respect: each is a human concept, and neither "exists" except as a tool of human thought and communication. Wisdom consists in seeing similarities and differences within context — of seeing differences that make a significance and similarities that make a significance.
Here, "significance" is used almost as though it were a "unit" of something. And, indeed, this "unit" is what is called "information" in information theory, in cybernetics generally, and in that part of cybernetics which denotes the art of law, of governance, of "political economy": the art of converting information into choice, wisdom into action.
As individuals and societies, we live and learn. A good constitution ordains the fundamental rules of governance necessary to create and sustain not a noun but a verb: a learning organism composed of the natural persons and "juristic persons" who together compose any civilization worthy of the name. We and our institutions live and learn. And in the past century, thanks especially to the "experiment" known as the Soviet Union, we have learned — perhaps "re-learned" is a better word — that without constitutionally-protected private property rights an economy will stagnate or fail. According to many commentators, this is because people will not be innovative and productive, etc., unless they can obtain and keep the fruits of such economic activity.
Indeed, there are many similar arguments, all based on standard economic analysis, supporting the belief that private property rights are essential to vibrant economic life.
But some commentators have made a much deeper argument: A well- functioning economy requires a well-functioning legal system, a law-based state — the Rule of Law based on the Rule of Reason — and these cannot exist without the constitutionally-guaranteed right to produce, use, keep, protect, exchange, and convey property, including legal and equitable interests in property.
This point is powerfully made by Professor Cass R. Sunstein in his recent book "Free Markets and Social Justice" (1997), at page 208: "In fact, the ownership of private property is closely associated with the rule of law. Both of these create a realm of private autonomy in which the citizenry can operate without fear of public intrusion. That realm is indispensable to a well-functioning public sphere. Only people with a degree of security from the state are able to participate without fear, and with independence, in democratic deliberations. In this sense, a sharp, legally produced distinction between the private and the public spheres can usefully serve the public sphere. Contrary to a conventional understanding, it need not harm it at all."
If, as I earlier suggested, society depends on our capacity to stand in each others' shoes, it also requires that — to extend the metaphor — each of us must have our own shoes. Each individual's relationship to all others — and their understanding of that relationship — requires that each must be able to form and communicate independent perspectives, to make and implement independent choices.
The words "government" and "cybernetics" have the same ancient Greek root denoting the "art of the helmsman" who must integrate his knowledge of the changeless ("stars") and the naturally changing ("winds" and "waves") in order to do what is humanly changeable — move the angle of the rudder, alter the trim of the sails. The key concept linking cybernetics and government is "feedback": information about the past which "instructs" choices for the future. As the ancients knew, we must know ourselves well so that we may govern ourselves wisely.
A competent constitutional democracy must facilitate such feedback processes, and this is done in various ways. Guaranteeing freedom of inquiry, association, expression, and belief, while ordaining periodic elections that are free and fair, are among the obvious ways in which people — through their constitutions — establish "governments" worthy of the name. Less obvious elements of the "cybernetics of society" include the constitutionally-ordained hierarchy of sources of law, the distribution or "triangulation" of legislative, executive, and judicial powers, the constitutional guarantee that every person shall be equal under the law, and — perhaps most important — what the U.S. Constitution guarantees under the term "due process of law": in essence, prohibiting any governmental institution or officer from depriving any person of life, liberty, or property, except by a rational law that is applied according to emerging standards of fundamental fairness.
A government that can take away life, liberty, or property without "due process" is a contradiction in terms — a non-cybernetic government — a government that deprives itself of the kind of accurate feedback that is the life-blood of any "government" deserving this name. When everybody works for the state, lives in state housing, depends on state educational and medical and retirement systems, etc., they become pawns of the government, not participants in governance. Where there is no private property, as Leon Trotsky observed, everybody says and does what the state commands — or starves. Or, as Trotsky was to discover, gets killed.
Far from being opposed concepts, self interest and social interest are interpenetrative. We have invented these dichotomies to serve us — to facilitate thought and communication — not to enslave us. The same is true of the relationship between "law" and "economics": each helps to define, and refine, the other. And both — when functioning properly — allow what for lack of a better term we might call "distributed intelligence" to be applied in aid of addressing problems which no "individual intelligence" can possibly comprehend.
Just as a free market system based on the Rule of Law can produce an abundance of goods, services, and other values which a "command economy" has never been able to produce — for the simple reason that millions of individual producers and consumers, acting in their perceived self-interest, can allocate economic inputs and outputs far more intelligently than any commissar — so too the citizens of such a free-market system can apply their perceived self-interest to the political realm in ways that allow "distributed intelligence" to tackle political problems.
This distributed or "parallel" intelligence is the essence of what "synergism" means, at least in terms of economics, law, and cybernetics. Synergism does not cause anything (in the classical sense), but it allows many things — some good, some bad. Well-functioning feedback processes, including those available within a free market of goods and ideas, must sort and sift among the "synergistically allowable" to encourage the good and discourage the bad. That is the key function of "government" properly understood. A constitutional democracy is a system of government that imposes a hierarchy of values upon that sorting and sifting. If the highest values of that hierarchy are devalued, then the whole social organism will become dysfunctional.
None of these highest values can flourish unless contextualized by others. Majority and coalition rule must be balanced by minority and individual rights. Freedom, equality, social order, and other fundamental objectives of the social compact exist in dynamic tension with each other. And in this context, we must acknowledge that upholding private property rights can never be an absolute value that trumps all other values. Where private property must be put to public use, for example, the state must show at least a rational purpose — perhaps a compelling governmental interest — and must adequately compensate the owner. Whether the government's purpose is valid, or its compensation adequate, should be decided by a judicial system in which the government appears before an impartial judge — and pleads as an equal, not as a superior.
Law and economics are words we use to denote interdependent, coevolving phenomena. The same is true of self and society, rights and responsibilities, and all the many dichotomies by which we know ourselves as well as we can so that we may govern ourselves as wisely as we are able.
That task will be easier if we dedichotomize law and economics by recontextualizing self and society.
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