That Advances and Balances
Liberty, Justice, and Democracy
By Dedichotomizing Competition and Cooperation
"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." See Freedom of Contract.
Central to any constructive discussion of self and society is our awareness that these terms are tools to facilitate thought and communication about an evolving reality which those tools help us to construct, generation upon generation. There are many concepts allied to those of self and society, such as psychology and sociology, competition and cooperation, and property and contract. All are central to 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 centuries. You did not build that.
Property, empathy, contract, and "personhood" — the dignity of each sentient creature — are deeply interwoven. As I would not be stolen from, so I would not steal. As I would be treated with dignity, so I cannot deprive another of dignity … except, of course, by Due Process of Law.
As I would uphold Due Process of Law, so I must "be" rational, empirical, and just … giving all their due.
"Standing in the shoes of others" morphs easily into "standing on the shoulders of giants" … ancient and modern.
The basic distinction between mine and yours, when illuminated by the Golden Rule, calls forth the realization that neither of us has to steal from the other in order to obtain the other's property. Instead, we can negotiate an agreement transferring property rights from one to the other. Indeed, "property rights" naturally imply "contract rights" — and, together, these rights are fundamental not only to economic prosperity but also to what we have come to call constitutional democracy: a government under law that seeks to balance, and thereby maximize, the blessings of liberty, equality, and "fraternity" based on our capacity for empathy with others … past, present, and future (including our capacity to stand in the shoes of others who might judge us and our times). We need our individual autonomy in order to play our proper role in a free yet responsible society.
In some profound sense, the more freedom people have to engage — as equals — in the give-and-take of contractual relationships, etc., the more adept they seem to become at the ordinary give-and-take that animates both friendship and constitutional democracy. Private contracts, no less than the Social Compact undergirding a law-based state, are absolutely dependent upon what is the focus of this website, the cybernetics of society: personal and societal governance based on free-flowing, feedback-rich information. See further discussions of property and contract rights.
I want to explore this idea. To do so, let me first suggest a basic "trinity" of truths.
1. At some point, a child comes to awareness of its distinct selfhood. It becomes a "me" in relation to the world. Let us call this "first-order consciousness" — the awareness of ones unique relationship to ones own feet, shoes, standpoint.
2. Almost immediately thereafter, this "me" starts to discover his or her capacity to perceive (in the mind's eye) what the world looks like to others. Let us call this "second-order consciousness" — the awareness that every "me" has a unique relationship with his or her own shoes, and that each understands that all other self-aware humans are also aware of others' (a) self-awareness and (b) other-awareness.
3. Over time, however, first-order and second-order consciousness calls forth a far deeper insight: How I am known by my neighbors, my community, and the world, is a crucial aspect of what is "proper to" me, of what is mine, and of whether I can maintain my property, or dispose of it as I choose, or otherwise build the substance of my reputation, my good name. It is not that others' perceptions of us are all-important; but they are not unimportant — not in the marketplace of things, ideas, values. Indeed, after we are gone, our reputations can live on. Honest Abe Lincoln is now immortal, based not only on his powerful writings, but also — perhaps mostly — on something far more powerful: his reputation.
Let us call this mindfulness of the value of personal reputation "third-order consciousness" — the awareness that "me" is related in some fundamental way with how others think of me and relate to me … over time, and perhaps beyond time.
As suggested, a crucial element of third-order consciousness is an awareness of the value — for each of us, and for our entire biosphere and the InfoSphere that our biosphere has brought into existence — of honesty, of accurate feedback, of "peer review" in its broadest sense. The existence and ongoing health of this InfoSphere obviously requires constitutionally-guaranteed freedoms of inquiry, expression, and association. Perhaps less obviously, the InfoSphere also requires constitutionally-guaranteed property rights; that was the thrust of my first WSP lecture. Even less obviously, perhaps, yet most compellingly, the InfoSphere requires constitutionally-guaranteed contract rights.
Saying this is perhaps no profounder than saying that modern civilization is impossible without all the elements — obvious and hidden — which together compose modern civilization. So be it. But let us return to the Golden Rule.
In a two-person or even two-household world, the Golden Rule cannot reveal its full power. While it is true that, as I would not be the victim of thievery, so I would not be a thief, the better formulation should be less abstract: In my village, in my community, I would not wish to be viewed as a thief, else my fellow humans will be less likely to protect me against thieves. My neighbors are protected from my inclination to steal from them because we all know that each of us harbors similar inclinations against each other's property, yet each of us realizes that none of us can gain from stealing if we are perceived as a thief by our fellow humans. A liar succeeds only when perceived as honest.
Third-order consciousness promotes not only an information-rich neighborhood, where "goodsiblinghood" (what is often called brotherhood) among your neighbors or "godsibs" leads to hearty "gossip" about you, everyone, everything; such third-order consciousness also changes our relationship to each other and to society, and changes our understanding of that relationship. It promotes a deeply textured appreciation for all the stuff that composes "communication" — words, writings, actions, even silence. I believe that people who grow up in a free-market environment that upholds and encourages private contractual relationships become "naturally acculturated" towards an appreciation of the value of such third-order consciousness. They start to learn at an early age how to navigate in a world in which — precisely because people are equal and free — they are also highly dependent upon each other. They must build friendships. They must develop networks of professional colleagues and business partners. They must build relationships that are not zero-sum (one person's gain is another's loss) but win-win — where all can benefit because genuine value is being created. Rather than fighting over how to distribute the pie, they cooperate to enlarge and improve the pie.
Thus, it is not merely our capacity to stand in each other's shoes that makes us human. On a deeper level, what makes us human and what makes society possible is our capacity to stand in the shoes of our community, of society at large — and to see how the community views us, or might view us differently if we gain a reputation for honesty … or dishonesty. Our relationship to society depends to a profound degree upon our understanding of this relationship. And this understanding depends, in turn, upon a culture of understanding which places great emphasis upon the "communication content" of everything we say and do, or fail to say or ather than condemn the Soviet Union, I focus on exploring the truths that its closed-society errors help to reveal, for arguably those truths — often embraced within a family or ecology of abiding questions — are among Open Society's most precious yet hardest to fathom. Lon Fuller called these truths "unarticulated" (and the basis of democracy-affirming jurisprudence); Friedrich Hayek called them "tacit" (and the basis of free-market prosperity); yet both scholars contributed mightily to articulating them and bringing them to conscious awareness; and both showed that these kinds of knowledge lie at the heart of any civilization worthy of humanity's best capacities. It is easier to teach a three-year-old how to tie a shoelace than to write instructions thereon; "simple farmers" know that horses, potatoes, tractors, and Mother Nature are far from simple and cannot be known by words alone; and true wisdom also resides in acknowledging the limits of prose, even of poetry.
"Liberal-Arts Education" to Advance Individual Liberty Bounded by Social Justice
We live and learn — as individuals and societies — navigating uncertain futures with many backward glances and tantalizingly inadequate vocabularies. Given the inadeqacies of language, progress requires that we focus on creating institutions devoted to "education for life" that explicitly combine theory and practice. Part of our goal must be to dedichotomize the future, placing "oursleves" firmly within a universe of discourse heretofore bedeviled by dualities that becloud more than clarify. Arguably, to dedichotomize we must trichotomize.
Central to our task, we must create a "better laboratory and beacon of educational reform" which teaches, above all, through demonstration — showing the superior advantages of hybrid educational institutions aimed at genuinely transforming authoritarian societies — through research and teaching that will attract scholars old and young, from East and West, from North and South, to participate in an exciting, rewarding, significance-generating examination of fundamental questions: What is best, what is reasonable, what is most viable, what is least problematic among unwelcome options, what can move us beyond the simpleton creeds and received wisdoms that no longer suffice, and — of greatest significance — what truths can we cultivate and harvest to transform "closed minds" and "closed societies" in order to advance the cause of "regenerative inteligence still evolving" (RISE) and thereby advance the cause of personal liberty bounded by equal justice?
Part of the key is understanding, as Aristotle and other ancients insisted, that neither liberty nor justice are solitary endeavors. To be happy, fulfilled, we must live in societies devoted to liberty and justice. this theme is explored elsewhere, including The Enterprise of Integrative Jurisprudence.
Discerning the outlines of the "good global society" is somewhat akin to night vision: to "see" we must look beyond, around, to the side, focusing less on the "good society" as such and more on liberty, justice, balanced wisdoms, the stuff of liberal-arts education. The concept of "liberal arts" originated in ancient Rome and involved that part of education which befits free humans, as distinct from slaves. Slaves were forbidded to study the liberal arts. These included theology, philosophy, rhetoric, the arts of advocacy, the fundamentals by which we persuade others within the "forums" of public-policy formulations. In our emerging Open World civilization, liberal-arts education must become the foundation of the Conversation of Democracy.
Modern liberal-arts education must bring this truth to conscious awareness, however, in ways that enhance appreciation for what remains beyond articulation, perhaps beyond understanding, as the "glue" binding civil society. This is an especially-difficult challenge in regions where recently, almost as a matter of theological certitude, economies and societies and political systems, etc. were considered to be subject to "scientific understanding" and "scientific management" dictated by supposedly-inevitable historical processes undergirding the brilliance of central commissariats. That hubris remains a huge obstacle to regional progress. Management, whether of a country or a university (and much else), requires great sensitivity towards the deeply-reciprocal, indeed co-causal relationships among cooperation, competition, bottom-up or inductive coordination, and top-down or deductive integration, etc., as these interact in complex analytical and operational endeavors.
The management of "truth building" — for example, running a think tank or an intelligence agency — differs significantly from the management of "strategy building" aimed at putting those truths to best practical effect, which in turn differs from implementing strategies, coordinating diverse groups, administering projects, etc. A university president must cultivate the distinct mix of skills associated with these different endeavors. I shall address this subject further in my attached Statement, but (at the risk of overburdening this letter) I deem it necessary to here examine "knowing" and "doing" with reference to the meaning of "liberal-arts education" as part of "citizen education" in building sustainable constitutional democracies. I address a subject that I have found to be little examined in the post-Soviet sphere. This subject lies at the heart of so much, including that essential linkage between science and ethics — the true and the good — which "education for democratic life" strives to promote.
Competition and Cooperation in Dynamic Equipoise
As suggested, terms like "competition" and "cooperation" denote interdependent elements of complex, often reciprocal relationships. These relationships partake of larger, synergistic, knowledge-pooling, often indescribably-complex endeavors. We know them primarily by living within them. Thus, as Adam Smith noted, cooperation among consumers seeking reliable goods and services at reasonable prices leads to competition among producers seeking to meet consumer needs and thereby reap personal gains. This only works, he said, where individual initiative — private enterprise — is protected yet "bounded" (his word) by generally-applicable law. Upon examination, therefore, we see (a) that a free-market economy is too complex to be "understood" in any conventional sense, and (b) that its success depends upon something more basic than economics, namely, law — which itself, we discover, is rooted in "moral sentiments" resulting from our uniquely-human capacity for empathy, for seeing the world through others' eyes.
Consumer cooperation is mostly tacit, unspoken, based on observing others' behaviors and choices, based on reputations earned over many years or lost just yesterday, and based on "wisdoms of the marketplace" that themselves partake of an ever-reconstituting ecology of information and ideas and predictions, etc. In our modern Info-age, moreover, this process is increasingly internet savvy and globally mediated. Its "control" is ordinarily not centralized but distributed, depending mostly on distributed intelligence, parallel processing, and "tacit coordination" among consumers, producers, scholars, officials, etc. Complexifying further, "competitors" are themselves embraced within webs of "cooperative" relationships with suppliers, employees, bankers, auditors, and even — where the law allows or requires — other direct competitors; for example, they often build on each other's patents, and they all partake in the general advancement (and peer-reviewed testing) of science and technology.
Thus, "competition" and "cooperation" denote relationships that are only "good" or "bad" within context. Indeed, "bad cooperation" is often called conspiracy. We understand these truths largely from our personal experiences as producers and consumers operating within landscapes and mindscapes of coevolving goods, services, institutions, ideas, etc.; indeed, these truths are part of our cultural inheritance; but this inheritance also includes explicit methods designed to distinguish truth from falsehood. Among these, none is more important that the scientific method of inquiry and ascertainment; not surprisingly, however, its success also depends upon a complex interplay of competition and cooperation; and through that interplay we move beyond "mere truth" to focus on what is "trustworthy" as a basis for choice and action. As every good scientist knows, the relationship between truth and trust is ubiquitous; few scientists go to the trouble of personally replicating others' experiments; trust in the process of science requires reciprocal trustworthiness. Moreover, as every good lawyer knows, trustworthiness is also the foundation of fiduciary relationships, a major pillar of law and lawyering.
Free economies and societies could not exist without legal relationships rooted in ethical reciprocity. As suggested, humanity's most distinguishing characteristic is our capacity for empathy, our ability to stand in others' shoes and see the world — including ourselves — as others do, as a future judge might, as our well-developed consciences must. In that sense, liberal-arts education is the foundation not only of finding truth but also of defining and projecting morality. Liberal-arts education is ultimately a quest for what the ancient Greeks called arête — excellent "fitness" in all undertakings. This excellence takes account of imperfect understandings and limited resources. It does not ignore budgets, the laws of physics, or the chemistries of interpersonal integrity, honor, repute. It avoids swagger and hubris. And it often results in wise old teachers prepared to do humble but determined service when the need most urgently arises.
We live and learn.
[To be continued, of course]
 Lon L. Fuller, The Morality of Law (1964, 2nd ed. 1969). See also Barnabas D. Johnson, Rule of Law: Ten Principles Governing Law and Law-Making, which summarizes and builds on Fuller's work. My essay is itself summarized in the National Commission on Entrepreneurship's Report (2002), entitled American Formula For Growth, in its first chapter, headed "The Starting Point: American Rule of Law" (following the Executive Summary; see p. 11, and footnote 4).
 Friedrich A. Hayek, The Constitution of Liberty (1960). A superb critical study of Hayek appears in John Gray, Hayek on Liberty (1984, 3rd ed. 1998).
 This is the thesis of Adam Smith's 1759 book, A Theory of Moral Sentiments, which preceded his Wealth of Nations by seven years. Fuller's book, The Morality of Law, already referenced, builds upon this important insight about empathy and the reciprocity of reasonable expectations — rights and obligations — that empathy undergirds. My essay Dedichotomizing Law and Economics by Recontextualizing Self and Society (2000) expands on this theme. See www.jurlandia.am/coreva2/.
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