LAW AND MORALITY
An Increasingly-Global Synthesis
Of Athens, Rome, Jerusalem … and Beyond
I have written extensively on this subject elsewhere, addressing it from various perspectives and focal lengths. I provide links here to some of those writings, which in turn provide links to others. What follows is somewhat experimental, an effort to blend elements of those writings into a more speculative work that both summarizes them and rhapsodizes upon their focus: liberty, justice, accountability, constitutional democracy, and elevating the Advancement of Learning to the highest status we can accord it. What is "speculative" here reflects my desire to risk suggesting conclusions which, while more than half-baked, are yet "insufficiently-baked"; they are heuristic, aimed at initiating and broadening, not ending, discussions about the human condition and its prospects.
By "Advancement of Learning" I refer to both a means and an end — an "end" that is (on principle) endless: a continuous process of gerund-rich reaching, becoming, and advancing with regard to what we know (ontology), how we know (epistemology), and the purposes for which we convert facts into knowledge, wisdom into choice, action into feedback, and learning into doing (teleology). Those purposes must themselves be subject to feedback-nurtured, self-corrective, goal-refining means and ends. In a word, ontology, epistemology, and teleology must be cybernetic: self-referential, self-governing, and self-transforming within a matrix of discovery and invention that redefines "self" by embedding all selves within an emergent Society of Mind.
A constitutional democracy is a learning organism, a cultural construct focused on refining our tools, including tool-making tools, and thereby advancing our labors, including our strivings in the vineyards of morality and law. Ultimately, "the people" — generation upon generation — must "play God" and decide questions of right and wrong that translate into mutual undertakings, standards of conduct, and reasonable expectations which, in the ordinary course, will become legally enforceable. The Rule of Law must be based on the Rule of Reason, and both must draw their legitimacy from the Advancement of Learning rooted in the Conversation of Democracy.
This essay borrows heavily from the writings of Lon L. Fuller, especially his book The Morality of Law (1964, rev. ed. 1969), and of Harold J. Berman, especially his writings on integrative jurisprudence and on the origins and development of the Western Legal Tradition. Both were my teachers at Harvard Law School, 1967-70, and in 1976 I was privileged to serve as Professor Berman's research assistant. My research focused on ancient Greek contributions to the Western Legal Tradition. More important, my association with Berman kindled my interest in the interaction of law and religion, a field he pioneered; yet I came to disagree with him of several fundamentals. Most important, he is a Christian whereas I believe the world needs a new "meta-religion" that submerges all current religions, ideologies, and sciences into a new ontology, epistemology, and teleology which, firmly rooted in history, forges a future aimed at remaking what "humanity" and "divinity" currently conjure.
Put simply, as a sixth-generation lawyer and long-time "mystery-celebrating agnostic" I am persuaded that both law and religion — worldwide — need fundamental reconceptualization amounting, in essence, to their abandonment in favor of something both simpler and profounder, a culture committed to "constitutionalized self-correction": continuous cultivation and harvesting of information, knowledge, and wisdom aimed at elevating the Advancement of Learning to a place of highest value that transcends, and hence fundamentally reforms, religion and law. This approach abandons law only insofar as much of what is called "law" is actually loophole-finding artistry followed by loophole-plugging artistry that, corrupted by self-dealing lawmakers and revolving-door bullshit peddlers, makes further loophole finding and plugging an ever-more-lucrative race to a seemingly-bottomless pit of chicanery, corruption, and (worst of all) self-deception. Self-deception is the worst artistry, yet further loophole plugging, and a resulting chasm between the public interest and private power-players. Abandoning such "law" requires mrely invite more
My greatest inspiration has for many decades been history, current events, and a growing "futuristic literature" that (sometimes unwittingly) implicates what I consider humanity's greatest challenge: to improve cybernetic or self-corrective processes in which, learning from living, we place logic and science into fullest service to the "art of governance" — personal, societal, and beyond into the likely "trans-human" or "post-human" realms which the computer-mediated, internet-building Conversation of Democracy is carrying our emergent global civilization.
Christianity — more precisely, the Judeo-Christian-Islamic prong of the Great Synthesis of Athens, Rome, and Jerusalem that undergirds the Western Legal Tradition — was crucial to developing the concept of Rule of Law before which all humans are deemed equal in ways that are essentially identical to the ways in which all humans were deemed equal before God.
A single Divinity implied a single Humanity.
As we are equal before God — asserted the medieval Christian clergy-become-lawyers who, in effect, founded the Western Legal Tradition following the establishment in Bologna of a law school in 1073, so too we are equal before "the Laws of Nature and of Nature's God" — to quote from a much later formulation, contained in the American Declaration of Independence.
This juxtaposition of the Medieval "Natural Law" that originated in Bologna and grew out of a synthesis of faith, law, and reason, and of the Enlightenment appeal to the "Laws of Nature and of Nature's God" that justified establishment in the New World of the Novus Ordo Seclorum or New Order of the Ages, reflects the evolution of an idea that is still far from universally accepted: "God" and "Man" cooperating in "Creation" can do anything except work an absurdity.
Both are subject to highest law, and this law transcends all current conceptualizations of Humanity and Divinity. Put differently, the Rule of Law must be subjected to the Rule of Reason.
Finding origins is never easy; every idea and institution seems to have precursors; yet, as argued persuasively by Harold J. Berman, the Western legal Tradition and so much that is associated with it, including establishment of the profession of lawyer, started at Bologna and not before. See Note on Berman's Integrative Jurisprudence.
While I borrow heavily from Berman's work, what follows is my own considered synthesis of his and others' work. Some of the following is highly speculative, yet seems to me to merit being set forth as the result of my four decades of preoccupation with these issues.
To be continued ….
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