THE RULE OF LAW BASED ON THE RULE OF REASON

Copyright © Barnabas D. Johnson

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“Reason is the life of the law.” Edward Coke, 1552-1634.

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One – E. Pluribus Unum

The Rule of Law must be based on the Rule of Reason, a special kind of reasoning that transcends logic and science (as precious as these are) and partakes of something that is essentially an art, an activity, an enterprise, a noun-verb, a gerund: choosing, and doing, and then reviewing — and learning from — results. And then doing it again, with further revising, usually in reference to others’ reactions, choices, actions, and revisions; and then again; round and round; always monitoring; learning, generation after generation; putting ourselves not only in each-others’ shoes, today, but also in the shoes of future generations, future historians, future judges, future philosophers.

Let us explore the fundamental premises of this special kind of reasoning: legal reasoning.

To do so best, I am convinced, we must be ever-mindful of what is probably the purest, oldest, and most instructive example of how ideas interact — with each other and with the culture they serve — and how they thereby coevolve, “growing” civilization. I delve into this in First Trinity. That essay examines “Laws of Form” and the coevolution of ontology, epistemology, and teleology, which (among its first fruits) “called forth” the Nomos, the “good art” of law, and isonomia: equality under that goodness.

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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?

Legal reasoning proceeds thus.

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Every distinction calls forth not a duality but a trinity, a “perichoresis” or idea-set in which each element is defined in terms of the other elements. This is not merely an intellectual definition. It is existential. 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. It was built by humankind’s coevolution with such transcendent Ideas as Ordered Liberty, Inalienable Rights, Rule of Law, and Rule of Reason.

The philosophical and existential linkages between you and me are not ours alone. We, they, and our emergent global civilization “compose” a perichoresis, an interdependence, a much-of-a-muchness, a cultural value of inestimable worth. It cannot be monetized.

For all our planet’s many current problems, including assaults on the very Idea of an Open Society, we are blessed with unfathomed oceans of cultural know-how primed to “precipitate” a new Social Compact. See Cybernetics of Society.

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The terms “property” and “rights” are good examples of deeply-linked, mutually-defining elements of Ordered Liberty. Here is James Madison, probably the single most significant author and expositor of the U.S. Constitution:

“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).

You and I live in perichoresis with Ordered Liberty, Inalienable Rights, Rule of Law, Rule of Reason, Due Process of Law, etc. These Ideas and their emanations live and define us as we live and define them. Many people find this kind of “circular” reasoning problematic. Indeed, it is problematic. Let us therefore reason together, and learn more.

Let us courageously embrace complexity.

Life is not just a bowl of cherries ….

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We are responsible for improving upon these Ideas-in-Perichoresis, and hence ourselves — to pass the blessings of Ordered Liberty forward, enhanced, to future generations. Our “inalienable rights” cannot be “given up” because they belong to us all equally, indivisibly, like the Village Commons. Indeed, they belong, in a manner of speaking, to future generations … as do we, too.

The Rule of Reason that “makes” the Rule of Law must integrate all knowledge in an “encyclopedic perichoresis” of Natural Law, Positive Law, Historicity, the arts and humanities, the “hard” and “soft” sciences, and the larger Cybernetics of Society.

See Enterprise of Integrative Jurisprudence.

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Two – Looking Beyond Law to Discern Law

The phenomenon I want to explore in this essay is the making, interpreting, and applying of rules of conduct that govern us and our institutions. The “conduct” that especially interests me here is legal reasoning in its deepest sense: establishing and modifying rules about rules.

Who will watch the watchman? How do we govern governments? What reasons should judges focus on in giving litigants and society at large the “reasoned decisions” so central to maintaining the Rule of Law based on the Rule of Reason?

These questions are of course important in their own right. They have preoccupied me for several decades. Yet it was only after I started teaching law, indeed managing a law school in the former USSR, that they attained the level of urgency they now have. Their frames of reference focused on the following:

1. What reasons compel me to insist that law students should not learn “legal doctrine” in the abstract (as they do in most law schools in most of the world, including continental Europe, Russia, and China) but should, instead, study judicial decisions where “the rubber hits the road” and the law is necessarily interpreted as it is applied to actual controversies, including (a) controversies about the meaning of this or that phrase in a statute, etc., and (b) controversies regarding the “true law” to be applied where sources of law are unclear or contradictory?

2. Why is “case-law” necessary for law-learning, law-making, law-improving, and law-teaching? And why does the word “casuistry” have such a bad press? It was invented to teach penitential law; why is “moral reasoning” (grounded in ancient Greek teleology) “packaged” (as it were) … case-by-case? 

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Which reminds me of a story ….

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Analogies are tools of thought and communication. Here is a useful analogy: “Seeing” law is often like seeing with natural night-vision, where if we focus on something it disappears but if we focus beyond … to the side … it returns, it becomes “visible” again. This, in relation to law, is of course a metaphor, or metaphor-maker. Having identified it as such, we have changed it (see below).

To “see” law properly we must look beyond, to the side, to what touches law, to what surrounds law … most notably, to the ideas and historical processes that have shaped what we now think of as law, or (better) ought to think of as law. Thus, “law” includes consideration of its future, and of our responsibilities towards the future. 

The life of the law is experience that is logically focused on consequences and implications.

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Exploring how the fundamentals of legal reasoning and legal education are (or ought to be) related, and probing a host of associated issues, can be best approached by reflecting: How do genetic codes “grow” babies? In what sense is a child the “parent” of an adult?

More important, however, posing these analogies opens the door to examination of something even more fundamental to law, law-making, law-implementing, and law-scholarship:

A central tenet of “reasoning by analogy” teaches us that everything is both similar to and different from everything else. What we seek, in legal reasoning and in the larger Ecology of Mind embracing us, is significance.

We seek similarities and differences that are significant, not in the abstract, but in concrete and principled contexts, including actual controversies whose resolution changes people, institutions, and our world.

Significance always depends on context. The parameters of each question supply the parameters of any answer(s) we can recognize as responsive to that question.

Protagoras of Abdera (c. 480-410 B.C.E.) is said to have said, “Man is the measure of all things.” Whether he said that or not, surely it is true (as indeed Protagoras probably intended) that we humans are the “measurers”; in that sense we supply the context of many inquiries. Indeed, arguably, we “are” the context (or an important part of the context) of all our questions.

In point of fact, I think the best “naming” of that context, in our time, is Regenerative Intelligence Still Evolving, or RISE.

Focus on enhancing the worthwhile survival and continued evolution of regenerative intelligence, and Nomos — the aborning law — hovers …

just to the side, just around the “bend” …

                               in this metaphorical

Holograph of Implications.

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Seeking significance is the essence of legal reasoning. Context supplies significance. And the context of greatest historical significance secures “goodness-seeking” — areté, impeccability — to its heart. That, at least, was the ancient Greek conclusion.

Building a future civilization based on liberty, justice, sustainable ecologies (whether of Mind or of Matter) and, hence, viable economies (“oikos” = “household”; “nomos” = “laws”), and … but … above all, building and maintaining and enhancing reasoned discourse about these challenges … seems a worthy goal in its own right. Enhancing “truth seeking” about areté seems a good goal unto itself. Introducing RISE into this mouthful of praiseworthy values goes, perhaps, without saying. But let’s get it out in the open. It is an evocation, if I am not mistaken, of our highest Open Society goals, and hence values.

We are a result of evolution.

Ours must not be the last word thereon.

Please help keep the Conversation of Democracy alive.

Think what it has already brought forth.

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As noted below, and as discussed in Framustans, perhaps a better formulation of humanity’s challenge focuses not on “goodness seeking” but, rather, on avoiding that which causes needless oppression, suffering, etc. However articulated, the task is to challenge current and future generations without coming across as a Global Village scold. Yet, with global warming looming, with weapons of mass destruction proliferating, with “failed states” and “gangster states” abounding, and with billions of starved brains lost to institutional stupidity, or worse, yes — with all these and so many other “issues” 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 ….”

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Three – Metaphors, Identified, Become Similes  

Genetic codes and the codes of conduct by which humans and institutions are governed offer “idea sets” — food for thought — regarding cybernetic, self-organizing, self-governing phenomena. Of course, “food for thought” is only a metaphor and should not be pressed too far.

As suggested, metaphors, once identified, become similes … pointing to both similarities and differences — still tools of thought … but, being more transparent, becoming “honed” for better service. Making our metaphors transparent, and thereby acknowledging the limits of our understanding (whether current or abiding), is of the essence to living with wisdom. We must incarnate the examined life. Without honest acknowledgement of unknown territories still to be mapped, our explorations become cramped; our Ecology of Mind becomes unworthy of what it might most competently become.

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This might be a good point to pose a crucial question anchored within the terms, used above in relation to defining cybernetics, of “self-organizing” and “self-governing”:

What is a “self”?

This question is actually an “idea-set” — an invitation to wide-ranging inquiry. Thus: What is a “something” that is (how shall we say?) participating in existence with lots of other “somethings” touching it, influencing it, perhaps even defining it? Where is the “skin” of a something that might tomorrow consciously reach out and touch, and change, and even make, other things, ideas, etc.? And so on.

One of the most fascinating aspects of this question-set is the question: What is a “self” if it cannot fully “know itself”? For example, by dividing into the “knowing” and the “known” (according to classical logic) we run afoul of the self-referential paradox … stated most unambiguously by the lament: “I am certain that I cannot be certain about anything!” As examined in these Jurlandia writings, this “knowing-thyself” phenomenon has its origins in our remarkable capacity (compared with animals) for empathy, for standing in another’s shoes, for seeing ourselves as others see us, and even for imagining ourselves (for example) commuting among future habitats as varied as floating “biocarpets” on the oceans, or dome-covered climate-controlled cities populating the great deserts, including Antarctica, plus the Moon, or even Mars. This same imagination will eventually capacitate property rights, contract obligations, law-based expectancies, and problems and possibilities that our current imaginations cannot possibly aspire to anticipate. But we will try. It is our nature and nurture. See Freedom of Contract and the Infosphere of Democracy: What Kropotkin Didn’t Understand Until He Stopped Being a Master of Serfs.

We shall put this question-set on the shelf, yet leave it in full view … to be brought down for closer examination in due course.

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You and I contain mitochondria whose “genetic composition” is entirely different from “ours”; without our mitochondria, we are truly nothing. Put differently, we are each “motile colonies” of something else, including distinct life-forms without which we are dead. By fertile analogy, motile colonies of people and institutions “compose” civilizations made from us yet also, by order and dimension, fundamentally distinct from us. And the question I am focusing on is this: What holds civilizations together, and what role does law play in that process … or should play … or must play if civilization is to evolve further?

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Legal reasoning is what it is, and above all “it” is dynamic, an “evolving tool” (another metaphor) that must evolve, indeed improve, to serve evolving civilization better … and thereby help future civilizations become superior to ours. Should training in “legal reasoning” equip only lawyers to “compose” the Judicial Branch, one of the three “branches-in-perichoresis” of U.S. constitutionalism? Make your argument, counselor!

Let us not be too dainty in identifying what we are about. This essay seeks to report what that evolving cultural tool “is” so as to change “it” and thereby change “us” … improving the tools of civilization and thereby transforming civilization itself into a yet worthier meta-tool serving the cause of worthwhile global evolution. Determining what is “worthwhile” is both a means and an end — indeed, it is the fundamental goal — of our evolving Open Society, of constitutional democracy most deeply understood. The Open Society is more a verb than a noun.

At this level of analysis, ends and means are a false dichotomy. They compose a much-of-a-muchness.

The idea that our choices and actions today can “help future civilizations” is, indubitably, metaphorical: food for thought. How is it that thinking and writing and choosing and acting today can (as I put it above) “reach out and touch” tomorrow?

How is it that past, present, and future are “bound” by the conscious creative activity of humans?

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Four – Back to First Principles, and Hence to Their History

Arguably, the First Trinity — Mythos, Logos, Nomos — is one of the greatest “idea-sets” of all time, and it is almost certainly the first of Western civilization.

In simplest terms, it provides the “ruling paradigm” for our modern Ecology of Mind guided by our emerging Ecology of Values, telling us how what we now call ontology, epistemology, and teleology converted (and still converts) the Mythos-Logos dyad into the Mythos-Logos-Nomos triad.

Words like “ecology” and “economy” have their roots there, as already noted. Living language, evolving ideas, the coevolving “stuff” of regenerative intelligence, the institutions of emergent global constitutional governance, obtain provender from their provenance.

Understanding the origins and evolution of these earliest “nested fundamentals” is essential to comprehending the currently-conceived fundamentals … and hierarchical ordering … of logic, science, and cybernetics.

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Although it is essential to impart understanding of the general phenomenon of the Ecology of Mind, it is not coincidental — and is arguably equally important to understand — that the first dawning of that phenomenon was, in fact, the first dawning of Homo sapiens unitus, bound by logic, science, and cybernetics (that is, feedback-enriched, reflection-informed governance); that dawning remains the proper starting point for imparting wisdom and inspiration regarding the Rule of Law based on the Rule of Reason.

The basic building blocks of modern thought are very old and necessarily mutually-defining. They come to us burdened and ennobled with history, including the checkered history of “trial and error” experiences that have taught us one of the most crucial lessons undergirding law, the Rule of Law, and much else: Nothing that has a history can be understood except within the context of its history … indeed, of History Writ Large.

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A.  Practical Context

It is no mere happenstance that the Soviet Union had no use for “history told with fidelity”; like the photos accompanying Soviet accounts of past and current events, truth was “airbrushed” to conform to the Party Line of the moment; despite its derivation, “ideology” was bereft of ideas rooted in the “Logos” of truth-seeking, including “historical-truth” seeking. As Soviet dissidents joked: “History isn’t what it used to be.” Or: “We cannot predict the past.”

Unfortunately, it is not merely the former Soviet Union that institutionalizes contempt for historical fidelity. Modern “spin management” has too easily veered into efforts at “information control” that ought to be condemned by all who value truth, honesty, informed debate, and enlightened governance. Modern “information societies” and their ecologies and economies cannot function well if governments, businesses, and others withhold or distort information that belongs in the public domain — knowledge that is needed by all of us as we seek … for lack of a better phrase … Truth Writ Large, including (as I argue in First Trinity) Truth about the Good.

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The relationship between law and history is no joking matter. Indeed, it is, or ought to be, sacred. Keeping the channels of “truth seeking” open, unclogged by party-line contempt for well-informed debate, etc., should command highest commitment within the Ecology of Values by which our world gropes optimistically yet realistically towards a new, evolution-affirming, “ideology” of sustainable development.

That ideology must, among its elements, affirm the value of “case law” as a primary source of legal meaning and hence of law and the Rule of Law. Put bluntly: It is sheer lunacy to suppose that “law” can exist “in the abstract” divorced from history — including the history of “case-law” by which the words and phrases of law obtain their true intendments and their practical, dispute-resolving, justice-upholding, ramifications.

Far too many law students in far too many countries (especially countries claiming to be founded on Napoleonic precepts), are taught that law is essentially a “science” which, on examination, one finds to be considered by its advocates as essentially “pure logic” bereft of its most necessary empirical content: the history of previous disputes and (a) how they were resolved and (b) why they were resolved that way — including a sufficient account of the judge’s actual reasoning, point by legally-relevant point — and (c) whether those resolutions turned out, in historical hindsight, to be practical, sensible, wise … enhancing liberty, securing justice, building reason-sustaining civilization.

Caution: The phrase above — “point by legally-relevant point” — should not be construed to support the view that these points must always follow syllogistically from earlier points, as if the statute were the major premise, the facts were the minor premise, and the conclusion follows “logically”; sometimes that suffices; but the key is that the judge must impart the actual reasoning processes used. Sometimes good judicial reasoning includes parallel elements, none of which “follows” from others yet all of which (a) persuaded the judge and (b) ought therefore to be set forth in the judge’s decision. The key is “transparency” — that, first, the litigants may know why their dispute was resolved as it was, and second, so crucial to the viability of the Enterprise of Integrative Jurisprudence, that judges, lawyers, law students, the general public, and future generations may study, dissect, and debate all decisions of relevance to advancing that Enterprise. Not every judicial ruling or decision requires a fully-reasoned “opinion”; not every decision needs to be “published” (although modern technology makes internet-mediated publishing easy and inexpensive); but all decisions that contribute to that Enterprise by contributing to its intellectual and moral life must, in fact, be distributed. The power of the Judicial Branch rests not on budgets or firearms but on persuasion. Reasoning. A special kind of reasoning.

Significant judicial opinions should be reasoned — and available in “searchable libraries” of law and jurisprudence, worldwide.

See Why Publish Judicial Opinions?

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B.  Historical and Philosophical Origins

At the dawning of systematic thought in the West, starting 2,600 years ago with Thales, who is generally considered the first true philosopher of Western civilization, the Mythos — contained in songs and stories, but not yet written — begat the Logos.

Thales was a remarkable Ionian Greek, a well-traveled merchant and engineer who resided in a great cultural center, Miletus, in what is now Turkey. He seems to have impressed others as a truly original thinker, not content with “received truth” that lacked empirical support. He is said to have predicted a local total eclipse of the sun (astonishing, if true) and measured the height of Egypt’s Great Pyramid (a simple task, in retrospect). He apparently saw triangles and circles everywhere, as befits a good engineer. He also cornered the local olive-oil market, almost on a lark, after studying local weather cycles. Fixing his attention on the night sky, apparently his greatest passion, he once fell into his well … to the delight of analogy-makers and “practical” people ever since.

To Thales, the word “Logos” had several meanings: truth, writing, mathematical verities, the ultimate rules governing physics and metaphysics. In simplest terms, Thales sought the “changeless something” from which all change emanates. As such, he was (as we now see) the first of the “Cosmologists” — essentially, seekers of the One composing the Many (perhaps the Many composing the One, according to possible interpretations of Aristotle’s notes on Thales) — and, arguably, this “cosmological perspective” remains deeply imbedded in modern memetics: cultural mindscapes generating the cultural landscapes that, together, compose our emerging global civilization.

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In many ways the world of the Mythos, of numerous immortal and changeless gods governing human affairs, “called forth” a search for that changeless “Cosmological Principle” from which all fundamental truths, values, and rules were thought to emanate … or to which they were thought to migrate.  Interestingly, this focus on the One occurred at about the same time that a single God was “discovered” by the so-called Children of Abraham, a People arguably defined by an Idea. More interestingly, Thales’ student Anaximander disagreed with his teacher, who thought this Cosmological Principle is water (including vapor and ice), and asserted it must be less physical, more metaphysical: “Apeiron”: beyond naming; not too different from the “name” Yahweh, or Jehovah, which arguably “means” about the same thing: Keep inquiring, do not reify your metaphors, do not bow down to “changeless images” of truth or virtue, do not turn metaphors into Graven Images that are kept immune from further exploration!

The First Commandment is contextualized by the Second. Perhaps Monotheism was “in the air”; maybe the Children of Israel got their Apeiron from the Greeks; I have not found time to explore this question.

Anaximander’s student, Anaximenes, thought that the Principle must be both physical and metaphysical. He said (a) “it” is air, which when compressed becomes water and, at highest compression, stone, the Changeless, and when rarefied becomes vapor and then fire, the agent of Change, and (b) at its deepest level, “it” “is” (Sanskrit asme, “breathes”) number, ratio, compression and rarefaction as such.

Anaximenes was positing a sort of perichoresis of Matter and Mind, in which the “Distinction Itself” between them composes the “Third Person” of a “Trinity” that “stands for” an emergent (and later named, in Latin) E pluribus unum.

Not surprisingly, Anaximenes’ follower, Pythagoras, disagreed and said “it” “is” entirely metaphysical: number, ratio, pi, geometry, mathematics, compression and rarefaction (as such), and ultimately “pure” logic, knowledge of which required (according to some of the “schools of thought” that Pythagoras spawned) a “process of knowing” that is even more “fundamental” or precious than what is to be known.

Ontology (what is) begat epistemology (how we know what is).

Note that this initial epistemology dealt only with certain or undoubted premises or starting points, as distinct from merely-probable or likely-true premises. Reasoning based on likelihoods, as distinct from certainties, was pioneered later, by Aristotle, who, unlike Plato, considered “uncertain premises” to be central to what Bacon would eventually call the Advancement of Learning. Science, and now cybernetics.

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Most (seemingly predictably?) interesting of all, however, is that the Pythagorean schools of thought diverged ever further in their “dialectical” (conversational) disagreements as to the identity of that One, thereby generating various Ones. Too many to be useful. Almost a cacophony of “fountains of truth” squirting against each other.

Yet in large measure they all ended up accepting that the “way of discovery” must be something all can agree on. And most agreed that this “way” was dialectics — systematized “debates” based on methodical observations that have been recorded with fidelity.

The most interesting Pythagorean successor, Parmenides, Socrates’ teacher, held that this epistemology undergirded areté, impeccable thought and action.

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Two crucial points:

•   First, by “ended up accepting” (above) I mean, essentially, that a several-centuries process which apparently started with Thales … and beyond doubt reached a measure of maturity with Socrates, Plato, and especially Aristotle … moved towards “acceptances” that, in retrospect, we recognize as constituting the “basic grammar” of philosophical and scientific discourse which allows, perhaps requires, “time-binding” — historically-evolving, systematically-developing, empirically-enriched “written” knowledge that undergirds our global civilization’s quest for meaning, for justice, for sustainable progress. (I’ll get back to time-binding in a moment.)

•   Second, by “logic” and “science” I do not mean static concepts. They have deep roots, and these roots are important, yet obviously they have evolved. Indeed, both have evolved significantly during very recent times.

For example, modern “scientific method” has been greatly influenced by Karl Popper (1902-1994), the great philosopher who apparently invented the term “Open Society”; his book, The Open Society and its Enemies (fifth ed., rev. 1966), remains very influential.

Popper’s writings on the scientific method, starting with his bombshell The Logic of Scientific Discovery (1934), are even more important than his writings on political science, etc. Yet his work is now dated, I believe, due to more recent work on cybernetic theory and jurisprudence which, beyond doubt, was influenced mightily by Popper’s work.

Popper was very critical of Aristotle. But he missed the main point, I submit: Aristotle’s greatest contribution was to “time-binding”; above all, he “tamed” the Greek language, the language of philosophy, contributing vastly to devising a written language that could “cause” or at least “allow” (see my essay, Synergetics) a multi-generational endeavor: the future learning from the past, future thinkers “standing on the shoulders” of previous intellectual giants.

Aristotle’s philosophy systematized and thereby consolidated the prior three centuries of Mythos-become-Logos, etc., and thereby gave form and substance to Greek epistemology, the foundation of modern thought and action. Before Aristotle, the language of philosophy was too wild; he tamed and “regularized” it into a powerful instrument of systematically recorded thought that allowed subsequent generations (a) to comprehend past progress and thereby make new, responsible, thought-filled, future progress, and (b) to improve that instrument itself, embracing the medium and message of philosophy within a cybernetic, self-improving “culture of progress” that was, is, and will remain Aristotle’s greatest legacy. Sure, Aristotle was wrong on many things; he gave the future self-improving tools that would make his own work “obsolete” … and, therefore, especially precious.

In short, Aristotle contributed massively to starting an evolutionary process which would allow future thinkers, such as Popper, to build far further, “correcting” Aristotle, Plato, Socrates, Parmenides, Pythagoras, Anaximenes, Anaximander, Thales, and all their colleagues and “students” … past, present, and future. 

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C.  Binding Time, Standing Taller

It is absurd and dangerous to think that new progress can be made without looking back. We live and learn, as individuals and societies.

The life of civilization is not “pure reason” (as precious as that is, when not misapplied) but experience. A civilization, like an individual, is cast adrift without memory. Without memories we are imbeciles!

Wise leaders do not march blind into the future, flags waving and trumpets blaring; no, if they would make a good future, they must “back” into the future with humility, avoiding the manifest errors of the past, including the worst error of all: hubris.

False confidence is always dangerous. True confidence must be founded on genuine competence, and good leaders are ever mindful of those who in the past were not sufficiently mindful. The legacy of mindless government is needless suffering … and the condemnation of those who must deal with the mess left behind.

Time-binding is crucial. Our infant Global Information Age would be impossible without a “stable language” of discourse, including legal discourse, by which successive generations may cultivate and harvest feedback, the lessons of history, the abiding contributions of giants like Abe Lincoln. The further healthy development of this infant civilization requires fidelity to truth, truth-seeking, and the lessons of the past.

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What is the most important lesson?

The bifurcation of the Logos into ontology, asking “What is?”, and epistemology, asking “How do we know what is?”, was as stable as any two-legged chair until the Cosmologists’ quest for the One became “trifurcated” with the great preoccupation of philosophers (the word had not yet been invented) who, indeed, eclipsed the Cosmologists: the pre-Socratic Sophists.

These teachers, or at least the best among them, were asking a different kind or question — not “What is?” or “How do we know what is?” (questions which, unanchored, were driving Greek philosophy insane) but … “So what? How do we convert knowledge and wisdom into choice and action? How shall we live our lives with excellence? How shall we construct a just society?”

This third “leg” is now called teleology. Its preoccupation became the key preoccupation of the Sophists: areté, excellence in all things.

Teleology, like cybernetics, is by order and dimension goal-oriented; they focus on finding not truth, as such — not truth in the abstract — but, in essence, Truth about the Good … wisdom aimed at choice and action, which soon became even more specific: wisdom aimed at finding happiness, or — more precisely — aimed at avoiding causing needless unhappiness to others … which, in turn, requires “doing justice” by participating with others in the creation of a just society.

In simplest, most elegant terms, the addition of teleology to ontology and epistemology allowed (caused?) these three to transform the Logos by converting the Mythos-Logos dyad into a triad: Mythos, Logos, and Nomos.

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Socrates was the greatest of the Sophists. Plato did not give the Sophists their fair due, as he blamed them for causing (or allowing) his teacher Socrates’ death.

Plato wrote beautifully, and his writings are nothing if not thought-provoking, but he was ultimately (in retrospect) both unfair to those he attacked and, dare we say it? … plain stupid. He was contemptuous (or astonishingly unaware) of the ultimate rationale for what he popularized as “Socratic dialogues”: participatory governance, constitutional democracy, government “under law” that limits the king, that limits even the wisest “philosopher-kings” whom Plato championed.

Basically, Plato was a fascist. Thus, Popper’s book, The Open Society and its Enemies (1945), commences with the following Plato quote:

The greatest principle of all is that nobody, whether male or female, should be without a leader. Nor should the mind of anybody be habituated to letting him do anything at all of his own initiative; neither out of zeal, nor even playfully. But in war and in the midst of peace — to his leader he shall direct his eye and follow him faithfully. And even in the smallest matter he should stand under leadership. For example, he should get up, or move, or wash, or take his meals … only if he has been told to do so. In a word, he should teach his soul, by long habit, never to dream of acting independently, and to become utterly incapable of it.

***

Aristotle, Plato’s student, is our main source for understanding pre-Socratic philosophy; he seems to have had access to writings, including those of Thales, that we do not now possess. Yet it is essential to understand, first, that what we know of as “Aristotle’s writings” are mostly composed of his students’ notes, etc., and second, that Aristotle’s thinking on many issues developed, and changed, over a long life. He started as a Platonist; but, according to what I consider the best current scholarship, Aristotle ended up far less dismissive of democracy than Plato.

Aristotle can be quoted as taking numerous and contradictory positions. His main contribution, I emphasize, was in “taming” the language of philosophy, setting forth rules of discourse which allowed time-binding, indeed encouraged “memetic processes” (the Ecology of Mind) to carry philosophy, science, ethics, governance, regenerative intelligence,  far further than Aristotle himself could have carried them.

***

Mythos, Logos, and Nomos composed the First Trinity of Western civilization, but its begetting required Logos to first generate the germ-trinity of ontology, epistemology, and teleology, and then for ontology and teleology to “feed back” and powerfully enrich epistemology — logic and science — converting part of epistemology into a meta-science, cybernetics: what we now see as the art of converting wisdom into choice, choice into action, and action into subsequent evaluation and resulting refinements of future choices and actions … especially those choices and actions which Socrates, according to Plato, associated with the art of governance.

Such “cybernetic thinking” was crucial to defining and then enriching Nomos. Note that the ancient Greek verb “kuberne” is embedded in both “cybernetics” and “governance”, and their association apparently originated with Socrates’ analogy to the art of the kubernetes, the helmsman, the pilot, who must integrate knowledge of the changeless (“stars”) with the naturally changing (“winds and waves”) in order to choose and act with reference to that which is humanly changeable — to alter the angle of the rudder, the trim of the sail.

Altering either must feed back into choices affecting the other.

This involves a complex kind of thinking, the rudiments of cybernetic thinking, and this kind of thinking has itself evolved, of course — coevolved with all other elements of civilization. But understanding the origin of the “idea of governance” as here summarized is essential to understanding modern constitutional theory, and hence to engaging effectively in law reform and legal-education reform in the post-Soviet region and our entire world.

The word “art” — used above — comes from the Greek tekhne, and refers to those things humans make using skill, reasoning, intelligence. Aristotle wrote extensively on this subject, and is our main source for understanding the evolution and ecology of ideas leading to the concept of governance as an art — honoring but transcending science, as science honors but transcends logic. 

Such cybernetic thinking is “proper to” participatory systems in which what we know and do changes the systems we are embedded in, changes our relationships to them, and changes our concept of “understanding” to require an ecology of reasoning-rich activity, a participatory endeavor spanning time, often spanning generations, centuries, millennia.

Thus, when we talk about the Rule of Law based on the Rule of Reason, we are talking about a special kind of reasoning — feedback cultivating and feedback harvesting, seeking not only the True but also the Good … and then doing something about it, and monitoring the consequences, and refining, revising, improving. We live and learn, as individuals and societies; we plan our further living and learning accordingly; and we see in a good constitutional democracy a fit “learning organism” that enables us to do all this better, securing liberty with justice, wisdom with will.

D.  Law as Science

Law is “science” only in the astonishing sense that we humans are engaged in a long-term “controlled experiment” testing whether the evolution of intelligence — and of the capacity to choose based on knowledge, including self-knowledge — is evolutionarily viable.

Such intelligence is powerful indeed, allowing us to eradicate all forms of intelligent life on this planet, but also, perhaps, all forms of human mayhem. Possibly these things should go without saying. Then again, many requisites of “sustainable development” can benefit from explicit identification.

We must examine, inform, and inspire. We must find a basis for hope, for without it our world will not be viable. This hope must be based on genuine confidence born of genuine competence — the capacity to combine and embody the quest for Truth with the determination to find, and do, the Good.

Doing these things, we go beyond any conventional definition of science. Hence, we need a new word to denote what we are doing. On balance, reclaiming “cybernetics” from popular and misguided definitions is worth the benefits.

***

It would be immoral to conduct conventional “controlled experiments” upon societies — for example, to divide a population into those who get fair trials before imprisonment and those who don’t, in order to see what happens, etc. Yet, through comparative legal studies, we can accomplish fairly solid empirical research, and we can also compare based on accounts of past legal systems, or previous eras within a single legal system.

Indeed, in the United States, with 50 state constitutions and (in significant respects) 50 different legal systems (plus the federal system and systems of international and transnational law), comparative law is deeply imbedded within all lawyers’ work. Indeed, I believe that wisdoms generated by U.S. federalism contribute invaluable commentary in aid of building — as eventually our world must — a federated global polity.

America’s greatest contribution to establishing global constitutional democracy, I believe, is its method of legal education and legal reasoning. In much of the world, as noted, law is considered to be essentially “logic” whose mappings are transferred from a law professor’s notes to law students’ notes without benefit of thought, discussion, and analysis centered on how “the law” has in the past resolved real controversies and should in the future do so better. In the Soviet Union, and the post-Soviet region, students can go through five years of so-called legal education without encountering an actual dispute and the judicial decisions (whether trial or appellate) by which that dispute was resolved … and why, and whether that resolution accomplished the court’s goals, the law’s purposes, etc. French legal education is hardly better. Chinese is worse.

***

Five – Law as Art

I dwelt above on the importance of history in general and, for law, of specific (and well-reasoned) case “write-ups” in particular, because these are absolutely crucial to the Enterprise of Integrative Jurisprudence, mentioned above, and hence of legal reasoning and its close ally: competent constitutional democracy, government under law.

There are several interdependent elements here.

    1. Broadly defined, competent constitutions empower parliaments to enact legislation which often requires or allows sub-legislative enactments. Courts must interpret this hierarchy of law in order to apply “the resulting law” to specific facts, concrete disputes.

    2. Fact-finding occurs in light of relevant law, but to determine what law is relevant one must determine the relevant facts. Disputes do not come to judges, or law offices, with tidy labels classifying them and identifying what field of law should be applied to their resolution. Finding “the facts” and “the law” is a quintessentially cybernetic challenge, involving continuous “co-definition” by which facts and law are mutually clarified, indeed co-creative.

It is not unusual for an appellate court to hear an appeal and then remand (send back) the case for further fact-finding because (among other reasons) it concludes that “the law” initially applied by the court below was inadequately framed or otherwise flawed and hence the trial court’s fact-finding was inadequate: It did not ask the right questions, or it barred one or both sides from asking the right questions, etc.

    3. One cannot emphasize too strongly the value of “settled law” by which the words and phrases of constitutions and statutes and administrative regulations, etc., have been previously interpreted and applied within the context of official judicial resolutions of actual legal controversies.

This is not a “natural resource” but a “cultural resource”; it is arguably more precious than any natural resource; but it cannot “exist” without (a) case law, and (b) law schools that study case law and debate the actual decisions of courts that interpreted the law as a necessary aspect of applying it to specific factual settings.

Countries whose courts provide only formulaic syllogisms to “resolve” disputes have a much higher proportion of disputes needing to be litigated (or resolved by extra-legal means, including bribes and protection rackets) because their law is much less settled; it is not embraced within that larger Ecology of Mind — thinking-rich governance — so essential to societal health and prosperity. And such countries’ law students graduate with a profoundly cramped view of what their role as lawyers and judges should be. Indeed, their lawyers and judges become mere functionaries in a system that denigrates anything but formulaic “thinking” … pseudo-logic that too often ignores experience, the lessons of history, and the wisdoms of generations of judges and other conflict-resolvers trained, through experience, to apply law to facts.

    4. Applying law to facts requires a sophisticated understanding of similarities and differences … within context.

As emphasized above, everything is both similar to and different from everything else. Legal reasoning lives by sorting for relevance — differences that “make a difference” and similarities that “make a difference” (as it were) … that is, make a significance.

Indeed, arguably, every “bit” of significance is what we call information, and “legal information” necessarily partakes of both law and facts. In that sense both law and facts are “law-facts” … bits or encyclopedias of “significance” which, through several … or hundreds … or thousands of specific-dispute-resolutions, make a difference or similarity that ought to be paid attention to, not only by courts but also — long before disputes require judicial involvement — by lawyers advising clients how to arrange their affairs so as to avoid judicial involvement.

***

Professor Peter Maggs co-authored a major “needs assessment” of legal education in the Russian Federation, completed in March, 2003. This study was prepared for USAID, and (as of this writing) is not generally available. It addresses the “stagnant atmosphere” of legal education, the Ministry of Education’s curriculum “straitjacket and other barriers to innovation,” and the dogmatic method of instruction in which students are never challenged to reason critically, etc. See my essay thereon, Theory of State and Law (TSL).

Maggs asserts: “Only through the study of case law is a student able to display independent thinking and the ability to critique the positions of the judge, defense, and plaintiff.” And it notes that the worst law teachers defend themselves by saying that Russian law is based on the German-Roman model, which denies the value of case-based law.

Not entirely incidentally, one wishes this study (a) had pointed out that the origins of Russia’s legal system are not quite that simple, and (b) had noted that German lawyers and judges do in fact pay close attention to prior case law and — unlike the French — are happy to admit it. Indeed, Germany’s judicial opinions, especially those of its Constitutional Court, are becoming increasingly discursive, argument-rich, reflective. Sometimes they include dissents.

European and “civil law” courts generally are issuing increasingly discursive and well-reasoned decisions, and many explicitly integrate issues of statutory construction, social utility, economics, and practical administrability, etc., into persuasive opinions that are easily accessible and often cited in subsequent litigation. This development is healthy.

But news of it has barely penetrated post-Soviet legal education. What is needed is a “virtuous cycle” in thought and action, ideas and institutions, in which changes in mindscape or “software” encourage changes in landscape or “hardware” that allow further changes in “software”, etc. Being able to point out what is working well elsewhere, and why, can be of inestimable value here.

The very opposite is happening in Russia under Putin.

Attention must be paid ….

To be continued.

Note Regarding the Term “Homo sapiens unitus“:

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: barnabas.johnson@gmail.com, topic line: Homo sapiens unitus.

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