SAYING WHAT NEEDS TO BE SAID

Preliminaries to The Conversation of Democracy

Copyright © Barnabas D. Johnson

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Part One

First: These writings offer facts, opinions, theories, speculations, etc., without fear or favor, seeking what is true, good, useful, or illuminating … wherever that search leads.

The Conversation of Democracy does not belong to the United States or any other country or region. No person, theory, or theology has a monopoly of wisdom regarding what is true or good, etc. We must use today’s best tools (including today’s best understandings of history) when shaping today’s best choices, letting evidence-based truths trump evidence-defying dogmas. We must distinguish modern “cultural territories” from ancient mappings of their precursor relics.

Not choosing is itself a choice, yet wisdom born of experience counsels circumspection, even humility: “The pilots on our Western rivers steer from point to point, as they call it — setting the course of the boat no farther than they can see, and that is all I propose to myself,” said Abe Lincoln. Again: The words “government” and “cybernetics” share the same ancient Greek root: kubernetes, the “steersman” or, more generally, the art of the pilot … or — through Socrates’ famous analogy —  the art of wise governance. Socrates was essentially summarizing the entirety of Greek philosophy, integrating Mythos, Logos, and Nomos.

As I detail in numerous contexts throughout these writings, this kind of piloting must integrate knowledge of the changeless (metaphor: “stars”) and the naturally changing (“winds and waves”) in order to alter and fine-tune the humanly changeable: the angle of the rudder, the trim of the sail. Note that the rudder and sail are “linked” not physically but cybernetically, and this linkage is somewhat analogous to that of the three branches of government in a competent constitutional democracy. Changing one affects the others. These branches co-exist, indeed coevolve, in a dynamic “self-governing equipoise” that has been designed — through distributed intelligence, including tacit (unarticulated) cultural know-how — to secure liberty, justice, the general welfare, and institutions of systemic oversight. See Note on Distributed Intelligence. 

Such cybernetic equipoise requires a conception of “self” that is empathetic (able to stand in another’s shoes), not solipsistic (believing that the “self” creates only an illusion of the “other” and, hence — in “extreme solipsism” — that each self “constitutes” the universe). This empathetic “self” appreciates its dependence upon, and obligations toward, numerous external “cybernetic implementers” — implicators?, consequentors? — such as a free press and an educated electorate committed to free inquiry and vigorous oversight; indeed, all “selves” within a healthy “memesphere” of thinking humans must appreciate our dependence, at least for the foreseeable future, upon a healthy biosphere. Any morality that flies in the face of “ecology” — the law of the planetary household — is fatally flawed. No “me” is an island entire to itself. Our coevolving natural and cultural environments incline us towards outward-reaching empathy which, for reasons worth contemplating, call forth a deeper “inner life” undergirding ethics — the will to know, and do, the rational and good — the basis of what the ancient Greeks called areté.

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Determining what is “internal” or “external” to a well-functioning constitutional democracy misses the point: umbras, penumbras, and “emanations from penumbras” compose a much-of-a-muchness whose nature, indeed second-nature (culture) and evolving third nature (to be named?), is … well, cybernetic — mindful of personal and global implications and consequences. This is what makes the kubernetes metaphor of stars, winds, waves, rudders, sails, and the art of the governor so evocative, and hence powerful. Arguably it captures the essence of the human condition: the coevolution of intelligent life, of improving self-knowledge, and of our capacity to choose impeccably — with areté —  to make, to reflect, and to deliberatively evolve conscious governance aimed at enhancing global consciousness and, hence, conscience.

We are still infants in this evolutionary quest. As evidence-based, experiment-enhanced science swallows logic whole, then moves beyond, so the art of choosing and governing with areté swallows science whole, then moves beyond. That is what makes it an art!  Indeed, I submit it is the highest art. The ancient Greek word tekne (from which we get technology) is what we translate as “art” — something we must not forget when we think of “liberal arts”: in essence, making liberty. In this regard, it is also useful to recall that “liberal arts” initially meant those subjects which slaves were prohibited from learning about; the slave-holding elites did not want their slaves to obtain a “liberal-arts education” because this would undermine the slave mentality that kept slaves impotent.

Freedom is a meaningless concept unless it implies informed choice; and such choice is meaningless unless it posits (a) worse and better options for self and society, and (b) rational, enlightened, deliberation-enhanced bases for choices that secure the best: freedom bounded by wisdom. If you think this says no more than that freedom is good and, when wisely aimed at accomplishing more good, is even better — and more secure — you have not missed the point. Some object to such circular reasoning. Cyberneticians rejoice.

The “evolving third nature” (posited above) is a culture deliberatively, rationally, and ethically committed to cultivating global conscience as the highest emanation of Ordered Liberty.

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According to an ancient sequence of ideas, still evolving, those who are equal in securing liberty — ideally, all responsible adults — should be (a) equal in enjoying liberty, and (b) hence equal in restrictions of their liberties, and therefore (c) equal under the law, and (d) equal in the making of law. This sequence undergirds the “invention” of constitutional democracy — majority and coalition rule securing individual and minority rights.

A “theory of justice” undergirds any “theory of democracy” worthy of human contemplation. Likewise, a “theory of law” must undergird a “theory of justice” … as the ancient Nomos undergirded isonomia (equal justice) and, hence, demokratia (democracy); not surprisingly, “isonomia” was used by some to mean “participatory law-making” before “demokratia” was coined. See Note on Sources.

Of course, as suggested above, in experience if not in logic these three theories are mutually-defined within an even more fundamental theory of nature, of culture (second-nature), and of that “global deliberation” which composes emergent global conscience (third nature?), namely, an Ecology of Values animating the Ecology of Mind.

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Second: Law, properly understood, is an art, a quintessentially cybernetic calling: the “liberal art” of (a) converting information and wisdom into reasoned choices supporting ordered liberty, and (b) converting such choices into feedback-cultivating, wisdom-harvesting actions, arrangements, institutions, processes, etc. This art converts scientific descriptions into cybernetic prescriptions and proscriptions. 

Descriptions cannot be obeyed; prescriptions and proscriptions — if important enough to be converted into enforceable law — must be obeyed. Note the vast difference between the following constitutional texts: (1) Everybody has the right to life, liberty, and property, which may only be restricted by legislation. (2) No law, governmental action, or conduct engaged in under color of law may deprive any person of life, liberty, or property except by due process of law, including fundamentally rational and proportional legislation applied with fundamental fairness by independent, impartial courts. (True, both formulations must be contextualized with, for example, a definition of “legislation” which — ideally — makes it clear that “legislation” is the job of the Legislative Branch as distinct from the Executive Branch or the Judicial Branch.) 

Far too many so-called constitutions merely describe a pleasant ideal; everybody “has” this and “has” that; this style was especially prevalent under Communism, and remains worrisomely prevalent in post-Soviet countries. It is literally true that some Soviet dissidents who claimed they did not “have” constitutional rights were tossed into mental hospitals; the constitutional passages they were relying on asserted that they had what they said they did not have; so, obviously, they were insane. While the map is not the territory, the blueprint can guide construction of the house. The only reliable way to “describe” the taste and texture of a wonderful cake to a far-away friend is to send the recipe, the instructions, the blueprint. 

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Converting “knowing” into “making” is the essence of all “art”; but that “making” which includes processes, mechanisms, institutions, and capacities for self-making, self-monitoring, self-governing, and self-improving — integrating interpenetrative “selves” within a global constitutional democracy — is not merely a “liberal art” but the meta-art: that astonishing quantum leap in self-construction, the soul and quintessence of a living, evolving, progress-embracing, liberty-celebrating much-of-a-muchness which is, or is becoming, our Open World civilization. Constructing this Open World is our greatest task, shaping us as we shape its future. That is the province of Ordered Liberty.

We have met our most supernal art, albeit in “enticingly unfinished discussion-draft” form, and it is … us. The Conversation of Democracy aims at its improvement. Being cybernetic, self-referential, and self-transcending, this highest art must include “theories of civilization” that we pass on to our children and grandchildren. Our greatest happiness comes from contemplating their future happiness when recalling our present devotion to shaping a “civilization” worthy of that word.

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The phenomenon of emerging global civilization has no adequate metaphor or analogy because, as suggested earlier, it is an evolving creature of distributed intelligence whose collaborative governance is unpredictably synergetic, artistically cybernetic, and largely tacit: we know it when we see it, or better, when we sense it “in every sense” — and deep within our souls — both (a) when we have it, and (b) of greatest significance from the standpoint of cybernetic theory, when we are threatened with losing it. See Framustans.

This phenomenon is a relatively-new cultural construct; it is evolving and it is “us”; yet we are “babes in the wood” when it comes to understanding it, let alone self-governing it. Although we do not know much about governing this synergetic, cybernetic, tacit embodiment of (on this planet) highest-order evolution, we know that it is a creature of Ordered Liberty — our highest art — and therefore, as already emphasized, it must be be governed in the interests of liberty bounded by justice … according to our best understanding, yet with humility in light of still-unfathomed ignorance.

The Conversation of Democracy seeks to inspire understanding that avoids hubris. This quest partakes of the best of liberalism and conservatism, seeking agreement on essentials — where possible — based on persuasion, empathy, and mutual enlightenment. Where such agreement fails, however, free humans must not shrink from defending Ordered Liberty … using force where necessary. 

These essays focus on enhancing our capacities for persuasion, empathy, and mutual enlightenment, for we need that; we have a short history of cultivating those peaceful capacities, a long history of non-peaceful “default positions” which, while important, are not sufficient.

Too often, “democracy” is dumbed down; yet “constitutional democracy” is an elevated message. Articulating this message powerfully requires us to reject debasing the Conversation of Democracy with sound-bite political and religious posturing.

Genuine leadership in this age of Open World Discontinuity must radiate intellectual gravitas and ethical integrity — persuasive power commensurate with the choices at hand.  

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Third: Numerous “tools of wise choosing” work well in some contexts, badly in others. Numerous compelling values trump all others in some situations, but not in all. For example, a legacy of previous choices — and harvested lessons based on subsequent feedback — have inclined thoughtful lawyers to conclude that some constitutional fundamentals require explicit enumeration; yet arguably the most fundamental are best secured either by being left unenumerated or by being set forth in words and phrases like “Due Process of Law” which, by their nature (their historical DNA) require continuous organic development.

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All “goods” are “bad” when thoughtlessly applied. For example, “discrimination” is good or bad depending upon context; the law discriminates between the good and the bad, often using “invidious discrimination” to denote — and outlaw — the latter.

Let me use the concept “discrimination” as the starting point for a larger inquiry into law, law-making, constitutional democracy, and our quest for global peace and progress based on justice and accountability.

Note the following increasingly-complex contexts:

1. Refusing to hire applicants based on their skin color is almost never lawful in countries that take equal justice and opportunity seriously. Put differently, one does not have a right to discriminate based on race. This, obviously, states a global ideal.

2. Refusing to hire someone based on gender is lawful if gender presents a genuinely-significant, performance-related, and hence legitimate criterion. Obviously, a man cannot be a wet-nurse or perform Violeta in Verdi’s La Traviata. In such cases, one has a right to discriminate. Law must be subordinate to reason. This, again, states an ideal.

3. Arguably, if a private Catholic school for girls can refuse to hire non-Catholic or male teachers, on the theory that such discrimination is legitimate and reasonable in this context (and most would agree it is), then a public school ought to be able to refuse to hire a prospective biology teacher who rejects “evidence-based” science in favor of “faith-based” dogma. This conclusion, whether you accept it or not, obviously implicates far-ranging questions — ultimately addressing what makes us human and what composes a “civilization” worthy of the word.

Note the following increasingly far-ranging questions:

1. Does a public school have the right — indeed, might it have the correlative responsibility — to dismiss a geology teacher who asserts that the world started six thousand years ago, based on inerrant biblical accounts?

2. Do children have the right to be taught critical-thinking skills, evidence-based scientific theories, and the harms previously and currently caused by warring dogmas, or is the purpose of education to provide confirmation of their parents’ unexamined beliefs?

3. Do schools in democratic societies have a duty to equip children to think for themselves, even if this also imbues them with facts, theories, and arguments which their parents assert are “disrespectful” of their deeply-held religious beliefs, including the belief that such disrespect dooms their children to burn in hell for all eternity?

4. Do the world’s constitutional democracies have an obligation, through education and acculturation, to discourage faith-based dogma and encourage evidence-based assertions of fact and value, so as to improve our world’s prospects for worthwhile survival and further healthy evolution?

5. Would the answers to these questions become clearer following a nuclear war between India and Pakistan caused by irreconcilable antagonisms between Muslims and Hindus — assuming that this war was not so devastating, worldwide, that the answers to these questions became moot?

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Above, an initial inquiry into equal-opportunity issues quickly called forth broader issues relating to freedom of religion, the rights of children to become constructive citizens in a constitutional democracy, and the obligations of “advanced democracies” to secure peace, accountable governance, and rational discourse, etc., in order to save our emergent global civilization.

Concrete issues arise in concrete disputes, and context is always of the essence. Here, increasingly-complex contexts call forth increasingly far-ranging questions. The law is a seamless web; pull one strand, and all strands move.

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Arguably, our world’s constitutional democracies must counsel together to secure a proper balancing of rights and responsibilities, worldwide. Arguably our world should gives highest value to freedoms of inquiry, expression, and association, as well as rights to a liberal-arts education focused on enhancing critical thinking abilities, so as to conquer totalitarian ideologies (including religions) with democratic wisdoms — with a view to defeating all warring dogmas. Those dogmas have one key thing in common: their certitude that those who have a different faith are blind or evil and will burn in hell if they don’t convert to the one, true faith (of which their are far too many).

Some assert that those same democratic values are themselves based on “faith” — on mere “beliefs” in free inquiry, reasoned debates, and democratic processes. Words like “faith” and “belief” are used is several ways, however. A person’s “faith” that Jesus was born of a “virgin” (a mistranslation from the Hebrew for “young woman”) does not stand or fall on “evidence” (beyond assertions in a supposedly inerrant holy book); on the other hand, a person’s “faith” in democratic processes is of a completely different kind, if it is worth anything: it is based on personal and historical experience, including painful experience of its opposite, dictatorship. We “believe” in free inquiry, reasoned debates, and democratic processes because over twenty centuries of history has demonstrated that they are better than dogma, thoughtless harangues, and tyranny — better, safer, happier, reflecting the essence of what it means to be human. Being human means having and using intelligence, including the intelligence that makes us doubt virgin births.

My point here is not to map the field of employment discrimination or to set forth how “colliding rights” can be reconciled, let alone to demonstrate why my final use of the word “faith” (above) is not a good choice. Rather, I have sought to present examples of “goods” that are “bad” (and perhaps “bads” that are “good”) in aid of showing (a) that context is crucial, and (b) that who or what supplies this or that context is “of the essence”: the key to living the examined life, to discerning the best course, and to finding the ideal fit between ends and means … assuming that living the examined life, etc., is best.

I hope in these writings to show, with evidence, that it is.

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Part Two

First: Our legacy of “living and learning” knowledge, of experience-based wisdom, inclines us to realize, of course, that having the right to do something does not mean it is the right thing to do.

Having the right to believe in astrology, or broom-flying witches, or a suicide-bombers’ paradise of eager young virgins, or the inerrant authority of this or that holy text, does not give one the right to impose the consequences of these beliefs on others … including, arguably, imposing those beliefs, as such, on ones children’s generation.

Put differently, rights must be hierarchicalized: In a constitutional democracy, freedom of inquiry is a right — indeed, a necessity — which each generation ought to be able to exercise fully, intelligently, powerfully … even when parents, failing to appreciate why this freedom is so basic, wish to educate their children according to values that are toxic, dysfunctional, and dangerous to our planet’s future survival and healthy progress.

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In ethics, if not under enforceable law, no generation ought to have the right to lock its children and grandchildren out of their most fundamental human birthright: To inquire freely, and to collaborate with all others of their generation in advancing the sum and substance of human understanding based on evidence, not superstition. We are engaged in a great experiment upon ourselves and our posterity, testing whether evidence-based illumination can banish evidence-defying dogma. The viability of Regenerative Intelligence Still Evolving (RISE) hangs in the balance.

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A good worker appreciates excellent tools. Pruning the vineyards of prudence requires perfectible tools for an imperfect, evolving reality composed with cruder tools, including earlier conceptions of prudence and jurisprudence — conceptions which the examined life has modified and presumably must modify further … in light of the best jurisprudence we are currently capable of. I hasten to emphasize, however, that the modern is not necessarily an improvement over the ancient. Not all “evolution” is an improvement. Indeed, not all cultural complexity enhances RISE.

For example, operation of “survival of the fittest” in some cultural “ecological niches” such as North Korea or Enron can spawn “evolutionary rogues” which, like the mutated bird flu so feared by the Centers for Disease Control and Prevention, demonstrate not only that evolution is happening all around us but also that, in our time, natural and cultural evolution must coevolve with such “correctives” as our best science and law can muster, else the further worthwhile evolution of regenerative intelligence is doomed.

“Natural-selection” and cultural or “second-nature” selection are closely related; and when cultural selection is embraced within that long-term controlled experiment which “jurisprudence” properly implies — a main theme of these Jurlandia writings — we enter, as already suggested, a new and uncharted realm of “third-nature” selection. There, ends justify means; what else possibly could? Yet those means, if they are to accomplish worthy ends, must reinforce Open Society accountability.

We must be accountable not to some static map or ancient Holy Book but to a living territory — an educable biosphere-become-memesphere — an Open World learning organism whose “book of life” accumulates truths and values tested by experience, by observation, by the scientific method, and (above all) by that open-minded appetite which honors delicious uncertainty.

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Second: Our world cannot afford “the hubris of exceptionalism” in religion, science, politics, law, etc. I once thought I was among the “chosen people”; perhaps you did too (albeit your “chosen people” were likely not mine).

There is — we must be candid! — a “clash of cultures” between those who cling to unquestioning “faith” that they have a special lifeline to God, etc., and those who have “graduated” (for this wisdom usually accumulates gradually) to realize that this sort of “exceptionalism” is excusable in little children but boringly dysfunctional in all others: literalists and illiterates who bow before maps, blind to territories.

A s suggested, what is often called “liberal-arts education” has its ethical basis in our capacity for empathy, our capacity to stand in others’ shoes; this kind of “cosmopolitanism” is essential to “waging peace” in this cultural war. The best antidote for lousy thinking is good thinking, empathetic enlightenment.

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When, in these writings, I surround words and phrases with quotation marks (“inverted commas” as the British say), this often “highlights” what is best perceived in “lowlight”: softly beckoning a closer look, a metaphorical intimacy with … indeterminacy.

Misplaced literalism usually beclouds what “fuzzy thinking” best illuminates: those tendrils of significance reaching out for more questions, not authoritative answers. The tools of “inexact” knowing and thinking are our best friends, at times, precisely because they are not precise … they are not expected to do too much. They are, in a word, heuristic: invitations to further exploration.

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I emigrated from England to the United States at age 12 in 1955, our ocean liner passing the Statue of Liberty with hushed reverence: “America … Abe Lincoln … Land of the Free, with Equal Rights under Equal Laws!”

I love America, even as I criticize its many faults. If we can make a success of constitutional democracy in this diverse, wealthy, wasteful, forgiving land, our world will have better cause for greater optimism — despite the awesome problems facing humankind.

Hope is the mainspring of life, but it must be based on genuine confidence reflecting authentic competence. The Conversation of Democracy aims at building distributed intelligence supporting such competence.

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The focus of the Jurlandia website is global, although many essays address U.S. constitutional law and practice specifically, or problems and practices in other countries or regions (for example, in Armenia; see Why Publish Judicial Decisions?)

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In learning, we move from the “better understood” to the “less understood”; this approach is generally best, but it can lead to fallacies, including dangerous delusions, especially where analogies and metaphors, etc., are pressed too far or are “over-concretized” in ways that emphasize trivial similarities or differences, etc. This is the focus of my long three-part essay, First Trinity (only Part One is available as of early 2006).

Thinking of our world as a single living organism that is becoming self-reflective and self-governing, etc., offers a powerful tool of thought; but, obviously, our world must be its own “best metaphor”: similar to so many things we know about, yet ultimately and fathomlessly different.

Jurlandia’s writings seek to explore similarities and differences, metaphors and metalogues, etc., with that caution and humility which is the true mark of intellectual and moral courage. See my essay, Hubris.

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Third: When it comes to building a world where “we the people” create a government of limited, enumerated powers so as to secure the blessings of liberty for ourselves and our posterity, the United States — despite its failings and perhaps because of them — provides a superb “point of departure” for discussion.

This is largely due to America’s long, instructive, and illuminating (also in its pitfalls) experience in building “liberty under law” throughout a federated system of governance — with 50 state governments, plus layers of robust local governments — based on “separation of powers” … as this concept has evolved in the United States, as distinct from France (and countries modeled thereon) where that phrase has a very different meaning.

American “separation of powers” is really a “triangulation of powers” among co-equal branches — the legislative, executive, and judicial — aimed at maintaining checks and balances. The French model in effect reduces the judge to a mere government functionary, and the law — whether parliamentary legislation (within enumerated limits) or administrative “legislation” (within largely unenumerated limits) — is “judge-proof” in the sense that courts are extremely limited in their capacity to check parliamentary or administrative abuses. This conception of the judge’s role is beginning to change in France and has been largely rejected by advanced “civil-law” countries. See Note on The French Deviation.

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Yet current debates regarding a “constitution” for the European Union deserve careful attention; to some extent, I believe, the “center of intellectual gravity” in constitutional theory is moving away from the United States. This is partly due to the hubris of too many American leaders who, especially in recent times, have been far too dismissive — indeed, ignorant — of the truly illuminating (also in its pitfalls) “experiment” which the E.U. embodies; I write this following rejection by the French and Dutch of the constitutional text proffered to them in 2005; indeed, I consider these rejections to be evidence that the E.U. is currently engaged in extraordinarily significant intellectual ferment, democratic reform (especially from the standpoint of its newest Central-European members), and political innovation. America is not paying sufficient attention to this.

To cite one important issue: Much of my work on “rule-of-law engagement” in countries within the Former Soviet Bloc (FSB) was funded by the United States, principally through USAID; in this work, I found frequent resistance among American “powers that be” to the premise that these countries see the road to their future as passing through Europe, not the United States.

Now, I have become convinced of the fundamental superiority of “common-law” jurisprudence over “civil-law” jurisprudence in some important respects. Most notably (as growing numbers of civil-law countries are coming to appreciate), it is essential to understand that “controlling rules of decision” in well-functioning legal systems are “revealed” not through abstract principles or formulas but through concrete judicial findings and conclusions resolving actual “cases and controversies”; in short, case-by-case adjudication is by order and dimension cybernetic, self-correcting, an essential element of a constitutional democracy that aims to be a learning organism.

That said, however, I must add that I am sometimes appalled by the sheer ignorance and hubris of American advisers in the FSB, including law professors, whose advocacy of “American models” does not translate or travel well. Another example, here, is American advocacy of jury trials. I am a staunch believer in jury trials, yet their successful export to countries where they were previously unknown might not be worth the effort. This is a huge subject; my purpose in raising it here is merely to provide examples of subjects where “American exceptionalism” cuts both ways: yes, we might be exceptional; no, that uniqueness might not be “meaningful” in some contexts. Nothing makes sense except in context.

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Future historians will likely look back upon our era as one of extraordinary creativity in “constitution making” and in the institutionalization of the Rule of Law … or, perhaps we should put it this way: If our world is to evolve in a worthwhile direction, one of the evidences of such success will be that historians (a) will be able to record the past with fidelity (something not to be taken for granted; it was forbidden in the USSR), and (b) historians are likely to record not only that our era was one of extraordinary creativity but, indeed, that it was one of true brilliance.

And the most creative and brilliant manifestation of this, they will conclude, is that we avoided drawing conclusions too quickly and “remaking” our world too assuredly. The “founding parents” of the world that must be brought into being are our children; thy must create for their own children a world that is not a cul-de-sac from which their grandchildren cannot “back out” and ask anew: What is true, what is good?

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Blessed with “hypertext-metalogues” of facts, ideas, speculations, etc., we have a growing abundance of worthwhile “starting points” available to us; Jurlandia celebrates a multiplicity of approaches and discussion threads, both within this website and outside.

A key discussion thread is how we can build better “tools for building better tools” of thought, communication, and cultural construction, etc., regarding learning about learning about our “learning planet” in its infancy, namely, today.

See Note on “The Advancement of Learning”.

See The Enterprise of Integrative Jurisprudence.

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Part Three

First: As noted, the Jurlandia website offers facts, opinions, theories, speculations, etc., without fear or favor. All assertions reflect reliance on the seemingly-obvious evolution of “seed ideas” — including ideas about the value of seeking “the truth” about “the good” — which some, alas, consider heresy, believing (so they claim) that seeking the truth about the good is “Original Sin” … eating the Fruit of the Tree of Knowledge of Good and Evil. This archaic, dysfunctional, indeed toxic reaction against the essence of what it means to be human, truly human, must be tackled head-on!

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All significant religious and philosophical “traditions” have sacred or authoritative texts which (a) could be taken to “mean” various things, but (b) have been taken by some to mean this, or that, or the other, all of which viewpoints have invited, perhaps promoted, philosophical fights, religious schisms, nasty spats, even “holy wars” … which, in retrospect, ought to bring embarrassment.

I want to be kind; I don’t want to inflame further needless controversy; but straight talk is essential: Warring sacred texts have caused quite enough harm already! Recourse to authorities, ancient and modern, has its place, of course. Standing on the shoulders of intellectual and moral giants expands our horizons. But, ultimately, our world — as a world — must think for itself.

We cannot afford intellectual and moral laziness. We must not avoid actively and energetically seeking the truth about the good according to our current best lights … and, if this brings you into conflict with “received wisdom” or (fill in this blank with whatever your inherited dogma says ought to occupy this space), then, for the sake of our planet’s future, embrace that conflict!

And resolve it according to your answer to the following question: Do your answers depend for their validation on a text, as distinguished from what you know is true based on your experience and, even more persuasive, human history?

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Let us assume a Plan A: that we all want to be governed by “the best” (whatever that might be). But if we disagree about what (or who) “the best” is — as humans have disagreed throughout history, often at terrible cost — then we have to go to Plan B: discussion, principled debate, majority and coalition rule balanced by minority and individual rights, etc.

And Plan B turns out to be a very good plan.

I discuss this further in my 1998 essay, Constitutional Democracy. I think the subject requires deeper consideration, and I plan to delve further in due course.

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Plan A is stuck in slavery. Plan B forces us to become unstuck, requires us to be free, to make choices, to experiment creatively yet responsibly with constitutional democracy — liberty bounded by reason, justice, and … the equal opportunity for each human to become the best “me” possible. Plan B embodies “the best” in ways that Plan A never can.

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Second: There are those who ardently believe that it is “sin” for humans to “make law” and “build civilization” based on “human understanding” as distinct from their particular version of Divine Writ.

I suppose that if all the world’s occupants agreed on this or that specific Divine Writ, we would not need the Conversation of Democracy.

How blessed we are not to have to face so barren and boring an existence!

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Short of coercing “agreement” on the structure and character of our world, we have no choice but to rely on, indeed rejoice in, the Conversation of Democracy.

And what a glorious lack of choice it is! As I cannot allow others to foist their facts, opinions, speculations, divinities, or “theories of everything” upon me, so I must celebrate something far more precious: genuine debate, the power of thoughtful persuasion.

It is not merely good enough; it is the very best. 

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If it is “heresy” to assert that humans must seek wisdom so that we may find virtue and avoid evil — including the evils of toxic religious zealotries — then (a) so be it, our world needs such heresy, and (b) the Founders of the United States definitely did not endorse so cramped and pessimistic a dogma. In fact, they sought to free American politics and public-policy formulation from simpleton creeds of every kind. They believed that wisdom and understanding are, and must remain, the basis of virtue.

Franklin, Washington, Adams, Jefferson, Hamilton, Madison, and so many others, were essentially “Deists” who explicitly rejected the idea that humanity needs to be “saved” from principled bases for distinguishing good from evil.

To say that they were “men of faith” begs the question: What faith? They were men of the Enlightenment.

They believed in the redemptive power of free inquiry.

They committed the Unites States to the Conversation of Democracy.

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Third: The Founders engaged in “moral reasoning” and “legal reasoning” based on “the Laws of Nature and of Nature’s God”: a phrase that came right out of the Enlightenment and is central to the “natural law jurisprudence” undergirding “natural rights” such as those guaranteeing freedom of conscience, inquiry, expression, and association.

Although I assert in these Jurlandia essays that the phrases “natural law jurisprudence” and “natural rights” are problematic — for it seems clear that liberty, justice, and accountable governance are co-causal “second-nature” (moving into “third-nature”?) cultural constructs — the important point here is that civilization is nothing if it is not “eating from the tree of knowledge of good and evil.”

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The Founders’ jurisprudence embodied “legal reasoning” that went far beyond dry, stale logic; law was seen as evolving, based on historical and empirical inquiry, living-and-learning experimentation, and the conviction that — in due course — we will likely understand better and therefore do better.

The founders’ precious “common law” was not explicitly incorporated into their Constitution because that incorporation “went without saying” … as did the presumption of innocence in criminal cases, or the burden on prosecutors to prove guilt beyond a reasonable doubt, or the right of “jury nullification” resulting in a refusal to convict those who break unjust laws. See “Original Meaning” of the Constitution.

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The Founders were living in an Age of Discontinuity. Their ultimate faith was in the power of humans to “shape” both ends and means. Their quest for the truth about the good was not careless heresy but caring heroism. Their Constitution, born of imperfect conditions and difficult compromises, was a tool to make better tools based on faith in reasoned discourse, parliamentary processes, and the unfinished ideals of liberty under law.

We honor them best by carrying their work forward competently, seeking now as they sought then to find the truth about the good. They lived in a time of discontinuity; we live in a time of discontinuity; constitutions, parliaments, independent courts, and an informed and politically-active citizenry remain our best “tool-making tools” for facing the future optimistically, competently, responsibly.

Go Back to Part One.

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Note on Distributed Intelligence: Every person knows many things, including that many things we do not personally know (or do not know well) are known by others (or known better by others). Understanding anything requires a growing appreciation of its connections with everything. Human intelligence becomes increasingly “distributed” and decentralized. Understanding becomes increasingly emergent (see Note on “The Advancement of Learning”, below). See Note on Distributed Intelligence, an expanded discussion within The Conversation of Democracy. (Go back)

Note on Sources: A superb compilation of recent scholarship on this subject is Josiah Ober and Charles Hedrick, eds., Demokratia: Conversations on Democracies, Ancient and Modern (1996). One is struck by how much more seems known now than was known even recently about the origins of Nomos, isonomia, and demokratia. But one is also struck by how many points remain shrouded in linguistic and historical fog. (Go back)

Note on Distributed Intelligence: Every person knows many things, including that many things we do not personally know (or do not know well) are known by others (or known better by others). Understanding of anything requires growing appreciation of its connections with everything. Human intelligence becomes increasingly “distributed” and decentralized. Understanding becomes increasingly emergent (see Note on “The Advancement of Learning”, below). See Note on Distributed Intelligence, an expanded discussion within The Conversation of Democracy. (Go back)

Note on The French Deviation: The “classical view” (still essentially intact) of “separation of powers” in France is discussed in John Henry Merriman’s article, The French Deviation, at 44 Am. J. Comp. L. 109 (1996) [The American Journal of Comparative Law, Volume 44, Winter 1996, starting at p. 109.] Interested readers should consult the entire article, which unfortunately is not available on the internet for free; subscription services like Westlaw carry it.

The following paragraph is from pages 111-112.

“The doctrine of separation of powers also required that the legislature be protected against judges.  This obviously meant that judges could not legislate or otherwise make rules applicable to future cases, but it also meant that judges could not question the validity or alter the meaning of legislation. The judicial function was to apply the law to the facts and pronounce the result — to be, in Montesquieu’s famous phrase, “la bouche qui prononce les paroles de la loi” [the mouth that pronounces the words of the law]. At the extreme this meant that judges should even be denied the power to interpret the law; faced with a problem — an unclear legislative provision or a lacuna in the legislative scheme — the judge was ordered to suspend the action and refer the question to the legislator for authentic interpretation.  The unworkability of the so-called refere legislatif soon became evident, and the French courts were conceded the power to interpret laws.  The emphasis then shifted to justification and limitation.  The justification literature sought to explain how the judge who supplied meaning to an unclear statute, or chose between alternative meanings of an ambiguous statute, or supplied a rule when the case was confronted by a lacuna in the formal legal order could do so without “making law.”  The literature on limitation sought to protect the legislature against judicial law-making in the guise of interpretation.  The legislature provided a check against judicial abuse of the power to interpret the law by establishing the tribunal de cassation, described as pre du corps legislatif, to review judicial interpretation and application of the laws.  The evolution of this legislative tribunal to the cour supreme de cassation, standing at the apex of the (ordinary) judiciary, is the topic of an interesting subsequent history that cannot be explored here.  The paradoxical outcome is that a legislative organ that was established to protect the legislature against judges has become a court standing at the head of the ordinary judiciary, staffed by judges.” (English translation added)

I have attended numerous dinners in the FSB where American lawyers and judges, and their Soviet-trained counterparts, lustily toasted “separation of powers” without having the slightest inkling that they were toasting completely different conceptions of that phrase!

See Why Publish Judicial Decisions?, focused on Armenia’s efforts to get beyond Soviet, Russia, and French conceptions of the role of judges, especially with reference to the need to publish judicial decisions.

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But this problem goes far deeper. Some legal concepts simply cannot be translated from one language or legal culture to another. For example, “appellate review” or simply “appeal” in the United States (including but not limited to “judicial review” of the constitutionality of legislation) are very different from “cassation” in France (and countries modeled thereon). Likewise, cassation are very different from “revision” (another word borrowed from France); and these three concepts differ from other judicial activities in which a higher (especially highest) court addresses the correctness or adequacy of lower-court “findings” or “holdings” or “rules of decision” and similar concepts. Much of Russian law, and hence of Soviet law, borrows heavily (albeit “formalistically”) from post-Revolution France. See, generally, Post-Soviet Law Reform and Legal-Education Reform.

The study of comparative judicial systems (and terminologies) is further complicated by the fact that countries differ in what they consider “judicial business” as distinct from “administrative business”; thus, whereas the French (for example) frown on case-by-case “lawmaking” by courts, their “administrative law” — which addresses many subjects that would be considered “judicial business” in the United States — is almost entirely developed from case-by-case decisions … of “administrative tribunals” rather than “courts”! The fact is, most lawyers world wide are under the impression that the “civil law” systems depend on “codes of law” whereas the “common-law” systems depend on “judge-made” law, yet in fields like administrative law almost the opposite holds true.

American “rule-of-law engagement” in the FSB has contributed to an already very tangled “legal culture”; this has been well-meaning but harmful. The U.S. has spent huge sums, for example, translating the laws, etc., of Russia and other FSB countries into English, and these translations almost invariably use “appeal” to refer to what, in these countries, is actually revision or cassation. Furthermore, U.S. taxpayers have been sending American legal advisers and law professors to “teach” Soviet-educated lawyers, but far too many of these Americans have been utterly ignorant not only of Soviet and post-Soviet law but also, just as significant, the evolution of the Western Legal Tradition and of comparative jurisprudence, whether in the FSB, the E.U., or even England. British “common law” is remarkably different from American; most notably, the United Kingdom does not allow judicial nullification of parliamentary enactments.

Law is dependent upon language; the tools of legal thought and communication are “text driven”; yet, worldwide, comparative-law studies barely scratch the surface of linguistic tangles arising from situations where people think they are adequately communicating when, in fact, they are merely adding further to such linguistic, and hence jurisprudential, tangles.

See Sophie M.F. Geroms, Comparative Law and Legal Translation: Why the Terms Cassation, Revision, and Appeal Should Not be Translated, 50 Am J. Comp. L. 201 (2002). (Go Back)

Note on “The Advancement of Learning”: This is an ancient phrase, and also the title of a major work by Francis Bacon on the scientific method.

It is clear from Bacon’s essays that he conceived the “advancement of learning” as an “embodiment” with a sort of life of its own, borne forth by history, science, jurisprudence.

It is synergistic, emergent: the whole being unpredicted by its parts. See further discussion at https://jurlandia.org/convdemoc/#Note_on_Synergetics.

Some claim that Bacon wrote the plays attributed to William Shakespeare. Bacon’s coat of arms showed the Goddess of Wisdom shaking her Spear of Learning at the Serpent of Ignorance.

“Will Shake Spear” conjures ancient Greek commitments. (Go back)

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