The (arguably) Necessary Implications
Of Knowing That One is One and All Alone
And (or so it seems, but then?) Ever More Shall Be So
The First Trinity of the Western World was the Mythos, the Logos, and the Nomos. Ontology (what is?), epistemology (how do we know what is?), and teleology (so what?), were a triune "growth" out of the Logos element. They, and especially teleology, played a crucial role in creating the Nomos element, thereby converting the Mythos-Logos dyad into the Mythos-Logos-Nomos Triad, the First Trinity. These fundamental "seed-ideas" remain co-creative, coevolving … changing us still, making us wiser, our world better. An early product of this "ecology of ideas at work" was the development of isonomia (iso, equal; nomos, law). It was and remains equal liberty's corollary: equal justice. If we are to be equal in our liberties we must be equal in the restrictions on our liberties.
This isonomia was the parent of demokratia. If we are equal under the law, then we must be equal in our making of laws, equal in our civil and political rights.
Weaving a tapestry of history, philosophy, science, personal experience, and bold speculations regarding our world's future, this essay seeks to enhance appreciation for liberty bounded and secured by isonomia and demokratia, thereby advancing the cause of constitutional democracy worldwide.
This essay is composed of three parts, each of which provides hotlinks to other Jurlandia essays without regard to whether those hotlinks are supplied in other parts of the essay. This is a "heuristic effort" — a carefully-crafted "rough draft" to help structure further Jurlandia writings which, in due course, can feed back and help compose a better rendering, an improved heuristic. Illuminating constitutional democracy is a journey, not a destination.
I – PLAYING GOD
The "life" of the Nomos is experience, not logic-based or faith-based certitude. It is not just any kind of experience, it is that kind which we obtain through our systematic cultivating and harvesting of "feedback" regarding (a) the best ways to learn from the past and thereby build toward the future, and (b) the best ways to use what we have learned in order to do justice today and improve on justice tomorrow.
Justice, isonomia, is the highest goal of the Nomos. Paraphrasing Aristotle, if I would be happy (the definition of which has called forth a huge literature) then I must be just, and to be "truly just" I must help build a society that aims at doing justice. This justice, as previously noted, should allow each to find and peruse his or her personal areté: excellence. Liberty is essential, but — just as essential — equal liberty must be bounded and secured by equal justice.
Justice is a "social construct" that exists only because it is being constantly renewed, reconceived, reborn in our hearts … generation after generation … learning from the past, coevolving with the "present-becoming-future" … improving, progressing.
Justice is as justice does. Indeed, arguably, it is a mistake to speak of "natural justice"; there is no "justice" between lions and lambs; justice is a creation of that "Second Nature" which we humans have responsibility for: the stuff of emerging global culture, the Cybernetics of Civilization.
Those cybernetics reflect "synergism" in its ancient sense: the necessary cooperation of "Humanity" and "Divinity" in "Creation" and "Regeneration" within our planetary neighborhood; as President Kennedy put it, noted earlier, "here on Earth, God's work must truly be our own."
Doing justice, we "play God"; checking and balancing highest values, we "are as Divinity"; we should not evade this responsibility out of false modesty or immodest illusions.
This reminds me of an old joke:
A holy man is standing at his door watching the heavy rain and rising river. His neighbor drives up and offers to take him to higher ground. "No" says the holy man, "I'm trusting that God will keep me safe." Next day, as the holy man looks out from his upper-floor window at the waters swirling just below, the sheriff comes by in a power boat and offers him a ride to the community shelter. "No" says the holy man, "I'm trusting that God will deliver me from danger." Next day, as the holy man clings precariously to his roof surrounded by raging floodwaters, the rescue squad flies in with a helicopter and begs to take him to the nearest hospital. "No" says the holy man, "I'm trusting that God will not abandon me in my hour of desperation." Next day, having drowned, the holy man approaches the Pearly Gates and cries in agony, "Dear God, why did you abandon me?" God answered: "I sent your neighbor, then I sent the sheriff, and then I sent the rescue squad with a helicopter — what more could I do?"
False modesty and immodest illusions cannot avail us. Doing justice, creating constitutional democracies aimed at securing liberty under law — these tasks are not works of Nature — they do not depend on what is often called "Natural Law" (although in the name of "Natural Law" much good has been done, but much evil, too) — no, dear children of unfathomable mystery, that is Our Task.
It is by order and dimension the task of Regenerative Intelligence, of our "Second-Nature" Cybernetic Civilization — an enterprise that seeks to integrate all knowledge into areté-focused wisdom, then converting that wisdom into choice, that choice into will, that will into action … and more! … continuously monitoring results with a view to fine-tuning our understanding of areté … whose character and definition is "feedback-dependent" and thereby shapes further wisdom, choice, will, action.
As the ancient Greek philosophers discovered, the Mythos-Logos dyad is unstable and unhealthy unless aimed at something beyond: areté. Thus aimed, thus triangulated with noble purpose, that dyad becomes the Mythos-Logos-Nomos triad, the First Trinity. Its noblest purpose is to create conditions favoring further wisdom, refined choice, freedom-enhancing action, areté-advancing progress. If this sounds like that bugaboo, circular reasoning, mutually-defined concepts, you're getting there; bring a friend!
Nomos builds a sort of "concordance of discordant canons" aimed at "pretty good solutions" which do not lock future generations into previous-generations' insufficiently-examined certitudes, but, rather, provide safe ways for emerging civilizations to proceed towards better solutions: finding their own best solutions while also ensuring that they will not lock their children and grandchildren into "worthwhile-evolution-impairing" rigidities.
Not entirely by accident, the great synthesis of Greek philosophy, Roman law, and Judeo-Christian-Islamic monotheism which gave birth to the so-called Western Legal Tradition — as discussed in my essay, Post-Soviet Law Reform — gave birth to the first true "legal system" whose first legal treatise was Gratian's Concordance of Discordant Canons (1140). But the "concordance" we need for our own time must build upon the experience of an additional nine centuries of jurisprudence.
Modern law, drawing upon the best of ancient Nomos, provides a "pretty-good-safe-haven" that can convert irresolvable disputes into "mere lawsuits" which (a) treat all sides, whether prince or pope or pauper or professor or John Q. Public, as equals, and (b) provides a forum whose focus is "principled adjudication" based less on belief and logic than on experience, the "Book of Life": history told with fidelity, including generations of "case law" that has been systematically recorded with a view to creating and refining justice-building "meanings" (what the so-called Civil Law systems call "jurisprudence") by which the past instructs the present and forges the future. This "pretty-good path" is illuminated, I hope, by the following discussion.
II – ORDAINING CONSTITUTIONAL LAW
The Constitution of Jurlandia contains provisions which might variously be interpreted to allow or prohibit abortions. While each element of that Constitution, by its terms, must be interpreted in light of all other elements, such "balancing" must be supplemented by specific instructions on some contentious points.
Consider Article 1 of Chapter Five. This chapter addresses human rights. It follows the first chapter (which defines "legislation, regulation, ordinance, or rule" and other phrases used below, and also sets forth fundamental principles of constitutional interpretation); and it follows the second, third, and fourth chapters, which establish (and limit) the powers of the Parliament, the President, and the Judiciary, respectively.
1. The Parliament shall not make or allow, nor shall the President implement or enforce, nor shall any person obey or uphold, any legislation, regulation, ordinance, or rule that deprives any person of life, liberty, property, or any other rights, privileges, or immunities, without due process of law.
(1) By "due process of law" this Constitution means a fundamentally fair and reasonable command or procedure, under the particular circumstances, as that concept has evolved in advanced constitutional democracies. The people of Jurlandia hereby instruct the Supreme Court that it shall interpret and embrace all of Jurlandia's law within a firmament of rationality and justice according to the fundamental precepts of advanced constitutional democracies.
(2) By "fundamentally fair" and "reasonable" and similar terms, this Constitution instructs that the Supreme Court shall find, refine, and evolve standards that are based on wisdoms developed out of historical experience, including the experiences of countries that have sought to give these terms an elevated meaning over centuries, so that these terms — applied and refined on a case-by-case basis in Jurlandia — shall, in due course, provide ascertainable standards of fair and rational conduct for all legislative, executive, and judicial officers.
(3) This Constitution instructs the Supreme Court that, in applying standards like due process of law and equal protection of the law, the Court will develop a jurisprudence of "case law" that will refine and clarify the meanings of all the terms of this Constitution, thereby providing genuine and enforceable guidance to lower courts and all public officials regarding the standards of conduct required of them under this Constitution.
2. Deprivation of life shall not be regarded as contravening this Constitution when it results from the use of force that is no more than reasonably necessary in defense of a person from unlawful violence, or when it results from the application of proper procedures, pursuant to legislation, covering:
(1) A request by a person who would otherwise be kept alive by artificial means, to terminate his or her life; or
(2) A request by a pregnant woman to terminate her pregnancy.
3. With reference to paragraph 2, subparagraphs 1 and 2, the people intend to avoid constitutional confusion by specifying that, if the Parliament legislates on these specific subjects, then the Supreme Court shall not interpose a constitutional prohibition on such legislation; to this extent, and in this way only, the due process of law requirement with respect to the "right to life" may be modified by legislation.
4. All persons shall be equal before the law and shall be entitled to the equal protection of the law. No law and no executive or judicial action may either expressly or in its practical application discriminate against any person on the basis of age, gender, nationality, ethnicity, race, color, language, social origin, place of birth, family, religion, or political or other opinion. No bill of attainder, or any legislation intended to punish or discriminate against any particular person or association, shall be enforced, and all laws shall treat all similarly-situated persons, groups, associations, or classifications thereof, similarly, in the interests of justice. Nothing herein shall be construed to prohibit classifications among persons based on bona-fide, rational criteria that serve a compelling governmental interest that cannot be served by a less restrictive alternative.
Article 1 was intended (like all of the Constitution) to ordain enforceable law. The aim of paragraphs 2 and 3 was not to either allow or to prohibit hotly-contested conduct but, rather, to avoid a constitutional crisis regarding who decides whether to allow or prohibit such conduct.
How? By answering: Who decides?
That question — who decides? — has caused great constitutional conflict in Germany and the United States, among various countries. Germany's Federal Constitutional Court ruled against the treaty of union between West and East Germany, which allowed abortions in the latter; the Court based its decision on the "right to life" guarantee of Germany's federal constitution (the "Basic Law"), thereby — in effect — overriding Germany's federal government and federal legislature. On the other hand, the U.S. Supreme Court ruled against state statutes that forbade abortions, based on the federal constitutional right (within limits) of a woman to choose whether to bear a child. Opponents of these decisions in both countries argued that their highest courts lacked the power to decide these questions.
Experience suggests that a competent constitution ought to resolve the question: Who decides?
Article 1 does so by ordaining that this issue should be left to the legislative rather than the judicial branch.
Perhaps there is a better way of resolving that question. But not resolving it invites bitter disputes and potential socio-political chaos. A competent constitution needs to "instruct" how such questions should be decided: who, what, when, where, how, etc., as necessary. Sometimes "deciding wrong" is better than not deciding at all (especially where the law allows, indeed requires, periodic "second looks"). This, arguably, is such a situation: we must live and learn, as individuals and societies, and "revisit" difficult questions … freely, yet bounded by the Rule of Law, the Rule of Reason, and hierarchies of meanings and values integrated within the Ecology of Mind checked and balanced by the Ecology of Values.
I think Article 1 ordains a good choice, all things considered.
Article 1 first appeared in our proposed draft "Constitution of Lithuania" (as discussed above, in Part Two). The American-Lithuanian Diaspora objected strenuously to this article, asserting that by permitting legislation allowing abortions this document would "encourage" abortions. The fact that the document equally permitted legislation forbidding abortions made no difference to these critics. We even learned that a high State Department official had been making speeches excoriating two "Western advisers" who had tried to "impose" abortion rights on Catholic Lithuania. The fact that many Lithuanians had grown accustomed, during Soviet times, to "choice" in such matters, made no difference to those who cared more about faith-based theological correctness than experience-based constitutional competence.
Good ideas do not necessarily succeed. Competent constitutions aimed at averting constitutional crises do not necessarily trump "zealotries" based on this or that interpretation of these or those Holy Scriptures, whether Christian or Moslem or Hindu or Herword (Eastern Stripe). In this case, Article 1 does not "allow" or "encourage" abortions any more than it prohibits or discourages them, it "merely" makes competent law — based on experience — which, if adopted, will answer questions that otherwise remain dangerously unclear: In whose court is the ball? What if any limits does this decision-maker have to respect? And, if people don't like the result, what can they do about it? This draft constitution addressed these and similar questions which, if ignored, invite constitutional chaos.
Our world needs to get better at systematically "thinking through" all the implications of every public-policy choice, including whether "dictates of so-called faith" or "dictates of so-called reason" should be allowed to curtail further debate on controversial questions. A constitution which leaves the question of allowing or prohibiting abortions to elected representatives, and hence to the political process, has merit, if only because this course promotes further discussion of an issue which obviously needs it. This, of course, assumes that the political process is open to serious debate — that vigorous arguments rather than bumper-sticker slogans will make a difference. Free and fair elections are essential to the cybernetics of society. Political corruption, such a fixing legislative-district boundaries so as to reward incumbents and ensure the victory of entrenched interests, are intolerable.
The best gift which "mature democracies" can give to countries and regions struggling to establish democratic rudiments is to show that a good constitution is, indeed, a journey, not a destination, and that all good democracies must take periodic stock … and scrape of encrustations of sclerosis, corruption, big-shotism, etc.
All parts of a constitutional democracy must work tolerably well, else the whole enterprise suffers and people lose faith in "democracy" … having, perhaps, never experienced a competent constitutional democracy.
III – BIG DIFFERENCES AND SIMILARITIES
This website seeks to discover or develop recipes or blueprints or maps leading the way — through various damned-if-you-do, damned-if-you-don't "double binds" — towards a sustainable, democratic, planetary "Rule of Law based on the Rule of Reason" … a mental construct whose illumination, and eventual realization, seems to be a worthy goal.
In light of the above assertions regarding Mythos, Logos, Nomos, and the Ecology of Mind checked and balanced by an Ecology of Values, etc., many "open questions" obviously remain. The following progression might lead to further useful inquiry:
A. Does illuminating human institutions such as the Rule of Law, the interaction of law and religion, and the relationship between "fact based" and "faith based" reasoning change them, and hence transform us?
B. Is that which many call "God" illuminated and hence changed by our efforts to fathom the First Trinity of Mythos, Logos, and Nomos? Can the world's warring religions find common ground through such efforts at illumination?
C. Might logic, science, and cybernetics — the art of "self-correcting self-governance" — shed useful light upon the contours of that new "global religion" (for lack of a better term) which might free us from our warring certitudes, might liberate future generations from all those toxic "isms" that impair our world's prospects for further worthwhile evolution, thereby (dare we dream?) allowing humanity to build a planetary civilization where peace and progress prosper, where justice is secure, and where … oh-so-close, yet still-too-far … wisdom prevails?
These are, indeed, open questions.
Progress comes slowly, and with many backward glances.
We have apprehended that everything — arguably — is both similar to and different from everything else, and that it is we humans who seek to identify and map those differences and similarities, thereby — if we honor our "embeddedness" within this endeavor — supplying the context of our quest: human understanding aimed at wise choice and impeccable action.
This quest is somewhat like that of the Billiken: the ancient-infantile "God of things as they ought to be" — ever young, always open to new explorations, yet firmly rooted in experience and history.
As suggested, it is possible, perhaps likely, that seeing everything as both different from and similar to everything else reflects the fundamental architecture of the human brain, parts of which focus on particulars (differences?), parts of which focus on patterns (similarities?), and parts of which focus on integrating all our experiences, including our experiences of that "dance of differences and similarities" which, arguably, is the seed of consciousness (see next paragraph). Even the seemingly-opposite concepts of "everythingness" and "nothingness" are similar in the sense that they are mental constructs which (on reflection) we recognize as being our old-new friends: tools to facilitate thought and communication.
It is possible, perhaps likely, that each individual brain's "creation" of self-consciousness reflects its need (met, over time, with evolving improvements of capacity) to integrate all our bodily organs and life experiences into a more-or-less coherent whole, which then (perhaps erroneously) leads that personal "self-conscious one" to generalize from its inner experience of integrated wholeness to posit a universal "outer world consciousness" governing the Wholeness of Creation. It is possible. Perhaps likely. Yet that posited "outer world consciousness" — named "God" by some — is less mind-boggling, and arguably less interesting, than is the true task at hand: not "Mind in Nature" … as mysterious and wonderful as this seems … But Mind reshaping and transforming Nature.
Hundreds of billions of galaxies, each containing hundreds of billions of stars, of which our sun is (we would like to believe) above average, all challenge our intellectual capacities, that is true. Yet … .
Yet all the atoms and quarks and complexities of physics are nothing compared to the staggering complexities of human relationships — of human institutions and traditions and "legal undertakings" constituting a marriage, a village, a city, a federated polity, a multinational corporation, our webbed world of billions of humans each with hundreds of billions of brain cells, each cell linked on average to 20,000 other brain cells, and all those hundreds of trillions of "mind stuff" linkages (somehow or other) linked to all the great books and research reports, etc., ever produced … and to Bach and Shakespeare and Mona Lisa's smile and Dear Abe's Gettysburg Address — now, that merits pondering.
Human relationships, constitutional democracies, equal liberties and opportunities for all … that the Ecology of Mind and the Ecology of Values might have the full benefit of all of us billions of humans each contributing the "best me" that each is capable of becoming … thereby enhancing our world's chances of understanding better what needs to be done … and how to do it best … that is the goal of the Rule of Law based on the Rule of Reason.
We have shaped these tools, and they have shaped us.
Over time, this co-creative process will "ape" us in the sense that we current carriers of Regenerative Intelligence will be viewed … respectfully, of course … as "lower beings" compared with what our "successors in interest" will become. They will be "carriers" of Regenerative Intelligence Still Evolving in ways we can hardly guess at.
But only if they, too, uphold liberty bounded and secured by justice … for all the reasons that we must do so, and perhaps — inventing illuminations we cannot imagine — for other reasons, also.
Upholding constitutional democracy, liberty under law, we should not fear for our future, or theirs.
To be continued.
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