|
|
|
|
|
|
CHAOS AND CRIME
LECTURE 006
A
CONSTITUTIVE THEORY OF JUSTICE:
Architecture and Content in Non-linear Systems of Social Control
TR Young,
September 18, 1996
June 26, 1997
Abstract
Given that human beings, collectively, constitute justice systems, the question arises, what kind of justice system should a people create. The architecture of a postmodern theory of justice offered here relies upon the new sciences of chaos and complexity. The substance of a postmodern theory of justice is constituted with a complex algorithm informed by the concept of praxis. The concept of Praxis used here respects the need to protect and sustain the natural environment upon which all peoples depend while it honors diversity and human agency. In short, I offer a blue-print by which an affirmative postmodern theory of Justice can be constituted.
A CONSTITUTIVE THEORY OF JUSTICE
A. INTRODUCTION: In the first section of the
Chapter, I will provide a brief overview of the ways law and justice were constituted in
Western legal systems. In the second section, I will lay out the basic architecture of a
Constitutive Theory of Justice and in the last section, will offer substantive ideas for a
Constitutive Theory of Justice based, loosely, on praxis theory. This will give the reader
some idea of what a postmodern theory of justice might entail for law, courts, prisons and
policing in particular as well as for social policy in general.
All this is in aid of a movement, of which I am part, to replace a punitive and failing
criminal justice program with one oriented to democratic forms of social justice. Other
papers in this series are provided for the reader in the bibliography. When one puts the
deeply organized world-view of language, self and other into a larger socio-cultural
framework, the task of a postmodern and affirmative criminology/theorist becomes to help
re- constitute entrenched ideologies, knowledges, and truths along in order to dissolve
and repair personal alienation, repression, and marginalization. Mindful of these
dialectics of struggle and linguistic control, several postmodern criminological theorists
have called for the development and articulation of replacement discourses; that is, codes
of speech more compatible with the stories and points of view of various disenfranchised
collectives (e.g., Henry and Milovanovic, 1991b, 1996; Arrigo, 1995a; Smart, 1995; Howe,
1994).
B. Pre-Modern Groundings of Law and Justice: For most
of human history, each tribe had its own set of norms and its own system for assuring
conformity to that code. Central to each system of law and justice was the pre-modern idea
that, a) there was a god(s), b) that god had a plan of social life, c) those who conformed
to that plan were good while, d) those who lived by some other plan were evil. These ideas
grounded the pre-modern idea of Natural law; that, all persons were endowed by their
Creator with Natural rights and required by their Creator to honor those Natural rights in
others.
The construction of what is natural was, of course, also constituted by human interests.
Race, class, gender and ethnic concepts grounded the ideas of what was right and proper.
It was seen to be 'natural' in patriarchal societies, that women defer to men. Property
rights, as natural to god and society, arose with settled agrarian social life worlds. The
ideas of race and racial superiority took additional 'neutrality' with the advent of
colonial imperialism and the subjugation of one people by another.
The advent of settled agriculture was central to pre-modern legal codes. Settled
agriculture, especially irrigation, provided the surplus and, arguably, the necessity of
state governance of land, water and distribution of grain. Of the five great hydraulic
societies in the world which could have informed modern legal codes, the first recorded
legal system was that of Sumer in the Tigris-Euphrates watershed. In that society, the
gods demanded submission in return for which, they guaranteed prosperity and protection
(Roberts, p. 42).
In Sumer, while all land belonged to the gods, a warrior- leader turned priestly king was
steward and thus the main beneficiary of this land use system. Along with the Priest/King
arose a class of priestly specialists who administered religious codes and also required
part of the harvest from the land. By 2350 BCE, in the reign of Sargon 1, a legal code had
emerged which regulated land use, marriage, divorce, the status of children, inheritance
and other relations between those who came within the scope of this first empire (Roberts:
44-45). Out of the struggle between city-states, an empire was forged; one legal code
enforced by military occupation pre-empted a dozen religious codes.
While it is not possible to quantify and trace transformations of key parameters in
ancient times, still it is clear that the key to the growth of city-states is to be found
in the irrigation systems which produced enough surplus to feed a whole range of
specialists as well as a royalty claiming control of land in the region between the Tigris
and the Euphrates rivers. Food supply is essential to that division of labor in which
specialization can provide both variety and quality of goods and services. With the
melding of peoples with diverse normative codes in large urban areas, a more general and
more visible legal code served well.
Major religious groups comprising almost half the population of the world today base their
legal code on Deuteronomy, one of the five books of the old testament shared by Islam,
Christianity and Judaism. A great many features of Deuteronomy ground contemporary legal
practices, including a demand for respect for the Law as a condition of favor by the God
of the Old testament. Among current legal practices in Western societies influenced by
Christianity, a careful reader can find requirements for two or more witnesses to a
proscribed deed, trial by elders [rather than the family of the victim], usury and
bankruptcy law, taxation and tax policy, restrictions on governing authority, refuge and
sanctuary, enquiry to intent and degree of guilt, perjury, victim's rights as well as
property and marriage law. Deuteronomy, as well, called for tithing and collective care of
the poor and other social justice duties.
Modern Science and Modernist Systems of Justice.
The American justice system, while founded upon natural law in its Declaration of
Independence, moved the basis of law-making from the gods and/or nature to human beings.
Human agency in the making of law was embedded in the Constitution of the United States
especially those provisions setting out the rules of law-making, law enforcement and legal
interpretations. The Supreme Court was, of course, final arbiter in the constitutionality
of human law. It was to be guided solely by the technical legitimacy of the Congress in
making the law.
The advent of written constitutions, written legal codes and written indictments all
presumed logical coherence; that human beings could reason logically and correctly
interpret the meaning of both the law and the act brought to scrutiny under that law. The
confidence in both human agency and human rationality was itself informed by the
Enlightenment and the idea that both nature and society were governed by natural laws,
lower case, which could be discovered by empirical research. Newton had set forth the
natural laws of motion; Comte and other social scientists thought one could discover the
natural laws of social organization, social change and social interaction. Discovery of
those natural laws shifted final authority from the priestly caste to the research
scientist. Modern criminology presumes that research into the dynamics of crime and
punishment can inform legal codes and legal sanctions.
The tension between pre-modern and modernist systems of Justice continue to be fought out
in the selection of judges and of candidates to the Congress of the United States. When
Clarence Thomas appeared before the Senate Sub-Committee in his nomination to the Supreme
Court of the United States, most of the attention was directed to the allegations of Anita
Hill about his alleged sexist behavior. But far more interesting to a theory of justice
were his views on Natural law. Thomas, in his piety, took the view that Natural Law was
precedent to both human law and that part of Constitutional Law which differed from the
Christian views on Natural law. The various PACs of the Religious Right target all
Congress-persons and Senators who support legislation which differs from traditional
Christian views on race, class, gender and property.
Postmodern Understandings of Law. Those of
us who work out of a postmodern critique of law and justice reject the basic assumptions
of both modernist and pre-modern groundings of legal principles and associated theories of
justice. There are no Natural laws given by god(s) or by divine fiat with which to solve
the human problem of order and distribution of resources. There are, as well, no natural
imperatives such as asserted by those who offer grand theory as a way to justify class,
status or power arrangements. All are, equally, human products. All are, equally, fraught
with politics and filled with special interests. All equally give a gloss of legitimacy to
the some of the best and some of the worst arrangements of social life found in the ever
changing history of peoples, countries, nations and states.
This does not mean, to be sure, that the concept of justice is to be discarded; still less
that, absent a founding God or an objective laws of nature, that one thereby can justify
anything, that one must embrace nihilism and solipisic self interests. Rather, an
affirmative postmodern theory of justice argues that human beings can and should build
systems of justice; systems of law; systems of social control. It is just that the
architecture of such systems should be explicitly political; that they should be open to
collective critique, collective change and accommodating of diverse social forms.
Diversity and collectivity seem impossible from a modernist point of view emphasizing as
it does uniformity, predictability, generality and rationality. Collectivity and diversity
seems evil from a pre-modernist perspective permitting as they do alternative ways to do
marriage, family, economics, politics, religion, education and other distinctly social
work. It is the particular genius of complexity theory that diversity and collectivity can
occupy the same regions of time and space.
I would like to suggest how this is possible in the sections below. We will start with a
look at the architecture of justice from the point of view of chaos theory, the short
version of which is that an algorithm which permits pattern in the same moment that it
contains surprise; that permits individuality in the same moment that it guarantees
stability--of a sort; that honors human agency in the same moment it provides for
predictability and dependability, such an algorithm is possible to adopt as a grounding
for a postmodern architecture of justice. Let us begin.
C. A Constitutive Theory of Justice. Stuart Henry and
Dragan Milovanovic‡ (1991) have set out constitutive theory in general. They explain
that a postmodern approach to both knowledge and society emphasizes the provisional and
situated emergence of truth. In the case of a Constitutive theory of Justice, one would
view each law, arrest, each indictment, each trial and each judgement as well as the
actual experience of the accused in the social context in which each emerged.
While the sociology of law and justice is most complex still the general point can be made
that law and the principles of justice upon which law is grounded follow the political and
economic arrangements of the social order in which they are found. In stratified
societies, law and justice tend to reproduce existing patterns of privilege. In religious
societies, i.e., ecclesia, law and justice are given divine sanction...mere mortals cannot
argue with either the law itself nor the interpretations of divine law made by a religious
cadre arrogating that sanctity to their own interpretations.
A postmodern Constitutive theory of Justice holds that given peoples can, within rough
limits, create just about any system of justice they care to create. The limiting
conditions are set by two interacting and quite different sets of concerns. The first set
of concerns are to be found in the non-linear dynamics of complex systems. I will lay out
these in just a moment. The second limiting set of principles are found in the nature of
social relations. In a word, some attention to group needs must be embedded in justice
systems else, as Hobbs put it, a war of each against all subverts and degrades the human
project.
D. Chaos Theory and Justice Systems. A Constitutive
Theory of Justice must, in a complex society, take into consideration the essential
features of non-linear dynamics. In order to make this essay manageable within the limits
set, I will confine myself to a few major features of nonlinear dynamics:
1) Nonlinearity Small changes in key social
variables can give rise to very great changes in legal codes and in control practices in a
given political economy.
2) Bifurcations Given critical values in key
parameters within a socio-economic formation, two or more differing legal systems can
arise.
3) Chaos and Social Control In times of deep chaos,
traditional methods of social control fail.
4) Chaos and Creativity In deep chaos, uncertainty
increases and human agency becomes problematic. However, entirely new systems of norm and
order-maintenance emerge. Some have survival values and may become the base of new legal
codes and new ways of seeking justice.
We will discuss each point to help give flesh and bone to the major ideas emerging in
complexity theory. Again, this is in aid of building a postmodern philosophy of law which
recognizes the social sources of law on the one side and the human role in creating and
interpreting law on the other. In particular, we will end this essay by addressing the
most interesting question at hand in a time of uncertainty: upon what foundation does one
ground a thoroughly postmodern theory of Law. This new science of complexity offers
something of a guide as to form if not content.
1. Nonlinear Justice Systems. Modernist justice
systems make much of routine, rationality and uniformity in treatment before the law.
Postmodern justice systems, grounded upon chaos/complexity theory make room for creativity
and variety in both the making and the enforcement of law. On the surface, non-linear
justice systems appear to be an open invitation for bigotry, personal animus and for
hostile discrimination in policing and in courtrooms. This would be the case were it not
for the over-riding principles of praxis and empowerment mentioned in the last section
which continue to inform legal principles in affirmative postmodern theories of justice.
The case for non-linearity, irrationality and irregularity is powerful. In the first
instance, it is impossible to embody the regularities and rationalities required for a
thoroughly modernist system of justice. No two criminal cases is precisely, entirely,
exactly like another one. No two police officers will respond in precisely the same way to
a given action. No two judges will make precisely the same rulings to the same questions.
No two juries will make precisely the same judgment to the same act of murder, rape or
theft. No two prisons will treat a given prisoner exactly as ordered by the court.
Variation is part of the human process; a modernist justice system of the sort required by
rationality is possible.
Nor are they desirable. There is much to be said for variation and creativity in policing,
judging and sanctioning those who offend legal codes. It is not that special conditions
alter judgments although to be sure, they do. It is not that sameness and similarity is
impossible although they are impossible. It is rather that mercy, forgiveness, clemency
and acceptance are larger, more powerful recourse to transcending justice. Some criminals
will not, can not respond to mercy and forgiveness. All criminals will, at some time,
treat pro-social irrationality as weakness and exploitative opportunity. Still for most
people most of the time, do fit such nonlinear response into a discourse of forgiveness
and redemption. Parents, friends, police, judges, wardens, teachers and others charged
will social control make such non-linear responses with good effect to the human project.
A thoroughly postmodern system of justice should accommodate itself to the capacities of
complex human beings to transcend causality and to move to entirely new patterns of life
and living.
Perhaps the most interesting feature of complex non-linear systems is that very diverse
systems can occupy the same time/space continua without conflict. Of considerable interest
here is that very different justice systems can co-exist and work their different social
magics to enable the human project. In the USA, one can find some seven or eight parallel
and very different systems of justice; religious, political, economic, medical and
psychological. While it may seem redundant and inefficient to have parallel justice
systems and, may in fact, be so, still the possibility of co-existing justice systems best
meets the human need for redemption, for reparation, for restoration and for
rehabilitation.
2. Bifurcations. If small changes in key parameters
can trigger large changes in crime rates; murder, theft, arson, fraud, pollution and other
most serious forms of behavior hostile to person and to community, large changes in social
control tactics seem sensible. Yet, it well may be the case that a small change in social
policy can forestall the need for large changes in such social control resources. The work
of Hbler at University of Illinois has shown, in principle, that non-linear regimes
can be controlled. It requires a light touch at the right time but, given wisdom and
judgment, such intervention in the life of a family, in the routines of a school, in the
habits of police officers and in the policies of a business may prevent large changes in
juvenile delinquency, in ethnic violence, in vandalism or in consumer fraud.
Then too, there are some bifurcations which affirmative justice systems would defeat.
Bifurcations in variables which trigger gender violence, racist crimes and crimes against
workers and/or customers by corporations are case in point. If uncertainty in employment
or income are key to racist crime and gender violence, then in order to prevent these from
exploding to fill the social space available to them, an affirmative postmodern justice
system would, in the first instance, see to policy which stabilizes these at minimal
value.
3. Chaos and Social Control. The USA is, arguably, the
most heavily monitored, analyzed, reported and described society in human history. Much of
that knowledge is used within the dozen or so control systems which permeate every domain
of social life. Modernist criminology, oriented to formal theory and to scientific control
theory, supports rank after rank of social control. Modernist states, oriented to
political legitimacy, supports a wide variety of control institutions from the Criminal
Justice System itself--now the largest in the world, to the various state regulatory
agencies--far more than most societies, to the increasing use of psychology, medicine and
psychiatry to find and control those who murder, rape, steal and burn in the most affluent
society in human history.
Chaos theory teaches us that efforts to predict and to control fade and fail as ever more
chaotic regimes appear. The vast effort to control the effects of racism, gender violence,
class inequality and corporate hegemony over the production and distribution of essential
social goods are, if social processes are indeed non- linear, these efforts are doomed to
failure.
Affirmative postmodern jurisprudence and criminology constructs a research design and
develops the research tools with which to ascertain the points at which key variables
bifurcate. Then, set inside a most interesting approach to a constitutive theory of
justice set below, enjoins a political process by which a society selects, as between
alternative dynamics regimes, those which most fully answers to the human project.
I will offer an outline of a non-linear but affirmative approach to a distinctly
postmodern practice of justice below but just now, we have one more most interesting
feature of non-linear regimes most interesting to social change and renewal.
4. Deep Chaos and Human Agency. In other work, (Young, 1993), I have tried
to think through the effects of differing dynamical regimes on human agency. In this work,
I would like to revisit the topic and think about how chaotic regimes affect the human
quest for change and renewal on the one side and, at the same time, the human need for
order, predictivity, and planning. In short, what ever system of justice we humans create
through our norms, laws, sanctions and policies, we need to center human agency in that
system.
The implications for a Constitutive Theory of Justice are most interesting. It may well be
the case that any system dynamics having fewer than four attractors may be too confining
to the human interest in change and renewal. That interest keys off the fact that all
human societies dwell in an inconstant world. The global environment is a complex adaptive
system which affects the welfare of human society. Food supply, climate, weather patterns
including storms, floods and earthquakes all affect the human project. The global economic
system is a complex adaptive process which greatly affects employment, health, pollution
and conflict not excluding warfare. Political Blocs such as the European Union, the North
American Free Trade Agreement and the Pacific Rim countries are, all, complex adaptive
systems whose ever-changing dynamics affect the welfare of peoples around the earth.
Both modern and pre-modern justice systems attempt to reduce variety and to confine
attractor basins to two or four; two genders, four races, two degrees of kinship, four
strata of status honor. It well may be the case that the degree of uncertainty embedded in
the number of attractor basins available in legal codes defeat the human need for change
and renewal in that they forbid options which, in times of uncertainty, answer better to
the human project than behaviors sanctioned by legal codes.
At the same time, social policies which drive a society into deep chaos may well increase
uncertainty so much that collective responses to common problems are displaced by
privatized, short term responses: theft, robbery, genocide, fraud and other behaviors
hostile to human agency. The case of the Ik people in north-east Uganda serves as point.
They were forbidden to hunt game by the government which used their ancient hunting
grounds as game preserve to attract tourists and foreign currency. The Ik society
collapsed; children abandoned or prostituted, elderly people cast out, marriage forms
collapsed.
I tend to think that people can handle two or three uncertainties in work, health,
personal relations, school and religion but four or more are too many to juggle; recourse
to new, perhaps anti-social behavior to bring a bit of certainty back into their lives.
This may mean that, while eight or sixteen attractor basins may be appropriate for a whole
society in a complex environment, fewer attractors may be appropriate for particular
individuals or firms. It may be the case that complexity requires differing sets of
attractors for differing sectors of a given society; institutions as well as such
population groups as age cohorts or occupational specialties. A postmodern theory of
Constitutive Justice may require far more complexity than the simple binary justice
systems found in modern and pre-modern societies.
Finally, I want to point out that deep chaos itself is a dynamical region in which,
sometimes, the human interest in change and renewal is served. Deep chaos does not mean
the end of social life; rather it may well mean the beginning of new and most
accommodating forms of justice; forms which augment and enhance human agency and human
dignity. The point of an affirmative postmodern theory of justice is, non the less, an
effort to avoid the costs of deep chaos while keeping the benefits of variety,
uncertainty, change and renewal.
A Postmodern Praxis Society. The concept of praxis has an ancient
and honorable history. Markovic‡ (1974), sets five most interesting and most useful
aspects of praxis which I want to use as a grounding for a the postmodern theory of
justice offered here. By praxis, I mean a complex activity in which individuals, in
collectivities, create culture, society, and create themselves as "species
beings", i.e., as human beings. The moments of praxis as Markovic‡ set them
include self-determination (in contrast to coercion), intentionality (in contrast to blind
reaction), sociality (in contrast to privatized nihilism), creativity (in contrast to
sameness) and rationality (in contrast to blind chance).
These five 'moments' of praxis constitute a very complex algorithm which sets limits at
the same time it permits variety. This particular algorithm, having five interacting
variables, offers a very, very complex unfolding of human social forms which, at once
serves the human interest in pattern and reliability while at the same time permits for
variety in language, in love and in work. The unfolding process, complex and changing as
it is, moves knowledge making and knowledge using off the dead centers of modern and
pre-modern sensibility over to a constantly changing quest for certainty and close control
to tolerance and respect for those who, in their wisdom, take differing pathways through
the future of history.
Non-linear Feedback. Ordinarily, one would
expect that, given acceptance for variation in social forms embedded in a postmodern
theory of justice, one would find a great deal of conflict, animus and confusion. Chaos
theory has one more most valuable lesson to offer those who would built distinctly
postmodern systems of law and justice. Very different systems can occupy the same regions
of time and space if and only if the feedback between them is non- linear. I have
discussed the idea of non-linearity above but this time want to explicate its meaning for
various and very different social life worlds.
Modernist social theory presumes convergence of all cultures toward one universal culture
contained within a global political economy. The rich legacies of French, German,
Japanese, Inuit and Russian culture are, in the modernist scenario, blended and baked into
one common ubiquitous culture. And, given a modernist legal theory and justice system,
that effort at sameness is constituted. In the pre-modern scenario, one religious
tradition triumphs and all others are relegated to the dustbin of history as myth and
superstition. Not so in an affirmative postmodern architecture of justice. Competing,
contradictory and coterminous systems of marriage, politics, religion and economics can
retain their structure.
Non-linear feedback means that different rules apply to differ peoples as long as the five
moments of praxis are honored. The emphasis on each moment can vary within a given
social-life world as might the degree of non-linearity. Still, given non-linearity, we
might see Islamic peoples living side-by-side with peoples who embody Christian, Hindu,
Buddhist and Jewish religions. Given non- linearity, we can create a system of justice and
distribution in which the advantages of capitalism can be extracted while its negativities
are moderated by very different economic systems. Again, non-linearity between systems is
the key to the integrity of each system.
Modern and pre-modern justice systems insist upon one and only one way of doing marriage
or doing gender. Given non-linearity in a justice system, conventional marriage forms can
exist side by side with very different forms of intimacy. Again, the over-riding moment of
sociality informs and limits such diverse marriage forms; one cannot in the constituted
form of justice offered here, sustain brutal, exploitative forms of marriage or religion.
The same variety is possible in sport, in schooling, in art as in music and literature.
Affirmative postmodern sensibility rejects uniformity and universality in standards of
creating, of sponsoring and of evaluating the art of living. If we use chaos theory to
constitute our theory of justice and to inform our making of laws, we can retain most the
rich diversity, the rich legacy of ethnic and national cultures. To that end, I commend
future generations of law-makers, law-enforcers and those who study them.
BIBLIOGRAPHY
