LAW AND SOCIAL CONTROL IN COMPLEX SOCIETIES T. R. Young The Red Feather Institute The United States and Anthony Deal Macquarie University Sidney, Australia December 27, 1993 March 5, 1994 No. 172 Distributed as part of the Red Feather Institute Transforming Sociology Series. The Red Feather Institute, 8085 Essex, Weidman, Michigan, 48893. LAW AND SOCIAL CONTROL IN COMPLEX SOCIETIES INTRODUCTION In this essay, we will argue that the scientific study of law is possible but, to do that requires a very different science from that of Aristotle, Galileo, Bacon or Newton. The new Science of Complexity, often called Chaos Theory can do two things: first it offers a format in which the study of nonlinear legal processes can be made. Second, it can be used to ground a postmodern philosophy of law. At present, the methods and data bases for the first task are not in place. While much has been done in the physical and biological sciences, very little has been done in the social sciences. Psychology and economics are interesting exceptions. Lively writings abound in those fields in the USA. That said, there several interesting dynamics of legal systems in complex societies otherwise untractable which yield to Chaos theory. In order to make this essay manageable within the limits set, we will confine ourselves to five insights about nonlinear dynamics: 5) Chaos and Creativity In deep chaos, entirely new systems of norm and order-maintenance emerge. Some have survival values and may become law of the land. 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) Nonlinear feedback makes it possible for quite different legal codes to subsist side by side for long centuries in the same society. Equal treatment before the law can be subverted by nonlinear feedback between system even if there is either positive or negative linear feedback within the system. 4) Chaos and Social Control In times of deep chaos, traditional methods of social control fail. We will discuss each point, the last first, to help give flesh and bone to the major ideas emerging in this new paradigm. In order to give the reader a sense of the scale on which we would like to phrase this analysis as well as a sense of the extra-ordinary instability of legal codes at that level of analysis, we will trace the major transformations of legal codes in Western civilization from the time of the ancient sumerians to present day legal thought (i.e., since 1600). All of 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. LEGAL CODES IN HUMAN HISTORY For most of human history, questions of proper behavior and appropriate redress of grievance have been encoded in religious philosophy. The earliest evidence of religious activity is found in the inscriptions on bones and stones in China some 400,000 years old. The variety of religious codes which guided and inspired human beings in live in peace with each other and some sort of harmony with nature are many indeed. As predatory economics transformed from occasional raiding parties to outright warfare and conquest between kinship groups in ancient times, competing gods were reconciled into something of a hierarchy (Roberts, 1993:44). ORIGINS OF EUROPEAN LAW. Major religious groups comprising almost half the population of the world today base their legal code on Deuteronomy, one of the five books 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. For most of human history, each tribe had its own set of norms and its own system for assuring conformity to that code. The advent of settled agriculture provided the surplus and, arguably, the necessity of state governance of 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‰mpted 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. 5. Chaos and Legal Innovation The extensive legal code in Deuteronomy became important to the Roman Empire when, in the fourth century, the Emperor Constantine adopted the religion of a small sect as the official religion of a great empire. Constantine had a legitimacy problem of some magnitude and, in the effort to solve it, among other things, adopted the Christian religion and in passing, its legal code. Inflation, invasion, civil war and recession had converged in the time of Diocletian and continued in the reign of Constantine). Another Emperor might well have continued persecution of the sect but, with other problems, assimilation seemed prudent. It looks as if persons and peoples can handle one or two such uncertainties, but given three or more, the future becomes so unpredictable that they begin to search for new ways to do economics, new ways to do religion, new ways to do marriage, and in this case, new ways to do law and order. 1. Nonlinearity Over the centuries subsequent, a single decision in one Court and, arguably by one man, brought profound transformations of normative systems around the world. What influence Constantine's mother had is still at issue but still, one small decision had great effect. Customary law of hundreds of African, Asian, European and New World societies were set aside with little ceremony and great violence in the two thousand years following. Romans brought Deuteronomic law to Europe and the British Isles, and during their Empire, the British took it and customary law to the Americas, India, East Africa, Australia and New Zealand. In situated criminal and civil small events can determine case law. A judge's ire, a juror's slip of the tongue or a plaintiff's appearance can affect rulings and judgments. In turn, such outcomes serve as precedents which can be 'locked-in' even though better rulings and judgments came after. Once locked in, a whole series of secondary adjustments are made by citizens and courts alike which make competition difficult. 2. Bifurcating Legal Systems Given critical values in key parameters within a socio-economic formation, two or more parallel but differing legal systems can arise. The first serious challenge to Deuteronomic Law in the Western world came in the 16th Century with the advent of modern science and a new vision of the world in which natural Law challenged divine law. With the Principia Mathematica of Isaac Newton in 1687, the ground was lain for a view that human beings could control all of nature--including human nature by finding and applying the laws of nature and society. God became redundant to that view. Modern science went from success to success in industry, transport, biology and agriculture as well as warfare. In the next three centuries, a new class arose to challenge hegemony of emperors whose task was keeper of God's Law. Merchants, bankers, industrialists and commodity farmers needed a legal system which challenged and changed biblical law on a number of grounds including usury, property rights, forgiveness of debt, social justice requirements to take care of communal interests including care for the poor. Tithing and taxation interfered with private capital formation processes so essential to expansion of production and improvement of the means of production and distribution. Rights of slaves and servants interfered with a 'free' labor market so essential to the profit line of a company. Slavery itself was problem for both owners and workers. Neither cared to compete with such labor. The law regulating relations between slave and master in Deuteronomy became redundant to modern law. To the view that the Emperor was God's steward on earth was added the view that man was the measure of everything including the making and changing of law. Montesquieu suggested that the laws of Nature, uncovered by reason, could ground the Laws of Man--and thus end indefensible privilege of priest and prince (Roberts, 548). A series of clashes between feudal nobility and capitalist class sectors in England, the American colonies and France; later Germany brought modern views into the making of law. Cromwell lead the revolution in England; Jefferson, Adams, Washington and others in America while in France, merchants and workers beheaded the nobility. Justice would come, as Diderot put it, only when the last noble was hung with the guts of the last priest. 3. Nonlinear Feedback Deuteronomic law required social justice and permitted of mercy. English customary law permitted collective use of property and a certain noblesse oblige. Modern legal systems, informed by aristotlean logic and Newtonian precision require ruthless, impersonal judgments, private property rights and individual responsibility. Yet, in both the Americas and other former British colonies, customary law, biblical law an modern law based on what passes as scientific principles of social organization exist side by side. Complexity theory explains how this is possible without great conflict. The short answer is, that, with nonlinear feedback, wholly incompatible systems can occupy the same time space continua. Even within modern law with its concern for equal treatment before the law, a larger inequality is possible provided that there is instituted two or more parallel justice systems each with putative equality within its purview but a vast inequality as between what its laws and procedures require. A fundamental principle of law in the American Constitution re-stated in the 14th Amendment requires equal protection of the law. This requirement can be, at once, honored and subverted since there are two or more legal systems in which differing persons are policed. In the USA, equal protection of corporations is offered within administrative law while at the same time, equal protection of minorities is offered in the Criminal Justice System. That there is great inequality as between the two systems of law is treated as an non-game event and thus nonlinearity is built into the larger system of 'justice.' This definition of justice as between administrative law and criminal can be set aside as long as there is no case which demands resolution of the inequality. Few corporations are tried in criminal court; few street criminals are processed by administrative law courts. Two quite different systems of justice co-exist as long as there is nonlinear feedback as between them. In this case, nonlinear feedback has also to do with the qualitative differences in interpretation about the nature of crime. When corporations do things which result in the death of lots of people, they are fined and punished [lightly] by the regulatory agencies of the United States. When rich and poor alike engineer the death of one or two persons reformers demand, reasonable enough, for equal treatment before the law. 4. Law and Social Control. There are five generic phase states in the dynamics of complex social systems. Two of them are well ordered and need not detain us. Two more have sufficient order that people can model rewards and punishment and generally calculate closely enough what is normative and what is sanctioned (Gleick, 1987:70-80). When key variables exceed quite specific values, well ordered complex systems become so erratic that prediction and calculation are impossible (Feigenbaum, 1978). In times of deep chaos, traditional methods of social control fail. In all modern societies, when times are difficult, Constitutional protections are set aside and martial law is declared. In the USA, martial law has been declared during workers strikes, during slave rebellions, during warfare and, as consequence appeals for due process, right to face one's accuser and equal protection of the law is set aside. When times are, once again stable, once again Constitutional practices are observed. 5. The Emergence of New Legal Codes Under conditions of great uncertainty, qualitatively new forms of law and ordering must emerge if there is to be sufficient order to carry on industry, transport, finance, and commerce. One could argue that the great variety of legal codes in the 160 or so nations which make up the global economy are inimical to a well ordered global economy. Given the globalization process into the future, one might well expect a third great transformation of Law propelled by great transnational corporations and the nations which benefit most from their world-wide operations. Treaties such as The General Agreement on Trade and Tariff (GATT), provide the principles of a globalized legal system. Prior to the full globalization of the law is a parallel codification in which economic blocs forge an uneasy alliance. The North American Free Trade Agreement is a case in point. We should see the formation of some ten or twelve economic blocs over the next 20-50 years. These two new legal systems will join with traditional legal systems each with its own provenance. National law will continue to regulate marriage, crime, labor relations and commerce internal to the state along with very different social justice legislation. Bloc law will regulate trade and travel within the blocs while global law will, most likely, regulate international travel, communication, currency exchange, toxic waste disposal, warfare and other more general concerns. Again, non-linear feedback mechanisms make it possible for quite disparate systems to co-exist. POSTMODERN PHILOSOPHY OF LAW. The fatal flaw in modernistic legal codes is the assumption of order as given and preferable. Research has shown that nonlinearity has survival value in a wide variety of situation from heart-beat to gene splicing to flight patterns of the moth. The ratio of order and disorder most congenial to the human estate is not fixed since the need varies but, in that mix, one should never forget that order is most desirable. Postmodern legal reasoning accommodates disorder at any number of scales and in any number of domains. Differing legal codes at differing scales and differing responses to deviancy within the same legal code are possible given nonlinearity. Postmodern sensibility holds that law continues to be a human product and, being human, should be a matter of public discourse. Whoever build a legal code on the divine plan of a god or upon the 'laws' of nature or society only masks a human agenda and shifts responsibility for bad law and for repressive social control from those who benefit from it to unaccessible gods or to unassailable laws of nature. If Cicero said that law is inoperative in wartime, he also said that the good of the people is the chief law. If we are to create a society in which resort to law and use of control systems are minimal, it is first necessary to arrange social institutions in ways that make it easy and satisfying to be part of the social order. Gender, ethnic and cultural differentiations are most valuable to a globalized political economy; they constitute a vast reservoir of options, alternatives and ideas inherited from premodern times which, in times of stress, serve as a source of variety with which to cope with the unending changes that come from adjustments which now echo through the lives of everyone and everything on the planet. Controlling Chaos There continues, in every society, a need for differentiation with their rivalry, competition and emulation since, out of those contests between ethnic, gender and cultural enclaves come entirely new ideas about how to do family, education, transport, communication, religion and recreation. It is a feature of complex systems that only variety can cope with variety; only uncertainty can cope with uncertainty (Ashby, 1968; Hbler, 1992). However, the need for stratification of wealth, power, status or ethnicity is hostile to the domestic tranquility...and serves a trigger for privatized resistance and rebellion. Refusal to abide by an unjust social code or to impossible economic conditions, in turn, calls forth ever more social control tactics. In a high tech society, the state pursues the illusion of control by funding ever more high tech devices with which to monitor and confine that rebellion. Chaos theory teaches us that as uncertainty grows, innovation is preferable to control tactics. Postmodern legal conventions, oriented more to social justice reduces the need for criminal justice systems while, at the same time, making them more effective in that social justice enlarges political legitimacy and reduces the social base for pre-theoretic rebellion and resistance. References Ashby, H. R. 1968 "Variety, constraint, and the law of requisite variety." P. 135 in Buckley, Modern Systems Research for the Behavioral Scientist. Chicago: Aldine. Boardman, John, Jasper Griffen and Oswyn Murray 1986 The Oxford History of the Classical World. Oxford: Oxford University Press. Deal, Anthony. 1994. Part 1: The Science of Law. Legal Research Project. Macquarie University. Page 1. Feigenbaum, Mitchell 1978 . Quantitative Universality for a Class of Nonlinear transformations, in the Journal of Statistical Physics, 19:25-52. Cited in Gleick, p. 157. Gleick, James 1987 Chaos: Making a New Science N.Y.: Penguin Books. [A fine book for beginners]. Hbler, A. Modelling and Control of Complex Systems: Paradigms and Applications. A paper presented at the 2nd Annual Chaos Network Conference: Santa Clara. June, 1992. Scheduled to appear in Modeling Complex Phenomena. L. Lam, ed. New York: Springer. Roberts, J.M. 1993 History of the World. New York: Oxford University Press. Waldorp, M. Mitchell 1992 Complexity: the Emerging Science at the Edge of Order and Chaos. New York: Touchstone Books; Simon & Schuster. [A good overview of the intellectual history of Complexity theory]. Young, T. R. 1983 "Underground structures of the democratic state." The Mid-American Review of Sociology, VIII, 4 (Winter). Young, T. R. 1987 "The Social Location of Crime and Justice in America," in The Quarterly Journal of Ideology, V. 11, No. 4. Young, T. R. 1991 . Part II. The ABCs of Crime: Attractors, Bifurcations, Basins and Chaos. In The Critical Criminologist. Vol. 3, No. 3. Fall. Young, T. R. 1992 . Chaos Theory and Human Agency. In Humanity and Society. November. 16:4. Pp. 441-460. word count = 3433