Tracing the Evolution of Law on the Infinite Staircase

By Geoffrey Moore

Author – The Infinite Staircase: What the Universe Tells Us About Life, Ethics, and Mortality

Fair warning:? This is a very long piece on a topic that may or may not be of interest to you.? Proceed at your own risk.

Prelude

What I like most about using a staircase to model the emergence of complexity is that it helps sort out what otherwise can be a confusing mix of conflicting “foundational” claims, all of which seem legitimate.? The confusion arises from the fact that rival claims are typically anchored on different stairs in the staircase from which they claim hegemony over the other stairs.? This is a mistake.

The laws of cause and effect operate differently on each stair in an emergent system.? Thus, the laws of physics apply directly to discussing physics per se.? They also apply—but do not completely determine—the laws of chemistry.? The same can be said of the laws of chemistry in relation to the laws of biology.? Biology is clearly enabled by chemistry, but it is not determined by it solely.?

The general idea is that, at any given level in a staircase of emergence, there are deterministic relationships of cause and effect that hold for that level only.? At the same time, they impact, but do not exclusively determine, relationships at adjacent levels.? Impact coming from below can be thought of as grounding.? We can say that chemistry is grounded in physics, and biology is grounded in chemistry.? By contrast, impact coming from above can be thought of as illuminating.? Biology illuminates the importance of specific chemical reactions like the Krebs Cycle because they are so determinant of biological success.? Similarly, chemistry illuminates the importance of the atomic structure of shells of electrons because they are so explanatory of the Periodic Table.?

The key point to remember in terms of sorting out conflicting foundational claims is that grounding does not determine outcomes, nor does illuminating dictate them.? In both cases the influence is real, but we need to be nuanced about just how determinant it can be.? The claim that chemistry is just physics or that biology is just chemistry is simply a reductionist fallacy.?

The need for nuance only increases as we move up the staircase to increasingly more complex levels, as the following discussion of the emergence of complexity will have occasion to demonstrate with respect to the philosophy of law.

The Evolution of Law

Discussions in the philosophy of law get tangled up in their own set of conflicting claims about what is foundational and what is not.? Foundational claims can be made based on appeals to divine will, natural law, traditional customs, social contracts, military conquest, and more.? None of these claims are indubitable, and so the arguments are endless.

A more fruitful approach is to trace how law can be seen to develop historically under the conditions of social selection, following the framework of the Infinite Staircase (for a complete explication of this model, see The Infinite Staircase ).? Here is the journey I propose we undertake to trace the evolution of law as it moves up the staircase, starting on the stair of Values:

Note that in the Infinite Staircase model, both values and culture emerge prior to language, as we can see in the behavior of social animals as well as very young children.? With that in mind, we will claim that law too asserts itself prior to language.

Law as Will

While law, as we know it today, is indeed an artifact of language, one can argue it evolved out of a mammalian social norm for governing the herd or pack via alpha male dominance.? That is, the first inkling of law is the ability to enforce compliance in service to the value of social wellbeing by submitting to the will of the alpha leader.

For most of human history, this norm of obedience was embedded in religious narratives that took God to be the ultimate alpha leader and divine will to be universally foundational.? In this context, enforcement is shared between the clergy and a divinely authorized ruler, both positioned at the apex of a societal hierarchy that has a place and function for every class beneath.? In theory, and for a considerable time in practice as well, this provided a stable foundation for human welfare.? Over time, however, religious wars, civil wars, along with a host of corrupt practices, undermined this system to such a degree that by the seventeenth century, Thomas Hobbes could argue persuasively that the foundations of public order needed to be established elsewhere.?

Hobbes made the case that, left to our own devices, we humans fall into such discord as to lose the benefits of society, thereby condemning ourselves to lives that are “solitary, poor, nasty, brutish, and short.”? To guard against this fate and to ensure safety and security for ourselves and our communities, he advocated for unequivocally empowering a sovereign to enforce discipline across all segments of society wherever conflicts might arise.? Such a sovereign is enfranchised by an implicit social contract that acknowledges our tendency to discord and willingly submits to authoritarian rule as our best protection against it.? Whatever the sovereign wills, that is the law.? This represents authoritarianism in its purest form.

Despite the fact that authoritarianism effectively eliminates the modern liberal practice of rule of law, it continues to attract broad support for the very reasons Hobbes postulated.? That is, wherever there is a high level of perceived existential threat, there is an appetite for authoritarian rule.? Conspiracy theories amplified by social media have proven exceptionally effective at fanning these flames, and it is no accident that they are core to the political playbook of any demagogue seeking to seize or maintain power.? To counter any such playbook, we need to look to higher levels in the staircase.

Law as Custom

Again, while language is inherent in our current understanding of law, there is a second pre-linguistic stage in its emergence.? This involves the shaping and sanctioning of social behaviors through nonverbal culture, specifically through the imitation of behaviors and judgments modeled by elders and peers.? Discipline emerges not through subordination to an alpha leader but rather through accommodation to social pressure.? The norms that emerge from this process are shaped by a form of natural selection that can be termed social selection.? In that context, they can emerge without relying upon language-enabled intelligent design, hence their ability to arise among non-human populations of social animals, as well as with very small children learning about bedtime.

Once language comes upon the scene, customs can be converted to laws, initially maintained orally, eventually to be written down.? Laws founded upon custom differ importantly from laws based on intelligent design.? The latter represents a top-down affair within which each law is derived from a common set of foundational principles, and the whole is expected to be both coherent and self-consistent.? By contrast, laws founded in custom accumulate as a body of sanctions and are likely to be incoherent and inconsistent.? That is, their validity is local and situational, not universal. ?Nonetheless, having withstood the test of time, their history confers upon them a unique kind of authority.? We may not understand the rationale behind such laws, but we can feel them ingrained in our society and in our own upbringing, giving us confidence they are performing a useful function.

This, in turn, is what gives law as custom the authority to challenge law as will.? ?One famous example is the adoption of the Magna Carta, a vehicle by which the barons of England invoked custom to curtail the power of the king, thereby institutionalizing a body of rights for the various constituencies that made up medieval English society.? While it subsequently went through multiple iterations as kings, barons, and popes squabbled over its various claims, in the end it stabilized to become permanently embedded in both the British and American understanding of law.?

Law as custom, communicated as tradition, is an inherently conservative force.? It best serves when it can counterbalance authoritarian movements that have lost all restraint.? This is the argument that underpins Edmund Burke’s critique of the French Revolution, warning his countrymen against the danger of abstract theories being coopted by demagogues and arguing the case for tradition, continuity, and gradual reform based on practical experience.

Finally, law as custom also can provide a foundation for human rights.? Most discussions of such rights seek to ground them in some transcendental principle, but sooner or later that entails making one or more metaphysical claims that must be taken on faith.? By contrast, the claim that rights emerged through mechanisms of socialization that we share with other mammals is consistent with a wholly secular narrative verifiable through research and observation.

Law as Text

With the advent of written language, law becomes scalable through a process of codification and publication.? Jurisdictions can delegate legal processes to courts and administrative agencies, and citizens can engage with these entities in an open and equitable manner.? All members of society, including those in government, are considered equally subject to publicly disclosed legal codes and processes.? This is what is meant by the rule of law.? It is hard to imagine a greater gift, and it should never be taken for granted.

On a formal basis, nicely summarized by our friends at Wikipedia, rule of law entails:

• generality (general rules that apply to classes of persons and behaviors as opposed to individuals),
• publicity (no secret laws),
• prospective application (little or no retroactive laws),
• consistency (no contradictory laws),
• equality (applied equally throughout all society), and
• certainty (certainty of application for a given situation).?

In the formalist view of law, this is all that matters, there being no requirements as to its content, only to following the rules of its processes.?

Substantive views of law, on the other hand, assert there are certain rights that are also embedded in the rule of law to protect the liberty of individuals.? Traditionally, such rights were derived from God, nature, or reason, but as already noted, they also can be attributed to the underlying influence of law as custom.? Wherever customs confer such rights, we can say that they have emerged from, and been properly vetted by, natural selection.? But in jurisdictions where law as custom has not led to this outcome, recourse to protection is delivered solely through due process, an essentially amoral construct.? This results in legal justice but not necessarily in social justice.? To engage at that level one must move higher up the staircase, notably to the level of narrative.

Law as Legislation

Legislation is the mechanism by which new laws are created, allowing the rule of law to adapt to changing circumstances.? This is the domain of social justice as opposed to purely legal justice.? Legislation in this context is essentially political and comes with a social agenda, be that to comfort the afflicted or afflict the comfortable.? Political parties form around different social agendas—in the US, for example, the Democratic Party traditionally has aligned around an agenda of empathy, the Republican Party around one of accountability (although this is shockingly absent from its current leanings).?

Regardless of agenda, all legislation is founded upon narrative.? Narrative is humankind’s mechanism for assimilating the lessons from the past and confronting and shaping its prospects for the future.? It is our fundamental means of adapting to change.? We frame our situation by telling a story about how it came to be, how it is unfolding today, and how it might be directed to a better end through some kind of intervention tomorrow.? That intervention is expressed through a legislative proposal.? How broadly this story is embraced and how deeply it is taken to heart will determine its political success.

Once enabled as law, legislation rarely lives up to the rhetoric that got it passed, but it does have impact nonetheless and it must be managed accordingly.? The challenge is that narrative as a mode of discourse is unavoidably fictional.? Stories are things we make up.? To be sure, in real-world situations, we do our best to match our story to the realities we can perceive, but perceptions vary, and emotions often override reason, especially when the stakes are high.? This is what creates the need for analytics, the next stair up in our model, the purpose of which is to critique narratives.

The question for the philosophy of law is, what kind of analytics should the legal system endorse?? Clearly, the provisions established by the text of the law come first, but how much should the narrative that got the law passed be taken into account?? ?This can be vexing indeed if the people administering the law have a different point of view, one grounded in their own narratives.? What constitutes proper adjudication?

Law as Adjudication

This is the stair upon which the legal profession rests.? Whether acting as a lawyer, judge, or administrative official, the job of a legal professional is to apply natural language analytics to test the validity and credibility of the narratives of plaintiffs and defendants, as well as to vet the legal reasoning of their representatives, in order to come to as just a decision as possible.

One set of criteria tests for adherence to the principles of rule of law, as listed previously: generality, publicity, prospective application, consistency, equality, and certainty.? Another set is nicely summarized by Stephen Toulmin in The Uses of Argument, which offers a framework for critiquing legal rhetoric as follows:

• Are the claims clear and well understood?
• What is the evidence to support those claims?
• Does that evidence warrant making the claims?
• If the warrants themselves are disputable, is their backing to support their validity?
• Have opposing claims been invalidated via a convincing rebuttal?
• Has the final claim been qualified to eliminate invalid interpretation?

Adjudication represents the highest stair in the legal system operationally, and its primary role is to illuminate our understanding of the stairs below it, beginning with narratives relating to the law and the case at hand but reaching down to law as text (Is the law being interpreted correctly or in some distorted manner?), law as custom (Is there precedent for the decision being advocated for?), and law as will (Is this case within the enforcement powers of the jurisdiction in question?).? Finally, in jurisdictions governed by a constitution, a supreme court applies these same methods to validate the constitutionality of the law itself.

That said, there is one higher stair to come, one that seeks to provide a true north to guide all the stairs below, and that is law as justice.

Law as Justice

Law as justice is anchored in theory.? It seeks to provide a rationale for the whole enterprise of law, a platform from which all its elements can be illuminated and explained.? From this vantage, it helps direct adjudication as it sorts through the intent of legislators, the text of law, the relevance of custom and precedent, and the legitimacy of enforcement.? What kind of platform could provide such a comprehensive foundation?

Multiple candidates have been proposed throughout human history.? For Plato, justice equates to virtue; for Aristotle, natural law; for Calvin, God’s will; for Hobbes, order and security; for Locke, property and individual liberty; for Burke, custom and tradition; for Rawls, fairness for all with a nod toward the most disadvantaged.? Because these concepts of justice differ materially from one another, societies will organize around one or another of them and then do their best to institutionalize its principles.? Justice, in theory, provides their true north.

Corrupt regimes undermine justice in theory, resulting in a reversion to law as will enforced through violence.? Contemporary liberal societies are somewhat at a loss as to how to respond, whether as principals or as bystanders.? Internally, some form of revolution is required, but that entails enormous personal risk, especially in an era of state-sponsored digital monitoring and surveillance.? Externally, we can advocate for our own theory of justice, but we are not entitled to impose it on others.? The closest we can come to justifiable intervention is when the stated values of the regime are clearly being violated by its actual behavior.? Here, the role of justice is to apply analytics to the corrupted narratives, to advocate for truer narratives to displace false ones, in order to win over the hearts and minds of the citizenry that is currently acquiescing to a?set of dysfunctional customs that sadly have become a pervasive norm.? That all said, over half the world today lives under an authoritarian regime, and the tide is still not all the way in.

Recapping

The reason for applying the staircase model to the philosophy of law is to leverage our understanding of emergence and complexity as a means for sorting out a confusing set of conflicting imperatives.? Here are the key points:

1. All the stairs in the staircase have a valid reason to be.? Higher stairs are not “better” than lower ones, and lower ones are not “more real” than higher ones.? Each stair’s contribution needs to be honored for the work it does at its own level.
2. Each stair focuses on a different set of forces impinging on the enterprise of law.? Law as will is focused on the power to enforce; law as custom, on respect for tradition; law as text, on hermeneutics; law as legislation, on politics; law as adjudication, on process and precedents; law as justice, on theory.
3. In addition, each stair helps “ground” the activity on the stair above it:

·??????? Law as custom is grounded in reaction to the excesses of law as will.?

·??????? Law as text is grounded in will and custom as transmitted via codification.?

·??????? Law as legislation is grounded in law as text as it adds to its corpus.

·??????? Law as adjudication is grounded in the text and legislation it interprets.

·??????? Law as justice is grounded in precedents established through adjudication.

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4.??????Finally, each stair also helps “illuminate” the activity on the stair below it:

·??????? Law as justice illuminates the process of adjudication.

·??????? Law as adjudication illuminates the application of legislation.

·??????? Law as legislation illuminates the impact of law as text.

·??????? Law as text illuminates the application of law as custom.

·??????? Law as custom illuminates the application of law as will.

In sum, law is a complex system that emerged over time, resulting in layers of capability that are distinctly separate.? The layers interoperate, but they have competing priorities, so the key message is do not try to blend them.? There is no one ring to rule them all.

That’s what I think.? What do you think?

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