Law and Social Transformation

“Justice is the equalization or an agreement between forces of approximately equal powers, as well as the compulsion of the less powerful to agree.” Vladimir Jelkic, citing Nietzche.

I have spent parts of the last three years at Harvard Law School developing a system for legal analysis that focuses on societal transformation. I have flirted with law and economics. I explored the critical legal theory tradition. Generally, I exposed myself to different legal theories and how they explain and help create institutional arrangements.

None of the theories, standing alone, satisfied me. I wanted an approach that would be portable, one capable of explaining and engendering the transformation of institutions regardless of where they are located. Furthermore, I wanted a practical system that did not simply try to prove predetermined normative conclusions.

The law and economics approach bothered me with its emphasis on universal principles, which often fail to account for local contingencies. The critical legal theory bothered me because it tends not to be empirical, prioritizing proving preconceived notions about structural biases and power imbalances. I have almost no regard for legal formalism. However, I have gained a lot from engaging with the neo-formalism of the New Private Law movement. I think it is ridiculous that the pedagogy at law schools is still heavily dependent on the dictates of legal formalism.

I am sharing the assumptions at the bottom of my approach here. You’ll see that it is genuinely pragmatic. It borrows something from the different theories that I have researched and refuses to be strictly bound to any normative position. Well, except the notion that the empirical analysis of a law’s effectiveness or efficiency should predominate concerns about its moral content. Where the moral content of a law is at issue, the system rejects the deontological approach. It focuses on examining the law’s practical impacts on social prosperity, stability, and vitality.

So, although capable of yielding radical transformations, the system has a conservative bent. It has a conservative bent because it considers respect for local conditions/traditions essential in any attempts at institutional engineering. It suspects any social policy based on abstract principles alone. However, it does not deify tradition and does not consider it inviolable.

I recently used this system to analyze the common pool problem between herders and farmers in Nigeria. I will share that paper later.

Assumption One: Laws are tentative solutions or détentes to social conflicts. Some victorious faction imposes its vision of the world through the law, or the law results from a synthesis of the notions held by conflicting factions. Therefore, laws are not sacrosanct; we can — and should — modify them as needed.

Assumption Two: This assumption restricts the first. It holds that we probably do not have infinite numbers of possible legal arrangements.[1] Natural facts constrain our choices, limiting the range of legal arrangements. Thus, one must always assume an attenuated relativism, holding that while value judgments are always arbitrary, natural facts constrain the institutional arrangements based on these judgments.

Consider two examples of natural facts. The first is universal laws, and the second, topographical structures. These facts can determine whether specific policies are objectively good or bad.[2] They are not normative and are therefore not arbitrary. For instance, a society’s topography imposing limits on its options of institutional arrangements is not a morality question. It is a scientific question.[3]

A society’s topography includes its physical landscape, history, and culture. Since all of these things can change, the limits that a society’s topography imposes on its institutional arrangements can change. However, the structure of the topography affects the shape of its evolution. Thus, one must examine the topography’s structure to make conjectures on the probable shape of its evolution. Furthermore, one must know the probable shape of the topography’s evolution to understand how to shape the law. Essentially, a society’s laws are a function of its history, culture, and physical landscape. Therefore, to determine how to transform legal institutions, one must understand the society’s history, culture, and landscape. Further, one must be able to use one’s understanding of these facts to predict their likely evolution.

Universal laws are contextual. They are fundamental principles that we usually must discover only a posteriori. We can never be sure of their validity, but we can constantly fine-tune our intuitions about them through rigorous empirical tests. These principles are guiding postulates that must be subordinate to topographical facts. For example, economists often regard as a universal law the idea that only privatization or state intervention can solve common pool problems. However, as Elinor Ostrom has shown in her work, “Governing the Commons,” local conditions may make it possible for communities to develop common property protocols that overcome the common pool problem without privatization or much help from the government.

We should generally err on the side of upholding fundamental principles unless local conditions suggest that they may be inapplicable.

Assumption Three: The third assumption follows from the first two. It holds that only a pragmatic approach to the law can ensure that institutional arrangements conform to natural facts. It emphasizes empirical analysis over the pedantic examination of language or the abstract deconstruction of institutional arrangements. However, it is considered essential to study the law’s evolution, as this helps one understand both how natural facts have impacted the law’s structure and how one might rearrange it. It seeks to avoid modes of analysis that primarily buttress predetermined normative conclusions.

Assumption Four: The fourth assumption follows from the third, holding that the ideal process of law-making would proceed via the scientific method — that is, by positing conjectures about the probable shapes of the law and then rigorously testing the conjectures with a mind towards refutation rather than confirmation. Proper legislation should proceed in two stages; first, we identify relevant natural facts; second, we test whether specific institutional arrangements conform to such facts. In summary, one might state that an arrangement X is probable only if it does not violate some natural fact X’.

However, the factional nature of the democratic process makes the ideal project impossible. Therefore, the best we can wish for is the rigorous testing of laws at the post-legislative stage. This approach would entail courts or other unelected technocrats undertaking piece-meal social engineering that may lead to fundamental changes in the law. However, this practice probably supplants the “people’s will” with unelected experts’ preferences — a fundamental solecism in a democracy.

Assumption Five: Private citizens can also utilize the scientific method described above. Private citizens can use the method to develop quasi-legal arrangements in many pockets of society, allowing people to resolve their conflicts without the state’s direct intervention. Often, these arrangements would be superior to state-mediated approaches.

[1] This proposition responds to the realists who think that one can rearrange institutions and legal tools in an infinite number of ways.

[2] Objectively “good” and “bad” are not used in the moral sense. “Good” designates probable and effective or efficient policies. “Bad” refers to the converse. A policy is probable if it does not violate natural facts. If it violates these facts, it would not be effective or efficient.

[3] One may consider taking the scientific approach as a normative choice, of course.