LAW'S EVOLVING EMERGENT PHENOMENA: FROM RULES OF SOCIAL INTERCOURSE TO RULE OF LAW SOCIETY.

• Author: Tamanaha, Brian Z.
• Position: Response to articles in this issue, p. 1003, 1035, 1049, 1083, 1097, 1135 - Symposium on Brian Z. Tamanaha's 'A Realistic Theory of Law'

Introduction

Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. (1) While these propositions might seem obvious, few works in contemporary jurisprudence build around them. (2)

In this essay, I draw on the notion of emergence to further elaborate the implications of naturalism, historicism, and holism for legal theory. Emergent phenomena arise in connection with objects or agents whose interactions produce qualitatively new features not found in its constituent parts. (3) Two senses of emergence are contained in this idea: the emergent phenomenon is greater than the sum of its parts, and its emergence is a historical occurrence. Theories of emergence were originally articulated in a late nineteenth and early twentieth century reaction against scientific reductionism. (4) Originating in biological theories of evolution, emergence was extended to explain a range of phenomena, including the transition in levels from physics, to chemistry, to biology, to the emergence of consciousness from material brains, to the emergence of social structures from the actions of individuals. Emergence is enjoying renewed attention as a component of complexity theory. (5) However, I will use the notion of emergence to illuminate aspects of law without grounding the analysis in complexity theory. (6)

First, I introduce emergence. Then I describe five emergent aspects of law: fundamental rules of social intercourse; legal systems as organized coercion; specialized legal knowledge; a relatively fixed legal fabric; and a rule of law society. The first three emergent phenomena in combination constitute fundamental features of modern legal systems. The two remaining emergent phenomena relate to law in contemporary society. In the course of describing these aspects of law, I address implications for various important issues in legal theory exposed by seeing them as emergent phenomena.

1. EMERGENT PHENOMENA

   The notion of emergence is applied to a host of natural and social phenomena and is taken up in several scientific disciplines. The basic idea is that something novel or additional arises out of the interaction of lower level parts. Commonly offered examples of natural emergence are the combination of hydrogen and oxygen to form water, or sodium and chloride to form salt. (7) Examples of social emergence include social practices, interaction patterns, cultural groups, and knowledge systems. (8) With emergence, something additional comes into existence--a qualitatively new synergistic effect of the combination of parts and their interactions. (9)

   The meaning and characteristics of emergence are disputed. "Despite the recent proliferation of writings on the subject, it is still not clear what the term denotes or, more important, how emergence emerges." (10) An influential account in the inaugural issue of the journal Emergence is provided by Jeffrey Goldstein, (11) who identifies six characteristics. First, emergent phenomena have novel features that are "neither predictable nor deducible from lower or micro-level components." (12) Second, they "appear as integrated wholes that tend to maintain some sense of identity over time." (13) Third, "the locus of emergent phenomena occurs at a global or macro level," so they must be observed at the macro level. (14) Fourth, they "are not pregiven wholes" but rather are dynamic and "arise as a complex system evolves over time." (15) Fifth, they can be recognized as wholes. (16) Sixth, emergent wholes exert downward causal influences on their constituent parts; causation is therefore bidirectional, with lower levels producing higher, and higher levels shaping interaction at the lower. (17) Emergent wholes, in sum, are coherently integrated through the interaction of their parts, they have certain traits present only at the level of the whole, they have causal consequences, they are resilient, they are dynamic and historical in the sense that they evolve in time, and no central control directs the whole. (18) The emergent legal phenomena I discuss possess these features, though I mention them only when relevant.

   Five further clarifications bear on my application of emergence to legal phenomena. First, a plurality of levels and types can exist at which entities and relations cohere as wholes--family, sub-community, occupational group, social practice, etc.--each with its own character. (19) Explanation focuses on the whole and the unique dynamics of each type at each level, though not to the exclusion of the parts. (20) My discussions of fundamental rules of social intercourse, coercive legal systems, specialized legal knowledge, the legal fabric, and the rule of law society involve different levels and types of legal phenomena.

   Second, emergent wholes are historical products whose particular courses of development are contingent on initial conditions and continuous interaction with their environment. (21) "Wholes produce unique combined effects, but many of these effects may be codetermined by the context and the interactions between the whole and its environment(s). In fact, many of the 'properties' of the whole may arise from such interactions." (22) Holism has two senses in my usage: attention to the emergent as a whole as well as attention to this whole within its environment. All five emergent legal phenomena are conveyed as wholes thoroughly immersed within and interacting with their surroundings.

   Third, emergence is not identical with self-organizing processes, though they share certain characteristics. Developed primarily in physics, computer science, and systems theory, theories of self-organization involve systems that produce autonomously generated, maintained, and changed order without external control and without purposeful creation of the order by agents. (23) Emergent wholes involving human organizations, in contrast, can result from agents purposefully organizing to achieve functions or ends within the environment. (24) Many legal phenomena are the product of purposive actions, though the wholes identified in this essay were not intentionally constructed as such at their inception.

   Fourth, emergence theory prompted a dispute over whether evolution can generate qualitative changes. While Charles Darwin argued evolution is continuous and incremental, Alfred Wallace, the co-founder of evolutionary theory, argued qualitative novelties can emerge through evolution. (25) My application of emergence in effect takes both positions. The legal developments conveyed in this essay gradually evolved over eons of human history in various societies. Looking backward with the benefit of hindsight, I frame a series of legal phenomena as emergent wholes to draw out theoretical insights.

   Finally, theorists disagree over whether emergent social phenomena are ontologically real or are merely theoretical constructs. (26) Methodological individualists who discuss emergent social phenomena--including economists and individualist-oriented sociologists (27)--deny that there are irreducible social properties, and insist that all social phenomena can be explained through individuals and their interactions." (8) Sociological holists assert emergent social phenomena exist, which though dependent on individuals and their interactions, have irreducible social properties and causal consequences. (29) I prescind from ontological claims. What matters here is not whether emergent social phenomena (and the "wholes" invoked by holism (30)) actually exist but whether informative generalizations can be generated by seeing them as such. "[E]mergence functions not so much as an explanation but rather as a descriptive term pointing to the patterns, structures, or properties that are exhibited on the macro-level." (31) Emergence for my purposes is a heuristic device that helps draw out significant aspects of law.

2. EMGERGENT ASPECTS OF LAW

   A. Fundamental Rules of Social Intercourse

   H.L.A. Hart observed, "there are certain rules of conduct which any social organization must contain if it is to be viable." (32) These basic rules are tied to human nature and the requirements of life in social groups. We need food, clothing, and shelter, and we reproduce. We are physically vulnerable and roughly equal in our abilities. We are self-interested and also altruistic toward others. There are limited available resources to meet our needs and desires, so we must compete with others. We also cooperate with others to achieve objectives, and we engage in mutually beneficial exchanges. Our understandings are limited, and we have mixed motives and weak wills. These conditions, Hart asserted, give rise to the legal "protection for persons, property, and promises." (33) Arising out of natural necessity, he dubbed this the "minimum content of Natural Law." (34) Natural law theorist John Finnis, grounding his analysis not in human nature but in basic human goods, also identified universally existing legal requirements providing protection of property, protections for life and limb, restrictions on sexual activity, and the call for justice, among others. (35)

   Anthropological and psychological research has confirmed the existence of human universals, with a great deal of cultural variation in their expressions. (36) Among a variety of universals (group living, shelter, tools, music, play, aesthetic standards, reciprocal gift giving, cosmology, etc.), those specifically related to law include property rights, prohibitions against murder...