A correspondent asks:
If you had the task of reinventing the legal system, what would you propose?
I would replace it with a functional regulatory structure.
When I say 'functional' I mean that in a technical, mathematical sense, not in a rhetorical sense.
If you are a student of literature, you may be aware of the writings of Harold Bloom. He is the Yale University academic who has written extensively about the characters in Shakespeare. He also wrote a book analyzing the canon of western literature. He divides the canon into four chronological ages: Theocratic, Aristocratic, Democratic, and Chaotic. One might ask what comes after the Chaotic Age?
I would nominate the Fifth Age as 'Cybernetic'.
Cybernetic Systems are found both in nature and in high technology.
In living systems, Cybernetics explains how organisms regulate themselves through subtle feedback control processes.
In technology systems, Cybernetics explain how complex nonliving systems maintain self-regulation through carefully designed feedback control processes.
The mathematical modeling process that characterizes Cybernetic Systems is the same process in either case.
In a functional feedback control process, the component in the feedback loop cannot be chosen arbitrarily. The feedback unit is obliged to model the mathematical inverse of the main system.
In the analysis of feedback control, legal systems operate as primitive Zeroeth Order Controllers. There are very few systems that can be effectively regulated with a simple Zeroeth Order Controller.
The next most sophisticated feedback controller is called a First Order Controller, or Differential Controller. In a First Order Differential Controller, the feedback unit models the mathematical inverse of the First Derivative of the System Model. This is often simplified to a linear proportional controller. In economics, this corresponds to a fixed unit price for the consumption of a rare commodity. In a salad bar, you can pile as much salad on your plate as you like, and then you pay by the ounce. The optimal price to charge is the price that is neither too low nor too high; the salad bar runs out of salad just as the last customer is being served (supply exactly balances demand at the optimal price).
Higher Order Controllers fold higher order derivatives of the System Model into the solution, and are thus more graceful. Zeroeth Order Controllers are either altogether dysfunctional, or herky jerky, see-saw.
First Order Differential Controllers are smoother, but not altogether graceful. Think of an elevator that travels at a constant speed between floors and jerks to a stop. That's typical of a First Order Differential Controller. If you want your elevator to gently slow down as it arrives at a floor, you need at least a Second Order Controller.
Nature is full of feedback loops, some of which are more graceful than others. Buffered Aspirin is a Second Order Pain Controller. Regular Aspirin is First Order. Shooting the horse with a broken leg is a Zeroeth Order Pain Killer.
Hammurabi hardly knew anything about mathematics, system modeling, feedback control processes, and the like. He introduced a Zeroeth Order Control Structure and admonished us to put our faith in it. It was a mathematical mistake. I call it Hammurabi's Original Logic Error. Theologians call it Original Sin. There are very few systems which can be successfully managed with a Zeroeth Order Regulator. Human society is not one of them.
We need at least a Second Order Regulator, which means we have to wrap our brains around some serious system models of human socio-cultural dynamics and some serious calculus for solving those models for the optimal regulatory structure.
The Law, as defined by the disciples of Hammurabi, cannot possibly rise to the challenge, since it never rises above Zeroeth Order Control Architectures.
My correspondent continues:
Is there any type of existing prototype or model of this system (second order regulator) as it relates to human interaction (or the law)?
Yes, there are several alternative models. The oldest known alternatives to Hammurabism were proposed by the founders of the world's great religions. Figures like Moses, Buddha, Confucious, Lao Tsu, and Jesus recommended radically different practices from those contemplated by Hammurabi and his adherents.
Similar ideas can be found in Secular Humanism and Ethics. If you study Lawrence Kohlberg's model, he outlines six stages of moral development. His student, Carol Gilligan, proposes a seventh stage, which she calls the Ethics of Care.
In the 20th Century, figures like Gandi, King, Mandela, Thich Nhat Hanh, and the Dalai Lama helped bridge the gap between traditional religious teachings and secular teachings on ethical methods for solving the problems of conflict, violence, oppression, injustice, corruption, poverty, ignorance, alienation, suffering, and terrorism.
In the meantime, the Humanities were contributing to the challenge of modeling human characters and human socio-cultural dynamics. Shakespeare and Dostoevsky both made major contributions to the art of modeling human systems.
Sociologist Victor Turner made seminal contributions to this process as well, with his pathbreaking notions of Communitas and Liminal Social Drama.
René Girard extracted an insightful model
of human socio-cultural dynamics through his insightful analysis of Dostoevsky's novels.
If you solve Girard's System Model for the optimal strategy, you get practices remarkably similar to the teachings of the founders of the world's great religions. But it's not grounded on faith. It's grounded in analytical system modeling, with scientifically valid models of human socio-cultural dynamics.
Is this a realistic possibility?
In theory, yes. But it will take a major paradigm shift in our beliefs and practices. We're gonna have to let go of some long-standing mythologies and dysfunctional practices — a transformation that carbon units have not demonstrated much ability to achieve, with the notable exception of a few rare individuals.
Probably the only way such a paradigm shift can ever take place is through the medium of storycraft. Our core beliefs are those which we embed in the stories we tell ourselves. Every culture and every age has its characteristic myths — the stories we tell ourselves to define our beliefs and practices. That's why dramatists like Sophocles, Homer, Cervantes, Shakespeare, and Dostoevsky are so important. They reflect the cutting edge in the crafting of stories through which we define ourselves.
I studied Engineering, so I'm not a storymaker; I don't have that talent. But I recognize that the tragedies which bring us together are recurring tragedies because we have failed to capture them in a compelling story.
My favorite modern storymaker is JK Rowling. Her heroes are highly functional adolescents. And among the adults in their storybook lives, only Dumbledore appreciates that in order for them to solve the problems in a functional manner, they must necessarily break every rule in the book. Were Harry Potter and his friends to obey the rules, they would be utterly dysfunctional and ineffective.
In the Harry Potter stories, magic is a metaphor for functional solutions. Arthur C. Clarke said it best: "Any technology, sufficiently advanced, is indistinguishable from magic."
Were humankind able to evolve into the Age of Functionality, it would be a magical transformation.
If this model has been explored, why do you think it has not been accepted? And do you think that will ever change?
Not that many people are aware of it. I estimate that fewer than one person in 500 knows about these system models at all, and even fewer have digested them. Keep in mind that most people have never heard of Systems Theory, let alone any specific system model.
I expect it will change ever so slowly. Look how long it took for the Copernican model of the Solar System to overthrow the Ptolemaic Model, or for Newton's model of gravitational mechanics to take root. Similarly, it's been a century since Einstein published his Theory of Relativity. And while almost everyone has heard of it, almost no lay person understands it. Even though Einstein's iconic formula is widely recognized, few people can explain what it really means.
I've always believed that the study of history is necessary to prevent society from repeating past mistakes. I don't quite see the connection with story telling — and how that relates to implementing a new legal system. How do you connect the two?
History is His+Story. Stories are how we understand sequences of events and discern the underlying cause and effect linkages that renders a story coherent. Until modern times, almost all cultural learning was mediated by stories.
The story of the Hammurabic Method of Social Regulation is a woeful tragedy in slow motion. The story has been slowly unfolding for nearly four millenia.
I was born in 1945, the year the Second World War ended, and the year the world first began to learn of the horrors of the Holocaust, during which time the Nazis were incinerating Jews at the rate of 2 million a year.
I long thought the Holocaust was an abberation. But then I looked at the statistics for genocide and political violence for the entire 20th Century. During the 20th Century, the governments of the world killed some 200 million people. That's an average of 2 million people a year, year in and year out. That's the price humankind is paying for our lust for political power and our belief in the rule of law. If that's not a tragedy, I dunno what is.
And yet the oldest story in the canon of western literature — the story of Adam and Eve and the Apple — predicted that very outcome. It's a story everyone knows and almost no one appreciates for its insightful prediction.
What that tells me is that carbon units are woefully learning disabled.
Nor do I know a functional solution to that problem.