Anticipation, Prediction, Future of the Public Order of the - PowerPoint Presentation

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Anticipation, Prediction, Future of the Public Order of the World Community and International Law

Winston P. NaganSam T. Dell Research Scholar Professor of Law,Chair, Board of Trustees, WAAS First International Conference on Anticipation,Trento, Italy, co-sponsored by UNESCO (Nov. 2015).

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Table of Contents

Introduction…………………………………………………………………………………………………………….3Post Realist Jurisprudence: The Role of Fellows of the World Academy of Art & Science……………………………………………………………………………………….8New Thinking Skills to Guide Decision Making………………………………………………………9The Anticipated Future of Public Order of the World Community

and International Law…………………………………………………………………………..........................12

Developments in Practice……………………………………………………………………………………….17

Paradigms of World Order and the Future of International Law……………………………21Towards a Theory for Inquiry About Anticipated and Desired Public OrdersIn the World Community……………………………………………………………………………………………24Critical Problems to be Accounted for in Anticipated Constitutional andPublic Order Outcomes……………………………………………………………………………………………..27Global Values and the Public Order……………………………………………………………………..29The Architecture of the World Process of Constitutive Decision Making…………….32Towards a New Paradigm of World Public Order and International Law……………..36

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Introduction

Anticipation invariably entails complexity in the psychology of the individual self system; its role in society is largely described as human perspective. By perspective we mean human subjectivity. Human subjectivity is shaped by the evolution of identities, values, and expectations. It is the self system guided by perspective that functions in the process of social interaction in the social process of the human community. Anticipation in a sense is related to the question of perspectives of the future evolution of identities, values and expectations. As such it is often an effort to generate a tentative form of useful knowledge, about an anticipated contingent future in which the role of the individual self-system is central. However, it is knowledge that cannot be guided nor constrained in any absolute sense by the scientific laws of cause and effect.

Human perspective in the context of anticipation challenges the influence of determinism and reification of human subjectivity.

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1. G. Gutenschwager, Determination and Reification: The Twin Pillars of the Amoral (to be published in Eruditio 2015)Slide4

Anticipation therefore, is a complex idea intricately involved in the nature of personality. in part, because when we act we are influenced by our own evolving identities, needs and demands, indeed our own evolving expectations of stability and change about what the world has in store for us. This compels us to have a perspective of the future and indeed we can anticipate a sense of the future that is positive and a sense that is negative.

As the modern state began to consolidate the services of governance, decision makers perforce had to generate policies about governance that were directed at the future. For example, to anticipate what it would cost to run the state you need to have a future estimate of available tax revenues. To keep the state secure you had to have a sense of what resources were available for military services. To feed the population there had to be an estimate of future food supplies. Indeed, humans live in a time space manifold of contingent and existential events.Time in this manifold is a complex notion which includes perspectives of the past, present and future. Indeed, the past and the present are as real or unreal as is the future. Such is the reality that implicates the fragility of the human perspective.

We now want to focus our thoughts about anticipation on matters that pertain specifically to the legal profession, and legal theory which is my specialty.

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This paper seeks to clarify what the idea of anticipation means for legal perspectives and legal theory. In particular, it wishes to contribute to the discourse of what anticipation can contribute to the realization of a public order of human dignity and a constructive role for international law in that process.

With regard to anticipation or predictive perspectives about law, there has been historical contestation concerning some fundamental issues relating to the nature of law itself. First, there is the positivist gloss that law is essentially found in some sort of strongbox of legal rules, and these legal rules can be applied logically to human problems with a minimum of human subjectivity. This is sometimes described as a mechanical jurisprudence. Its strength is objectivity and a repudiation of human subjectivity. This was a dominant view in the 19th century until Justice Oliver Wendell Holmes excoriated and

metagrobalized

this view.

At the turn of the nineteenth century, Oliver Wendell Holmes gave a lecture at Boston University titled “The Path of the Law.”1In this lecture, he presented insights into law that have radically changed the way we think and do law.One of the most remarkable insights of this piece was almost incidental to its primary objective. Holmes introduced the idea that there are multiple vantage points from which legal perspectives might emerge. Implicit in Holmes that he was assuming the vantage point of an external observer. What the observer perceives realistically is that law is animated by the perspective of the participator whom he describes as the bad man and by the other participator who acts as decision maker. In Holmes view the bad man engages the legal system because he is moved by self-interest and nothing else. The bad man wants prediction. He wants to know the cost of winning or losing a case. What is it then that forms the central thesis of the lecture? The answer to this question is that the perspective focuses on prediction or prophecy, anticipation, if you will.He stated for example that the prophecies of what courts will do in fact are what is meant by law.The focus therefore of the practical lawyer is on the issue of prediction. This means predicting what legal officers do in fact.Holmes further suggested that it is also a critically important vantage point to look at law from the point of view of the “bad man”The “bad man’s” point of view is a prediction of what will happen to him if he files a lawsuit or if he has to adequately defend one.In short, the “bad man” pays his lawyer for prediction.

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Holmes, The Path of the Law, 10 Harvard L. Rev. (1897).

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The idea that judicial officers as finite human beings are the decision makers in law and that predicting what they will do is of importance to both lawyers and litigants brought a radically new perspective to law.

The law was not necessarily exclusively incased in a strongbox of legal paper law. It was also reflected in the behavior of the actual participants and what those participants did, constituted the real law.This gave rise to a revolution in legal thinking in which the focus of inquiry would be on who the judges and officials are, where they were born, educated, experienced life, and whether when sitting on the bench, they could be frustrated by the failures in their personal lives, and more. Culture, class, personality and intellectual capacity, gender, race, etc. could be factors far more important to judicial decision making than the law on the books. And because in Anglo-American law the jury plays an important role in decision making, a great deal of professional skill goes into predicting how jurors would behave in particular contexts.

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These elements of social and personal reality gave credibility to the idea that fundamentally in law prediction is the name of the game. In this sense the term “prediction” is very close to the term “anticipation”

In the United States, law underwent something called the “American Realist Revolution,”2 in which it became important in the practice and theory of law to give weight to factors of personality and context as important predictors of legal outcomes. Now this behaviorally-oriented approach to law was resisted in conservative circles. In those circles the idea of predicting what judges do is simply giving in to the supremacy of un-elected judges.This continues to be a battle although any lawyer or scholar worth his salt knows that prediction or anticipation is nine tenths of the law

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For an overview see, Patterson, Jurisprudence: Men and Ideas of Law, pgs. 537-558 (1953)

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Post Realist Jurisprudence: The Role of Fellows of the World Academy of Art & Science

Realism was considered by some to be anti-theoretical. This meant that there were unfinished questions that still require theoretical extrapolation. In short, the fundamental question was: If the realist deconstruction as conventionally understood was correct, what are the next responsible steps for legal theory?Harold Lasswell (former President of WAAS) and Myres McDougal (Fellow of WAAS) pioneered the notion of a new post-realist jurisprudence for a free society. They reformulated Holmes by stipulating that law is a process of authoritative and controlling decision making for the purpose of vindicating the common interest of the community.

The emphasis on decision and decision makers indicates the influence of Holmes’ predictive theory. The implications however, were even more extensive. These implications stress a human centered approach to law and decision makers who could exercise choices implicating the future. They could be challenged to make decisions to improve the public order or to undermine it. This remains a crucial insight for the future of world order. If we consider international law as a process of

authorittative

and controlling decision making, the obvious challenge for decision would be how to improve the making and application of law in the common interest of all. Now this approach required innovations in the development in the theory and practice of law. This approach stressed the relevance of context, values, problems, decision making, anticipation and creative solutions. In short, new thinking.The problem –oriented approach generated a vital insight: with proper tools and clarification of the context in human relations one would be better-situated to predict the important problems that emerged from humanity.Here again the challenge was to develop a theory and method of contextually, mapping problems against the whole of the social universe.In addition, having clarified the problem, there were certain intellectual tools that would have to be developed to solve these problems in law or in any other aspect of society. 8Slide9

New Thinking Skills to Guide Decision Making

These intellectual tools were 1) Value Clarification 2) The Study of Historic Trends Relevant to the Problem 3) The Study of Conditions Concerning the Social Response to the Problem 4) Critically for our concerns, what might an observer disclose from a projection of the relevant trends and conditions with regard to the values being contested. Here, the task is to have some disciplined method of anticipation.

5) One of these methods was to develop a developmental construct. Hence the problem- solver would develop a construct projected into the future in which from the trends and conditions he could predict what a plausible best-case scenario is and another construct indicating the worst-case scenario so that anticipation here is partly guide by clarifying values, understanding history and trends, appreciating causes and consequences and scientific conditions in order to construct am optimistic and pessimistic developmental projection.

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- 6) Our final intellectual task is to consider the options and whether strategies and tactics may be invented to optimize the best-case scenario and avoid the worst. Essentially, this is a task that challenges us intellectually to be creative. Our WAAS fellows suggested that the method of free association advocated by Freud could be cultivated as a resource of creative capacity in practical arenas of decision making. These intellectual tasks represent the elements of a novel form of thinking for law and the social sciences. Some have called this a new paradigm of thinking.

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We conclude these introductory comments with a reference to one of the most famous developmental constructs in the history of the social sciences of the United States. I refer of course to the Garrison State Hypothesis.

3 Lasswell, had been observing the global scene, observing the problem of values, the problem of trends, conditions, etc. and he emerged with a construct of how the emerging state system might be oriented. That construct was the notion of the evolution of a modern state that was essentially a Garrison state. In the Garrison state, the forces that dominate are the specialists in violence. The more entrenched these specialists are the less regard they will be for basic human freedoms. The broadening of the Garrison State Hypothesis is seen in the revelations of Mr. Snowden concerning the collection on a mass basis of the private date of individuals, without these individuals knowing about it.

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The most comprehensive jurisprudential development of anticipated futures including the Garrison State is found in Lasswell, McDougal, Jurisprudence for a Free Society,

Kluwer Law Intl, Vol II (1992). Especially Chapter 4.11Slide12

The Anticipated Future of Public Order of the World Community and International Law

The introduction to this paper with its focus on the revolt against formalism had a focus on the public order that was largely state centered.The target of the critique was the idea that in the sovereign state law emerged in a strong box of legal rules and these rules were essentially mechanistic in specific prescription application and enforcement. In this sense, the Holmes insight that law is a prediction of what officials do was in fact a radical critique.

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The focus on official behavior placed the study of law and jurisprudence into the actual operational context of what real live officials actually do.This implied that their behavior could be conditioned by certain causes and consequences that permeate their social roles.

Such factors as culture, class, race, gender, personality and objective conditions of crisis could well be critical factors in predicting what officials do.13Slide14

This was an important insight and as Holmes brutally reminded us, the life of the law has not been logic, it has been experience. He added an important further insight about the limits of mechanistic logic when he indicated that as a judge, he could give any conclusion a logical form.

We now turn to the role of the evolution of realism in the context of international law.14Slide15

Like the model of a state system of public order, there is implicit in the society of multiple states and other actors in the global environment, a notion that these interactions and interrelationships should be subject to a form of public order whose foundations are rooted in the idea of law that transcends the sovereign nation state.

This view was however, challenged by the conventional theory of law that law emerged exclusively from the sovereign officials of the nation state.15Slide16

The leading theorist, John Austin,4 found it impossible to empirically establish a sovereign having inclusive competence over all states and all of humanity. Therefore, what passed for international law was simply an example of positive morality.

In short, there was no such thing as international law and therefore there was no juridical foundation upon which to build a public order that would organize the necessary activities of states and human beings in the global environment. In short, the global earth/space community occupied a legal vacuum.5.

Austin, the Province of Jurisprudence Determined (1954).

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Early in the twentieth century, the jurist, Thomas Holland, suggested, “[International Law]… is the vanishing point of jurisprudence.”3

Developments in PracticeToward the latter part of the nineteenth century European statesmen began to address the problem of the non-obligatory character of international law. This led to a partial codification of many of the principles of armed conflict, which claimed the status of positive international law. Notwithstanding the limits of theory.

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However, the efficacy of these rules were shattered by the outbreak of the World War I.Two statesmen considered the problem of a system of public order devoid of enforceable legal rules.

These were non-European statesmen: President Woodrow Wilson, USA and Field Marshall Smuts, South Africa.Their agitation resulted in the creation of a system known as the League of Nations.18Slide19

The central purpose of the League was to produce a collective solidarity to maintain international peace and security.However, states claiming omnipotent sovereign competence asserted their claims to wage war and aggression without restraint. The League collapsed. World War II followed its demise.

In the aftermath of World War II, the legacy of the Roosevelt's was largely responsible for the creation of the United Nations system and a constitutional charter to sustain that system.19Slide20

International law took a giant leap into the future with a promise to promote a public order for the world community based on global security, respect for human rights and human dignity.

The public order based on the UN Charter remains a vital foundation for the enhancement of a desired global future based on an enlightened and progressive international law. Once more practice went beyond theory.However, international law has suffered at least theoretically, from a lack of attention to its jurisprudential foundations and how these foundations may be strengthened.20Slide21

Paradigms of World Order and the Future of International Law

The paradigm idea was first introduced in the modern era by WAAS Fellow, Richard Falk5 to better understand the state of world public order and the possible trajectories of its future development.Prior to the introduction of the paradigm idea, international lawyers in the past already had a sense of the challenges confronting the model of conventional international law.As far back as 1625, the great Dutch jurist, Grotius wrote a book concerning the state of international law in his time. The book was titled, “De Jure Belli Ac

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,” translated means “The Law of War and Peace.”

6. Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, 84 Yale L. J. (1969-1975).21Slide22

What Grotius identified precociously was the emergence of an international system based on the primacy of territorial sovereigns.

Since the notion of sovereignty implies unconstrained competence, the question Grotius sought to address was how these sovereigns could conduct normal and useful intercourse with each other with the guidance of restraints that could be implied as existing but as of yet unidentified in the community of sovereign states. Effectually, Grotius identified the emerging paradigm of an international law exclusively based on sovereign states. Additionally, he sought to develop a new paradigm of international law based on principles of reasonable restraint and rationality. Grotius sought to develop principles of ethics, morality and right reason as providing the tools and mechanisms of sovereign intercourse to the mutual benefit of the sovereigns.Grotius believed that scholarship could be a tool to clarify the salience of reasonable sovereign interest. Indeed, sovereigns would see that it is in their interest to act reasonably in a global environment.

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From this point we must concede the durability of the paradigm of international law identified with Grotius.The Grotius point of view receive a powerful endorsement from the world community when the UN Charter and International Bill of Rights were created as the constitutional basis of a new public order of the world community.

It must be acknowledged that the Grotian theory, based on reason and rationality was always in contestation with the evolution of real power in the international system. Real power was still largely a matter of state sovereignty.Indeed, Professor Falk considered that from a practical point of view, the territorial sovereignty of Westphalia continued to be the dominant paradigm of international law and world order. Falk acknowledged that a deeper understanding of the social and power processes of globalization meant that the boundaries of sovereignty were increasingly eroded as the dynamics of human and association intercourse breached the boundaries of states.

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Towards a Theory for Inquiry About Anticipated and Desired Public Orders in the World Community*

In this section of the presentation, I present a bare outline of what a theory of the future of world public order and international law might look like. 1. An inclusive focus of observation on the entire earth-space community; recognition of global problems and global challenges of mutual interdependence and inter-determination. 2. Clarified goals of a public order committed to the inclusive respect and dignity accorded to all human beings.* The leading direct article on this issue is, McDougal, International Law and the Future, 50 Miss. L. K. 259 (1979) and the breakthrough article on international theory is, McDougal, Lasswell, Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. Intl L. 189 (1967-1968).

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3. The critical significance of the role of authoritative decision making as a critical instrument for establishing the common interest of all. 4. A clear and scientific description of the principle components of the global, constitutional and public order system.

5. A scientific clarity given to factors that condition constitutional and public order outcomes.25Slide26

6. The creation of anticipated future constructs and alternatives for constitutional and public order outcomes. 7. An imaginative and creative anticipated desired future system, realistically obtainable under current conditioning and trend factors for constitutional and public order.

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Critical Problems to Be Accounted for in Anticipated Constitutional and Public Order Outcomes

The central problems that humanity confronts in which a sound public order system would seek to secure are as follows:1. Power and security: It would be useful to consider the exercise of coercion as a matter that should be constrained to the most minimal dimensions of human intercourse. Additionally, the achievement of desired values should be reflected in terms of a public order of optimality.

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2. Environmental integrity: This includes the control and regulation of the spoliation of resources, pollution, global warming and more.3. Population demographics: The challenge of producing and distributing values for all to share equally.

4. Institutions: The institutions from a global perspective are largely state-centered and even then, are frequently corrupt, inept and a liability to their communities and the world community.28Slide29

Global Values and the Public Order

1. Power and democracy: The fundamental problem of participation, authority, accountability and responsibility. 2. Wealth: Radical global poverty and inequality. 3. Respect: Racism, religious phobia, gender discrimination, global otherness. 4. Well being: Crisis of global health and security, mass murder.

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5. Enlightenment: Under-developed education, waste of human capital.6. Skill: Technological obsolescence of humanity, gross unemployment.

7. Affection: Global deficit of compassion and solidarity.8. Rectitude: Abuse of religion for exploitation and violence.9. Aesthetics: Abuse of aesthetics for propaganda.30Slide31

We may systematically clarify the problems of the production and distribution of values by a focus on their aggregate outcomes, by an appraisal of the scale of participation and value processes, by the abuse of perspectives concerning the shaping and sharing of values, by the situations within which value interactions occur and deprivations happen, by an examination of the use of values as bases of power for access and sharing, by a focus on the strategies available to participators.

These are factors which indicate the limits and potentials of the system of constitutional and public order.31Slide32

The Architecture of the World Process of Constitutive Decision Making

Clearly a sustainable public order must be sustained by a sustainable framework of authoritative and controlling decision making.The unfinished work of theory is to develop a framework of constitutive expectations that are rooted in expectations of authority and control. Additionally, these expectations must unpack the critical functions of decision making so that their capabilities may be fully and rationally exercised.In short, the constitutive process must account for the power process as well as the system of authority that sustains authorized exercises of power.

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In the future, international law would have an uneasy co-existence with the foundations of legal theory.Additionally, the sovereignty model became the conventional foundation of law.

After WWII two WAAS Fellows, Harold Lasswell and Myres McDougal launched a trenchant assault on the Austin-sovereignty view of the nature of law.They took the view that it is important to have an adequate description of the public order as it is at any level of social process.Such a description would quickly disclose from a global point of view, that the participators in the public order include a wide variety of participators including ultimately the individual human being.

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Professor Falk described the insights of Lasswell and McDougal as generating dangerous knowledge anticipating the new emergence of a new paradigm of international law and international relations.

Falk took the view that by the mid 20th century international law and international relations were constrained by the assumptions of Westphalia and the positivist of jurisprudence of Austin.Falk also suggested that world order is in a state of transition. In this state of transition important new actors were emerging influencing the state of public order.Among the important identifications of change was the emergence of global civil society.Falk’s prediction appeared to suggest that there would be continued contestations regarding the defense of status territorial sovereignty and the demands of emerging civil society on a global basis.

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Hence, sovereignty is being eroded but it is still a potent force.Global civil society is being empowered but is as yet insufficiently institutionally organized and funded. We are therefore in a state of transition with the prospect of a greater empowerment of civil society and a more constrained role with regard to the state’s power to coerce on a global basis.

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Towards a New Paradigm of World Public Order and International Law

The inheritance of the legal tradition has essentially been to repudiate the relevance of anticipation of the evolution of law and to stress a fidelity to the wisdom of the past. This is an ingrained form of conservatism in judicial attitude and method.Legal realists ridiculed this backward looking perspective which they described as the Goofus Bird perspective. A Goofus Bird loves where it has been and has no concern with where it is going.

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Before we can predict a viable future public order for mankind we must be able to identify the framework of emergent, imperfect, possibly desirable and possibly undesirable, competing and challenging systems of public order.

These issues have been matters of deep concern to several fellows in the World Academy of Art & Science. These include Harold Lasswell, Richard Falk, Myres McDougal, Michael Reisman, Burns Weston, Gary Brewer and several others who have explored this issue.37Slide38

Before we can predict a viable future public order for mankind we must be able to identify the framework of emergent, imperfect, possibly desirable and possibly undesirable, competing and challenging systems of public order.

These issues have been matters of deep concern to several fellows in the World Academy of Art & Science. These include Harold Lasswell, Richard Falk, Myres McDougal, Michael Reisman, Burns Weston, Gary Brewer and several others who have explored this issue.38Slide39

The most important development in an effort to describe and develop a realistic prospect of defensible world orders has emerged from the world of legal theory.In 1968, McDougal, Lasswell and Reisman

3 published a famous article developing the most comprehensive theory about international and public order in the history of the field.39Slide40

The theory developed in this article stresses the following three principles: (1) the principle of contextuality for the entire earth, space community

(2) the centrality of a technique of realistic problem-solving (3) the salience of using multiple methods of description, and analysis for the development of a realistic and relevant international law.With regard to the issue of problem-solving, there is the centrality of understanding the architecture and objectives of decision making, the analysis of trends toward or away from the objectives of decision, the realism of understanding the conditions of decision, the critical relevance of projecting future developments and the formulation and development of alternatives strategies to achieve clarified desired goals and values.

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