Toward a social constructivist theory of law

Here is a sketch of some ideas that I got reading Benedict Kingsbury’s work on the International Legal order, and his efforts to created an global administrative system.

The two theories of law are legal positivism and natural law, which are in conflict.  To resolve this conflict one can see how a similar conflict was resolved in early childhood education.

There is a deep correspondence between these two theories of law and two theories of early childhood development, the behaviorist and the developmentalist.  The behaviorist model is associated with Skinner and Pavlov.  The developmentalist are associated with Montessori.  Behaviorists wear lab coats.  Maturationists are hippies.

The correspondence between these two theories is not accidental.  If you trace the history of ideas associated with maturationists, you end up with Rosseau, who also came up with the idea of natural law.  If you trace the history of ideas associated with behaviorists you end up with August Comte who came up with the idea of positivism.  These two people also took different sides on the French Revolution.  Rosseau with the republicans, and Comte with the monarchists.  Maturationists are liberals.  Behaviorists are conservatives.   Maturationists are hippies.  Behaviorists wear lab coats.

Now in early childhood education, the conflict between the two was largely resolved in the 1980’s with ideas with from cognitive development.  The main name with this is Lev Vygotsky’s whose main idea is social constructivism.  Learning is the process of making external interactions between human beings internal.

I  would argue that just as there is a “third way” in ECE, the concepts of cognitive development and social construction of ideas can be used to create a theory of law.  One example of this is wikipedia which in a very short time has developed an elaborate legal system with courts and legal norms.   The usefulness of this theory of international law is that I think it allows for the incorporation of non-state or semi-state actors.  States, non-states, and semi-states come from social interactions, and this provides a common ground to see how these relate to each other.  The other thing is that by using social interactions between individuals as the fundamental generating principle of law, one links in law with other endavours such as economics, diplomacy, and politics.  Finally, to get back to my early article, creating a social constructivist theory of law allows for one to bring in passion, emotion, and irrationality into international law.

It is necessary to include passion into international law since the fundamental actors are all based on passion.  International law is particularly “passionless” since it was created in the time of Grotius by kings to mediate what were essentially contractual disputes, and has many elements of contract civil law.  However, since the mid-19th century, the unit of international law has been the nation-state which ultimately is based on the rather irrational but important need for human beings to sacrifice themselves for their family and nation in the name of love.  Any theory of international law must incorporate these irrational but essential aspects of the human condition.  Social constructivism does this by basing law ultimately on the silly and irrational interactions (or lack thereof) between human beings.

To see an example of social constructivism in action, I’d argue that my views on the Chen Guangchen case are very highly influenced by social constructivism.  A legal positivist would look only at the literal application of the law, while a natural lawyer would try to find general principles.  Both would miss what I think is the essential matter of this case, which is how law exists within a particular social system and how it influences and is influenced by that system.

I’d also argue that social constructivism also takes the law out of the realm of the lawyers and puts it into the hands of the common man.  In legal positivism, the law is unconnected with social systems.  In natural law, the law is connected with abstract principles which are not connected with the day-to-day activities of ordinary humans.  The social constructivist views human and social relations as the basis of law, and by connecting law with people’s day to day lives, it provides a gateway by which people can be empowered to use law, rather than becoming dependent on experts.

Question: Relate what I’ve said to the various issues that have concerned Chinese philosophers since Confucius.

The United States is an Islamic state….

I’ve been spending some time studying Islamic thought and law, and I’ve started to come away with the impression that a case can be made that the ideals of the United States fall closer to that of Islam that anything that Al-Qaeda is proposing, and that one of the strategies for winning the Long War involves making this case.

My background is in physics, and as such what I try to do is to strip everything to its essential characteristics. In the case of Islam, the essential message is that there is one God and all are equal before God, this is actually the same message as the second paragraph of the Declaration of Independence. The second essential characteristic and commonality between Islam and the United States is the commitment to law and justice. You read writings of Supreme Court justices and these feel exactly the same as the writings of Islamic scholars or students of the Talmud.

Everything else is detail. Important detail, but its detail.

And this is why the proposed tribunals that the Bush administration is proposing is doing incalculable harm. Law becomes very attractive if you are living in a lawless environment. When bombs are going off and rapists are going unpunished, you want law and order, and so when Bush talks about having military tribunals with separate rules for US citizens and non-citizens or going against some of the foundational principles of due process, he moves the United States away from some of its foundational principles which coincidentially are the same principles that are at the foundation of Islam, and this makes it easier for Al-Qaeda to argue that it is creating the true Islamic state which I don’t think is the case at all.