Law & Society Blog

Justice is not a legal concept. If it were, there would be no such things as unjust laws, and there sure is no shortage of those. The code of the legal system is not just/unjust but lawful/unlawful. Of course, external considerations of justice may be imported by the legal system into the programs that guide the application of the binary values of the legal code. However, once assimilated into the legal system, such considerations are no longer considerations of justice but rather attributes of legal (lawful/unlawful) communication.

That said, my esteemed colleague Bloomfield’s post touches upon the more fundamental issue of the nature of normativity. Ordinarily, normativity is explained in terms of certain (descriptive or non-descriptive) properties that are unique to normative claims. What I was getting at is the temporal aspect of normativity, that is, my ex ante commitment to choose defiance over learning when faced with the frustration of my expectations. Norms, unlike facts, discriminate among possible futures. Thereby, norms reduce the complexity of our decision making by providing us with at least one good reason (not) to choose future A over future B. Of course, legal norms are not the only norms. However, the legal system has the specific, and I would argue the sole, function of stabilizing normative expectations against cognitive frustrations. What makes the legal system unique as a sub-system of society is (i) its function (counterfactual stabilization of normative expectations); and (ii) its code (lawful/unlawful). Other normative sub-systems, for example morals, apply other codes (good/bad). Thus, I do not agree with Bloomfield’s assertion that law is an opiate for the masses. Rather, law is a means to reduce the complexity of social interaction, which in turn enables highly complex social behavior. If I had to consider the possibility of violence in every social interaction involving people who I don’t know (for example, a negotiation), I would be severely restricted in what I could cognitively afford to do. Cognitively I know that every human being currently alive and available for me to interact with is, as Neal Stephenson put it, is “a stupendous badass” descended from “a line of slightly less evolved stupendous badasses.” However, relying on that knowledge in my daily interactions would not get me very far, socially speaking. Thus, we have to (and do) act as if individuals (that is, empirical humans) were persons (that is, normatively construed actors). The “as if” is only visible from a scientific observer’s point of view. For us as participants (and that includes the observing scientist), people are persons. The legal system plays an indispensable part in securing my continued ability to rely on any individual’s personhood, even though I might cognitively suffer the occasional frustration.