In a former post, we had explored the idea of considering the law as an abstract machine which provides its users with information about the correct expectancies about human conduct that, if fulfilled, would contribute to the social system inner stability (here). The specific characteristic of the law working as an abstract machine resides in its capability of dealing with an amount of information more complex than human minds. This thesis had been previously stated by Friedrich Hayek in his late work titled “Law, Legislation and Liberty”, aimed to provide the foundations to a proposal of an constitutional reform that would assure the separation of the law from politics -not in the sense of depriving politics from the rule of law, but to protect law from the interference of politics.
Paradoxically, the said opus had many unintended outcomes that surpassed the author’s foresight. One of them was the coinage of the notion of “Spontaneous Order”, which Hayek himself regretted about, because of the misleading sense of the word “spontaneous”. At the foreword of the third volume of the cited “Law, Legislation and Liberty”, he explained why he would prefer to use of the term of “Abstract Order”. Notwithstanding its creator’s allegations, the label of “Spontaneous Order” gained autonomy from him in the realm of the ideas (for example, here).
Why better “abstract order” than “spontaneous”? Because while no “concrete order” might be spontaneous, we could nevertheless find normative systems created by human decision, besides the spontaneous ones (see “Law, Legislation and Liberty”, Chapter V). Moreover, we do not see spontaneous orders whose rules fail to provide stability to the system, because of “evolutionary matters”: such orders could not endure the test of time. Nevertheless, for the same reason, we could imagine a spontaneous order whose rules of conduct became obsolete due to a change in the environment and, thus, fails to enable the social system with the needed stability.
Spontaneity is, thus, not the central characteristic of the law as a complex order. What delimits law from a “concrete order” is the level of abstraction. An alternative name given by Hayek to designate the concrete orders was the Greek term “taxis”, a disposition of soldiers for battle commanded by the single voice of the general. Concrete orders could be fully understood by the human mind and that is why they are regarded as “simple phenomena”: the whole outcome of their rules could be predicted by a system of equations simpler than the human mind.
Notwithstanding a single legislator could sanction a complete set of rules to be followed by the members of a given society, the inner system of decision making of those individuals are more abstract that the said set of rules and, thus, the human interactions will always result in some subset of unintended consequences.
These unintended consequences should not necessarily be regarded as deviations from the social order, but indeed as factors of stabilisation -and, thus, all abstract orders are, in some sense, still spontaneous. These characteristics of the law as a complex order concern on the information about the final configuration of a society given a certain institutional frame: we can establish the whole set of institutions but never fully predict its final outcome. At this stage, we reach what Hayek called in The Sensory Order “an absolute limit to knowledge”.
We now see that the legislator could sanction a complete system of rules -a system that provides solutions for every possible concrete controversy between at least two contenders-, but he is unable to be aware of the full set of consequences of that set of rules. We might ascertain, then, that being enabled with a “negative capability” to anticipate the outcome of the law as a complex phenomenon is a quality to be demanded to a good legislator.
By this “negative capability” we want to designate some understanding of the human nature that allows to anticipate the impact of a given norm among the human interactions. For example, simple statements about human nature such as “people respond to incentives”, or “all powers tend to be abusive”. These notions that are not theoretical but incompletely explained assumptions about human nature are well known in the arts and literature and constitute the undertow of the main narratives that remain mostly inarticulate.
Precisely, as Hayek stated, every abstract order rests upon a series of inarticulate rules, some of which might be discovered and later articulated by the judges, while other rules would remain inarticulate despite being elements of the normative system.
However, we praise Negative Capability as a virtue to be cultivated by the legislator, not by the judge. The function of the judge is to decide about the actual content of the law when applied to a particular case. It is the legislator the one who should foresee the influence to be exerted by the law upon a general pattern of human behaviour.
Notwithstanding Negative Capability could be dismissed in order of not being a scientific concept, this negative attribute is one of its main virtues: it means lack of ideology, in the sense given to that term by Kenneth Minogue. While an ideological political discourse reassures itself in a notion of scientific truth, at least a legislator inspired by common and humble ideas about human nature would be free from that “pretence of knowledge”.
- Imagining post-abortion America Rachel Lu, the Week
- A visit to Noah’s Ark Stephen Cox, Liberty Unbound
- Adam Smith as centre-left economist (and nothing else) Branko Milanovic, globalinequality
- Tequila and US-Mexican security relations Raúl Benítez Manaut, War on the Rocks
- Why Czechs don’t speak German Jacklyn Janeksela, BBC
- The Kurds, Sykes-Picot and the quest for redrawing borders Nick Danforth, BPC
- The language of the economy: prices Rick Weber, NOL
- A Balkan border change the West should welcome Marko Prelec, Politico EU
- Artificial Intelligence: How the Enlightenment ends Henry Kissinger, the Atlantic
- What if we have already been ruled by an Intelligent Machine – and we are better off being so? Federico Sosa Valle, NOL
- We are in a very, very grave period for the world Henry Kissinger (interview), Financial Times
- What should universities do? Rick Weber, NOL
- Lagos: Hope and Warning Armin Rosen, City Journal
- The Agonizing Death of James Garfield Rick Brownell, Historiat
- Authority Interfluidity
- Ukraine wants a national church that is not beholden to Moscow Bruce Clark, Erasmus
Back In 2007 Nassim Nicholas Taleb had estimated that, in the following years, the rate of irruption of highly improbable events that change our way to perceive reality would be on the increase. Using his terminology, we would swiftly drift from Mediocristan out to Extremistan. People would have to deal with black swans more often and adapt to the new scenario.
The sudden spreading of Jordan Peterson’s lobsters might be a confirmation of Taleb’s surmise (in Extremistan, the term “surmise” has not any derogatory connotation). “Stand up straight with your shoulders back” is a piece of advice aimed at people who feel overwhelmed by a state of affairs, both personal and public, whose complexity they can hardly grasp. In Taleb’s terms, Jordan Peterson wants to prepare you for a world in which the Black Swans are the underlying reality.
Our quantitative patterns about reality -both physical and social- contribute to preserve fixed relationships among the terms that build up our world and subjectivity -while every now and then the “untimely” burst into our sense of reality. The Nietzschean “untimely” had always been there, out of the reach of our horizon of perception, but ready to appear suddenly and unexpectedly, like the plague in Thebes.
Nevertheless, perhaps there is no underlying chaotic reality, but a Hofstadter’s braid, where Apollo and Dionysus are intertwined: simple and complex phenomena, back to back, the beauty and the sublime. Upon one side, the train of events represented by a correlative train of thoughts; on the reverse, a plane of unarticulated notions that are inherent to those representations.
In this sense, the matrix of Taleb’s Black Swans might not inhabit the undertow of our perceptions, but stand above them, in a plane of a higher degree of complexity. Each new event triggers our brain to readjust our system of classifications. But this readjustment, at its time, triggers off a reconfiguration in the said plane of unarticulated notions that give support to our set of representations. In principle, an arrangement of such events would remain stable, but sometimes some unintended consequences could arise. That is the dynamic of events that Friedrich Hayek had once tried to convey with his concept of spontaneous or abstract order.
Peterson’s Red Lobsters try to make us reflect on the edge of our common patterns of conduct, whereas Taleb’s Black Swans incite us to perform the speculative activity of throwing hypothesis over the singularity of the abstract order, so that to anticipate any unintended consequences of our individual or collective behaviour. Notwithstanding the huge differences that there might be between them, what deserves our main attention is the acknowledgement of that the unplanned, the unexpected, the uncertain, are not alien forces, but the inherent articulation of the patterns of events that constitute the matter we are face to deal with.