Law’s Institutional Becoming: Creativity, novelty, change

Chapter 13

Law’s Institutional Becoming

Creativity, novelty, change

In order to think change and to see it, there is a whole veil of prejudices to brush aside, some of them artificial, created by philosophical speculation, the others natural to common sense.

(Bergson 1946: 131)

Clearly, in terms of the philosophical approach that we have been pursuing here, traditional thinking about law, even more contemporary theories of law such as MacCormick’s ‘institutional theory of law’, approach the idea of law and legal institutional change from the point of view of stability rather than continuing change. It seems important, then, to ask why and how it might benefit such views if institutional change, both as an object of investigation and as an everyday legal reality were approached from the point of view of continuous change rather than stability; in other words, if the ontological priorities were reversed and change was seen as the normal state and not just a special case or deviation from the stable and routine.

The argument being pursued here is that, first of all, it would provide legal theorists and other legal researchers with a more comprehensive view of the micro-processes of change that may be operating. What makes institutions change? How are new templates and models discovered and legitimated? Who does it? What this suggests is an enquiry into whether there is any alternative to the linear model of change characteristic of traditional legal theory. How might we account for the possibility of non-linear processes, of surprise? What connotations and consequences might this suggest for our ideas of law? Second, although change in law is often understood as the change from one stable condition or state to another, expressed in terms of often quite detailed descriptions of what these states and the differences between them are, there is little in the legal literature on how and why what happens, comes about. Even if we can say that a decision must be justified by the giving of justifying reasons for that decision (a movement from state A to state B), such reasons, as we have seen, do more to explain the decision rather than justify the decision-making. This ‘justification’ explains and describes the effect of the decision on the legal system and on the parties involved; however, it does not admit us into the experience of how and the why and by what means the decision was actually achieved: for example, how those legal rules were translated into, became, that decision, and how, in the process of being translated thus, they underwent change, modifying and being modified, adapting and being adapted. Justification for legal decision-making is always viewed retrospectively, more as a fait accompli, when understood in terms of the giving of justifying reasons for a decision that has already been made. In this sense, something important is lost: its vibrancy, its revelatory, evolving qualities are not only lost from view, obscured or denied, but perhaps also contradicted and even negated. When we view change in law as something exceptional to the stable state, we lose sight of the fact that change is happening all the time. On the micro level change is all pervasive; what we find is continuous change. In this sense, far from being repeatable and repeated patterns remaining essentially unchanged from instance to instance, institutions of law are actually perpetually moving waves or currents of ideas that act and interact and change in acting. Therefore, in so far as habitual patterns of behaviour are human actions then they too contain potential for change, since change is there all the time, unrecognised and unseen.

Perhaps the main stumbling blocks to any attempt at a re-conceptualisation of law and legal change are the ontological and epistemological assumptions under-girding our thinking about law. Nonetheless, there are inklings of a push towards a new way of thinking, or at least a restless dissatisfaction with the old way. Levi, for example, stresses how a legal concept changes asdecision-makers respond to previous decisions in the context of new decision-making situations. He notes how ideas develop, appear and reappear in different guises, and how the classification changes as the classifica-tion is made. In this sense, every decision in law is a change in law. Others, like Bańkowski, Jackson and Detmold, note how in law the decisions that are made cannot be separated from the decision-makers who are making them. Generally, legal institutional change remains part of an ongoing process of legal decision-making, grounded in the decisions taken by legal actors, and arising out of their encounters with contingent everyday situations. Indeed, as long as human judges act in decision-making, the potential for continual change and institutional creativity always remains. Moreover, the development of an emphasis on the authority of the decision-maker rather than that of the decision itself is a further part of this same trend.

Here, the purpose is to show that and how it might be possible to build upon and develop these trends by proposing and explicating the philosophical basis that would sustain them. Our starting point is the recognition that to understand legal institutional change we need first of all to cease ascribing ontological precedence to the outcomes of institutionalisation, a view that understands change as something exceptional, a temporary aberration, deviation or unbalancing, that is produced by certain persons under certain conditions. Rather, change must be seen as the standard, base-line condition, permeating reality through and through, the inseparable, undividable, continuous character of reality and thus also of legal institutions. But this effort to push further at the boundaries of our present understanding cannot and will not follow without a reversal in the ontological precedence of institutional stability over change. Institutionalisation must be seen as a function of change; change as ontologically prior to institutionalisation, the condition of its possibility.

What, then, must institutions of law and law as an institution be like if change is constitutive of reality? Here, I will show that change is the result of the reflexive, recursive, inter-weaving of an institutional actor’s intricate web of thoughts, values and routine behaviours as a consequence of new experiences obtained through interaction in concrete situations. Inasmuch as this is a continuing process, that is, in so far as it is an institutional actor’s attempt to understand, comprehend and act coherently, change is intrinsic to human acting. Law is an attempt to try to make sense of this continuous tide of human activity, its to-ing and fro-ing, and to channel it, and shape it, through generalising and institutionalising meanings and rules. Yet, at the same time, law and legal institutions are patterns arising out of change. So, law is an accomplishment, an achievement, in two ways: first, it is a set of norms utilised in order to attempt to stabilise expectations over time of an always altering reality; second, it is a product, a pattern arising out of the reflexive application of these same norms in concrete situations, over time. Law aims at controlling change; it is also the product of change.

In law, thinking about change usually centres around the idea of change as a resultant state, whose significant features, causes and consequences require explanation and elucidation. This is the view underlying MacCormick’s account of institutional concepts: change is approached from the standpoint of external observation. His institutional model therefore takes on a ‘3-stage’ form with transition taking place between these stages over a period of time. In this way, ‘frozen’ pictures of key aspects along a temporal sequence are accompanied by explanations of the route traced. Nonetheless, however crucial such knowledge is to enabling our understanding, it has certain limitations; not least, because it is an overview, a series of frozen pictures. In this sense, it can never capture the inherent unpredictability and variability that we have been highlighting, the extent to which the continuity of connected micro-processes underlying the routes traced are characterised by indefiniteness and essential un-dividedness. But why is it that stage models, such as that of MacCormick’s institutive, consequential and terminative rules, cannot encapsulate the significant characteristics of change?

The beginning of an answer is to be found in the age-old paradoxes of Zeno. Take, for example, the story of Achilles and the tortoise. The problem, as Zeno presents it, is that Achilles cannot ever catch up with and overtake the tortoise because every time that he reaches the tortoise’s starting point the tortoise has already moved forward from it. But the real problem with this is not that Achilles cannot ever catch up with the tortoise; rather, it is that Zeno’s paradoxes arise on the back of a misplaced assumption that space and time are infinitely divisible. MacCormick has the same problem in respect of the story about the poisonous snake’s venom and Cleopatra’s tragic demise. Why do we assume that space and time are infinitely divisible? The answer is found in our impulse to intellectualise everything. We try to make sense of what we experience by imposing on our perception a conceptual framework, a template through which to understand. We conceptualise perception in order to make sense of experience but, in so doing, freeze what is an otherwise essentially continuous, moving, ever-mutating phenomenon. It is, of course, our use of concepts that necessarily demands we impose such an arbitrary ‘halting’ on the continuous flow. Nonetheless, the result of this imposition of a series of static states or positions on what is otherwise an essentially fluid and ever-changing reality is our attempt to understand movement in terms of immobility.

Bergson, on the other hand, claims that to understand movement in terms of a series of successive points in space and time fails to capture what is distinctive about movement. Here, movement from A to B is understood in terms of the positions that something occupies in getting from A to B, in spite of the fact that none of these static positions contains any elements of mobility at all. Conversely, William James argues that the ‘stages into which you analyze a change are states, the change itself goes on between them. It lies along their intervals, inhabits what your definition fails to gather up, and thus eludes conceptual explanation altogether’ (James 1996: 236).

This is exactly the problem that we encounter in MacCormick’s theory with his attempt to understand legal change by breaking it down into a series of stages understood in terms of the transition from institutive to consequential to terminative rules. There, too, we perform a reduction of change by converting it into a linear sequence of relatively static positions. But the point being argued here is that, in so doing, we actually lose its essential character and important quality. Instead of capturing what is significant about change, change itself eludes us and remains unexplained and unrecorded. The paradox is this: the conceptual apparatus by which we try to make sense of change fails to get to grips with change. We are unable to understand change qua change; that is, change in changeful terms. This is because we attempt to understand it using the language and terms of what it is not; in other words, we attempt to understand change through the use of a conceptual apparatus that denies change. In this sense, to understand change in terms of law is not a question of categories of universal and particular and how to communicate between them, but what both fail to grasp; that is, change, continuous process. To assert that what we need to do, since the universal cannot ever capture the particular, is to focus on the particular, itself misses the point, because that is still the same attempt to understand movement, change and process, in terms of immobility, stability and state. Put differently, we might try to represent change by a series of boxes, marked A, B, C, and so on, and explain that change is the process by which we move from A to B to C and so on. But the problem is that change understood in this way sees the boxes, not what happens between them (change); or, at best, it sees the boxes first, which amounts to the same thing.

If our customary methods of employing our conceptual apparatus in order to understand change continually issues in paradoxes that only serve to deny change, is there another way? Can we understand change in a way that does not contradict, negate or deny change? Bergson suggests that we must re-enter the flow, approaching reality with our senses and connecting through our intuition. For him, we must get to know reality from within. In this sense, only an unmediated perception of reality can glimpse its essential features – constant change, undivided continuity, the continual reiterative action and interaction of sameness with difference over time. But how do we get to know something ‘from within’? For Bergson, this happens when we experience it directly. Through placing ourselves at the centre of something we can experience something directly and know it from within. We identify with something through intuitive sympathetic understanding; for example, drawing on the resources of our own experience to understand the complexity of someone else. Bergson cites the example of a man with photographs of Paris, arguing that he could ‘feel’ it from the photographs because he already knew it from being in it, but without that intuitive sympathetic understanding he could not. Similarly, when we listen to music, we do not hear simply a succession of static, individual notes but the continuing movement of the melody. We move with its flow, listening to it from within. Intuition, direct unmediated experience, insight, paying attention from within, sensual perception rather than intellectual conception, really are all pointing to the same thing: holding both continuity and difference, the homogeneous and the heterogeneous, together. But we are still left with the question: how?

Conceptualising Change: The Problem with Universals and Particulars

On the one hand, generalisations, or abstract universals, deny differences and seek to hide them; on the other hand, perception recognises difference and is responsive both to difference and to modification. Just so, when everything is the same, even very familiar, its essential character goes unnoticed. Thus, the visitor to a beautifully scenic place will often gasp in awe at the beauty to be experienced all around, while the local inhabitant hardly notices it or takes it for granted. For the one, difference heightens awareness; for the other, sameness dulls perception through the senses. In recent years, we have witnessed increasingly how the ability to produce a work, or technique, of art that shocks at the very least ensures that its author gets noticed. For Bergson

(1946: 135–36) we might say that this is the sign of a good painter, one who has the ability to bring to the forefront of our attention something that had hitherto gone unnoticed. But how does this happen?

One way in which this might happen is through encouraging a sense of detachment; that is, by resisting the obligation to look straight ahead and, instead, to engage what Chia calls our ‘peripheral vision’ (Chia 1998: 362), to notice fully what is on the fringes of our everyday life and experience in order to really see and understand. But we are too used to looking at things instrumentally, as means rather than as ends in themselves, as examples or instances of general categories, instantiated universals. By contrast, the artistic spirit naturally engages with reality in a different way: ‘when they look at a thing they see it for itself, and not for themselves … It is because the artist is less intent on utilizing his perception that he perceives a greater number of things’ (Bergson 1946: 138).