From: GBurch1@aol.com
Date: Sun Sep 19 1999 - 09:22:12 MDT
In a message dated 99-09-16 18:14:36 EDT, k_aegis@mindspring.com (Kathryn
Aegis) wrote:
> This question relates to one of the 'tough' questions that I proposed and
> Greg Burch tackled to some degree. I am genuinely curious as to whether an
> extropian polity, enclave or other type of community might involve in any
> degree what we currently know as 'the rule of law' which derives its
> origins from the Napoleonic Code and the Code of Hammurabi. (Both
> autocratic rulers, and yet they delegated some responsibility for rule to
> the people in the form of courts and juries.) If an individual exhibits a
> lack of self-control or a lack of personal responsibility that harms
> another individual in some way, what mechanisms would exist to reduce the
> harm or prevent further harm?
I can't conceive of any polity based on extropian values in which "law", in
the most general sense, wouldn't play a role. Laws are just rules for
structuring social relations and, so long as there are multiple intentional
entities, such rules will be necessary. Having said this, there is obviously
a great breadth of possible definition and implementation for rules of social
interaction.
I think extropian values are most consistent with highly flexible rule-making
and rule-application and with fundamental rules maximally based on notions of
individual autonomy and consensual submission to the authority of any set of
rules. In particular, for as long as people have been using the word
"extropian" to describe a particular (evolving) set of ideals and values,
we've been most interested in the idea of organic, emergent "private law".
Your reference to the Napoleonic and Hammurabic "codes" points to one of the
most fundamental distinctions upon which extropian legal thinking is based.
There is a basic dichotomy between the common law methodology and the
so-called "civil code" methodology. In the former, legal rules are formed
judicially as a result of decision of specific disputes. Although rules of
so-called "positive law" can be extracted from their fact-based context, such
abstracted positive law is not seen as some kind of immutable ground, but
rather only as a possibly temporary characterization of a constantly evolving
process. In contrast, the civil code system (of which the two codes you cite
are well-known examples) is premised on the idea of legislatively-defined
rules of positive law which have a conceptual validity apart from any
specific application. Unfortunately, statists tend to disfavor the common
law's fundamentally decentralized and polycentric methodology and the rich
history of the common law (especially in the Anglo-American tradition) has
tended to become more and more obscured with time as the power of centralized
states has grown. I would say that extropian ideals and values tend to
encourage the common law methodology much more strongly than the civil code
methodology. Recapturing the organic vitality of the common law's "fuzzy
logic" is a primary goal of extropian jurisprudential thinking.
> We can see this very question at work in the present-day American judicial
> system, in the realm of mediation within the court system. As cases get
> moved into the mediatio process first, prior to ever going to trial, the
> opportunity is provided for the persons involved to take responsibility for
> the outcome, to craft their own solution to the problem. The actual court
> trial is the fallback for a failure of the parties to come to agreement,
> but in many cases the issues are more clearly understood by all involved.
To an extropian, the growth of the "alternative dispute resolution" (ADR)
movement generally and the mediation process in particular is one of the most
encouraging signs in the contemporary American legal scene. ADR as it is
currently developing provides a fertile seedbed for the development of very
extropic private law regimes.
> Many codes of mediator ethics, however, restrict mediators from taking on
> any case in which the power imbalance between the parties is severe,
> generally child abuse, spousal abuse, and physical assault cases. Sexual
> harassment cases are riding a fine line in this arena, because in some
> cases the parties respond quite well to mediation and in other cases the
> abuse level is simply too high. Victim-offender mediation is a new area of
> mediation practice in which someone who has inflicted harm on another meets
> with them to formulate ways of paying some sort of reparation.
Again, this kind of ADR process may well provide a context for reinvigorating
the essentially polycentric nature of the traditional common law methodology.
Mediation in the criminal context such as you describe provides an avenue
through which regimes of organic private law could develop. All that's
necessary to really jump-start this process is the establishment of a
reporting system so that the "feedback loop" of private common law
rule-making can be really begun. So far, this has presented a fairly
difficult challenge.
Greg Burch <GBurch1@aol.com>----<gburch@lockeliddell.com>
Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide
http://users.aol.com/gburch1 -or- http://members.aol.com/gburch1
"Civilization is protest against nature;
progress requires us to take control of evolution."
Thomas Huxley
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