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 LAW, ETHICS, ECONOMY

Independent Paths or Shared Ways?*

Csaba Varga†

Justice Oliver Wendell Holmes of the Supreme Court of the United States, one of the classics of the formative years of American legal realism, defined his programmatic stand almost one hundred and twenty years ago as follows: legal notions have to be washed with “cynical acid” so that they can serve as genuinely legal concepts, stripped of theological and moral (etc.) overtones. [1] Because, as he devised,

“Moral predilections must not be allowed to influence our minds in settling legal distinctions”. [2]

Thus the question arises: is someone calling for cynicism inevitably cynical himself?

            We know that such approach was called functionalism at the time. It held as a basic tenet that each and every component of the social complex has to serve with full strength at its own place, as it is just its specific particularity as distinguished from anything else that may have motivated its coming into an own existence.

            It is the ideal of functionalism in law, for the institutionalisation of which modern formal law has once been invented and developed. Historically, this was exactly the product of European bureaucratism (gaining strength from the early 19^th century) that began to assimilate the state structure to its organisatory needs with an earlier unheard-of efficiency. As to its first step, law was thoroughly formalised to develop its particular homogeneity. In return,

·           law became autonomous

·      with distinguished particularity [3]

·      to function in a specific way. This necessitated own responsibility in overall co-operation, with interactions in any direction regarding any complex. [4]

            Thereby functionalism is also expressive of an instrumental tendency, in theoretical conclusion of the fact that, from now on, modern social existence can only be explained as the self-realisation of straightly co-operating partial totalities, relatively separated yet thoroughly connected on the plane of the whole totality. This is what George Lukács and his circle once described as the domination of homogeneous autonomies developed on the terrain of undivided heterogeneity emerging in everyday existence, in which each and every complex (separating out from the total complex by advancing its particularities) becomes both specified and, operating according to own criteria as one given homogeneity, relatively independent from the total complex (undertaking the risk of confrontation as well). [5] On the field of macro-sociological theory-building, Niklas Luhmann, too, arrived at a similar conclusion one decade later, having formulated the category of Ausdifferenzierung as a theoretical foundation stone, to indicate separation and isolation, in the course of which the specific operation of law would appear with a binary code, responding by the exclusive alternative of either ‘lawful’ or ‘unlawful’. [6]

            All this anticipated the chance of dysfunctionality in actual operation, running against the values originally designed to be implemented. For long as known, scholarship has considered such occurrences to be just mistakes, marginal in practice. [7] At the same time, however, theoretical description has defined the ontological result by some mutuality in operation, forming a “tendential unity”, which at any time will determine the total whole. This is expressed among others by the fact that for Lukács in his social ontology, language and law are from the outset distinguished from the rest of social being (taken as the total operation of the total complex consisting of partial complexes). Or, language and law are held to be mere intermediators that do not operate with own values, for they exclusively mediate among values taken from other (non-mediatory) complexes. By the help of instrumental values they may generate as wedged in the process, they are to enhance the efficiency of their mediatory roles at the most. Of course, inspired by historical materialism rooted in economic determinism, Lukács presumed a component able to play an overdominant role in the total process hic et nunc. But having arrived at social ontologising from Bolshevik revolutionism, the aged Lukács had already to realise that hegemonic determination by any complex becoming totally dominant (in the shadow of which no further partial complex could any longer play the proper role to be played) would inevitably harm and distort the whole totality. [8]

            Let us raise the question: what practices may arise in our day from such and similar recognitions? If we consider only the alternatives of medical law, i.e., of making malpractice a subject of civil action, one of the three solutions as follows may emerge in principle:

·               no responsibility and no justiciability in practice (as once practised in the “actually existing system of socialism” in Hungary and the entire region);

·               responsibility made almost absolute (as evolved in result of the self-assertion of lawyers in the United States of America);

·               personal or institutional responsibility enforceable via the specific medium of the medical profession (idealised as a perspective for Hungary after the fall of Communism).

Well, assessing the field by such extreme poles (with some sensitivity to our domestic traditions [9] ) within such a threefold perspective of past, present and possible future, we can take the following consequences into account in the light of today’s procedures and of our prospects getting further Americanised:

(1) the assumption of responsibility enforced by lawsuits will be built back as auxiliary cost into the expenses of health care, which has to result in the overall rise of its budgeting;

(2) the actual accrual of health cost is taken out from the proper field of health care, only to be divided among suing clients and the lawyerly caste; in response to which

(3) on part of both the health supplier and the client, further juridifying mechanisms (mediations and formalisations) will be subsequently wedged in the hitherto purely health-centred processes, mechanisms that are alien to the original ethos and inherent rationality of health care and which may shake its very foundations with a parasitical intrusion. With legal safety becoming a consideration in focus, a new practice (eliminating procedures and risky choices once generously accepted in practice) may come about. Finally, all this

(4) further professionalises the practices of the medical profession, cutting up traditional treatment processes into artificially isolated partial processes. That is, the medical profession will try to reduce both frustration and predictable damages by deploying additional (cost-increasing) staff with professional “mind-healing” (psychological) specialisation in the process (as the paradoxical after-effect of sheer artificiality and exaggerated bureaucratisation, arising from the depersonalisation of the entire procedure, in fact worsening the patient’s healing prospects)—needless to say, to no use.

On the final analysis, all this will not in the slightest degree increase the actual (and morally reasonable) responsibility to be borne by social healthcare for its action achievable within the given society’s tolerance and funding limits.

     This is probably the most costly outcome both financially and also regarding its erosive effect on medical ethos, which is to result from an external control of health care, alien to it and unduly overcoming it, driven solely by lawyerly arrivism and profiteering as guided by professional imperialism. Yet, at the same time this proves to be also the least effective solution. All that notwithstanding, it still seems to step by step subdue the entire medical organisation, whereas the course to take it has by far not been necessary. One and a half decades ago, back at the beginnings of our transition from communism, its feasibility and acceptability was still an open issue in Hungary, at a time when the external pressure by a professional push—accompanied by an internal agitation to introduce and tolerate an American-type lawyerly rule—first became perceptible in the country. [10]

            Considering all this now both as a danger and warning [11] —when research is so much exhaustive as to devote attention to cultural anthropological investigations of tribal communities of a few hundred members surviving sporadically [12] —, we might at last take notice of the fact that the Atlantic civilisation, so clearly determining our near future, has been composed over the past centuries of two definitely diverging ethoses and social philosophical inspirations, differing also by their very foundations. The contrasts are perhaps most conspicuous today as to be seen in the difference between approaches to life as a struggle and to law as a game within it. No doubt, on the one hand, there prevails

·               a European Christian tradition, characterised by communal ethos, with provision of rights as counter-balanced by obligations, in which priority is given to the peace of society, and a traditional culture of virtues is promoted to both circumvent excesses and acknowledge human rights with a focus on prevention and remedy of harms. It is such an environment within which homo ludens as a type of the playful human who is both dutiful and carefree, i.e., entirely joyful, constitutes a limiting value. [13] If and in so far as struggle appears at all on the scene, it is mostly recognised as a fight for excellence. As a pathologic version, the loneliness of those staying away from participation may lead to psychical disorders which require subconscious re-compensation, the symbolic sanctioning of which (typically in the stale and excited Vienna of the turn of 19^th and 20^th centuries and by a psychologist of middle-class women shut into self-consuming idleness) was accomplished by Sigmund Freud. On the other hand, there has also evolved

·               an Americanised individualistic atomisation of society, expecting order out of chaos, with absolutisation of rights ascribed to individuals, all closed back in loneliness. As an outcome, obligations are circumvented by entitlements, and unrestrained struggle becomes a normal course of life with the deployment of human rights to neutralise and disintegrate community-centred standards. ‘Life is struggle’—the hero of our brave new world enunciates it as a commonplace with teeth clenched, convinced that life is barely anything but fight against anybody else (as an improved version, hailed—under the pretext of maximising the chances—as civilisatory advancement by re-actualising the ominous bellum omnium contra omnes, formulated by Hobbes in early modern England). Following such examples, feminist self-reliance may stand for a contemporary pathological ideal type, struggling herself back into unhappy loneliness by engaging in fight with her jaw and targetedly developed further abilities.

It is mostly such and similar stimuli that nourish our uneasy experience in our globalised present, with ideals of order, standards and cultural patterns that transform status struggles (based on gender, colour, etc.) into in-law struggles, and which, under the aegis of law, support disproportionate financial indemnification for alleged psychological injuries so as to gain material fortune, and which thereby replace collective solidarity by individual arrivism and disintegrate cohesive forces by societal atomisation.

            Is it really such an outcome what we have wanted in our nation building through centuries? Is it really this what is worth wanting now when we are freed to shape our fate, given the chance to change the past regime?

            In want of other points of reference in our spiritually emptying world (almost lacking unconditional respect for, and followance of, values), let me recall a few lessons taught by historical legal anthropology [14] and the history of legal philosophy, [15] referring uniformly to the significance of the moment of trust in the mechanisms of feedback and the necessity of complexity in social existence. Well, both in early Jewish, Islamic (etc.) traditions and even nowadays in surviving autochthonous cultures (lacking in resources, therefore stipulating maximum efficiency as the condition of survival), we can observe the compulsion by two sorts of axiomatism with clearly ideological operation, which organise human choices into a framework unquestionably ready-made from the outset. [16] One of these perspectivical optima is

·               the idea of proportionality with self-moderation, based on the priority of public good. This spread first as shalom, or the precedence for public peace to protect society, which, later in Roman development, was formulated as the dilemma of formalism expressed by the adage of summum ius, summa iniuria, [17] to be recognised from the Middle Ages on as the virtue of temperantia. [18] The other is the

·               ideal of natural law.

The latter

·               ·          presumed human responsibility (in forms developed in East-Asia, Latin America, as well as in the Christianity and Islam) for our environment as inherited by us exclusively for use and to be handed down to the following generations safely;

·               ·          defined (in its Christianised Greek–Roman version) minimum conditions (suitable to a formulation in sets of principles, rules, and exceptions from rules) as a comprehensive framework for social life in a symbolic expression of the created (or, profanely, the somehow organised) order: first, representing the whole cosmos, then, the humanly observable world, later on, society, and finally, the individual (with responses echoed by both theology and politics, ethology and cultural anthropology).

Eventually, in our secularised age, this ideal was first replaced by

·               ·          ·          endowing the ideal of natural law, unchanged in principle as transcendent to human existence, with changing (developing) contents [Naturrecht mit wechselndem Inhalte] at the end of the 19^th century, [19] then, by

·               ·          ·          its institutionalisation as “the nature of things themselves” [Natur der Sache; nature des choses] by the jurisprudence of continental countries with Latin or German roots after World War II, [20] in order to provide guidance for the desirable harmony among functions in conflict, as derivable from the pondering upon all circumstances of the issue in question.

     Returning to foundations in the philosophy of science, the first and primary task of human thinking is to delineate the frameworks, boundaries and limits within which human action may have a context, which prompted our ancestors to search for the methodological ways of thought. In fact, from the age of Descartes, European civilisation reduced what may be at all thought of to what can be deduced from some unquestionable truths through logical (re)construction. This has led to a kind of naturalism, reminiscent of naive realism on the pattern of the wisdom of lex mentis est lex entis, [21] presuming parallelism, moreover, correspondence, between thought and reality. Conversely, in early times, even the created nature of the world was conceived of in a geometrical order according to mathematics’ ideal, inspired by the Biblical exposition “But you have disposed all things by measure and number and weight”. [22] In result, human thought was also confined to a mathesis universalis, posited as a sheer conceptual arithmetics, within the presumption of an all-pervasive natural and notional systemicity. By the Enlightenment’s combatant materialism, first of all the modelling of cognition upon the pattern of reflection was developed in depth, which kept on surviving, among others, as the central epistemo-ontological pre-supposition of Marxisms. Eventually, from all this, it is mostly the unconditional hegemony of rationalisms that has remained by today. [23] This is the dogma according to which only what is rationally justifiable can become subject of theoretical reconstruction—ignoring the brutal fact that, as the side-effect of modern scientific revolution, this mind-set may only contribute to the deprivation of man of a number of his further qualities; for man, with his inborn facultases, is significantly more and richer in emotional, intuitive, transcendent (etc.) life than claimed by the idea reducing his complexity (when assessing his self-positioning in the world) to one single, exclusive quality. [24]

            This is the pattern which the very concept of ‘social science’ complies with: in its germ, a typically American leftist idea (originating from the same source as Marxism, namely, scientific positivism), according to which a science on society can be built on a thoroughly factual foundation with empirical methodology, enabling social engineers to draw necessary conclusions from measuring given states of attitudes (etc.) to predict future behaviours (etc.). Well, such a “sterile morphology” (flourishing from the interwar period up to the 1950s as marked by Talcott Parsons’ ahistorically universalised analytical system of concepts) has proved to be a dead end by today, [25] re-admitting again the old ideal of the humanities, which admits that when approaching the specifically human, something more is at stake than a merely rational codifiability.

            Obviously, even more is at stake when we encounter the claim (rejuvenated after the failure of the one-time attempt to axiomatise ethics) [26] to negotiate moral and social psychological issues on the pattern of classical analysis taken as conceptual mathematics, absolutising a methodology according to which—of course, for the sake and within the bounds of the given conceptual system—only what can be rationally concluded and justified is thinkable at all, forgetting that human reflection is by far more complex than that. [27]

            Therefore, as against a mechanical world-concept symbolised by the ancient clockwork’s metaphor, [28] our existence is nonetheless a total whole all through: a totality resulting from the constant competition of interactions by practically unlimited sets of uninterrupted processes, (re)generated in autopoiesis, which inseparably closes (back) its ontological and epistemological determinations and partial processes into its own total process. If we do not raise the issue as a theologically founded question (or if we reject, in the spirit of Occam’s razor, the teleological moment to be raised from the outset), then it remains an insoluble enigma whether or not that what we think a limit in terms of values in such processes can at the same time also be regarded as objective? Or, formulated as a paradox, is ‘objectivity’ available at all when one insists on “pure” scholarship? [29]

            Returning again to economy, we have to conclude that without a vision of man with his entire complexity (including theological, anthropological, ethical and psychological aspects as well), not even economy can be fully explained. Obviously, ethics is also necessary for economy as a desideratum in order to mentally construct and ontologically posit it. Otherwise speaking, economic rationality is certainly at its proper place in forecalculation when we consider probabilities or take it into account as one of the criteria in managing conflicting situations, but it certainly cannot be the exclusive motive to rely on in the operation of the overall complex. Or, ethics is by far not just a merely corrective, complementary factor in economy. It is of a foundational significance to give it a framework so that the issue of economic rationality itself can be raised at all.

            As we have already remarked, in legal regulation, the concept of a system (formulated by, e.g., Grotius at the dawn of modern age), built up exhaustively and gaplessly in (natural) law and formed according to the ideal of mos geometricus, as broken down to individual positivations according to logical necessity, was later on replaced by the mere definition of basic principles and (somewhat as an added exemplification) their arrangement in rules and exceptions from rules, so that the various situations in life can be judged according to principles in a pattern-like but individualised way, bearing their total complexity in mind. Likewise in economy, morality serves as an ethos defining a general direction, while in individual situations it helps in balancing conflicts of values, in mediation of interests and mutual pondering, which may finally lead to compromise solutions. Consequently, in economy,

·               at the level of macro-processes, moral is an ontic component to serve as a foundation that makes economic rationality reasonable and also socially interpretable; while

·               in micro-processes, it has also to be taken cognisance of in the background, aware of the fact that it gets almost never recoursed to directly and one-sidedly but through reconciliatory processes, in order to solve conflicts and reach compromises by balancing, mediating and mutual pondering.

            It is exactly such a duality that opens up to both further requirements and additional wide- ranging prospects that may come in useful in our procedures at any time, for

·               ·          in macro-relations (e.g., in patterns proposed by medical law), it is exactly an ethical consideration that may generate correlating alternative models which we can endow, through strategic planning and a series of tactical decisions, with a definite patterning function, standardised as comprehensive social policies, after their harmonisation with prevailing economic and legal policies is done; while

·       ·          in micro-relations, we have to provide for the model-like operation of this through education, socialisation and case analysis, caring for the diversity and particularity of individual situations with proper empathy, taking into account also our ultimate goals and assisting such an operation with the store of instruments suitable to both framing and practical feedback.

With this, we have opted for the demand for human entirety, encouraged to avail ourselves of the potentialities offered by specialisation and homogenisation in our complex age with good conscience, but at all times in a way not to miss the ultimate goal, the intention—desirably guiding all our human actions—of implementing fundamental values in practice. [30]