Law's Evolving Emergent Phenomena: From Rules of Social Intercourse to Rule of Law Society

Abstract

Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. This essay, written for a symposium on the book, draws on the notion of emergence to elaborate the implications of naturalism, historicism, and holism for legal theory, further developing ideas sketched in the Conclusion of the book. Emergent phenomena arise in connection with objects or agents whose interactions produce qualitatively new features not found in its constituent parts. Two senses of emergence are contained in this idea: the emergent phenomenon is greater than the sum of its parts, and its emergence is a historical occurrence.

First, I introduce emergence. Then I describe five emergent aspects of law: fundamental rules of social intercourse; legal systems as organized coercion attached to the polity; specialized legal knowledge; a relatively fixed legal fabric; and a rule of law society. The first three emergent phenomena in combination constitute fundamental features of modern legal systems. The two remaining emergent phenomena relate to law in contemporary society. In the course of describing these aspects of law, I address implications for various important issues in legal theory exposed by seeing them as emergent phenomena.

Keywords: Legal Theory, Jurisprudence, Law and Social Science, Law and Economics, History of Law, Law and Development