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(P1-05) Institutions: mixing the natural and the rational

‘Institutions’ matter. Many definitions do circulate. Ours is discussed below (and largely harvested from Schmidt 2009).

Institutions have:

  1. identity
  2. claimed sovereignty
  3. over a domain
  4. shared beliefs
  5. function
  6. rules (or laws)
  7. policies
  8. norms
  9. elites
  10. work forces
  11. publics
  12. feedback and communication channels
  13. hierarchically organized, internal and external, institutional structure.

‘Institution’ is a family concept; it is hard to define, because institutions differ in many significant ways. Nevertheless we contend that it makes sense to consider anything showing the thirteen mentioned characteristics to be an institution. Thus, we consider e.g. the following kaleidoscopic collection of social systems to be institutions: the Dutch health care system, nation states, soccer world championships, families, parishes, pop groups, the UN, the EU, Mogadishu factions, firms, Super Bowls, schools, the Camorra, markets, games and most Internet-mediated services (Google, open source projects, Freenet, Wikipedia, Hyves, YouTube, Sec- ond Life, etc.), even Internet itself (with its IETF). Quite often, institutions are complex adaptive networked systems.

From a law-science perspective, the most striking characteristic of an institution is its having rules. That is why we sometimes call institutions ‘legal systems’ (when referring to nation states or treaty organizations) or ‘law systems’ (as synonymous to institutions in general, in the vein of Fuller 1969:124-9). So legal systems are institutions (are law systems), and function to provide valuable structure to group life.

For our purposes, however, an important issue in characterizing law systems this way is in the almost universal de facto concurrency of the whole set of characteristics – and in the hypothesis it suggests that institutions have natural structure, that laws (man-promulgated general rules) naturally come with institutional identity, sovereignty, domains, beliefs, function, policies, norms, elites, work forces, publics etc. Apparently, organization per se nurses these characteristics towards law systemhood.

Analytically, we crash into the reciprocal structure of etiologic, functional, teleological stories here. In biology, it may be used for the explanation of the long neck of the giraffe, founded on the value-free mechanism called ‘survival of the fittest:’ out of the set of random adaptations the instance that proves to be most fit to survive survives. An analogous functional process may be at work for the etiology of institutions.

Many do loathe this idea. Coase (1937) took a very long time (roughly: from 1937 until the 1990s) to gain the respect of mainstream economists. Making a long story short, we consider Coase’s analysis (generalizing it for our purposes here) to unveil a ‘survival of the better value’ mechanism, for organizing  exchanges in general: the transaction costs of making rational ad hoc behavioral choices (information gathering, per exchange, on availability, quality, price, ownership, trustworthiness, future consequences,  etc.) may outgrow the benefits of deciding autonomously and individually. We thus can apply Coase’s insight not only on economic exchanges, but also on behavioral decision making in general and show that there are situations in which the values gained by organization can balance the values lost by waiving individual freedom of choice (or autonomy). [As a matter of fact, we suspect that this mechanism may well be at work when levels of aggregation in communities (complex adaptive networked systems populated by responsible people) emerge].

Mixing 
the 
natural 
and 
the 
rational

One major distinction between the ‘natural’ mechanisms of survival of the fittest and survival of the better value must be stressed: the latter is not founded on random mutation processes alone, but also on human capabilities for rational intervention, design and judgment under conditions of incomplete information. Survival of the better value is thus to be understood as a natural-rational mixed bag, perhaps not unlike the mechanisms involved in a living language adapting with its time.

Natural
 values

The concept of law-system quality introduces incredibly complicated insitutional questions amongst which the first and foremost are whether we can (1) identify ‘natural’ values that (2) are commensurable and (3) can be exchanged. Researching, let alone answering these questions is beyond the scope of the current discussion.

References

Coase, R. H. 1937. The nature of the firm. Economica, 4 (16), 386–405.

Fuller, L.L. 1969, The Morality of Law, Yale University Press.

Schmidt, A.H.J. 2009. Radbruch in Cyberspace: About Law-System Quality and ICT Innovation. Masaryk UJL & Tech., 3, 195.

(P6-01) EU-Greece on July 13, 2015

This morning we got the news that there had been reached an agreement about the Greek insolvency problem. It turned out to be a prescription by the non-Greek EU countries for how Greeks have to adapt their life styles into a new format, turning to what, e.g., Germans and Dutch prefer. This seems a strange, […] Continue reading → ...

(P8-02) Groupiness and rivalry within disciplines

One characteristic of a discipline is a tendency to “groupiness.” Economists (members in other disciplines behave similarly) join groups that share characteristic reasoning habits. The economic discipline has thus developed different sub cultures. Such groups have formed around economists like Hayek, Keynes, Friedman, Coase, Akerlof, Bowles, Myerson, Greenspan. Often, in-group coordination (this phemomenon may be […] Continue reading → ...

(P1-04) What is a CANS?

For understanding the legislators’ difficulties in regulating the behaviors in CANSs (like the behaviors in the global, multi-level and multi-niche cluster of networked personal-data devouring and producing individuals and institutions), we need a systemic perspective that relates responsible individuals with the communities they co-evolve with. Systems An important concept therefore is `system’ in general (as […] Continue reading → ...

(P0-10) Why ask: What is a CANS?

This snippet aims to convey a general notion of why it is worth while to ask What is a CANS? For solving Complex Problems, we need cross-disciplinary cooperation. The statement is a no-brainer. Its realization is not.  We promote CANS-thinking because it is our aim to identify quality mechanisms that help comprehend what the scope […] Continue reading → ...

(P8-00) The Road Ahead

Our project is work in progress by definition. As long as homo sapiens survives as a species, there is no end state imaginable where our comprehension of socal institutions and their regulation will be in stasis and complete. So we will write blogs/paragraphs on how we appreciate what we are doing and have been doing, […] Continue reading → ...

(P7-00) The Results Category

In Partition P7 we collect paragraphs that consider conclusions that emerge from looking at what has been collected in the other partitions. Most of these will have the form of falsifiable propositions. Especially important for this collection of paragraphs are heuristics that will support CANS theory reception by mainstream law professionals (Partition 7). Continue reading → ...

(P5-00) The Law’s Emergence Category

We reserve a separate partition for blogs and paragraphs that address the legal system, its institutions, its professions and its professionals as CANSs themselves. With what will be collected here we hope to further find out how complex adaptive systems (legal systems included) can be modeled to emerge as complex contingencies that survive in niches, […] Continue reading → ...

(P0-00) The Preliminaries Category

In this Category we discuss mainstream scholarly attitudes towards law, legal theory and complexity and their interactions. Concepts and terms are introduced. Also, hunches about usefulness for understanding many serious and persistent social problems, badly in need of scholarly legal attention that is aware of complexity theory are collected here. Continue reading → ...

(P3-00) The Structure & Dynamics Category

Category P3 collects paragraphs focusing on interactions and relations between structures and dynamics. Thoughts on how the analysis in structure and dynamics of complex situations have de facto helped understand and manage social systems facing actual critical transitions find a place in this category. Also examples of how institutional ecologies may have co-evolved in between […] Continue reading → ...

(P2-00) The Dynamics Category

In the Category P2 we collect paragraphs on the dynamics of systems and system aggregates. Often these dynamics are described in cyclic models of processes, like in metabolics (e.g., the Krebs cycle), in evolution (Darwin’s reproduction-variation-selection), in teleologic behaviors (Wright), in intrinsic and extrinsic motivation (Deci). One issue to be discussed (Dennett, Gazzaniga) concerns the […] Continue reading → ...

A sub-section

In this sub-section of the results Partition, we report three lessons for law-making gained from CAS theory. The three lessons are based on researches by JB Ruhl, Tussey and us. This sub-section relates evidence on the values of CAS theory in innovating the science of law. The exploration on these evidence may help us to […] Continue reading → ...

(P0-09) Important CANS Characteristics

Before addressing the What is a CANS? question we first give an overview of important characteristics often mentioned as building blocks for the CANS concept: diverse agents with behavioral parameters; dynamics; emergence; replication; metabolism; survival; selection; recursion, or scale free phenomena; bottom-up and top-down causation; network structures, multi-level feedback loops; self-organization; critical transitions. These characteristics […] Continue reading → ...

(P1-03) Complexity and Mainstream Legal Theory

The focus in complexity is different from the focus in classical, mainstream legal theories. Legal postivism evaluates situations and behaviors (actions, strategies, expectations) against previously promulgated laws. And legal realism describes what legal institutions do and extrapolates what the future behaviors of legal institutions will be, based on observing passed performance. Both the positivist and […] Continue reading → ...