Law as Social Software I

The ordinary person, the one who is not an expert and has not studied the “sacred texts” of law believes that the essence of the law is justice. Concept that seems self-evident.

Of course, people know that there can be problems. Corrupt judges or politicians can use the law to commit injustice, and use their power for sleazy self-interest. But this only indicates a disease, a pathology of the system.

It remains obvious to the person who is not a legal technician that law and justice are the former the instrument of the latter.

Instead, what experts say and what law school students study is that there is a gulf between justice and law. An unbridgeable distance.

The reason is not only because it is almost impossible to “give each his own.”^{1 2} Here it would only be a technical problem, of not making mistakes, in assigning blame. Or of the impossibility of fully compensating those who have been offended. Who can compensate a father whose daughter was killed?

Instead, the problem is much deeper. Not so much about the implementation of justice, which it, like all human activity, is profoundly fragile. But it is on the very idea of justice, on constituent values. On the concept of good and evil.

Many argue that it is an illusion to believe that there are self-evident values. When one group–like the founding fathers of the United States–regards these values as self-evident ³, it is because there is an ideology, in this case the liberal ideology, which being shared by all, seems to be universal. But when you turn around and look at other cultures, other historical moments, what looked like universalism becomes singularity.

On the other hand, if it is believed that justice is based only on cultural facts, then the law will turn into a formal scheme, totally disinterested in humanity’s fate of good or evil. Hence, the dilemma: If there are universal natural values, what are they? And if they do not exist universally but are only an expression of the individual, what is the point of re-proposing universal declarations of rights? Why condemn differences and ideological minorities? Worse still, if there are no values that ground existence for all, why should we submit to a law that is just an empty shell?

The battle between natural law and positive law is indefatigable, but it does not point to a problem of jurisprudence or legal philosophy, but rather to the impotence of a civilization that has never solved the problem-if it can ever be solved.

There is a pseudo-Platonic dialogue the Minos that highlights with dramatic evidence, the inability to solve the Gordian knot of law and justice. In fact, at the end of the dialogue, just when the solution to the problem is expected, the author abruptly interrupts, in an unpredicted form, leaving the reader unanswered. The text ends with a few nostalgic and shameful words from Socrates. When asked what the lawgiver should prescribe to the soul to make it better-i.e., what is the good on which to determine laws-Socrates replies that he does not know and that it is a shame that the soul that knows so in detail the good and evil of the body in which it is infused and also of everything else knows nothing of the good and evil that it can suffer or enjoy.⁴

There is, however, another aspect of the legal norm that needs to be addressed.

The force of the law that we internalize and obey becomes an instrument not only of a hypothetical justice but takes on an indispensable role in regulating a complex society that needs a social software, which organizes, demarcates, promotes or brakes, social functions, relationships, desires and goals. And this regulatory software is law. Indeed, traffic laws prevent a rude person from leaving his car by blocking my garage, but at the same time they serve so that a city’s traffic flows more quickly and orderly. Passing the car in front of us on the right instead of the left is not a matter of justice, but of order. Order that can only be achieved if there is a cogent force, the very one we created to defend ourselves from the evil one, namely the norm.

For the ancient Greeks, Justice, Dike, was the goddess daughter of Zeus and Themis, the Order. Themis represented the deep connections of things, a deep occult order to which even Zeus must be subject.

Indeed, if questions arise about justice as a natural legal value, no less troubling are questions about the norm as social software. Indeed, law as “software” orders the members of the social group toward an order, but this order may allow the maximization of social strength with - at the same time - a reduction in the freedom of the individuals who make up the group.

In the Macedonian phalanx, the one that enabled Alexander the Great to overcome armies many times greater in numbers, the strength of the phalanx corresponded to the inability of each member of the phalanx to have autonomous behaviors.

It seems that power can multiply when the elements unite into an orderly group : the forces of the elements add up, the directions of the elements coincide, power increases, and at the same time the degree of freedom of the elements is reduced to the point of cancellation. Thus, the Macedonian phalanx, thus the Roman legion.

It could be said that only in a time of war should individuals merge into a single group so as not to have to succumb as a whole to the enemy. Matter of survival. But even in times of peace there is the question whether society has a purpose that exceeds and differs from that of individuals, in a sense, transcends them, as in the fascist state for example, or whether the group exists only and as a function of individuals, as in the liberal state.

Look for example at the concept of the “mission” of a people. Even liberal states such as the U.S., believe that they have a civilizing mission, which transcends even the interest of individuals in their own nation. On the other hand, the response of uniting as a group as one in times of danger and then expanding one’s personal rights in times of peace is already an ideological operation. For it identifies man as a free subject and the group as an aggregation “useful” only for survival. Rousseau addresses this issue in the Social Contract with surreal results.

In reality, man’s nature is deeply relational, connected to other human beings. Then perhaps, the view, individual/society must be overcome by the view that the individual is always, in some sense, society.