Cybernetic legal analysis and human agency

Res Publica

Volumn 4, Issue 1, 1998, Pages 77-116

  Lippucci, Alessandra ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 54749120965     PISSN: 13564765     EISSN: 15728692     Source Type: Journal    
DOI: 10.1007/BF02334934     Document Type: Article

References (177)

1. S. Beer, The Heart of the Enterprise: The Managerial Cybernetics of Organization (New York: Wiley, 1979), 42.
2. Both living systems (which can recreate themselves) and non-living systems (which lack this capacity) are characterized by the unity of their organization and structures. The organization of a non-living system (such as an automobile) consists of the relationships between its structures (wheels, transmission, engine, steering and braking system). In contrast, a living system (a cell, a human being) maintains its identity as a result of the ongoing turnover of its structural components. See M. Zeleny, "Autopoiesis: A Paradigm Lost?", in Autopoiesis, Dissipative Structures, and Spontaneous Social Orders, ed. M. Zeleny (Boulder, Co: Westview Press, 1980), 5,
3. and H.R. Maturana and F. Varela, Autopoiesis and Cognition: The Realization of the Living (Dordrecht: D. Reidel Publishing Company, 1980,
4. originally De Maquinas y Seres Vivos, 1972), xix-xx.
5. Feedback is a cybernetic term for a doubling back, or return, of lessons learned from outputs to places in the system where they can be used to recalibrate it. Negative feedback is used to return the system to its previous state (a thermostat does this in a heating system), whereas positive feedback is used to induce transformations intended to move the system to a new state. See W.R. Ashby, Design for a Brain (London: Chapman & Hall, 1952).
6. A social system is "a set of ongoing relations between persons and organizations, governed by mutual expectations which are usually embodied in roles": G. Vickers, Value Systems and Social Process (New York: Basic Books, 1968), 73f.
7. A family, a club, an academic discipline, a legal community and a nation-state are examples of social systems. Each social system differs "in the rules of conduct guiding the entry, roles and positions, and termination of their members": G. Vickers, "Spontaneous Social Orders", in A Science of Goal Formulation: American and Soviet Discussions of Cybernetics and Systems Theory, ed. S.A. Umpleby and V.N. Sadovsky (New York: Hemisphere Publishing Corp., 1991), 144.
8. See N. Luhmann, Social Systems, trld. J. Bednarz, Jr., with D. Baecker (Stanford, California: Stanford University Press, 1995), xxxv.
9. E. Voegelin, The Nature of the Law and Related Legal Writings, ed. R.A. Pascal, J.L. Babin, and J.W. Corrington (Baton Rouge: Louisiana State University Press, 1991), 38f.
10. Supra n.1, at 13.
11. Supra n.1, at 9f. N. Luhmann makes the same point this way: "[T]he statement there are systems says only that there are objects of research that exhibit features justifying the use of the concept of system, just as, conversely, this concept serves to abstract facts that from this viewpoint can be compared with each other and with other kinds of facts within the perspective of same/different" - supra n.5, at 2.
12. For a discussion of the development of these metaphors, see M. Kammen, A Machine That Would Go of Itself The Constitution in American Culture (New York: Vintage, 1987), ch.1.
13. In 1910 Woodrow Wilson asserted that "[s]ociety is a living organism and must obey the laws of life, not mechanics; it must develop." Quoted in supra n.9, at 19.
14. H. Hovencamp: "An examination of the intellectual and legal history of [this] period reveals the extent to which the theory of evolution dominated legal thinking. The doctrine of substantive due process, which reached its culmination in Lochner, is widely perceived as Social Darwinism applied to the constitutional doctrine of economic rights": "Evolutionary Models in Jurisprudence", Texas Law Review 64 (1985), 645-85, at 683.
15. Supra n.11, at 683.
16. A. Argyros, A Blessed Rage for Order: Deconstruction, Evolution, and Chaos (Ann Arbor, MI: University of Michigan Press, 1991), 7.
17. See Neurotransmitter Revolution: Serotonin, Social Behavior and the Law, ed. R. Masters and M.T. McGuire (Carbondale, IL: Southern Illinois University Press, 1994);
18. E.D. Elliott, "The Evolutionary Tradition in Jurisprudence", Columbia Law Review 85 (1985), 38-94;
19. and Law, Biology, and Culture: The Evolution of Law, ed. M. Gruter and P. Bohannan (Santa Barbara, Ca: Ross-Erikson, 1983).
20. N. Luhmann, The Differentiation of Society (New York: Columbia University Press, 1982), 264f.
21. Supra n.15, at 73.
22. Luhmann, supra n.5, at xxiii.
23. N. Luhmann, Essays on Self-Reference (New York: Columbia University Press, 1990), ch. 1,
24. and Risk: A Sociological Theory, trld. R. Barrett (New York: Aldine de Gruyter, 1993), 225.
25. See A. Touraine, The Self-Production of Society, trld. D. Coltman (Chicago: University of Chicago Press, 1977), ch.1;
26. and N. Luhmann, Social Systems, supra n.5, at xxxvii-lii and 28.
27. See P. Schlag, "Fish v. Zapp: The Case of the Relatively Autonomous Self", Georgia Law Review 76 (1987), 37-58.
28. G. Bateson, Steps to an Ecology of Mind (New York: Ballantine, 1979),
29. quoted in Evolution Extended: Biological Debates on the Meaning of Life, ed. C. Barlow (Cambridge: MIT Press, 1994), 92f.
30. See also H. von Foerster, "On Self-Organizing Systems and their Environments", in Observing Systems, ed. Francisco Varela (Washington: Spartan, 1981), 2-90.
31. I. Prigogene, "Time, Chaos, and the Two Cultures", in Science and Society, ed. M. Moskovits (Toronto: House of Anansi Press, Ltd., 1995), 109-21, at 113.
32. See also Prigogene, Introduction to Thermodynamics of Irreversible Processes (Springfield, IL: Charles C. Thomas, Publisher, American Lecture Series, 1954, 2nd ed., New York: J. Wiley, 1962)
33. and Prigogene, "Order Through Fluctuation: Self-Organization and Social System", in Evolution and Consciousness, ed. E. Jantsch and C.H. Waddington (Reading, Ma: Addison-Wesley, 1976), 93-126.
34. Prigogene, 1995, supra n.22, at 113.
35. Prigogene, 1995, supra n.22, at 117.
36. The primary goal of some systems may not be survival. An obvious example is the mobilization of armies for war. Similarly, members of various groups (religious, political, terrorist) willingly sacrifice their lives for their causes, and entire societies have been known to die out rather than adapt to new circumstances. In addition, of course, some individuals commit suicide.
37. This notion of self-regeneration, which appears in J. von Neumann, Theory of Self-Reproducing Automata (Urbana, Ill.: University of Illinois Press, 1968),
38. was subsequently extended to living systems by others such as H. Atlan, "Rôle positif du bruit en théorie de l'information appliquée à une définition de l'organisation biologique", Annales dephysiohgie biologique et médicale 1 (1970), 15-33.
39. E.D. Elliott has used such cybernetic language to describe the dualistic evolutionary model which Justice Oliver Holmes applied to the common-law process (a model which he claims appears in Holmes' "Law in Science and Science in Law", Harvard Law Review 12 (1899), 443-63).
40. According to Elliott, Holmes relied on an "internal selection process" ("judges decide according to patterns that already exist inside the system of legal rules and principles") and an "external selection process" ("selection is in terms of a structure outside the system of laws: the community's goals and values"). Elliott explains that "[I]nternal selection is the kind of evolution that takes place in a closed system, in which parts of the system are influenced primarily by other parts of the system; external selection is typical of open systems, which are significantly influenced by the environment" - "Holmes and Evolution: Legal Process as Artificial Intelligence", Journal of Legal Studies 13 (1984), 140f.
41. K. Deutch, The Nerves of Government (New York: New York Free Press, 1963),
42. and D. Easton, A Framework for Political Analysis (Englewood Cliffs, New Jersey: Prentice-Hall, 1965).
43. See L. Smolin, The Life of the Cosmos (New York: Oxford University Press, 1997);
44. L. Dobuzinskis, The Self-Organizing Polity: An Epistemological Analysis of Political Life (Boulder, Co: Westview Press, 1987);
45. and J. Mingers, Self-Producing Systems: Implications and Applications of Autopoiesis (New York: Plenum Publishing, 1994).
46. Maturana and Varela, Autopoiesis and Cognition, supra n.2, at 73-138. The term "autopoiesis", from auto (self) + poiesis (creation, production), was crafted to emphasize the creativity involved in the act of self-organization - supra n.2, at xvii.
47. E.D. Elliott cites Dr. Pangloss's assertion from Voltaire's Candide to highlight the folly of this principle: "[T]hings cannot be otherwise ... everything is necessarily for the best end. Observe that noses were made to support spectacles; and so we have spectacles. Legs were visibly instituted to be breeched, and we have breeches" - Voltaire, Candide (New York: Random House, 1929), 9f.,
48. quoted in Elliott, The Evolutionary Tradition in Jurisprudence, supra n.14, at 38
49. . 32 See Maturana and Varela, Autopoiesis and Cognition, supra n.2, at 107.
50. Supra n.32, emphasis added.
51. In defining society "as an order", the analyst should focus on the capacity of society to "produce itself" rather than on "its organs of reproduction", or functions. Society "as a whole" does not produce and reproduce itself in a "field of social relations" dominated by any one group of actors but advances as a result of the social relations actors produce "through their forms of conflict and cooperation" - Touraine, supra n.18, at 46.
52. Voegelin, supra n.6, at 30.
53. Maturana and Varela, Autopoiesis and Cognition, supra n.2, at 99.
54. "One can speak of change only in relation to structures. Events [which are bound to temporal points] cannot change ... Only structures keep what can be continued (and therefore changed) relatively constant" - Luhmann, Social Systems, supra n.5, at 345.
55. Supra n.5, at 119.
56. Voegelin gives this legal example: "the aggregate does not 'change' through the entrance and exit of rules, but it is transformed into a different aggregate" - supra n.6, at 31.
57. "[I]t is possible, although by no means inevitable, to imagine a world in which human beings, through their participation in sociotemporal communities, take part in the increasing democratization of information technologies, availability of information resources, and control over the nature of their Being. Of course, everything could go to hell in a handbasket. There are no guarantees in an evolutionary epistemology" - Argyros, supra n.13, at 178.
58. This inability to predict autopoietic development obviously poses major planning problems, which require a separate analysis. See A Science of Goal Formulation, supra n.4, and
59. E. Jantsch, Design for Evolution: Self-Organization and Planning in the Life of Human Systems (New York: George Braziller, 1975).
60. See N. Luhmann, A Sociological Theory of Law (London: Routledge & Kegan Paul, 1985),
61. and Ecological Communication, trld. J. Bednarz, Jr. (Chicago: University of Chicago Press, 1989), 63-75.
62. See G. Teubner, "How the Law Thinks: Toward a Constructivist Theory of Law", Law and Society 23/5 (1989), 727-741;
63. "After Legal Instrumentalism? Strategic Models of Post-Regulatory Law", in Dilemmas of Law in the Welfare State, ed. G. Teubner (Berlin: Walter de Gruyter, 1985), 299-325;
64. G. Teubner, Law as an Autopoietic System, ed. Z. Bankowski, trld. A. Bankowska and R. Adler (Oxford: Blackwell, 1993).
65. Luhmann, Ecological Communication, supra n.42, at 13.
66. Luhmann explains that boundaries have "the double function of separating and connecting system and environment ... As soon as boundaries are defined sharply, elements must be attributed either to the system or the environment ... Using boundaries, systems can open and close at the same time, separating internal interdependencies from system/environment interdependencies and relating both to each other. Boundaries are thus an evolutionary achievement par excellence; the development of all higher-level systems, above all the development of systems with internally closed self-reference, presuppose them" - Social Systems, supra n.5, at 28f.
67. Luhmann notes that "[T]he boundaries of the legal system ... must not be conceived as sharply etched, unambiguous lines of demarcation which can be 'stepped across' or not. Instead, they must be conceived as zones of an incremental probability of citation" (the probability that law will be invoked in any circumstance depending "on earlier experiences with legal decisions") - Luhmann, The Differentiation of Society, supra n.15, at 135.
68. See supra n.46, at 40; Luhmann, Essays on Self-Reference, supra n.18, at 13, 15 and 229f. and
69. "The Unity of the Legal System", in Autopoietic Law, ed. G. Teubner (Berlin: De Gruyter, 1988), 12-35. While Beer agrees with Luhmann that systems are both open and closed, he disagrees with his view that systems are "closed to energy but open to information (or vice versa) ...". Beer instead defines closure as "a self-referential process, and not the isolation of the system within an adiabatic [impassable] shell"
70. - The Heart of the Enterprise, supra n. 1, at 260.
71. Luhmann, "The Unity of the Legal System", supra n.47, at 19.
72. Luhmann, Essays in Self Reference, supra n.18, at 146.
73. Supra n.18, at 146.
74. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trld. W. Rehg (Cambridge, Massachusetts: MIT Press, 1996), 51.
75. Luhmann, Essays on Self-Reference, supra n.18, at 89.
76. In contrast, Jantsch's concern for society was explicit and direct: "[T]he central question is ... can all institutions of society play roles which are in the interest of society as a whole?" - Design for Evolution, supra n.41, at 279.
77. Luhmann, Ecological Communication, supra n.42, at 14.
78. Luhmann, Social Systems, supra n.5, at 11.
79. Supra n.5, at 347. In contrast, Vickers contends that individuals are competent despite their fumbling: "Expansion, betterment, and balance are dimensions familiar to us in individual as in social life and the discipline of living in these three dimensions is no novelty, even though socially we are fumbling novices in living on the scale of today" - Value Systems and Social Process, supra n.4, at 26.
80. Supra n.5, at 345. Whereas Luhmann maintains that events and ideas develop separately, Vickers argues that "... the history of event and the history of ideas proceed in partial autonomy, though in intimate relationship, each conditioning the other yet each growing according to its own logic and its own time-scale": supra n.4, at 139.
81. Luhmann, supra n.5, at 345.
82. Luhmann, Ecological Communications, supra n.42, at 23.
83. See P. Schlag, "The Problem of the Subject", Texas Law Review 69 (1991), 1627-1743,
84. Fish v. Zapp, supra n.19, and
85. M. Foucault, Power/Knowledge (New York: Pantheon, 1980).
86. J.-F. Lyotard, The Postmodern Condition: A Report on Knowledge, trld. G. Bennington and B. Massumi (Minneapolis: University of Minnesota Press, 1979), 15.
87. Jantsch, Design for Evolution, supra n.41, at 57.
88. Jantsch offers a framework for the exploration of these questions in Design for Evolutton, supra n.41.
89. F. Nietzsche, The Use and Abuse of History, trld. A. Collins, 2nd ed. (New York: Liberal Arts Press, 1957).
90. An interpretive community comes into existence by validating the shared beliefs and practices that unite it. See S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989).
91. For examples see G. Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press, 1995), Part 1.
92. See M. Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Praeger, 1966).
93. Beer calls variety "die measure of complexity": "VARIETY is defined as the number of possible states of whatever it is whose complexity we want to measure ... Once we agree on what the system is, we shall have agreement on the variety measure ... [W]e have - we absolutely MUST have - built-in mechanisms in our own nervous system that reduce variety [or] be PARALYSED by the complexity of our environment ..." The principal ways managers cope with the proliferation of variety is to destroy it "by preventing interaction ... Do we not 'divisionalize', do we not 'functionalize', do we not 'manage by exception', do we not 'set objectives'? All of these devices (and many more) should be seen correctly as variety destroyers" - The Heart of the Enterprise, supra n. 1, at 32-9.
94. See, for example, J.L. Casti, Complexification: Explaining a Paradoxical World Through the Science of Surprise (NY: HarperCollins. 1994);
95. N. Hall, Exploring Chaos: A Guide to the New Science of Disorder (New York: Norton, 1991);
96. and D. Mishra et al., On Self-Organization: An Interdisciplinary Search for a Unifying Principle (Berlin: Springer-Verlag, 1994).
97. P. Brest, "The Misconceived Quest for Original Understanding", Boston University Law Review 60 (1980), 204-238. The fact that Brest could just as easily have called the second of his terms "moderate revisionism" and the third term "strong revisionism" suggests a certain deference to originalism and perhaps a desire to downplay the activist implications of his classification scheme.
98. Bork classifies himself, R. Berger, M. McConnell, L. Graglia and J. Grano as originalists; B. Siegan, R. Epstein, and Justice J. M. Harlan as conservative revisionists; and A.M. Bickel, J.H. Ely, L. Tribe and Justice W.J. Brennan, Jr. as liberal revisionists: R. Bork, The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), 223f., chs.9 and 10.
99. The Greek term "cybernetics" means steersmanship.
100. The six modalities are: (1) historical (intentionalism); (2) textual (textualism); (3) structural ("inferring rules from the relationships that the Constitution mandates among the structures it sets up"); (4) doctrinal (rules of precedent); (5) ethical ("rules derived from the moral commitment of the American ethos reflected in the Constitution"); and (6) prudential (seeking to balance the costs and benefits of a particular rule) - P. Bobbitt, Constitutional Interpretation (Oxford: Blackwell, 1991), 13.
101. See J.M. Balkin and S. Levinson, "Constitutional Grammar", Texas Law Review 72 (1994), 1771-1803
102. and the "Symposium on Philip Bobbitt's Constitutional Interpretation", Texas Law Review 72 (1994), 1869-1967.
103. For the differences between these concepts, see S. Best and D. Kellner, Postmodern Theory: Critical Interrogations (New York: The Guilford Press, 1991).
104. See Bork, supra n.71, at 32.
105. O. Fiss, "Objectivity and Interpretation", in Interpreting Law and Literature, ed. S. Levinson and S. Mailloux (Evanston, Ill.: Northwestern University Press, 1988), 229-49.
106. Nietzsche, supra n.64, at 52.
107. See J-P. Sartre, Being and Nothingness, trld. H. Barnes (New York: Citadel Press, 1964)
108. and Critique of Dialectical Reason, trld. A. Sheridan-Smith, ed. J. Rée (London: Verso, 1991).
109. See S. Fish, Self-Consuming Artifacts: The Experience of Seventeenth-Century Literature (Berkeley: University of California Press, 1972)
110. and Alessandra Lippucci, "Surprised by Fish", University of Colorado Law Review 63:1 (1992), 20-26. The core values of democracy (liberty and equality under the law) escape the fate of self-consuming artifacts because, as ideals, they are never fully attained and thus never surpassed.
111. For a discussion of the term, see M. Nicoll, Psychological Commentaries on the Teaching of Gurdjieff and Ouspensky (Boulder, Co: Shambala, 1984, 5 vols.).
112. C. Lévi-Strauss uses this analogy to describe the non-linear ways in which civilization progresses in "Race and History", in Structural Anthropology, trld. M. Layton (Garden City, NY: Doubleday, 1976).
113. "[T]he legal system is open to cognitive information but closed to normative control ... Normative closure requires symmetrical relations between the components of the system where one element supports the other and vice versa. Cognitive openness, on the other hand, requires asymmetrical relations between the system and its environment ..." - Luhmann, Essays on Self-Reference, supra n. 18, at 229-30.
114. See E. Jantsch, "The Unifying Paradigm", in Autopoiesis, Dissipative Structures, and Spontaneous Social Orders, supra n.2, at 82.
115. Luhmann, Ecological Communication, supra n.42, at 39.
116. Voegelin also finds an evolutionary impulse in positive law: "... the positive law of a society carries overtones of aspiration toward, if not realization of, a higher law" - Voegelin, supra n.6, at 7.
117. W. Pankow, "Openness as Self-Transcendence", in Evolution and Consciousness: Human Systems in Transition, ed. E. Jantsch and C.H. Waddington (Reading, Ma: Addison-Wesley, 1976), 22.
118. Luhmann, Social Systems, supra n.5, at 56.
119. According to Jantsch, binary systems work mainly through negative feedback which maintain the system's existing state, whereas ternary systems can introduce positive feedback which can move the system to a different state. See Design for Evolution, supra n.62, at 107.
120. Luhmann, Ecological Communication, supra n.42, at 37.
121. Supra n.42, at 39.
122. Luhmann indicates that the purpose behind this kind of meta-convention is a necessary - and typically deceptive - function of coding: "... the observer chooses a code to conceal those aspects of its self-reference that would reveal the tautology and paradox of its operational bases" - supra n.42, at 37. But in fact the codes that govern a legal system have not been chosen by identifiable observers with this functional motive in mind; rather, people are born into a political society in which legal codes are already a part of their reality and question them only in response to perturbations.
123. Luhmann, The Differentiation of Society, supra n.15, at 172f.
124. Supra n.15, at 126.
125. Supra n.15, at 304.
126. Sierra v. Morton, 405 (1972) U.S. 727, 755f.
127. M.A. Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991), 112f.
128. Luhmann, Ecological Communication, supra n.42, at 67.
129. See Fiss, supra n.77, at 237. For a rebuttal of this view, see S. Fish, "Fish v. Fiss", in Fish, supra n.65, at 130.
130. T. Berry, The Dream of the Earth (San Francisco, Ca: Sierra Club Books, 1988), 121.
131. "A single modality cannot be both comprehensive and determinate. If it is determinate - does not generate contradictory outcomes - then there will be some cases it cannot decide; specifically, it will not be able to legitimate the particular method associated with that modality. If the scheme is comprehensive, it will generate inconsistent outcomes; specifically, it will be indeterminate as to which of the conventional modalities is to be applied": Bobbitt, Constitutional Interpretation, supra n.73, at 31.
132. Supra n.73, at 31f.
133. Luhmann, Essays on Self-Reference, supra n.18.
134. While there is no protection from the novelty of a bad experience (a war, an economic depression, an environmental disaster), human actors can attempt to prevent its repetition: E. Jantsch, The Self-Organizing Universe: Scientific and Human Implications of the Emerging Paradigm of Evolution (Oxford: Pergamon Press, 1980), 226.
135. See also D. Shön, The Reflective Practitioner: How Professionals Think in Action (New York: Basic Books, 1983);
136. H. Petroski, To Engineer is Human: The Role of Failure in Successful Design (New York: St. Martins, 1985);
137. D.V. Edwards, "The Theorist as Reflexive Reflective Practitioner", a paper presented at the 1990 annual meetings of the American Political Science Association, San Francisco, August 1990 (on file with author).
138. Jantsch, Design for Evolution, supra n.41, at 9.
139. "How borrowed ideas - not political and social theories, but abstract ideas borrowed from different disciplines - affect the law is a topic [legal] scholars have overlooked": Elliott, Evolutionary Tradition in Jurisprudence, supra n.14, at 38.
140. Bobbitt calls them "coordinate disciplines": Constitutional Interpretation, supra n.73, at 175.
141. Supra n.73, at 173f. Bobbitt's anxiety on this matter is, according to D.R. Kelley, well-justified. See Kelley's The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, Ma: Harvard University Press, 1990). Chapter 14, "From Civil Science to the Human Sciences", contains the following sections: (1) Law Transcended by Philosophy; (2) Law Subverted by Economics; (3) Law Surpassed by Anthropology; (4) Law Overpowered by Sociology.
142. See, for example, M.A. Chesler, J. Sanders and D.S. Kalmuss, Social Science in Court: Mobilizing Experts in the School Desegregation Cases (Madison, Wisc.: University of Wisconsin Press, 1988).
143. Luhmann, Ecological Communication, supra n.42, at 42. He also points out that these function systems work together in most situations: "[F]or example, scientific research has made the construction of nuclear power plants economically possible through a political decision about legal liability limitations. The world is just not constituted so that events fit within the framework of one function alone" - supra n.42, at 49.
144. Supra n.42, at 42f.: emphasis added.
145. Supra n.42, at 43.
146. Supra n.42, at 229.
147. Supra n.113.
148. Supra n.42, at 69.
149. See, for example, J. Finnis, Natural Law, Natural Rights (New York: Oxford University Press, 1980);
150. the work of the Parliament of the World's Religions, A Sourcebook for Earth's Community of Religions, revised ed., ed. J.D. Beversluis (New York: Global Education Associates, 1995); and the recent co-operation of some religious groups and environmentalists.
151. Luhmann, The Differentiation of Society, supra n.15, at 137.
152. As E. Morin points out, "[W]e know today that each cell of an organism contains the genetic information of the entire organism. But the greatest part of that genetic information is repressed, so that only an infinitesimal part corresponding to the specialized activity of the cell can express itself": La Nature de la Nature, La Méthode, vol. 1 (Paris: Éditions du Seuil, 1977), 113, author's translation.
153. The differentiation (evolution) of a system requires the imposition of constraints as well as the development of potentialities at the same time. As Morin explains, "systems differentiate themselves, not only by their physical parts or their type of organization, but also by the constraints and potentialities they produce. At the heart of the same type of systems there may be a fundamental opposition between those systems in which the production of micro and macro potentialities predominate, and those in which repression and servitude predominate": supra n.118, at 113f.
154. Supra n.118, at 118.
155. Vickers, Value Systems and Social Process, supra n.4, at 32.
156. "Since ... self-organization dynamics has been equated with mind, we may characterize communication generally as interaction between mind and mind -not only of a neural, but also of a metabolic kind." Jantsch adds the term "metabolic" to "neural" because he views all living systems, from the cell to the mind, as having varying degrees of consciousness, one of which is "in-tuition" (learning from within) - Jantsch, The Self-Organizing Universe, supra n.104, at 203.
157. "Communication between autopoietic systems includes the possibility of the self-organization of knowledge by mutual stimulation of the exploration and extension of cognitive domains": Jantsch, supra n.104, at 205f.
158. Jantsch, supra n.104, at 228.
159. Jantsch, supra n.123.
160. Jantsch, supra n.104.
161. Experiments by Maturana and Varela have led them to conclude that "perception should not be viewed as a grasping of an external body, but rather as the specification of one" that is triggered - not determined by -the external world: Maturana and Varela, Autopoiesis and Cognition, supra n.2, at xv.
162. According to the neurobiologist W.J. Freeman, the mind resembles a series of "photographic plates" on which every perception has been recorded. The accumulation of these "photographic plates" is unique to each individual. Thus when an individual perceives an object in his or her surroundings, the perception of the object will be shaped by the information that has been previously inscribed on his or her "photographic plates". At the same time, that object will change the configuration of information on each and every photographic plate in that individual's mind. For a more technical description of Freeman's interactive research on the brain, see his bibliographical references in W.J. Freeman, Societies of Brains: A Study in the Neuroscience of Love and Hate (Hillsdale, N.J.: Lawrence Erlbaum, 1995).
163. In McCulloch v. Maryland, 4 Wheaton 316 (1819), Marshall notes that the constitutional language he is interpreting has "such a character that no word conveys to the mind, in all situations, one single definite idea".
164. See J.L. Borges, "The Library of Babel", in Labyrinths (New York: New Directions, 1964), 58;
165. U. Eco, The Open Work (OperaAperta, 1976) (Cambridge, MA: Harvard University Press, 1989);
166. and J. Green, Chasing the Sun: Dictionary Makers and the Dictionaries They Made (New York: Henry Holt, 1996).
167. As Barthes puts it, the writer becomes "someone to whom that last word is denied; to write is to offer others, from the start, that last word": R. Barthes, Critical Essays, trld. R.H. (Evanston, Il: Northwestern University Press, 1972), xi.
168. "Mind and matter are complementary aspects in the same self-organization dynamics, mind as dissipative and matter as conservative principle": Jantsch, supra n.104, at 211.
169. When confirmation is maximized at the expense of novelty and the system reaches equilibrium (total entropy), the result is biological or physical death - Jantsch, supra n.104, at 207.
170. D.V. Edwards develops this argument in "Ethics, Efficiency, and Reflective Practice", a paper presented at the Second International Conference on Public Service Ethics, Siena, Italy, 9-11 June, 1992 (on file with author).
171. According to P. Schlag, judges have some distance to go before they reach this understanding. See his "Clerks in the Maze", Michigan Law Review 91 (1993), 2053-2074.
172. See the work of Freeman, supra n.128; Jantsch, supra n.104; H. Bergson, La Matière et le mémoire (Paris, 1896, trld. Matter and Memory, London: Allen & Unwin, 1962);
173. and W. Reich, Selected Writings (New York: Farrer, Straus and Giroux, 1960).
174. An individual who understands the theory of autopoiesis or who grasps its premises intuitively might regard the execution of a person years after sentencing as the execution of a person whose identity, though unified and functioning, is no longer the same as that which existed at the time of that person's conviction. From this vantage point, the state is not exacting retribution but committing murder.
175. Jantsch, supra n.104, at 7f.: emphasis added.
176. As Bateson explains, in a circuit "events at any position in the circuit may be expected to have effect at all positions on the circuit at later times": "Steps to an Ecology of Mind", in Evolution Extended, supra n.21, at 92.
177. See P.A. Corning, "The Synergism Hypothesis: A Theory of Progressive Evolution" (1983), in EvolutionExtended, supra n.21, at 114.