The Jurist as a Social Analyst

W hy is it th at the ju ris t has som ething special to give as a social analyst and so­

cial com m entator? T he problem m ay be illustrated by some experiences of a cross-scientific study group w ithin the Faculty of Social Sciences at A arhus U n i­

versity.1)

T he other social sciences - Economics, Politics, and Psychology - have so far tended to consider their functions and models as a priori in the sense th at the real society m ust be organized in accordance w ith a certain degree of efficiency which results from their (i.e. the above m entioned sciences) criteria of ratio n al­

ity. However, it has appeared from this cooperation th at the functions of the other sciences depend on the existence of a legal organization and governm ent.

T he econom ists’ m arket economic models have naturally no validity w ithout a pre-existing rule about agreem ents being binding. In the sam e way our statistic and m athem atic basis has turned out to be influenced by the p articu lar and causal arrangem ent of the n atu ral sciences to a far too high degree, whereas the social relations cannot be dealt w ith w ithout considering the pre-existing social structure and social institutions. T hus, the elem ents in society being studied cannot be considered as isolated islands, for m an is, as expressed by the ancient natu ral law theorists from Aristotle to G rotius and Pufendorf, a rational being as well as a social being (zoon politikon). As we shall see, this is rath e r im p o rtan t to the conclusions th at we m ay draw from the various theories and models which have arosen w ithin social theory.

W hat characterizes the ju ris t’s consideration of society com pared to th at of other scientists?: (1) Legal science stresses th at things should be governed by norm s and rules, whereas the em piric social sciences and the n atu ral sciences fa­

vour the functional considerations of efficiency. (2) C om pared to the tra d i­

tionally individualizing and concretizing consideration of the hum anist, the ju rist has been educated to consider the individual case as an elem ent of a funda­

m ental general relation. W hile the hum anist is inclined to consider the individual

case as unique and therefore take a corresponding position on concrete problem s, the ju ris t has learned to understand th at a solution of a problem does not aim only at finding the concrete ju st result, but also has to take into consideration th at the concrete decision is to app ear as a guide to future decisions in sim ilar cases.

T he ju ris t’s ability to consider each concrete case from a theoretical point of view has always been characteristic of the juridical function. Evidently, no organ­

ized cooperation am ong people can exist w ithout rules, m aking the behaviour of other people predictable. T ru st in one another has always been a fundam ental thing in m orality. T he sam e is true of the dem and for truth. O n the other hand it is self-evident th at predictability implies an already known system of norm s and rules, m aking it possible to m ake prognoses or predictions of the behaviour of other hum an beings. E quality, th at is here to say the regard for equal cases being treated equally, has from time im m em orial been a crucial substance of the con­

ception of justice of any society. However, the fact th at equal cases are to be treated equally is only another way of saying th at hum an behaviour should be governed by rules. A rbitrariness has always been held to be unjust; the psycho­

logist Franz From once assum ed th at crime is held to be negative because, and exactly because, it is a socially unpredictable behaviour. Therefore the crim inal is considered to be guilty and is punished.

As the public debate has been reserved especially for hum anists and others with a sim ilar cultural background, and as the pre-existing tendency to concrete thinking is increased by a tendency encouraged by the mass m edia - especially in our time - to individualization, dram atization and fragm entation of the events of the day, it is quite n atu ral th at the public debate, seen through the eyes ofjurists, seems odd, chaotic and inconsistent. After the O rw ell-year »1984« there m ay be a special ground for draw ing attention to the concept of doublethink, which O r­

well found characteristic of m odern m an: the capability of thinking and believ­

ing one thing on the one hand and thinking and believing the opposite thing on the other w ithout realizing th at the ideas are self-contradictory. In my opinion this capability of doublethink is extremely well-developed in m odern dem oc­

racies. T his capability is often confused w ith hypocrisy, which on the other hand implies consciousness of the discrepancy between the opposite opinions. But n a ­ turally it m ay be w hat ju rists usually call dolus eventualis or intentional good faith. Pragm atism is often said to be the better p a rt of valour. It is true th at doc- trinarianism leads to pedantry or m adness, b u t pragm atism will often turn into unprincipled realism.

T he reason why I will not - after all - deal particularly w ith O rw ell’s book is th at his way of presenting the problem s, which for natu ral reasons lay near at

hand in 1948, is no longer realistic. A t th at tim e the Iron C u rtain had descended through Europe, and Stalin had initiated the Berlin Crisis, and it was therefore quite n atu ral to see the th reat to W estern dem ocracies as the spread of Soviet C om m unism to the W est. T he experiences of the p ast 35 years have clearly dem ­ onstrated th at this th reat is not the m ost serious one to W estern dem ocracies.

W hether the peace m ovem ents like it or not, N A T O , the atom bom bs and the missiles have effectively prevented such a spread of the to talitarian state to W estern Europe, no m atter w hat wishes the leaders of K rem lin m ay have had in th at respect.

N either does the th reat to dem ocracy - as m any have thought - come first and foremost from m odern technology, including especially the technology concern­

ing inform ation and ED P. T he risk th at the technological developm ent m ight lead to a centrally governed state is counteracted by the contrary possibilities of this technology, i.e. decentralization of not only the systems of production but also the systems of decision-m aking, which has in fact turned out to be the case.

In my opinion the th reat to W estern dem ocracies comes from the inside as a re­

sult of all the good things th at the economic and cultural developm ent of the past 150 years has built in society. It is a well-known fact th at a great p a rt of w hat has been m eant to be philantropic has in its w ider form turned out to be m isantropic and bad. J u s t rem em ber how the Inquisition, which for good C hristian reasons was m eant to prevent crim inals from dying w ithout having confessed their crimes, later on becam e an instrum ent of terror and torture tow ards innocent people. I f we assum e th at dem ocracy depends on a certain am ount of prosperity and a certain stan d ard of general education, the object of the dem ocratic ideology m ust be and has also been to further the citizens5 wel­

fare and education: I shall try to dem onstrate and prove th at these actually good forces involve some bad forces, i.e. forces being incom patible w ith the idea and function of dem ocracy.

T hus, while O rwell sees the risk of dem ocracy in the trend of developm ent tow ards a to talitarian state, experience shows, in my opinion, th at the trend has instead been tow ards the uncontrollable society, because nobody has considered it his task to look after the interests of society as a whole. Instead interest groups and populistic movem ents have together with the mass m edia m ade it difficult to form ulate the »rational common will«, of which first A ristotle and since several others have spoken.2)

O n the other hand socialism m ay not be the greatest th reat to dem ocracy.

M any have rightly said th at Soviet socialism ha.> nothing to do w ith socialism, as real socialism has a hum ane face. T he problem is only th a t such a socialism has never been brought into being on earth. J u s t as W innie the Pooh found th a t the

bees, hum m ing around the nose of the cloud, were the w rong kind of bees and therefore m ade the wrong kind of honey, the U topian socialists of the W est have always had to realize th at the existing socialist regimes do not represent the real kind of socialism. Below I shall return to the problem w hether socialism and dem ocracy are com patible, or w hether dem ocracy depends on an economic organization based on m arket economy and private p ro perty.3)