14 October 2012

Kelsen and Kant in the Urwald

The crisp 14 page 'Primitive Law' by Christoph Kletzer "discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder".
All law is primitive law. 
What distinguishes modern law from primitive law is not a difference in the technique applied. Modern law, too, is a technique of ordering society by schematising an interpretation of violence as legally irrelevant. 
Modern law differs from primitive law not in its functioning, but first and foremost in the degree of centralisation. 
As we have seen, primitive law establishes a de-centralised system of self-help. The rules are created by no-one and applied by everyone. We heard that Wernhar is permitted to kill Adalbert, since Adalbert has killed Wilco. But who establishes the fact that Adalbert really has killed Wilco? It is Wernhar himself who is judge in this case. He is judge and executive organ in one person. He legally determines that Adalbert has lost his membership in the community, since Adalbert has killed Wilco; as a consequence he can kill Adalbert without this act having any legal consequence. However, Arnulf may reach a different conclusion. He, too, acts as a judge and executive force in one person and he might differ about the membership-status of Wilco. He might be of the opinion, or, for that matter, even know, that Wilco had killed Ansgar; he might thus declare that Wilco has thereby lost his membership, thus permitting Adalbert’s killing of Wilco, thus leading to Wernhar’s loss of membership, thus making a killing of Wernhar legally irrelevant. 
Primitive law does not provide for a centralised organ to determine which interpretation is conclusive. The A-clan and the W-clan may differ about who is the legal organ and who is the band of criminals. Without centralisation we have a plurality of legal truths. 
Modern law differs from primitive law in that it tries to do away with this defect by centralising the application (and also the creation) of the law. 
What is important, however, is that this centralisation of the application of primitive law can itself only be effected by primitive means. The transition from primitive law to modern law cannot, by definition, avail itself of the means of modern law. Centralisation thus has to be created by primitive means. There has to be a decentralised creation of centralisation. 
What, then, is centralisation? If we want to centralise the application of primitive law, all we have to do is to add (actually replace) a condition in our rule. The condition which the original primitive rule sets down for the loss of membership and thus for the legal irrelevance of killing someone is that this someone has actually killed a member. A centralised version of this rule would add the condition that a certain organ determines that the person in question has killed a member. Actually, the centralised rule would replace the requirement ‘if someone takes the life of a member’ with ‘if a competent organ declares that someone has taken the life of a member’. This is all that is needed for centralisation. 
Still, what we have before us are two conditionals, two statements which make the occurrence of two different facts the conditions of allowing everyone to interpret the killing of someone as legally irrelevant. Now, even in the centralised version of the law, the application of the conditional (i.e. the establishment of the fact that conditions the interpretation of killing someone as legally irrelevant), is still entrusted to everyone. It cannot be otherwise. Thus even the centralised version of the rule is applied in a decentralised manner. Whereas in the original, decentralised version everyone was called to establish for himself or herself that someone has actually killed a member, the centralised version entrusts to everyone to decide whether the competent organ has actually declared that someone has taken the life of a member. Now, it is regularly much easier to reach agreement on the fact that someone has declared something rather than on the fact that someone has killed someone. The controversy of the decentralised determination ‘What has really happened back then?’ is reduced to the less onerous, yet still decentralised determination of ‘What has the judge said and is he really a judge?’ 
This centralisation by decentralised means indicates that an understanding of the law which focuses on commands is incomplete. The command enters the legal stage as the content of the decree of the judge (or the legislator). However, as we have seen, the command of the judge is but a condition of the applicability of a rule which has to be applied by everyone, i.e. has to be applied in a decentralised manner. The command thus always rests on a more fundamental rule, a rule, however, which cannot be understood as a command. 
Over the centuries modern law has heaped ever new levels of centralisation onto the primitive law, it has folded the primitive law onto itself again and again. It has centralised the infliction of sanctions, the creations of rules and parts of rules, the establishment of legal organs, and so on. The tools by which this has been done, however, have not changed. Thus, since the centralisation can only be achieved by decentralised means, there remains an unresolvable primitivity in even the most advanced forms of law.
Kletzer concludes -
The law orders society by schematising interpretation. It orders society not by demanding or prohibiting action, but by allowing a certain interpretation of states of affairs, ultimately, the interpretation of violence as legally irrelevant. By allowing to interpret certain forms of violence as legally irrelevant, the law monopolises force and thus creates a coercive order that pacifies the land. The function of the law is to create peace and it achieves this peace by interpretation. 
We are used to thinking about the law as being a body of norms enhanced by some kind of coercive apparatus. We are used to thinking that the law needs the state to enforce it. This view, however, obfuscates the insight that law and state are co-originial. The law does not need a coercive apparatus to enforce it, rather the law consists in declaring certain forms of coercion lawful and thus turning these forces into a coercive apparatus.
'Copyright and Personhood Revisited' by Christopher Yoo comments that
 Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom, which typically invokes the work of Immanuel Kant and Georg Wilhelm Friedrich Hegel as its philosophical foundation, views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts. 
This Essay argues that the conventional wisdom is fundamentally flawed. It is inconsistent both with Kant’s and Hegel’s theories about the relationship between property and personality and with their specific writings about the unauthorized copying of books. It also adopts too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the products of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination. 
The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.