A. INTRODUCTION:

In the first section of the Chapter, I will provide a brief overview of the ways law and justice were constituted in Western legal systems. In the second section, I will lay out the basic architecture of a Constitutive Theory of Justice and in the last section, will offer substantive ideas for a Constitutive Theory of Justice based, loosely, on praxis theory. This will give the reader some idea of what a postmodern theory of justice might entail for law, courts, prisons and policing in particular as well as for social policy in general.

All this is in aid of a movement, of which I am part, to replace a punitive and failing criminal justice program with one oriented to democratic forms of social justice. Other papers in this series are provided for the reader in the bibliography. When one puts the deeply organized world-view of language, self and other into a larger socio-cultural framework, the task of a postmodern and affirmative criminology/theorist becomes to help re- constitute entrenched ideologies, knowledges, and truths along in order to dissolve and repair personal alienation, repression, and marginalization. Mindful of these dialectics of struggle and linguistic control, several postmodern criminological theorists have called for the development and articulation of replacement discourses; that is, codes of speech more compatible with the stories and points of view of various disenfranchised collectives (e.g., Henry and Milovanovic, 1991b, 1996; Arrigo, 1995a; Smart, 1995; Howe, 1994).

B. Pre-Modern Groundings of Law and Justice

: For most of human history, each tribe had its own set of norms and its own system for assuring conformity to that code. Central to each system of law and justice was the pre-modern idea that, a) there was a god(s), b) that god had a plan of social life, c) those who conformed to that plan were good while, d) those who lived by some other plan were evil. These ideas grounded the pre-modern idea of Natural law; that, all persons were endowed by their Creator with Natural rights and required by their Creator to honor those Natural rights in others.

The construction of what is natural was, of course, also constituted by human interests. Race, class, gender and ethnic concepts grounded the ideas of what was right and proper. It was seen to be 'natural' in patriarchal societies, that women defer to men. Property rights, as natural to god and society, arose with settled agrarian social life worlds. The ideas of race and racial superiority took additional 'naturality' with the advent of colonial imperialism and the subjugation of one people by another.

The advent of settled agriculture was central to pre-modern legal codes. Settled agriculture, especially irrigation, provided the surplus and, arguably, the necessity of state governance of land, water and distribution of grain. Of the five great hydraulic societies in the world which could have informed modern legal codes, the first recorded legal system was that of Sumer in the Tigris-Euphrates watershed. In that society, the gods demanded submission in return for which, they guaranteed prosperity and protection (Roberts, p. 42).

In Sumer, while all land belonged to the gods, a warrior- leader turned priestly king was steward and thus the main beneficiary of this land use system. Along with the Priest/King arose a class of priestly specialists who administered religious codes and also required part of the harvest from the land. By 2350 BCE, in the reign of Sargon 1, a legal code had emerged which regulated land use, marriage, divorce, the status of children, inheritance and other relations between those who came within the scope of this first empire (Roberts: 44-45). Out of the struggle between city-states, an empire was forged; one legal code enforced by military occupation pre‰mpted a dozen religious codes.

While it is not possible to quantify and trace transformations of key parameters in ancient times, still it is clear that the key to the growth of city-states is to be found in the irrigation systems which produced enough surplus to feed a whole range of specialists as well as a royalty claiming control of land in the region between the Tigris and the Euphrates rivers. Food supply is essential to that division of labor in which specialization can provide both variety and quality of goods and services. With the melding of peoples with diverse normative codes in large urban areas, a more general and more visible legal code served well.

Major religious groups comprising almost half the population of the world today base their legal code on Deuteronomy, one of the five books of the old testament shared by Islam, Christianity and Judaism. A great many features of Deuteronomy ground contemporary legal practices, including a demand for respect for the Law as a condition of favor by the God of the Old testament. Among current legal practices in Western societies influenced by Christianity, a careful reader can find requirements for two or more witnesses to a proscribed deed, trial by elders [rather than the family of the victim], usury and bankruptcy law, taxation and tax policy, restrictions on governing authority, refuge and sanctuary, enquiry to intent and degree of guilt, perjury, victim's rights as well as property and marriage law. Deuteronomy, as well, called for tithing and collective care of the poor and other social justice duties.

Modern Science and Modernist Systems of Justice.

The American justice system, while founded upon natural law in its Declaration of Independence, moved the basis of law-making from the gods and/or nature to human beings. Human agency in the making of law was embedded in the Constitution of the United States especially those provisions setting out the rules of law-making, law enforcement and legal interpretations. The Supreme Court was, of course, final arbiter in the constitutionality of human law. It was to be guided solely by the technical legitimacy of the Congress in making the law.

The advent of written constitutions, written legal codes and written indictments all presumed logical coherence; that human beings could reason logically and correctly interpret the meaning of both the law and the act brought to scrutiny under that law. The confidence in both human agency and human rationality was itself informed by the Enlightenment and the idea that both nature and society were governed by natural laws, lower case, which could be discovered by empirical research. Newton had set forth the natural laws of motion; Comte and other social scientists thought one could discover the natural laws of social organization, social change and social interaction. Discovery of those natural laws shifted final authority from the priestly caste to the research scientist. Modern criminology presumes that research into the dynamics of crime and punishment can inform legal codes and legal sanctions.

The tension between pre-modern and modernist systems of Justice continue to be fought out in the selection of judges and of candidates to the Congress of the United States. When Clarence Thomas appeared before the Senate Sub-Committee in his nomination to the Supreme Court of the United States, most of the attention was directed to the allegations of Anita Hill about his alleged sexist behavior. But far more interesting to a theory of justice were his views on Natural law. Thomas, in his piety, took the view that Natural Law was precedent to both human law and that part of Constitutional Law which differed from the Christian views on Natural law. The various PACs of the Religious Right target all Congress-persons and Senators who support legislation which differs from traditional Christian views on race, class, gender and property.

Postmodern Understandings of Law.

Those of us who work out of a postmodern critique of law and justice reject the basic assumptions of both modernist and pre-modern groundings of legal principles and associated theories of justice. There are no Natural laws given by god(s) or by divine fiat with which to solve the human problem of order and distribution of resources. There are, as well, no natural imperatives such as asserted by those who offer grand theory as a way to justify class, status or power arrangements. All are, equally, human products. All are, equally, fraught with politics and filled with special interests. All equally give a gloss of legitimacy to the some of the best and some of the worst arrangements of social life found in the ever changing history of peoples, countries, nations and states.

This does not mean, to be sure, that the concept of justice is to be discarded; still less that, absent a founding God or objective laws of nature, that one thereby can justify anything; that one must embrace nihilism and solipisic self interests.

Rather, an affirmative postmodern theory of justice argues that human beings can and should build systems of justice; systems of law; systems of social control. It is just that the architecture of such systems should be explicitly political; that they should be open to collective critique, collective change and accommodating of diverse social forms.

Diversity together with collectivity seems impossible from a modernist point of view emphasizing as it does uniformity, predictability, generality and rationality. Collectivity and diversity seem evil from a pre-modernist perspective permitting as they do alternative ways to do marriage, family, economics, politics, religion, education and other distinctly social work. It is the particular genius of complexity theory that diversity and collectivity can occupy the same regions of time and space.

I would like to suggest how this is possible in the sections below. We will start with a look at the architecture of justice from the point of view of chaos theory, the short version of which is that an algorithm which permits pattern in the same moment that it contains surprise; that permits individuality in the same moment that it guarantees stability--of a sort; that honors human agency in the same moment it provides for predictability and dependability, such an algorithm is possible to adopt as a grounding for a postmodern architecture of justice. Let us begin.

C. A Constitutive Theory of Justice.

Stuart Henry and Dragan Milovanovi‡ (1991) have set out constitutive theory in general. They explain that a postmodern approach to both knowledge and society emphasizes the provisional and situated emergence of truth. In the case of a Constitutive theory of Justice, one would view each law, arrest, each indictment, each trial and each judgement as well as the actual experience of the accused in the social context in which each emerged.

While the sociology of law and justice is most complex still the general point can be made that law and the principles of justice upon which law is grounded follow the political and economic arrangements of the social order in which they are found. In stratified societies, law and justice tend to reproduce existing patterns of privilege. In religious societies, i.e., ecclesia, law and justice are given divine sanction...mere mortals cannot argue with either the law itself nor the interpretations of divine law made by a religious cadre arrogating that sanctity to their own interpretations.

A postmodern Constitutive theory of Justice holds that given peoples can, within rough limits, create just about any system of justice they care to create. The limiting conditions are set by two interacting and quite different sets of concerns. The first set of concerns are to be found in the non-linear dynamics of complex systems. I will lay out these in just a moment. The second limiting set of principles are found in the nature of social relations. In a word, some attention to group needs must be embedded in justice systems else, as Hobbs put it, a war of each against all subverts and degrades the human project.

D. Chaos Theory and Justice Systems.

A Constitutive Theory of Justice must, in a complex society, take into consideration the essential features of non-linear dynamics. In order to make this essay manageable within the limits set, I will confine myself to a few major features of nonlinear dynamics:

1) Nonlinearity

Small changes in key social variables can give rise to very great changes in legal codes and in control practices in a given political economy.

2) Bifurcations

Given critical values in key parameters within a socio-economic formation, two or more differing legal systems can arise.

3) Chaos and Social Control

In times of deep chaos, traditional methods of social control fail.

4) Chaos and Creativity

In deep chaos, uncertainty increases and human agency becomes problematic. However, entirely new systems of norm and order-maintenance emerge. Some have survival values and may become the base of new legal codes and new ways of seeking justice.

We will discuss each point to help give flesh and bone to the major ideas emerging in complexity theory. Again, this is in aid of building a postmodern philosophy of law which recognizes the social sources of law on the one side and the human role in creating and interpreting law on the other. In particular, we will end this essay by addressing the most interesting question at hand in a time of uncertainty: upon what foundation does one ground a thoroughly postmodern theory of Law. This new science of complexity offers something of a guide as to form if not content.

1. Nonlinear Justice Systems

. Modernist justice systems make much of routine, rationality and uniformity in treatment before the law. Postmodern justice systems, grounded upon chaos/complexity theory make room for creativity and variety in both the making and the enforcement of law. On the surface, non-linear justice systems appear to be an open invitation for bigotry, personal animus and for hostile discrimination in policing and in courtrooms. This would be the case were it not for the over-riding principles of praxis and empowerment mentioned in the last section which continue to inform legal principles in affirmative postmodern theories of justice.

The case for non-linearity, irrationality and irregularity is powerful. In the first instance, it is impossible to embody the regularities and rationalities required for a thoroughly modernist system of justice. No two criminal cases is precisely, entirely, exactly like another one. No two police officers will respond in precisely the same way to a given action. No two judges will make precisely the same rulings to the same questions. No two juries will make precisely the same judgment to the same act of murder, rape or theft. No two prisons will treat a given prisoner exactly as ordered by the court. Variation is part of the human process; a modernist justice system of the sort required by rationality is possible.

Nor are they desirable. There is much to be said for variation and creativity in policing, judging and sanctioning those who offend legal codes. It is not that special conditions alter judgments although to be sure, they do. It is not that sameness and similarity is impossible although they are impossible. It is rather that mercy, forgiveness, clemency and acceptance are larger, more powerful recourse to transcending justice. Some criminals will not, can not respond to mercy and forgiveness. All criminals will, at some time, treat pro-social irrationality as weakness and exploitative opportunity. Still for most people most of the time, do fit such nonlinear response into a discourse of forgiveness and redemption. Parents, friends, police, judges, wardens, teachers and others charged will social control make such non-linear responses with good effect to the human project. A thoroughly postmodern system of justice should accommodate itself to the capacities of complex human beings to transcend causality and to move to entirely new patterns of life and living.

Perhaps the most interesting feature of complex non-linear systems is that very diverse systems can occupy the same time/space continua without conflict. Of considerable interest here is that very different justice systems can co-exist and work their different social magics to enable the human project. In the USA, one can find some seven or eight parallel and very different systems of justice; religious, political, economic, medical and psychological. While it may seem redundant and inefficient to have parallel justice systems and, may in fact, be so, still the possibility of co-existing justice systems best meets the human need for redemption, for reparation, for restoration and for rehabilitation.

2. Bifurcations.

If small changes in key parameters can trigger large changes in crime rates; murder, theft, arson, fraud, pollution and other most serious forms of behavior hostile to person and to community, large changes in social control tactics seem sensible. Yet, it well may be the case that a small change in social policy can forestall the need for large changes in such social control resources. The work of Hbler at University of Illinois has shown, in principle, that non-linear regimes can be controlled. It requires a light touch at the right time but, given wisdom and judgment, such intervention in the life of a family, in the routines of a school, in the habits of police officers and in the policies of a business may prevent large changes in juvenile delinquency, in ethnic violence, in vandalism or in consumer fraud.

Then too, there are some bifurcations which affirmative justice systems would defeat. Bifurcations in variables which trigger gender violence, racist crimes and crimes against workers and/or customers by corporations are case in point. If uncertainty in employment or income are key to racist crime and gender violence, then in order to prevent these from exploding to fill the social space available to them, an affirmative postmodern justice system would, in the first instance, see to policy which stabilizes these at minimal value.

3. Chaos and Social Control.

The USA is, arguably, the most heavily monitored, analysed, reported and described society in human history. Much of that knowledge is used within the dozen or so control systems which permeate every domain of social life. Modernist criminology, oriented to formal theory and to scientific control theory, supports rank after rank of social control. Modernist states, oriented to political legitimacy, supports a wide variety of control institutions from the Criminal Justice System itself--now the largest in the world, to the various state regulatory agencies--far more than most societies, to the increasing use of psychology, medicine and psychiatry to find and control those who murder, rape, steal and burn in the most affluent society in human history.

Chaos theory teaches us that efforts to predict and to control fade and fail as ever more chaotic regimes appear. The vast effort to control the effects of racism, gender violence, class inequality and corporate hegemony over the production and distribution of essential social goods are, if social processes are indeed non- linear, these efforts are doomed to failure.

Affirmative postmodern jurisprudence and criminology constructs a research design and develops the research tools with which to ascertain the points at which key variables bifurcate. Then, set inside a most interesting approach to a constitutive theory of justice set below, enjoins a political process by which a society selects, as between alternative dynamics regimes, those which most fully answers to the human project.

I will offer an outline of a non-linear but affirmative approach to a distinctly postmodern practice of justice below but just now, we have one more most interesting feature of non-linear regimes most interesting to social change and renewal.

4. Deep Chaos and Human Agency.

In other work, (Young, 1993), I have tried to think through the effects of differing dynamical regimes on human agency. In this work, I would like to revisit the topic and think about how chaotic regimes affect the human quest for change and renewal on the one side and, at the same time, the human need for order, predictivity, and planning. In short, what ever system of justice we humans create through our norms, laws, sanctions and policies, we need to center human agency in that system.

The implications for a Constitutive Theory of Justice are most interesting. It may well be the case that any system dynamics having fewer than four attractors may be too confining to the human interest in change and renewal. That interest keys off the fact that all human societies dwell in an inconstant world. The global environment is a complex adaptive system which affects the welfare of human society. Food supply, climate, weather patterns including storms, floods and earthquakes all affect the human project. The global economic system is a complex adaptive process which greatly affects employment, health, pollution and conflict not excluding warfare. Political Blocs such as the European Union, the North American Free Trade Agreement and the Pacific Rim countries are, all, complex adaptive systems whose ever-changing dynamics affect the welfare of peoples around the earth.

Both modern and pre-modern justice systems attempt to reduce variety and to confine attractor basins to two or four; two genders, four races, two degrees of kinship, four strata of status honor. It well may be the case that the degree of uncertainty embedded in the number of attractor basins available in legal codes defeat the human need for change and renewal in that they forbid options which, in times of uncertainty, answer better to the human project than behaviors sanctioned by legal codes.

At the same time, social policies which drive a society into deep chaos may well increase uncertainty so much that collective responses to common problems are displaced by privatized, short term responses: theft, robbery, genocide, fraud and other behaviors hostile to human agency. The case of the Ik people in north-east Uganda serves as point. They were forbidden to hunt game by the government which used their ancient hunting grounds as game preserve to attract tourists and foreign currency. The Ik society collapsed; children abandoned or prostituted, elderly people cast out, marriage forms collapsed

I tend to think that people can handle two or three uncertainties in work, health, personal relations, school and religion but four or more are too many to juggle; recourse to new, perhaps anti-social behavior to bring a bit of certainty back into their lives.

This may mean that, while eight or sixteen attractor basins may be appropriate for a whole society in a complex environment, fewer attractors may be appropriate for particular individuals or firms. It may be the case that complexity requires differing sets of attractors for differing sectors of a given society; institutions as well as such population groups as age cohorts or occupational specialties. A postmodern theory of Constitutive Justice may require far more complexity than the simple binary justice systems found in modern and pre-modern societies.

Finally, I want to point out that deep chaos itself is a dynamical region in which, sometimes, the human interest in change and renewal is served. Deep chaos does not mean the end of social life; rather it may well mean the beginning of new and most accommodating forms of justice; forms which augment and enhance human agency and human dignity. The point of an affirmative postmodern theory of justice is, non the less, an effort to avoid the costs of deep chaos while keeping the benefits of variety, uncertainty, change and renewal.

A Postmodern Praxis Society.

The concept of praxis has an ancient and honorable history. Markovi‡ (1974), sets five most interesting and most useful aspects of praxis which I want to use as a grounding for a the postmodern theory of justice offered here. By praxis, I mean a complex activity in which individuals, in collectivities, create culture, society, and create themselves as "species beings", i.e., as human beings. The moments of praxis as Markovi‡ set them include self-determination (in contrast to coercion), intentionality (in contrast to blind reaction), sociality (in contrast to privatized nihilism), creativity (in contrast to sameness) and rationality (in contrast to blind chance).

These five 'moments' of praxis constitute a very complex algorithm which sets limits at the same time it permits variety. This particular algorithm, having five interacting variables, offers a very, very complex unfolding of human social forms which, at once serves the human interest in pattern and reliability while at the same time permits for variety in language, in love and in work. The unfolding process, complex and changing as it is, moves knowledge making and knowledge using off the dead centers of modern and pre-modern sensibility over to a constantly changing quest for certainty and close control to tolerance and respect for those who, in their wisdom, take differing pathways through the future of history.

Non-linear Feedback.