Orientation to CONTEXTUAL/Configurative Thinking

C H A P T E R 3 ORIENTATION TO CONTEXTUAL/CONFIGURATIVE THINKING

INTRODUCTION

In the first part of this chapter, I provide an outline orientation to contextual/configurative jurisprudence. In the second part of this chapter, we use the configurative approach to design an inquiring system for legal research. Since configurative jurisprudence is a theory for inquiry about law, it is appropriate to introduce its technical concepts and terms in the context of an inquiring system. Additionally, this second section of the chapter stresses the salience of using the tools of contextual mapping as critical to the formulation and guidance of inquiring objectives of the researcher.

OUTLINE OF THE CONTEXTUAL/CONFIGURATIVE PHILOSOPHY OF LAW

As I have earlier suggested, Myres S. McDougal and Harold D. Lasswell, scholars with very different disciplinary and intellectual backgrounds, divergent but complementary work habits and characteristic personality profiles, collaborated for almost fifty years in the construction of a jurisprudence for a free society. Its emphasis is on law, science, and the policies of human dignity. Over the years, it has been subject to various designations, such as jurisprudence of the policy sciences, policy-oriented jurisprudence, contemporary legal realism, and the New Haven school or approach. As I have gone in detail to explain, I designate their approach configurative jurisprudence, because the framework or configuration it recommends is so distinctive when compared to conventional jurisprudence that friendly critics have suggested that it constitutes an incipient “new paradigm.”1

Every jurisprudential school of thought incorporates a framework—usually implied or assumed—of ‘thinking’ processes that sets the conceptual boundaries of discourse and defines the standards of professionalism to either confirm or challenge conventional jurisprudential wisdom. Configurative jurisprudence is explicit about its purpose. It is a theory for inquiry about law and includes a requirement that it facilitate not only our understanding of law in any context, but law’s improvement as well. Improvement is appraised in terms of how well law contributes to the achievement of human dignity.

The general orientation of configurative philosophy of law exhibits these major emphases to further inquiry and attendant professional responsibility:2

 It distinguishes the observational standpoints of the scholar and decision maker and, in aid of enlightenment, as well as of decision (for improving law’s impact on the achievement of human dignity), develops a theory about law, and not merely of law.

 It establishes a focus of attention and creates a map of inquiry, both comprehensive and selective, for effectively relating authoritative decision (that is, law) to the larger social and community processes which affect that law and which it in turn affects.

1 Richard A. Falk, New Paradigm for International Legal Studies, 84 YALE L.J. 969, 969-1021 (1975). 2 Harold D. Lasswell & Myers S. McDougal, Criteria for a Theory About Law, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 3, 17-18 (New Haven Press 1992).  It formulates problems in terms of events in social process, that is, in terms of disparities between aspiration and achievement in a community's shaping and sharing of values.

 It postulates, and makes commitment to, a comprehensive set of human dignity values for the public order of particular communities (including the world community as a whole), which can be made explicit, in social process terms, in whatever degrees of abstraction and precision may be required in inquiry and decision.

 It identifies the whole range of intellectual tasks relevant to the making of decisions and inquiry about and about the interrelations of law and social process. It specifies economic and effective procedures for the performance of each of these tasks.3

The roots of configurative jurisprudence are tied to the revolt against formalism in social theory generally, and its particular expression in law as reflected in legal realism. It is also highly influenced by philosophical pragmatism’s inspiration of a problem-oriented, solution directed jurisprudence of decision making. A discussion of this background is provided in Chapter 5, infra. Below, we seek to introduce the reader to the core concepts that animate this jurisprudence and to introduce the reader to its distinctive nomenclature.

VANTAGE POINT Jurisprudence is conceived as a theory for inquiry about law. Effective and credible inquiry requires sensitivity to vantage point as well as attention to deeper levels of self- scrutiny, since what is ‘observed’ itself involves a question of values reposing so to speak in the antechamber of legal theory.4 The intellectual product of inquiry about law influences what becomes operational law. Observation involves some commitments about preferred values for the public order-for the self and as recommended for others. Human dignity is the recommended ‘postulate’ to guide inquiry as well as the normative dimensions of legal interventions.5 The establishment and maintenance of the observer’s standpoint is therefore the starting point of inquiry about law.

OBSERVING CONTEXT AND DECISION Configurative jurisprudence emphasizes that the observer focus on problems in context as well as decisional responses to them. This focus on context and problems requires intellectual tools of flexibility and dexterity in order to particularize problems in micro detail and relate those problems to the larger community context from which they emerge. The method for performing these tasks is termed ‘phase analysis,’ a procedure that permits context to be assayed at whatever level of abstraction is appropriate to the nature of the problem and the goal values implicated.6 The procedure requires inquiry into participants, their perspectives, the assets, or base values at their disposal, the situations in which they operate, the strategies they employ, and the results and outcomes generated. In short, phase analysis reveals that

3 Id. 4 See Harold D. Lasswell & Myers S. McDougal, Criteria for a Theory About Law, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 3, 22-24, 39-49 (New Haven Press 1992); and see Harold D. Lasswell, Strategies of Inquiry: The Rational Use of Observation, in THE HUMAN MEANING OF THE SOCIAL SCIENCES 89 (Daniel Lerner ed., Meridian Books 1959); and see Harold D. Lasswell, Intensive and Extensive Methods of Observing the Personality-Culture Manifold, 1 YENCHING J. SOC. STUD. 72 (1938). 5 Harold D. Lasswell & Myers S. McDougal, Trends in Theories About Law: The Relation of Law to Its Larger Community Context, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 141, 195-96 (New Haven Press 1992). 6 Harold D. Lasswell & Myers S. McDougal, Criteria for a Theory About Law, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 3, 31 (New Haven Press 1992). every social process consists of human beings pursuing values through institutions using resources.7

A significant insight into the nature of social process is that its manageability for contextual inquiry about law is in some measure delimited by a relatively small number of what are conceived as value-institutional categories. No claim is made that these categories are a closed system regarding the identification of other potentially relevant or functionally equivalent value-institutional categories. The values are power, wealth, respect, enlightenment, skill, well-being, affection, and rectitude.8 These values refer generally to what all people want. The list of eight values is logically exhaustive in this regard but empirically empty. That is, even though all people want each of the eight values, the ways in which or processes through which people give definition to and evaluate values are likely to differ from context to context.

Improving the outcomes of the processes through which values are shaped and shared is the central objective of configurative jurisprudence. Since law is to be used in achieving this objective (that is, to assist in securing a public order of human dignity), developing an empirical picture or mapping the complex interrelations among law, power, and social process in any context of concern is essential for scholar and decision maker. The phase analysis procedure can be and has been used for this purpose.

FORMULATING PARTICULAR PROBLEMS IN DECISION CONTEXT From the map of community social process and its interrelated outcomes, the particular focus of configurative jurisprudence is inquiry about law—that is, authoritative and controlling decision. The focus on decision making puts an emphasis on delineating the activities that are engaged in decision making. In general, configurative jurisprudence identifies seven activities or functions that comprise any process of decision making and explores how each function may be used to improve the explicitly rational aspirations of legal decision making.9 This contrasts sharply with rule or precept-focused jurisprudence. The differences are illustrated as follows:

RULE DECISION all or nothing intelligence logically incomplete promotion ambiguous prescription circular invocation legal complementarities application (come in opposites) legal vacuums (gaps) termination normative ambiguity appraisal

Table 1: Comparison of rule/precept-focused jurisprudence with decision-based jurisprudence.

7 Harold D. Lasswell & Myers S. McDougal, The Social Process as a Whole, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 335, 337 (New Haven Press 1992). 8 Id. at 375-591. 9 For further discussion of the functions of decision, see Myers S. McDougal, et al., The World Constitutive Process of Authoritative Decision, in INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE 1265 (Myers S. McDougal & W. Michael Reisman eds., 1981). As a functional matter, precept-focused jurisprudence addresses the issue of decision in an astigmatic manner. There is, in consequence, no desire or need for a comprehensive concept of decision making, or for appreciating the relevance of context.

THE KEY INTELLECTUAL TASKS

In addition to delimiting the general context of law (that is, authoritative decision), the jurist must formulate particular problems for systematic and comprehensive inquiry. Here the intellectual tasks of the jurist come to grips with the core elements of policy or configurative thinking. This involves goal thinking, trend thinking, conditioning/factor thinking, projective thinking, and alternative thinking.10

The central questions that configurative jurisprudence addresses are as follows: What are the public order, constitutive process, and civil society that law defends and promotes? What kind of order, process, and society should law promote and defend? How might this be achieved in a principled, fair, expeditious, and economically sensible manner? The focus on decision as the fulcrum of a realistic jurisprudence of human dignity stresses the dynamic element of legal theory and professional responsibility for the shaping and sharing of basic values. Jurisprudence in this view is neither value free nor neutral toward the ends it is meant to serve.

THE EMPHASIS ON INQUIRY ABOUT LAW

One of the central and critical contributions of the McDougal and Lasswell approach is that it is explicitly a theory of learning and inquiry. Consequently, the professors developed explicit criteria of what the goals of inquiry and understanding must be for a jurisprudence whose prime objectives are inquiry, articulation of values and public order in the framework of law, and the intellectual responsibility for what those values are, and how they are strategically promoted and defended.

Until this point, I have provided a short and relatively precise outline of the jurisprudence of McDougal and Lasswell. I have introduced the specific nomenclature as well as the structure and interrelated components of a jurisprudence as a theory for inquiry about law. I have systematically presented the five salient criteria by which Lasswell and McDougal believed all jurisprudence should be appraised and that the professors’ system seeks to approach the study of law in theory and practice with these factors as both guidelines and intellectual standards for establishing coherence and rigor. (These include matters of standpoint, matters of appropriate orientation to decision and community, matters related to the formulation of problems to which law in the form of decision responds, and the systematics of the five intellectual tasks that form the core of configurative thinking.) In this next section, I shall focus on the jurisprudence of McDougal and Lasswell as an explicit theory for inquiry. In doing so, I emphasize and underline the critical foci of the approach, the nomenclature, the mapping and the specific emphasis that go with the study of decision in context. Included as well are the critical intellectual tasks to inquire effectively into the causes, consequences and conditions of the specific form of decision we call ‘law’. Here I

10 For elaboration of these intellectual tasks, see Harold D. Lasswell & Myers S. McDougal, Trends in Theories About Law: The Conception of Relevant Intellectual Tasks, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 203 (New Haven Press 1992) and W. Michael Reisman, Theory About Law: The New Haven School of Jurisprudence, in JAHRBUCH [of the Berlin Institute for Advanced Study] 228 (1989-90). refer to decisions that are supported by authority and elements of control for which we normally reserve the term law.

CONTEXAUAL/CONFIGURATIVE JURISPRUDENCE: THE DESIGN OF AN INQUIRING SYSTEM

DESIGNING AN INQUIRY SYSTEM: PRECEPTS, DECISION, AND CHOICE 11 The central objective of configurative jurisprudence is that it is a theory for inquiry about law. In this section, we explore the design of an inquiring system relevant to legal issues. What follows is the outline of a system of research designing for legal policy inquiry. The fundamentals of this approach work on the principle that law comes in the form of rules, principles and policy, and is a response (ultimately) in the form of decision making to the problems that emerge from the social process context. Thus, this particular research design makes as its central focus the emphasis on problems, decision, and choice in the context of law in general.

The central assumption about decision making is that it is normally seen as the response to a problem or perceived problem. From the particular perspective of law, law is simply a form of decision making that is vested with certain characteristics that are distinctive to it as a social or community artifact. These distinctive aspects of legal decision are the expectation that a legal decision contains a component of efficacy. This means that a legal decision contains an expectation that power may be deployed to give the decision the quality of a controlling intention and effect.

The second aspect of a legal decision is that it must have a quality that is ‘authoritative.’ This means that a legal decision, which responds to a problem from society, must have an authority component to it. In short, we cannot reduce all law to power nor can we reduce all law to authority without power. It is the complementary quality of these two components that give what we call a legal decision its particular distinctiveness as law and from an ideological perspective the related concepts of the supremacy of law, justice under law and, more broadly, the rule of law foundations of a democratic, free and just society.

McDougal maintained that the indicators of authority were to be found empirically in the expectations of individuals in all communities. He writes:

By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision- making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the value [that] may be used to sustain decision, and so forth....Genuine expectations of authority are discerned by contextual examination of past decision as well as by utilization of all the techniques of the social sciences for assessing the current subjectivities of individuals.12

Reisman suggests a fuller elucidation of the role of individual subjectivities in the construction of expectations of authority, describing it as

a set of conditioned subjectivities shared by relevant members of a group; when operative, when tripped so to speak by outside events, these subjectivities provide the individuals concerned with an indication of

11 For further reading on designing the inquiring systems, see C. WEST CHURCHMAN, THE DESIGN OF INQUIRING SYSTEMS: BASIC CONCEPTS OF SYSTEMS AND ORGANIZATION (Basic Books 1971). 12 Myres S. McDougal, et al., The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253, 256 (1967). appropriate behavior. Authority can be considered a significant determinant of individual or group behavior, not necessarily when it compels a certain course, but when it indicates that course with a degree of clarity sufficient to excite internal tension or psychic dysphoria if an incompatible course is followed.13

It will be noted that the McDougal-Reisman view is that authority is an indispensible condition of law at any level. Moreover, the empirical approach they assume may be contrasted with the approach of analytical positivism, which seeks to secure not the authority of law but ‘the validity of law’ by the identification of a formal criterion of validation.

PROBLEMS AS VALUE CONFLICTS: IMPLICATING CHOICE AND DECISION. 1 4

In order to guide inquiry into law it is of value to design an inquiring system. The system I will present is one I believe may be used broadly into any area of law, policy, and decision making. However, I believe that this system of inquiry is particularly valuable in the areas of international law, comparative law, and human rights law. The broad outlines of the system may now be outlined.

Since I regard decision making as a response to problems that emerge from the give and take of social economic and political life, I now back track briefly to touch on the problem of generally understanding a problem. Since problems emerge from society, it is apparent that any legal scholar or inquirer must have some idea of the context in society out of which the problem emerged. Thus, there is a prior inquiry that the student must examine to have a keen feel for the definition of the problem, its importance and the reason that it is worthy of research and study for the purpose of legal policy and inquiry.15

Therefore, I may begin somewhat chronologically by saying that effective legal inquiry must respond to problems, and that problems (and responses to them) must be seen in the social or community context from which they emerge. The challenge of a problem is the challenge of problem solving. Decision making thus has a twin component. It must respond to a problem, which emerges from social context; and its response (at least in theory) must be an attempt at solving the problem; moreover, we must consider whether in solving the problem we have understood the solution of the problem in terms of its impact or consequences for the society or community.

To solve the problem we must also recognize that in general, a problem is about a conflict of values. Some people want values. Others seek to deny those values. The conflict therefore is a problem about claiming and the expectation that the claiming will be denied without authoritative and controlling intervention. It will be obvious that any problem solving approach to research must have a way of grappling with the problem of what a problem is. That is the most effective way to come to grips with the concrete specification of a problem, which is thought to require a realistic and rational response from the institutions of decision in society. However, the realism of understanding a problem for a problem solution is only one aspect of the scholarly objective.

13 W. MICHAEL REISMAN, NULLITY AND REVISION; THE REVIEW AND ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS 4 (Yale Univ. Press 1971). 14 For further reading on defining a problem, see ALLEN NEWELL & HERBERT A. SIMON, HUMAN PROBLEM SOLVING (Prentice-Hall 1972); and see HERBERT A. SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISION-MAKING PROCESSES IN ADMINISTRATIVE ORGANIZATION (Free Press 3rd ed. 1976). 15 Harold D. Lasswell, Technique of Decision Seminars, 4 MIDWEST J. POL. SCI. 213, 213-36 (1960). In this work, Lasswell outlined new patterns of teaching and learning within University. He indicated that scholars and decision-makers need improved methods for group problem solving so that they can arrive at better solutions. An equally critical part of a scholarly agenda is the prediction of problems. The ability of the scholar to anticipate the problems of the future with realism and precision enhances the relevance of law, facilitates the invention of policy alternatives before problems become unmanageable because they have not been anticipated and their social and policy implications have in fact been inadequately explored. Thus, one of the most important components of any rational problem solving approach to human affairs is going to require a process of normative understanding and goal guidance.

Taking the empiricism of problem identification and context together with the implication of normative discourse generates the critical idea that problem solving must be sensitive to a multi-disciplinary ethos. Empirical methods are not the same as normative discourse. It will be apparent, therefore, that a research design must be goal guided, inter-disciplinary, multi- method, and a decision-focused exercise. In what follows I provide a more systematic, point- by-point outline of a research design that meets these general criteria of inquiry.

CONFIGURATIVE JURISPRUDENTIAL RESEARCH DESIGN

ROLE AND ORIENTATION The central component of any research is the researcher. The researcher may find herself/himself researching for many different professional roles or purposes. These professional roles may serve both as guides and limits to what the researcher would look at or focus as a target of inquiry.

Law generates a particularly sharp dilemma in this regard. For example, a student in law school would be working toward an academic law degree. The testing and evaluation for this degree should generally be governed by the conventional standards of academic inquiry. However, the student is also using the educational experience as a partial qualification as a professional lawyer.

Professional standards of inquiry may be more sharply defined and limited to the values of the profession. It would be apparent that these two points of view: the academic and the professional are not the same thing. Yet the same person must discharge them within an institutional context, which requires simultaneously competence in both.

RESEARCHING EXTERNAL OR INTERNAL LAW AND POLICY During the 19th century, when science became a dominant feature of the production and distribution of knowledge, lawyers in the academy began to consider whether law too should be a ‘science’ based on an analogy to what scientists do in terms of standards of observation and focus. This resulted in an important literature within a powerful new legal tradition: American legal realism.16 The early realists argued that teaching law and doing scholarship about law could only meet a credible scientific standard if the teacher, the scholar, and the student could self-consciously assume a perspective of inquiry outside of the legal system to observe its functions and complexities objectively and (implicitly) scientifically. They therefore insisted that legal inquiry should be a theory for inquiry about law. This approach to law quickly gravitated to the generation of insights that were highly skeptical of the myth of law and its promise versus the operations of law and its underside of oppression, exploitation, and ideological manipulation.

16 WILFRID E. RUMBLE, AMERICAN LEGAL REALISM: SKEPTICISM, REFORM, AND THE JUDICIAL PROCESS (Cornell Univ. Press 1968). This generated insights both promising and disturbing. Critics charged that the about law point of view was insensitive to the values, canons, and demands of the actual profession of law (from an internal point of view). More recently, distinguished scholars have argued that the aggressive use of the external perspective—the about law perspective—could itself be ideologically manipulated so as to deny the critical salience of the rule of law and the profession of law as a critical component of managing power responsibly in society.

We cannot resolve this threshold problem easily. On the one hand, the about law point of view seems—at a fundamental level—unguided or constrained by fundamental values critical to the public order. On the other hand, the internal perspective implicated questions of professional responsibility and the relevance of distancing the profession from the actual problems of human beings in society.

ORIENTATION, FOCUS, AND STANDPOINT FOR INQUIRY Postmodernist inquiry has influenced the evolution of designing research by stressing the component of subjectivity of the researcher or the actor in social process. This has generated important clarifications as we seek to establish a standpoint from which we can do effective legal research with effective designing instruments. The central issue is that to assume a vantage point to observe any phenomena or any phenomena connected to law itself requires certain creativity in orientation. That orientation of creativity must of course be subjective. However, if that active creative orientation is underwent self-consciously, then the point of entry observation and analysis would seem to be a more defensible and (possibly) more useful deployment of the human faculty and necessary resources to understand the position of human beings in society in situations of threat, insecurity, and threats to essential dignity. In what follows, I outline the multiple points of creative orientation to effective inquiry about law.

The issues of orientation and focus do require a clarification of the value commitments of the scholar, self-examination of the often-implicit value orientation of the scholar, and the problems this poses for objectivity and subjectivity in carrying out an effective research agenda. The issues of values are unavoidable. As scholars, we cannot know what ‘ultimate value’ is unless we have spiritual insights and channels of communication denied to much of humanity. The most we can hope for is to postulate what we think the most fundamental value commitments are about human beings in society and use those commitments as a starting point for inquiry about value conflicts and preferred value outcomes.

It will be obvious that there are, from a practical point of view, a number of different obvious standpoints in seeking to develop an appropriate focus and effective orientation to advance legal research, or inquiry about law. These include the standpoints of the:

 Scholarly Observer

 Authoritative Decision Maker

 Effective Elite

 Advocate

 Citizen/Individual/Civil Society FOCUS CREATIVE ORIENTATION TO THE BROADEST CONCEPTION OF LAW AND POLICY Integral to the process is the imperative to focus one’s creative orientation to the broadest conception of law and policy. To do this requires:

 Identification and Description of Law and Policy Perspectives (law ‘on the books’)

 Identification and Descriptions of Law Policy in Actual Operation (the ‘operational code’)

 Clear Emphasis on Decision Making and Qualities of Authority and Control

 Clear Emphasis on Authoritative Decision from Global to Local Arenas

 Clear Focus on Society, Problems, Law, and Social Consequences

 Impact of Legal Interventions from Local to Global Consequences

SPECIFIC RESEARCH TECHNIQUES The discharge of research foci and attendant creative orientation requires the application of specific research techniques. These include:

 Characterizing Context and Problems

 Predicting Problems

 Defining Problems as Outcomes of Social Process

 Five Ways of Thinking

RELEVANCE OF NORMATIVE ANALYSIS AND VALUE CONFLICT

 Clarification of Goal Normative and Value Propositions Relevant to Problems

 Postulation of Overriding Goals

 Goal Value of Human Dignity as an Overriding Principle of Normative Guidance

CORE SCHOLARLY, SCIENTIFIC, AND INTELLECTUAL METHODS FOR DESIGNING INQUIRY

 Careful description and appraisal of normative conflicts and overriding community goals of normative guidance (normative or goal thinking) with a view to grounding values in concrete instances of application;

 Description of past trends in developing legal perspectives and practices (trend or historic thinking). Relevance of past trends to goal values and actual value distribution;  Conditions influencing trends in specific decision and perspective (scientific thinking). This includes identification and articulation of variables that shape the actual allocation of goal values;

 Disciplined predictive forecasting (use of developmental constructs—predictive thinking) of future possibilities in existing decision trend). Appraisal of future probabilities according to approximation to desired value objectives and the distribution of those values;

 Creative thinking: creation and appraisal of legal policy modifications, changes or alternatives for the construction of a more rational value dispensation. This involves invention, evaluation and application of alternative possibilities in problem solving directed at approximation to desired goals.

CRITICAL SKILLS OF CONFIGURATIVE ORIENTATION

 Intensive techniques. These techniques involve intensive focused observation over extended periods. It deploys complex tools to facilitate and accompany an intensive observation appropriate to the study of personality, personality interaction, and collective or community studies in the context of particular eco-human experience.

 Extensive techniques. These techniques function in unlimited timeframe using relatively simple methods and techniques such as rapid assessments brief surveys and short reports of particular instances and problems.

CRITICAL SKILLS OF ORGANIZATION AND LEADERSHIP IN APPLICATION

 Individuated person-to-person relations, micro-social relations, and small group into action.

 Public relations. Individuals’ relations to members of the larger professional and interest group networks.

CRITICAL SKILLS APPLYING SKILL GROUP TECHNICALITY

 Distinctive skills in perspectives, such as legal theory, social theory, quantitative and qualitative methods of analysis, statistical skills, skills in theory construction, skills in the application of social, and legal or other knowledge-based theories of science.

 Skills critical to law include distinctive ideas of mapping social and many dimensions of legal process. Skills of technicality for legal profession also include a mastering of an important and highly complex system of signs and symbols critical to both internal and external standpoints of observation and participation.

CRITICAL SKILLS INVOLVING SOCIAL ORGANIZATION A great deal of importance in this model for designing inquiry about law and policy is dependent upon an articulate, economic, and disciplined conception of social organization, since law responds to the problems in social organization, and its authoritative and controlling responses will in turn impact on it for good or ill. Technically, it would be useful for those engaging in disciplined research to have a concept of community whose core ideas are simple to state and can be applicable to a micro-social unit like a friendship circle, an affection unit, a local community, the state, or even the world community.

The model may be expressed as follows: Individuals (participants) actively pursue values. These values from their point of view are seen as the desired things in society such as power, wealth, respect, skill, affection, enlightenment, well-being, and rectitude. These values are pursued through institutions, based on resources. This means that in general a person pursues affection through the institution of the family, wealth through the institution of a corporation, enlightenment through the institution of a school or university, well-being through a hospital or clinic, skill through institutions of labor and professionalism and rectitude through institutions of religious or confessional outlook.

We provide a quick checklist of this kind of disciplined development of contextually relevant to designing policy legal inquiry. This is best expressed through a series of questions: Who are the relevant actors or players; what are their perspectives of demand (for values), of fundamental identification (who they are); and what are their fundamental expectations about social position and access to value. We want to know in what situations they are actually pursuing their value demands, securing their identity or vindicating their expectations. These situations may be spatial (geographic) or temporal, or institutional, or conditioned by factors of extreme exigency. It therefore is important to know in what situations the actors are functioning in social process.

Next, it is important to understand what basis of power actors can use to secure their interests in the situations within which they seek to vindicate their demanded values. These bases of power provide us with a rather radical but realistic understanding of power. In short, every value can be sought for its own sake. For example, one may want power or wealth. It is also the case that any value may be used as a resource or base of power to secure any other value. For example, an actor may use power to acquire wealth. An actor may use wealth to acquire respect or affection, etc. It should also be noted that, particularly in law, authority is an important base of power.

Every actor comes with perspectives, in situations with access to base values, and must still deploy strategic means to secure what the actor wants. What strategies are available to the actor? This brings us to the component of social process dealing with strategies of action. From a security or international point of view, actors deploy diplomatic assets, ideological assets, economic assets and military assets to secure the values they demand. At the higher level of abstraction, we may see these strategies of modalities of persuasion and coercion. As such, some expressions of these strategic assets are found at every level of human interaction from the micro to the macro levels.

Finally, inquiry wants to know what the outcomes of these phases of human interaction generate issues resulting in the production and distribution of the valued things in social organization. Such distributions may be unequal or even exploitive and repressive. Thus, we can see that one of the most important outcomes of this description would be the problems generated by contestations for power regarding every phase of interaction from the identification of participants to the outcomes of social process. To sum up, the social process context, which we have described, has been described using markers. Each of these markers represents a point of salience in the social process, since each marker implicates a problem, or an aspect of the problem, that implicates the claim for values. The idea of mapping a social process is to precisely locate the nature of the problem in the specific phase of the community process.

CONTEXTUAL MAPPING OF THE COMMUNITY PROCESS

ADDRESS THE... AND SPECIFY... Individual(s) ? National? Governmental... Participants Transnational? Group(s)... Political Parties? Non-Governmental... Pressure Groups? Private Associations? Power? Respect? Enlightenment? Security? Demands for... Well-being? Skill? Perspectives Rectitude? Affection?

Identifications?

Expectations?

Geographic? Temporal? Situations/Arenas Institutional? Crisis-Centered? Base Values (when values perform a power/value function) Diplomatic? Ideological? Strategies Economic? Military? ...of Production? Outcome-Generated ...of Conservation? Problems ...of Distribution? ...of Consumption? (implicate all values, especially those critical to power, decision making, and Effects organizing formalized authority, which will then affect the production and distribution of all values other than power)

Table 2: Suggested topics for consideration when producing a contextual map of the community process. From the point of view of legal policy, a general map such as is provided for the guidance of inquiry will inevitably lead us to the analysis of the dynamic interrelationship between the processes of effective power, the processes of effective decision making conditioned by power, the management of power through institutions of authority and authorized decision making. What we can now briefly outline is that in general the emphasis on decision making is to identify and map decision making in the context of society and the problems, which it produces. As a technical matter, decision making is an outcome of power; and authority is an outcome of constituting power as a pattern of established and recognized authoritative practice. What we mean by decision making may be seen in unpacking seven interrelated and sequential functions of decision making and choice. At whatever degree of actual skill and efficacy decision making will involve an intelligence predicate, a focus on promoting its efficacy, its dynamic of prescription, invocation, application, and termination as well as the self-appraisal by the decision maker.

CONTEXTUAL MAPPING OF THE EFFECTIVE POWER PROCESS

ADDRESS THE... AND SPECIFY... Individual(s) ? National? Governmental... Participants Transnational? Group(s)... Political parties? Non-governmental... Pressure groups? Global & national civil society? Participation in the shaping and sharing of power? Demands for... Maintenance of the processes of authoritative Perspectives decision-making? Identifications? Expectations? Geographic? Temporal? Situations/Arenas Institutional? Crisis-Centered? Base of Power (all values) Diplomatic? Ideological? Strategies Economic? Military? ...by Intelligence? ...by Promoting? ...by Prescribing? Outcomes ...by Invoking? ...by Applying? ...by Terminating? ...by Appraising? Consequences for public order? Effects Changes in participants?

Table 3: Suggested topics for consideration when producing a contextual map of the effective power process. One of the most important outcomes of social interaction at any level is the problem of conflicts about power, its appropriate management, and its possible uses for improving or possibly depreciating the value expectations of the community. Power is thus one of the most important outcomes of social organization, and the precise scope of these outcomes may most effectively be described (and more precisely defined) in terms of problems about power. The conceptual map outlined above may thus be understood as providing markers for understanding the problems posed by power outcomes in social process.

For example, the first marker is the identification of critical players (participants). This will obviously pose one of the basic questions about who is included and who is excluded from power arenas in society. The perspectives of the participants poses the question of what their perspectives are about power in terms of identity claiming or demanding values and their rational or reasonable expectations. The question of the arenas of power poses the question of who has access to those arenas and who is denied.

The next marker focuses on bases of power available to the participants. The approach I present is distinctive in this regard in that it presents itself as the most radical and realistically descriptive component of the definition of power in any context and any level of social organization. All values may be sought for their own sake as claims or demands. All values may as well serve as bases of power to achieve other values. In short, power may be used to gain more power, wealth, respect, rectitude, health and well-being, education, skill, or indeed love and affection. Similarly, any other value may be used to acquire power or any other articulated value. For example, wealth may be used to leverage power or respect, or affection. Respect may be used to leverage power, rectitude, health and well-being, etc. Thus, we see that ‘power,’ as a radically contextualized outcome of social organization, requires the guidance of mapping and markers to facilitate inquiry into law and policy.

The marker defined as strategies asks the critical question about the strategic assets an actor may use or deploy in managing the critical bases of power to achieve the value demands that the actor desires. These strategies could run the gamut from diplomatic modalities of communication, through effective propaganda and marketing, through economic incentives and threats of deficits, and by military strategic deployments or interventions.

One of the most important outcomes of a system of power relations is designated by the marker outcomes. In order to use power, the participant must have some capacity to make decisions about power. These decisions will encompass the dynamics of cooperation.

What is distinctive about this map is the identification of seven discrete though interrelated functions that make up decision making at any level. For example, the decision to get married, to go to war, or to embark on a career in higher education such as law or legal studies. The final marker in this unpacking of power as a process is the marker we designate effects. How power is produced and allocated is enhanced by the process of contextual mapping. This provides a clearer picture about the nature of the society and the public order upon which it is based.

This brief explanation of the power process is now further developed because law itself is one of the outcomes of the power process, in the sense that law is a process of decision making that has a power component to it. Law, however, is meant to be more than power. It is also meant to carry the mantle of authority, and legal decisions are meant to be both authoritative and controlling to count as law. To understand these relationships between society, power, decision, and legal decision making that is authoritative and controlling, requires us to focus on the essence of this chapter: the relevance of contextual mapping to understand relationship between society, decision, and decision according to law.

CONTEXTUAL MAPPING OF THE CONSTITUTIVE PROCESS

To recap the framework for inquiry outlined above, the focus on contextual mapping essentially means that we seek to map three dynamic interrelated processes: the social process, the power process, and the constitutive process. The social process is simply the activity of human beings seeking through institutions (such as the family) to promote their values. The power process is a specialized aspect of the social process. It is the activity of human beings pursuing power through institutions. The constitutive process is an aspect of the power process. It is the process by which institutions for the management of power are effectively and authoritatively developed; or, more precisely, the constitutive process is the creation of reasonably predictable expectations about the allocation of fundamental decision- making authority within the nation-State or body politic.

To illustrate, any community exhibits contestations for power. These contestations may take the form of violent rebellions or a revolution. Suppose one side in the conflict wins. The winners will seek to ‘constitute’ or institutionalize their authority. They may have won a battle, but winning the peace and stabilizing their power basis may require more concrete formulations of the ‘authoritative’ and ‘controlling’ aspects of power. Even if no clear winner emerges from the conflict, the contesting parties may see that stabilizing their claims and expectations about power is in their mutual self-interest.17 This is because stabilizing expectations about how the basic institutions of decision are established and continuously sustained are vital to the constitution of power and its concurrent and subsequent ‘recognition.’18

From an empirical rather than a formal point of view, constitutions—written or otherwise —are nothing but codified expectations of authority and stability in contradistinction to the prospect of continuous (even violent) conflict over how power and authority are to be constituted and exercised. Realistically, conflict and its polar opposite, collaboration, are present in all forms of social organization; indeed, they have ever been ubiquitous in States and societies. Even when authority is provided for in a formal constitution, there shall always be conflict regarding the precise allocations of power and competence. This means that even when the high intensity violent conflict is contained, the settlement will be fraught with contestations for power. Conflict cannot be banished from human relations, but its form can change. Often, post-conflict settlements might generate situations of constructive conflict. Thus, some forms of conflict may be socially beneficial. For example, economic competition (as any capitalist knows) is a form of conflict19 that is regarded as indispensable to economic development in market systems.20 Similarly, non-violent competition in democratic

17 Notwithstanding this process of vying for sovereign power over a community, it has been argued that at least to some extent the beliefs of individual members of that community are reflected in each act of their sovereign ruler. See generally Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280 (1982). 18 See H. L. A. HART, THE CONCEPT OF LAW 97, 110-11 (Clarendon Press 1961). 19 JOHN STUART MILL & STEFAN COLLINI, ON LIBERTY; WITH THE SUBJECTION OF WOMEN; AND CHAPTERS ON SOCIALISM 251-54 (Cambridge University Press 1989). 20 See SUSAN STRANGE, THE RETREAT OF THE STATE: THE DIFFUSION OF POWER IN THE WORLD ECONOMY 46 (Cambridge University Press 1996) (arguing that “the world economy …has shifted the balance of power away from states and toward [competitive] world markets”); see also WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 11-26 (Simon & Schuster 1997) (discussing the emphasis on competitive global capitalism). governance is indispensable, not only to facilitate openness, but also to further progress and change in society.

The constitutive process is continuous. But it does not render irrelevant the similarly continuing process of conflict in accordance with the constitution. There is an intuitive, ongoing relationship between contestations for power and the constituting and stabilizing of such contestations. Accordingly, the continuing constitutive process shapes communication regarding conflict management and collaboration to establish and maintain the basic political and juridical institutions of effective and authoritative decision making.21

One of the most important outcomes of the power process is the patterns of communication regarding conflict and possible collaboration. The understandings generated by power brokers in their contestations for power frequently involve communications and understandings about the limits, constitution, and uses of power for collaboration rather than conflict. From an observer’s point of view, a central feature of what is called constitutional law is its way of institutionalizing expectations relating to the management of power in the basic institutions of authoritative and controlling decision making. The understandings that emerge from the power process reflect the development—however imperfect—of cultural forms that seek to constrain excessive, destructive conflicts and to structure conflicts productively.

Practical frameworks of communication and collaboration are generated, wherein basic human expectations may reveal, upon scrutiny, a ‘living’ constitutional arrangement—a design of decision-making expectations that is fundamentally interwoven with social organization and that is actually or behaviorally constitutionalized.22 This might happen without a written constitution and still be an effective instrument of constitutive authority. Alternatively, the outcomes of social conflict, such as civil war, anti-colonial wars, or agitation for self-determination, might lead to the formulation of written expectations about the management of basic decision-making competences in the political culture. In short, conflict sometimes provokes the creation of a written constitution. On the international stage, wars and multi-State conflicts have historically stimulated the development of regional compacts and mutual understandings; indeed, perhaps the clearest example yet of a global compact representing the parties’ common interest is the U.N. Charter.23

21 From the perspective of the New Haven School, international lawmaking, or prescription, is seen as a process of communication involving a communicator and a target audience. The substance of this communication functions as signs or symbols of policy content, symbols of authority, and symbols of controlling intention. These three signs or symbols are: 1) the ‘policy content’, which is the prescription, 2) the ‘authority signal’, which is the legitimate basis from which to prescribe, and 3) the ‘control intention’, which is the enforcement power. In other words, a core philosophy of the School is that in order to count as law, international law must have a prescriptive policy content, it must be accompanied by symbols or signs indicative of widespread community acceptance (because the community is the notional basis for authority in international law), and it must be accompanied by a conception that some institutionalized control exists to ensure that the prescribed law is real. See Myres S. McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1967); see also W. Michael Reisman, International Lawmaking: A Process of Communication, 75 AM. SOC. INT'L L. PROC. 101, 108-10 (1981) (discussing three aspects of prescriptive communication that essentially convey legal norms because they designate policy that both emanates from a source of authority and creates an expectation in the target audience that the policy content of the communication is intended to control.) 22 See Walter O. Weyrauch, The “Basic Law” or “Constitution” of a Small Group, 27 J. SOC. ISSUES 49, 56-58 (1971) (documenting an experiment in which several Berkeley students were locked in a penthouse for three months. The focus of this experiment was the evolutive character of law). 23 For example, the UN Charter identifies authoritative decision-makers and procedures by which decisions might be made because it articulates a framework of practices created to facilitate decisions in the interest of “[maintaining] peace and security,” which, as Professor W. Michael Reisman puts it, “[requires] more and more cooperation between large and small states.” See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM. J. INT'L L. 83 (1993). Professor Reisman goes on to assert that “[t]he United Nations Charter is only a part of [the] ongoing world constitutive process….” Id. at 100. The New Haven School, on the other hand, is not concerned with formal structures of government. It instead The world power process includes claims to become sovereign, to remain sovereign, and to change or realign sovereign competence. Mapping this process requires the identification of operative participants in the world social and power processes, their perspectives, demands, and expectations, their bases of power, the situations in which they operate, their general strategies for action, and the basic outcomes and effects of politically conditioned action. One of the major outcomes of the process of effective power has been the creation and maintenance of the institutions of authoritative decision making.24

Placing the concept of sovereignty within the map of the social, power, and constitutive processes, we find that sovereignty reflects the allocation of fundamental decision-making competencies about the basic institutions of governance itself. Within a nation-State, it is the authorization and recognition of persons or institutions competent to make basic decisions about governing power at all levels. On the international stage, the stabilization of expectations in bodies politic with effective control over populations, territorial bases, as well as over the instruments of internal governance and external recognition leads to the creation of sovereignty with independence and international legal personality.25

The term sovereignty, by itself, gives us no clues as to its creation, how it is maintained, its changing character, or, indeed, how it is terminated.26 Contextual mapping may provide a useful bridge between the different disciplines and cultural contexts in which the term is used, often abused, and certainly misunderstood. My aim in this section has been to point the way to the application of contextual mapping to this subject.

remains focused on policy so that it can explore the interplay between law and the world community through the lens of social processes. Specifically, the New Haven School explores the processes of decision-making with specific regard to the “legal process, by which…[McDougal and Lasswell meant] the making of authoritative and controlling decisions.” See Myres S. McDougal and Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INT'L L. 1, 9 (1959). The School's lead scholars suggest that international law is a “world constitutive process of authoritative decision,” and not simply a conventional set of regulations, perhaps referring to existing legal regimes such as the UN Charter. The goal of international law, the School’s founders argue, is the establishment of world public order by instituting regimes of effective control and moving away from existing regimes of ineffective control. See generally Myres S. McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1966-67). 24 McDougal and Lasswell offer a configurative conception of jurisprudence that is the final product of an authoritative decision-making process. See Harold D. Lasswell & Myers S. McDougal, Criteria for a Theory About Law, in JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY 3, 24-25 (New Haven Press 1992). They argue that a scientifically grounded answer to any policy-oriented problem can be reached that might promote the common interest to achieve a world order based on fundamental principles of human dignity. Id. at 34-36. Scholars and policymakers regard their approach to decision-making as a rigorous one embedded in a social context. Id. See also MYERS S. MCDOUGAL, et al., The World Constitutive Process of Authoritative Decision, in INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE 1265 (Myers S. McDougal & W. Michael Reisman eds., 1981). 25 Scholars disagree about the extent to which recognition is required to establish legal personality, or if legal personality can indeed exist independently of recognition. If legal personality can exist without recognition, recognition is transformed into a legal duty possessed by the state. See PETER H. F. BEKKER & T. M. C. ASSER INSTITUUT., THE LEGAL POSITION OF INTERGOVERNMENTAL ORGANIZATIONS: A FUNCTIONAL NECESSITY ANALYSIS OF THEIR LEGAL STATUS AND IMMUNITIES 74 (M. Nijhoff 1994). 26 The technique of contextual mapping provides indicators that locate sovereignty within the interpenetrating regional, national, and global constitutive processes. The mapping technique permits an inquiring scholar to locate sovereignty within an appropriately comprehensive social and power context and permits us to mark out areas of stability and change the sovereign influence on global public order and civil society as a scholastic agenda. The idea that sovereignty is a central element of whatever is meant by constitutional law is neither new nor remarkable. The mapping technique seems to confirm this in a more objective way. More importantly, however, the technique permits us to look behind the Grundnorm realistically and dynamically. MAPPING CONSTITUTIVE AUTHORITY AT ALL LEVELS

ADDRESS THE... AND SPECIFY... Individual(s Participants )? (consider Inclusivity / National? Governmental... Exclusivity and Transnational? Responsibility / Group(s)... Political parties? Freedom from Obligation) Non-governmental... Pressure groups? Global & national civil society? Directed toward clarification of common interests? Demands... In rejection of special interests? With what community? Identifications... To what degree? Perspectives Contextual? Expectations... Realistic / Irrational (complementary character plus supporting Interests? expectations) Legislative? Executive? Institutionalization... Judicial? Administrative? Establishment... Central? Geographic... Arenas Peripheral? Occasional? Temporal... Continuous? Crisis? Open? Access... Compulsory? Authoritative? Bases of Power Controlling? Diplomatic? Ideological? Strategies Economic? Military? ...by Intelligence? ...by Promoting? ...by Prescribing? Outcomes ...by Invoking? ...by Applying? ...by Terminating? ...by Appraising? Consequences for public order? Effects Changes in participants?

Table 4: Suggested topos to consider when mapping constitutive authority.

We might sharpen our understanding of one of the important outcomes of a community’s power process. We do this by following the six markers and asking the critical questions implicit in these markers about constituting power in society. For example, who participates and what is the level of participation in the particular constitutional order? Is the constitutional order directed at inclusion or exclusion? Does the constitution incorporate generally accepted standards of good governance such as responsibility, accountability, and transparency?

Our second marker touches on the questions of the perspectives of the critical actors and normative foundations of the constitutive process. This represents a kind of ‘we (the people)’ instead of ‘we (the intellectual or economic or power elite).’ The marker designating arenas touches on the level of institutionalization of constitutional expectations including individual civil, political and human rights.

The marker underlining bases of power touches on the critical issue of the nature of authority and ultimately its power to constrain brute force by the rule of law. The strategies of decision according to constitution and law are critical to the foundations of freedom and justice under law. The outcomes reflect the outcomes of the power process and, to some extent, mirror those results. Effective constitutional decision making attempts to enhance the virtues of the public order; whereas ineffective constitutional decision making stimulates the drift to tyranny, governmental lawlessness, and, ultimately, community anarchy.

SPECIALIZED COMPONENTS OF LAW AND SOCIAL PROCESS USING VALUE INSTITUTIONAL ANALYSIS Using the same contextual markers that are part of contextual mapping, we may orient ourselves to particular aspects of the map for the purpose of doing narrow specialized research. For example, we may use phase analysis to outline critical and specialized aspects of context by organizing the map of community process according to values. In the table below, the markers relate to specific features of different value processes. VALUES IN OUTCOMES BY SPECIFIC VALUE AUTHORITATIVE AND CONTROLLING CONTEXTS INSTITUTIONAL INTERACTIONS DECISION MAKING Participants Major outlines Constitutiv Specific Authority e Process Perspectives Functions (intelligence, etc.) Participation Perspectives (power, respect, Agreements enlightenment, wealth, well-being, skill, (organize by rectitude, affection) phase and Situations value) Bases Wealth Relating to Strategies Participation features of Participants Outcomes at any level same as above Perspectives constitutive Deprivations Claim process (regional constitutio Situations n (phase s community, analysis) Bases Types national Wealth interaction Strategies of Public Association s with community, Private others Claim Order (phase Outcomes etc.) Allocations analysis) s Association by Non- same as Wealth above Values Allocation Planning and Resources Development Relating to features of Use or Enjoyment public Labor (phase analysis) order Relations Family (phase analysis) Law Respect same processes of authoritative and controlling same institutional interactions same decision making as above contexts as as above above Enlighten- same processes of authoritative and controlling ment same institutional interactions decision making same as above contexts as as above above Well-being same processes of authoritative and controlling same institutional interactions same decision making contexts as as above above as above Skill same processes of authoritative and controlling same institutional interactions same decision making contexts as as above above as above Rectitude same processes of authoritative and controlling same institutional interactions same decision making contexts as as above above as above Affection same processes of authoritative and controlling same institutional interactions same decision making contexts as as above above as above

Table 5: Value and institutions mapped onto the community process

The left column (above) indicates that we can take any value and break it down according to seven markers, which are guides to inquiry. By asking questions about these markers, we begin to unpack in depth the real problems which scholarship might effectively describe and provide guidance for practical decision-making interventions from all sectors of the social universe. Even more importantly, this particular way of mapping gives us a guide to predicting problems before they actually happen. This, too, is an important part of improving the framework of choice and decision in society.

The middle column assesses outcomes with regard to all value institutional interactions. Most important outcomes of social process relate to the conflicts about power. When power is organized by clear understandings regarding the allocation of power competences, the claims about power become constitutionalized. Thus, by breaking down those relationships, we can clarify the types of problems posed in constituting authority in society and the values sought in resolving the specific and particularized issues (e.g., about what contract should be enforced or what type of marriage should be recognized, etc.). Thus, after identifying the various claims, we analyze the power players and actors by phase analysis and assess who participates effectively in the power process.

The column on the right allows us to unpack the breadth of authoritative and controlling decision making—from the macro-global perspective, through the intermediate perspective of region and nation, down to the specific micro-social forms of decision making that are often the building blocks of a defensible social and public order. The outcomes of the power process may lead to anarchy and protracted conflict. The outcomes may also reflect the stabilization of expectations about the protection and allocation of power. The stabilization of expectations we call the constitutive process because it tells us how in practice power is actually constituted in a given body politic. This practical constitution of power may eventually evolve into an unwritten or written constitutional system. That system will be required to manage claims for power according to the rules and understandings about how power expectations are effectually institutionalized. When the constitutive process is effectively established and maintained, the key outcome of this process reflects the decision making process for managing the public order. Specifically, what is meant is all the value and institutional processes other than power. This can take place in some ways locally, regionally, and internationally.

SPECIFIC RESEARCH DESIGN FOR ADVANCED INQUIRY ABOUT LAW The final column on the table above provides us with an abbreviated but simple research design that assumes some appreciation of issues such as social process, power process, constitutive process, contextual mapping, techniques and markers of mapping, scholastic orientation to mapping, as a way of getting at the critical problems in both public order and human rights. Essentially, we start out with the simple notion that any legal problem, prospective legal problem, or prospective policy problem, emerges from a social context. It helps to be able to have an economic and effective way of marking the relevant context to understand the problem or clusters of problems generated for decision-making purposes. From the point of view of professional scholarship (such as law), these problems or events will emerge as claims, and the claims will target the specialized features of decision making in society. In human rights and national security, the claims will often represent the conflict between the fundamental values upon which the society is founded and the possibility that policy and law in practice deviate in substantial degree from those value assumptions. That is the problem (or cluster of problems).

In order to solve this as a scholarly endeavor, the student must now engage in five discrete although partly interrelated intellectual tasks which are thought to be critical to any defensible problem-solving exercise. These are the tasks of normative or goal clarification. (We call this ‘normative thinking’). The next task describes the past trends in decision. This involves ‘trend’ or ‘historic’ thinking. That task examines the conditioning factors that influence the trend or pattern of historic thinking. (This focus is sometimes called factor analysis; but it is a form of thinking about causes and consequences, and it is therefore a form of ‘scientific’ thinking.) Next, as intervention or recommended intervention will impact upon the future, the scholar must evaluate past trends in terms of possible future probabilities. This task is a distinctive intellectual form of thinking sometimes called developmental thinking or predictive thinking or thinking in terms of ‘futuristics.’ Finally, the scholar must view the probable future in terms of the fundamental value commitments of the society. In this task, the scholar will be confronted with the ‘creative’ component of thinking: imagining the desired future outcome and creatively developing the strategic and tactical ways to realize it.

The following use of the mapping technique permits us to locate issues, problems, outcomes, and consequences in a systematic way that allows us to organize scientifically the study of law and its changing character in the light of experience and development.

MAPPING AND CONTEXTUALIZING DISTINCTIVE AND SPECIALIZED VALUE INSTITUTIONAL PROBLEMS AND THEIR RELATIONSHIP TO THE PROBLEMS OF POWER, CONSTITUTED AUTHORITY, AND THE PUBLIC ORDER

USING PHASE ANALYSIS TO OUTLINE CRITICAL AND SPECIALIZED ASPECTS OF CONTEXT One may use phase analysis to outline critical and specialized aspects of context. This method organizes topics by value. Additionally, one may use phase analysis to outline any phase of the community process. The illustration below relates to protected features of different value processes:

Value = Respect [replace with any value, and continue to consider the same topics below]:

 Participation

 Perspectives

 Situations

 Bases

 Strategies

 Outcomes

One may also use such analysis to identify outcomes of context according to specific value-institutional interaction. See Table 6, below. OUTCOMES OF CONTEXT ACCORDING TO SPECIFIC VALUE-INSTITUTIONAL INTERACTION Most important outcomes of social process relate to the conflicts about power. When power is organized by clear understandings regarding the allocation of Claims & Demands power competences, the claims about power become constitutionalized. First, one must understand the context of power.... Who participates Participants effectively in the power Perspectives process? Power Players & Actors Related to features of the Participants! constitutive process. Claims... Analyze using phase analysis.... Related to features of public order.

Table 6: Identification of context-outcomes by distinct value-institutional interaction.

AUTHORITATIVE AND CONTROLLING DECISION MAKING The outcomes of the power process may lead to anarchy and protracted conflict. The outcomes may also reflect the stabilization of expectations about the protection and allocation of power. We call the stabilization of expectations the constitutive process because it tells us how practically power is actually constituted in a given body politic. This practical constitution of power may eventually evolve into an unwritten or written constitutional system. That system will be required to manage claims for power according to the rules and understandings about how power expectations are effectually institutionalized. When the constitutive process is effectively established and maintained, the key outcome of this process reflects the decision-making process for managing the public order. Specifically, I mean all the value and institutional processes other than power. This can take place in some ways locally, regionally, and internationally. See Table 7, below. METHODS OR PROCESSES OF AUTHORITATIVE DECISION MAKING

Participants on Constitutive Process any Level Public Order Regional Constitutive Process Community Public Order major outlines Constitutive Process... specific authority functions (i.e., intelligence) Participants Perspectives (i.e., power. respect, enlightenment, wealth, well-being, skill, rectitude, Agreements affection) (organize by phase & value) Situations Bases Strategies Outcomes Participants Perspectives (i.e., power. respect, enlightenment, wealth, well-being, skill, rectitude, Deprivations affection) (organize by phase & value) Situations National Bases Community Strategies Public Order... Outcomes Constitution (use phase analysis) Wealth Association Interaction with Others Private Allocations (use phase analysis) Association for Values Other Than Wealth (use phase analysis) Allocation Resources Planning & Development Use or Enjoyment Labor Relations (use phase analysis) Family Law (use phase analysis)

Table 7: Identification of the methods or processes of authoritative decision-making.

THE PROCESS OF CLAIMING IN LAW

I shall later refer to Holmes’ invention of the bad man—the archetypical demander of values. There I shall suggest that the bad man rests on a crude psychological assumption that the assertion of the demand for a value is an exercise of self-interest unrestrained by a sense of broader community commitments to values and morality. I shall suggest that the bad man may be transformed into a modern individual (without regard to gender) and in fact emerges as a quintessentially complex, modern person. That person comes with the dynamics of personality. Those dynamics internally represent complex tensions within the individual. These tensions and complexities include the evolution of inclusive or exclusive identities about who the person is. Identities themselves provoke profound demands because they are often intrinsic to the individual’s sense of worth, self-respect, and community position.

The same person comes to life with an ego system capable of making claims for values covering a wide range of already indicated matters. Without claiming, the production and distribution of values may be socially dysfunctional or even an illustration of a grotesque political pathology. The individual also comes to identity, demand with a set of evolving and undulating expectations about what is culturally appropriate, and what is culturally mandated. Identity and demand are therefore mediated by the notion of expectation, which comes close to the traditional idea of ‘having an obligation’. It is, of course, broader.

A claim relating to either constitutive or public order processes is effectually the trigger for problems that emerge from social process, be it local, regional or global. The claims will often have to be processed according to specialized components of authoritative and controlling decision making. This could involve mediation, arbitration, conciliation, good offices, negotiation, judicial settlement, and many other forms of specialized decision making. Some forms of decision making are even specialized to suit particular value processes.

I. The Claimants in Social Process Problem: the Source of Problems and Problem Solving

1. Events in Social Process

2. Claims

3. Specialized Features of Constitutive Process

4. Disparities between Decision and Community Policies

II. Clarification of Community Policies

III. Past Trends in Decision (organize by types of claims)

IV. Conditioning Factors and Future Probabilities

V. Appraisal of Past Trends and Future Probabilities

VI. Recommended Alternatives

SUMMARY REGARDING THE ORIENTATION TO CONFIGURATIVE JURISPRUDENCE AND ITS TECHNIQUES OF CONTEXTUAL MAPPING IN JURISPRUDENTIAL INQUIRY

In this chapter, I have provided a preliminary outline of the orientation specific to the jurisprudence of McDougal and Lasswell, an outline underscoring the structure of their approach and introducing the distinctive nomenclature characteristic of this approach. Given the complexity of this outline and the development of the jurisprudence as an inquiring system, it would be useful, at this point, to provide the reader with a short summary of the highlights and salient concepts just covered, which points must be kept in mind as we continue the exploration of the jurisprudential salience of this approach. A brief synthesizing review would also emphasize the critical significance of the empirical and analytical guidance and specificity that the concept of mapping contributes to jurisprudential inquiry.

The central concept that the reader must always consider is the establishment of an appropriate vantage point. There is complexity in this intellectual exercise; but the configurative approach accounts for the complexity by using maps and markers, and by stressing the quality of an observer’s perspective for establishing an appropriate vantage point for inquiry about law. Thus, the reader must assess the question—what exactly is the appropriate focus for the observer in terms of inquiring about law?

The central focus of conceptual mapping is deliberately directed at (and based upon the idea of) law as a process of authoritative and controlling decision making. The deliberate focus on law as decision is qualified by the fact that law is a response to claims, and that both decision and claiming are outcomes of the general community context. Thus, the focus of inquiry is on observing decision in the context of claims, which emerge from the context of the general community process. A deliberate focus on claims means that we are talking specifically about claims implicating values, which are those goods and honors that are desired by claimants.

A specific inquiry relating to particular problems may then be explored by assuming an adequate understanding of the processes that constitute the community context, the specific context of claiming, and the specific context of decision. Such an inquiry proceeds with the use of five interrelated intellectual tasks (sometimes described as the elements of ‘policy’ or configurative thinking), which include: the clarification and postulation of goals and values, the exploration of the conditions of decision, the analysis of the relevant trends in decision, the prediction of outcomes without intervention, and the creation of alternatives that may guide intervention in securing decisions with the closest approximation to the postulated goal value of human dignity.

In the deployment of the five intellectual tasks, the inquirer must keep in mind the complexity of the process of inquiry itself. To clarify this process, it is important to locate both claim and decision in a relevant context, since inquiry suffers without the guidance of contextual mapping, and without the guidance of critical explanatory and flexible markers for giving coherence to the multiple levels of contextual relevance. Thus, one of the most important contributions to inquiry of the configurative approach is its succient description of any social process at any level in a cross-cultural world: ‘social process’ means ‘human beings pursuing values through institutions based on resources.’ This elegant simplification of context is spelled out using markers of acute analytical insight and dexterity. Thus, the map of social process is a map that the inquirer must keep as a general guide for orderly inquiry.

From mapping the social process, one can identify one of the most important aspects of the social process context—namely, the outcomes that we describe as the ‘process of effective power.’ Therefore, the second map that the inquirer must keep in mind for guiding inquiry is the map of the effective power process. Because power is exercised through decision, decision making according to the mandate of effective power is one of the most important outcomes of social process. The third map that the inquirer must keep in mind, and which is a distinctive contribution to the theory about law, is the process of authoritative and controlling decision making, which I have referred to as the ‘constitutive process.’ Since assignments of decision-making competence (about the fundamental decisions in the community) are made according to community understandings about the appropriateness of the allocation of such competences over decision making, the constitutive process reflects the extent to which expectations about power are generated in a community. The significant contribution here is that, using the appropriate markers, one can radically contextualize the conjunction of authority and control in the social process and more appropriately distinguish it from the exercise of power without authority.

The maps continue to develop contexts for inquiry, in terms of the development of value institutional processes other than power. These processes, cumulatively, comprise decisions that shape the public order. These questions upon which those decisions are based pose a normative challenge: what kind of public order do we promote and defend? What kind of public order do we resist and depreciate? That is the challenge that configurative jurisprudence brings to the discourse of theorizing about law. Therefore, in the chapters that follow, I broaden the discussion in terms of the core conceptual and normative issues, as well as the placement of these issues in an appropriate historic and contemporary context of legal theory.