Fila Sophia

applied philosophy, deep democracy, sustainability / by A.R.Teleb

Google Palestine & Sociological Jurisprudence

[First appeared May 13, 2013 on Fair Observer. Start with comments there.]

Google’s decision Friday May 3rd to change google.ps’s tagline to “Palestine” implicitly recognized it as a state. It also encapsulated a jurisprudence (philosophy of law) that harkens back to a world-wide quasi-revolution in law from 100 years ago, called by many at the time the solution to “a crisis of democracy.” Today, that approach may herald a new period of legal transition as recent technology and new economic realities collide with old laws and rights. Larry Page’s decision, after noting international practice and consulting with international social and economic organizations (UN, ICANN, ISO) illustrates what 100 years ago was termed “sociological jurisprudence.” It is worth a closer look because of its attractiveness to the 21st Century mind.

At the turn of the 20th Century a debate begun in the 1870s raged in legal circles in the US, Europe, and European Colonies regarding the relationship of law to society. New social realities and economic organizations forced governments (especially in rural American States) to legislate to protect farmers, consumers, and workers, often clashing with older notions of rights and freedoms. In the United States this collided the Progressive Era into a Supreme Court with 19th Century ideas in the famous and infamous Lochner v. NY case. A law limiting baker work hours was struck down as an unconstitutional infringement of “liberty of contract” in a 5-4 decision.

Justice Oliver Wendell Holmes Jr., dissenter in the case, and Roscoe Pound (Dean of Harvard Law School) expressed views around the time that were termed “sociological jurisprudence” by others. Edouard Lambert in France and Eugen Ehrlich in Austria were their European analogs, and it was likely Ehrlich that coined the name “sociological jurisprudence.” It is his approach, it seems, that Larry Page adopted last week.

In Holmes’s view, law had always included a “social element” often obliging individuals to conform to group obligations even without “fault,” so he expressed in The Common Law. He traced the social character of law through Roman, Germanic, English and American law. For him “new” social and economic legislation begun with the 1870s Granger Laws was hardly novel in the larger view of history.

Dean Pound, on the other hand, historicized not law as legislation but “fundamental rights” themselves. He pointed out that rights and freedoms stem not from a timeless source but from the outlook and needs of each era. With respect to the 18th and 19th Centuries in the West, freedom “to do what one will with one’s property” reflected the culmination of the Ages of Discovery and Colonization. Society sought to encourage exploration, pioneering, and domestication through individual initiative that it rewarded and protected. Moreover, Pound remarked, law changed in character from a closed, formal system, during periods of socio-economic stability, into an open, reflective one during periods of rapid change. During such epochs, law opens up to society and to philosophy, to receive new values and goals. These, in turn, generate the rights and legal principles of the following era.

On the Continent, Eugen Ehrlich took sociological jurisprudence a step further in the direction of political theory. In his view, that turned Hobbes on his head, law was not a product of the State or a Sovereign but rather of a society that pre-dated them both and is logically prior to them. He cited examples of non-states throughout history where courts and judicial institutions exercised important roles. Those “social laws” were not always written in the form of statutes or cases but were generally followed and enforced.

This is Larry Page’s view. Making the decision for Google, he did not look at written international law or law decreed or enforced by States. He looked at what social institutions, like the UN and ICANN had done regarding Palestine. Since they and other international actors, including states, had treated it as a state for all intents and purposes, Google would follow suit.

Ehrlich’s and Page’s approach is attractive to 21st Century thought for several reasons. First, it puts all social organizations on an equal footing. This smacks of “net-neutrality” and open access to information and publicity. Second, it privileges organizational and social practice over the use of force. After all, the one missing element in Palestinian statehood is territorial integrity, or ability to secure its borders. If institutions treat Palestine as a country in all other respects, then that should settle it. Third, it puts actual social practice over law in theory or “law in the books.” Yes, both international law and, indeed, the UN Charter call for “territorial integrity” but the fact is a people called the Palestinians elects a government, polices itself, and sends and receives diplomats. In the sociological jurisprudence sense, Palestine is a state.

Lastly, sociological jurisprudence à la Larry Page, feels radically democratic. It is not the use of deadly military force nor the decisions of political elites that determine what law-in-practice is but rather people’s day-to-day values-as-lived, even when enforced only by habit, social pressure, or mutual agreement. Perhaps Page has given law professors and political scientists something to write about. He may have also just sparked another revolution in jurisprudence.

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