199 LAW IN TIME: LEGAL THEORY & LEGAL HISTORY Paulo Barrozo1 A. The Problem Over a long period, simple societies achieved social stability as social stasis through normative inertia. 2 Conversely, high-complexity3 societies achieve – when they do – social stability as constant functional adaptation and axiological responsiveness through small quotidian and large occasional normative changes. 4 1 Boston College Law School. E-mail: barrozo@bc.edu. 2 Note two points here. First, the obvious distinction between stability and stasis. The achievement of stability by high-complexity societies was only possible by doing away with stasis. Relatedly, social stability and instability and normative inertial and change are spectrum phenomena. Whenever they are mentioned, the qualifications “relative” or “sufficient” are implicit. Second, and implicit in the causal structure of the phrase footnoted here, society is norms through and through. 3 If we translate “elements” into “systems”, systems theory is unusually helpful in identifying the tipping-point phenomenon in question: “evolution […] does not halt the growth of systems at the point from which it is no longer possible to connect every element with every other element at any time […]. The key distinction is now between systems with complete interconnection between elements and those with only selective interconnection; and the real systems of the evolved world are obviously to be found on the latter side of the distinction. In brief, the form of complexity is hence the necessity to sustain an only selective connection between elements, in other words, the selective organization of the system’s autopoiesis.” (LUHMANN, 2012, p. 79-80). The approach to complexity that remains largely implicit in this Article is otherwise markedly distinct from systems theory analysis of complexity in general and law’s complexity, as an “emergent” and “self-organizing” system, in particular. In addition to Luhmann’s work, see the essays collected in J. Murray, T. Webb and S. Wheatley, Complexity Theory and Law: Mapping an Emergent Jurisprudence (2019). 4 This question may be asked from within normative orders. In a classical example, “how is it possible for there to exist over time a just and stable society of free and equal citizens who still remain profoundly divided by reasonable religious, philosophical, and moral doctrines?” John Rawls, Political Liberalism (1999). For an incisive argument about how “reasonability” anchors the central theses of Rawls’ novel liberal approach to his question see David RasmussenDefending reasonability: the centrality of reasonability in the later Rawls (2004). In the conceptual framework presented below, legal liberalism is an enclosed-diachronic type of legal thought. Note also the discussion at the end of the problem of “reflection versus commitment.” On the responsiveness of legal orders, see Vlad Perju, Cosmopolitanism and Constitutional Self-Government (2010). DOI: https://doi.org/10.29327/529171.1-12
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