203 Law in Time: Legal Theory & Legal History legal and constitutional revolutions, therefore, are the paradigmatic cases of a collective learning that is normative.” (BRUNKHORST, 2014). In this model, legal revolutions “are not the result of gradual or incremental change that leads to the improvement and growth of the adaptive capacity of the society, but of rapid, catalytic or revolutionary change that leads to a new constitutional order.” Once in place, the new order operates both as “path-opening and path-directing because it constrains social selection normatively.” (BRUNKHORST, 2014). 8 This aspect of a groundbreaking theory of legal evolution misses three important elements: one micro, another macro, and third related to the way the micro embodies the macro. The micro element is agency, or more specifically, the precise way in which legal actors, in their daily routines, constrain “social selection normatively.” For if that selection is not operationalized by institutionally embedded or institutionally interfacing legal actors as they go about their businesses, how else is it done? Brunkhorst correctly identifies the process whereby law, as explained above, institutionalizes normativity, both routinely and during transformative or revolutionary moments. In the case of evolutionary leaps, a new constitutional order codifies progressive or regressive normative learning. However, normative learning occurs also at a higher level of abstraction, one that operates as a precondition of plausibility and intelligibility for the learning at the level of institutionalization. This macro, highly abstracted level of normativity I name paradigms of law . Paradigms are abstract enough to accommodate a range of constitutional designs under them. At the same time, paradigms of law have an institutional vocation: they are abstractions of eminently institutionalizable normativity. Paradigms of law possess vast yet limited affordability. In other words, paradigms of law are carved at the highest levels of enclosing-diachronic legal thought, capable still of decantation all the way down to afford from new constitutional codifications to being operationalized by legal actors as they produce, interpret, enforce, and make claims in law. This is the most important way in which the micro embodies the macro in law. 8 Emphasis in the original excluded.
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