The Good, the Law, and the Municipal Ideal - An Integrative Developmental View of The Case of the Speluncean Explorers and the Crisis of Meaning in Western Jurisprudence

Sean S. Yang, University of British Columbia

Abstract

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about language, and seeing that they were, in fact, creating what they saw. The "reality" they found was that money, politics, tastes, ego, and identity were shaping reality, and they "realized" that laws were constructed and capricious things, just like them. What did this mean?

What happened? How could law and morality, and our understanding of them, change so radically, so rapidly? It is easy to forget that human beings had no formal concept of law for most of our history: we designate the time before law, the vast majority of our time on Earth, as "pre-historic." What changed? The answer: we did, as did our environment, as did our means of production. Law is a product of the way we view the world, the way we identify with each other, and the way we respond to our technological, economic, and productive capacities. Drawing from biogeography, developmental psychology, legal history, and using Lon Fuller's famous "legal fiction" as an illustrative device, I present an integrated way of understanding what law is, how it came to be, and where it might be going, against the backdrop of large-scale historical developments in human understanding and techno-economic structures.

Part I of the article introduces Fuller's The Case of the Speluncean Explorers and its philosophical themes. Parts II and III describe the evolution of social structures and modes of production, and the correlating developments in consciousness throughout human history. Part IV then integrates our understanding of legal history with this developmental perspective, and Part V elaborates on the diversity of our current approaches to jurisprudence, presenting a coherent system through which these legal perspectives may be understood. Part VI then applies this "meta-perspective" in the form of a judgment to The Case of the Speluncean Explorers, demonstrating how an integrative developmental view enables us to make more flexible, rational, and ultimately, just decisions in law.