Peter Emmerson

  2.3.1 Case Study: the law as an important instance of the emergence of relative uncertainty.

As democratising processes have emerged and extended, gradually displacing authoritarian practices associated with absolute rule, there has been a concomitant growth in opportunity for personal autonomy, often called individualism, as more and more people recognise the tactical benefits of self-control as a useful technique for living with business-oriented figurations. Elias shows how the interrelated decline in the level of violence is correlated with the formation of nation states where the more centralized governance involved is reliant on increasing levels of taxation, which in turn gives more and more influence and responsibility to those figurations employed in the burgeoning bureaucratic processes. However, legal functions are well worth a specific mention.

The proliferation of the influence of lawyers is impressive. The specification of guilt and punishment is clearly very important in the less authoritarian process of management by consent, albeit backed by the potential for violent suppression where required. The law, unlike many bureaucratic processes, has to be seen to work otherwise people will not accept its legitimacy. To achieve this it operates on what is basically a scientific programme of research, where the factual evidence is given priority, thereby pushing the influence of the theologians further to the margins, in favour of a heavier dependence on the more secular truths of metaphysicians. The problem is that the models developed by the logicians, in particular the mathematicians, have only limited application to issues of guilt or innocence. Therefore, the business-oriented figurations and their lawyers are heavily reliant on the philosophers for their truths. The problem is that the ideals produced by the philosophers will be of only limited value because their models relate to the human mind and have no real jurisdiction over the facts. Thus, the truth foundations of the legal processes are shaky because, as with science, they are mostly dependent on factual evidence which is uncertain.

Such a contingent experience is correlated with the conditions in which legal figurations operate, where higher levels of social interdependency prevail and where the authority of the law is best employed with consent. That consent is only guaranteed by factual evidence which because it is unpredictable, broadcasts to the world the existence of uncertainty! Hence, in life threatening judgements, established figurations place juries at the hub of their legal processes because they recognise the level of doubt in every decision: the use of juries has a long history in dispute resolution in Britain, possibly for this reason. As legal processes are so closely attached to the facts, and thus distanced from the truths that allow authoritarianism, it should not be surprising to find that in lawyers we have some of most self-controlled, relatively detached, scientific professionals in the business-oriented world, who achieve their aims through negotiation. Ultimately the legal network is about making decisions on life and death. In the past hanging judges such as Jeffries were unimpeachable, feeling no need to doubt their right to make decisions. Now judges act interdependently by managing the process of judgement involving figurations of people who provide the evidence for a ballot of relatively detached jurors – Why? – because there is uncertainty, knowledge that extends as far back as the beginning of the 13^th century when Magna Carta was agreed. Such decisions are made in relation to a continuum between at one end ‘certainty’, with ‘uncertainty’ at the other. It is here where one of the most significant indicators of civilising and democratising processes is evident; it is here where the nature of uncertainty is very salient and where we feel most uncomfortable; it is here where the heat of the fight is most controlled, where excitement is turned down in favour of sobriety, where the relative detachment of a lawyer who is defending the indefensible is clearly visible. Why? – because it is common knowledge that everything is uncertain.

In connection with this, I recently heard Lord Justice Bingham say that the law is based on certain absolutes, hence my use of ‘certainty’ and ‘uncertainty’ in the above rather than my preferred relative uncertainty. From my perspective I would suggest he is wrong – the law is founded on a belief in absolutes, a conviction that ideals can be useful as the means to define innocence or guilt. The facts of the matter are otherwise, for I believe that there is no absolute method of deciding these issues in social networks where the balance of influence is less favourable to established figurations, because their potential to exercise their authority by imposing their truths is constrained. As a result, in more democratic, less authoritarian social webs, we judge guilt or otherwise by a show of hands by one’s peers, especially in more serious cases. These are the social networks where certainty has been largely driven out, and where negotiation takes place on the authority of material evidence rather than ideals. The growth in the significance of reality-oriented legal processes has evolved alongside the rise in influence of democratising, business-oriented figurations. There has been a concomitant decline in interest in the views of ecclesiastical and philosophical absolute truth finders. This is I would argue, suggestive of a negative correlation between the gradual emergence of business-oriented figurations (which includes scientists) and authoritarianism.