What is Law? From Governance to Government and back

In this paper a (synthetic) empirical approach to studying law is advocated, particularly in projects at the level of abstraction suggested by a title like “What is Law?”. Theoretical abstractions like “law”, “governance”, “social contract”, “freedom”, “the constitutional state”, “justice”, “morals”, “conscience”, “legal decision making” etc. should not be the starting point of such research. Instead, if necessary, these abstractions should emerge from a bottom up empirical approach which starts with the observation of the most concrete data possible in the domain of interest. Abstraction without extension, inadequate validation and normativity are three flaws of jurisprudence that can be avoided by this. To illustrate the viability of this approach, starting with the emergence of elementary particles 15 billion years ago, the evolution of data, data exchange, material rules, natural values, informal and formal norms and eventually legal rules is described. Governance turns out to be an emergent abstraction that precedes and succeeds law and government. These abstractions were actually used in earlier research to design a model of legal knowledge and legal decision making which was successfully used to build and validate legal knowledge based systems. Interestingly enough, as a consequence of this, these systems exhibited rather human characteristics, like subjectivity, nuance, indecisiveness, etc.

The working paper 'What is Law? From Governance to Government and back' can be found here.