2.7 - Pusic, Eugen - Law as Exclusion and Under Inclusion (en)

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Law as Exclusion and under Inclusion

Law as Exclusion and under Inclusion

by Eugen Pusi

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PRAXIS International (PRAXIS International), issue: 2 / 1988, pages: 207-221, on www.ceeol.com.
http://www.ceeol.com/http://www.ceeol.com/http://www.ceeol.com/http://www.dibido.eu/bookdetails.aspx?bookID=1a2cd39c-1a20-48e9-a565-08c4dc602096http://www.ceeol.com/


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LAW AS EXCLUSION ANDUNDER INCLUSIONEugen Pusic

It was an article by Ernst Kern (1957) that drew my attention to an intriguingdevelopment in public law from the 19th to the 20th century. Public law developedin the 19th century to keep the "night-watchman" state in its place. It sought toprevent the state from interfering in the private sphere of the citizen beyond thelimits of its entitlement by the general will as expressed in law. 1 Thisdevelopment, certainly, was not completed at the turn of the century and continuesto the present. Yet, there are changes. Changes of emphasis at first, but moreand more visible changes in orientation. Increasing social density in industrializedurban societies gives rise to interests that demand new society-wide activities ineducation, public health, the urban infrastructure, utilities, and social security andother provisions for the general welfare. These activities, even when they startas private enterprise, soon become publicly regulated where they are not organizedand operated by the state. These are enterprises too important to be left to theentrepreneurs. The latecomers on the industrial scene then have less and less choice.The technological and organizational base of these activities in the meantime hasbecome so demanding in resources that nothing short of the public treasury candare to enter the field with any chance of delivering the goods. Here as there thestate machinery starts expanding in an essentially new direction. Beside the classicaldepartments of the executive power representing the various aspects of the stateas-power - armed forces, internal security, foreign affairs, justice, and finance- appear new branches of government concerned with the regulation and also withthe production of goods and services to satisfy the interests of an urban populationin an industrial economy. 2The relation of the citizen to this new conception of the state is different. Peopleare not interested to be protected from the goods and services offered by the state.Quite the opposite, they are anxious not to be left out, not to be discriminatedagainst. And public law had to adapt itself to this new constellation of interests,

namely to guarantee the just and equal participation of everyone in the benefitsof the Welfare State or the State of Public Services, and to build a new body ofregulation starting from the assumption that everybody is included, by politicaldecision, in the circle of legitimate recipients of these benefits.Does this transformation from a negative, defensive, preventive approach toa positive, inclusive attitude point to some more general trend in the development

of law? Anthropologically, normative orders seem to emerge in response to thepervasive uncertainties of human existence in society no less than in the naturalenvironment. The implementation of these orders, beyond a more or less formalizedemotional reaction of the community, has to solve, in principle and from thebeginning, two problems: to establish socially acceptable criteria for the satisfactionPraxis International 8:2 July 1988 02060-8448 $2.00


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208 Praxis Internationalof interests, and to reduce the demands that the realization of normative desideratamakes upon the resources of the community. In other words, a normative systemas regulation poses a political problem of allocation of chances of interest satisfaction; the same system considered as information has to face the economic problemof reducing complexity.3The method of exclusion, fundamental in the development of legal institutions,seems to provide an answer to both problems. Exclusion means, first, the reductionof the normative community to the group of primary interaction - extended family,totem, clan or other - and its limitation in size so that beyond these limits theworld is normatively irrelevant. Exclusion continues as a reduction in normativestatus for whole groups of the population, e.g. slaves or serfs, that are not whollynon-existent for the normative order, they are only to an extent capitis minuti,less-than-normal persons in the normative community. Gradually, the idea of exclusion brings forth an institutional invention that is going to prove extremely versatileand adaptable to the most diverse circumstances, the institutions of "entitlementand-exclusion. "Institutions like the family, property, organized religion, even the state to a certainextent are all constructed on the same pattern: The normative order, tendingincreasingly towards the form of law, - developing specific institutional machineryfor its implementation and enforcement4 - confers entitlements upon some personsaffirming their right to satisfy certain interests in relation to certain objects ofregulation, at the beginning at least, almost without any restriction, while allother possibly interested parties are generally excluded from satisfying theirinterests towards the same objects, except under conditions specified by the holderof the entitlement. The pater familias in the traditional Roman order has theius vitae QC necis over all members of his family, where his children (liberi!)are not different from his slaves in that respect. Property, again in the Romanlegal definition, is the absolute power of a person over a thing. In organized religiona clergy develops with a monopoly over the dispensation of "means of salvation'"(Heilsguter - Max Weber). In the political order the emergence of the state meansthat some people are entitled to speak in the name of the state; most importantly,to wield authority over the state's monopoly over the means of legitimate violence.All others who have interests in the family, in relation to things owned by somebodyelse, in religious sacraments, in the political allocation of chances of interestsatisfaction, are excluded from satisfying these interests other than under conditionsleft in the discretion of the title holders. Let it be stressed right away that entitlement in these institutions does not mean simply that the normative order is preparedto tolerate the unrestricted exercise of the will of the titleholders over the objectsof regulation. It means much more: that the normative order with its full authoritystands behind this will and is prepared to back it by the institutional apparatusat its disposal. It should be remembered that this apparatus is just beginning totake form, whereas since time immemorial the authority of the normative orderhas been expressed only in the communis opinio, and the moral support providedby the community to the person threatened in his socially accepted and normativelyapproved position. This support, however, longissimi temporis praescriptione wasno empty declaration; it tended to have a greater practical efficacy than was tobe achieved by institutional enforcement for centuries to come. It is necessary to

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Praxis International 209remember this for we shall see that the normative order can function also in aless defined way, by toleration, by a mere declaration of non-intervention, andthat for this reason, it should be distinguished from the more precisely formulatedorder of entitlement.The normative institutions constructed on the dialectics of entitlement andexclusion owe their historical success to a number of practical advantages thatbecame manifest only over time and in a number of developmental variants: Theyseemed to offer, each in their way, acceptable criteria for the allocation of chances

of interest satisfaction. In the family it was the correspondence of authority andresponibility that justified the paramount position of the pater familias. He wasresponsible for the defense and the support of all family members - no mean taskat any time - and should therefore rule them without opposition. Added to thiswas, probably, the practical consideration of the father's greater strength comparedto his minor children. In the case of property it was the presumed generality ofthe position of the titleholder. Anyone can become the owner of property, andtherefore all are interested in having the position acknowledged and protected withthe same practical addition as in the case of the family, that individual propertywas established as a rule via the appropriation of communal property, land, bysuperior physical force, and so the owner had already proved his ability to asserthis interests. In the case of religion it was the deep-seated awe of the supernaturalthat helped to establish the entitlement of the clergy to a monopoly over the mediatingrole with this dangerous mystical realm. In the political field the proof of the statewas its ability to establish an aCt'..lal monopoly over the instruments of enforcement.The' 'ought" here was most clearly a consequence of the "is".In all institutions of entitlement-and-exclusion, with the possible exception ofthe political system, it was an important implication of their advantage as meansof interest allocation that they offered strong motivation for all excluded to contributevaluable goods and services in order to achieve the position of title holder overthe objects of their interest. It was the possibility to become head of family, ownerof property, clergyman in a church, that made many people work, give, undertakeresponsibilities, display talents, engage energies who without it would seek perhapssocially less desirable channels or simply fall prey to enthropy. It is not that theattraction of positions of power in the political system are less motivationallyeffective, but the forces of inertia and internal hardening in the large system ofthe state are so great that, traditionally, the visible chances of rotation in officeare insignificant. We shall return to this problem.The institutions of entitlement-and-exclusion appeared also as a satisfactory solution to the other fundamental problem faced by a normative order: the economy ofinformation. They presentedminimal demands upon the resources of the communityfor the implementation of its normative order. From the beginning entitlementmeant also a responsibility for the titleholder to defend his position by his properforces, the support of the community being initially primarily moral. Indeed, inthe overwhelming majority of practical situations the titleholders were able tolive up to their responsibility and appeal only exceptionally for protection to societyand its institutional order. As a rule, the persuasive force of the normative entitlement was sufficient to make the position of the title holder prevail over that ofcompeting interests. And when this was not the case, when an open conflict of


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210 Praxis Internationalinterest required the intervention of the community, this intervention was madeconsiderably easier by the procedural method of starting by identifying the originaltitle holder. An owner, say, was letting his property to another person who thensublet it to a third, who sold it, clandestinely, to a fourth, who lost it to be foundby a fifth, only to be forcibly appropriated by a sixth. However involved the path,however complicated the ensuing situations, it was comparatively easy to unravelthe yarn by, first, identifying the original titleholder and proceeding from theseto make sure at each step who had the title and who was infringing, by his behavior,a rule of exclusion. The economy of this arrangement worked even beyond situationsof conflict, having, in a sense, set up caretakers for society qver socially valuableresources. The titleholder was always ready to invest his own efforts and resourcesto protect the objects of regulation to which he held a title. 5

Third, the institutions of entitlement-and-exclusion developed considerablecapacities to adapt, to respond in an elastic fashion to changed circumstances, tonew balances and relationships of power, to situations without precedents. Thetitleholder could realize his advantages only by entering commerce, getting intocontacts with other people who were interested in the objects over which he heldtitle and prepared to offer value in order to be allowed to satisfy SOlne of theirinterests. A family head without a family, an owner without possible partnersinterested in his property or products, a clergy without followers, a monarch withoutsubjects are, in a sense, contradictions in terrns. Commerce, however, means thatthe titleholder is prepared to abandon at least some of his prerogatives and transferthem to others, for a consideration. In this process secondary entitlements andsecondary exclusions are established, differentiating the system, making it moreand more complex. As in all systemic differentiation this process has a limit. Theoriginal principle has a limited capacity to integrate the differentiating entitlementsand exclusions. Beyond this limit the principle itself becomes meaningless. Thegradual transfer of responsibilities for the physical defense and support, for thesocialization and up-bringing of children to institutions of society, to the state,the educational system, associational structures of all kinds has so effectivelyhollowed out the position of the pater familias, removed any justification for theone-sided entitlement of the family head and the exclusion of other family-membersthat, without any major upheaval, the character of the family is undergoing radicalchange. Ownership which is diluted by individual contractual obligations, hedgedin by limitations in the public interest, divested from some of its essential prerogatives, as by separating ownership from control in the corporation, is apparentlyalso on its way out as the "absolute power of a person over a thing". It is nolonger applicable as a general and automatic criterion in the allocation of chancesof interest satisfaction. Likewise protestant movements, in a wide etymologicalsense, have tended to reduce the difference between clergy and layity, to proclaimthe free access of all to means of salvation without obligatory mediation by a groupof title holders.The political system deserves here particular attention. we consider, forinstance, the feudal political order, we observe the same process of differentiation.The link between sovereign and liege can be repeated down the line, new levelscan be added, new members coopted into the system along the hierarchy. Whenthe political systeln, however, incorporated as the state, had to function in a society


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Praxis International 211of increasing complexity with more exacting demands for regulation, differentiatedfeudal pluralism Gust as inefficient as the differentiated system of the Romanrepublic) became dysfunctional and unable to arbitrate the more and more extremeand uncompromising conflicts of political interests. In both instances considerationsof efficiency eventually outweighed the advantages of elasticity in differentiation,and both systems hardened into absolutist monarchies. In both instances also thegain in efficiency was purchased at the price of a dangerous loss of elasticity.Absolutist monarchies represent such concentrations of sheer power that theirgravitational pull inhibits the differentiation of the system. They can be brokenbut not easily bent.At this point, particularly in the evolutionist absolutist monarchies of early modernEurope, the development of an institution belonging to the field of law (namelythe monarch), where the tit leholder is entitled by God's grace while his subjectsare excluded from any share of his sovereign powers, meets the movement of socialevolution as such. The connecting link are ' 'interests." Failure of the monarchicinstitution to adapt to the emerging interests of the new strata of urban populationcreates explosive general social pressures leading to the revolutions of the 18thand 19th centuries. These revolutions are not primarily breaks in the continuityof a normative order, though they are certainly that as well, but general conflictsof interests transforming the social macro-system. The question as to where a moreadaptable political system than the absolutist monarchies would have led is aninteresting subject of speculatiofl, especially in view of the more recent analogousdevelopments in the sector of economic interests.The revolutions in society had consequences for the normative order. Theyproclaimed, as a matter of ideology and political decision, the principle of inclusion

of everybody and their political interests in the circle of legitimacy. Everybodyshould be free to pursue his or her political interests without any restrictions exceptthose inherent in the existence of a plurality of interests subjects to equal rightsand equal legitimacy. This was a political proclamation. The political principleof inclusion should not be confused with the normative institution of entitlement,though the language used might be indistinguishable. Entitlement means that anormative order supports a well-defined interest position, under explicitly formulatedconditions, with pre-determined institutional means. Inclusion, on the contrary,is a declaration of intent by the political system to grant to all present and possiblefuture bearers of a given interest the freedom to pursue this interest without beingrestrained by others or, for that matter, by the political system itself. Whileentitlement-and-exclusion mean nonnative regulation, the proclamation of inclusionis almost the opposite of regulation, the promise of freedom unchecked.This promise, however, cannot be honoured literally in the practical life of society.The new normative order facing the task of translating the principle of inclusioninto a system of norms and procedures has to solve a much more difficult problemthan that to which the traditional institutions of entitlement-and-exclusion werea creative and by and large adequate solution. More difficult on both dimensionson which a normative order is problematic: on the dimension of formulatingacceptable criteria for the allocation of chances of interest satisfaction, as wellas on the dimension of reducing the claims upon the resources of the communityto a minimum, of achieving maximal economy of information. It is more difficult


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212 Praxis Internationalto find acceptable criteria for the allocation of scarce resources under the assumptionof equality than it is by starting a priori from the assumption of inequality betweenthe minority of titleholders and the majority of those excluded. It is also moredifficult to formulate norms permitting the differentiation of almost each individualcase than covering the majority of cases by blanket exclusion; more difficult inthe sense of more expensive in terms of information.As soon as the task of constructing a new network of regulation, under theassumption of inclusion of all potential interest bearers into the circle of legitimacy,has to be faced practically, the old method of exclusion reemerges. The principleof equal and general participation of all in political power was organized institutionally by some form of representation, since direct decision-making by the peoplehad only limited applicability in dense and large societies. Representatives wereelected by equal and general vote. Here the exclusions, quite important in thebeginning, were reduced over time to exceptions justified by age or incapacity.As soon as, however, they were elected, they were entitled to forms of exercisingpower, making decisions in representative bodies, from which the quasi totalityof the population were excluded. The executive mechanism, vesting more concreteforms of power wielding - executive decision, command of the armed forces,legislative initiative, possible veto on legislation, etc. - in more restricted gremiaor even in individual officers elected at large or designated by the representativebodies, restricted the participation in the effective power of the state even further.Here not only citizens at large but also members of representative bodies wereexcluded.This gradual entitlement of minorities and exclusion of majorities made thepractical operation of the new system possible. But it required further, informationally costly arrangements in order not to obliterate the initial principle - inclusionof everybody - in its very implementation. These arrangements can be classifiedinto two groups: one organizational, the other normative. The first are variousways to control the state's machinery by the state's machinery: the separation ofpowers, checks and balances, supervision and possibility of appeal throughout thehierarchy of administration, judicial control, etc. The second is a system of legalrules binding all officers of the State, with the ultimate ideal of transforming' 'agovernment of men into a government of laws". It took some time to set up thenecessary institutional framework and a longer time to make it function. The resultsare still far from the desired standards and the whole process of institution-buildinggoes on. The essential consideration here is that during this time, the last twohundred years or so, no one has been able to come up with anything better, thoughsome tried hard to follow the same general principle of including everybody withinthe circle of legitimate interest bearers.The other institutions of entitlement-and-exclusion in the meantime followedtheir own path of differentiation towards the limit of the integrative capacity oftheir initial principle of construction. The political revolutions and subsequentinstitutionalization of a democratic political order had created a relative powervacuum. The place in society left empty by the grandees of the old regime wassoon filled by the industrial and financial barons of the new age. The principleof their power, however, was different. It was based on one of the traditionalinstitutions of entitlement-and-exclusion, i.e. private property. This institution,


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Praxis International 213perhaps the most elastic of its kind, had in the meantime differentiated througha more and more dense legal commerce, but could still be, and was, consideredby the proponents of democracy as a stable "fundamental right" that could beused as a material foundation on which to base the independence of a citizen fromthe centers of political power.6 Yet after the democratic revolutions the ownership of the means of production had become the nucleus for the crystallizationof new power centers. As these power centers got stronger, more prominent, andtheir power more concentrated, the analogy with the political domination in theold order became suggestive. And so did the idea of how to remedy the situation.Instead ofwaiting for the entitlement-and-exclusion structure of the private propertyof the means of production to be eroded by its own differentiation, it had to beeliminated by conscious revolutionary intervention. This new revolution wasconceived not only in analogy with the democratic political revolutions but as animitation. The new revolution was seen, by the revolutionary socialist workers'movement, as a political revolution, the conquest of power by violent means inorder to use it for" expropriating the expropriators" , abolishing private propertyof the means of production. The new revolution should at the same time achievemore fully the objectives of the old, a fuller and more realistic political democracy,not any longer belied by the power of and actual domination of society by thecapitalists. That the concentration of political power for and in the revolution, aswell as the shattering of the democratic rules of the game by it, did not seem amajor problem to the socialist revolutionaries, shows how natural democracy hadbecome, and how unproblematic therefore the return to it after the socialistrevolution must have appeared less than a hundred years after the first democraticrevolutions in America and France.Through all the subsequent disappointments and revisions, the original idea thatan unchecked and undivided private property of the means of production is notthe best way to organize industrial society, was kept alive. Whatever form thedisplacement of private property should take, eventually it would be tantamountto the proclamation of a principle of inclusion of all bearers of interest in theeconomic field into the circle of legitimacy. People should be free to work withexisting means of production now no longer in private property, and when theydo they should be free to take all relevant decisions on a basis of equality. 7From the point of view of constructing the normative institutions of the neweconomic order the sitution is not essentially different from that in the politicalfield after the democratic revolutions. The problem of regulation is more exactingin finding acceptable interest criteria among equals and more demanding in supplying

economically the information needed by all for decision making. Here as well regulation has to start by exclusion: Exclusion of some from access to the means ofproduction, for lack of documented ability to operate them or for documented lackof moral qualification to utilize them under socially acceptable conditions; andthen again exclusion of some of those that have established their right of accessto a given asset from decision making for reasons of operational efficiency. Someof the problems are obviously of the same nature as those facing the architects of thedemocratic political order, and some of the experiences accumulated in the politicalfield might prove useful with the new task. But the situations are certainly notcomparable in all details and superficial analogies are more misleading than helpful.


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214 Praxis InternationalThe details of the new institutions will have to be worked out gradually, mainly bytrial and error, and then improved gradually on the basis of systematized experience;

experience to be accumulated and systematized in the future, under the generalassumption of a principle of inclusion, in what will necessarily be a slow andexpensive process.8In this process what help can the social sciences provide? Essentially, they arenot able to replace systematized experience, differentiated in relation to manypractical fields and within them again a response to particular classes of problems.But in a situation when past experience is, at least in part, irrelevant and futureexperience as yet non-existent, it is natural to turn to social theory for guidance.The potential of social theory in this respect should be looked for in three maindirections.

IOur thinking in new situations tends to discover analogies with situations knownfrom the past. Social theory can help identify these similarities and also differences

between the situation we are facing and situations to which existing rules ofsystematized experience apply.In the problem we are concerned with namely, the uses of law in regulating

behavior under the political assumption of inclusion of a category of interests intothe circle of legitimacy, it is important to highlight the crucial differences betweenpolitical and economic interests, between state and property, as well as thesimilarities between them.There is also the problem ofmotivation. In politics, whatever the initial interest

of the actors, the originally present or subsequently unfolding power interests arenot only sufficient to provide motivation for political action, but often tend to growto a level of intensity where the problem is to check them, to channel and limitthem, eventually perhaps to thwart them in order to protect the political interestof others. In working in the traditional sense, meaning mainly manual or routinework, however, the economic interest has not yet found a convincing replacementas a motive.The political actor, belonging to a minority by the nature of the representativeinstitutions, consciously enters an area of risk and responsibility on the basis

of results, without consideration of individual causation or guilt. 9 The actor inorganized work on the other hand, is practically everyman. Only a minority ofactors here is prepared to bear the risk of an economic venture and awards-losseson the basis of results that cannot be under their control. The majority is orientedtowards limited but certain rewards for a defined performance. If exposed toentrepreneurial risk they will try to neutralize it by solidaristic behavior, reducingat the same time the selectivity in the system. 10The political role of citizen is, as a rule, not in conflict with the individual'sother interests. Assuming that all interests motivate political behavior, for the vast

majority limited to the vote anyway, this fits exactly the assumptions on whichthe political process is based. In organized work, however, there is from the outseta plurality ofmotives, of interests possibly in conflict with each other. The economicmotive of gain with the physiological motive ofminimal effort, motives of personal


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Praxis International 215advancement with motives of solidarity within the work group, motives flowingfrom the existence of the organization with other loyalties and values of the societyat large.

11What is likely to distinguish future situations from past is particularly the generalsocial and also natural environment that changes with development. Social theory

may be able to indicate the general directions of these changes, developmentaltrends and their probable effects on possibly more enduring relations in societyas well as on institutional structures.Increasing density, demographic as well as ecological, and progressive urbanization of the world, is under study as a long range trend. It leads to more structuringof activities in organizations and other cooperative systems. And also to comparatively novel problems included under the general heading of "limits to growth".Increasing availability and the expanding role of information in society. Moreknowledge is available through the growth of science and its technological application, through the accumulation of experience and its systematic codification. Butalso more knowledge is required in order to pursue the productive and regulativeactivities considered normal in a society at a given time. The ability to utilizeinformation for any purposes has increased dramatically through the informationrevolution. Automation, rob,)tics and related development are in the processof transforming one field of human activities after the other.Specialization, which is the dominant present-day fonn of the tendency ofdivisionof labor, was a precondition for the explosion of information and is likely tocontinue for some time. The longer-range extrapolations of this trend in the future,however, will have possibly to be revised, as a consequence of the same informationrevolution, that was made possible by it in the first place.A further tendency following from more available knowledge is an increase ofproductivity of human labor. Assisted by machines sometimes connected intoautomated cycles, work produces more per man-hour and, as a rule, consideredin relation to investment. Within the limits of available resources, societies aregrowing richer and are able to make human life more rewarding by freeing it fromthe pressing existential cares of former times.Again, as a consequence of reduced scarcity on the one hand and of the struggleof the underprivileged and excluded majorities on the other, there is a trend towardsexpanding circles of legitimacy. More interests of an ever larger circle of interestsubjects are considered acceptable in society and given the right of seeking theirfulfillment under conditions of equality with other subjects in the same categoryof interests.People pursue their interests while interacting in society. This objective factproduces permanent situations characterized not by trends in one direction but rather

by tendencies opposite to one another. One of them is the tendency to cooperatewith each other in pursuing objectives unattainable to each of us singly, or attainableunder significantly less favorable conditions. Opposite to it is the tendency towardsconflicts of interest triggered by interaction, including its synergic form ofcooperation.


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216 Praxis InternationalThe other pair of opposites are the tendency towards dependence opposed tothe tendency towards independence. Again, interaction itself is creating naturaldependence necessarily, even if this dependence should have no implications forthe chances of interest satisfaction. The interest implications, however, are the

primary reason why dependence motivates the opposite tendency towards independence. In society as an interacting group total independence is impossible onprinciple. But total dependence is inacceptable because it jeopardizes chances ofinterest satisfaction.An increasing part of structured interaction is taking place in organizations, groupswhere related tasks and people-in-roles are linked to each other in view of pursuingby their connected activities defined over-all objectives. The irlteraction of organizations with their environment causes organizations to differentiate on the dimensionsof aims, relations, and methods while integrated on principles relatively stablein the short run. The simplest organizations are integrated by on-going audio-visualcontact among their members. As they grow larger, there is the principle ofleadership, after that impersonal hierarchy, evolving at present towards new formsof integration in team-networks.

IIINow descending one step from these generalities towards actual practice, thequestion is what can social theory offer to facilitate the accumulation and systematizing of experience? At best it can help with a theoretical cost-benefit analysis ofavailable alternatives, by identifying, from theoretically comparable experience,the problems and dilemmas to be expected when building new institutions oradapting old ones; by pointing, as a matter ofmethodological principle, to probabledrawbacks of any imagined solution; by discovering the limitations of any principlein its practical realization.Within broad limits, organizational structures will adapt to the functions theyare supposed to perform, so that different structures can serve the same ends andsimilar structures realize different objectives provided we give them time to adapt,limit our intervention to gradual improvements of the original blueprint, and refrainfrom changing the basic concept all the time. Within limits a rule of equifinalityapplies. Reformation in capite et in membris should be resorted to as seldom aspossible for several reasons: Radical change will not lead to radical innovationthat was its goal, because it will induce uncertainty and thus motivate movementin the opposite direction towards more firm ground, i.e. models we have known

a long time. Also, existing structures are usually sufficiently elastic to be utilized,after small corrections, for completely different objectives. Finally, fundamentalchange in large organizations is a considerable investment - in time, money, work,expertise, loss of function, uncertainty - that has to be expanded immediately,while the return can be expected only in the longer run and its value is a matterof assessment never objectively provable.Inclusion implies participation of the included in decisions affecting their legitimateinterests. To participate means, literally and originally, to participate personally.On any larger scale, however, this is technically impossible, hence, representation.That, again, opens new problems such as: possible interest conflicts between the


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Praxis International 217representatives and the represented; the authenticity of representation; the influenceof the represented during the term of office; the advantages and disadvantagesof limiting reeligibility; the technical qualifications of representatives. In the politicalsystem representation is applied almost universally with the exception of the smallestterritorial units. In work organizations, economic or non-economic, the situationis different. There is a real dilemma between reducing the size of the organizationsso that direct participation in decision-making becomes practically feasible in agreater number of instances, or letting the organizations grow to the limit whereeconomies of scale turn into their opposite. The first alternative will exact a pricein terms of difficulties to integrate large systems and in loss of operational andeconomic efficiency. The second will almost certainly result in the practicalexclusion of a large part of those that were included in principle from effectiveparticipation in decisions affecting their interests.The principle of inclusion is not translatable, in practice, into universal participationwithout any restrictions. The question of access - conditions, priorities,protection - cannot be avoided; it demands some answer. In politics access is limitedby subject matter; it is universal, within reason, but limited to the vote. Exclusionof persons starts when voting has conferred entitlement on representatives - thevoters are now excluded from participation in decision-making by representativebodies - and continues along the line of legislature-executive power. In organizations the situation is different. A ...;cess to the individual organization, the meansofproduction under its control, necessarily limited to a relatively small numberof persons fulfilling certain ctJnditions and selected among an unlimited set ofaspirants in principle, as a rule by persons already belonging to the organizationor to the wider system of organizations.Within the organization exclusion continues, first, by subject-matter limitingevery member to his/her special field but then also by person along the ascendingline of hierarchy. This second exclusion of most organization members fromexecutive decision-making presents a problem. The theoretical criterion for it issupposed to be expertise, and in this it would be no different from the first limitation by subject-matter; executives would not be different from other specialistshaving title to decide in their domain of competence. The general prerogativesof the hierarchy, however, at least in its traditional form, have clear implicationsfor interests; hierarchical superiors have better chances of interest satisfaction thantheir subordinates along with their power to issue orders and control other sourcesof uncertainty for the lower positions. In what way to institutionalize their"political" , i.e. interest responsibility to the rank-and-file without compromisingtheir managerial function?A legitimate pluralism of interests, implied in inclusion, leads to a greaterfrequency of interest conflicts. The institutionalization of conflict in the politicalprocess did not reduce its incidence; rather the opposite: it spreads the conflict,gives it publicity and greater social weight, and creates secondary sources of conflictin the interest of the political institutions and their incumbents. The suppositionis, however, that institutionalization makes a conflict less explosive, limiting themodalities of conflictual action, and leads towards compromise. In organizationslabor conflicts traditionally have a more disruptive effect than institutionalizedpolitical conflicts in the polity. Under inclusion, the differentiation of interest


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218 Praxis Internationalpositions in organizations can be expected to increase. The reduction of thesepositions to two - labor and management - seems less possible and the traditionalrole of the trade unions, therefore, less likely to continue. The problem of howto institutionalize conflict - by external or internal arbitration, or a combinationof both and in what proportions - remains open.In general, it seems that inclusion leads to a change of emphasis from externalregulation by the enforcement of norms to external regulation by creating, or makinguse of, objective situations likely to influence behavior in a foreseeable direction:the model "market", the model "traffic lights", the model "public service",etc. And from there, possibly, to a greater role of internal regulation by contractand rules arrived at in mutual communication by c o n s e n s u s ~ .The nature and role of rules in regulating human behavior has been changingalong many dimensions. From an undifferentiated universe of norms, influencingbehavior mainly through strong emotional loads, to specialized normative systems- law, morals, convention, etc. - , moving on to possible greater importance ofa complex system of ethical values whence rules can be derived when concretelyneeded. Law, as the central instrument of regulation in societies organized politicallyas states, has changed its base of legitimacy from traditional or charismatic authorityto the more rational-conventional legality of positive law. Also, what was in thebeginning only an objective rule of law, god-given or prescribed by an authorityno less divine, has developed some kind of two-way arrangement conferringsubjective rights on individuals. Taking "rule" in a more general sense, normsare, as an instrument of regulation, being increasingly displaced by cognitive rules,derived from generalized and systematized experience or from paradigmaticknowledge as technological prescriptions. Finally, inclusion implies that norms,in so far as they are still necessary to regulate behavior, change from heteronomyto autonomy, where an increasing portion of them has been established with asignificant participation of the subjects whose interests they regulate.

Inclusion should mean more space for each individual's will and interests, lessrestraint, less outside influence, possibly less of what we have become used toidentify as order. The process of institutional structuring of behavior in society,however, is likely to continue in the foreseeable future for several reasons: Institutions standardize behavioral reactions to a complex environment in forms that havebeen confirmed by experience. When sufficiently differentiated they are sociallymore economical than any diffuse social process of adjustment that, preciselybecause it is diffuse, cannot be sufficiently selective. Also, institutions as consciouslyengineered forms of behavior, are easier to change than forms of self-organizationthat presuppose long-time stability of the environment and, when having takenroot develop considerable inertia towards change. Finally, institutions can be soconstructed that in their functioning they are practically independent from the willof those whose behavior and interests they regulate. In contra-factual regulation,when behaviour has to be influenced in opposition to the natural inclinations ofthe regulated - e.g. in urgent problems of preservation of the environment institutions are simply irreplaceable.In these and similar problems social theory can offer suggestions to orient practicalexperience, to help it discard earlier experience no longer relevant, to spare itsome false starts - but certainly not to supplant it. Until the necessary experience


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Praxis International 219has been systematized, recommendations will continue to be hazy, not a directpractical instruction for action.In a more complex society law will also become more complex, more differentiated, flow from more different sources, develop a greater variety of institutionsfor its implementation and adjudication, a wider span ofmechanisms for sanctioning,be applied differently in different fields, functionally as well as territorially. At thesame time legal systems will be integrated by more general common denominatorsof fundamental values, criteria of justice and requirements of due process. Thisframework is likely to transcend more and more the borders of even the largeststates becoming independent of them in its origin as well as in the reasons of itsvalidity. It is, precisely, a more differentiated and more adaptable law than canmerge into a world system.Conclusion

Any normatively regulated order tends towards its own stabilization. Preoccupation with the detailed elaboration of such order on the basis of systematizedexperience, therefore, contains a bias towards stability and a sort of occupationalblindness for its opposite. Approaching the inescapable turning point when thespecific entropy of human systems, i.e. the interests frustrated by the existing order,however, begins to destabilize the system and thus to prepare its replacement byanother. This occupational blindness is the ultimate risk of a discipline, likejurisprudence, oriented fully towards accumulating and analysing experience inorder to build it into the system. It is also the ultimate advantage that jurisprudencecan expect to gain from social theory, even in its present pre-paradigmatic stage,that the latter can sensitize it to the necessity of social change.

NOTES1. One of the better known instances is the development of the recours pour exces de pouvoir

by the French Conseil d 'Etat. An achievement in legal creativity which made Jean Rivero (1980)abandon all false modesty and remark that the paramount quality of the protection of the citizenby the French administrative courts is, for public law, a "dogma of which there are no heretics".Jean Rivero, Le systeme francais de protection des citoyens contre I'arbitraire administratifCl I'epreuvedes faits, ou Pages de doctrine (Paris, 1980) Tome 1,563-580. See also Ernst Kern, "Zur heutigenGrundproblematik des Verwaltungsrechts" - ArchivjarRechts - und Sozialphilosophie, 1957, XLIII/5.2. Here again French legal theory, led by Leon Duguit and Maurice Hauriou, blazed new trails.Perhaps a little over-sanguinely Duguit assumed that the State of services publiques is neutral inthe struggle among interest groups in society, particularly between social classes, and representsthe overarching interests of social solidarity. The legal institution of service publiques differentiatedto keep abreast with the expansion of interests and corresponding activities, was honed to a precisionthat does credit to the creators, legislators, judges and administrators of public law in France. SeeLeon Duguit, Les Transformations du droit public (Paris, 1913).3. Uncertainty is a fundamental characteristic of the human condition caused initially by the highexistential risks in technologically simple and poor societies. Its neutralization by increased masteryover nature in progressively denser and more structured societies is itself, in a sense, temporary,producing new dangers of its own. As Gehlen points out, the new situation of' 'needs satisfaction . . . isloaded with very strong bonded affects that normally are not expressed at all, but the first sign thatthe satisfaction of needs is threatened liberates that mass of affect explosively, puts us into a stateof highest alarm" see 57. Arnold Gehlen, Unnensch und Spiitkultur: Philosophische Ergebnisseund Aussagen (Bonn, 1956).


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220 Praxis InternationalIt seems psychologically safer to attempt the neutralization of uncertainty by establishing rules,norms and transform dangers into deviations, however little they may influence the probability oftheir realization. From Xerxes having Helespont flogged for obstructing the c r o s s i ~ g of the Persiananny to contemporary attempts to alleviate feelings of disorientation in policy by looking for ideologicaldeviations and enemies, the normative method of neutralizing uncertainty has lost nothing of its appeal.At the same time norms reduce complexity, understood as "the totality of possibilities of experienceand action allowed within a system ofmeanings" beyond what the individual is capable of realizing,by stabilizing a set of expectations. See Niklas Luhmann, Rechtssoziologie (Hamburg, 1972), 6.4. Max Weber, Wirtschaft und Gesellschaft (Tiibingen, 1921), 17. "An order shall be called . . .Law, if it guaranteed externally by the chance of constraint (physical or mental) through the activity

of a staff of people expressly oriented towards the purpose of enforcing obedience or punishingtransgressions' , .Other definitions of law, however, assume that the achievement ofjustice, or at least the orientationtowards justice, should be a constituent element of the concept of law. See Reinhold Zippelius DasWesen des Rechts, Eine EinjUhrung in die Rechtsphilosophie (Miinchen, 1978), 8.5. E. G. Furobotn and S. Pejovich, eds., The Economics ofProperty Rights (Cambridge, 1974).The most is made of this argument by the so called "property rights" orientation in economics.The authors define the system of property rights as the totality of economic relations determiningthe position of each individual in the utilization of scarce resources, as well as the totality of rights,customs and conventions in a country excluding third persons from the use of given resources.6. John Locke, The Second Treatise ofGovemment, T. P. Peardon ed. (New York, 1952),71.John Locke sees property as antecedent to political power in the development of society: "The greatand chief end, therefore, of men's uniting into commonwealths and putting themselves undergovernment is the preservation of their property".The importance of property in the thinking of the revolutionaries against absolutist monarchy inthe late 18th century can be inferred from the order of precedence among fundamental values inthe most fundamental political documents of the time.The Declaration des droits de l'hofnme et du citoyen, adopted by the French revolutionaryConvention on 26 August 1789, declares in Article 11: "The aim of all political association is thepreservation of the natural and imprescriptible rights of man. These rights are: liberty, property,security, and the resistance to oppression". Thirteen years earlier, the Declaration of Independence,adopted by the delegates of the American States on 4 July 1776, closes with the following solemnpromise: "And for the support of this Declaration, with a firm reliance on the protection of divineProvidence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor".7. The often analyzed separation of ownership from control in the share-holding company (Berleand Means 1933) is an instance of the differentiation of property chiefly of industrial assets. Theposition of people, however, who work with the assets is thereby not essentially changed. And itis these people, the workers, who go through a process of "mental association by contiguity" (Wilpert)in relation to their immediate work environment and develop, consequently, strong quasi-proprietaryinterests in the part of the assets which constitutes their work environment as well as towards theirjobs. It is these interests that are the psychological basis of the claim to participation and selfmanagement. See Bernhard Wilpert, Property, Ownership and Participation - On the growingcontradiction between legal and psychological concepts (1987 MS), 7.8. In this context it is important to emphasize the difference, in other ways relative, between

systematized experience and technology in the strict sense. Technology, in the specific sense usedhere, is activity motivated by the desire to achieve desired ends and govef!led by fundamentalknowledge within a scientific paradigm, in the sense given currency by Kuhn as a general frameworkof basic operationally defined concepts and criteria accepted by all practitioners in a given field.See Thomas S. Kuhn, The Structure ofScientific Revolutions (Chicago, 1962). Paradigmatic in thissense are what is traditionally called the exact sciences. The social sciences, being in a pre-paradigmaticstage of development, provide no dependable knowledge from which to derive directly technologicalrules of behaviour. What their use in guiding practical activity can be is discussed in the text. Practicalactivity in society has to be oriented mainly by systematized experience. Experience that is recorded,classified, codified, repeated in a guided and purposeful way, reflected upon, possibly formulatedas an experiental rule - "middle-range theory" - Robert K. Merton, Social Theory and SocialStructure (New York, 1968). The application of experience to similar situations in the future, however,


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Praxis International 221remains always problematic, because rules of experience are not based upon a fundamental understanding of the whole process.The difference between experience and paradigmatic science is, certainly, relative. Experienceis the beginning of all science. Repeated experience in controlled experiments may lead eventuallyto fundamental understanding, to interpersonally ascertainable knowledge, and in further developmentto a paradigmatic system. On the other hand, paradigmatic technology does not find all practicalanswers in the sciences from which it is derived. It always has to supplement what knowledgeparadigmatic science provides with systematized experience of its own. Nevertheless, it is importantto keep the difference in mind because not little damage has been done by treating pre-paradigmaticsocial science theories as if they were dependable knowledge from which to derive technology.9. People in a political system are, therefore, classified by Milbraith into aminority of'" gladiators' ,and a majority of "spectators". Lester W. Milbraith, Political Participation (Chicago, 1965).10. This is the main argument for separating, even under workers' self-management, the basicwages and salaries of the workers from their appropriation of the value added by their work andtheir share of the over-all results of their organization's business performance. The first should betreated as the economic cost of an element of production, labor - just as interest payments anddepreciation are the economic cost of the use of capital - while the second is part of the profit sharingrules accepted in a given society - similar to the payment of dividends to the providers of capital.

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2.7 - Pusic, Eugen - Law as Exclusion and Under Inclusion (en)

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