Most people think that they know what “Law” is – nearly – but perhaps we know less than we think about this intricate virtually self-adjusting societal mechanism, which seems to have a dark energy soul of its own. Let us take a look at ΛCDM for means of instructive comparison.
As described at the Wikipedia, ΛCDM is “the simplest known [cosmological] model that is in general agreement with observed phenomena” of the workings of the universe, a model which nevertheless “says nothing about the fundamental physical origin of dark matter, dark energy and the nearly scale-invariant spectrum of primordial curvature perturbations“, the essential parameters of the model, and “in that sense … [ΛCDM] is merely a useful parameterization of ignorance.”
This parameterization is kept alive by fine-tuning:
“In theoretical physics, fine-tuning refers to circumstances when the parameters of a model must be adjusted very precisely in order to agree with observations.“
In the case of ΛCDM, these fine-tuning adjustments are in fact enormous.
In a universe consisting of 100% of whatever it is that it is, ΛCDM assigns only 4% of the energy density of our present universe to the basic matter and the energy with which we are all familiar, i.e. the world of “atoms (and photons) that are the building blocks of planets, stars and gas clouds in the universe“.
By contrast, 22% of the universe’s energy density is said by ΛCDM to be made up of cold dark matter whose particles interact only via gravity (but never otherwise touch or collide).
The remaining and considerable majority of 74% of the universe is allegedly made up of a hypothetical dark energy that permeates all of space but which no one has ever seen:
“Two proposed forms for dark energy are the cosmological constant, a constant energy density filling space homogeneously, and scalar fields such as quintessence or moduli, dynamic quantities whose energy density can vary in time and space.“
The name quintessence, fittingly, “comes from the Classical elements of the ancient Greeks, where a pure “fifth element,” the aether, was thought to fill the Universe beyond Earth.“
The names may have changed over the millennia, but the cosmological theories of the moderns are still remarkably similar to those of antiquity. Whether we call it aether or quintessence, or cold matter or dark energy, 96% of the universe is still explained by physics in terms of unseen cosmic parameters, which, like ancient but later provenly faulty planetary epicycles, apparently fit the observations – after fine-tuning, of course.
Modern cosmology has thus rightly been labeled “the useful parameterization of ignorance”. What we do not know about the universe – and that is at least 96% – we have nevertheless been able to compartmentalize into useful physical “laws”. A lack of knowledge has never been a great barrier to the creation of theories. Quite the contrary.
Let us now turn to legal theory. Does any great difference exist between the parameterizations of cosmology and those of Law? What do we really know? For example, are jails and prisons, crowded to the brim as the dungeons in the days of antiquity, the right answer to the questions of the criminal law? Do our civil sanctions fit the crimes they punish? Do issues such as abortion at their core reflect something other than law? Is the right to freedom of religion the same as the right to defy secular law for allegedly religious reasons? What part of Law is accounted for by “known” legal energy and what part by the unknown? Are we really following the true path? Or is 96% or more based on a kind of fine-tuning of parameteriziations of our legal and jurisprudential ignorance? Do we merely do the best we can, under the observed circumstances? Or is there a “higher” unseen law – and, if so – whose law?
Compare What Is Law? by Bo LI (an attorney with the New York law firm of Davis Polk & Wardwell) in Perspectives, Vol. 2, No. 4 where Bo Li writes, inter alia (as excerpted and commented below by LawPundit):
“… Recently, there has been a good deal of discussion on establishing the rule of law in China. In this short essay, I want to argue that to establish the rule of law in China, we should not only look at our courts; we should also reform our legislative practices. To understand my argument, it is important to understand the nature of law.
… Law existed in the state of nature, while legislation exists only in a (man-made) positive legal order. Law does not have to be written. In its original meaning, law “is the story of how things work… Man can know, through the use of his reason, what is in accord with his nature and therefore good” (Rice, 1999, p. 30). The Latin words ‘ius’ (law) and ‘iustum’ (justice) are intimately connected. Law, therefore, necessarily embodies justice, which is rooted in nature and knowable through reason. As Aristotle puts it, “there is in nature a common principle of the just and unjust that all people in some way divine [discern], even if they have no association or commerce with each other” (Aristotle, 1991, p. 102). [LawPundit: compare that to cold dark matter above] Marcus Tullius Cicero defines “Law” as “the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. What is right and true is also eternal, and does not begin or end with written statutes…. [LawPundit: compare that to dark energy above] It may thus be clear that in the very definition of the term ‘Law’ there inheres the idea and principle of choosing what is just and true” (Cicero, 1959, pp. 44-51). Ultimately, the rules that we want for governing human society are rules based on our nature and our basic sense of justice. These rules are natural or moral laws. In other words, in its original meaning, “law” means the natural or moral law, which are in accord with our basic sense of justice. In contrast, legislation (positive law) is man-made law, which can either be just or unjust….
What we need to do is to agree that law is not the same as legislation, and that there are dynamic higher laws that can only be discovered through a gradual, incremental and interactive process. Nobody can have knowledge about, or proper incentive to abide by, all higher laws. As such, the division of lawmaking power under a system of checks and balances, with properly trained judges as important law finders, assures us that we are at least as close to the higher laws as we ever can.“
Is there a great difference between modern Cosmology and modern Legal Theory?