Jurisprudence for a Free Society. - book reviews

John D. Montgomery

Myres McDougal and the late Harold Lasswell planned this work, essentially in its present form, in the 1950s. Toward the end of their careers, their life-long collaboration reached its climax in this encyclopedic culmination of their two lives' work and that of their closest colleagues. Even these 1600 pages still do not fully embody the range and power of the policy sciences tradition they created, though among other things they do provide an introduction of great potential value to students of comparative politics.

The contributions that Lasswell's Chicago-Yale policy sciences group has made to the study of human aspirations, beliefs, and behavior transcend the body of legal and constitutive theory defined by the title. Legal theorists are not its only debtors. Political scientists are obligated to it for concepts and operational techniques ranging from content analysis to structured theoretical insights into international relations.(1) Psychologists who would dabble in politics can, if they choose, incorporate insights from their early empirical work.(2) Sociologists and anthropologists can find nourishment in its framework for interpreting and influencing social change.(3) From their earliest formative years, these policy scientists have displayed a workmanlike skill at observing actual human behavior, current, emergent, and configurative, whether in the wards and political games of Chicago's municipal government or in the confused international functions that make up the world order. Even in the 1930s, Lasswell's canvas was so vast that it baffled several of the major political science departments with which he was associated, none of which could find it in their hearts and minds to grant him tenure. In his own time, however, he found intellectual refuge in Yale's mighty and diverse law school and his most collegial partnership in the person of the equally energetic Myres McDougal.

The Lasswell edifice (McDougal will not object to this designation of their joint work) is cavernous but hardly unstructured. Its architecture is a Gothic construct of involuted symbols, gargoyles, and soaring arches, so prominently displayed that some distinguished observers have been known to dismiss it as an empty taxonomy in spite of the political convictions it has served. Indeed, there is a flavor of disembodied abstraction in the specialized vocabulary used by Lasswell and his colleagues. Reading Lasswell, some may say, is a little like reading algebra: an exotic taste, one to be cherished only when it is useful.(4) (Fortunately for the newcomer to these parts, only a little of the present work is in Lasswellian algebra). Algebra or no, it is impossible to read this statement without doing some learning and rethinking.

These two volumes apply a body of knowledge that is so intricately structured and so comprehensive that quite apart from its utility as a guide to law as policy, it is also a school of thought. Several of our leading universities can still display ornaments from the Policy Sciences school, a Garry Brewer and Ronald Brunner here and a William Ascher and Michael Reisman there, whose works make extensive use of the Lasswell canon but yet retain the originality and unique insights of their authors. The journal Policy Sciences, still edited in the Lasswell tradition, continues to be one of the most influential publications in the field. At this writing, McDougal continues to pursue the familiar search. There is no longer a Lasswell, or even a Karl W. Deutsch or Daniel Lerner in our midst, to be sure. And in their absence, other leading journals are pursuing different perspectives in the continuing effort to improve public policy. Yet there is a rising sense of dissatisfaction with the narrow focus of these otherwise highly sophisticated efforts. This volume poses a challenge to each of them: how can these fragmented, uncontextual approaches produce cumulative knowledge about policy? Can the policy sciences framework reveal the light that lies beyond their tunnel visions?

The Lasswell-McDougal book treats the Policy Sciences tradition as more than just one among several competing approaches that bear names like Public Policy, Public Choice, and Policy Analysis. It suggests that the turmoil that characterizes these fields is caused by their haphazard assimilation of borrowed intellectual riches. For their epistemological inspiration most current policy analysts have drawn at random on economics, moral philosophy, sociology, and psychology as they have considered the problems that concerned Lasswell so deeply. The price for this enrichment is a restricted world view. By identifying the problems worthy of their study along rigorous, self-defining theoretical lines, they have produced a sequence of increasingly complex but unrelated tunnels leading to different destinations. This narrowness is, of course, fully recognized by policy analysts. Few among them will deny that the world is diminished when economic values and rationalities force them to exclude other potentially persuasive and sometimes even more compelling rationalities? Economists are gradually improving their performance as forecasters, but even within their narrow confines, their results are still contradictory and their prescriptions uncertain. How long can minimalist policy teaching and research ignore ultimate goals like human dignity?

The very comprehensiveness of these volumes asserts the claim to a noble integration among the threads of contemporary policy analysis. The highest priority in Lasswell's field theory of policy is the search for means of achieving human dignity, defined as the preferred outcomes among all competing and complementary basic values. This moral commitment to a Universal Public Order of Human Dignity appears at every turn of the Lasswell-McDougal analysis. Jurisprudence, indeed, is defined as the study of the legal instruments needed to avert the evils of the ominous construct Lasswell called the Garrison/Prison State. In the course of reading these pages, one encounters brilliant interpretations of familiar social theories, all to illustrate procedures for the study of social context, such as how environmental factors have affected behavior (the Turner thesis), how social preconditions have encouraged creative and unexpected responses (Troeltsch/Weber on the rise of capitalism), and how long-term responses vary as these factors interact (Toynbee's history of civilizations).

In appraising the relevance and reach of this book, consider three questions: How good is the fit between a comprehensive empirical jurisprudence and the capacities and reaches of the Policy Sciences? How important is the study of law to the understanding of major policy issues? And finally, does the framework serve equally well in defining and illuminating other human expressions?

Jurisprudence as Policy Science

First, then, this book presents "law" as the process though which a group of people seek to clarify and secure their common interest. Thus "jurisprudence" invokes the full range of the famous Lasswell taxonomy as a tool of discovery. It is more than a syntactical philosophy of law; it requires and provides an examination of the context of law as configured in both practice and theory. As an application of policy sciences, it specifically addresses the "five intellectual tasks" confronted by decision-makers in all fields,(5) it evaluates a legal system in terms of the "eight values" pursued in various contexts by all of humanity,(6) it explores the "seven outcomes (functions)" performed in the activation of policy,(7) and it proceeds through the "six process variables" that are to be employed in constitutive process.(8) These terms are employed repeatedly, not simply to define the policy sciences, but to expand our understanding of law as a value-serving instrument in every society, however "primitive" or "learned." The exhaustive citations of major legal theorists seems to confirm the common elements among them, and with the framework of this analysis.

In Parts Two and Three there are whole chapters devoted to the goals, trends, conditions, and projections of life in our times, offering not only recommendations for using law more effectively as a social process, but also for enriching the values it serves and the functions it performs. These values are treated as arenas of preference and also as resources for conversion across sectors of choice, such as employing power to gain wealth and the reverse. Analyzing such conversions and exchanges among all eight values permits the authors to develop new perceptions regarding the relations of markets and states through the ages. Moreover, the analysis shows how such investments can produce surprising outcomes: for example, even improvements in human well-being can have negative consequences. Examining the trends undergone as a result of these changes makes it possible to measure progress and retrograde movements in the realization of human rights. Most recent trends seem favorable on this score, but the indicators are mixed: there is more enlightenment in our time, but also more propaganda; less mortality from disease, but more from wars.

The book accomplishes part of this task in its first volume, which deals with legal theory for the most part. It is important to note, however, that the sections on social context and policy draw on a completely different body of knowledge, especially in the second volume, which explores policy in a social context even broader than that of law.

Law as a Key to Social Inquiry

In spite of the bold inclusiveness of this concept of jurisprudence, no one should think that the study of law exhausts the repertory of the policy sciences. Political scientists may feel discomfort and even dismay that much of their own analytical universe almost seems to be subsumed here under the study of law. The justification lies not merely in the intellectual center from which this jurisprudence sprang (the Yale Law School), but in the dynamic conception of law itself, which the authors see as consciously aiming at problem-solving, in contrast to the more diffuse purposes of political science. But since Lasswell and McDougal define a problem as the disparity between a community's value goals and its achievements, they make it clear that the intellectual tasks which law addresses must rest on a deeper philosophical and empirical base than that which dominates current political and social theory. Thus there are chapters or lengthy sections on psychology and psychiatry, on anthropology, sexual behavior, sociology, philosophy, and even voice science and linguistics. There is an analysis of the major religious traditions, treated as "trans-empirical" bases for assuming value preferences. With characteristic straightforwardness, the major religions are described to include Marxism (German Idealism) as a basis of faith.

Political scientists are recognized here for their contributions in these fields. They are seen as fairly comfortable with the study of power in the sense of control. This jurisprudence prefers the study of law as a basis for explaining authority. Lawyers, the authors concede, may be equally uncomfortable with the study of control, but at least they now have tools designed for the purpose with the injection of the policy sciences in their educational tradition: a formidable challenge.

What is even more daunting is the thought that this analytic could be applied in similar depth to almost any creation of the human mind. If Lasswell had spent his career in another part of Yale, such as architecture, music, medicine, or perhaps even mathematics and philosophy, it is not hard to imagine how he might have undertaken a similar treatment of that profession or art.

To describe how one might apply the Lasswellian universe in exploring the most abstract and remote of human experiences, let us consider what the table of contents of these two volumes might be like had they written about music as a performing art:

* the "preferred outcome" to be described might be the best performance possible at a given moment; the "situation" might be the concert hall in modern times, or the royal chamber a few centuries ago; the "indicators of achievement" might be the speed or accuracy or intimate understanding in performance and the degree and nature of the insight displayed in the arts of creation or recreation.

* the interaction of values could begin with a discussion of the power relationship (which conservatories and performers dominate the field), wealth (the extent to which different styles of composition and performance are rewarded financially), enlightenment (knowledge about the structure and context of a composition or performance), well-being (effects of the life style upon the health of performers or auditors), affection (attitudes of students or the public toward the practitioner of a musical art), respect (social standing of successful members of the profession), and rectitude (integrity of claims to authorship, originality, and resultant claims). Most of these relationships are inferentially present in social and professional judgments about any given aspect of music.

* the intellectual tasks of defining goals, identifying trends, explaining changes in the surrounding climate, anticipating future opportunities, and considering alternative courses of action are as important to a musical performer as to a lawyer or any other producer of a social value.

Perhaps this all-but-facetious example reinforces the wisdom of the choice made in these volumes, of concentrating the efforts of the policy sciences on jurisprudence, the role of the state, for that choice is immediately practical as well as probingly philosophical. It is the link to the ultimate moral purpose that has guided the lifetime of the Lasswell-McDougal work - advancing the cause of human dignity. Most of the other fields in which one could apply the constructs developed in this study would have a limited valence for that purpose. For in our time, it is the uses and misuses of the state that has to take precedence.

Policy Sciences and Comparative Politics

Readers of this Journal are entitled to ask whether, if they happen to be unfamiliar with the Policy Sciences tradition, they can catch up with their more fortunate brethren by knocking off a summer to tackle this book. Must they take up the study of law in order to practice their arts properly? Is there a short-cut to enlarging their professional world view as prescribed here? This reviewer says to the first question, More or less, and to the second, "Yes."

The law certainly provides a test of the applicability of the policy sciences to the pursuit of human values. In treating jurisprudence as a means to serve human dignity, the authors argue that the denial of this goal is usually (but not always) a denial of law itself. It is possible to conceive of the opposite construct, the all-but-unthinkable possibility of conceiving a jurisprudence designed to degrade human dignity. The careful examination of Lasswell's famous concept of the garrison/prison state describes how in fact instruments of the law are used to enable oppressors to consolidate and perpetuate their superior value positions. The garrison state seeks to narrow access to valued outcomes; the democratic state to broaden it. A possible future in which the garrison state might prevail is projected in detail, including how it would affect each of the human values, how it could arise, and what problems it would face. The importance of distinguishing between such policies and those that seek to enhance human dignity can hardly be overstated. The comparison exposes the essential fragility of public policy as conceived in the democratic tradition.

Yet this enlarged base of understanding of law exposes the need for enlarging the intellectual system by which law as such is separated from its social context. Volume II, dealing with policies, reads quite differently from Volume I, the jurisprudence and its context. The disconnect in Volume I may be widened because the McDougal portions of the book bristle with footnotes citing supporting or contrasting legal research, while the Lasswell portion seems to spring full-blown from his magisterial exploration of the terms and concepts of the policy sciences. Both sections, of course, make use of the standard terms of that tradition, the one in defining the nature of law, the other in examining its social context. In practice, this distinction means that it is possible to get a firm grasp of the policy sciences by reading Part Two of Volume I (The Social Process Context) or by postponing Volume I and starting with Volume II (Policy Thinking).

In spite of the intricacy of the structure and argument of this book, there is a recurrent excitement in reading it as familiar concepts keep reappearing in unfamiliar contexts. Yes, there are moments when the argument becomes like a convoluted tapeworm, seeming to devour itself as its categories intertwine with each other. At times the philosopher's navel contemplates the philosopher. In some ways it is a Lotus Sutra, whose magical incantations impart a sense of well-being. But it does sustain and nourish the reader for 1600 pages or so. There is a rise and fall of interest as one encounters both obvious and surprising examples and interpretations of the familiar categories. It has not, of course, achieved the nirvana of perfection: there is an errata sheet of 8 entries, but this reviewer found many more misprints and grounds for complaint. There is the inescapable incompleteness in some of the footnotes, left unfinished in the Lasswell manuscript especially; there is no bibliography and the Index fails to point the reader to some of the most interesting illustrations and analyses in the work that are not readily identified by the Table of Contents.

None of this carping should diminish the importance of this massive epitaph to the living policy sciences. Indeed, it is not possible to convey more than an impression of the depth of the analysis and the richness of the detail in this application of the policy sciences to the law. The law-school-library price of the work leads us to hope that the publisher will make available in a student edition at least Parts II and III, in Volume II.

Notes

1. Harold Lasswell and Abraham Kaplan, Power and Society: A Framework for Political Inquiry New Haven, Yale University Press, 1950, and H. Lasswell, World Politics and Personal Insecurity (N.Y.: McGraw-Hill, 1935, 1965).

2. Lasswell, Propaganda Technique in the First World War (N.Y.: A. A. Knopf, 1927), his doctoral dissertation, a book that is not cited in the volumes under review; his Psychopathology and Politics, (Chicago: University of Chicago Press, 1930, 1960); and his Power and Personality (New York: W.W. Norton, 1948).

3. Henry F. Dobyns, Paul L. Doughty, and Harold D. Lasswell, Eds., Peasants, Power and Applied Social Change: Vicos as a Model (Beverly Hills and London, Sage, 1971); Harold D. Lasswell and Allan R. Holmberg, "Toward a General Theory of Directed Value Accumulation and Institutional Development," in Ralph Braibanti, Ed., Political and Administrative Development (Durham, N.C., Duke University Press, 1969). See also Harold Lasswell, Daniel Lerner, and John D. Montgomery, Values and Development, Appraising Asian Experience (Cambridge: the MIT Press, 1976).

4. An excellent evaluation of the utility and epistemological place of the policy sciences appears in Ronald D. Brunner, "The policy movement as a policy problem," Policy Sciences 24: 65-98, 1991.

5. Clarification of goals, description of trends, analysis of conditions, projection of future developments, and invention, evaluation and selection of alternative courses of action.

6. The shaping and sharing of wealth, power, well-being, skill, enlightenment, affection and loyalty, respect, and rectitude.

7. Intelligence, prescribing, promoting or recommending, invoking and mobilizing resources, applying or implementing, appraising, and terminating.

8. Including participative structures, perspectives, arenas or sectors, the bases of power, strategies, and outcomes.

John D. Montgomery, Ford Foundation Professor of International Studies, Emeritus, and Director of the Pacific Basin Research Center, Soka University of America at John F. Kennedy School of Government, Harvard University Cambridge, MA 02138.

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