Anticipation, Law, Prediction and Problem Solving: Complex Issues

1. Anticipation, Law, Prediction and Problem Solving: Complex Issues Winston P. Nagan With the assistance of Megan E. Weeren April 10, 2015

2. Anticipation will invariably entail complexity in the context of the individual self systems functioning in the social process and interacting in social relations. • Anticipation is, in a sense, related to the question of future expectations. As such it is an effort to generate a tentative form of useful knowledge, but it is knowledge that cannot be guided nor constrained in any absolute sense by the scientific laws of cause and effect.

3. Anticipation therefore, is a complex idea in part, because when we act we are influenced by our own expectation of what the world has in store for us. This forces us to have a sense of the future and indeed we can imagine a sense of the future that is positive and a sense that is negative. • As the modern state began to consolidate the services of governance, decision makers perforce had to generate policies about governance that were directed at the future. • For example, to anticipate what it would cost to run the state you need to have a future estimate of available tax revenues. To keep the state secure you had to have a sense of what resources were available for military services. To feed the population there had to be an estimate of future food supplies. • I now want to focus my thoughts about anticipation on matters that pertain specifically to the legal profession, which is my spciality.

4. At the turn of the nineteenth century, Oliver Wendell Holmes gave a lecture at Boston University titled “The Path of the Law” • In this lecture, he presented insights into law that have radically changed the way we think and do law. • The central element that his lecture focused on was the notion of prediction or prophecy. • He stated for example that the prophecies of what courts will do in fact are what is meant by law. • The focus therefore of the practical lawyer was on the issue of prediction. This means predicting what legal offices do in fact. • Holmes went further suggesting that it is also a critically important vantage point to look at law from the point of view of the “bad man” • The “bad man’s” point of view is a prediction of what will happen to him if he files a lawsuit or if he has to adequately defend one. • In short, the “bad man” pays his lawyer for prediction.

5. The idea that judicial offices as finite human beings are the decision makers in law and that predicting what they will do is of importance to both lawyers and litigants brought a radically new perspective to law. • The law was not necessarily exclusively incased in written legal tomes. It was also reflected in the actual behavior of the actual participants and what those participants did constituted the real law. • This gave rise to a revolution in legal thinking in which the focus of inquiry would be on who the judges are, where they were born, educated, experienced life and whether, when sitting on the bench, they could be frustrated by the failures in their personal lives. • In short, culture, class, personality and intellectual capacity, gender, race, etc. could be factors far more important to judicial decision making than the law on the books. • These elements of social and personal reality gave credibility to the idea that fundamentally in law prediction is the name of the game. In this sense the term “prediction” is very close to the term “anticipation” • The United States, at least in law, underwent something called The American Realist Revolution, in which it became important in the practice and theory of law to give weight to factors of personality and context as important predictors of legal outcomes. • Now this behaviorally-oriented approach to law was resisted in conservative circles. In those circles the idea of predicting what judges do is simply giving in to the supremacy of un-elected judges. • This continues to be a battle although any lawyer or scholar worth his salt knows that prediction is nine tenths of the law.

6. Because of the fear that predicting judicial behavior brought too much subjectivity into the workings of the law, efforts were made by theorists associated with WAAS to provide a stronger theoretical framework to this approach. • Harold Lasswell and Myres McDougal pioneered the notion of a new jurisprudence for a free society. They reformulated homes by stipulating that law is a process of authoritative and controlling decision making for the purpose of vindicating the common interest of the community . • Now this approach required an approach to law that was problem-oriented and which required intellectual techniques suitable for problem-solving. • The problem –oriented approach generated a vital insight: with proper tools and clarification of the context in human relations one would be better-situated to predict the important problems that emerged from humanity. • Here again the challenge was to develop a theory and method of contextually mapping problems against the whole of the social universe. • In addition, having clarified the problem there were certain intellectual tools that would have to be developed to solve these problems in law or in any other aspect of society. • These intellectual tools were 1) Value Clarification 2) The Study of Historic Trends Relevant to the Problem 3) The Study of Conditions Concerning the Social Response to the Problem 4) Critically for our concerns, What Might an Observer Disclose from a Projection of the Relevant Trends and Conditions with Regard to the Values being Contested. Here, the task is to have some discipline method of anticipation. • One of these methods was to develop a developmental construct. Hence the problem- solver would develop a construct projected into the future in which from the trends and conditions he could predict what a plausible best-case scenario is and another construct indicating the worst-case scenario so that anticipation here is partly guide by clarifying values, understanding history and trends, appreciating causes and consequences and scientific conditions in order to construct am optimistic and pessimistic developmental projection.

7. Our final intellectual task is to consider the options and whether strategies and tactics may be invented to optimize the best-case scenario and avoid the worst. • Essentially, this is a task that challenges us intellectually to be creative. Our WAAS fellows suggested that the method of free association advocated by Freud could be cultivated as a resource of creative capacity in practical arenas of decision making.

8. I conclude my comments with a reference to one of the most famous developmental constructs in the history of the social sciences of the United States. I refer of course to the Garrison State Hypothesis. Lasswell, had been observing the global scene, observing the problem of values, the problem of trends, conditions, etc. and he emerged with a construct of how the emerging state system might be oriented. • That construct was the notion of the evolution of a modern state that was essentially a Garrison state. In the Garrison state, the forces that dominate are the specialists and violence. The more entrenched these specialists are the less regard they will be for basic human freedoms.