Opening Remarks, Conference on Law & Psychology
Thomas J. Samuelian, Dean, AUA Department of Law
November 4, 2011
Welcome to the American University of Armenia – an open forum, dedicated to the pursuit of truth, tempered by tolerance and respect for differing points of view.
The topic of this conference is as broad as it is important. It is unlikely that it can be exhausted in one or two days or even one or two conferences. But it is necessary to start somewhere, and it is an honor to be starting here at AUA with this first conference on Law and Psychology in Armenia.
Law and psychology conjure up different ideas for different people. One approach to the rule of law is that it exists and I quote, “only because enough of us believe in it and insist that everyone, even non- believers, behave as if it exists.” (Mullane, 2007, p. 165). From this perspective, the rule of law is a state of mind, a communal belief system enforced by peer pressure, a social-psychological construct. We obey certain rules because we believe that others will also obey them – a kind of strong, depersonalized reciprocity, call it what you will, the Golden Rule, Kantian Imperative, or other form of social contract, from Locke and Rousseau to Rawls.
If so, what happens when others don’t obey, don’t fulfill the contract? It can be jarring at first, a kind of cognitive dissonance. Like the astonishment at rudeness, when a driver cuts you off without a signal, or someone cuts into line. But astonishment quickly transforms into behavioral change. No one likes to be a chump or to be taken advantage of. There are two options: one is reforming society, the other reforming oneself: adapting to the environment. One is grounded in fight, the other in flight. Without conscious intervention, rude, selfish behavior tends to drive out good, cooperative behavior. When the social contract is broken, people adapt unconsciously, sometimes uncomfortably, to the new reality. These are the frayed edges of civilization which are in constant need of tending and mending. Ultimately, as Beinhocker points out in his work, The Origin of Wealth (Beinhocker, 2007, p. 430), culture and attitudes matter for prosperity, and this race to the bottom leads to impoverishment.
Aristotle said humans are social beings. Goodness and the good life are acquired skills. We learn to be civilized human beings through socialization in a good society. To have a chance at self-actualization and happiness, one needs a context, a community, a fair playing field, a zone of predictable fairness.
That fair playing field is created by the rule of law, where people feel free and secure, able to self- actualize as individuals and groups. For this, the substantive laws should meet the Kantian standard of “autonomy,” submission to law of our own making, or, if not of our making, at least, “re-cognizable” as fair by each person in each society in each generation. This operation of the individual psyche is the basis of the rule of law. Otherwise, instead of rule of law, we end up with a rule by law, (Hansen) a society of nitpickers that enforce the letter, not the spirit of the law, where people look for loop holes or encode them in the law and can say with a straight face – it may be immoral, but it isn’t illegal. Such a system of rules lacks compelling force, logical or moral.
This predicament is not new. In China, for example, the Confucians faced this situation more than 2500 years ago. Others at that time argued that the only way to achieve law and order, rule of law, is through fear of enforcement and punishment, what today would be called deterrence and retribution. The Confucian counterargument in the Analects 2:3 was that this would degrade the population and lead to rule by law, rather than rule of law. (Confucius) For when people comply with the law solely to avoid punishment, goal substitution takes place – people use their ingenuity to find other less costly ways to avoid punishment – quibbling and misinterpreting the law, conniving with the legislator or judge. The result is an unruly, unjust society. On the other hand, if compliance with the law flows from inner virtue and habit, de and li (Hansen), then the society and individuals are self-ordered by the internalized law, in a Santayanan free state. (Santayana, 1968, p. 85)[1] Their conclusion: external enforcement without internal cognition backfires. In short, voluntary compliance is the key to the rule of law and a just society.
Voluntary compliance whether through self-discipline or habit derives from our attitudes toward law, solidarity and justice. This is also captured in the Armenian words for law and goodness/morality, օրէնք orenk and բարի bari, both of which derive from words meaning “way” or “mores/good habits,” as their cognates Zen and bearing attest.
The reason I’ve mentioned all these names from different times and places is not to engage in scholarly name dropping, but to point out how these phenomena do not belong to any particular time or place. They are endemic to the human condition, everywhere, at all times. Law has a tendency to be jurisdictional and historical; psychology, to be universal. Rule of law is truly at the crossroads of psychology and law, a matter of self-awareness. We need to understand our situation and have a grasp of reality.
So I will close by posing a perplexing situation. It involves Armenian Genocide recognition. It may or may not matter to Americans psychologically whether the United States recognizes the Armenian Genocide, but it seems to make a big difference to Armenians (and the peoples of many other countries) when the society of states, the community of nations, appears to treat recognition of this criminal offense as a discretionary political act.
Does this have an impact on our attitudes toward justice and the rule of law? If the law doesn’t apply when it comes to the most blatant and egregious crimes, then what is the lesson or implication that Armenians and others draw from this situation?
Law as it is experienced shapes our attitudes toward the rule of law. One can preach lots of rules in classrooms, pulpits and textbooks, but human beings appear to be wired to learn from real life the rules they need in order to live and survive. To end where we began, rule of law is a state of mind.
I congratulate the organizers for identifying such a fertile and timely theme for scholarly research and thank the sponsors of this conference. They will be recognized later more formally, so I will dispense with further comment at this time, except to wish to you all fruitful deliberations as you engage in the re- cognition of law.
I am now pleased to invite the Deputy Minister of Justice of the Republic of Armenia Mr. Emil Babayan, a graduate of the American University of Armenia’s LL.M. program and a member of our faculty, to say a few words.
[1] “One of the blunders of philosophy has been to think of freedom as a cause. Freedom is a result of perfect organization. The problem is so to organised ourselves as to become free. Nature must do this for us, not a non- existent power called liberty; and our physical and psychical persons are the parts of nature that do this for the spirit within us, whenever they can.”
REFERENCES
Beinhocker, E. D. (2007). The Origin of Wealth: The Radical Remaking of Economics and What it Means for Business and Society. Boston: Harvard Business Review Press.
Confucius. (n.d.). Analects.
Hansen, C. (n.d.). Rule of Law in Ancient China:Chinese Substance or Western Function? Retrieved November 7, 2013, from Chad Hansen’s Chinese Philosophy Pages: http://www.philosophy.hku.hk/ch/Substance-Function.htm
Mullane, M. (2007). The Rule of Law. In J. Allison, D. Gediman, J. Gregory, V. Merrick, & eds., This I believe: The Personal Philosophies of Remarkable Men and Women (pp. 165-67). New York: Henry Holt & Co.
Santayana, G. (1968). Friendship. In G. Santayana, & D. Cory (Ed.), Birth of Reason and other Essays (p. 85). New York: Columbia.
