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LIVING SYSTEMS AND THE LAW*

Lane Tracy
Department of Management Systems
Ohio University
Athens, OH 45701

[* Patricia Gunn, J.D., Associate Professor of Business Law at Ohio University, provided substantial assistance with matters of legal terminology and legal history.]
The law is an abstract system of rules and regulations coupled with a concrete system of legislative, executive, and judicial bodies. Law regulates the interactions of human living systems at the levels of individual organisms, groups, organizations, communities, societies, and supranational systems. Systems of law appear to have emerged at the community level, expanding upon moral and ethical thinking at the individual level, group norms, and organizational rules. This paper traces the emergence of the law and examines the ways in which it appears to recognize the equivalence of upper-level living systems.

Keywords: living systems, law, template, fray-out, emergents, juridical person.

Living systems are concrete systems that exhibit the basic characteristics of life. Cells were the first form of life, and all subsequent forms copied the essential characteristics of cells as they elaborated into higher-level systems that could cope with more complex environments. This process of elaboration is called the shred-out or fray-out process (Miller, 1978; Miller & Miller, 1990).

There are at least eight distinct levels of living systems: cells, organs, organisms, groups, organizations, communities, societies (e.g., states and nations), and supranational systems such as the United Nations (Miller & Miller, 1990). Although all levels preserve the essential characteristics of life found in cells, new characteristics called emergents are found at each higher level. The law is one of those emergent characteristics.

The law is an abstract system of rules and regulations governing the actions and interactions of human individuals, groups, organizations, communities, nations, and supranational systems. As such, it obviously has impact upon most levels of living systems. The law is also a concrete system involving the legislative, executive, and judicial branches of government at the levels of the community, the society, and supranational systems.

The earliest manifestations of law appeared in clans and tribal groups, where a chief or a group of elders would enforce the norms of the group. Indeed, it could be argued that the development of a body of law was central to the transformation of clans into communities. It was the development of a legal system that allowed larger numbers of people to live together and transact business. Special legislative, judicial, and executive roles began to develop into a concrete system to administer the abstract system of laws.

The next step upward from communities into states and nations was accompanied by the publishing of codes of law such as the code of King Hammurabi of Babylon, published in the nineteenth century B.C. Law at the societal level in the early days was usually promulgated by royal decree or by the pronouncements of religious leaders. By the time of Classical Greece and the Roman Empire, however, the process had evolved into legislation by representatives of the people.

International law is of much more recent origin. "Although specific international rules and institutions somewhat resembling those of the present international legal system may be found in ancient China and India, in Classical Greece, and throughout much of the history of Europe, yet our present system of international law may fairly be said to have arisen in the sixteenth and seventeenth centuries [A.D.] as a law governing the relations between European nations (Bishop 1971: 12)" The system of international law expanded in the twentieth century through the creation of institutions such as the World Court and the League of Nations. Thus, the fray-out process elaborated the law from its humble beginnings at the group level to encompass the legal activities of all of the higher levels of living systems.

The questions I wish to explore in this paper are: To what extent does the law recognize that organisms, groups, organizations, communities, nations, and supranational systems are equivalent forms of life? Do organizations, communities, and nations have legal rights and obligations that are similar in character to the rights and obligations of human individuals? Furthermore, to what extent does the law accord rights to cells, organs, and nonhuman organisms? In other words, is the law a living systems process that first emerges fully at the community level, and does the law implicitly recognize the equivalence of all living systems, or at least all human systems?

Origins of the Law
Law is expressed in symbolic language called gamma code (Miller 1978). Thus, it had to await the development of systems capable of encoding and decoding abstract symbols. Law could not have been articulated before the level of the organism, where the use of language emerged among human beings. It can be argued, however, that "natural" laws of behavior existed before the development of symbolic language, and that such laws govern the behavior of lower organisms as well.

Law is related to human moral and ethical thinking (Keeton et al., 1984; Shell, 1988). Moral and ethical thinking per se emerged at the level of individuals, but moral and ethical rules are a product of the group level. Morals and ethics concern themselves with proper behavior in interactions between people. The family, the clan, and later the community are the primary sources of explicit rules for interactive behavior.

Within the family and clan the rules and norms of behavior are fairly simple and easy to remember. There is no need to write them down and assemble them into codes. The same is generally true for small organizations. Yet one of the primary differences between groups and organizations is the degree of formality. In organizations the template or charter that records the basic structure and process of the system is usually put in writing. Thus, organizations often have a set of written rules and regulations for behavior on the job.

Even if they are not put in writing, the work rules of a business firm are often referred to as the "law of the shop." Such rules are similar to common law in that they are based on tradition and precedent. The law of the shop was given legitimacy in the field of labor arbitration by the United States Supreme Court in the case of United Steelworkers of America v. Warrior and Gulf Navigation Company (1960).

In the emergence of higher levels of living systems it is probable that communities developed before organizations. In any case, systems of law did not fully evolve until the community level was reached. The greater complexity of communities, involving interaction between people who were not related through family or clan, called for a more elaborate and universal set of rules and regulations.

The development of writing facilitated the process of collecting, sorting, and publishing rules of personal behavior and of commercial transactions. New kinds of relationships called for new rules, and thus the legislative process was born. Because the rules applied to many families and clans, the new rules had to come from a higher authority such as a prince or a council. Likewise, family heads and tribal chiefs could no longer settle disputes that spanned families and tribes, so a judiciary developed. The economic efficiency of communities also enabled the development of special roles such as sheriff and jailor. With these developments what we know today as the system of law was born.

Overall, the emergence of law was also related to the fact that all living systems must have a template that provides the "programming" for its structure and processes (Miller 1978). For a cell, organ, or organism the template is encoded in the genes. The code is an alpha code; that is, it lies in the structural arrangements of deoxyribonucleic acid (DNA) molecules. But the genetic template is not sufficient for social systems, i.e., groups, organizations, communities, etc. The templates of these systems are charters encoded in symbolic language or gamma code.

The charters of social systems form the underlying bedrock of the legal systems that have developed within them. Thus, for instance, the Magna Charta, one of the foundations of the British constitution, established rules regarding the mutual duties and rights of the King and his subjects. The Constitution of the United States of America is the bedrock of the American system of law, to the extent that any federal law can be challenged if it appears to violate the Constitution.

Every living system must also possess a decider subsystem, which is defined as "the executive subsystem which receives information inputs from all other subsystems and transmits to them information outputs that control the entire system (Miller 1978: 67)." For instance, nations require some form of government to make executive, legislative, and judicial decisions on behalf of the nation. The constitution and the government together provide the necessary direction of the nation's actions.

Until a people is able to form an effective government, it is not a living system. Thus, people who aspire to independent nationhood, such as the Palestinian arabs, often form a government in exile and attempt to set and enforce their own laws. When one nation is conquered by another, it may lose the power to make its own decisions and cease to be a full-fledged living system, or it may retain limited decision-making ability as a component of the conquering nation. The ability to make and enforce laws is a very important indicator of the live status of communities, societies, and supranational systems.

Concrete Systems of Law
Although the law applies to human individuals, groups, and organizations, its concrete manifestations do not fully emerge until the community level is reached. Groups ordinarily develop norms and customs but do not codify them into a formal system. Organizations compile and disseminate rules of conduct which come closer to law, but the structures for adjudication and enforcement are usually rudimentary in organizations. When the rules of the organization are challenged, the disputants often turn to the courts of the community for a definitive decision.

It is at the community level that laws are compiled into codes, and Structures are created to formulate, adjudicate, and enforce the law. For instance, a city council is empowered to pass ordinances, the police are given authority to arrest offenders, a judge tries them in municipal court, and a sheriff carries out the judgment of the court. Attorneys for the prosecution and defense aid the process, citing law to support their arguments. These are the concrete manifestations of the legal system at the community level.

Similar but more elaborate structures and processes are found at the level of the nation or state. A legislative body writes and passes laws which become part of the state or national legal code. Police and certain administrative officials at the municipal, county, state, and federal levels have the authority to enforce the laws and to cause those who violate the laws to be cited, indicted, or arrested. Courts in the federal and state systems interpret and apply the laws to civil and criminal disputes. The courts subsequently render judgments that are carried out by various segments of the executive branches of government at either the federal or state level. Supreme courts and lower courts, to a more limited degree, also have the right to exercise judicial review, that is, to declare unconstitutional "laws" that would permit the government to engage in conduct that falls outside constitutional parameters.

There is less concrete structure at the supranational level, even though the complexities are greater. For instance, enforcement of international law relies primarily on voluntary compliance backed up by national armies and economic sanctions. It is apparent that the legal system at this level is not yet fully evolved.

Application of the Law to Living Systems
Given that the law has gradually developed from its early origins in moral and ethical thinking at the level of the individual into elaborate written codes at the national level, it should not be surprising that the law tends to treat individuals, groups, organizations, communities, and nations in equivalent ways. This is simply an instance of the fray-out process at work.

Another reason for legal equivalency of living systems at various levels is that they often have to interact with each other. Human individuals enter into contractual relationships with groups, organizations, communities, and states for purposes such as employment, marriage, purchases, national service, and payment of taxes. Groups agree contractually to perform for systems at other levels. Organizations contract to do business with various levels of government. If the law of contracts did not treat systems at different levels in equivalent fashion, it probably would not work properly to regulate these interactions.

Parallel Treatment

There are numerous other examples of this parallel treatment in the law. For instance, the law recognizes natural persons (i.e., human beings) and juridical persons, which are "legal entities created by national or international law (August 1993: 106.)" Natural persons and juridical persons are given the same legal treatment.

Corporations are juridical persons. Incorporation gives them many of the legal rights and responsibilities of natural persons. Corporations incur debts, form contractual relationships, have legal responsibilities, and pay taxes just as individuals do. They can sue and be sued by individuals, groups (¢.g., a class action), other organizations, communities, and states. Corporations and their officers can be indicted and prosecuted for violations of the law, and fined and/or the officers incarcerated if found guilty. The organization cannot be incarcerated, but its charter can be revoked, which is the corporate equivalent of the death penalty.

In some ways nations are treated like individuals. Perhaps this is a consequence of the fact that the earliest nations were kingdoms in which the monarch embodied the nation. Thus nations have sovereignty rights that are similar to individual rights.

Ownership of property extends to nations as it does to individuals, groups, organizations, and communities. Nations can be held to their promises just as other levels can, although enforcement of a judgment against a nation may be more difficult. Under the theory of restrictive sovereign immunity nations are exempt from being sued for their governmental actions, but not for their purely commercial activities (August 1993), They can also be punished by legal sanctions such as embargoes and withdrawal of diplomatic recognition. The United Nations is often asked to endorse or authorize such sanctions by a nation or nations against another nation.

Differential Treatment

It is also worth considering the circumstances under which different levels of living systems are not given equal treatment. We have already noted, for instance, that nations are sometimes held exempt from rules that govern lower levels. Perhaps this is because the level above nations, the supranational level, is not very strong. Nations cannot simply trust their case to the wisdom of a higher authority. That authority either does not exist or lacks power to enforce its rulings.

At the lower end it is clear that cells, organs, and nonhuman organisms do not have the same legal status as natural and juridical persons. Lower-level living systems do not have legal rights, except in special cases such as laws prohibiting cruelty to animals and protecting endangered species. Even when they do have rights, they cannot represent themselves. As we engage in the process of redefining intelligence, however, it is possible that additional protection may eventually be accorded certain species such as whales, dolphins, porpoises, and some apes.

Life and Death Issues

An interesting question is raised by the treatment of human fetuses under the law. Although volumes have been written about it, this appears to be an area in which the law itself and those who make it are unsure of the status of fetuses as living systems. Thus, laws concerning abortion vary greatly from one jurisdiction to another.

If the law has emerged from our nature as living systems, as I have contended in this paper, then laws governing abortion might be expected to be based on an understanding of the essential characteristics of life. Living systems theory asserts, for instance, that a living system must have its own decider subsystem and the power to control its own processes. The Roe v. Wade decision of the United States Supreme Court seems implicitly to recognize this requirement by putting increasing restrictions on abortion as the fetus develops and it becomes more likely that the fetus can survive as an independent living system capable of its own decision making and control. The Roe v. Wade decision applies a rough rule-of-thumb, however, as medical science cannot yet tell us precisely when a given fetus attains that level of capability.

Laws governing death also seem to reflect living systems thinking. The law in many jurisdictions now recognizes the absence of brain activity as the defining condition. Presumably this reflects acceptance of the idea that a living system must have a functioning decider subsystem. Yet the absence of brain activity is by no means universally accepted as defining death.

Although living systems theory can help us to sort out the issues with respect to when life begins and ends, it must be recognized that there are many other views and forces at work influencing the law. Human beings are living systems, but they are also more than that. Issues of life and death are areas of emerging law in which individuals, communities, and societies often disagree violently about what the law should be.

Ultimately, the law may have to wrestle with artificial intelligence as well. When machines become capable of independent thought and action, it will become necessary to extend the rule of law to these nonliving systems.

Summary
For historical and practical reasons the law tends to treat human individuals, groups, organizations, communities, nations, and supranational systems in equivalent ways. This can be taken as evidence that the law recognizes these are all living systems. Or it can be argued that the law is an emergent characteristic of living systems and that the correspondences in treatment of the various levels is a natural consequence of that fact.

Whatever the reason may be, it is clear that natural persons and social systems, as juridical persons, have equivalent status and are given the same treatment under the law in a wide variety of circumstances, The equivalencies in legal treatment across the levels of living systems is worthy of more detailed study, as are the cases in which different treatment is given. A better understanding of the underlying structure of law might result from such study.

August, R. 1993, International Business Law: Text, Cases, and Readings. Englewood Cliffs, NJ: Prentice-Hall.

Bishop, W. W. 1971, International Law: Cases and Materials, 3rd ed. Boston: Little, Brown.

Keeton, W. P., Dobbs, D. B., Keeton, R. E., and Owen, D. G. 1984, Prosser and Keeton on the Law of Torts. St. Paul, MN: West.

Miller, J. G. 1978, Living Systems. New York: McGraw-Hill.

Miller, J. G., and Miller, J. L. 1990, "Introduction: The Nature of Living Systems," Behavioral Science Vol. 35: 157-163.

Shell, G. R. 1988, "Substituting Ethical Standards for Common Law Rules in Commercial Cases: An Emerging Statutory Trend," Northwestern University Law Review Vol. 82: 1198-1254.

United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 582, 1960.