“And the magpies on the farm Chattered loudly in alarm. They hopped about the hills and plains And shouted to the storks and cranes: “Listen, listen, everyone, The crocodile’s gobbled up the sun!”
The above exert is from the 1927 children's poem “The Stolen Sun” by Korney Chukotsky which tells the tale of a crocodile who decides to eat the sun much to the dismay of his neighbors causing widespread chaos and grief. His motivation for this act is based on a whim – he eats the sun simply because he can.(1) It isn’t until the rest of the animals convince an old bear to get involved that the sun is returned through violence. While being the hero of the story, the bear did not act altruistically but rather much like the crocodile he acted in accord with his own interests. The crocodile did what he wanted to because he could and the situation was only resolved when another bigger, and stronger character came along and acted in accord with his own self-interest. This poem is a useful illustration of what a world without rules would look like, a world where disruptions occur at a whim and a warped sense of equilibrium is only restored when someone comes along to deliver it on a whim. Justice is replaced with a cycle of violence and the unpredictable interests of individuals leaving the wellbeing of all dangling at the mercy of the crocodiles and bears of the world.
Chukotsky offers a deceptively simple account of a world without rules and an account that conceals the complexity of rules and societal systems. The more I reread Chukotsky’s tale the less I am convinced that its cast of characters differ from one another. They are all one and the same with each being no better or worse than the crocodile as each is directed by self-interest. The rabbits desire the returning of the sun in order to find their way home, the sheep are too scared to venture out into the fields without sunlight, the bear wants to return the sun in order to find his cubs, the wolves are indifferent and the lobsters don’t care at all. Echoing the theme of sameness, we can see that within both Chukotsky’s world and the realty of modern legal societies there are instances of injustice. With or without rules, and laws, injustices occur. This is so because to know a rule is not the same as understanding a rule, understanding a rule is not the same as accepting a rule and accepting a rule is not the same as abiding by a rule. What I am referring to is the qualia of a rule.
When I speak to the qualia of law I am not attempting to discern the qualia of law in a general sense but the individual experience of equality within the context of the contents of a specific law - the quale of the acceptance of law. Frank Jackson remarks that it is simple to explain every account of the physical world but to explain the itchiness of an itch is an entirely different matter entirely. (2) Accordingly, we must define the itch to our scratch so to speak. We must first separate how a law is perceived. I would offer two understandings of law; one that relates to simple informational experience and another that concerns the perceptual experience of law. The first is easy to define as it is simply the contents of the law and how it is communicated, the words used, the methods of communication, the methods of indexing, the methods of recording, the publishing of the law and so on. Amongst scholars and lawyers often one may remark that so and so decision in so and so case was excellent, or section this of that act is terrible. Simple stuff. It is when one moves to the perceptual experience of a law that the topic of discussion becomes considerably more complex as when it comes to perception we move beyond concrete physical features and we move into the realm of the abstract. I know what the law is prescribing or prohibiting but how can I explain the experience of equality or the mental state of acceptance? This is the itch to the legal scratch. What does equality feel like? How does one experience equilibrium? The premise I am presenting is simple and concise – to possess knowledge of a rule is not the same as possessing all the knowledge of a rule.
To understand something isn’t to know something. The act of saying what a rule is, as in the careful explanation of what the rule is requiring or prohibiting, is really only the communication of the command and not actually the communication of the essence of the command. The essence of the rule is one thing but the experience of a rule is another. There is the concept of a rule as a communicated command and independently the potential for someone to learn this concept and internalize it. This is the qualia of a rule, a deeper instance of the rule that is separate from the knowledge of a rule. It is the perceptual experience of accepting a rule. Frank Jackson presents a similar dilemma in relation to the issue of knowledge-based qualia through the use of the Black and White Room thought experiment.(3) Mary is an individual with full visual abilities and cognitive functions, she is a scientist who specializes in neurophysiology but for one reason or another she is forced to investigate the world from a black and white room. Outside of the room there is a normal world of colour but inside the room there is now a significantly diminished spectrum of colours to experience.
Mary possesses both the physical abilities required to perceive colour and the full knowledge of what colour is and the science behind it. She knows what red is, she is aware that red is not the same as green but yet she has never actually seen red, or green. The question is this; if we release Mary from the black and white room what will happen? It isn’t too clear what will actually happen but one thing is certain – Mary will experience something new and confirm that her prior knowledge was incomplete. But yet to say this is a problematic conclusion as Mary possessed the full knowledge of what red, green and so on are. The only reasonable conclusion that we can gain from this experiment is that the knowledge of colour is not the same as the experience of colour and thus there must be something beyond simply knowledge of something. By exiting the black and white room something has changed in Mary’s understanding of colour thus there is something we are missing if we conclude the knowledge of colour exists purely in a physical sense.
If there were rules in Chutkovsky world would it have made any difference to the crocodile? In this world where rules are absent to expect the crocodile to understand the quale of the concept of a rule is rather unfair. Even if one was to explain to the crocodile that he should even consider to follow a rule we can't assume this would mean anything to him. To declare to the crocodile that he cannot eat the sun would be a hollow endeavor as we cannot assume the essence of this statement is not falling on deaf ears. Let us consider this problem from another angle. What if the crocodile did live in a world with rules, or some manner of primitive rules? We can call this basic rule the rule of the jungle and we can define this rule as being the general agreement amongst the animals not to disturb the peace of one another. Such a rule can hardly be considered a good rule but it does outline some basic form of order and this is enough for the sake of this illustration. In this vision of the world the crocodile finds himself in there is a rule, he just appears to be choosing to flaunt them. Let us ask the question again – does the crocodile know any better? As we have established that knowing there is a rule is not the same as the knowledge-qualia of a rule so accordingly the response to this question is no, we cannot expect the crocodile to know any better. We can only conclude the qualia of rules exists independently to knowledge of a rule. With or without rules the outcome is the same unless the quale of the rule is known to the crocodile. Thus, we must consider not the law or the rules in question but the qualia of such concepts.
This is an alarming conclusion. Chutkovsky’s poem illustrates precisely the injustice of a world without rules yet we cannot definitively say a world of rules would be any better. To offer the defense of ignorance to the crocodile would undermine the value of rules entirely. This alarming because just as the quale of law exists independently to the physical experience of the law so too does the physical exist independently to the perceptual.(4) Arguments of an abstract kind concern the internal mechanisms of cognition and the perception of equality hold no sway over the physical reality of the world – laws exist nonetheless. So, while the crocodile did not know the quale of the rule this does not mean the rule does not exist. It does, and the crocodile broke it. Despite this we must coincidently accept that to the crocodile there is no moralistic or ethical grounds to base any form of fault. He simply broke the rule, irrespective of the quale of the rule. The only possible exit for this logical loop we have walked ourselves into is to accept that while the quale of law exist, the perceptual experience of a law must be causally independent from the physical knowledge of a law. Does this mean the qualia of law is a pointless topic of discussion? It would appear so as we have confirmed such topics hold no bearing over the physical world but yet there is something interesting in the topic that is difficult to avoid.
If the qualia of law were known litigation on matters of contention would not occur at all as all relevant parties would understand the importance of the concept of adverse possession, or any other manifestation of law in whatever context or form. This is of course a fantasy to suggest and no such society exists at present. Frank Jackson concludes his understanding on the knowledge-qualia problem by commenting that such matters are beyond our understanding. He likens our grappling with the knowledge-qualia dilemma to that of slugs arguing at the bottom of the ocean over some silky residue which alludes their understanding. To the slug the slime debate is everything but to a human looking down at the slugs it is all pointless and trivial. Perhaps too the qualia of law is a frustrated pursuit and simply the result the limits of our own cognitive abilities. The knowledge-qualia dilemma exists within law, that is at least somewhat definitive but as I have illustrated once we act out the logical steps of this conclusion we arrive in unchartered territory. To excuse law breaking is unconscionable but likewise to impose full moral responsibility is equally as unsettling.
We rest our framing of modern laws within the cascade of abstract concepts such as equality, justice, the rule of law and so on.
Such understandings must be approached with caution as we are allowing for the possibilities of the knowledge-qualia dilemma arising in relation to these concepts. How does one communicate the experience of equality to someone who has never experienced it? Such communication is essential to the acceptance of law but yet we must also accept that acceptance is not required for a law to exist. HLA Hart writes of such a conundrum in his The Concept of Law by way of the pathology of a legal system. (5) According to Hart there is a fatal flaw present within modern legal systems which manifests as the divorce of validity and acceptance resulting in a system of primary rules devoid of critical reflective perspectives. Waluchow echoes Hart’s concerns and comments that such an occurrence could perhaps be remedied through the coupling of the mechanism of legal validity with democratic procedures. (6) At best this is a patchwork remedy to the inevitable flaw of the legal system but in light of the knowledge-qualia problem perhaps this is the best we can offer in the world as it presently exists. Perhaps like we look down at the slugs in pity so too will future generations look at us.
Chukotsky’s tale of the crocodile who ate the sun offers us a childlike vision of a world without rules. In his account the actions of crocodiles are balanced out by the actions of bears but as we have now observed such an account is deceptive – in a world without rules no party is different from the other and even those seeking to do justice are no better than those who inflict injustice. While Jackson concludes that the qualia of knowledge is beyond our capacities for experience, I am perhaps more hopeful in relation to law. Perhaps by adopting a more widespread understanding of law as a functional tool we can begin to understand the qualia of law. The purpose of law is to offer guidance, the intent of this act is to establish equality in societal interactions. (7) Within this formulation we can begin to glimpse the qualia of law as the golden thread of rationality that weaves its way through all laws. Where the qualia of law is absent, and however we choose to define this system we are ultimately all no different to the crocodile or the bear as we are each acting in accordance with our own self-interest. The true benefit of law, and the full potential it offers is still beyond our grasp at present.
Perhaps Jackson is correct and the knowledge-qualia problem is a fruitless endeavor but we should not abscond attempts to consider the qualia of law and to allow ourselves to be inspired by such pursuits. I will leave you with a paragraph from Chukovsky’s poem as a closing thought;
“Go on, Bandy-Legs, and grab him, By the scaly collar nab him, Bash him up and underneath, Tear the sun from his ugly teeth.”
One can hardly recognize any feature of justice in the above account of the bear’s retribution against the crocodile. To remedy one injustice with another is no less permissible than the initial act of injustice which spurred retribution. The bear’s justice is ugly and violent. Hardly the qualities we seek in our daily lives. Perhaps the first step in exploring the essence of law is to first recognize the purpose of rules. While we do not yet know what a future system of law will look like we do know what it shouldn’t look like. We should use Chukovsky’s poem as an illustration of precisely the forms of system we should seek to leave behind and it is my belief that in doing so we are already one step closer to the future of law.
Footnotes:
Korney Chukovsky, The Stolen Sun, full English translation accessible at https://ruverses.com/korney-chukovsky/th,e-stolen-sun/
Jackson, F. (1982). Epiphenomenal Qualia. The Philosophical Quarterly (1950-), 32(127), 127–136
ibid pg 128 - 129
ibid pg 133
Hart, HLA (1961), The Concept of Law, Oxford University Press 3rd edn (2012), pg 117 - 123
See generally Waluchow, WJ (2007), A Common Law Theory of Judicial Review: The Living Tree, Cambridge Studies in Philosophy and Law, pg 183 - 193
See generally Hart, HLA (1961), The Concept of Law, Oxford University Press 3rd edn (2012) and Luhmann, N (1972), A Sociological Theory of Law, translated by Elizabeth King-Utz and Martin Albrow (2014). I have adopted a functional view on law based entirely on that presented by Hart.
