This essay, by Yale philosophy of law professor Paul Kahn, explores the contrasting and complementary views of "project" (intentionally designed) and "system" (developing without intentionality) and how this applies to the law, to nature, and to international affairs:
"Toward the end of his Philosophical Investigations, Wittgenstein considers the well-known duck/rabbit illusion. The same image can appear as a duck or as a rabbit. It cannot, however, be seen as both at once; our perception moves back and forth between the two. We cannot decide to see just one. That seeing as will determine a set of expectations and connections – uses – that will sustain different forms of enquiry responsive to different questions and moving in different directions. The image does not change, but the world within which it has meaning changes. The law, for example, is like that duck/rabbit image. ... ‘Project’ imagines law as the product of authors who are free agents capable of acting with intention after some sort of deliberation. For the ‘project’ imagination, legislation is the paradigm of law. Meanwhile, ‘system’ imagines law as a well-ordered whole that develops immanently and spontaneously from within individual transactions. System is a relationship of parts to whole, and of whole to parts. For the systemic imagination, the common law is the paradigm. Judges decide individual cases relying on precedents – that is, relying on prior acts of the same sort that they are pursuing. Out of those countless individual decisions, a system of order emerges. That system has identifiable principles – legal norms – but those principles were not themselves the product of an intentional act. ... In a project, the idea of order precedes the act; in a system, we discover the idea of order only after the act. ...
"Systems have the capacity for maintenance and some ability of repair. An injured organism can heal itself; a market in disequilibrium can return to equilibrium. Of course, some systemic disturbances are beyond these capacities: systems do die. Projects, though, ordinarily have no such capacities of repair. When a watch breaks, we take it to the watchmaker for repair. When legislation fails, we go back to the legislature for a new plan. Today, artificial intelligence is challenging that distinction precisely to the degree that we can teach machines to learn and to respond. This effort to endow a project with systemic qualities is not new. We have seen this intersection before. The US Constitution’s framers thought they were building ‘a machine that would go of itself’, because it was to have some capacities of repair when it lost balance. ...
"The contest between project and system continues. In our deeply polarised political age, these conflicting images provide the organisational forms for much of our ideological combat in the law. The originalists, who dominate the US Supreme Court today, are relying on a picture of project; they are opposed by those who believe in an organic constitutional order of system."
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