he idea of society may be the most difficult abstraction in our conceptual repertoire, swallowing every other concept we possess. Nothing is outside of society. Every idea we have, our understanding of every material thing there is, we ourselves, become components and artifacts of society and its conversation.
No wonder the idea is so bitterly resisted. For, as soon as we accept this concept of an over-arching social entity, our individual claims to privilege, autonomy and even dignity are diminished accordingly. Our whole existence is seen to be conditioned by and relative to the society around us.
Prior to this idea, only God was outside of and inclusive of everyone and everything. But with the discovery of society, even the idea of God is relativized to a particular conversational process, with cultural facilities and features of its own creation.
This almost theological conception of society as the ground of all personal understanding must take increasing hold on our thinking as global conversation knits the world's distinct societies into a single fabric. It will seem increasingly natural (as first occurred to Hegel) to conceive the totality of global conversation as a kind of "World Spirit" like unto God, and to identify the working consensus of all humanity with reality itself.
With this cognitive reconciliation achieved, we might hope to evolve some form of global federation that seems quite unrealistic today. But until this comes to pass, we face the problem of governing a single global society comprised of any number of overlapping conversations and sub-cultures, at terrible extremes of wealth and poverty and cultural variation.
As this is written, around the turn of the millennium, some 200 distinguishable conversations assert their separate identities as sovereign states. Within these states, and across their boundaries, innumerable conversations flourish, competing and often contending. It is this fragmented situation that we have in mind in speaking of the post-modern world and its government.
Vast as it is, the idea of society is fully exhausted in the possibilities for lawful and criminal behaviour. For the idea of society is fundamentally that of an aggregation of human activities and relationships that maintains a recognizable identity and character over time. All these activities and relationships must be either permitted or forbidden: carried on with society's blessing or in its despite.
To be sure, there is a huge gray zone of activities that are formally illegal but tolerated and also of activities that are formally legal but restricted by peer pressure, public opinion and privately applied sanctions. But the very existence of this border area merely serves to underscore that law itself is a living process and an artifact of the social conversation.
Every conflict of interest and values, every question of social behaviour must either be or not be justiciably susceptible to resolution at law. And what is not justiciable is either too trivial for the law to bother with, too expensive or intrusive for law to enforce or too contentious for law to arbitrate and resolve.
Our idea of law derives from at least four conceptually distinct but overlapping sources. Although these are by no means of equal force, each contributes to our idea of what the law should be and thereby plays some part in shaping what the law (as at some given date and jurisdiction) actually is. The authority of law is strongest when these sources are in good agreement, and progressively weakened when conflicts between them arise.
To begin with, there is Positive Law - the decrees of sovereign power (e.g. a democratically elected parliament). These decrees (and contemplated decrees) are judged by at least three other standards, apart from due process and utilitarian calculations of collective self-interest.
The most primitive of these standards is the intuition of fairness. Impossible as it is to define this notion precisely, there may well be a consensus that a certain law is unfair. There will be cost and danger if legislators and jurists choose to violate this feeling. Insofar as lawgivers will usually prefer to accommodate such a consensus without strong incentives to the contrary, it must be considered a source of law.
Custom, precedent and consistency afford yet another source specifically of Common Law which may conflict both with the decrees of duly constituted power and with our sense of fairness also.
Finally, and (as I would argue) most fundamentally of all, there is a source of law implicit in the logic and necessities of social relationship itself in what I have elsewhere called the logic of conversation. Certain actions, certain kinds of behaviour, strike us as good because they help relationship run more smoothly and freely or to better advantage. Others seem wrong because they hinder it from doing so. In a sense, the latter seem inconsistent and self-cancelling. If everyone played that way, the game would be impossible or not worth playing.