Justice, Complexity, and Effective Governance in the Twenty-First Century

Constitutional democracy is under strain around the world, creating fears among citizens in many countries. A key source of dismay is a sense that matters that we took to be settled now appear unsettled. Having codified and institutionalized norms upholding fundamental human rights, liberties, and basic norms over decades, we assumed that many issues had been resolved definitively. Having struggled to understand these issues over the past few years, I have come to be-lieve that a key source of our surprise and dismay in seeing established norms abandoned or weakened lies in a fundamental misunderstanding of the nature and function of law. Rather than establishing fixed and eternal meanings, we need to understand law as provi-sional and constantly changing. In this paper, I begin by examining some fundamental assumptions in political theory, par-ticularly the contractarian tradition. In the second part, I examine a recent complexity-based critique which calls into question the possibility of legal and institutional design. In the third part, I consider whether, alternatives to contractarian political theory, notably the work of Amartya Sen, might offer superior grounds for thinking about political justice. In the final portion of my remarks, I consider the implications of these views and offer some scenarios for how legal and institutional development and reform might be accom-plished through more flexible, participatory, and evidence-based approaches based in complexity theory. In conclusion, I suggest that despite the promise of these novel ap-proaches, it is important to recognize that no institutional structures can ensure complete fidelity to the legal norms and that an important role remains for renewal of citizens’ shared commitments to fundamental values and social solidarity.