By J.B. Ruhl
Post 7: Is Complexity Theory More than a Metaphor for Law?
July 27, 2006
The idea that the legal system involves a lot of actors and evolves along with other social organizations is nothing new. Roscoe Pound famously observed that “the law must be stable, but it cannot stand still.” So what does complexity theory and its fancy lexicon bring to the table? Is it just a metaphor for law, or is a useful model for explaining the legal system’s behavior?
I confess I can’t prove the legal system is a complex adaptive system. I believe it is, but the most any theory of evolutionary behavior for phenomena of this magnitude can hope for us to supply a powerful model for predicting and explaining what is happening. I believe complexity theory supplies that for the legal system, that is more than just a metaphor.
A symphony is a metaphor for the legal system: a group of diverse musicians of law with a variety of skills and instruments which, when practiced under good leadership, makes beautiful music in the form of rules and doctrines, but which nonetheless often hits the wrong note. This is a nice way of thinking about how important it is for all the “sections” of the legal system to be on the same page of “music” and work together. But it has absolutely no explanatory power for law.
By contrast, law and economics is an example of a model for the legal system. It has explanatory power. It can be used in the design of legal instruments and institutions. We know it is not always right in its explanations. Law and economics, like any model, necessarily simplifies in order to be useful. We know people don’t really have marginal utility functions they pull out of their pockets to consult, and we know the “rational actor” is just a representation of behavior we expect to see based on the law and economics model. So law and economics misses the mark, sometimes grossly. We can try to refine the law and economics model by building in what we know (or think we know) about cognition and evolutionary biology, but these have their own problems of simplification and lack of completeness.
Are complexity theory and its principles of CAS dynamics more like a metaphor or a model for law? Indeed, I believe they have the potential to provide a more powerful model for law than is supplied through law and economics or its variants. I consider the emergence of the discipline of evolutionary economics a reflection of the need for a more dynamic understanding of economic behavior, and I believe the same is needed in law. Complexity theory and the CAS model are, I believe, the best bet for doing so.
Of course, my undertaking in this series is to convince you I am right, which I will try to do in future posts. Happily, I am not alone in thinking that complexity theory has useful applications in law. A separate post supplies a reading list of legal scholarship using complexity theory or some aspect of it to analyze the design and performance of the legal system.
Next: Some inevitable consequences of CAS properties in the legal system.