By J.B. Ruhl
Post 5: Is Law a Complex Adaptive System?
July 25, 2006
In the previous set of posts (1-4) I laid out the basic framework of complexity theory and its lexicon for describing complex adaptive system (CAS) behavior. In this and the next few posts I set out the basis for applying complexity theory to law’s domain and the consequences this has for legal design.
I am going to assume most readers have no problem accepting that complexity theory provides a powerful analytical model for understanding many physical and biological systems, such as weather and ecosystems. Social scientists, however, are increasingly using complexity theory to understand how social organizations (corporations, the military, crime networks, families) behave at macroscopic scales. Some good background is found at the New England Complex Systems Institute,
So, why not law? Any lawyer is used to referring to “the legal system.” I got 10.8 million pages when I punched “the legal system” into Google today. Presumably the modifier, system, in that term of art means something to a lot of people. I propose it means the following:
The legal system (law for short) is a social organization comprised of a multitude of heterogenaeous, interacting agents (judges, lawyers, legislators, etc.) that respond to information inputs according to many rules. Law is focused on managing other social organizations (the economy, healthcare, crime, businesses). Frequently the intended effect of law is to influence how the target social organization treats a physical phenomenon (e.g., environmental law) or another social organization (e.g., employment law). Given that actors in the target and indirectly-influenced social organizations are likely to react to what law is doing to them, and that some of those actors are either actors in the legal system as well or can devise ways to influence actors in the legal system, law experiences feedback from its own behavior and co-evolution with other social (and physical) systems.
Now law is starting to look like a CAS. For example:
- Can the legal system be understood through reductionist study of its agents?
- Does anyone believe the path of the law is linear?
- Go back in time, change some events (say, 9/11) and ask whether that would have made a difference for law’s evolution.
- Examples of crossing critical thresholds? See Joseph Tainter’s 1988 book, The Collapse of Complex Societies, and Jared Diamond’s more recent and popularized book, Collapse.
- The problem of conflicting constraints? Did someone say Patriot Act? Hard to have our cake and eat it too.
And so on. In the next few posts I am going to tease out these points in more detail and respond to questions, objections, and concerns I expect readers might have, such as whether complexity theory is just a metaphor for law (see comments to Post 2 of the series), and the role of norms.