By J.B. Ruhl
Post 8: Law and Complex Adaptive Systems versus Law as a Complex Adaptive System
July 28, 2006
Dan’s 7/27 post, which included comments from Paul Edelman, and his post of today prompted me to use today’s post as a sidebar (I’ll get back on track next week) to differentiate between law and complex adaptive systems and law as a complex adaptive system.
I am aware there are skeptics who believe complexity theory is not useful for any purpose and for whom the and/as difference is irrelevant. But I can also appreciate that some people might find the CAS model compelling in the context of physical and biological systems such as weather and ecosystems, but less so for social organizations (or that more empirical or technical proof is needed before they are swayed). For such people, the question is whether complexity theory provides any utility for designing legal responses to physical and biological CAS phenomena. This strikes me as the focus of Dan’s excellent series on disasters, and it poses an important question for law even though it falls short of the "law as" CAS position. If this is as far as CAS models ever travel in law, I'd be pleased, and I think the contribution would be enormous.
For example, if we are convinced that ecosystems are CASs, as many ecologists today tell us they are (see Simon Levin, Fragile Dominion: Complexity and the Commons (1999)), then the legal system, whether it is a CAS or not, ought to take the CAS model into account when engaging in the making of ecosystem management law. Would rigorous mathematical models of ecosystems or of law be necessary to derive value from the CAS model for this purpose? I think not. If we know that ecosystems do not evolve toward a steady state equilibrium, but rather depend on disturbance regimes and emergent properties that cannot be explained through reductionist methods of study, we ought not base legal decisions on the product of reductionist studies or on assumptions of steady equilibrium. As Dan mentions, Brad Karkkainen, myself, and others have suggested that legal instruments geared toward “adaptive management” are probably going to be more successful in the long run than will rigid, front-end decision making processes (see our recent articles in Volume 7, Issue 1 of the Minnesota Journal of Law, Science & Technology).
Of course, the usefulness of CAS models in the “law as” context is harder to establish than in the “law and” applications. Ecologists and economists can measure real-world phenomena to test against the CAS model, such as Dan’s discussion of power laws and hurricanes. That is going to be much harder in the social sciences. As I mentioned in response to a comment on Post 5 in this series, “measuring the legal system is a very interesting concept, and I'd love to have the time and money to do so. If I did, I would test whether the legal system exhibits power laws that seem pervasive in physical system CASs (see the late Per Bak's 1996 book How Nature Works). One might measure, for example, the ratio of preamble to rule text in the Fed Reg over time; the number of new rules over time; the frequency of SCOTUS overruling decisions relative to total decisions, and the time lags thereof; the length of opinions in the FSupp over time, etc. My point is that the legal system produces all sorts of quantifiable output that could be used to measure what it is doing, whether it is changing in meaningful system ways, etc.” I’d be delighted if some reader would like to fund such a study!
Until I find the time and money to do that, however, this series will remain theoretical and depend on non-statistical observations of legal institutions and events. I can appreciate that readers whose work is grounded in mathematical and technical disciplines may want more than that before accepting the “law as” proposition. Rather than have them disengage from this series, however, I am hopeful they will continue to probe the theoretical discussion and suggest studies that could be used to test the value of the CAS model in both the “law and” and “law as” contexts.
Next week I will return to the theme of describing law as a CAS.