Monday, July 31, 2006

Norms and the Inevitable Consequences of Complex Adaptive Properties in the Legal System

Norms on the range

The Simply Complex Law
By J.B. Ruhl
Post 9: Norms and the Inevitable Consequences of Complex Adaptive Properties in the Legal System
July 31, 2006

Almost anyone accepts that the legal system evolves, the question being according to what principles and producing what effects. Evolution of a complex adaptive system (CAS) brings with it several inevitable consequences that we would expect to observe in the legal system, if it is a CAS, and which we will need to learn how to manage. In considering these effects, it is important to distinguish between legal events, which encompass any occurrence within or affecting the legal system, and legal decisions, which are legal events people cause to happen with intended effects in mind, such as adoption of a law, issuance of a ruling, or selection of a judge.

Feedback: Although a particular legal decision might initially be quite successful at achieving its intended purpose, it is likely to spin off other events in the system which may eventually reinforce or mitigate its own performance. Surgical laws or rulings are unlikely to leave as neat an incision as is hoped.

Multi-Scale Emergence: The legal system has a range of scales in many different dimensions (scope of authority between local, state, federal governments; one court, a district, a circuit, the courts in general; one rule, a set of rules, a field of law), the feedback flow relationships between which are panarchical. It will be difficult to predict events at any one scale based on the events of related scales. For example, although we often place great emphasis on the identity of individuals in the legal system, it is difficult to predict legal phenomena at “larger” scales based on who is in what position.

Sensitivity: There is the potential for what appear to be relatively “small” events to have “large” effects throughout the system, or for seemingly “large” events to have little lasting effect.

Path Dependence: Eventually, we might decide that a particular decision taken in the past is simply ineffective or counterproductive. But turning back the clock is impossible in a CAS. Repeal or overruling might mitigate in the future what we disliked most about the decision, but it does not unravel the damage or (because of the effects discussed above) avoid causing its own undesired events.

Co-evolution: The social CASs that are targets of or indirectly influenced by the legal system are likely to try to evolve around undesired effects and to evolve toward desired effects, meaning that over time any particular legal decision is likely to have effects with respect to those other social CASs of unintended scope and magnitude.

What makes these properties all the more frustrating for people is that decisions people make about the legal system generally are motivated by some normative agenda, whereas the CAS properties of the legal system are completely non-normative. Not all events in the legal system, therefore, can be attributed to a normative source. Yet, when a law or doctrine “goes wrong,” its proponents, who base their support for it on normative concerns, are likely to lay blame on a perceived competing normative agenda and to respond by boosting the intensity of support for their own normative agenda or opposition to the perceived counter-agenda. In other words, they may be inclined to adopt the astute strategy my old rowing coach used to bark at us: row harder, row faster.

But “failure” in the legal system often has nothing to do with a normative agenda of any particular actor or social CAS. Law A might be intended to have an effect on social CAS B, and may indeed have that effect, but having that effect may send signals to social CAS C, which motivates moves that send signals to social CAS D, and so on. The effect of this cascade of co-evolutionary events may be to give rise to a new challenge for the legal system with respect to social CAS N, or it may be to undermine the effects of Law A in social CAS B, but neither such effect necessarily must be based on any particular normative position with respect to Law A. Indeed, the actors and social CASs with which the legal system is now concerned as a result of the effects Law A set into motion may be completely unaware of Law A.

This, I believe, is an important lesson from complexity theory for law—i.e., that much of what happens in the legal system, and particularly what actors in and observers of the legal system might cast as “failure,” cannot be explained under any normative model of law and legal evolution. This is not to say that norms don’t matter or that we should not pursue them through the legal system. Rather, it is to say that we must expect that any normatively motivated decision in the legal system (adopting a law, the selection of a judge, the exercise of discretionary authority) is likely to have effects that are in some degree inconsistent with the normative goal, but that there is not necessarily an identifiable contra-normative actor or entity to blame.

So what are we to do? Do we have to “take the bitter with the sweet”? In some degree, yes, but one reason for studying complexity theory and law is to improve our understanding of how to design legal instruments that have a chance of exhibiting greater fitness and resilience. So the question really is, how can we design the legal system so as to get a better handle “the bitter” and to deal with it more effectively when it arises?

Next: Designing the complex adaptive legal system.


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