Complexity Theory for Jurisprudents, Part One, Law’s Hidden Order
Kevin P. Lee, August 27, 2021
Law’s Hidden Order
By “Law’s Hidden Order,” I intend to evoke John Holland’s book, Hidden Order, which is a classic work in the field of complexity theory. The hidden order to which Holland refers is that of complex adaptive systems, (CAS) which have been possible to meaningfully study only recently with the assistance of powerful computers and very large data sets. A common example of a complex system is a hive of ants. The ant hive has order that emerges from the collective interactions of the individual ants. This collective action of the hive is called its emergent behavior. Collectively, a hive of ants scouts for food, builds bridges, transports prey, defends the hive, and so on. But the collective behavior is the result of many individual ants following fairly simple rules. Emergent behavior from a large group is a core phenomenon of complexity theory.
Holland, a biologist, described the simple rules that lead to emergent behavior from the group of biochemical or cells. Although systems theory is not new to the social sciences, it has changed rapidly since the 1990s with the advances in computer power. These new technologies meant that “society could be simulated using a distinct computational agent for every individual in society through a computational technique known as multi-agent systems.” (Sawyer 2005; 2). The capaciousness of computers since the 1990s has allowed for previously infeasible computations, and this, in turn, has led to complex systems being detected in many systems by social science disciplines. The computer systems expand the human potential for pattern detection and thus have revealed hidden order in the dynamics of these systems that was hidden by the large numbers of individual agents and the subtlety of the patterns.
Today, complexity is recognized in many disciplines and studied as a generalized phenomenon in the social sciences, where it involves the analysis of high-level social phenomena. It suggests that the behaviors of large societies are not reducible to sets of deterministic rules, nor are they entirely constructed by cultural narratives. They are, instead, the extraordinarily complicated production of multiple actors. To inquire into the cause of some historic event, like a war, involves consideration of multiple social factors that might include private business, financial institutions, government actions, religions, traditions, legal rules, and multiple other forces that combine to create persistent social phenomena. Although complexity theory has made inroads into social sciences, and some researchers have found complexity theory useful for discovering patterns in the law, so far it has had little influence on the philosophy of law. This is regrettable since complexity theory is having an increasing indirect impact on the law and legal practice through its use in computer science, linguistics, regulatory theory, and other allied fields. Theories of law today must accommodate the finding of complexity theorists to understand the interaction of law with other social and normative systems.
Analytic and Synthetic Approaches to Social Theory
Investigations in the sciences, including the social sciences, generally proceed by breaking the object of inquiry into component parts, describing the traits common to each component, and then reassembling the components into the whole. The emphasis is on describing the parts, and the assumption is that by doing this, the relations among them can be identified and describe. Consider, for example, how biology traditionally examined cells. They were analyzed as collections of components, like cell membranes, organelles, and vacuoles. And, having identified the components, the workings of the cell could be specified. This analytic procedure was unrivaled and led to many of the breakthroughs that have shaped the contemporary understanding of the world.
Despite its success, by the late twentieth century, a rival did emerge with the awareness that for some phenomena, the object being studied loses its coherence or character when it is broken down into its component parts. An example of this would be a flock of birds or a school of fish. The behavior of the flock or school as a whole cannot be understood by looking at the behavior of an individual bird or fish. In some meaningful way, the whole is different from the sum of its parts. It is not that the individual bird or fish lack rules that determine their behavior. But, a flock of birds is not a larger bird — the behavior of the individuals is not synergistic. Something new emerges from the interaction of a large number of them. This emergent behavior must be analyzed differently. The analytic method focuses on individuals rather than wholes, and so the reality of the whole is overlooked (and perhaps destroyed) by focusing only on the parts. The relationships matter more in a system with emergent behavior.
Of course, not only birds and fish display emergent behavior when they are gathered in a group. Human beings do as well. Consider the patterns of behavior that are easily witnessed at sports events or concerts. There are long lines of human beings moving in what appear to be coordinated patterns, but there is no centralized authority issuing commands. Looking down from the stairs in Tokyo station at the mass of swirling bodies below is like looking into a spinning tapestry of movements.
Complexity Theory and Ontological Realism
Complexity theory challenges the rejection of ontological realism, which has been a commonly shared assumption among modern and postmodern philosophers. This is true of the lingering influence of logical positivists, who continue to influence analytic jurisprudence despite their demise in mainstream philosophy. They were explicitly anti-metaphysical, holding that no knowledge of the real is possible, only knowledge of the phenomenological. Similarly, post-modern philosophers reject metaphysical claims as pretexts to reifying power relationships. Nonetheless, there are sound scientific reasons to believe in ontological realism, and sound reasons for philosophers to turn to science to determine its significance for understanding the nature of reality.
Complexity science has motivated subtle and sophisticated analysis of ontological issues. It draws from ontological realism in the philosophy of science and supports realism in social ontology. In the philosophy of science, it is associated with structural realism, which holds relations between entities (many of which are mathematically describable) are ontologically real in the sense of being independent of psychological and cultural description. In the social sciences, Byrne & Callaghan, for example, endorse the claim that complexity is an ontological frame. In social ontology, however, realism cannot mean being independent of the mind in the same sense because social entities would not exist if it were not for human minds that call them together. Realism in social ontology refers instead to claims about the organizational relations of mind-dependent social entities. The entities themselves are mind-dependent, but the organizational structures are independent in the sense of being verifiable or not. Both forms of realism look to the mind-independence of structures that describe relations among entities or actors. Among social scientists, ontological is debated around questions of which social entities should be viewed as real, and which should be viewed as reifications that limit analysis and programs of reform.
A distinction between restricted and general complexity was influentially described by Edgar Morin. By “restricted theories” he means theories that anticipate the possibility of mathematical modeling and universal rules. This approach is found, for example, in Agent-Based Modeling that attempts to describe complex systems by modeling agents with mathematical descriptions. Byrne & Callaghan describe these types of models as “attempts to develop accounts of emergent social reality which can be expressed in terms either of mathematical formalisms…or sets of rules governing the behavior of agents…” They note that a “key distinction” between restricted complexity and general complexity as Morin describes them is that the restricted complexity theories are ontologically realist. They see complexity theory as requiring a middle path between overly simplistic restricted theories and anti-realist general theories. For them, a “soft-fundamentalism” acknowledges the concerns of anti-foundationalism and yet respects the ontological commitments of the mathematical formalism of restricted theories. They investigate the ontological status of groups and individuals, viewing it as an open issue among social scientists that provokes debates about mereology that questions whether mathematical formalisms reify social entities.
Jurisprudence and Complexity Theory
Complexity theory is becoming influential in empirical legal scholarship. A few studies describe complexity as it might exist as a measurable phenomenon within legal systems, and some have even described complex systems in law. And yet, it has had minimal influence in jurisprudence, as such. While this is unfortunate, it is entirely understandable. Jurisprudence tends to move slowly relative to philosophy and social science, and in this case, the bar to entry is high, given the technical dimensions to complexity. Nonetheless, there is much for jurisprudents to gain by engaging with complexity theory. It offers insights into longstanding debates within and between the analytic and postmodern camps and suggests new horizons for research. The relation between jurisprudence and complexity theory (particularly, as it has developed in the social sciences) is the subject of this essay and subsequent ones. It approaches the issues through engagement with two particularly influential reflections on the methodology for jurisprudence: The Hart-Dworkin debate in analytic jurisprudence and the post-structuralism of Duncan Kennedy and Jack Balkin. Wittgenstein's account of the logico-semantic structure of language has been critical to analytic jurisprudence, but today it meets complexity theories in linguistics. Similarly, the critical philosophy of Duncan Kennedy, which is engaged here as an exemplar of the post-modern, is met by complexity theory’s ties to ontological realism.
Complexity theory suggests a path ahead for a new methodology for jurisprudence that is rooted in the ontological commitments of restrictive complexity theory and yet open to the concerns about reified cultural power structures of critical theory. Since these ontological commitments are now widely recognized in the social and natural sciences, complexity theory holds the potential for a truly synectic jurisprudence. Introducing such a theory, albeit in the brief form here, is the goal of the next essay in this series.
