A question on a law scholars’ position in complexity science

On November 21, 2015, I attended the launching seminar of the NPCS (Netherland’s Platform for Complex Systems). The occasion seemed important to me. Many of you have contributed to its establishment. So first of all: congratulations!

I went there with high expectations of meeting kindred spirits. These expectations were more than met, yet I also encountered a problem, probably specific to the law’s discipline (my discipline). I think the problem is important enough to mention and to solicit your help for addressing it. The problem concerns how to integrate interested legal scholarship into the fibers of the (any!) Complexity platform.

As I have to sketch the context, to outline the problem and to suggest an argued approach for a way out, this e-mail has grown to span about a thousand words. I hope you can find the time for reading.

Background. As a legal-theory person, I have been working on coming to grips with complexity theory for six years now, mostly digesting materials by SFI (external) staff (Anderson, Gell-Mann; Holland, Miller&Page, Mitchell; Newman; Arthur, Farmer, Beinhocker, Bowles, Kirman), supplemented with material by Sapolsky, Gazzaniga, Bloom and Nowak. (There is a glaring lack of legal theorists in SFI (external) staff too).

As my growing enthusiasm found some resonance in a small group of youngsters, mostly PhD students like Zhang, Mair and Ursic, and in a few open-minded seniors (Van der Hof, Zwenne, Custers) we currently have a small gang of law people in Leiden (swarming out to Chongqing too) who informally discuss why complexity theory is relevant to legal theorists, and how (see for instance http://l-m-d.net/wp-content/uploads/2015/02/1-s2.0-S0267364915000084-main.pdf).
We all agree that complexity theory and legal theory ought to be reciprocally involved in these cases where at least one of two conditions holds: (i) the subject matter that is to be domesticated is a complex adaptive networked system (as Zhang claims that communities are) and/or (ii) the legal arrangement under scrutiny is a complex adaptive networked system itself (as Ruhl, Katz and Tussey additionally claim).

We further agree that most of the systemic elements in the Big Problem Situations that humanity currently faces are CASs, often supported and transformed by communication networking (which would explain why eLaw, as an institute for law in the digital society, is alert). And of course we agree that legal theory ought to offer and provide its potential for facing these Big Problem Situations in diverse disciplinary teams when welcome.

Gaining support from the law discipline has not been frictionless. However. Recently I have seen a PhD student graduate on the subject and a few weeks ago my director (prof. Simone van der Hof) agreed to support and promote an experimental focus field in our eLaw research program, named “Law and Complexity in a Digital Society (LCDS)” and asked me to work on it. The establishment of the NPCS appeared to provide an exquisite opportunity.

And it did! It was wonderful to meet so many academics that proved also interested in non-linear emergence of system behavior, in scale-free models, in tipping points (and/or critical transitions) and in in-between, less turbulent dynamics, and in agent based, stochastically constrained, simulations.

An outline of the problem. But below the surface there was a snag. In every conversation I partnered into and made myself known as a law scholar, I was looked at as an alien. At least that is how it felt. And the feeling did not wane away when listening to the answers I got to my stock question: “As a member of the NPCS, you preach cross-disciplinary teamwork. What position can you envisage/imagine for a legal theorist as a member of your team?”
The reactions showed both disbelief in the possibility that the question even deserved a second thought and feelings of the question being unfair, that legal theory ought come up with results on its own steam, results that would convince the scientists of their usefulness.

Such answers add to my misgivings, which damp my initial expectations of the NPCS as a window of opportunity for cross-disciplinary cooperation. They even feed my fear for the NPCS turning into yet another bastion of parochial scientific realism. I guess that defining science domains in a manner that excludes the humanities from projects will help to prevent humanitarian meddling. The risk, I think, is exacerbated by complexity science itself showing scale-free characteristics. Recognizing complexity in DNA and up to the level of the cell and even the body may promote the need to stop right there (Occam’s razor!) and to exclude from the analysis that cells are parts of bodies and bodies make institutions and aggregate in communities etc. I think that Thomas Schelling’s “An astonishing 60 years” of 2005 might illustrate what I mean.

My hope is that the NPCS can remain an open window of opportunity for cross-disciplinary and multi-level scientific cooperation, even when such cooperation means researching for knowledge at the level of DNA, for application at the level of institutions and for its contribution to emerging behavior at the level of communities. Perhaps the sheer speed of new knowledge becoming available, and the slower reaction times in understanding community behavior will warrant early cooperation. Who knows.

Towards a way out. My guess is, that the divide between the sciences and legal theory (seen as part of the humanities) is a corollary of the completely different approaches to their observables (and thus: domains of discourse). I would characterize the divide to be the result of looking for deterministic causes and functions on the one hand, and looking for constraints that allow and support “the right kind of liberty” for deliberate and responsible choices on the other.

When intelligence, deliberation and behavioral choice can be observed (and are considered to be emergent phenomena in a complexity theory sense), then legal theory belongs in the NPCS community because it has tradition, theory, knowledge and experience with designing and choosing adequate institutions that can help constrain the behavior of such emergent phenomena (and their dynamics).

These traditions, theories, experiences and institutional forms may even be of (analogous) value for scientifically understanding emergent behaviors in the observables of other disciplines, perhaps even in general. Like, on the other hand, agent based modeling and simulation may be useful to legal theory, especially when the law tends to become fluid under external pressures.

Who will tell. My suggestion is, that we (eLaw’s LCDS and NWO’s NPCS) organize a high-level seminar on the very subject somewhere around December 2016 with the explicit commission to find out.

My request concerns your opinion (acknowledgment or disavowal) on the use of such a seminar. And if you would feel triggered to participate or help organize, I would of course be very happy when you would be willing to confirm your interest by reply to sender.

Thank you for taking the time to read, and I hope to hear from you soon.

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