Against Law and Politics
The room of Cornelis de Witt in prison The Gevangenpoort, The Hague, 1844, Jacobus Ludovicus Cornet, 1844. Courtesy Rijksmuseum, Amsterdam.
By Caryn Devins
In my work as a lawyer, I have come to the belief that our legal and political systems are beyond reform and cannot be fixed. I have three main reasons for this. First, the legal system is based on a “design” mentality that was doomed to fail from the start, due to the dynamic nature of human systems. It is impossible to engineer systems like we would program a computer; they will always evolve beyond the purposes they were designed for, and it is impossible to predict what they will become. Second, society has an ongoing, destructive love affair with the philosophy of reductionism, and as a result we tend to ignore the co-sustaining, and co-reproducing qualities of systems. In fact, I argue that the legal system is a collectively autocatalytic set which reproduces itself through symbiotic relationships with the entities it regulates. This is yet another force that enables the legal system to behave in unexpected ways. Third, many human systems, including the legal system, have become so overly complex as to paralyze them and risk collapse under their own weight — a phenomenon known as the complexity catastrophe.
These factors are all interrelated, and, in my view, stem from a deeper paradigm. This paradigm is steeped in Enlightenment-era notions that the universe is mechanistic and subject to entailing laws. While this paradigm has served humanity well in many respects, I believe it is incomplete. We cannot transcend our difficulties without acknowledging the dynamic, evolutionary, creative aspects of the universe, and adapting our strategy. We must give up the old command and control models, our old political affiliations, and reconsider what it means to govern wisely.
A meeting to shape a lifetime
Most everyone can point to a moment when their life radically shifted course, forever shaping their direction. Mine happened when I was in my second year of law school at Duke University, and I took a class called “Complexity Theory, Law and Public Policy,” taught by Professor Lawrence Baxter — though I had never heard of “complexity theory” before. I learned so many concepts, such as emergent behavior — that systems have properties at the aggregate level that are distinct from the individual parts — chaotic behaviors, the role of initial conditions and historical contingency, how evolution works by experimentation (such as the random walk on NK landscapes) and many others. These ideas changed my world irrevocably. I realized that the traits of complex systems would make effective, predictable policymaking far, far more difficult than I ever thought.
As I was pondering these topics, I had the incredible fortune to meet evolutionary biologist and complexity theorist Stuart Kauffman. In that first meeting, I presented a theory I had cobbled together from my fascination with complexity theory and federal sentencing policy. I was concerned with sky-high federal crack cocaine sentences that had devastating effects on the African American community. In the 1980s, Congress changed the law so that 5 grams of crack, or enough to fill a few sugar packets, meant a mandatory five year sentence. You would need 100 times the amount of powder cocaine to get the same sentence. Paradoxically, many people, including the majority of the Black Congressional Caucus, supported these sentences because they genuinely wanted to protect black communities from crack cocaine. But despite these good intentions, harsh sentences were given out far too liberally and ended up hurting black communities. Though the mandatory minimums were intended for the worst drug kingpins, they ended up sweeping in ordinary street users and even their friends and relatives, if they were unlucky enough to be charged with conspiracy.
This result was at least partially unintended. In my view, it could be explained as an emergent behavior from the complex interactions of drug laws and society, as a variety of factors came together in unforeseeable ways. These factors included the passage of the Federal Sentencing Guidelines, which led to harsher sentences and less judicial discretion; the nature of crack cocaine, which is usually made at the street level and consumed by low level users; the incentives for police and prosecutors to go after low-level users for easy convictions; the nature of drug markets, which tend to be open air markets in poorer neighborhoods, making them easier for law enforcement to go after; Fourth Amendment jurisprudence, which is more protective of privacy rights in the home than elsewhere, and many other factors. Crack cocaine sentencing was even central to political struggles between the three branches of government, as the executive branch and Congress used it as a tool to strip power from the judiciary.
In other words, there were cascading consequences as the drug laws interacted with drug markets, law enforcement, the political system, and other elements. This was very troubling to me, because it meant that all the anti-racism efforts in the world might not be enough to prevent racially disparate impacts of laws. The problem was much more complex and intractable.
A universe with no entailing laws
Stu responded to my theory by explaining something incredibly powerful, yet very simple. He said that physicists see the universe as a billiard table, with balls bouncing along deterministic trajectories, subject to the known laws that entail the universe. Importantly, the walls of the billiard table are enclosed, meaning that every possible trajectory of the ball is known and calculable in advance. This system is mechanical, deterministic, and closed. There are no surprises, and there is no creativity.
Stu then said to me, “What we are talking about with crack cocaine is something different, something beyond physics or even standard complexity theory. We are talking about a universe where the billiard table has no walls, and the possible trajectories of the billiard balls cannot be determined in advance.” The universe does not operate according to unchanging laws, like the laws of physics, but instead evolves by creatively exploiting existing opportunities in order to create new, unforeseen possibilities. In other words, every action creates new possibilities that not only previously did not exist, but were unforeseen and unforeseeable. Because these possibilities could not be anticipated, they could not be accounted for as inputs to traditional physics equations. Unlike a law-governed world, we do not know what will happen, and we don’t even know what can happen.
Stu called this realm of unforeseen possibilities the “adjacent possible.” In this realm there are adaptive agents, which can include anything from bacteria to human beings to even larger systems. These adaptive agents use existing features in the evolutionary landscape for novel purposes. As a result, they change the landscape itself and create new opportunities for change, in an endlessly creative cycle. A well-known example from evolutionary biology is Darwinian preadaptations or exaptations, where the functions of biological traits shift in response to changing environments. For example, we cannot name all possible uses of the human thumb, and ancient humans had no idea that we would one day use them to type on keyboards. Similarly, crack cocaine sentencing policies served as an adjacent possible niche for a variety of agents in the legal system to meet their own goals. The crack cocaine laws were used in new, unforeseen ways far beyond their initial purpose, which was to crack down on the worst drug kingpins. Instead, the laws were used to enhance people’s careers, to direct law enforcement strategies, and even as pawns in power struggles between government branches. These new uses distorted the impact of the laws in practice, creating a cascade of unintended consequences.
The implications were just staggering. If the universe is dynamic and full of unforeseeable possibilities, then this means we cannot control it. We cannot preordain what we will become. It makes our political system, with its three branches and orderly processes, seem shockingly quaint.
But although this realization may imbue a sense of powerlessness, it also contains the seeds of opportunity. As we relinquish control, we are empowered by the creativity embedded in every thread of our universe. This creativity enables us in ways beyond anything we can imagine.
This one discussion with Stu inspired me to embark on a lifelong exploration of the implications of a radically creative universe, especially for the legal system. I believe we are on the cusp of a major paradigm shift, on the level of the Enlightenment, in which we will move beyond the Newtonian paradigm of entailing laws and into one in which the inherent creativity of the universe is acknowledged. We will move beyond top-down, rigid methods of control and into open-ended, innovative methods of enablement.
Rather than trying to reform the old, we must build something new to take its place, something that is more responsive to our current situation. It is so easy to “tear down,” but so hard to build up. So we must begin to consider alternative governance structures which are bottom-up, adaptive, and holistic, and move beyond traditional political notions.
To see the script of my full presentation at the SEIZING AN ALTERNATIVE conference, please click here.
Caryn Devins is a lawyer who works on emergence in social and cultural worlds. In particular, she studies the growth of the web of laws, including the unintended consequences in the evolution of laws such as Constitutional law.