Law's Complexity: a Primer

• Publication year: 2010

Georgia State University Law Review

Volume 24 , „

Article 9

Issue 4 Summer 2008

3-21-2012

Law's Complexity: A Primer

J. B. Ruhl

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Recommended Citation

Ruhl, J. B. (2007) "Law's Complexity: A Primer," Georgia State University Law Review: Vol. 24: Iss. 4, Article 9. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss4/9

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LAW'S COMPLEXITY: A PRIMER J.B. Ruhl*

Introduction

The legal system. It rolls easily off the tongues of lawyers like a single word—thelegalsystem—as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life?

These are foundational questions; yet, of the tens of thousands of references to "the legal system" in legal literature,¹ few of the authors say anything about it as a system. To be sure, questions about the nature of law and legal systems have occupied jurisprudential investigations for centuries, but even in this subset of the literature little attention is given to the system half of "the legal system."² After centuries of building and thinking about our legal system, we still do not have ready answers for such questions of the first order.

One thing over which many authors seem to agree, however, is that there is something "complex" about the legal system, using the two terms in close proximity as if to impart some deeper understanding.³ So, for example, one author suggests that "no complex legal system can provide clear textual answers to every issue or dispute that falls

* Visiting Professor (Spring 2008), Harvard Law School; Matthews & Hawkins Professor of Property, The Florida State University College of Law, Tallahassee, Florida. I am thankful to the Georgia State University Law Review and GSU Professor Gregory Jones for organizing the symposium on Dynamical Jurisprudence: Law as a Complex System and inviting me to participate, and to Vicki Shiah, HLS class of 2009, for research assistance.

1. A January 9, 2008, search of Westlaw's TP-ALL library for "legal system" yielded 80,962 documents.

2. For a summary of some of the literature on law as a system see J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and its Practical Meaning for Democracy, 49 Vand. L. Rev. 1407 (1996).

3. A January 9, 2008, search of Westlaw's TP-ALL library for "legal system " /s complex! yielded 2,312 documents, and a search for "complex legal system" yielded 226 documents.

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within its scope as time goes by,"⁴ and another claims that intellectual property rights law "has radically evolved since the nineteenth century when there was no structure, to the present where there are complex legal systems and rules in place."⁵ One author even goes so far as to refer to "massively complex legal systems," suggesting that they "require a great deal of constituting."⁶ I have no doubt that these propositions are accurate. Beyond conjoining "complex" and "legal system," however, these works and many others like them venture no further into what makes the legal system complex.

Perhaps it is so obvious that the legal system (whatever it is) is complex (whatever that means) that one need say no more about its complexity—it's complex, so there you have it, and that means Proposition X is true. But when one claims that Proposition X follows from the fact that the legal system is complex, in that it will not always provide clear answers, or it requires a great deal of constituting, or it is more complex now than it was a few centuries ago, one necessarily must develop or adopt a theory of what complexity is, otherwise how can we conclude that it is complexity that leads to the truth of the proposition? It cannot suffice to respond simply that the legal system is complicated, or has a lot of parts, or is hard to predict, for those are merely observations—all true I would add—about the consequences of its complexity. What is it, exactly, that makes the legal system complicated, with many parts, and hard to predict? Would not knowing the answer to that question help us better understand the legal system and how to design and employ it for the general welfare of society?

To put it another way, would assembling a cogent, descriptively accurate theory of what makes the legal system complex help us to formulate more accurate and useful propositions about the legal

4. Andrew D. Mitchell, The Legal Basis for Using Principles in WTO Disputes, 10 J. IlMT'L ECON. L. 795, 795 (2007).

5. Christopher B. Conley, Comment, Parallel Imports: The Tired Debate of the Exhaustion of Intellectual Property Rights and Why the WTO Should Harmonize the Haphazard Laws of the International Community, 16 tul. j. int'l & comp. l. 189, 210 (2007).

6. Ernest A. Young, The Constitution Outside the Constitution, 117 yale L.J. 408, 417 (2007) (emphasis added).

system? I have to believe it would, and in my pursuit of such an explanation I have leaned heavily on the theory of complex adaptive systems—the study of systems comprised of a macroscopic, heterogeneous set of autonomous agents interacting and adapting in response to one another and to external environment inputs.⁷ Emerging primarily from the physical sciences in the 1980s, complex adaptive systems theory has spread to economics,⁸ ecology,⁹ sociology,¹⁰ and beyond. Along with a growing number of legal scholars,¹¹ I am working to import the theory into the study of legal systems.

When we talk of using complex adaptive systems theory to inform legal theory, we can think of it as applying on one or more of several levels of contextual depth. At the surface, one might recognize that there are complex adaptive system properties in the economy, poverty, war, terrorism, crime, the environment, and other realms we attempt to manage and regulate through law, and ask simply what that means for law. How should law be configured so as to best approach these complex social and physical systems? At a deeper level, one might ask whether law itself is a complex adaptive system. Why, for example, if the economy and other social systems exhibit

7. There is no universally applied definition for complex adaptive systems. A good working definition is "macroscopic collections of simple (and typically nonlinearly) interacting units that are endowed with the ability to evolve and adapt to a changing environment." European Commission, Complexity in Social Science Research Project, COSI - Glossary, http://ww.irit.fr/COSI/glossary/fulllist.php71etterK; (last visited Mar. 6,2008).

8. See Eric D. Beinhocker, The Origin of Wealth: Evolution, Complexity, and the Radical Remaking of Economics (2006); Robert M. May et al., Ecology for Bankers, 451 Nature 893 (2008).

9. See Simon Levin, Fragile Dominion: Complexity and the Commons (1999).

10. See John H. Miller & Scott E. Page, Complex Adaptive Systems: An Introduction to Computational Models of Social Life (2007); R. Keith Sawyer, Social Emergence: Societies as Complex Systems (2005).

11. A January 9, 2008, search of Westlaw's TP-ALL library for "complex adaptive system " yielded 168 documents. Not all of the entries substantively discuss complex adaptive systems theory to inform legal theory or the design and application of law. The prize for mentioning "complex adaptive system" and "complex legal system" in the same document at the time of my search goes to just two authors. See Bernard Trujillo, Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases, 53 UCLA L. rev. 357 (2005); Julian Webb, Law, Ethics, and Complexity: Complexity Theory and the Normative Reconstruction of Law, 52 Clev. St. L. Rev. 227 (2005). Of course, after this publication there will be at least three.

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complex adaptive system properties, the legal system would not? That does not seem plausible. To push further, if the economy and the legal system are both complex adaptive systems, then one would also expect the two systems to interact complexly with each other, as well as with all the other complex social and physical systems with which they are interconnected. And if law complexly affects the economy and other systems, and the economy and other systems complexly affect law, the distinct probability is that law affects itself complexly.

At its deepest level, therefore, complex adaptive systems theory as applied to the legal system presents a rich and dynamic field of study. It asks whether the targets of law are complex adaptive systems, and if so what that means for law's design. It asks whether law itself, however we define its boundaries, is also a complex adaptive system, and if so what that means for law's design. And it asks how law and its regulatory targets co-evolve and what that means for law's design.

This article orients those three questions within the context of complex adaptive systems theory. Part I provides a short primer on complex adaptive systems theory and suggests ways of usefully mapping it onto the legal system to expand our understanding of its behavior and properties. To make the case for the practical utility complex adaptive systems theory has for law, Part II explores a few of the major implications the theoretical foundation has for institutional and instrument design issues in law. I close by offering suggestions for next steps in the development of the theory of law's complexity.

There is a legal system, and...