Unpredictable Patterns #57: The beauty and importance of law
About product / society fit, modes of legal reasoning and the beauty of legal production of social order
Dear reader,
Thank you for the comments on the last piece. I really like the idea put forward by one reader suggesting that we should be able to predict phases in the public debate by looking at the pattern of stories. This ties into a fantastic discussion on the shape of stories I listened to recently, and made me think that the prediction and forecasting of story landscapes would be extremely rewarding (and hard). The prediction of plotlines should be key to figuring out political change. Thanks for that! Now, today’s subject is about my second love law (my first is philosophy) and why I think we are grossly undervaluing the importance, beauty and power of law in our societies. Hope you like it!
“Too many lawyers”
Here is a common complaint in tech companies: there are too many lawyers, and the lawyers are slowing things down. Engineers should focus on users, and not on lawyers, and the lawyers should just solve the problems that turn up and not bother those that are building the future. Lawyers - and by extension the law - is seen as a drag on the company’s ambitions to make the world a better place (ugh!).
This is disastrous in a number of different ways - not least because the legal aspect of technology is essentially the democratic aspect of technology - and the argument against legal scrutiny of technology is really an elitist position with unsavory overtones of contempt for fundamental social values. But it also misses the mark on a more fundamental dimension - it misunderstands what the law is, and by doing so blinds an organization to the advantages legal reasoning carry.
But let’s start with getting the jokes out of the way. When I studied law, the most common ones were the now rather tired ”What do you call 10 000 lawyers at the bottom of the sea? A good start?” and the more subtle, and grim, ”How do you get a lawyer out of a tree? Cut the rope”. And lawyers have been the butt of many more jokes than that - and there is a reason for this: structured argument is frustrating.
This is why Athens decided to put Socrates to death, and why Aristophanes wrote The Clouds, ridiculing the practice of philosophy. And structured argument without clear answers is even more frustrating - leading to similar jokes about philosophers: ”Why is it cheaper to hire philosophers than mathematicians? Because mathematicians need paper, eraser and pen to work - philosophers do not need the eraser”. So we detest being dragged into argument, and especially when there is no simple one answer given at the end. The law, and philosophy, share the rhetorical form of the aporia - the inconclusive end - unless we go to court (and we will return to the role of courts).
These jokes reflect that frustration and as such they should be reminders to any lawyer (or philosopher) that the love we may have of complex argument is not shared by everyone - and we would do well to think about how we communicate. But that does not mean the law is a lesser form of arguing - rather the opposite.
Law is old. In fact, it is much older than the enlightenment concept of the scientific method that we have. Law has evolved with us for thousands of years. Law is the answer to the fundamental, primary question: ”how do we live together?” And as such it is a form of knowledge that is deeply tied to our nature as political beings.
In ancient Egypt the law was oriented around the concept of Maat - a balance between not just ourselves, but in conjunction with nature as well. The Egyptian goddess Maat, responsible for justice, regulated the relationships of the stars in the sky as well as the relationships between citizens.
Law, in that ancient sense was an expression of an underlying, deep order that needed to be respected and kept in order for the world to work. The same concept is found in the ancient code of the Mesopotamian king Hammurabi - any successor failing to uphold the law would bring a curse down on the kingdom.
Law is the guarantor of order, lawlessness leads to chaos.
It is often noted that law is a set of rules that we have to follow, but this is only partly true. Law is the articulation of the fact that there are rules, and then the articulation of the rules in questions. This double function of law has been stressed by many jurists exploring the law and is found in, among other places, the philosophy of British legal thinker H.L.A. Hart.
This nuance is important: it reminds us that the law is not just the sum of rules, it is the basic acceptance of a rule-based order to begin with. The law rests on a fundamental authority that we all recognize and abide by, to our mutual benefit.
This is the bulwark against Hobbes supposedly natural state of man, a war of all against all, and indeed, also invalidates Hobbes bleak view of us: our natural state is the recognition of this authority and within the space this authority creates, the recognition of the secondary rules that evolve over time.
Law changes, but it changes in a peculiar fashion: the principles of legal change are close to those of evolution - but not quite the same. Evolution acts with variation and selection, and a bit of drift, under heredity. Law evolves in equally in its epigenetic space and its genetic space: law evolves through cases and legal reform. Law is more Lamarckian than Darwinian.
If there is a general recognition of the authority of law - the rule of law - this evolution can be both very fast and very slow - depending on the social order that it regulates and is regulated by. But society always evolves with the law, strongly coupled.
Law is the generative pattern society rests on, and in the vast majority of instances is invisible to us. The law we see - in courts and in politics - is a mere fraction of the laws total impact on a society.
So, when we discuss new products and services from a legal perspective, we are really looking closely at the question of product / society fit. For anyone interested in the more narrow product / market fit question it should be obvious that unless we solve that larger question of product / society fit we will end up in opposition with our communities.
This is why it is silly to say ”tech will be regulated”. Technology is regulated, already - in many different formal and informal ways. What is happening now is a dialogue about the regulatory fit, and if technology has evolved in ways that undermine the fundamental patterns of society. It is discussion of how we live together, and how we develop as a society.
This should also lead to greater humility in this debate - because we are dependent on technology to solve the ever more complex problems that we are facing. The idea that ”technology must be regulated” contains two glaring mistakes. The first is that it assumes that technology is a separate thing that can be decoupled from society and regulated separately. The second is that it seems to think that there is a stable state called ”regulated”. The first is clearly wrong: we are a technological society, and the legal ordering of the use of technology is a part of how we ensure that we meet our challenges as well as we can. The second is also wrong, because it depicts a simplified stable state order applicable to technology - and that is hardly sustainable in a quickly changing world. This perspective risks creating obsolete and even more frustrating regulation that is old before it is passed.
The question should be what social order we believe best answers the question of how we live together, and what role technology plays within that envisioned order. And the question of how we live together should really be focused on the long now - how do we live together and continue to improve in the coming years?
Those are big ambitions, admittedly - but as long as we are stuck in thinking about the regulation of technology as a project that can be decoupled from our overall social order, we will fail.
And if complain that there are too many lawyers in tech companies, we are missing the bigger picture: it is because the innovation is so important and impactful that we need to figure out the technology / society fit.
The use of courts
The court is a unique institution. As German sociologist Niklas Luhmann notes, the law - as exercised in the court - is deeply binary. It needs to decide. A court cannot answer that it does not know, or that it can be this way or that way. A court needs to decide.
That is another interesting aspect of the law. Within this system of rules we have invented a mechanism, an institution, that dissolves the aporias of philosophical reasoning. When we said that the law and philosophy are related, this is where they part ways. At the end of the platonic dialogue there is no need to identify a winner or a loser, but at the end of a court case, the court must decide and a verdict must be passed.
The courts are key part of what makes the legal system so effective and so astonishing. Submitting to the rule of law is not just submitting to the existence of the rules, but also to the interpretative institutions that can decide once and for all how those rules should be applied in the individual case.
In civil law systems the courts are sometimes underestimated, because we have lived now so long with a positivist sense of law, where the idea that there is something more than power exercised through judging has been dismissed. That is a pity, since there is a lot to explore in other perspectives.
We do not need to become full natural law theorists and assume that the court interprets the will of God to recognize that courts exist in a relationship to a highly complex social system with implications for our social order. Courts only deal with a fraction of the cases in which the law orders our behavior, but when they do, they reassert both the rule of law and the individual interpretation of the rules for a given case. They are the foundation on which the legal system rests.
One simple example of how they are often neglected is in the recurring discussions we have of our social contract. There is a need - we may argue - for a new social contract (as suggested by McKinsey in a report a few years back) - but that need or that contract matters little if we do not also think about how it will be interpreted. If there is indeed a need for a new social contract, then, correspondingly, there is a need for a new social court.
Court and contract are not separable - and one key problem we have in our society is that we have no court-functions for shared social facts.
This is true also in the case of alternative facts, fake news and misinformation. We complain that there is no common baseline of facts, when in reality there is no shared trusted institution - no court of facts - that we can turn to.
We have been looking all over for the arbiters of truth, but they have been there all along: the courts are literally arbiters of at least legal truth. And we can go further: there is now ample research to suggest that the modern notion of ”fact” actually owes a lot to the Roman law, and grew out of the distinction between law and fact that gradually emerged in Roman courts. Our modern concept of fact to a large part originates in court, and that is why we need to seek ways to reinvent it in how it emerged.
The law / fact distinction is a much more interesting distinction that the opinion / fact distinction, since it actually operationalizes the facts into patterns that trigger certain rules. That is why courts have to be the arbiters of truth, or fact, because otherwise there is no link between the case at hand and the rule sought.
We don’t need to go to extreme examples of courts determining facts - like the intriguing cases about teaching creationism in US schools - to realize that courts often need to make determinations that are both social divisive and controversial.
There is also another interesting aspect of this, and that is that courts establish social facts rather than scientific facts. This difference may seem suspect to anyone who is a science purist, but the reality is that the common baseline of facts that we are seeking is not what is provably, scientifically true, but what we can and should agree on as we live together.
Social facts are facts we can integrate into our social order without it falling apart, and while it may seem as if we are giving into the notion of alternative facts if we accept anything but scientific facts, that is simply not true. Social facts are shared, alternative facts are chosen on a whim. The agreement underlying social facts is key to their efficiency in the social ordering of society.
Do you still find it preposterous to assert that we should base society on anything else than scientific facts? Then consider the recent biological research presented so clearly by Robert Sapolsky in his book Behave: The Biology of Humans at our Best and Worst (2017). Sapolsky demonstrates that for many criminal acts it is easy too point to biological causes rather than the individual’s own free will - and so that we should really revisit the idea of criminal responsibility for anyone committing a crime - yet we won’t, because our social fabric requires the idea of personal responsibility, rather than a biological cause.
The entire question about how much free will we have is unresolved scientifically, and if we rested criminal justice only on what we know, then why should we punish someone who deterministically ended up doing bad things?
If, indeed, we applied the scientific facts to crime and punishment, it would harm our social fabric - so we stick to the social facts, the idea of individual responsibility and criminal justice.
The production of social facts is a key area of exploration for anyone interested in how we can reconstruct a social order based on a shared set of facts. The role of different court-like institutions in that situation - the careful and intentional construction of arbiters of truth - is a monumental challenge for our society, even if we arrive at a new social contract.
Thinking in law
Do lawyers think differently? Not necessarily - but they often apply an interesting set of thinking tools that can be very helpful, or harmful, to a situation.
One of the often used legal mental models is that of the precedent. The idea that for any case we need to point to a principle that we are the comfortable with applying to future cases of the same kind. If we find that principle we are slowly building a body of case law to complement the legal rules we are interpreting.
This is very helpful for any organization seeking to speed up decision making and create clear behavioral patterns. Once the principle is articulated, it can then be communicated and applied to the set of analogous cases.
All organizations engage in legal thinking like this to some degree.
But this kind of thinking can also go wrong. The precedent mental model can be brutalized in many ways, but one of the more pernicious ways in which we fail when we try to apply it is that we try to find a single fact to trigger a principle. This leads to bad, toy-like organizational law.
It is like when we play as kids: we can play pirates, and you are not allowed to touch the floor. Touch the floor and you are eaten by a crocodile. One fact - touching the floor - triggers the rule, and you are out of the game.
In early content moderation a lot of companies ended up with toy-like rule systems like this. A single gotcha fact arbitrarily limited (a nipple!) led to take down. The reason this happened was scale - in order to moderate complex, fast-growing content platforms there was a need to have simple mechanisms to m make decisions. But it also meant almost mechanical application of rules to cases that had significantly different fact patterns.
The most well-known example may be the horrendous picture of a young naked girl in Vietnam fleeing the war, that triggered a rule in the content moderation mechanism and was taken down - and then, after much pain and a heated debate in Norwar, was re-instated on the platform with the addition of a few criteria for moderation around ”historic imagery”.
The allure of precedent in this case flew straight in the face of common sense, and that is the risk we face, especially when hard cases are being flagged to review.
Courts managed this by having robust escalation channels - rights to appeal - where cases that in some way do not fit with the rule articulated in precedent can be reviewed, and when they are the court will not just apply the rule - but look at the complexity of the fact pattern and make an overall determination of how cases like this should be treated.
Such escalation paths, and focus on the totality of the fact pattern, is key. Any attempt to just apply the old rule is doomed to fail - there is a natural variance in cases that guarantees the need for new decisions, evolving positions and re-thinking.
That said, precedents are enormously powerful organizational tools, as evidenced by the very emergence of large scale moderation, and for the vast majority of cases they work - so this is not an argument for particularism where all cases are individually analyzed as much as an argument for a strong mechanism for evolving the precedent to meet changing behaviors.
If precedent is a legal mental model that speeds up organization, the adversarial argument mental model may help an organization slow down. I have found that it is far to rare for a company to ask two people to argue a case rather than present a powerpoint. Arguing a case requires a completely different mindset, and is a powerful way to analyze a decision.
First, arguing a like this requires what is sometimes called ”a theory of the case” - and articulated, detailed story about what is going on here. (Readers will remember that this is the key question in strategy work, per strategy guru Richard Rumelt). This requires a story, and that is key to understanding anything.
Second, within that theory of the case, the parties have to point to the rules and precedent that they believe should dictate the outcome and why that is the case.
Third, judicial arguing allows the question of burden of evidence to be openly examined. This is something that is often overlooked in an organization. If I say that a decision will be bad, and you say that it will be good - who should then carry the burden on evidence? Maybe it should be you, if what you are arguing for would be a break with tradition? If so, then you will have the harder task - but you are still free to argue hard for your position!
Fourth, the verdict will generate not just an outcome to a decision, but if done in the right way, and written out, will produce social facts for the organization to absorb: this is what we believe!
Fifth, any decision maker thinking like a court will be concerned with the legitimacy of the court. Is this decision too far reaching? Is it too dismissive of some concerns? Will it erode the overall trust in leadership? Those questions are becoming more and more important.
Sixth, ideally - and this will not always be true - the decision will carry greater meaning and perhaps legitimacy if it was made after rigorous discussion and analysis by more than one person in a sort of court like setting.
So, while it may look like a game, arguing a case is actually one of the oldest and most trusted models of decision making we know. And we hardly ever use it outside of court! That seems a pity.
Finally, thinking like a lawyer means thinking in analogies. This is not unique to lawyers, and, in fact, may be fundamental to all thinking - as pointed out by Douglas Hofstadter - but it is a key way to think through things. Legal thinking adopts analogy because it is one of the most profoundly human ways to think, and seeking out analogies is really key.
Thinking in analogies is not as easy as we may think, though. It requires consciously building a library of possible comparables that can be utilized and thought through. If the form of the analogy question is ”How is X like Y?” or ”How is X to Y as A is to B?” it will be really useful to have a small set of things that you can slot in to get started.
Such a library of analogues is personal, but a few generative analogues that I have found interesting to apply to many different problems include things like:
How is X like a game?
How is X like music?
How is X like an organism?
Hos is X like war?
How is X like a negotiation?
How is X like a computer program?
How is X like evolution?
How is X like a ecology?
How is X like a language?
You can certainly come up with others - please share! I do think that there are a basic set of really generative analogues that can be used in a surprisingly large set of cases to generate interesting insights.
So what?
Law is one of the oldest ways of thinking we still practice. It is in many ways older than the scientific mindset and carries traces of religion that remain relevant even in secularized societies. Law creates social order, and carries social meaning, yet it is often looked down upon by those that would think themselves innovative, thoughtful and eager to make improvements to our world - that makes no sense, and is something we should all fight to challenge. Law continues to evolve with and evolve society in ways that are key to any future social order.
We can also apply legal thinking in different ways to help ourselves. We can practice seeking precedents to speed up an organizations decision making, and we can argue cases to slow it down where needed. We can seek out analogies and consciously chart and map social facts to understand where we stand.
Any institutional ambitions or thoughts around social contracts need to also incorporate the idea of courts (and thanks to reader R for a robust discussion around this) - and both legitimate decision making and adjudication.
The coming wave of regulation in tech should be met with legal curiosity, craft and argument - in depth - and explore the limits of how we believe technology fits into the social order we need to continue to prosper.
Thank you for reading!
Nicklas