This is an extremely rough draft of the first part of the project that has been consuming me and will continue to do so for the next year, at least. Sharing now, because why the hell not?
To understand the sense in which we know anything, imagine you suddenly know nothing. From a gauzy, lifting fog emerge some primitive shapes. A rectangle. A triangle. No, it's more than those shapes but some sort of thing for holding other things vertically displaced from the lower plane from which you rise. Now you realize that it's a platform, in fact a table, because that is the name you have for things that are like this. And here, resting somehow on the rectangle that is a table, is a thicket of wavering, broken lines that just now you start to recognize as symbols, encoding thoughts, fixed on a parchment subtly rising and lowering with the random accelerations of air, the air being the invisible thing you feel and breathe.
You are waking from a cognitive void, and the world is beginning to slip into the groove of familiar forms. An awareness permeates every last sensation: These increasingly clear perceptions are given meaning only by the associations you are now recalling. There is no sense and no awakening at all without the drawing of these connections. Your brain is rebooting.
So far, you accept the flood of meanings as consciousness returns to you. The symbols crystallize into the encoded thoughts of a language you begin to understand again. And now you see that the paper carries the promise of conflict. One entity -- surely very much like you and yet not you, you assume -- claims not "to have" a thing that is "wrongly" "had" by another entity. What do these things mean?
All the shapes in this room, one by one, merge with their counterparts that exist as definitive examples in the re-innervating recesses of your brain. Books. A door. A lamp. This is the floor. That is the ceiling. Or at least this room's ceiling. This is a room, right? Does it "have" things? It has a ceiling. You are now aware that there was a complete set of thoughts and understandings that you had before you were unconscious. And you think that you will be fully awake when you have them once again. Immediately, though, you wonder whether this is so. Were you truly awake before? Will you ever completely awaken?
You turn back to the parchment. The conflict in the paper. You have this paper, because, because. Yes, because you must take sides. It is your ... job to say that the entity named Riggs -- and you decide just to assume these entities are like you with conscious and grasping minds -- is right, and the entity named Palmer is not. And now you try to grasp what it means in a world of other people to say that one of them is right and the other is not. There, near the top of the page are the words "law" and "court," reminding you that your job is to do something that will cause the group of people called a "court" somehow to use what it calls "law" to say that Riggs is correct.
Did you ever know more than this? For at this moment, as your concepts of clock, time, and deadline suddenly sharpen, you realize you must hurriedly use the nearby empty pages of parchment to speak to the court about Riggs' correctness. What will you say? Are you even sure that your former consciousness had the right idea to speak to this group of people it understood as a court? Why that group? Does the court say things? Yes, that is what all of these books on the shelf are about. They are filled with this court saying things.
You realize now that the only way you ever knew what to say to courts like this was from paying attention to these sayings. You had joined a conversation in its middle. You began to form associations between the things it said and about the attitudes of the members of the court. Were you fully aware when you did this?
Then it hits you. You come to know what to write on the blank pieces of parchment in the same way you know anything else in the world. Over time you reduce the chaos of sensory information into recognizable forms. You know the parchment in front of you is itself particular in its form, having grains you might call imperfections if measured against your idea of a parchment. The idea of a parchment, the abstract form, the thought that organizes all similar objects and that allows you the lazy freedom of thinking about reading from them and writing on them without considering each sheet as a new collection of atoms.
So too, you have come to have an understanding of a "court." Its characteristic form, its characteristic forms of input and output, and the processes you believe characterize its behavior in producing outputs, or rulings, from the many possible inputs. But now, having slumbered and awakened, you understand that your thoughts about courts, as about tables, floors, and parchments, are models you ascribe, models that can and do exist at varying levels of detail, each appropriate and helpful for answering some questions but not others. This very act of making mental models and being able to understand your senses in terms of models, this facility when carried out in cooperation with others, this is the law.
The External Description
Let us leave our groggy lawyer and take another, this time external, view of law's function. What, exactly, are people we might describe as engaged in the practice of law doing? They are, at the very least, communicating information: written laws, opinions, verbal orders, rules, and perhaps even the information implicit in enforcement actions. Law could describe the processes and ordering of these communications. "Law" describes the network of information flows and the processes of connecting inputs to outputs, such as they exist to further the cooperation of the participants. Law is necessarily a human-made system for processing and producing information.
So understood, law was our first computer. Indeed, it remains our most complex. The attitude that recoils from or too casually brushes aside this description, perhaps expressive of an innate abhorrence of humanity conceived as cold, metallic, incessant gears, misunderstands both the law and the computer. We should strive to be honest about ourselves and the abstract kingdoms of our collective imagination, the realms of the law, and try to see a little further.
"The" law at any place and time is a cultural quality of that moment. It is a description of something we are doing together now that we believe has some measure of control over how we will behave in the future. And it lays claim over an unfathomable set of possibilities, employing an equally unfathomable level of cooperation to perpetuate its operation.
What we call our law is not the simple, pre-programmed expression of a singular human will. Instead, we find ourselves governed by the constraints of the various communities of which we are a part, some recognizing one another, others strangers. For me, these include the laws of the United States and the states, local zoning ordinances, the terms of my employment , the constraints imposed by family, the norms of neighborliness, the terms of various contractual agreements, and other limitations of which I am hardly aware. We are the subjects of a cacophony of authorities, each, through these mutually allocated constraints, granting us entitlements, the negative spaces for living we call our property and liberty, and defining limitations, our duties and liabilities.
How can there be order in all this? How can law can be a field of intricately pursued purposes rather than a field of warring, coercive utterances? There are some obvious solutions: law as the commands of hierarchical combinations of officials, law as a product of hermetically separated zones of authority among lawmakers, law as "might makes right" where the most powerful lawmakers gain obedience at the expense of lesser ones. Whatever our course, we desire in all this distinct but fully realized goods: predictability, efficacy, and pluralism, among others.
And yet, in constructing this computer, what is it exactly that we ask for? What does it mean to make law and to enforce it? How should we humans act toward one another when engaging in the practice of law? Come to think of it, just what is the law, as distinct from other patterns of communication? We are each born into whatever law is naked, prepared to learn but understanding almost nothing. We join a conversation underway, and only over time do we begin to understand its vocabulary and expectations.
Stay your rolling eyes. I hope to show in this work how our constructed understandings of the realm of law are what provide concrete answers to even the most mundane disputes. This is the aim of any worthwhile thinking, to know better the actual problems we want to face, the solutions to which we otherwise tacitly assume.
To awaken in our understanding of law is to grapple with the sort of "what is law" question that has much in common with the "what is a table" question the groggy lawyer asks on regaining consciousness. The "what is law" question, however, is better conceived as the more specific questions it subsumes, all concerned in various ways with what people are doing when they do things we have come to associate with the label of "law." This struggle, in turn, will lead us to understand why and how people disagree about the law, what is primitive within the law, how we typically theorize about law, and what makes cases of disputes hard. The very first step to seeing the law in this way is to accept that many of our "understandings" about law are assumptions. To make progress we must appreciate the role of such assumptions and that we have them.
I will not argue for a principle that somehow replaces all assumptions with something more "real" or even more grounded in reality but for a theory that identifies the inevitable and crucial role that assuming, or modeling, plays in the practice of law. In sum, I claim that human beings engage in law when they exchange information (of a particular type) while having attitudes of acceptance toward a model they share of the system governing that information exchange. Importantly, no one has a single model they demand all others accept. Instead, our models of this interpersonal interchange are hierarchical and scattered, never reaching a state of complete and coherent specification. What makes law, and indeed cooperation itself, possible is that there exists a level of abstraction such that, under facts prevailing or actually anticipated, a shared model is accepted among the people cooperating.
Law, then, is a dynamic system of shared modeling among participants, where each model can be described in abstract terms of institutions, information flows, and institutional processing or reasoning. This approach fits with current understandings of how humans think about complex systems, but I also argue that it is unavoidable that what we call legal systems exist only as mutable but shared mental representations (or models). The modeling theory is superior to imperial theories of law that attempt to characterize legal systems by insisting on criteria that rely on specific behaviors, practices, people, or text to definitively identify what is law and what is not.
Our mental models of the law, like other such models, exist at varying levels of specificity. Recognizing that two people might have more or less identical high-level models of the legal system but very different lower-level models explains (a) how law can be identified by social facts, (b) why theoretical disagreement about law's content is nonetheless possible, (c) how scholarship and criticism of law come in predictable types, and (d) how seemingly substantive disagreements about law often arise from, or at least can be assimilated to, disagreements about institutional definition.
I proceed first by explaining the sorts of questions the theory is intended to answer, the now-standard questions of analytical jurisprudence. Such questions about the nature of law may seem abstract and removed from law's practice, but I argue that they are always there and that while we often proceed by assuming answers, we sometimes awaken to them and recognize that hard cases turn on them. This can be seen through a process I call "leveling up" in law, a process law students almost immediately recognize as what is "really going on" once it is pointed out.
I then explore a particular kind of model and a particular kind of regulatory problem. The problem is that of managing information and knowledge, and the model is the interconnected network of information-exchanging institutions. I introduce a standard model of information flow, processing, and resulting actions, which can be used to identify and more clearly distinguish regulatory possibilities. Since law can be described as network of information-exchanging institutions, the management of a legal system is an instance of a problem of information regulation.
I next propound a conception of law as an act of shared modeling. I argue that it is inevitable that a description of a legal system must be a mental representation equivalent to a model of institutions, information, and the institution-specific logic that connects informational inputs and outputs. This understanding of law has many consequences for practice and theory. I examine many of them ... in due time.