Law in Contemporary Society
What this is: A claim that Black’s observations (which as Moglen said today aren’t explanations) are the tip of an iceberg rather than principles themselves.

In a nutshell: Black provides top-down empirical generalizations about how law varies with social characteristics. But this is highly suggestive that there’s some bottom-up explanation in terms of more basic human tendencies. That is, his generalizations really look like they result from underlying psychological phenomena rather than merely emerging at the societal level.

Discussion, leaning improvidently on a single extended metaphor: Reading Black’s piece and listening to Moglen talk today, the analogy between Black’s observations and something from high school science kept jumping out at me.

Remember the gas laws? These were empirical observations made by European dudes experimenting with bottles and glass tubing around the 1700s to try to describe gases. Their observations (where other factors remain constant):

  • Boyle’s: Pressure varies inversely with volume.
  • Charles's: Volume varies directly with temperature.
  • Gay-Lussac’s: Pressure varies directly with temperature.

There was no explanation why these generalizations worked: they just did. But of course one wondered. Then came kinetic theory—it’s atoms bouncing around! Do the math and it follows that although individual atoms are unpredictable, these generalizations about their big-picture behavior in groups always hold.

Now compare to some of Black’s observations:

  • Law varies directly with rank.
  • Centripetal law varies inversely with radial distance.
  • Law varies directly with integration.

That these generalizations hold so consistently across cultures suggests that something fundamental underlies them. (Of course, Black’s observations very well might actually be emergent phenomena at the societal level—I just don’t see why to think they are.) But what does underlie these observations? What tendencies of the individuals running around might produce these big-picture results?

I’d speculate it’s the tendencies we’ve been discussing all along (following scripts, shirking from cognitive dissonance, etc.), which I tried to characterize (perhaps idiosyncratically) as decision-making rules of thumb in GregJohnsonFirstPaper.

In concluding: Does this characterization of Black's observations seem reasonable? If so, what might underlie them? If not, why might Black's observations better be characterized as something else (such as independent principles)?

-- GregJohnson - 04 Mar 2009

The similarity jumps out at me too, probably owing to associations with words like varies, proportionally, directly, and inversely as well as the somewhat Asberger-ish tone. The analogy seems clear; chemistry:physics::sociology:psychology, higher level regularities emerging from lower level regularities. Black is particularly pleased that he's able to model the behavior of the law "without regard to the individual ... human nature ... [or] how the individual experiences reality" (7) because he's able to get to the point while avoiding the weeds of psychology. The model claims scientific virtues of predictiveness and parsimony.

When we try to validate or use the model, though, we intuitively feel the need for lower-level explanations. Particularly missing from the piece seems to be an account of equal protection guarantees, welfare/social programs, and philanthropy. In many countries, the United States included, people with low "rank" and high "relational distance" arguably benefit the most from governmental social control; taxes are collected from people with high "rank" and low "relational distance" and used to provide food, shelter, etc. to those who need it. This kind of law complicates the relationships he's identifying to the point that he may not be able to produce a satisfying reconciliation without referencing lower-level explanations. Further, use of his model seems likely to focus on how to undo it rather than how to apply it in higher level engineering. To the extent this is true, it seems he shouldn't be so keen to exclude the underlying psychology, because that is what we'd like to change. The gas laws, by comparison, are particularly useful when stripped of the physical explanations, because the physics is immutable and hence they are immutable; they are used in an upward engineering sense.

I think it's an interesting and insightful piece, I just generally don't like the push toward behaviorism. I think it leads away from the best solutions, and, well, it offends my soul.

-- GregOrr - 05 Mar 2009

I agree that to the extent Black's principles present themselves as immutable laws they push toward behaviorism. That implication doesn't sit well with me either. It feels hopeless. I think this is what motivated me to want to flesh out what the underlying psychology might be--to find some way to reconcile the predictability required to support the sociological phenomena Black observes, on the one hand, with some kind of personal autonomy and dignity on the other.

I was trying to leave room for that by speaking of underlying "tendencies"--not, say, mechanisms, but just likely behaviors. I'm not entirely satisfied with that, though. It still doesn't quite save autonomy. I'm not comfortable with just taking probabilistic unpredictable actions, I want to be able to choose them.

In my first essay, I think, I was similarly trying to save choice from scripts. Scripts don't sit perfectly well with me for much the same reason Black's principles don't. If scripts really work--if pulling strings is so reliable--it again suggests that somewhere down inside one's not really at the wheel. What I tried to do in the essay was to assert that, no, scripts don't always control--they just control when one goes on auto-pilot. One can choose about anything. One just can't choose about everything, because no one has the time and mental stamina. For many things, one has to act without really considering or choosing, by using rules of thumb.

In that view, yeah, in big enough groups, enough people will reliably be on auto-pilot about any particular thing that, so long as the scripts stay the same, the group behavior can be predicted astoundingly well. But about any particular thing, just like with real auto-pilot, one can take the wheel and choose one's action. And there's at least conceptual room for convincing other people to go off of auto-pilot about that thing, too. (I think that's what we're trying to do in this class.) So there's hope that, really, any particular social phenomenon could be changed by choices.

In short, though, ouch. I'm still not really content with such a state of things. But I think I can live with it. At the least, I think it amounts to a sort of Myth of Sisyphus move: assume the meaninglessness of life, and then find value in life nonetheless, so that even if life isn't actually meaninglessness at least you're sure there's some value in it either way.

-- GregJohnson - 05 Mar 2009

*"But about any particular thing, just like with real auto-pilot, one can take the wheel and choose one's action. And there's at least conceptual room for convincing other people to go off of auto-pilot about that thing, too. (I think that's what we're trying to do in this class.) So there's hope that, really, any particular social phenomenon could be changed by choices." *

Greg, in my opinion, has pointed out one of the most important problems/implications that arises if we ascribe any value to Black's model (which I think we should). I would like to share the optimism of the above quote, and to some extent, I do. However, there are substantial barriers to "turning off autopilot" as an individual, let alone convincing others to do so as well.

Black posits that even in less "developed" societies, law behaves the same in relation to the distribution of resources and to the relationships between individuals. However, I propose that, in a modern nation, the established (perhaps inevitable in human society? Black seems to suggest this...) patterns that law follows are even more difficult to challenge as an individual. The common culture, largely defined by schooling and mass-media, inherently seeks to validate and perpetuate the way that the society functions. This could be tempered, in somewhere like the United States, by the fact that there is room for dissent or, as Greg suggests, "conceptual room for convincing other people." However, when an individual is raised on the same structure-affirming information as his parents, and their parents, it should be more difficult for him to disengage with the "state of things" then it would be for someone whose reality is largely defined by their family or village.

Further, even if we can resist these impulses and reach some moment of epiphany that enables us to break from the patterns of group behavior and even react against it (I picture this as something like Edward Norton's transformation in Fight Club), it should be immensely difficult to get others to follow us down that path. Even in the rarified air of Columbia Law School, within the self-selected group of students who chose to take this class, we see significant resistance to ideas challenging certain tenets of our society-defined selves.

This is driven, in our case, by the carrots dangled in front of our faces, which will be given to us if we choose NOT to challenge the behavior of the law. It might require deep dissatisfaction in order for an individual to "turn off auto-pilot", and I question whether most students at the law school aren't actually pretty happy with the state of affairs around them. If you can benefit from the behavior of law in your society more than almost the entire rest of the population, what incentives do you have to challenge it?

Finally, I wanted to address the other Greg's point about the model's failure to explain our society's tendency to use law as a means to actually redistribute resources through the social strata, toward the bottom. While I agree that phenomena such as welfare programs or fundamental rights guarantees seem to suggest that Black's description of law's behavior is not universally applicable, I do question the claim that "people with low "rank" and high "relational distance" arguably benefit the most from governmental social control".

The use of law for "philanthropic", benevolent purposes in the examples that you cite might also be seen as a means of achieving a certain stasis, enabling higher "ranking" groups and individuals to protect their wealth from frontal attack by keeping the people with "low rank" above the level at which they are desperate enough to rebel. Granted, this is a stylized explanation of the legal developments you've mentioned, and is susceptible to criticism in and of itself. However, I think it shows that, although more complex forces strain Black's model, the implications of his section on stratification may be more relevant than we think in our egalitarian modern society.


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r5 - 07 Jan 2010 - 21:42:40 - IanSullivan
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