Law in Contemporary Society

Always a Work In Progress

Introduction of the Past

Meet Stanley. He is the winner of the 2005 Defense Advance Research Projects Agency's Grand Challenge (DARPA), a 212 km off-road obstacle course in the Mojave Desert. It was not close. Out of 23 finalists, only Stanley finished the race in under seven hours. What is Stanley's secret?

Stanley's Secret

Right and Left Brains

Of all the other autonomous (driverless) vehicles in the competition, Stanley appears to be the most “right-brained.” The right brain is responsible for imagination, intuition, and holistic thinking while the left brain is responsible factual analysis, detail, and ordering. Generally, the right brain drives creativity while the left manages logical functions. The two are connected by another brain structure, the corpus callosum. Some tasks are better served by one hemisphere over the other, but all complex tasks require some degree of cooperation between the two. The amount of cooperation needed may be overlooked. I would postulate that Wiles' proof of Fermat's last theorem required just as much creativity as Beethoven's Moonlight Sonata.

All of the vehicles in the competition, such as Kat-5, had a relatively common driving algorithm: external sensors fed low-level modules that controlled the vehicle's speed, direction and decision making. Each robot had a predetermined set of instructions and made logical choices based on the environment. Stanley operated similarly, but also had an adaptive, holistic learning program that kept a log of "human reactions and decisions" when a human drove the vehicle in test runs. In this respect, Stanley did not operate on a discrete set of rules since his rules could adapt. Stanley succeeded because he was the most human.

Constrasting Stanley and Kat-5 may be instructive for approaching law. The DARPA contest suggests that there is an advantage to using human, evaluative processes over mechanical, logical ones in navigating one's way through future, unforeseeable obstacles. Kat-5, or any robot, cannot tell the difference between a speed bump and a pedestrian who falls in the street—unless the human programmer foresees this problem ahead of time. In Jerome Frank's words, “no one can foresee all the future permutations and combinations of events.” So, are human balancing tests preferrable? Do we have ways of determining when to use balancing tests and when to use bright line rules?

Unask the Question

The hitch here is that these two modes are not distinct. The human creation of a bright line rule is an inherently non-robotic, evaluative process. And, the human application of bright line rules elicits other human, illogical right-brained processes that may be far more disturbing than what was eaten for breakfast. On the other hand, balancing tests seem to always incorporate robotic subroutines. “Undue burdens” and “substantial effects,” are really lists of robotic subprocesses, such as determining whether certain factors are absent or present. The two processes are inseparable to the point that previous questions have the zen equivalent of a mu value.

Perhaps Stanley's software operates like U.S. statutory and constitutional law should operate. The legislature creates initial principles needed to govern, reflecting a set of desireable societal goals. The principles are tested out in the course of everyday life and flaws inevitably arise from their rigid application to circumstances unforeseen by the intial programmers. So, the judiciary steps in, applies law to fact, and refines the intial rules to better serve positive goals. After numerous iterations of applyng law to fact, precedent develops that helps the system navigate through similar future obstacles. Each iteration is a debugging exercise that uses previous errors to avoid future ones.

A Twist and a Turn into the Present

Over the past few weeks, I have marinated and pored over the original unedited prose of the past above. I choose to preserve the thought in its original manifestation (less a misguided paragraph)--not out of laziness, but rather a desire to preserve the idea that I now build upon. I want the idea in its original art. In building upon this essay, I have been as productive as my disposition allows. I spent time absorbing my "editor's" comments and also spent time reading. I consulted texts on particle physics, Eastern philosophy, and class readings. I repeatedly write, trash, and rewrite these words that follow. Paper crumples the floor. The more I read, the more I become aware of a hidden yet pervasive truth: I have not reinvented the wheel. Neither did Duncan Kennedy. My idea is not only unoriginal--it is thoroughly unoriginal.

The R-L hemisphere problem is what my "editor" said it was: a reincarnation. But of what? I see the recitation of a fundamental idea of existence, a duality in life, that transcends disciplinary labels. Quantum physicists see a wave-particle duality. In Chinese philosophy it is yin yang. Kennedy finds it in rules and standards. Pirsig tries to tackle it with Quality. I see it in a dichotomy between discreteness continuity. Veblen's theory opposite conventional economic theory. Tiers of scrutiny against a spectrum. Formalism versus realism. Substance or style. Right brain:left brain. Split-selves. Diametrically opposed poles that are different in perceptions of the same thing. States that logically and illogically exist and do not exist as binaries and non-binaries at the same time. I call them dual-paradoxes, for lack of a better term: dualities that both are and are not, the essence of mu.

All current ideas are in past ideas and all future ideas sprout from current ideas. In terms of substance and style, if one creates the distinction, the R-L hemisphere framework as applied to law is original in style not substance. Regardless, the thought is original to me and helped me get to a place I needed to go that other ways might not have. Appropriately, that is the essence behind dual-paradoxes. Even if Veblen's theory is only a different style (perception), not substance (reality), the process can hasten a conclusion, inspire "new" ideas, and create new personal understandings. Thus, it is different in substance. And yet it isn't. This is a paradox I can live with.



Webs Webs

r8 - 13 Jan 2012 - 23:14:21 - IanSullivan
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