This article uses tools from the emerging field of complexity theory to explore the role that law plays in the development of the socio-legal system and the way in which the use of law is 'regulated'. In the second part of the article, we translated this lesson of complexity theory into the "arrow of law" model in a complexly structured administrative state.
But path models for legislative changes fail to convey an essential characteristic of the process - the law can only move in one direction along its path of change. This is the classic example of American society choosing one branch of the law's path and later, regretting the decision, trying to reverse direction and choose an alternative branch.
Nonlinear systems behave according to properties that can only be determined by inspecting the collection. The dimension of space depends on the number of variables needed to define the system.” PETER COVENEY & ROGER HIGHFIELD, THE ARROW OF TIME.
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In any case, when any two systems are coupled in this way, evolution in one system changes the fitness landscape of the other. Any evolutionary response in the latter is then felt in the fitness landscape of the former, and so on.
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The Arrow - Decisions Are Not Revocable
The image of co-evolving fitness landscapes illustrates the point made at the beginning of this section – the path of the law is a one-way street. The challenge, however, is that every step up a hill or peak in a landscape (decision) presents multiple dilemmas, even if it is the best decision at the moment. Rodgers, Jr., Deception, Self-Deception, and Mythology: Salmon Law in the Pacific Northwest, 26 PAC.
In other words, following the arrow has its ever-increasing price: due to the irreversibility of the system, decisions that lead to reduced fitness cannot be. Because of the increased expenditure required for each incremental step of increased fitness, the system experiences diminishing returns on its investments of energy. So, "as this exponential slowing of the ease and rate of finding distant fitter variants occurs, it becomes easier to find fitter variants on the local hills in the area." Id.
Thus, the optimal search distance is high when fitness is low and decreases as fitness increases." Id. The implications that this property of fitness landscapes has for the law are the subject of the remainder of this article.
Lessons for the Law on Diminishing Returns and Increasing Risks in Complex Adaptive Systems
- Archaeology - Decreasing Returns and the Collapse of Complexly Structured Societies
Could it be that increasing the complexity of social structure, at some level, undermines adaptive social behavior and thus ultimately leads to the collapse of society. Using the historical record to unfold his theory,2 Tainter describes how the convergence of the first three of these features leads to the fourth. A society thus becomes more highly structured as a system through "the interconnected growth of the various subsystems that make up a society."84 However, the problem-solving properties of this investment in social structure are.
In order to maintain the production capacity of the base population, further investment is made in agriculture and so on. Regardless of its effect on the target, the effects of the law throughout society, as well as the increased complexity it adds to the system (and thus the energy it drains from the system), must be included in the analysis of its overall effects. To some extent, this is intuitive through simple observation of the historical record Burke and other scholars have uncovered.
The literature also leads social commentators to reconsider the importance of the unintended consequences of social action. Burke offers the example of the 1965 blackout in the northeastern United States as an illustration of how "failure in one area can mean failure in all areas." The success of any law depends on the proper functioning of the many other laws.
As this failure reverberates through the legal system, society responds with more interdependent (but not intentionally) interdependent laws designed to regulate the system, increasing the vulnerability of the system.
PROBLEM-SOLVER BECOME THE PROBLEM?
The Problem-Solving Side of the Cycle of Law
1" One of the earliest proponents of the use of law to meet social goals was Roscoe Pound. Similarly, the development of strict liability principles relieved some of the problems of proving guilt that arose for the nuisance plaintiff. The laws of the 1970s were thus an example of emergence, chaos, sensitivity and, some would say, the catastrophic effects occurring in the environmental law system.
Command and control approaches undertaken in the 1970s and 1980s have not achieved the goal of eliminating environmental degradation. Estimates are that such nonpoint pollution "accounts for 65 percent of pollution in polluted rivers, 76 percent in impaired lakes, and 45 percent in impaired estuaries." Id. Thus, solving problems through increasing structural complexity in the style of modern environmental law requires additional investment in the infrastructure of the modern administrative state.
Environmental law is just one example of the approach that is becoming the standard position of the modern administrative state in general. 40 For example, the transition from nuisance to statutes, giving rise to attempts to describe the "phases" of the evolution of environmental law.
The Problem-Creating Side of the Cycle of Law
- Society responds to a perceived problem by increasing the complexity of legal structures - for example, a new law, a
- The increasingly complex legal structure distributes costs and benefits, both directly and through unforeseen mecha-
- With each additional increment of legal structure, each individual moves closer to a unique set of costs and bene-
- As heterogeneity increases, the spectrum of inequality across the population widens, thus leading to other per-
- Society responds to the new problems through further in- vestment in legal structure
As the number of laws increases, the potential spectrum of inequality widens (step 4). In environmental law, for example, even if the total costs to society imposed by regulation were exceeded by the benefits derived from them, this would not improve the situation. the unequal distribution of costs and benefits across the population.”16 The premise of the environmental justice movement is that certain subpopulations—usually minorities and low-income groups—have borne most of the costs and received none of the benefits of environmental regulation.4 7 These inequalities. Inequality concerns the shape of the pyramid, not the absolute level of the pyramid.” MURRAY MILNER, JR., THE ILLUSION OF EQALIY, which documents increased investments in social structures intended to promote equality of educational opportunity, which has not led to greater economic equality). But doing so requires taking into account the pre-existing order of winners and losers and the likely change in that order as a result of the new rule, a task that quickly becomes dauntingly complicated as the winners and losers grow both vertically (inequality). become increasingly stratified horizontally. (heterogeneity).
See MASTERS, supra note 4, at 205 (explaining that “the definition of . . . new rules is of ever-increasing complexity because the new norms must take into account both the new behavior that manipulates the existing system for private gain and the original goals of law"). to provide EPA draft guidance on integrating environmental justice analyzes into environmental impact assessment documents). which argues that poor and minority populations in the United States bear a disproportionate share of the burdens of pollution.
For example, the response to the problem of "brownfields," which the environmental justice movement has pointed to as a prominent example of inequality of influence, has been a heavy dose of administrative programs and legislative solutions, which will inevitably add structural complexity. 49 This answer can resolve dark areas To summarize, we hypothesize that there is a cycle of increasing structural complexity in the sociolegal system due to many factors that Tainter and Tenner identified when applying complexity theory to other social settings.
- BREAKING THE CYCLE OF COMPLEX LEGAL
- Make Less Law - A Self-Imposed Self-Criticality
Once there, maintaining the fitness of the socio-legal system requires ever-increasing investments in structural complexity. As the sand accumulates, it begins to slide off the sides of the table. At this point, the slopes from the peak to the edges of the table are close to the angle of repose for sand.
The fundamental cause of the increasing structural complexity of the law is the additions to the "multitude" of laws. Centralizing the entire legislative apparatus becomes a more efficient (but ultimately disastrous) way of governing. Quantitatively, then, the index of structural complexity of law can measure factors such as the number of laws, the number of pages in code books, the number of regulatory regulations specified in laws, and the cost of complying with laws. with laws.”5 Whatever indices we might construct must be intended.
30:405 The same story unfolds in the history of American federalism, as the gradual dilution of the non-delegation doctrine60. He notes that “the actual wording of the Commerce Clause has become so unimportant that most courts applying it no longer bother to cite it.” Id, In United States v.
After twenty years of command-and-control style of environmental law, for example, we are only now beginning to rediscover the value of laws that promote the use of the market and the dissemination of information. See, e.g. PERCIVAL, ENVIRONMENTAL REGULATION, supra note 132, at 830-32 (discussing different approaches of private and public entities); Dallas Burtraw & Byron Swift, A New Standard of Performance: An Analysis of the Clean Air Act's Acid Rain Program, 26 ENVTL L REP. Nevertheless, the program is undeniably part of the command-and-control regime, as the "market" for emissions trading is created by regulatory fiat.
Therefore, the use of self-critical approaches in the socio-legal system opens up a lot of untested territory, whether it is simply avoiding conflict or supporting some other social convention.16 7. Expanded emissions trading discussed. A recent economic analysis of the reporting program suggests that it creates strong market incentives to change business behavior without direct regulation other than the reporting requirement. Environmental Protection Agency Office of Environmental Justice, Regarding the Fifth Meeting of the National Advisory Council on Environmental Justice4 9 ADMIN.
University of California, Davis [vol. 30:405 laws cannot be fully estimated because of the unanticipated effects the laws will have outside the scope of cost-benefit analysis.1 7' Therefore, cost-benefit analysis tends to generate inaccurate estimates of total costs and benefits and thus potential for inequality. Together, these maxims may allow society to control the rising legal structure of the modem.
