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Prolegomena to a postmodern theory of law Braithwaite, Murray J. 1993

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PROLEGOMENA To APOSTMODERN THEORY OF LAWbyMURRAY JAMES BRAITHWAITELL.B., The University of Toronto, 1983A.B., Cornell University, 1985A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIESFaculty of LawWe^thesis as conformingd standardTHE UNIVERSITY OF BRITISH COLUMBIAOctober 1993© 1993 Murray James BraithwaiteIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.Department of The University of British ColumbiaVancouver, CanadaC.-^\Date c DE-6 (2/88)AbstractResearch in artificial intelligence and law has stalled because it presumes the model of legalreasoning asserted by legal positivism. An adequate model of legal reasoning must relate legalrules to social goals and must respond to critical perspectives. No existing legal theoryaccomplishes these tasks.This thesis asserts that postmodernism overcomes current difficulties in constructing anadequate model of legal reasoning. My methodology is to apply results from the sciences ofchaos and complex adaptive systems to derive the elements of postmodernism from amathematical perspective. This shows how systems can spontaneously construct knowledgeand improve without assuming the possibility of perfect knowledge about social systems. Ishow how law behaves as a complex adaptive system and argue that legal reasoning shows thetype of knowledge-building accomplished by complex adaptive systems. This implieslimitations on what legal reasoning can attempt to accomplish and provides criteria to criticizeexisting legal theories.Social orders emerge from the concurrent behaviour of many individuals. The utility ofsocial orders for society implies that there is value in individuals behaving according to rules.An important implication of chaos theory is that our knowledge about social orders must inprinciple remain imprecise. We can model social orders but the models must employ fuzzyconcepts that are correlated or causally related probabilistically.The fundamental task of legal reasoning is to mediate the requirements of conflictingsocial orders. Some social orders are undesirable, so legal reasoning must include a strategy toexpose ideology and decadence. When law-makers choose between alternative rules, they mustconsider the possible impact of each proposed rule upon desirable social orders. In a hard case,a law-maker must choose to impair either of two social orders. Since knowledge about thefunctioning of the social orders is fuzzy and probabilistic, the law-maker must model the socialorders in terms of fuzzy instrumental goals and estimate the probable degree of impairment tothe goals by each of the alternative rule possibilities.IIThis thesis confirms and advances the "deep-structure" theory of jurisprudence and itsapplication to legal expert systems.iiiTable of ContentsAbstract^Table of Contents^ ivList of Figures viAcknowledgments viiIntroduction  1Chapter 1: Legal Expert Systems^ 8Positivism in Artificial Intelligence^ 9The Deep-Structure Theory of Law 13Deep-Structure Legal Expert Systems^ 18Responsiveness to Critical Perspectives 22Chapter 2: Liberalism^ 26The Logical Foundation of Liberalism 27Two Dogmas of Liberalism^ 30Substantive Equality 33Rules Without Dogma 36Chapter 3: Positivism^ 37Rules and Justifications^ 37Rules and Power 39Rules for Humans 41Chapter 4: Complex Adaptive Systems—A Mathematical Foundation for Postmodernism ^ 42Attacking Knowledge Optimism^ 44Chaos Theory^ 44Chaos Theory Defeats Knowledge Optimism^ 47Emergence 51Evolution—Another Obstacle for Knowledge Optimism^ 52Defining Complexity^ 54Complex Adaptive Systems 55Aristotle's Four Types of Causation^ 58Endogenous Selective Forces 59Capacity to Evolve^ 61Schema Inaccuracy 62Plausibility^  64Irony 65Fuzziness and Probability^ 68Constructed Knowledge 69Characteristics of Complex Adaptive Systems^ 70Chapter 5: Nietzsche—Self as Complex Adaptive System 72Understanding Nietzsche^ 73The Subconscious Nietzsche 76Nietzsche's Childhood 78Nietzsche's Delayed Emotional Puberty^ 80Nietzsche contra Wagner^ 81Nietzsche's Late Period 82Nietzsche's Breakdown 83Nietzsche the Dancer 85Nietzsche's Philosophy^ 95Fantasia on a Theme by Friedrich Nietzsche^ 96A Postmodern Tragedy  102Self as Complex Adaptive System  103Chapter 6: Society as Complex Adaptive System  105The Emergence of Social Orders^  105A Postmodern Critique of Hayek 108Social Theory after Hayek^ 113ivStructuralism^  115Foucault  117Chapter 7: Law as Complex Adaptive System^  119Emergence 120Fitness Function^  123Self-Reinforcing Mechanisms in Law 124Tension in Application of Schema^ 129Schema Inaccuracy  129Lock-ins in Law^  131Annealing Forces  133Avalanches, Compressions and Transformations^  134Clashing Fitness Functions^  143Irony^  143Pathway to a Postmodern Jurisprudence  144Chapter 8: Ideology  146Postmodern Construction of Knowledge^  147Toward Egalitarian Empowerment  154Defining Ideology^  160Using the Defmition of Ideology  163Chapter 9: A Brief Survey of Legal Theories^  167Natural Law 168The Historical School^  170Positivism ^  171Sociological Jurisprudence  173American Legal Realism  174A Postmodern Theory of Law^ 175Chapter 10: Evolving the Deep-Structure Model^  178Goal-Based Reasoning  178Computational Goal-Based Reasoning  187A Critical Look at Expert Systems 190Concluding Observations^ 203Glossary^ 205Bibliography 212Index 220VList of FiguresFigure 10.1 Architecture of Basic Legal Reasoning about Social Orders^ 182viAcknowledgmentsI gratefully acknowledge the guidance of Professor J.C. Smith's profound intuition into legalreasoning and jurisprudence. This thesis is my effort to articulate the intuitions connecting hiseclectic perspectives on law, sociology, psychoanalysis, feminism, postmodernism, andcomputers. I thank Professor Joel Bakan for leading me to my insights into ideology. HughLaurence, Judy Dick, Joyce Marsden-Oliver, A.C. Yardley and Margaret Eriksson cultivatedmy critical and constructive capacities through complex adaptive conversation—I thank them fortolerating my excesses. My father inspired me to analyze and my mother showed me how to beironic and still care. For an indefatigable effort typing, formatting, checking spelling andgrammar, and preparing the table of contents and index, I thank my Macintosh Hcx computer.VIIIntroductionThe goal of this thesis is to prepare the jurisprudential foundations for more effective use ofcomputers to assist legal reasoning.As law becomes more complicated and vast, the cost of obtaining legal advice rises,which makes law inaccessible and less effective as an instrument of social policy. The gravity ofthese problems warrants thorough exploration into how computers could help alleviate theseeffects. An enormous amount of intellectual effort in the past decade has been expended onfiguring out how to use computers to improve the efficiency and quality of legal services. Muchof the work in this area involves general office automation or automation of practical tasksassociated with legal service, but does not make use of aspects of legal reasoning. For example,automated production of court transcripts improves legal services but the computational processis essentially independent of legal reasoning or theories of justice.This thesis considers computer applications that make use of legal reasoning. The mainfocus is on so-called "expert systems." Legal expert systems are computer programs thatpurport to advise whether hypothetical fact scenarios raise specific, narrowly framed legalissues and predict how those issues would be decided by a judge. Though focusing on legalexpert systems might appear unduly narrow, any improvement in our ability to computationallymodel legal reasoning in legal expert systems will have implications for other legal applications,such as automated text retrieval or document generation.The field of computer science that studies how to represent knowledge and modelreasoning is called "artificial intelligence." Progress in modeling legal reasoning has stalledbecause there is no theory of law that adequately models the nature of legal reasoning. Forexample, much of the work in law and artificial intelligence has employed the model of legalreasoning implicit in the legal positivist tradition of jurisprudence. Legal positivism emphasizesthe doctrinal rules in law, which suits the logic-oriented foundations of artificial intelligence andknowledge representation. However, several jurisprudential and sociological perspectives havesharply criticized legal positivism as an incomplete and falsifying account of the nature of the1PROLEGOMENA TO A POSTMODERN THEORY OF LAWlegal process. This body of criticism suggests that legal expert systems based on doctrinal rulescould at most become a type of "calculator" that generates doctrinal argument.To achieve better expert systems, we require a better model of legal reasoning. Existingtheories of law, however, were not formulated with a model of legal reasoning as their maingoal. Theories of law have so far sought to analyze law from a perspective outside legalreasoning. The model of legal reasoning is therefore derivative from the presuppositions of theoutside perspective. As will be seen, none of the existing theories of law gives an adequateaccount of legal reasoning.This thesis therefore proposes a new theory of law, a "Postmodern Theory of Law."The hype and confusion surrounding postmodernism makes this appellation precarious andpotentially misleading. Moreover, postmodernism is associated with critically motivated projectsin numerous disciplines that champion conflicting values. Nonetheless, this thesis asserts thatall postmodernism is an attempt to probe a single principle about the structure of reality andwhat we can know about it.The main principle of postmodernism cannot be stated in a single sentence or paragraph.Friedrich Nietzsche called this principle the will to power; modern scientists refer to it as anexception to the second law of thermodynamics. Postmodernism can be defined as the task ofthinking through the implications of what we can know about complex adaptive systems, butthis merely shifts the burden of description. To define postmodernism, then, one mustunderstand the theories of nonlinear dynamical systems (chaos theory) and the theory ofcomplex adaptive systems. Chapter four of this thesis will explain these theories and theirsignificance.The most important implication of postmodernism is to realize that most systems ofinterest in our world evolved and are not reducible to theories stated by laws of deterministiccause and effect. There will, in principle, always be gaps in what we can know about systemsthat emerge from the interaction of constituent parts. Knowledge about such emerging systemsmust necessarily employ vague concepts and be probabilistic in its predictions. Moreover, a2INTRODUCTIONmodel describing a specific emerging system can only be linked probabilistically with the rest ofour knowledge about the world.Any theory that claims it is possible, in principle, to make absolute, accurate predictionsabout emerging systems, can be shown to be false. The adherents to such a theory are"knowledge optimists." Moreover, it can be usually shown that the reason people areknowledge optimists is because the adherents derive social or psychological advantages bybelieving in the theory. This critical task of exposing knowledge optimism and linking it to theoptimist's self-interests is known as "deconstruction" of a theory.Because postmodern deconstruction undermines the foundation of meaning in theoriesthat presume absolute knowledge is possible, knowledge optimists often equate postmodernismto nihilism However, this charge overlooks the "constructive" aspects of postmodernism. Eventhough absolute knowledge about emerging systems is not possible, useful models describinggeneral qualitative features of system structures ("topological models") can be constructed.Recent advances in chaos theory and the theory of complex adaptive systems provide themathematical foundations for what I call "constructive postmodernism." Constructivepostmodernism is an attempt to navigate between Scylla and Charybdis—between unfoundedoptimism and unwarranted pessimism, between unyielding order and unbridled chaos. Insuccessive chapters of this thesis I will demonstrate constructive postmodernism by examiningthe nature of the self, society and legal reasoning.The inherent imprecision of topological models that use vague concepts and offer onlyprobabilistic predictions, sometimes makes it possible that two or more incompatible models forthe same system can each be optimal, when measured in terms of the unique purposes of itsadherents, yet be incompatible with each other. The possibility of incompatible, equally validmodels opens postmodernism to charges of relativism from those who presume absoluteknowledge of such systems is possible. Until recently, postmodern thinkers were unequippedto constructively respond to this charge. However, chaos theory and the theory of complexadaptive systems show how such models can evolve and how less-than-perfect models can beevaluated even without the possibility of absolute criteria to measure against.3PROLEGOMENA TO A POSTMODERN THEORY OF LAWScholars in the critical legal tradition often reason as follows: because knowledgeoptimism about an emerging system is misplaced, there is no merit in any theory about or modelof the emerging system. For example, many scholars in the critical legal tradition argue thatbecause doctrinal rules cannot fully explain legal decisions, express rules should not be reliedupon. I call this "knowledge pessimism." Constructive postmodernism says that we shouldnavigate between the all-or-nothing extremes of knowledge optimism and knowledge pessimismwhen we talk about emerging systems, using the theory of complex adaptive systems as ourguide.The legal reasoning manifest in the common law tradition is the most elaborate andsustained attempt to cope with the postmodern condition of uncertainty in principle. This is dueto the institutional constraints of judicial decision-making—judges must make immediatedecisions and cannot presume they will ever have anything other than vague concepts andprobabilistic predictions about social phenomena. Unlike other arenas of practical reason, thecommon law documents its efforts and draws on its experience to refine itself. This makes thecommon law uniquely appropriate for examining what constructive postmodernism wouldentail.This also explains why no existing theory of law adequately accounts for the nature oflegal reasoning—none incorporates constructive postmodernism. I will show how this omissioncreates several recalcitrant problems for the major theories of law: describing legal reasoning,legitimating authority, setting standards for justification, and analyzing allocation of power.I will also use the postmodern theory of law to evaluate and extend the so-called "deep-structure" model of legal reasoning. The extended model will use reasoning directed by amultiplicity of vague social goals that are probabilistically related and ordered in terms ofimportance. I will argue that such a model is currently the most plausible general approach tomodeling complex adaptive systems. I will critically examine the prospect of using legal expertsystems based on such a model of legal reasoning.Finally, the theory of complex adaptive systems shows that such systems can only bestudied thoroughly with the use of computational models—models that can be tested by running4INTRODUCTIONsimulations on a computer. As a result, not only does progress in modeling legal reasoningrequire a postmodern theory of law, a fully developed theory of law requires computationalmodeling of legal reasoning.Selecting an order to present the themes in this thesis is problematic. The style ofmathematical proof dictates that the narrative begin with chaos theory and the theory of complexadaptive systems, then go on to consider the implications for the theory of knowledge,jurisprudence, legal reasoning and legal expert systems. However, the legal reader needssubstantial motivation before confronting the technical nature of chaos and complex adaptivesystems. Furthermore, it is unusual to focus on legal reasoning per se without attempting toderive the form of reasoning from the logical or linguistic form of rules. Therefore, I will firstdiscuss expert systems and their relationship to jurisprudence. This will highlight theinadequacies of existing models of legal reasoning, which will motivate our search for apostmodern theory of law.The implications of the theory of complex adaptive systems for law and jurisprudencewill then be examined extensively. This includes the interrelationship of knowledge, power, andauthority. Using the results of this inquiry, this thesis will offer a new perspective on howexisting theories of law differ. Each theory of law is knowledge optimistic or knowledgepessimistic in a particular dimension; which dimensions depends on the political values orpsychological preferences of the adherents to that theory of law.The first chapter of this thesis discusses expert systems in law. I identify inadequacies inrecent approaches and attribute them to the positivist theories of jurisprudence being used and,in particular, the lack of teleology in their models of legal reasoning. In other words, legalpositivism assumes that legal rules form an autonomous code that can be adequately describedwithout reference to the social goals the rules serve. An alternative approach is the deep-structure model of legal reasoning, which will be described in detail. Deep-structure expertsystems start to address these problems by focusing on the teleology between rules and socialgoals, but the deep-structure model of legal reasoning has not been fully developed to embracecritical perspectives. Later chapters will show that the deep-structure model of legal reasoning5PROLEGOMENA TO A POSTMODERN THEORY OF LAWhas been successful because it captures features of legal reasoning that are fundamental tomaking legal reasoning behave as a complex adaptive system.The political philosophy of liberalism has been strongly rejected by the critical legaltradition and most postmodern approaches to law. In chapter two, I sketch a postmodern attackon the liberalism presumed by the common law tradition. This will show that deep-structureexpert systems do not necessarily entail liberalism and therefore could survive scrutiny from thecritical legal tradition.Chapter three investigates whether a recent formulation of legal positivism thatincorporates goal-based reasoning subsumes the need for a postmodern model of legalreasoning. I show that legal positivism is inadequate for the same reasons as liberalism, i.e., itemploys misplaced knowledge optimism about universal good reasons.I present the theories of chaos and complex adaptive systems in chapter four. Chaostheory will show why there must always be vagueness in what we can know about mostsystems in nature and almost all systems in human society. The theory of complex adaptivesystems will show that imperfect knowledge can evolve to become increasingly useful withoutthe need for certainty or a priori truths.In chapter five I claim that the writings of Friedrich Nietzsche contain these insights.Nietzsche's writings show how the self works as a complex adaptive system.In chapter six I claim that human society is a complex adaptive system. Indeed, societycomprises many complex adaptive systems that in turn comprise complex adaptive subsystems.The economist Friedrich Hayek made similar claims and his views will be examined. However,I argue that Hayek incorrectly derived liberalism by failing to apply his insightscomprehensively. I also discuss how the views of structuralists and Michel Foucault relate tocomplex adaptive systems in society.Chapter seven shows how law behaves as a complex adaptive system. I analyze samplelegal problems to illustrate how insight into complex adaptive systems can assist us to interpretlaw and be more effective advocates.6INTRODUCTIONIn chapter eight I use postmodernism to refine the concept of ideology, which is centralto critical theories of law. Ideology is the use of knowledge optimism to disguise self-interest inthe allocation of social power inherent in the construction of legal rules. Ideology is closelyrelated to Nietzsche's concept of decadence—knowledge optimism disguises neurotic self-interest in the construction of character. An important conclusion in this chapter is that toovercome ideological tendencies in law, more empathy by judges is an essential feature of alegal system.In chapter nine I briefly survey some of the major theories of jurisprudence from theperspective of complex adaptive systems. I show that each theory locates legal or moralauthority in relation to where it places its faith or pessimism regarding the possibility of perfectscientific knowledge about social systems.In chapter ten I return to expert systems and consider how to extend deep-structureexpert systems using the insights into legal reasoning implied by a postmodern theory of law. Iwill also consider several critical questions regarding deep-structure expert systems.I conclude by speculating on prospects for progress in expert systems and the role ofcomputers in jurisprudence.7Chapter 1Legal Expert SystemsLegal expert systems meet with skepticism from all ranks in jurisprudence. Critical scholarshiphas so little concern for legal expert systems that expert systems have yet to earn a place on thecritical agenda. Even jurists who are interested in law and artificial intelligence foresee limitedpossibilities for expert systems. Ronald Stamper asserts that legal expert systems could neverachieve anything other than mere "bureaucratic," deductive reasoning.' Richard Susskindconcludes that the application of legal rules will always require some mystical act of will thatcannot be analyzed. For Susskind, Ronald Dworkin's description of discretion as theapplication of principles merely postpones the inevitable exhaustion of rules.2 Stamperhaughtily observes:If one accepts Dworkin's views, one might attempt toaccommodate these principles as additional rules together withillustrative exceptions. To do so would be to fall into theArtificial Intelligence trap: The ridiculous attempt to usurp theroles of people. ... The openness of the legal system means that,no matter how much of the law and the given situation you havereduced to explicit formulas and rules, much more remainsunsaid. But a responsible agent can invoke the unspokenprinciples within the informal world of law-in-action, and stop adeductive chain that would otherwise lead to a miscarriage ofjustice.3This dim prognosis for the potential of legal expert systems derives from the positivistjurisprudence presumed by these authors. Legal positivism views legal decision-making entirelyfrom within the perspective of doctrinal rules—any dynamic beyond the boundary of doctrinalI Ronald K. Stamper, "The Role of Semantics in Legal Expert Systems and Legal Reasoning" (1991) 4 RatioJuris 219-244.2 Richard E. Susskind, Expert Systems in Law: A Jurisprudential Inquiry (Oxford: Oxford University Press,1987) at 169, 174.3 Stamper, "Role of Semantics," at 238-239.8LEGAL EXPERT SYSTEMSrules appears as discretionary, un-analyzable acts of human will. The horizon of one'sprognosis for legal reasoning by computers cannot extend beyond the vision of legal reasoningin one's jurisprudence. Therefore, every careful positivist must envisage limited potential forlegal expert systems.Positivism in Artificial IntelligenceEarly research on legal expert systems typically sought to model common law doctrine, withoutmuch success.4 Thereafter, research focused more on statutory or regulatory codes that useintricate and detailed rule-schemes, such as the tax code or social assistance entitlementregulations.5 Designers of such systems implicitly appealed to a strong version of positivismthat focused on rules and considered interpretation problems to be minimal—minor core andpenumbra fuzziness and a few open-textured words, such as "reasonable." The dangers ofrelying on such systems to decide cases are manifest—there is no attempt to consider thesubstantive justifications for the rules, nor to consider whether in the context of a particularmatter the effects of the rule strongly conflict with more general principles or values elsewhererecognized by the legal system.Artificial intelligence research that uses a legal positivist model of legal reasoning cannotproduce expert systems that reliably predict case outcomes. Until the problem of "discretion"has been overcome, the best that can be achieved is the automated generation of legalarguments. Legal expert systems can only aspire to model the role of a positivist barrister—present doctrinal arguments to a decision-maker, who then exercises an ineffable faculty of4 Anne von der Lieth Gardner, An Artificial Intelligence Approach to Legal Reasoning (Cambridge,Massachusetts: MIT Press, 1987). See also, J.C. Smith, "Action Theory and Legal Reasoning," in Tort Theory,ed. Ken Cooper-Stephenson and Elaine Gibson (North York, Ontario: Captus Press, 1993), 104-125 [hereinafterSmith 1993] at 120.5 See, for example, many of the papers presented in the Proceedings of the Second International Conference onArtificial Intelligence and Law, University of British Columbia, June 1989 (New York: ACM Press, 1989).9PROLEGOMENA TO A POSTMODERN THEORY OF LAWdiscretion to decide the case. Such an expert system could only predict the outcome of adecision where it failed to find a valid counter argument to a valid argument6Current research on argument generation by legal expert systems originated with KevinAshley's HYPO system.7 Ashley's approach was a major innovation in two respects: (1) itonly attempts to generate plausible arguments and has abandoned the requirement that an expertsystem predict case outcomes; and (2) it constructs arguments based on a database of precedentcase profiles rather than from a fixed code of rules—it uses "case-based reasoning."Briefly, the HYPO system works as follows. An expert system designer using HYPOwould begin by identifying several legal "dimensions" that the courts and legal scholars haveconsidered relevant to a specific legal issue. The designer would classify precedent cases usingthese dimensions and create a precedent database for case-based reasoning. To consult theHYPO expert system, an inquirer would provide HYPO with a hypothetical fact situation.HYPO would automatically identify the dimensions of the hypothetical fact situation thatfavoured the plaintiff and the dimensions that favoured the defendant. HYPO would then locatein the precedent database the cases that most closely matched the particular set of dimensionsassociated with the hypothetical fact situation. Failing an exact case match to all dimensions ofthe hypothetical, HYPO would automatically generate legal arguments that cited the best casesfor each side, and the case authority to distinguish cases relied on by the other side (if suchcases existed in the precedent database).On the basis of test results, the quality of the arguments generated by HYPO isimpressive and represents a significant advance in legal expert systems. However, becauseHYPO presumes a positivist model of legal reasoning and does not attempt to consider why thelegal dimensions the expert system designer selects are relevant to the legal issues it considers,HYPO significantly under-determines case outcomes. In other words, HYPO does not offerpredictions in cases where lawyers would feel confident making predictions.6 But even in such a case the system could be wrong if the current state of doctrine did not account for novelcausal effects on other values ranked as important by the legal system.7 Kevin D. Ashley, Modeling Legal Argument: Reasoning with Cases and Hypotheticals (Cambridge,Massachusetts: MIT Press, 1990).10LEGAL EXPERT SYSTEMSAshley's work has profoundly affected the direction of subsequent research in artificialintelligence and law. Legal argument was the topic of most of the papers collected in theproceedings of the June 1993 conference on artificial intelligence and law.8 A central aspect ofconstructing legal argument is relevancy—what arguments are relevant to the legal issue beingconsidered? However, most of the approaches in current research draw on legal doctrine orlegislative codes to test the relevancy of an argument, without considering why the doctrine orcodes are the way they are. This reflects an overwhelmingly positivist attitude amongresearchers in artificial intelligence and law.9 Indeed, in the 1993 proceedings only the paper byDonald Berman and Carole Hafner contained any reference to a work by a critical legalscholar.lo It is not surprising, therefore, that Berman and Hafner assert that legal argumentmust consider the purposes behind doctrinal rules—the jurisprudence assumed by legal expertsystems must be "teleological." Effective argument must attempt to analyze the mysticaldiscretion that positivism avoids.Positivist jurisprudence has been sharply criticized in North America as incomplete,false and ideological." Positivism's primary defect is its failure to account for the teleologicalrelationship between law and the social order.12 Case-based reasoning is based on the principlethat like cases should be decided alike. Measuring likeness requires a standard of relevancy—what makes two cases relevantly alike? An adequate standard of relevancy in a model for legalreasoning must consider why doctrinal rules promote social goals. Even North Americanpositivists now recognize that such a teleology must assume a central position in a theory of8 Proceedings of the Fourth International Conference on Artificial Intelligence and Law. Vrije Universitaeit,Amsterdam, The Netherlands, June 1993 (New York: ACM Press, 1993).9 The footnotes to the papers in the 1993 conference typically contain references to Ronald Dworkin, H.L.A.Hart, D.N. McCormick, H. Kelsen, J. Raz, J. Rawls, L.R. Llwellyn, and E.H. Levi.I° Donald H. Berman and Carole D. Hafner, "Representing Teleological Structure in Case-Based LegalReasoning: The Missing Link," Proceedings—Fourth International Conference on Artificial Intelligence and Law,Vrtje Universitaeit, Amsterdam, The Netherlands, June 1993 (New York: ACM Press, 1993), 50-59. Berman andHafner cite Duncan Kennedy, "A Semiotics of Legal Argument" (1991) 42 Syracuse Law Review 75-116.11 For an American legal realist account, see Harold D. Lasswell and Myres S. McDougal, Jurisprudence for aFree Society—Studies in Law, Science and Policy (New Haven, CT: New Haven Press, 1992) esp. at 14-15. Fora critical legal studies account, see Charles M. Yablon, "The Indeterminacy of Law: Critical Legal Studies and theProblem of Legal Explanation" (1985) 6 Cardozo Law Review 917-931.12 See J.C. Smith, Legal Obligation (Toronto: University of Toronto Press, 1976) [hereinafter Smith 1976].11PROLEGOMENA TO A POSTMODERN THEORY OF LAWjurisprudence.13 Frederick Schauer's "presumptive positivism" would harshly criticize non-teleological legal expert systems for failing to "glimpse" to see whether backgroundjustifications for the rules, or values unrelated to the justifications, were being significantlyimpaired.14Furthermore, critical scholarship informs us that a theory of jurisprudence must accountfor the mechanics of ideology in judicial decision-making. Positivism fails to consider ideologyand designers of legal expert systems have yet to consider the ideological implications of suchsystems. Finally, an adequate theory of jurisprudence must accommodate the results ofProfessor J.C. Smith's work on the relationship between the social order and thesubconscious.15Positivism's bleak outlook for expert systems merely reflects its impoverished accountof judicial decision-making. A more prominent role for expert systems awaits a richer theory ofjurisprudence, a jurisprudence that incorporates positivism, American legal realism, criticalstudies and psychoanalytic sociology into a single, coherent theory. The only theory ofjurisprudence that begins such a unification is Professor J.C. Smith's analytic-teleological, ordeep-structure, theory of law.16 Unlike positivism, deep-structure theory asserts that legaldoctrine has at most an indirect influence on judicial decisions. Rather, judges determine caseoutcomes by applying "deep-structure" principles about how to relate fact situations to socialvalues and how to mediate conflicting values that apply in the same factual context. The deep-structure theory of law mediates positivism and American legal realism, but the theory has yet toarticulate its relationship to critical analysis or Professor Smith's own social-psychoanalytictheory about law.13 See Frederick Schauer, Playing by the Rules—A Philosophical Examination of Rule-Based Decision-Makingin Law and in Life (Oxford: Clarendon Press, 1991).14 Schauer, Playing by the Rules, at 196-206.15 See J.C. Smith, The Neurotic Foundations of Social Order —Psychoanalytic Roots of Patriarchy (New York:New York University Press, 1990).16 See Smith 1976; S.C. Coval and J.C. Smith, "Rights, Goals, and Hard Cases" (1982) 1 Law and Philosophy451-480 [hereinafter Coval & Smith 19821; S.C. Coval and J.C. Smith, Law and Its Presuppositions: Actions,Agents and Rules (London: Routledge & Kegan Paul, 1986) [hereinafter Coval & Smith 1986].12LEGAL EXPERT SYSTEMSThe Deep-Structure Theory of LawThe obvious deficiencies of positivist expert system models of legal reasoning can be overcomeby designing an expert system based on the principles of the deep-structure theory ofjurisprudence. I will briefly describe the major features of deep-structure jurisprudence withoutattempting to justify its applicability to Canadian common law. Smith and Coval have alreadydone this.17 This thesis will offer an alternative justification for deep-structure jurisprudencebased on the principles of complex adaptive systems and will show how deep-structure theorycan be expanded into a postmodern theory of law.The "deep-structure" or "analytic-teleological" theory of law concurs with the doctrinalskepticism of American legal realists and critical scholarship—articulated legal doctrine under-determines case outcomes. On the other hand, the deep-structure theory of law asserts thatjudicial decision-makers do not exercise unbridled discretion once doctrinal argument becomesindeterminate. Rather, judges follow higher-order principles that are largely unformalized andunarticulated, but implicit in legal reasoning. Moreover, judges do not wait until doctrineexhausts itself before invoking such principles; the principles are operative at all stages ofdecision-making analysis.According to deep-structure theory, social goals teleologically justify legal doctrine. Thequestion why a legal rule exists is answered by asserting causal relationships between theapplication of the legal rule and the satisfaction of social goals. Social goals are ill-defined andany pretense that there is social consensus as to the composition of such goals is a myth.Nonetheless, patterns of consistency in judicial outcomes indicate that judges as a whole havepresupposed a hierarchy of vaguely formulated social goals to which judicial decisions arerelated with a high degree of coherent rationality.18,19 This rationality mediates between social17 Smith 1976; Coval & Smith 1982; Coval & Smith 1986. See also, G.C. Deedman, "Building Rule-BasedExpert Systems in Case-Based Law" (Master's Thesis, Faculty of Law, University of British Columbia, 1987)[hereinafter Deedman 1987a] at 22-44; Susan Jane Blackman, "Expert Systems in Case-Based Law: The RuleAgainst Hearsay" (Master's Thesis, Faculty of Law, University of British Columbia, 1988) [hereinafter Blackman1988] at 8-14.18 Critical scholars may argue that even supplemented by policy argument, law is too indeterminate to explainjudicial outcomes. However, critical scholars also argue that law systematically promotes the interests of thedominant social class. Law is either consistent or indeterminate—it cannot be both at once. Deep-structure theory13PROLEGOMENA TO A POSTMODERN THEORY OF LAWgoals and decision outcomes according to higher-order principles and knowledge of causalrelationships.One such higher-order principle is proportionality—if in a particular context the effect ofapplying a legal rule designed to further one social goal has a disproportionately negative impacton another social goal of sufficient importance, then the legal rule should not be applied in thatcontext. The principle of proportionality is a general deep-structure principle of legal reasoning.By applying it to a canonical causal relationship, a more specific principle of law can be derived.Thus, for example, the general proportionality principle implies the rule that no one shall profitfrom his or her own wrong.Where it is the case that, under the existing rules of law, thedoing of a wrong will allow a person to make a profit and thatprofit will tend to act as an inducement to do that kind of wrong,then the law shall proceed to remove that inducement.20Some purported counter-examples to the principle that no one shall profit from his or her ownwrong, fail as counter-examples because the causal element of inducement is lacldng.21 Indeed,once the principle that no one shall profit from his or her own wrong is seen as an application ofthe deep-structure principle of proportionality, ostensible anomalies and the resultingindeterminacy becomes coherent according to the deep structure.22 Coval and Smith show thatasserts relative consistency over indeterminacy and admits that often the social goals being favoured have theeffect of favouring the interests of dominant social classes.19 Expert systems designed using deep-structure principles have shown that the case law in select areas, which aregenerally thought to be very indeterminate, is in fact over 90% consistent with hypothesized deep-structureprinciples. See Smith 1976, at 140; Deedman 1987a; G.C. Deedman, "The Nervous Shock Advisor: A LegalExpert System in Case-Based Law," in Proceedings of the First Conference on Artificial Intelligence and Law,Boston, May 1987 (New York: ACM Press, 1987) [hereinafter Deedman 19876]; Blackman 1988; Marilyn T.MacCrinunon, "Expert Systems in Case-Based Law: The Hearsay Rule Advisor," in Proceedings of the SecondConference on Artificial Intelligence and Law, University of British Columbia, June 1989 (New York: ACMPress, 1989) [hereinafter MacCrimmon 1989]; Andrzej Kowalski, "Beyond Rule-Based Legal Expert Systems:Using Frames and Case-Based Reasoning to Analyze the Tort of Malicious Prosecution" (Master's Thesis,Faculty of Law, University of British Columbia, 1990) [hereinafter Kowalski 1990]; Andrzej Kowalski, "Case-Based Reasoning and the Deep Structure Approach to Knowledge Representation," in Proceedings of the ThirdConference on Artificial Intelligence and Law, Oxford, 1991 (New York: ACM Press, 1991) [hereinafterKowalski 1991]; Smith 1993, at 123-124.20 Smith 1976, at 164. This statement of the equitable principle is quoted from page 154.21 Smith 1976, at 155.22 See generally, Smith 1976, at 150-173.14LEGAL EXPERT SYSTEMSconflicting principles are not merely "weighed"; judges resolve them in a predictable, rule-governed fashion.23The term "deep structure" can be used in two different senses. One usage refers to theimplicit, higher-order principles referred to above. Roughly, this is the form of legal reasoning.The other meaning refers to both the higher-order principles and the particular social goals, goalrankings and causal links that judges and other law-makers presuppose in an actual legalsystem. In this thesis, I claim that the higher-order principles are general and powerful enoughto apply to most any legal order worth considering. These principles form the skeleton of a legalorder, the general deep structure. A particular legal order, such as Canadian common law,implicitly adopts a particular set of social goals, goal rankings and causal presuppositions.These presuppositions are the flesh on the bones, the particular deep structure.24 The legalsystem can accommodate change in the particular deep structure without altering the generaldeep structure. This thesis will show that the explanatory power of the deep-structure theoryresults from the close relationship between the deep-structure, higher-order principles and thefundamental characteristics of a complex adaptive system.Deep-structure theory asserts that, through training, judges have internalized the implicitdeep structure of our legal system.25 Deep-structure theory does not deny that the particularsocial values that judges unconsciously apply have the effect of entrenching power in dominantsocial classes. Deep-structure theory merely asserts that there is a largely coherent, rationalstructure motivating seemingly irrational judicial outcomes. The law and economics movement,for example, attempts to articulate the particular deep structure of commercial law. Whether ornot one agrees that the law should be structured around economic theory, law and economicsoffers insightful hypotheses as to the deep structure judges have internalized.23 Coval & Smith 1986, at 77-96. Specifically, the case Dworkin cites as a counterexample to rule-governedresolution of conflicting principles, Riggs v. Palmer, is in fact rule-governed application of the principle ofproportionality. Nonetheless, current research in artificial intelligence and law still presumes that resolution ofdiscretion involves some ineffable "weighing" of policies and principles: Jape Haag, "Monological Reason-BasedLogic—A Low Level Integration of Rule-Based Reasoning and Case-Based Reasoning," in Proceedings of theFourth International Conference on Artificial Intelligence and Law, Vrije Universitaeit, Amsterdam, TheNetherlands, June 1993 (New York: ACM Press, 1993), 30-39.24 Professors Coval and Smith show how agency-related presuppositions underlie Anglo-Canadian common lawin Coval & Smith 1986.25 Smith 1976.15PROLEGOMENA TO A POSTMODERN THEORY OF LAWDeep-structure theory asserts that when making decisions, judges use principles ofinterpretation to scrutinize the corpus of recognized legal sources and to infer the implicitlyrecognized social goals and their relative rankings. The corpus of legal sources also containsassertions about causality—what facts promote or impair what social goals; what social goalsinstrumentally promote or impair other social goals. The judges use these assertions, subject tocontrary proof in evidence, to apply the deep structure to specific fact situations. Thus, judgesunconsciously implement the particular deep structure of our legal system. Judges thenreformulate the outcomes into doctrine.26 But unlike doctrine, the deep structure of the legalsystem remains largely unarticulated by judges—it is implicit in the outcomes of precedentcases.Deep-structure theory asserts that the peculiar, indeterminate nature of legal doctrineresults from institutional constraints, specifically, the time and information costs that can betolerated by private litigants appearing before an adjudicator with extremely limited resources.27Doctrine is law's attempt to fashion a set of workable rules to attain the best results with limitedinformation and transactional resources. One might think of doctrine as equivalent to myths inpre-scientific cultures—both doctrine and myth relate facts to decisions in a manner thatimplicitly incorporates scientific principles, but the facts and outcomes are expressed in aneconomical and coherent narrative whose metaphoric form differs significantly from a morescientific explanation. Doctrine and myth serve to limit deliberation and promote action byartificially constraining the language of debate. However, as society's general level ofknowledge about the world increases, the information costs in judicial decision-making reduceand the doctrinal myth can be modified to reflect more precisely the generally accepted causalknowledge. Likewise, as legal academics offer more compelling causal accounts of law'seffects, they reduce the information costs to future litigants and judges can expand legal doctrineto state more openly law's implicit deep structure. For example, in developing a deep-structure26 This process is not made explicit by the judges. John Dewey noted this and concluded "that logic must beabandoned or that it must be a logic relative to consequences rather than to antecedents, a logic of prediction ofprobabilities rather than one of deduction of certainties," John Dewey, "Logical Method and Law" (1924) 10Cornell Law Quarterly 17-27, at 26.27 Smith 1993. For an unsympathetic review of how doctrine artificially limits evidentiary inquiry, see Felix S.Cohen, "Transcendental Nonsense and the Functional Approach" (1935) 35 Columbia Law Review 809-849.16LEGAL EXPERT SYSTEMSlegal expert system to predict decisions about the admissibility of hearsay evidence,28 ProfessorMarilyn MacCrimmon identified reliability and necessity as two deep-structure principlesunderlying case outcomes.29 The legal doctrine used to justify decisions had evolved into aconfusing set of exceptions, which judges had to distort continually to achieve fair outcomes.Inflexible doctrine forced judges to exclude good evidence where they were unable to fitevidence into applicable doctrinal exceptions. Finally, the Supreme Court of Canada confirmedthat the principles of reliability and necessity were the policies underlying the exceptions to thehearsay rule, and thus allowed new exceptions to the hearsay rule.3°When arguing a case, a litigant could either rely on legally recognized assertions aboutgoals and causation, or attempt to prove them with evidence. However, it is very difficult andexpensive to prove social facts, and it may be impossible to prove causation where there areconflicting expert opinions. Change in the law is therefore introduced piecemeal throughevidence or slowly through evolving common sense.31 Thus, for example, the Supreme Courtof Canada has recently recognized that common sense now identifies the evil of obscenematerials as promoting degrading and dehumanizing images of women, causing effects (such asviolence toward women) that are inconsistent with legally recognized social goals.32 A changein causal presuppositions thus results in a change to the law.Apart from legal citation, proof by evidence, or common sense, a litigant can inducechange by using a metaphoric argument. Indeed, this is where deep-structure theory couldprove most useful to an advocate. The strength of the analogy in the metaphor would exploitevidence of a causal relationship from the factual context to a social policy that the judge couldintuitively respect The advocate could not openly cast the argument in terms of the policy—thecourts have not yet openly recognized the policy and the litigants could not afford to gather the28 Briefly, hearsay evidence is an account of what someone else claimed to have witnessed and is not admissiblein a court as proof of what was witnessed. The direct evidence of the witness is generally preferred, since it ismore reliable and can be probed, but the direct witness is not always available. The law has therefore evolved acomplex set of exceptions to the hearsay rule.29 MacCrimmon 1989.30 R. v. Khan, [1990] 2 S.C.R. 531.31 David E. van Zandt, "An Alternative Theory of Practical Reason in Judicial Decisions" (1991) 65 Tulane LawReview 775-831.32 R. v. Butler, [1992] 1 S.C.R. 452.17PROLEGOMENA TO A POSTMODERN THEORY OF LAWnecessary evidence to prove the policy's causal impact on society. In such a case, the judgewould select the intuitively more appropriate outcome, but the judge would have to justify theoutcome in terms of doctrine. Therefore, the judge would have to create new factual distinctionsthat are causally related to, i.e., are relevant to, the implicit policy. The desire to respect theintuitively sensed social policy determines the standard of relevancy used to distinguish currentdoctrinal arguments. The test of time would enshrine the new factual distinctions and later theycould form the basis of an inductive argument that judges have recognized the policy.33Deep-structure theory does not assert that the legal order ever reaches a state ofequilibrium. Rather, the courts continually revise previously nave causal presuppositions,which continually results in new policies and new goal rankings. These after-effects in turnmodify the social order, and the legal order must again re-adjust its causal presuppositions, andso on. The deep structure of the legal order and its relationship to the social order are toocomplex to ever settle into an equilibrium or steady state. Even if it were possible in principle,the social order evolves too quickly and scientific progress (including the social sciences)requires continual revision of causal presuppositions. A static, optimum set of legal rules isimpossible.Deep-Structure Legal Expert SystemsResearch at the University of British Columbia has developed several successful legal expertsystems using deep-structure principles. These systems have achieved over 90% accuracypredicting case outcomes in areas of tort law generally considered to be notoriouslyindeterminate.34 These results offer strong computational confirmation of the basic tenets ofdeep-structure jurisprudence.33 R. v. Khan is an example of this process.34 Smith 1984; Deedman 1987a; Deedman 1987b; Blackman 1988; MacCrimmon 1989; Kowalski 1990;Kowalski 1991.18LEGAL EXPERT SYSTEMSThe first legal expert systems designed using the deep-structure approach to legalreasoning were entirely rule-based. The legal expert expressed the hypothetical deep structureentirely in the form of if-then-else rules (modus ponens) that correlated fact patterns to caseoutcomes.35 The next generation of systems organized the fact patterns according to underlyingprinciples, still in rule-based forrnat.36 The legal expert closely examined case outcomes to infer"fuzzy" rules about what fact patterns were relevant to case outcomes.37Subsequently, case-based systems added a measure of flexibility by deleting the ultimaterules and, instead, referring to a database of cases indexed on standard factual descriptorschosen by the expert.38 The important advantage of case-based systems is that non-expertscould add new cases and, should the case law drift from the originally hypothesized deepstructure, the expert system would identify conflicting case law automatically. The success ofcase-based systems pointed to the need for powerful automated case retrieval systems andresulted in work on FLEXICON.39 More recent expert systems using the deep-structureapproach have employed frame-based representations to better organize the rules;40 however,the frame-based rule organization did not incorporate any additional inferencing techniques fromthe deep structure of legal reasoning.This thesis further develops the theoretical foundations for a deep-structure legal expertsystem that directly employs goal-matrix inferencing. According to the deep-structure theory oflaw, much of the legal reasoning in case law, particularly hard cases, involves consideration ofcompeting social goals.41 A court will rule in favour of a social goal that would bedisproportionately impaired if the alternative outcome would only marginally advance thecompeting social goal. If proportionality analysis could not resolve the conflict of goals, thecourt would then look to legal sources (statutes, cases, etc.) to discern an implicit ranking of the35 Deedman 1987a; Deedman 19876.36 Blackman 1988; MacCrimmon 1989.37 Fuzzy logic will be discussed in chapter ten. For a discussion of the relationship of rule fuzziness toinformation costs in legal process, see Smith 1993.38 Kowalski 1990; Kowalski 1991.39 Daphne Gelbart and J.C. Smith, "Beyond Boolean Search: FLEXICON, A Legal Text-Based IntelligentSystem," in Proceedings of the Third Conference on Artificial Intelligence and Law, Oxford, June 1991 (NewYork: ACM Press, 1991).40 Kowalski 1990.41 Coval & Smith 1982.19PROLEGOMENA TO A POSTMODERN THEORY OF LAWimportance of the goals (the goal matrix). Subsequent work in deep-structure expert systemswill focus on developing a computational model of goal-matrix knowledge representation andgoal-matrix inferencing. By more precisely conforming to the deep structure of legal reasoning,I anticipate that legal expert systems will yield more accurate results and greater explanatorypower.The goal matrix applies across all areas of law; several expert system designers couldmake use of a common, expanding goal matrix. In this way, designers of expert systems in newareas of law could exploit the collective experience of existing expert systems. The performanceof expert systems need not drop off precipitously once outside the narrow domain of a specificlegal question. The quality of the advice would deteriorate to the extent the system lackedinformation identify causal links from decision outcomes to their effect on social goals.The main component of a deep-structure expert system that uses goal-matrix inferencingwould be a database of judicial case outcomes. The database represents each case as a collectionof factual statements and an outcome. The database would represent the facts of each case in arestricted set of relevant factual indicators. The expert-system designer collects several casesfrom the area of law being modeled, forms provisional hypotheses as to which facts had abearing on the outcome, and uses these fact-to-outcome associations to seed the database. Legaldoctrine plays no role in the expert system.42A case representation in the expert-system database might also identify relevant socialgoals, rank the importance of competing social goals, and list assumptions about how facts andoutcomes causally affect social goals. Examples of identified social goals would be psychiatrist-patient confidentiality or safety of person. A ranking of conflicting social goals in a case, forexample, might favour safety of person higher than psychiatrist-patient confidentiality. Causalassumptions would link the facts to goals. For example, the database could contain a case thatasserts that where a patient informs a psychiatrist that the patient intends to injure someone, ifthe psychiatrist does not warn the intended victim this failure would probably cause a serious42 Legal doctrine enters indirectly where a conclusion in legal doctrine has become a social fact. For example, theundisputed fact that X and Y have entered into a contractual relationship can be a relevant fact when consideringwhether X has a duty to warn Y of certain dangers relevant to the contract. The statement that there is a contractbetween X and Y would be doctrinal if the existence of a contract was an issue of dispute.20LEGAL EXPERT SYSTEMSinfringement of the victim's safety of person. On the other hand, warning the intended victimwould infringe psychiatrist-patient confidentiality. The expert would add the case of TarasoffThe Regents of the University of Cahfornia43 to the database with these facts, goals and causalassumptions. The case would also contain a goal ranking that favours safety of person overpsychiatrist-patient confidentiality since this was implicit in the outcome of the case.Once the expert-system database contained a sufficient number of case entries to usefullymodel an area of law, a user could ask the system for advice. The expert system would ask theuser for information about the user's problem based on the factual descriptions of the cases inthe database. The system could generate additional factual questions by considering thepossibility that the user's situation affects conflicting goals. The system could determine factualrelevancy by searching the antecedents of causal assumptions in the database. These causalassumptions in turn link to the goals represented in the expert system database. Causalassumptions in the database link facts to goals, and link goals to further goals. The intermediarygoals might take the form of more specific policies. For example, the admission of hearsayevidence that is probably reliable when there is no other admissible evidence, is an intermediaryprinciple instrumental to the social goal of promoting litigation based on true accounts ofrelevant facts."The facts, causal assumptions, goal identifications, goal rankings, and outcome of acase, will each have an associated warrant of authority—the court that rendered the decision.The database need not restrict warranted facts, causal assumptions and goal rankings to thosecontained in case law—the expert system could include statutes or hypothetically provable,direct evidence. A deep-structure expert system would use higher-order rules, based on thequality of the associated warrant of authority, to resolve conflicts between inconsistent facts,causal assumptions, or goal rankings.A typical session of a user of the deep-structure expert system would go as follows.First the expert system polls stock facts from the user. The expert-system designer would have43 Tarasoff v. The Regents of the University of California, 529 P.2d 553.44 MacCrimnwn 1989; Blackman 1988.21PROLEGOMENA TO A POSTMODERN THEORY OF LAWpreviously identified facts that typically influence judicial outcomes in this area of law. Thesefacts would causally relate to the usual goals and policies forming the deep structure of that areaof law. The expert system would also "glimpse"45 for possible goal conflicts with goals notordinarily associated with the designated area of law. This would trigger further factualquestions in an attempt to establish causal links between the user's hypothetical situation andother social goals. When the expert system established causal links between the facts of the caseand conflicting social goals, it would have to resolve the goal conflicts by applyingproportionality analysis and appealing to the hierarchical ranking of goals in the precedentdatabase. The goal analysis would provide a prediction of the most probable judicial outcome,based on the warrant of the relevant legal sources in the database.Responsiveness to Critical PerspectivesIt is important to consider how the use of expert systems to support legal reasoning couldintroduce, consolidate, or exacerbate implicit ideological biases. Ideally, a legal expert systemwould function as a tool to analyze legal rules so that judges could more optimally implementsocial goals in an instrumental, rule-governed fashion.A structural critic questions whether the very form of legal rules serves to entrenchunjustifiable allocation of power within society." An example of structuralist criticism is toshow how the legal principle of "formal equality," as compared to "substantive equality,"oppressively ignores the needs of various groups within our society.47 Furthermore, bothAmerican legal realists and critical scholars have forcefully argued that law's doctrinal rules are45 Schauer, Playing by the Rules.46 See generally, Dragan Milovanovic, "Karl Marx: Law in a Political Economy," in A Primer in the SociologyofLaw (New York: Harrow and Heston, 1988), 61-82; Ronald Weitzer, "Law and Legal Ideology: Contributionsto the Genesis and Reproduction of Capitalism" (1980) 24-25 Berkeley Journal of Sociology 137-157.47 Judy Fudge, "The Public/Private Distinction: The Possibilities of and the Limits to the Use of the CharterLitigation to Further Feminist Struggles" (1987) 25 Osgoode Hall Law Journal 485-554; Milovanovic, "KarlMarx."22LEGAL EXPERT SYSTEMSinsufficient to explain the outcomes of judicial decisions." Indeed, some critical scholars arguethat rule-governance per se is an alienating negation of the human spirit, and thus advocateinformal, rule-less justice.°These insights cast doubt on the wisdom of creating expert systems for use in a legalsystem. Computerized justice could exacerbate the worst features of rule-oriented legalpositivism. The prospect of ubiquitous legal expert systems dispensing uncritically-followedblack-box advice, masking ideologies and structurally oppressive formalism, is unacceptable.An expert system designer, therefore, bears the burden of demonstrating that such effects wouldnot be a feature emerging from the design of the expert system per se. Indeed, an expert systemshould facilitate exposure of the oppressive side effects of a legal system.The deep-structure expert system proposed above would be open to obvious criticismfor merely making the existing law more coherent and entrenching it. For this reason, the deep-structure expert system must not just predict an outcome; it must also describe the chain ofreasoning. Moreover, whenever the system comes across conflicting factual or causalpresuppositions, the system should identify the conflicting arguments and their respectivewarrants of authority. This feature would greatly enhance the potential jurisprudential utility ofthe system. An enlightened designer could then take care to include factual, causal and goal-ranking presuppositions from relevant but legally non-binding sources, such as academicarticles. Thus, a deep-structure expert system would to some extent be able to accommodatecompeting world-views.48 For a review of legal realist accounts, see Lasswell and McDougal, Jurisprudence for a Free Society. For acritical legal studies account, see Yablon, "The Indeterminacy of Law"; Joel C. Balcan, "ConstitutionalArguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27 Osgoode Hall LawJournal 123-193; Alan Hunt, "The Ideology of Law: Advances and Problems in Recent Applications of theConcept of Ideology to the Analysis of Law" (1985) 19 Law and Society Review 11-37.49 "...[L]egal thought ... is actually lived in experience as imagined speech. That is, when we think it, we areactually seeing ourselves speak it in the presence of an invisible other, as something like a dress rehearsal for themoment of expression itself. And insofar as we see ourselves speaking it, we are adopting the same precaution werequire of all our alienated performances—we withdraw our ownmost being from our appearance of an other to theother and secure our distance through the vigilance of perpetual self-observation," Peter Gabel, "ThePhenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves" (1984) 62 Texas Law Review1563-1599 at 1579. See also Kari 'Clare, "Notes and Commentary: Law-Making as Praxis" (1979) 40 Telos 123-135 at 132. The views of !Clare and Bulbus are discussed by Weitzer, who argues for a less skeptical position onrules: see Weitzer, "Law and Legal Ideology," at 150-151.23PROLEGOMENA TO A POSTMODERN THEORY OF LAWThis ability to accommodate coexisting, conflicting world-views is possible because thegeneral principles of deep-structure theory are descriptive rather than prescriptive. It is a theoryof law, not a theory about law.50 Deep-structure theory is therefore not inconsistent with manyof the insightful observations of American legal realists, critical studies, feminist studies orpostmodern approaches. Indeed, the designer of a deep-structure expert system should usemethods of critical enquiry to educe the particular deep structure being employed by the courts.The designer should attempt to characterize the facts of each case in terms commensurate witheach competing world-view.51An example will illustrate the point. Let us identify the predominant judicial world-viewas Wlegal and the feminist world-view as Wfem. An example of a fact described in Wiegal mightbe as follows: "Jane wore revealing clothing and invited herself over to Dick's for coffee." Animplicit causal assumption in Wiegai is that when women wear revealing clothing and arefriendly this is evidence of consent to sexual advances. The expert system's description of thefacts could describe the event as "Fi:Jane initiated a common form of social contact with Dick.F2:Jane wore common public attire. F3:The meeting place was private. F4: Many men aresexually aroused seeing women wearing the attire Jane wore." The deep-structure expert systemcould reflect Wiegai with the causal assumption (CA1 = F1 and F3 and F4 implies reasonablegrounds to believe a woman consents to sexual advances), which would have precedent valuebased on the cases in which it appeared. The expert system could also add a conflictingassumption, warranted by evidence (i.e., the designer asserts it as a provable fact) or warrantedby Wfem (providing citations). The deep-structure expert system could then provide a usefulanswer, namely, that case law (Wiegai) implies reasonable grounds to infer consent to sexualadvances, unless the litigant can disprove CA1 in evidence or the litigant believes that Wfem hasrecently achieved the status of common sense and will soon be reflected in judicial outcomes.50 LsweiI and McDougal, Jurisprudence for a Free Society, at 3-21.51 Donald Davidson and Richard Rorty argue that no universal language exists to describe "facts." On the otherhand, Davidson shows that whenever translation among world views is possible, the meanings of words in twocompeting world-views can always be conunensurated. Of course, commensuration may require great effort,empathy and guile. Nonetheless, no general algorithm or methodology exists for translating between languages—a universal translator cannot exist. Donald Davidson, Inquiries into Truth and Interpretation (Oxford: ClarendonPress, 1985); Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press,1989).24LEGAL EXPERT SYSTEMSThe example shows that deep-structure expert systems are not necessarily incapable ofanticipating legal developments. Furthermore, a deep-structure expert system would notnecessarily have the effect of locking in the law to doctrines with negative side effects. The sideeffects would become expressed in the causal assumptions of the world-view of the classaffected and, unless the expert-system user chose to exclude these "voices" from the precedentdatabase, the expert system would point out the potential need for adjusting the legal system (byrecognizing the causal assumptions of the oppressed world-view) so that the law would moreoptimally reflect the social goal hierarchy otherwise implicit in the law.Since the principle of equality before the law is traditionally a high-ranking social goal incommon law, we would expect the law to be responsive to evidence of suffering. However,this has not been the case. The following chapter will show that certain aspects of the particulardeep structure of common law have interfered with the fulfillment of high-ranking egalitariangoals.25Chapter 2LiberalismPolitical liberalism is a particular attempt to fashion a legal order in terms of rule formulations.'The "rule of law"—governance by laws rather than the whims of the powerful—is acornerstone of liberal theory. Critical theory has continually attacked political liberalism as beinginherently ideological and oppressive to non-privileged social classes. A common criticalstrategy is to expose the rule of law as a myth that fails to constrain the arbitrary application andformation of laws in the manner liberals assert is possible.Some critical scholars argue that the form of legal rules causes oppression.2 This claimis abetted by arguments that the form of language and reasoning implies liberalism.3 Criticalscholars who do not attack the source—the argument for liberalism from form—attack theresult—governance by rules. Since deep-structure jurisprudence asserts that governance byrules is a good thing, critical scholars could dismiss deep-structure expert systems on thestrength of existing critical analyses of liberalism. Such a dismissal would be premature becausedeep-structure jurisprudence neither implies nor derives from liberalism.In this chapter I will show that while deep-structure jurisprudence can accommodatepolitical liberalism, political liberalism is not a necessary feature of a deep-structure system. Inorder to clarify how deep-structure jurisprudence differs from liberalism, I will argue thatproblems with liberalism result from the particular deep structure it assumes and not fromgeneral deep-structure principles. In particular, liberalism does not derive from the form oflanguage and reason. Critical scholars should not conclude that the fact liberalism hassuccessfully mystified an oppressive particular deep structure by appealing to the nature ofrules, implies that we should reject governance by rules. I will argue that the conception ofI Liberalism here means political liberalism premised on rule of law and legitimated government action. RichardRorty defmes a liberal as someone whose highest value is to minimize cruelty among humans. I will not useRorty's definition nor will I consider whether Rorty believes his liberalism entails political liberalism. SeeRichard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989).2 Karl Klare, "Notes and Commentary: Law-Making as Praxis" (1979) 40 Telos 123-135; Peter Gabel, "ThePhenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves" (1984) 62 Texas Law Review1563-1599.3 Smith presents this argument in J.C. Smith, Legal Obligation (Toronto: University of Toronto Press, 1976).26LIBERALISMauthoritative rule-making peculiar to liberalism is flawed, without showing that rule-making ingeneral should be rejected. This will leave room to construct a positive theory of rules.Justifications for liberalism have relied on presuppositions about epistemology—whatwe can know and the quality of that knowledge—that are too strong. From the perspective ofknowledge construction, liberalism is an extreme form of knowledge optimism. Liberalism is aform of modernism. In particular, it makes assertions about human nature and the possibility ofsocial consensus that could not, in principle, be known to be true. This will become clear afterwe examine complex adaptive systems in later chapters. However, any of several postmodernphilosophies exposes these epistemological excesses of liberalism. This chapter will draw onanti-essentialist pragmatism.The Logical Foundation of LiberalismTwo tenets of liberal modernism are the conception of legal obligation and the principle offormal justice (formal equality).Professor J.C. Smith in his book Legal Obligation4 sets out a coherent liberalexplanation of what constitutes the obligatory force behind legal obligations. The "ought"-nessof an obligation contains an implicit appeal to reason, which implies an appeal to causal claimswhere the ends are implicitly agreed upon. One refutes an "ought" by either (i) denying a causalrelationship to an agreed end, or (ii) denying that the state of affairs (the end) is desirable (ormore desirable than an alternative state of affairs). Legal obligation is the coincidence of moralreason (one "ought" to do something) with an obligation-creating practice in the social order(one is "obliged" to do something). The obligation-creating practice itself must be justified onmoral grounds or enlightened social consensus. Moral grounds and social consensus amount tothe same thing in most moral theories, since only immoral or irrational individuals would rejectwhat should be the social consensus. Therefore, there must either be social consensus as to the4 smith, Legal Obligation.27PROLEGOMENA TO A POSTMODERN THEORY OF LAWends served by obligation-creating practices or a moral justification for coercing others to agreeon the ends. In other words, the obligation-creating practice must be "legitimated."A typical methodology in critical studies is to present empirical evidence that socialconsensus does not exist. There are inherent, meaningful social class conflicts based oneconomic, gender, race or cultural differences and these conflicts preclude the existence ofsocial consensus. Thus the liberal claim that state law-making is legitimated is merely a myth torationalize the status quo. Critical scholars marshal empirical evidence to show that theunlegitimated effects of liberalism are oppressive to various social classes. Critical analysis thenexamines how language and reason seduce the oppressed into accepting their lot. In particular,the myth of having a complete, coherent rule system masks causal connections from liberalconcepts to class oppression. I will criticize liberalism from the opposite direction—by attackingthe use of reason in liberalism.In liberal modernism, rationality is thought to be essential to any moral order andrationality is absent insofar as arbitrary distinctions are made. Moral philosophers who backmodernism have not embraced the possibility that moral principles are contingent and inherentlyvague (fuzzy) and that moral distinctions could be made randomly or probabilistically, possiblyaccording to stochastic patterns. Moral rationality in modernism is reductionist and non-probabilistic—moral questions are answered by deductive derivations from universal principlesusing deterministic laws of cause and effect. Vagueness of concepts only reflects our unrefmedstate of knowledge—ideals are well defined in reality and we should aspire to achieve them.Liberalism certainly does not challenge this aspect of modernism. Modernist moralphilosophy asserts that the logical principle of universalizability constrains all moraljudgments.5 Liberalism applies the principle of universalizability to the domain of legalobligations to derive the principle of formal justice:Any judgment made in regard to a particular situation, that aparticular person is or is not legally obligated to do a particularact, logically entails that the judgment instances a rule of law5 R.M. Hare, Freedom and Reason (Oxford: Oxford Press, 1965).28LIBERALISMsuch that anyone in a relevantly similar situation is or is notlegally obligated to do the same act.6Thus, an important constraint in liberalism is that a legal rule that creates a legal obligation mustbe reciprocal, where reciprocity is measured in terms of relevant similarities and differences.Obligatory force ultimately derives from a presumed voluntary compliance by those who arerational; it is an appeal to good reasons as to what similarities and differences are relevant. Legalrules and the legal system must be rationally justified in terms of the common good using goodreasons.In giving content to its conception of moral rationality—the principle of formal justice,relevancy, reciprocity, good reasons—liberalism uses modernism's conception of the humanagent. In modernism, every individual is a cognitive, moral agent who gathers facts, appliesknowledge, makes choices, and acts according to those choices. Everyone is presumed to havepotentially unbounded capacity to acquire knowledge, make rational decisions, and act on thebasis of cognitive deliberation. I refer to these mythic individuals as "robust agents."In order to better achieve the common good, robust agents need a degree of stability ofexpectations, because stability of expectations enhances the capacity of robust agents to acquireknowledge and make rational decisions. Therefore, in the particular deep structure promoted byliberalism, the binding force of an obligation depends on the accuracy of the assertion that(i) stability of expectations, (ii) reciprocity, and (iii) a rational, rule-guided public order, arenecessary for the existence and well-being of a community and the social life within it.7 Theliberal justification for coercion and, by implication, legitimacy, depends on the existence ofcommon reason and the possibility of reciprocal treatment.86 Smith, Legal Obligation, at 89.7 Smith, Legal Obligation, at 74.8 Smith, Legal Obligation, at 84.29PROLEGOMENA TO A POSTMODERN THEORY OF LAWTwo Dogmas of LiberalismPlainly, the liberal manifesto rests on the strength of the claims that (i) all individuals are robustagents,9 and (ii) there could exist a universal language in which to express good reasons.However, both these assumptions have suffered sustained empirical and philosophical attack.Marxist scholarship shows that social forces largely constrain the capacity of robust agents—lifedetermines consciousness. Freudian and psychological studies make it equally plain thatsubconscious forces also undermine the myth of the robust agent. With regard to universal goodreasons, continental philosophers since Nietzsche have discredited non-perspectivistepistemologies, and Anglo-American philosophers, such as Wittgenstein, Quine, Davidson andRorty, have discredited essentialist and foundationalist epistemologies. Recent postmodernphilosophy focuses on the confluence of social forces and subconscious forces in language.Postmodern philosophers see language as a contingent artifact for describing contingentperspectives of the external world, for constituting the human world, and allocating powerwithin it. Since the 1950s the tide of philosophical thought has ebbed from modernism and theuniversal knowledge optimism it entails.loFrom the perspective of this chapter, the major difference between modernism and anti-modernism can be summarized as follows. Modernist reasoning assumes that once it isscientifically shown that x is the case, or that mathematical logic x operates, in one context ofnature (domain X), it is always possible in principle to discover a function T such that T(x) isthe case in domain Y, where T is a linear (non-distorting) function.11 Anti-modernism assertsthat scientific success in domain X is no guarantee of success in domain Y. The function T neednot exist in principle, or if it does exist, it might be a non-linear or chaotic transformation.12Stated differently, modernism claims that each essence described by language holds universally9 Or could be, if they so chose. But if they had the ability to choose and become robust agents, they would berobust agents. It therefore begs the question to suggest that individuals have an option to become robust agents.10 Stephen Toulmin, Cosmopolis—The Hidden Agenda of Modernity (Chicago: University of Chicago Press,1990).11 Toulmin, Cosmopolis.12 As will be argued in chapter four, a deterministic rationality cannot use deductive logic to cross the thresholdof a chaotic transformation into a new domain. The transformed function T(x) only holds probabilistically indomain Y and the concepts represented by x will be vague (fuzzy).30LIBERALISM(essentialism). The anti-modern view is that an essence is a collection of relations selected forutility within a particular domain (anti-essentialism). The anti-essentialist, however, must acceptthat result x in domain X is the best available description and may often concede that,pragmatically, we are justified in provisionally adopting T(x) (where T is linear) in domain Yuntil causal relationships peculiar to Y can be more fully understood. But that understandingmight be in principle only fuzzy, probabilistic and not amenable to deductive reasoning.The anti-modern view is that there is no universal language for all sciences. We can lookfor compact explanatory and predictive descriptions (models and theories), but there is noreason to believe, even in principle, that an a priori common language relates all fields togetheror that the principles must emanate from a common mathematics. This does not deny thatcompact explanatory and predictive descriptions can be useful. One can use descriptions withoutcommitting to essentialism. Furthermore, a person who shares the same descriptions andparticipates in the same discourse as others in a social context because it has proved to havebeen useful, cannot justifiably dissent until that person can identify contrary empirical evidenceor offer a better description. But once such evidence and alternative descriptions achieve acritical mass, the stage is set for what Kuhn calls a "scientific revolution," and a substituteworld-view can be constructed.13Though constructed, a new world-view must be probabilistically close enough to"reality" to be useful—a constructivist theory of truth does not imply that we can create world-views arbitrarily.14 Perspectivism is not relativism. Complexity theory, which I discuss in detailin chapter four, demonstrates that because of the chaotic behaviour entailed in the evolution ofcomplex systems in the world, there will always be, in principle, a probabilistic gap betweenany theory describing the world (a world-view or discourse) and reality. This probabilistic gapbetween world-view and reality ensures that different groups of people will find different13 Thomas Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970).14 The term "reality" is problematic in any discussion involving postmodernism. In this thesis I generally usethe term reality to signify the outside world that exists independently of being perceived or described by humans.This presents a problem, since I can have no idea of what reality is apart from how I perceive it. Nonetheless, thefact that some models lead to obviously bad experiences, but do not once they are amended, implies that it ismeaningful to speak about the relationship between models (or world-views) and reality, if only in this negativesense.31PROLEGOMENA TO A POSTMODERN THEORY OF LAWworld-views more useful to their unique situation. Their peculiar circumstances (language,social history, personal history, resources, biology) constitute their unique constellation ofneeds and desires.Once one accepts that linguistic descriptions of the world are only justified as usefulwithin limited domains and may only be provisionally projected as prima facie descriptions ofother domains subject to empirical falsification, one must question the purported universal scopeof "good reasons" in liberal modernism. If different constitutive experiences occur amongdifferent peoples in the community, we should examine with extreme skepticism any claim thatuniversal "good reasons" can be sensibly applied to everyone.Liberal modernism's zeal for universality, coupled with its impoverished conception ofhuman nature (the robust agent), results in an impoverished principle of formal equality.Liberalism presumes that formal equality assures egalitarianism because of the supposeduniversality of the robust agent myth. "Good reasons" are those that seem amenable to a robustagent—it is the world-view most useful for those inhabiting the community of robust agents.The presuppositions of liberal common law have evolved to enhance the robustness ofthe mythical robust agent. Contract and property laws enhance stability of expectation andpredictability; division of labour enhances the ability to covert deliberate choice into action.15 Byfavouring legal principles that enhance agency robustness, the law would presumably maximizethe freedom of people to choose how they wish to achieve their needs and desires. Since theliberal presuppositions of law supposedly enhance everyone's capacity as an agent, and since,by hypothesis, agent robustness is universal, fortuitous differences in wealth are short termand, in the long run, we attribute failure to achieve one's needs and desires to immoral orirrational choices.Marxist and Freudian approaches typically attack the robust agent myth by measuringthe concrete effects of the myth by some ideal standard other than moral, free-will capacity,such as economic materialism or material reality. As noted, in liberalism formal equality is15 S.C. Coval and J.C. Smith, Law and Its Presuppositions: Actions, Agents and Rules (London: Routledge &Kegan Paul, 1986).32LIBERALISMinadequate because the presumption of homogeneous robust agents confines the scope ofrelevant criteria. Any departure from the conduct of rational, robust agents is irrational and theresulting inequalities are therefore morally defensible. This means that differences that arerelevant from the point of view of Marxists or Freudians, which have richer conceptions ofwhat it is to be human in a social setting, are deemed to be irrelevant in liberalism. Subsequentcritical stances have identified other constitutive experiences unique to particular oppressedgroups within society, such as women, visible minorities, and overwhelmed cultures. Theemergence of successive critical stances supports an inductive argument that no universallanguage could exist to describe all possible human experience. The emergence of each criticalstance is in relation to successively less modernist world-views, each of which purports to haveachieved a universal language but which, in fact, fails to account for constitutive experiences ofsome other group. The purportedly universal language does not empathize with the experiencesof the excluded group and therefore deems their experiences to be irrelevant or irrational. To thisextent, the discourse disempowers the oppressed—language, rationality and knowledge are thusinstruments of power allocation.The use of language oppresses people whenever a discourse is presumed to contain anideal foundation from which universal human nature is measured—whether that foundation isrobust agency or economic materialism. Even if we expanded the principle of equality to includeexperiences identified by Marxists and feminists as relevant, from the perspective of anexcluded group it would be mere formal equality—the excluded experiences would notconstitute relevant differences; we would not achieve substantive equality.Substantive EqualityWe might ask whether we could solve the problem of achieving substantive equality bycommensurating the current dominant discourse with the current set of critical stances. Thisstrategy would only work if the resulting discourse exhausted the possibilities of human33PROLEGOMENA TO A POSTMODERN THEORY OF LAWexperience. The anti-modern assertion is that no such universal discourse could exist.Postmodernists argue that we are to a large degree constituted by language and personalexperience, and therefore the possibilities for human experience are unlimited. Indeed, the veryact of commensurating critical stances into the dominant discourse can create new constitutiveexperiences, new relevant distinctions. For example, the literary critic Harold Bloom notes thatShakespeare's discourse created the possibility of new experiences. 16 Until the dominantdiscourse adapts to accommodate these new experiences, the experiences of people in the newgroups will be unexpressed in the dominant language and thus be irrelevant or irrational. Thecomplex dynamics of language, society and personality will continually create new constitutiveexperiences, so that a universal language could never be achievable, even in principle.Anti-modernism must therefore reject the possibility of a well-defined concept ofreciprocity that transcends all possible cultural discourses. Indeed, a well-defined, universalconcept of egalitarianism is not possible. If a group within society has different constitutiveexperiences, the rest of society has no basis to measure whether that group is being equallytreated. What would constitute equal empowerment for a social climber, a factory worker, adepressive, and an Amish farmer?Liberalism throws up its hands and draws a distinction between moral choices andmatters of personal taste, the latter being irrelevant to equality, the former being based on goodreasons in the discourse of robust agents. Liberalism defends the distinction because of theuncertainty of evaluating matters of taste. Liberalism has created a false distinction—uncertaintypervades all levels of liberalism's moral agenda.Anti-modernism must address the very difficult problem of constructing criteria toevaluate how well a social order has achieved egalitarian goals. Indeed, why egalitarianism atall? One can derive reasons for cooperative strategies even among egoistic agents, and oncealtruism and empathy have been internalized and genetically favoured, some recognizable formof egalitarianism can be said to be self-evident to most people. But while naturalistic,16 Harold Bloom, Ruin the Sacred Truths—Poetry and Belieffrom the Bible to the Present (Cambridge,Massachusetts: Harvard University Press, 1987).34LIBERALISMevolutionary accounts provide reasons why such strategies are very useful for some species inappropriate environments, a universal or philosophical justification for egalitarianism,cooperation, or even egoism remains elusive.A solution is to acknowledge that even though the human situation is contingent and notuniversal, the fact is that most of us do find some form of egalitarianism to be self-evidentlyright. Moreover, we do not feel too bad about coercing others to comply with the same view. Itis a contingent fact that humans have survived as a cooperating group because most humansinstinctively wish to survive and be cooperative and detest those who do not.The real issue for most humans is whether they are cruel or they cause other peopleemotional pain without realizing it, merely because they cannot experience the world in the wayother people experience it. Likewise, we are concerned whether we have failed to empowerother people merely because we fail to understand what would empower them. An anti-modernist admits that no precise methodology could exist for understanding the constitutiveexperiences of others.17 Nonetheless, most people are similar enough that a capacity forempathy, energetically applied with guile, is usually a successful best strategy forcommensurating experiences across discourses.18Anti-modernist arguments must not be pushed too far. To the extent a group of people isrelatively homogeneous, this will provide a pragmatic measure with which to measureegalitarianism and substantive equality. Thus, most people in North America strongly correlateempowerment with command over resources and transactions—materialism. The fact that this isnot necessarily so for everyone does not justify manifestly inegalitarian distribution amongthose for whom materialism does matter. The fact that ascetic monks renounce worldlypossessions does not imply that factory workers are being treated fairly when they live inrelative poverty. Marxism, therefore, must be reckoned with—it makes a plausible claim that itsaccount of social reality is superior to that of liberalism. Furthermore, the fact thatpostmodernism posits close relationships between power and language does not render17 This is analogous to &Mel's incompleteness theorem and the incomputability theorems in computing theory.18 Rorty, Contingency.35PROLEGOMENA TO A POSTMODERN THEORY OF LAWinsignificant the probabilistic connection of our shared language to reality. The constitution ofpower is thus no more arbitrary than the constitution of truth.Rules Without DogmaThis chapter shows that if postmodern claims about quality of knowledge and the constitution ofself are correct, then liberalism is false. In this chapter I have uncritically relied on theconclusions of postmodern philosophy. Beginning in chapter four I will present my ownargument for these conclusions.My argument against liberalism did not need to assert that the form of legal rules isinherently ideological. Liberalism goes astray when it asserts that all people have the capacity tobe robust agents and that good reasons derived from a few universal principles can capture therange of possible human experiences. Therefore, a critical argument that demonstrates theclaims of liberalism are empirically false does not demonstrate that governance by rules isundesirable. I will argue that rule-governed behaviour is necessary in order to satisfy individualneeds and desires within egalitarian constraints. To the extent the reader shares the goal ofsurvival and agrees that cooperative existence more optimally enhances the quality of humanexistence, then rules are a good thing.36Chapter 3PositivismPositivists might argue that recent formulations of positivism adequately capture the teleologicalnature of legal reasoning. In particular, Frederick Schauer has developed a teleologicalpositivism, which he calls "presumptive positivism."1 If the designer of a legal expert systemaccepts these claims, then presumptive positivism subsumes the deep-structure theory of lawand there would be no need to expand it into a postmodern theory of law.In this brief chapter I will argue that presumptive positivism is inadequate for the samereason that political liberalism is unacceptable—it structurally impedes legal reasoning fromempathizing with the experiences of the oppressed and thus unjustifiably entrenchesinegalitarian distribution of power. As in the previous chapter, it is important for the purposesof deep-structure jurisprudence to refute presumptive positivism without refuting the possibilityof rule-governed justice.Rules and JustificationsConsider the role of rules from the perspective of presumptive positivism.The basic structure of prescriptive rules is "All x's must (must not) (may) do r."2 A rulerelates teleologically to some goal, that is, obeying a rule should have a causal or correlativerelationship to the justification for the rule. To illustrate this point, Schauer uses the example ofa rule prohibiting dogs from being in restaurants. The justification for or goal of this rule mightbe to prevent disturbances to patrons' meals. The causal or correlative relationship, however, isprobabilistic and inexact The factual predicate of the rule embodies a probabilistic generalizationabout the world—most dogs create disturbances. Each rule attempts to fashion the factual1 Frederick Schauer, Playing by the Rules—A Philosophical Examination of Rule-Based Decision-Making inLaw and in Life (Oxford: Clarendon Press, 1991).2 Schauer, Playing by the Rules.37PROLEGOMENA TO A POSTMODERN THEORY OF LAWpredicate in a simple manner using features about the world that rule-followers can detect withlow enough information and transaction costs to be useful in its real world context. For thisreason the concepts forming the predicates of rules are not precise—they are fuzzy.Schauer claims that this simplification implies that rules must deviate from theirunderlying justifications. The deviation becomes apparent in what Schauer calls "recalcitrantexperiences"—situations in which the context clearly indicates that application of the rule wouldnot advance, or would thwart, the goals that justified the rule. So, for example, a well-trainedseeing-eye dog would not violate the justification behind the injunction. In a conversationalsetting, we can contextually adjust rules on the fly; however, in a non-conversational setting therule becomes entrenched and acontextual.Schauer recognizes that justifications may be rules that are instrumental to even deeperjustifications. As rules, the intermediate levels of justification will themselves deviate from thedeeper justifications. Schauer fails to pursue this to its anti-modernist conclusion, namely, thereare no non-probabilistic foundational justifications. The processes of reasoning and languageinherently employ rules and classifications based on induction and probabilistic desciiptions.3In conversational settings we adopt probabilistically useful rules and classifications, unless wehave sufficient evidence to warrant an exception to a rule, a revision of the rule, or a rejection ofthe rule. A sufficiently recalcitrant experience (or a series of recalcitrant experiences) couldjustify the information and transaction costs to reformulate the rules. Until such newexperiences present themselves, the fuzzy, probabilistic, good-enough descriptions, rules andweb of justifications have an inertia. This inertia provides the foundation necessary for action. Ifwe become too exacting in our requirement for grounded knowledge, like Hamlet, we becomeparalyzed by inaction.4The web-like nature of justifications results in part from multiple instrumentality. Forexample, the legal concept of property rights serves many goals. As a result, the concept ofproperty rights acquires more justificatory force (inertia) than any one of the many goals it3 This argument will be developed in chapter four.4 Alexander Nehamas, Nietzsche: Life as Literature (Cambridge: Harvard, 1985).38POSITIVISMpromotes. Nonetheless, neither property rights nor the goals they promote are anything otherthan fuzzy concepts that are probabilistically constrained by reality. In an anti-modernistepistemology, there are no essential, absolute, or foundational goals; there is merely a networkof causal and correlative relations embedded into language that integrate with and to a largedegree constitute human needs and desires. Therefore, over time, the genesis of a rule orconcept (the original justification) becomes less and less relevant. As the effects of a rulespread, new niches and dependencies are created. The rule soon achieves multipleinstrumentality and new interests lock-in commitment to the rule. For example, people maywish to prohibit dogs from restaurants because dogs are smelly, because they are allergic todogs, because early dog-related traumas resulted in an unconscious phobia, because law-makershave historically banned dogs from restaurants and people have internalized negative,subconscious emotional associations between dogs and meal enjoyment. The adoption of a rule,therefore, over time creates new justifications that rule-makers might not have foreseen. Indeed,the reasons for continued commitment to the rule might arise purely as a result of the rule'seffect on power allocation—poor people cannot afford dog-sitters.Rules and PowerSchauer purports to analyze rules in terms of power, but his idea of power is quite limited andunsuitable for responding to critical concerns. For Schauer, rules allocate power by limiting thediscretion of the person obligated to follow the rule to deviate from the rule in otherwiseappropriate circumstances, even where the person believes a deviation is required to betterpromote the justification for the rule. Schauer claims that a law-maker can defend this limit onjurisdiction either because of the prudential benefit of rules in general, or mistrust of thedecision-maker in particular.Schauer's analysis of jurisdictional power is not the same sense of power allocation thatis fundamental to egalitarianism. Power allocation in this sense means political allocation of the39PROLEGOMENA TO A POSTMODERN THEORY OF LAWmeans of empowerment where there is intrinsic competition or conflict among groups. Schauerappears to have constructed his idea of power for the purpose of demonstrating that the rule oflaw can be effective, that the liberal paradigm of administrative law is well founded. However,he has rigged his definition of power to mask ideology and the concrete disempowering effectsof legal rules.Schauer completely overlooks the broader allocation of power implicit in a rule.Consider the example of a rule banning vehicles from a city park. The rule ostensibly promotesenjoyment of the park, but it also allocates power between conservationists and non-conservationists. Law-makers might adopt the rule as a compromise among powers with nocoherent centre of justification, other than an approximation that mediates many conflictinggoals advanced by different power groups. Law-makers should not tamper with such a ruleunless the tampering preserves the allocation of power implicit in the rule, or they can justify thereallocation of power resulting from the amendment.Ignoring the power-allocating effect of rules can lead to unjust results. For example, inReference re Manitoba Language Rights5 the Supreme Court of Canada ostensibly advanced therights of the French minority in Manitoba by ruling that the Legislature had to pass enactmentsin both French and English. This was a major expense for the Manitoba government. Arguably,the practical effect of the decision, in terms of empowerment, was to squander the Frenchcommunity's political influence over budget allocation on a low priority matter. As a result, aliberal principle designed to empower the French minority disempowers them merely becausethe positivist conception of rules only considers allocation of power in an administrative lawsense (i.e., in a way designed to legitimate the rule of law myth).5 Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721.40POSITIVISMRules for HumansSchauer correctly asserts that a theory of jurisprudence cannot provide an adequate account oflegal reasoning without considering the teleology of the rules—the social goals that justify therules.Schauer correctly identifies fuzziness of concepts and the probabilistic nature of rules asunavoidable sources of inaccuracy. However, Schauer fails to observe that this feature of rulesapplies to all language, reasoning, and other human attempts to cope with and flourish withinthe world. Without a set of universal and ideal justifications to give content to the rules,presumptive positivism has not provided philosophical reasons to use rules. At best, Schauerprovides pragmatic, efficiency-related reasons for favouring the use of rules and reasons basedon mistrust of certain decision-makers.6 But even these reasons are formulated in terms thatpresume the existence of universal justifications. If one accepts postmodern claims about thequality of knowledge, presumptive positivism does not have a justification for governance byrules. I will argue in favour of rule usage in subsequent chapters without presuming modernistclaims about knowledge.More seriously, Schauer fails to situate rules within a social order in which humanscreate, compete for and allocate power. Presumptive positivism therefore fails to considerwhether rule-making perpetuates the oppressive effect of formal equality. Since this should be afundamental consideration of any theory of justice, presumptive positivism has an inadequatemodel of legal reasoning for the purpose of designing legal expert systems.To create acceptable legal expert systems, we therefore need a theory of law that canjustify the use of rules without using the strong presuppositions of liberalism or modernism,and is capable of accounting for the dynamics of power in society. I claim that a postmoderntheory of law successfully addresses these issues.6 For prudential justifications for using rules, see chapter 7 of Schauer, Playing by the Rules.41Chapter 4Complex Adaptive Systems—A Mathematical Foundation for PostmodernismThe task of this chapter is to set postmodernism on a mathematical foundation and use this toelucidate the constructive aspects of postmodernism. A comprehensive survey of postmodernthinking is beyond the scope of this thesis and is not required. Nonetheless, a brief introductionwill help put the aim of this chapter in historical context.The primary theme of postmodern thought has been that human thinking is not capableof exact, perspective-free knowledge about most phenomena in our world. To the extent thatpeople believe they have achieved or could, in principle, achieve such knowledge, the belief isan illusion and they are living a fantasy. I call this fantasy "knowledge optimism."Postmodernism derives its name from the fact that it has been principally a reactionagainst the intellectual trend known as "modernism," a pathological form of knowledgeoptimism. Stephen Toulmin traces modernism to the early 1600s.1 The social situation inEurope at the time was becoming increasingly acrimonious and chaotic, eventually erupting intothe Thirty Years War. Europe needed an intellectual movement that was capable of transcendingreligious balkanization and reconstituting social order. René Descartes' philosophy ofknowledge based on clear and distinct ideas and deductive logic proved successful in this task.Rationalism provided the foundation for Thomas Hobbes's political philosophy based on socialcontract and the emergence of nation states that were (somewhat) independent of religiousauthority. The deterministic, Newtonian model of the world in science propelled the momentumof the Age of Reason.The seeds of postmodernism germinated in many counter-movements to the Age ofReason. Of particular importance was the approach of Karl Marx. Marx discounted the value ofknowledge claims based on the deductions of rationalist political philosophy and, instead,focused on the concrete effects of political institutions on the common labourer. Marx attributedI Stephen E. Touhnin, Cosmopolis—The Hidden Agenda of Modernity (Chicago: University of Chicago Press,1990).42COMPLEX ADAPTIVE SYSTEMSthe appeal of rationalist political philosophies for the dominant classes to the social privilegesthey indirectly received from the political institutions, not on the philosophy's logical derivationfrom "self-evident" principles of human nature.Marx did not extend his suspicion about rationalist political philosophy to the core ofrationalist thinking. Friedrich Nietzsche provided the first comprehensive philosophy of doubt,denouncing knowledge optimism about any system. Nietzsche introduced the technique ofdeconstruction: examining the genealogy or history of a system of thought and attributing itsknowledge optimism to self-interest and self-preservation. Nietzsche showed how knowledgeoptimism related to self-interest based on subconscious needs (decadence), supplementingMarx's focus on social interests.Because Nietzsche reacted comprehensively against knowledge optimism, unlikeprevious critical thinkers, Nietzsche had to struggle to create any knowledge whatsoever.Nietzsche is frequently charged with nihilism—the denial of the possibility of knowledge ormeaning. I call the claim that it is not possible to have any knowledge about a system"knowledge pessimism." In the next chapter I will argue that Nietzsche was able to create aconstructive theory of knowledge based on his idea of will to power. In essence, Nietzscheanticipated the theory of complex adaptive systems.Many postmodern critiques deconstruct rival theories without acknowledging theplausibility of the theory they attack—they are knowledge pessimistic toward their rivals.Moreover, such critics frequently advocate an alternative theory that is simply knowledgeoptimistic in a different way and favours their own self-interests. Such guileful strategies havetainted postmodernism as being subjective and arbitrary.A mathematical foundation for postmodernism fulfills two goals. First, it provides amore compelling argument against knowledge optimism. Second, it provides a more detailedaccount of how plausible knowledge can evolve without a foundation of certainty.43PROLEGOMENA TO A POSTMODERN THEORY OF LAWAttacking Knowledge OptimismPrevious arguments against knowledge optimism have been dissatisfying in many respects.Various forms of romanticism, for example, are merely visceral expressions of intuitivedissatisfaction with excessive rationalist claims. Argument is in the form of vague appeals tointuition, the ineffable, mysticism, holism, emotion, or other cherished forms of non-rationalexperience. There is no serious attempt to meet rationalism on its own ground. On the otherhand, the philosophy of knowledge (epistemology) has attacked knowledge optimism usinganalytic philosophy based squarely on logic. The efforts of Tarsid, Quine, Davidson and Rortyshow that essentialism (the possibility of a language based on knowledge optimism) is logicallyimpossible.2 This refutation from within, however, is not intuitively engaging3 and isessentially a proof by reductio ad absurdum.Chaos theory provides the elements of an intuitive and constructive refutation ofknowledge optimism. Such a refutation has been formulated recently by the philosopherStephen Kellert and need not be repeated here in full detail.4Chaos TheoryKellert observes that "there is no simple, powerful, and comprehensive theory of all chaoticphenomena, but rather a cluster of theoretical models, mathematical tools, and experimental2 Alfred Tarski, "The Semantic Conception of Truth and the Foundation of Semantics" (1944) 4 Philosophy andPhenomenological Research 341-375; W.V.O. Quine, "Two Dogmas of Empiricism," in From a Logical Pointof View, 2nd ed. (Cambridge, Mass: Harvard University Press, 1961); Donald Davidson, Inquiries into Truth andInterpretation (Oxford: Clarendon Press, 1985); Richard Rorty, Philosophy and the Mirror of Nature (Princeton,NJ: Princeton University Press, 1979). The contribution of Nietzsche, the American pragmatists andWittgenstein should not be overlooked, but their arguments were not as purely expressed in the precise languageof logic and semantics.3 The physicist Heinz Pagels confessed that even after attending lectures by Donald Davidson, he never came tounderstand Tarski's semantic concept of truth. See Heinz R. Pagels, The Dreams of Reason—The Computer andthe Rise of the Sciences of Complexity (New York: Bantam, 1989) at 22.4 Stephen H. Kellen, In the Wake of Chaos—Unpredictable Order in Dynamical Systems (Chicago: Universityof Chicago Press, 1993) [hereinafter Kellen].44COMPLEX ADAPTIVE SYSTEMStechniques."5 He defmes chaos theory as "the qualitative study of unstable aperiodic behaviourin deterministic nonlinear dynamical systems."6 This turgid definition requires some unpacking.A "dynamical system" is a collection of components that interact over time. It is anabstract concept that can describe any system, such as a dripping water faucet, the market for acommodity, or the plays of a basketball team. The instantaneous state of such a system isdescribed by assigning mathematical variables to represent features of interest in the system.The dynamics of the system are represented by a rule (in the form of a set of equations) fortransforming the current state description into another description for another time. I call this setof equations the system's "evolution equations."A "nonlinear dynamical system" is a system where the evolution equations arenonlinear—variables are not just multiplied by constants, they multiply each other. Generally,this means that there are positive feedbacks in the system.7 For example, when video playersand tapes came out in rival VHS and Betamax formats, people based purchase decisions on theirperception of which format was more likely to prevail, resulting in a positive feedback as VHSbegan to clearly emerge as the winner.Mathematically, the existence of nonlinear evolution equations usually means that thefuture state of the dynamical system for a specified time cannot be determined by anymathematical manipulation (such as integration) that bypasses the incremental evolutionequations. Instead, the future state can only be discovered by calculating transformations, usingthe evolution equations iteratively to recalculate successive states over many small increments oftime.The situation is more profound than heavy computational workload. Mathematically ithas been shown that these systems exhibit sensitive dependence on initial conditions.8 Thismeans that minuscule differences in starting conditions can result in large differences in system5 Kellert, at x.6 Kellert, at 2.7 A positive feedback exists when the result of a process promotes the continuation of that process.8 A function f on an interval J has sensitive dependence on initial conditions if there exists a > 0 such that, forany x in J and any neighbourhood N of x, there exists y in N and n 0 such that If(x) -f1(y)I> a. See Kellert,at 12.45PROLEGOMENA TO A POSTMODERN THEORY OF LAWbehaviour over time. In order to predict the future state of a system within a desired degree ofaccuracy, the values of the initial state would have to be known with exponentially moreaccuracy the further into the future the prediction is to be made. This results in the so-called"butterfly effect": the flap of a butterfly's wings in Brazil could set off a tornado in Texas.9Kellert uses the term "predictive hopelessness" to indicate that a variable cannot bepredicted within a useful range of accuracy due to constraints on how precisely the initial stateof the variables can be measured. Nonetheless, if the sensitivity is not too extreme, short termpredictions are possible. For example, John Casti observes that weather forecasters can makeuseful weather predictions up to five days in advance.10 Casti estimates that the best usefulpredictions that could ever be achieved would be up to nine days in advance. Kellert calls theamount of time that predictions about a system are useful its "predictively worthwhile time."Systems that have little or no predictively worthwhile time are called "chaotic" systems.Chaos theory thus focuses on systems that are unstable. Such systems never settle into a formof behaviour that resists or absorbs small disturbances—a slight nudge can change thebehaviour drastically, like a marble on a saddle (unstable) as opposed to a marble at the bottomof a bowl (stable). Aperiodic behaviour means that no variable describing the system undergoesa regular repetition of values.The fact that a nonlinear dynamical system is chaotic does not mean nothing can belearned about the system's behaviour. By studying the mathematical properties of the system,we can give qualitative accounts of the behaviour. Instead of asking what the precise futurevalues will be, we ask what characteristics would all solutions have over the entire range ofpossible starting conditions. This usually results in a topological profile, called an attractor. Thetopology (or shape) of the attractor, for example, might be a torus (a doughnut shape) or afracta1.11 Even though we cannot know what precise states will follow, we might be able to run9 The metaphor is attributed to a 1979 paper by Lorenz. See Kellert, at 13.10A useful weather prediction is one that outperforms the strategy of predicting the same weather as the daybefore. See chapter two of John L. Casti, Searching for Certainty—What Scientists Can Know About the Future(New York: William MO1TOW & Co., 1990).11 A fractal is a pattern that repeats at all levels of magnification (like a coastline) and tightly packs into layerswithout crossing itself, thereby giving the appearance of a texture of higher dimension (like a filo pastry orcroissant).46COMPLEX ADAPTIVE SYSTEMSsimulations and observe what classes of state configurations could follow and the probabilitythat a particular class would occur.Thus, chaos theory is the qualitative study of unstable aperiodic behaviour indeterministic nonlinear dynamical systems.Chaos Theory Defeats Knowledge OptimismIf a nonlinear dynamical system is chaotic, then even if we know everything about how theparts of a system behave and even if we measure the starting conditions and all outsideinfluences with incredible precision, since we cannot measure with infinite precision, it isimpossible, in principle, to predict the future behaviour of the system without resorting tostatistical prediction. Kellert calls this "transcendental impossibility. "12As a result of transcendental impossibility, chaos theory constructively proves that totalpredictability or comprehensive knowledge optimism is false.13 The scope of this shortcomingis quite broad, since most dynamical systems in nature and almost all social systems arenonlinear, and all but a handful of nonlinear dynamical systems are chaotic. Any system whoseinteractions are complex enough to introduce positive feedbacks, will be chaotic in all butexceptional circumstances. Until recently, science has steadfastly avoided chaotic phenomena,treating the non-chaotic exceptions as the rule.14This pattern of denial is the pathology of obsessive knowledge optimism—modernism.On the other hand, the prevalence of chaotic systems does not imply that knowledge optimismabout a system is always false. Many systems are linear and some nonlinear systems are notchaotic. Intuitively, we should expect knowledge optimism to be false wherever a systemproduces positive feedbacks that can amplify slight disturbances to initial conditions intoimmensely different behaviour over time.12 Kellert, at 42.13 Kellert, at 62.14 See generally, Kellert, at chapter five.47PROLEGOMENA TO A POSTMODERN THEORY OF LAWAn interesting example of a nonlinear system is the liberal deep structure presumed bycommon law. Coval and Smith show that many of the fundamental presuppositions of commonlaw are intended to enhance the capacity of agents, to make us all more robust agents.15Liberalism assumes people are robust and morally responsible agents. Since each person'sneeds and desires are unique, common law has assumed that the best way to maximize socialwelfare is to maximize the capacity of agents to get things done and let the agents choose forthemselves how best to satisfy their needs and desires. So, for example, the common lawvalues very highly property rights and freedom of contract. Agents require knowledge to linkactions to their goals. Thus the common law promotes values such as freedom ofcommunication, truth-telling and the ability to predict the actions of other agents. Chaos theorypredicts that these rules should produce evolution equations that distribute wealth chaotically. Apositive feedback occurs because agents with more capacity for agency have more capacity toenhance their capacity for agency. Wealth begets wealth. Furthermore, there is competition forscarce resources, so more-robust agents are further able to increase their edge. Once the systemis chaotically unstable, accidental variations in agency capacity can result in immense differencesin distribution of wealth. Factors such as initial wealth, initial social class, psychological traumaand biological variation all affect one's agency capacity. Since the causes of these variations aremorally irrelevant, there is no moral justification for the immense differences in allocation ofpower that result.16 It is therefore wrong to be knowledge optimistic about the morality of "self-evident" liberal presuppositions.The falsity of knowledge optimism in all but exceptional cases does not implyknowledge pessimism. Chaos theory shows that chaotic systems exhibit regularitiesnotwithstanding the lack of total predictability. Chaos theory studies how unpredictablebehaviour emerges and what are the limits to prediction.15 S.C. Coval and J.C. Smith, Law and Its Presuppositions: Actions, Agents and Rules (London: Routledge &Kegan Paul, 1986). See also chapter two of this thesis.16 many factors other than common law rules affect wealth distribution, but the rules themselves are manifestlynonlinear. Moreover, the presence of negative feedbacks does not make the situation more rational. For example,water spilled from a glass onto a table undergoes positive and negative feedbacks (surface tension versus gravity).The resulting distribution of droplet formations is chaotic.48COMPLEX ADAPTIVE SYSTEMSChaos theory therefore forces us to reconsider what constitutes a theory. Thepredominant attitude as to what constitutes a theory is that a theory should be able to predict andexplain the behaviour of a system. A theory seeks to reduce the behaviour of a system todeductive, cause-and-effect relationships to known characteristics of the system's parts. Atheory should be "microreductionist."Chaos theory shows that the behaviour of chaotic systems cannot be explained as atheory. Experimentation and computer simulation can provide a model as to how the systemworks, but a theory seeks to answer why a system behaves as it does. The specific behaviour ofa chaotic system cannot be deduced from knowledge of the individual components. A cause-and-effect gap exists; complete knowledge about the constituent parts will only give statisticalinformation about the behaviour of the system.It is in many cases impossible to infer future states knowing just the instantaneousconditions. Often one must also know the history of the system. For example, if you slowlyopen a water faucet the stream of water will progress from a steady drip, through a successionof period-doubling dripping rates, through a phase transition to a chaotic dripping rate, througha transition to a steady stream, and through another phase transition to chaotic turbulence. Forthe same flow rate of water, the state of the water stream could be on either side of a phasetransition depending on whether the rate of flow had been slowly increasing or slowlydecreasing. This historical dependence is called an "hysteresis effect" and can arise in almostany system that undergoes phase transitions as the control parameter is varied.17 The innatelyhistorical nature of such systems precludes deterministic prediction and explanation usingmicroreductionist theories.The implications of chaos theory force us to reconsider what constitutes an explanationof a system. Chaos theory provides qualitative information about systems. We can learn therelationships among large-scale properties of a system and its long-term behaviour. Chaostheory generates statistical or probabilistic long-term predictions. Quantitative predictions about17 Kellert, at 93.49PROLEGOMENA TO A POSTMODERN THEORY OF LAWa chaotic system tend to have limited timeliness. Chaos theory can give an account of how andto what extent prediction in detail is limited.In terms of causality, it is impossible to trace causation from the constituent parts to thebehaviour of a chaotic system. The phase transition in which system behaviour emerges blursthe causal links to the constituent parts. The system behaviour emerges independently from thecausal properties of the strata—the same general behaviour could be manifest in a system ofdifferent underlying components, just as different types of hardware can run the same computersoftware. Chaotic systems are thus studied without reference to the actual matter through whichthey are manifested. Chaos theory looks for geometric invariants common to many types ofsystems. Kellen notes that the "theoretical hypotheses of chaos theory assert relationships oftopological similarity, not congruence of physical causes, between its exemplary models andactual systems." 18A modal explanation seeks to fit puzzling aspects of the world into what we know; itseeks to answer why behaviour happens with an answer that states what must necessarilyhappen in terms of "laws" of nature. Chaos theory emphasizes connections and patterns, but themodels it creates need not be deterministic and detailed. Kellert suggests using the term "order"to designate what chaos theory attempts to discover, as opposed to "law." Chaos theoryprovides information about geometric orders that accompany unpredictable behaviour; itanswers how it happens instead of why it happens.To summarize, the method of understanding the appearance of unpredictable behaviouris by the construction of models and rules of thumb as to when the models apply to systems inreality. We do this not by breaking systems into their components and then constructingahistorical deductive schemes, but rather by using experimental procedures that concentrate onholistic properties and historical development. The character of the understanding these modelsprovide is that of qualitative expectability, geometric mechanisms, and order. 1918 Kellert, at 107.19 Kellert, at 114.50COMPLEX ADAPTIVE SYSTEMSTherefore, while chaos theory refutes the possibility of widespread knowledgeoptimism, it also demonstrates that knowledge of a different quality can be achievednonetheless.EmergenceSince this thesis is ultimately concerned about knowledge claims regarding human interaction,the class of dynamical systems that creates topological orders from the interaction of many"actors" are of particular interest.20 "Emergence" is the bottom-up creation of systemicbehaviour from many agents concurrently following less complex rules without a centralcontroller.21 This is a special case of the systems studied in chaos theory.An example will more clearly portray emergence. Computer simulations have beendeveloped to mimic the flocking behaviour of birds.22 The programmers called their computerbirds "boids." They programmed the boids to govern their flying behaviour using three simplerules for interaction: (1) try to maintain a minimum distance from other objects in theenvironment, including other boids; (2) try to match velocities with other boids in theneighbourhood; (3) try to move toward the perceived centre of mass of boids in theneighbourhood. There was no central controller. The boids acted as independent actors inparallel, reacting to the environment and other boids. The collectivity of boids consistentlygenerated flocking behaviour. Moreover, the simulated flock exhibited realistic characteristics20 The term— "agent" could be used in place of actor. However, I prefer "actor" because it emphasizes behaviour,whereas "agent" might imply some self-knowledge or awareness of the rules being followed or why they arebeing followed. Such awareness is unnecessary for emergence.21 This has been described as computational emergence; there are other types of emergent behaviour.Computational emergence has been described as a weak form of emergence; however, it is strong enough for thepurposes of the argument in this thesis. For a classification of types of emergence, see Peter Cariani, "Emergenceand Artificial Life," in Artificial Life II, eds. Christopher G. Langton, Charles Taylor, J. Doyne Farmer, andSteen Rasmussen, Sante Fe Institute Studies in the Sciences of Complexity, vol. 10 (Redwood City, CA:Addison-Wesley, 1992), 775-797 [This volume hereinafter Artificial Life II].22 For a more lengthy discussion of this simulation and further references, see M. Mitchell Waldrop,Complexity—The Emerging Science at the Edge of Order and Chaos (New York: Simon & Shuster, 1992) at241, 277-280.51PROLEGOMENA TO A POSTMODERN THEORY OF LAWlike splitting to avoid objects in the pathway of the flock and rejoining afterwards. Flockingbehaviour emerged from the concurrent behaviour of many actors.Even knowing the boids' rules in advance, there was no deductive procedure that couldpredict what systemic behaviour would emerge from a collectivity of boids individually actingaccording to the rules at the same time. In terms of chaos theory, this should be expected.Indeed, it has been shown that an attempt to deduce emergent behaviour is mathematicallyequivalent to the undecidability theorem in computational theory and logic—a general theory forpredicting what systemic behaviour will emerge is logically impossible.23 The concurrent,parallel behaviour of the boids created a kaleidoscope of positive and negative feedbacks. Thereis no general algorithm for describing the large-scale effects of the interactions more compactlythan running the simulation and seeing what happens. The only predictions that were possible incompact language, were vague and probabilistic ones about how the flock would tend to formand respond to the environment—the topology of flocks. "Flocking" was the order thatemerged.Evolution—Another Obstacle for Knowledge OptimismAt this point a knowledge optimist might protest that however unpredictable emergence is ingeneral, once the rules of a system have been in place and stable behaviour is observed, thisprovides a sufficient foundation for laws governing social behaviour to be logically deducedfrom a hierarchy of principles.There are two reasons why this qualified knowledge optimism is false. Theprogrammers of the boid simulation found that it was impossible to successfully replicateflocking behaviour by creating a central authority that attempted to control the flock by issuingtop-down commands. The centrally controlled flock, for example, could not deal successfullywith unforeseen varieties of object encounters. As the exceptions multiplied, the set of23 For discussion and references, see Waldrop, Complexity, at 281 -282.52COMPLEX ADAPTIVE SYSTEMScommands became computationally unmanageable. In social theory, Friedrich Hayek observedthat top-down command structures in society are much less capable of utilizing vast quantities ofdistributed information and much less capable of responding to new experiences.24 Usually, itis possible to generate more complex system behaviour from the bottom up.The second reason is that society always finds itself in evolving circumstances. Systemsthat generate useful behaviour from the interaction of numerous independent actors are betterable to evolve. This is because small changes in the actors' rules of behaviour can result in largechanges in system behaviour. This results from the chaotic nature of the system—small changestend to be magnified. A system that is able to harness this chaotic behaviour to its advantage iscalled a complex adaptive system.Complex adaptive system theory studies how emergent systems evolve as the rules ofthe actors are varied, the frequency of interactions is varied, or influences from outside thesystem are added or varied. In a situation where there is natural selection, complex adaptivesystems will adapt to persist by evolving more complex behaviour. The behaviour can beusefully viewed as incorporating implicit rules (or a model or theory) about its outsideenvironment and what the system must do to persist in that environment. I call the internalizedknowledge about the world in a complex adaptive system its "schema."This evolved knowledge falls short of the sort desired by knowledge optimists, but itsevolved utility demonstrates that it is useful knowledge nonetheless. Moreover, the process ofevolution shows how the knowledge can be continually improved without any notion of whatperfect knowledge might be. By showing how complex adaptive systems evolve progressivelymore useful knowledge, we will have constructively shown how useful knowledge is possiblein a world full of chaotic systems where knowledge optimism is not possible.24 I will discuss the work of Hayek in chapter six of this thesis.53PROLEGOMENA TO A POSTMODERN THEORY OF LAWDefining ComplexityBefore examining how complexity evolves, it is helpful to clarify what complexity is. Thescience of complexity concerns itself with both defining complexity and, more interestingly,determining what leads to the formation of complexity in systems.One mathematical definition of complexity identifies the complexity of a message (orschema) as the shortest computer program (measured in number of bits) that can print themessage. 25 A message is said to be "compressible" if a shorter computer program wouldproduce the same message by exploiting regularities in the message. It has been shownmathematically that it is computationally undecidable whether any given message iscompressible. In other words, generally we cannot be sure that we have arrived at the mostefficient way of describing how a system works.This definition of complexity, however, would equate fractals, which computers drawusing a simple formula and much computation, with intuitively less complex phenomena. Theterm "depth" has been adopted to signify the number of computer steps a computer programuses when it outputs the message. Thus we can measure the complexity of a schema by howmany words or concepts it takes to express it and how much labour it requires to apply it.A schema that can be compressed into a shorter form without adding significant depthhas, in a sense, inflated complexity. We would like to refer to a schema's complexity as theminimum total length and depth for all possible formulations with the same expressive power,but mathematics demonstrates that there cannot be a universal method for determining whetherthis minimum has been achieved.Complexity can also be viewed from the perspective of building a schema to describe asystem. Schema-building (i.e., model-building or theory-building) is the process of attemptingto formulate a compressed description of a body of experimental data by exploiting regularities25 Murray Gell-Mann, "Complexity and Complex Adaptive Systems," in The Evolution of Human Languages,eds. John A. Hawkins and Murray Gell-Mann, Sante Fe Institute Studies in the Sciences of Complexity, vol. 11(Redwood City, CA: Addison-Wesley, 1992), 3-18 [hereinafter Gell-Mann] at 5-8.54COMPLEX ADAPTIVE SYSTEMSin the data. Complex adaptive systems evolve a schema about how to persist in the environmentand this schema tends to increase in complexity.Complex Adaptive SystemsIf, as Stephen Kellert suggests, chaos theory is only a cluster of models, tools and techniques,then complex adaptive system theory has yet to form a cluster.26 The science of complexadaptive systems is a new, trans-disciplinary theory emerging from the study of complexsystems in diverse areas of science—including mathematics, computer science, physics,chemistry, molecular biology, immunology, evolutionary biology, ecology, psychology,economics, anthropology, archaeology, linguistics and history.27 A complex adaptive system isa special type of chaotic system. It behaves according to an implicit, rule-governed schema of itsenvironment and modifies its schema in response to feedback from the environment. Complexadaptive systems comprise many interacting actors. The "order" that emerges from theinteractions helps the system to survive in the environment.Complex adaptive systems are systems that "spontaneously" accumulate complexity.One of the tasks of the science of complex adaptive systems is to discover why the universe isnot simply an undifferentiated mist of energy dissipating according to the second law ofthermodynamics. Indeed, the theory of complex adaptive systems hypothesizes that theconditions for accumulation of complexity carve an exception to the second law ofthermodynamics.Chaos theory studies the structure of interacting components in an environment andattempts to determine under what conditions stable orders will emerge. Work on "auto-catalytic"sets of chemical reactions, for example, shows that for any system of reactions to endure in an26 Complex adaptive system theory is also known as complexity theory. However, complexity theory issometimes associated with the older, more limited theory of computational complexity and computability."Complexity theory" is less unwieldy, but wherever there might be confusion, I will use the expression"complex adaptive system theory."27 Gell-Mann, at 1.55PROLEGOMENA TO A POSTMODERN THEORY OF LAWenvironment, it must possess self-reinforcing mechanisms. It must produce its own catalysts topromote the continued occurrence of the series of reactions that constitute the system. It is theself-reinforcing nature of a circular chain of reactions that makes the system endure. In themathematics of chaos theory, such an emerging stability is called an attractor; in complexadaptive system theory it is generally called an "order." As already noted, the order emergesfrom the concurrent interactions of the components. The properties of the components and thepossible modes and rates of interaction constrain the range of possible stable orders that canemerge from a set of interacting components.A remarkable feature of emergent systems is that they arise spontaneously, withoutcentral control. Systems that possess self-reinforcing mechanisms that withstand destructivepressures from the environment, endure to the extent of the strength of the self-reinforcingfeedback and the stability of the environment in which the system occurs. The reason the orderis self-reinforcing is that it implicitly encapsulates knowledge about the environment in which itoccurs—the behaviour of the order encodes a schema as to how to withstand destructiveinfluences from the environment.A feature that distinguishes complex adaptive systems from other emergent systems isthat complex adaptive systems encapsulate knowledge in something more than a mere look-uptable of behavioural responses. 28 The structure of the component parts of a complex adaptivesystem are somehow exploited to capture the regularities of the system's experience in theenvironment in a highly compressed form as a schema. The system's schema unfolds intosystem behaviour that contains implicit predictions about the future impact of the environmenton the system and of the system's behaviour on the environment.The schema is approximate (fuzzy 29 and probabilistic) because the expressive powerimplicit in the structure of the components is too weak to completely model the environment.Nonetheless, so long as the schema enables the system's self-reinforcing mechanisms to be28 Gell-Mann, at 10.29 "Fuzzy" concepts and rules will be discussed in more detail below.56COMPLEX ADAPTIVE SYSTEMSmore robust than the disintegrating influences from the environment, the schema is goodenough for the system to endure.There must be a positive feedback loop, a self-reinforcing mechanism that results in thepersistence of the schema. The schema is implicit in the order of the system. The set of criteriathat the schema must embody for the system to survive is called the "fitness function" for thesystem in the environment. For example, a bacterium moves in the direction of increasingconcentration of glucose, implicitly following a fuzzy, probabilistic prediction that food lies inthat direction. The fitness function only requires that the bacterium evolve behaviour thatoutperforms random searching, so fuzzy rules can satisfy the fitness function.Why does complexity continually accumulate? It is conceivable that the most robustsystem in an environment would achieve hegemony and the complexity of systems wouldadvance no further. Certainly this is the case for many systems, such as the formation of eddiesin a stream. However, in many environments the structural properties of the elements and thenature of their interaction support more interesting system dynamics. If the environment cangive rise to competition between two systems with emergent orders, the survivor will be moreefficiently and successfully structured to ensure its survival by resisting destructive influencesfrom the environment and the other system. Once an order emerges from a system, it willunpredictably affect the environment in which it emerges. The added richness in theenvironment, caused by the new system's behaviour, creates the possibility of a more robustcompetitor emerging. The form in which the newer competitors can emerge is contingent on thehistory of the environment, which is unpredictable. Nonetheless, the elements comprising thesystems and their environment impose constraints on what types of systems might emerge.For example, the mind is an order emerging from the biological activity of the brain. Weknow from chaos theory that such an order is independent of the material makeup of theconstituent parts. It is therefore possible, in principle, to create a mental order (a mind) insomething other than a human brain. However, the alternative medium must possess sufficientrichness in the complexity of behaviour it can support. Skeptics of artificial intelligence assertthat a computer is too impoverished. Indeed, it can be argued that the mind requires a chaotic57PROLEGOMENA TO A POSTMODERN THEORY OF LAWsystem of such subtlety that its sensitive dependence can strategically exploit quantumuncertainty.30 Similarly, it has been hypothesized that "life" is an emergent order that could becreated in a computer.31Aristotle's Four Types of CausationIt is useful to review the ideas discussed so far by briefly examining Aristotle's four types ofcauses.Philosophy has long been skeptical about knowledge optimism and a conception ofcause and effect based solely on microreductive accounts derived from the laws of the materialworld. In Phaedo, Socrates denounces the poverty of Anaxagoras's explanation of causes,which Socrates interprets to reduce human action to the physics of bones and muscles:If it were said that without such bones and sinews and all therest of them I should not be able to do what I think is right, itwould be true; but to say that it is because of them that I do whatI am doing, and not through choice of what is best ... would bea very lax and inaccurate form of expression. Fancy beingunable to distinguish between the cause, and the conditionwithout which it could not be a cause!32Aristotle expanded on this theme and, being less parsimonious and idealistic thanSocrates or Plato, observed four types of causation: the material cause, the efficient cause, theformal cause, and the final cause. Consider a clay bust. The clay with its binding properties isthe material cause. The sculptor is the efficient cause. The resulting shape is the formal cause.The need to please the sculptor's client is the final cause.30 Roger Penrose, The Emperor's New Mind (Oxford: Oxford University Press, 1989).31 Elliot Sober, "Learning from Functionalism—Prospects for Strong Artificial Life," in Artificial Life II, 749-765.32 Plato, Phaedo 98D, The Last Days of Socrates, tr. Hugh Tredenick (New York: Penguin, 1954) at 156-157.The quoted passage is from page 157.58COMPLEX ADAPTIVE SYSTEMSThese categories have continued to influence recent thinkers, resisting the tide ofmodernist thinking.33 The reason for this persistence is that chaotic systems precludemicroreductionist accounts of cause and effect, a fact that is intuitively clear to subtle observers.Consider the basic features of a complex adaptive system that emerges from theinteraction of many actors. The system has the following: (1) many actors that behaveaccording to rules; (2) an initial state or starting configuration; (3) concurrent interaction;(4) influences from outside the system ("exogenous" influences); and (5) an emergent order.The material cause of the system is the collection of actors. The efficient cause is thestarting state, the history of interactions, and the exogenous influences. The formal cause is theorder that emerges. Notice that the chaotic nature of the emergence precludes a singlemicroreductionist cause-and-effect explanation. If the system occurs in an environment in whichnatural selection acts upon the emerging order, those selective forces are the final cause of thesystem.The topology of the order will be general and perhaps probabilistic. Since the system ischaotic, any small perturbation of factors (1), (2), (3) or (4) could result in a new topology thatdescribes the system's emergent order. Complex adaptive system theory studies this evolution.As might be expected, the evolution of new orders is chaotic. Complex adaptive system theorytherefore seeks topological models of how new orders evolve.Endogenous Selective ForcesAristotle and, much later, Darwin, intuitively perceived that outside (exogenous) selective forceswere the most fundamental influence on how complex adaptive systems evolved. However,complex adaptive system theory has shown that exogenous selective pressure alone is33 See, for example, Martin Heidegger, "The Question Concerning Technology," in The Question ConcerningTechnology and Other Essays, tr. William Lovitt (New York: Harper & Row, 1977) at 7.59PROLEGOMENA TO A POSTMODERN THEORY OF LAWinsufficient to account for the tendency of orders emerging from complex adaptive systems toincrease in complexity as they do.34Systems of greater complexity do not spontaneously emerge in whole form; they comeinto existence by variation of the orders and schemas of existing systems. The selective pressureresulting from the emergence of new competitors increases the strictness of the fitness functionso that only those systems with beneficial variations persist. In this way, an a posterioriteleology arises,35 favouring systems that have robust, improvable schemas that implicitlymodel the environment.But a valuable, creative modification to a system's order and schema involvesovercoming the system's self-reinforcing feedback mechanism. The system requires an"annealing" or chaotic force to move the system from its current "basin of attraction" or order toa slightly different order that encapsulates the improved schema. If the self-reinforcingmechanism is too strong, the system's order and schema are "locked in." A locked-in systemcannot improve and its viability degrades as its fitness function changes due to the evolvingenvironment. On the other hand, if the annealing force is too great, the disruption will cause thesystem's order to disintegrate and the system will not persist.How does the transition from one schema to a slightly improved schema take place? Weknow from chaos theory that the details of such a move cannot be predicted with completeaccuracy. Nonetheless, a general topology of evolutionary responses is being identified.Darwin falsely believed that exogenous natural selection was the sole operative feature inevolution. In the theory of pure natural selection, the environment external to the systemdetermines the fitness function for a complex adaptive system—the fitness function isexogenously determined. Random mutations provided the variations required for selection.However, computer simulations show that such a model evolves too slowly.36 We now see that34 Stuart A. Kauffman, "The Science of Complexity and the 'Origins of Order'," in Principles of Organization inOrganisms, eds. J. Mittenthal and A. Baskin, Sante Fe Institute Studies in the Sciences of Complexity, vol. 13(Redwood City, CA: Addison-Wesley, 1992), 303-319 [Hereinafter Kauffman].35 Mark A. Bedau and Norman H. Packard, "Measurement of Evolutionary Activity, Teleology, and Life," inArtificial Life II, 431-461. Bedau and Packard reject the neologism "teleonomic," used by some philosophers andbiologists, as unnecessary confusion: ibid. at 455. I agree.36 Kauffman, at 307.60COMPLEX ADAPTIVE SYSTEMSthe orders and schemas enable, guide and constrain further molding by selection. The nextchanges are dependent on the previous gains. Which transitions are available depends on theprinciples of self-reinforcing mechanisms applicable to the interacting components of thesystem. The resulting order and schema must persist, which constrains the range of possibleresponses to selective pressure. Thus the components of the complex adaptive systemthemselves constrain the selection of viable successor orders and schemas. By examining whattypes of self-organizing systems can occur in the media comprising the complex adaptivesystem, generic properties of an entire class of systems can be identified.Capacity to EvolveWhen a system evolves a new schema,37 the system's behaviour affects the environment inunpredictable ways—perhaps subtly, perhaps drastically. To persist, a complex adaptive systemmust continue to evolve to accommodate the new changes in the environment. Selectiontherefore favours systems that are better able to adapt to changing environments. The capacity toevolve must itself evolve. As such, the adaptive capacity must be preserved in the order—theadaptive capacity must have self-reinforcing feedbacks.A system's adaptivity might be too chaotic, too unstable—a minor variation in structureso drastically alters the system that it cannot easily accommodate minor variations. The alterationof a small part of the system's order unleashes an avalanche of change or "damage" thatpropagates throughout most of the system and results in disintegration of accumulated order.Conversely, a system might be entrenched by self-reinforcing mechanisms that are toostrong to permit enough change—a minor variation in the structure so slightly changes the orderthat the system fails to adapt quickly enough to the changing external environment. A change inan overly stable order or schema only alters the behaviour of the system by adding a local37 A system might evolve a new "order" that does not involve a new "schema." The order is the topology of thesystem's behaviour; the schema is the model of the world that is implicit in the behaviour.61PROLEGOMENA TO A POSTMODERN THEORY OF LAWexception and fails to discover an underlying principle that would permit compression of theschema and result in enhanced power to predict future feedback from the environment. Thechange does not propagate far enough throughout the schema.Complex adaptive systems adapt quickest when they are poised on the boundarybetween order and chaos—a minor variation usually results in slight variations to the order, buton occasion drastically modifies the schema. At this phase transition between unstable andstable systems, there is a "power-law" distribution of avalanches of reform (damage)—manysmall avalanches, fewer larger avalanches. Sites within a system "communicate" with nearbysites often, and distant sites rarely. A schema accumulates behavioural responses to exceptionalfeedbacks from the environment (small avalanches propagated locally), until a massivecompression improves the quality of the schema (large avalanche propagated widely). Sinceselection favours quicker adaptation, complex adaptive systems tend to develop an internalstructure that poises their adaptivity between order (stability) and chaos (instability). A complexadaptive system on the boundary of order and chaos will tend to develop a complex adaptivesubsystem for managing change that itself tends to evolve to the boundary of order and chaos.Schema InaccuracyIt is useful to investigate the reasons why a schema might inaccurately model the environment.As already noted, the emergence of systems is chaotic and the effect of emerging systems on theenvironment is also chaotic. Changes can only be forecasted on a general level andprobabilistically. Thus, to the extent the relevant influences of the environment are the result ofsystems with positive feedbacks or other sources of chaotic behaviour, no schema could modelthe environment with total precision. Nonetheless, probabilistic forecasting is achievable anduseful.A schema might happen upon underlying regularities by chance, but such a strategywould not prevail over others in the long run. A more sophisticated complex adaptive system62COMPLEX ADAPTIVE SYSTEMSwould add testing of schema by observation, experiment and comparison of the schema withpredicted effects. An evolving schema might find false regularities in the environment(superstition, for example). Conversely, an evolving schema might overlook regularities in theenvironment (denial, for example).The fitness function implicit in the environment might be too complex for the expressivepower of the components comprising the system. The fitness function implicit in theenvironment might be changing too quickly for the velocity of adaptive change that the system iscapable of—as the complexity of complex adaptive systems increases, the complexity of theenvironment increases and places greater selective pressure on the systems it contains.The sources of error discussed so far are all exogenous to the complex adaptive system.What Nietzsche discovered and Darwin overlooked is that most interesting complex adaptivesystems are themselves emergent systems of interacting component systems. The encompassingcomplex adaptive system must have self-reinforcing mechanisms to preserve the componentsand the nature of the interactions. This generates an endogenous fitness function, which mayconflict in some respects with the exogenous fitness function imposed by the environment. Theschema implicit in the whole system is no longer purely determined by an exogenous fitnessfunction, but is heavily influenced by the emerging dynamics from the interaction of thesystem's components.The capacity for self-reinforcement of any of the components might evolve tooeffectively in the competition for resources within the greater system. For example, there is aproblem of what benefits the individual versus what benefits the species. Certain componentsmay gain a vested interest in preserving an inferior schema (because it gives them relativesuccess) and cause the overall system to lock-in and resist moves to schema that would be moreoptimal to the system as a whole. Ideology and decadence are examples of this phenomenon inhuman society.Another endogenous source of an inaccurate schema is the drive to adapt itself. If acomplex adaptive system has a tendency to search for new patterns to test as schemas (as an63PROLEGOMENA TO A POSTMODERN THEORY OF LAWevolved strategy for improving schemas), then there may be a tendency to adopt new schemasfor their own sake. Successful schemas are abandoned too easily.PlausibilityAs already noted, the "progress" of complex adaptive systems (in terms of developing a moreuncompressably complex schema of the environment) requires evolution of the ability to evolve.The complex adaptive system requires an annealing force or a steady injection of chaos topromote schema experimentation—but this annealing force need not be random! A system mightevolve an order that uses a schema or strategy for the effective exploitation of chaos byfavouring the generation of plausible variations to the schema.38 If this improved the system'sadaptability, however imperfectly, the system would have a selective advantage over system'swithout a plausibility strategy. In a sufficiently rich environment, selective pressure fromcompetition would inevitably result in systems with a complex adaptive subsystem for theintroduction of plausible change. Of course plausibility could not be absolute since thetransformation of orders is generally unpredictable, but this is the same problem faced by thesimplest complex systems when encountering the environment—the solution is to start onlyslightly better than randomness and improve by accumulating complexity.Since the plausibility function must itself be a complex adaptive system, the plausibilityrules are never fixed—they become more complex. Two examples of strategies for generatingplausible change are credit assignment and genetic recombination.39 Credit assignment requiresa capacity to sense what is good performance by the system and then reward (increase theinfluence of) those rules in the schema that seem to be causing the good performance. Geneticrecombination is the creation of new rules by recombining the building blocks of the successfulrules in the schema. The presumption is that the strong rules have valuable building blocks in38 John H. Holland, "Complex Adaptive Systems" (1992) 121 Dadalus 17-30 [hereinafter Holland] at 23.39 Holland, at 23.64COMPLEX ADAPTIVE SYSTEMSthem and that new rules formed by them stand a greater chance of being successful. Computersimulations of genetic algorithms show that plausibility schemes increase the rate ofconvergence to fixed fitness functions. Plausibility, however, does not guarantee discovery ofthe most optimal schema.40Since the plausibility schema is itself a complex adaptive system, it should avoid lock-into any fixed plausibility strategy. Any changes to the environment, any changes to theencompassing complex adaptive system, or any changes to the plausibility complex adaptivesubsystem itself, would change the fitness function for the plausibility complex adaptivesubsystem. The plausibility subsystem must therefore be capable of a high rate of evolution. Inan environment with selective pressure, the most successful plausibility subsystems will evolveto the edge of order and chaos.The biological system capable of the fastest rate of evolutionary change, that we knowof, is the human brain. Humans have thus been able to evolve a sophisticated complex adaptivesubsystem for plausibility—language. Language facilitates the preservation of accretions andcompressions to the schema we use to interact with the environment. Collective,intergenerational knowledge has vastly exceeded the expressive power of previous schema.IronyIn a sufficiently rich environment, a complex adaptive subsystem for plausibility that developeda complex adaptive subsystem to manage variations to the plausibility subsystem would enjoy aselective advantage. Thus the next phase-transition of complexity is to develop a self-awarenesscomplex adaptive subsystem. Thus the plausibility of the language-schema progresses by meansof scientific inquiry. At the individual level, people became concerned to shape their owncharacter.40 W. Brian Arthur, "Self-Reinforcing Mechanisms in Economics," in The Economy as a Complex System, eds.Philip W. Anderson, Kenneth J. Arrow and David Pines, Sante Fe Institute Studies in the Sciences ofComplexity, vol. 10 (Redwood City, CA: Addison-Wesley, 1988), 9-31 at 26-27.65PROLEGOMENA TO A POSTMODERN THEORY OF LAWLanguage has been quite successful at modeling the constraints imposed on humans bythe environment—the exogenous fitness function. Scientific method seeks to enhance theplausibility of the plausibility subsystem with respect to knowledge of exogenous constraints.However, the capacity of our language-schema to generate plausible variations to the schema ofendogenous fitness constraints has been markedly poorer. There is a current need to increase theexpressive power of language to better evaluate the plausibility of language-schema in terms ofinterpersonal (critical studies) and intra-personal (psychoanalytic) realities.With the advent of postmodernism, we have evolved a complex adaptive system forironic examination of the language we use to gauge plausibility, in relation to both exogenousand endogenous fitness constraints. Postmodernism involves an awareness that it is notpossible in principle to develop a fixed, universal method of knowing what changes areplausible. As Nietzsche wrote in The Gay Science, any self-creation strategy must adopt "briefhabits" on the way to developing more complexity—"enduring habits" are a lock-in to a suboptimal strategy of self-creation, and absence of habits is worst of al1.41 The "will to power,"the need to resist disintegrating influences, drives a healthy complex adaptive system towardgreater complexity to evolve at the precarious boundary between order and chaos, betweenstability and instability.The complex adaptive nature of knowledge has been recognized by both philosophers42and, now, scientists.Conceptual revolutions are like avalanches of change inecosystems, economic systems, and political systems. We needa theory of the structure of conceptual webs and theirtransformation. Pregnant questions are those which promisepotential changes propagating far into the web. We know aprofound question when we see one. We need a theory, orframework, to say what we know.4341 Friedrich Nietzsche, The Gay Science, tr. Walter Kaufmann (New York: Random House, 1974) section 295, at236-237.42 For example, the various writings of Nietzsche, Heidegger, Foucault, Derrida, James, Dewey, Pierce, Rorty,Wittgenstein, Quine, Davidson, Popper, Kuhn, Feyerabend.43 Kauffman, at 316.66COMPLEX ADAPTIVE SYSTEMSBut we have no theory of centrality versus peripherality in ourweb of concepts, hence no theory of pregnant versus trivialquestions, nor of conceptual recastings which afford revolutionsor wrinkles."Any conceptual scheme that is complex and adaptive will undergo avalanches of changesto improve itself and thus cope with exogenous and endogenous evolution of the relevant fitnessfunctions. The conceptual system must have enough order to persist and be useful. But thesystem must also permit enough change to evolve. We face the problem of generating plausiblechanges to our plausibility schema in an environment where certainty is impossible. In a worldwhere knowledge optimism is unattainable, we must use the current state of the plausibilityfunction as the standard to measure the plausibility of changes to the plausibility function.Computers offer the possibility of a further phase transition. The ability to "flight test"complex simulations helps us to gain a feel for what sorts of schema-variations will result insmall or large modifications to the schema and their likely effect on the plausibility fitnessfunction.45 Such radically historical dynamic modeling goes beyond the static, reductionistmodeling of previous schema in complex adaptive systems, language in particular.46Law is interesting in this respect because learning to "think like a lawyer" involvesdeveloping an intuition to discern when conceptual legal doctrine is poised for a dynamic shift.Moreover, the language of judicial decision-making has become increasingly ironic with respectto law's developmental topology. The study of the topology of law holds great promise foradvancing the study of complex adaptive systems and the ability of humans to fashion a moreoptimal social order through an enhanced complex adaptive plausibility schema.44 Kauffman, at 316.45 Holland, at 18.46 There may be dynamic schema in the brain that we have not yet identified as such.67PROLEGOMENA TO A POSTMODERN THEORY OF LAWFuzziness and ProbabilityLet us return to our main issue—how to construct useful knowledge in a world whereknowledge optimism is not often possible. The above discussion of complex adaptive systemsdemonstrates that knowledge pessimism is unwarranted. Complex adaptive systems clearlyoutperform random guessing. Nonetheless, how well can evolution do?Simple complex adaptive systems generate orders that exhibit simple behaviour. Theschema of the outside environment implicit in such an order is very crude. In the bacteriumexample, the bacterium behaviour exhibits the rule "move toward increasing concentration ofglucose." The schema implicit in this behaviour is that glucose emanates uniformly from itssource so that glucose concentration decreases further away from a food source. This schema isnot "true" by the standards of a knowledge optimist—the concepts are fuzzy and the predictionis probabilistic—but it is a viable strategy.The concept "more glucose" is vague or "fuzzy." The success of the bacterium'sbehaviour does not depend on a precise, crisp concept of "more glucose." Indeed, suchprecision would be highly unlikely to evolve as a first step. Simple bacteria could only beginwith a very rough indicator of "more glucose." Evolving schemas start with rules based onconcepts so fuzzy they barely outperform randomness. The schema evolves more exceptions,and the fuzzy rules can become more complicated and precise.This strategy can be very successful. It has been proven that a system of fuzzy conceptsand if-then rules can be made to uniformly converge to any continuous function.47 This meansthat for systems where knowledge optimism is possible, a fuzzy schema can home in to asolution within any desired degree of accuracy. The possibility of umform convergence impliesthat an evolving schema can accomplish the task. It also implies that rival, incompatible fuzzyschemas can evolve down different pathways toward the same solution.What about discontinuous and chaotic functions—systems where knowledge optimismis not possible? Complex adaptive system theory has identified many factors that improve the47 Bart Kosko and Satoru Isaka, "Fuzzy Logic," Scientific American, vol. 269, no. 1 (July 1993): 76-81, at 78.68COMPLEX ADAPTIVE SYSTEMSability of a complex adaptive system to home in on optimal solutions. The sub-discipline ofgenetic algorithms shows how this could be done.48 Indeed, genetic algorithms have been usedto evolve strategies for problems that do not have unique optimal solutions, and haveoutperformed humans at the same task.49 This shows that complex adaptive systems are able tooutperform randomness even where knowledge optimism not possible. Though not proven yet,it appears to be the case that fuzzy schema in complex adaptive systems can evolve to convergetoward useful topological models of chaotic systems."Convergence" is harder to measure in this case, since topological models of chaoticsystems are not precise to begin with. Moreover, there need not be a single, unique topologicalmodel that best describes a chaotic system. The choice of fuzzy concepts used in the topologicalmodel will depend on the use intended for the model. Thus there can be several models, allincompatible, none clearly superior to the others, each clearly better than random guessing.The evolution of fuzzy schemas in complex adaptive systems thus appears to bemathematically possible. Indeed, the best method of constructing knowledge about chaoticsystems would appear to be evolution of complex adaptive systems.Constructed KnowledgeThe preceding discussion shows that useful knowledge about the world can be constructed inthe absence of knowledge optimism. The evolution of schemas in complex adaptive systems islike the slow focusing of a lens. To retain the capacity to evolve, the system should neverattempt to make its focus completely precise. Fuzziness must be retained so that the system canchaotically experiment to creatively evolve better schemas. Furthermore, since most complex48 John R. Koza, Genetic Programming—On the Programming of Computers by Means of Natural Selectionand Genetics (Cambridge, Mass: MIT Press, 1993).49 David E. Goldberg, Genetic Algorithms in Search, Optimization, and Machine Learning (Ann Arbor:University of Michigan Press, 1989). See generally, Waldrop, Complexity; and Steven Levy, Artificial Life—The Quest for a New Creation (New York: Pantheon, 1992).69PROLEGOMENA TO A POSTMODERN THEORY OF LAWadaptive systems exist in an environment filled with chaotic systems, the object of focus will beblurry in any event.The strongest argument that useful knowledge can be constructed by evolving, fuzzyschemas is the fact that complex and viable schemas have evolved. The success of livingorganisms implies that their fuzzy schemas must be usefully good.Characteristics of Complex Adaptive SystemsI will argue in subsequent chapters that self, society and law are all orders emerging fromcomplex adaptive systems.It is helpful, therefore, to briefly list some of the major characteristics of complexadaptive systems: (1) the emergence of an order of system behaviour that has an implicitschema; (2) a selective force that creates an a posteriori teleology in the form of a fitnessfunction; (3) self-reinforcing mechanisms to promote the stability of the schema; (4) a tensionbetween acting according to the rules of the schema and detecting when to create exceptions tothe rules; (5) instances of schema inaccuracy based on false regularities or denial of regularities;(6) instances of lock-in; (7) annealing forces to prevent or dislodge lock-in; (8) avalanches ofchange propagating throughout the schema over time, in sizes that vary according to a power-law distribution; (9) increasing complexity by accretion of exceptions followed bytransformational compressions; (10) transformations that exploit the existing structure of theschema; (11) the fitness functions and self-reinforcing nature of complex adaptive subsystemsinterfering with the viability of the complex adaptive system as a whole; and (12) developmentof awareness of the developmental logic of change in the schema, both exogenously andendogenously.Complex adaptive systems affect their environments in chaotic, unpredictable ways.This leads to a never-ending cycle of feedbacks that ensures the fitness function for a complexadaptive system will never remain fixed. The notion of a universally optimal fitness function or70COMPLEX ADAPTIVE SYSTEMSan ideal schema, is not well defined. Complex adaptive systems "never get there."50 The systemis in a constant tug-of-war with its environment, evolving improvements, followed by setbacksas the environment changes. Evolutionary activity can be measured in so-called "telic waves" ofadaptive improvements.51 While organisms are in a sense stuck on an evolutionary treadmill,successful complex adaptive systems evolve better and better schemas in response to eachsetback.There is no such thing as a fixed, ideal environment. Complexity increases as historyunfolds and complex adaptive systems at the edge of order and chaos evolve new media capableof even greater complexity. If knowledge optimism were true, then we would be evolving to anultimate static order—a dead system. A healthy complex adaptive system, like a healthypersonality, avoids lock-in to a static order and thereby ensures continual, responsive andunlimited creativity.50 Holland, at 20.51 Bedau and Packard, "Measurement of Evolutionary Activity."71Chapter 5Nietzsche—Self as Complex Adaptive SystemIrony pervades postmodernism—the postmodern critic probes the contingency of a style,without veiling the contingency of the critical perspective itself.Postmodern philosophy struggles with the contingency of constructed knowledge.While every fuzzy schema of the world implicit in a viable system is obviously useful, thechaotic aspects of nature mean that no schema can stand above all others. Different schemas aremore useful, depending on the unique fitness function for that system. The "truth" in theschema is, in a sense, dependent on the needs of the system to survive in its changingenvironment. As such, the "truth" is contingent. The problem of philosophizing aboutcontingency in a contingent language that announces its contingency makes postmodernphilosophy inherently difficult to appropriate.Friedrich Nietzsche fully appreciated the ironic condition and correctly identifiedcomplex adaptive systems as the source of this contingency. Nietzsche saw even thedevelopment of the self as the evolution of a complex adaptive system. Moreover, he saw thatthe conscious self was an order emerging from many complex adaptive systems operatingsubconsciously. A true postmodern in spirit, Nietzsche would not present his philosophywithout announcing the contingency of himself. However, it is notoriously difficult tounderstand one's own subconscious profile. This is the core problem of deconstructivepostmodern philosophy—Am I doing what I am doing for the reasons that I consciously tellmyself and others? Or is there some other force that compels me? It is much easier for abystander to identify rationalized behaviour. Nietzsche himself makes this point in Human, AllToo Human:491. Self-observation. — Man is very well defended againsthimself, against being reconnoitred and besieged by himself, heis usually able to perceive of himself only his outer walls. Theactual fortress is inaccessible, even invisible to him, unless his72NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMfriends and enemies play the traitor and conduct him in by asecret path.'But Nietzsche had no bystanders. He was a century ahead of his time; he was notunderstood. To remain faithful to his postmodern insights, Nietzsche had to display hispersonality in his writings for future readers since he could not understand himself.Nietzsche's writings present a concrete example of self as complex adaptive system—Nietzsche—and the methodology to understand that self—the will to power. To understandNietzsche's comprehension of the self as a complex adaptive system, we have to understandNietzsche.Understanding NietzscheNietzsche's writings are episodes of unconscious rage directed at his parents but transferredtoward substitute objects. As age eroded Nietzsche's capacity to repress the deep wounds ofchildhood trauma, he had to channel his inner anger toward symbols closer and closer to thosewho destroyed him as a child. Like a serial killer, Nietzsche's need to vent pent-up affectswelled with the demise of each victim. Finally, rather than confront his mother directly overher violation of his childhood, Nietzsche escaped into insanity so that he could express rage ather openly without fear of committing matricide.This thesis argues that Nietzsche's writings are best understood as the encoded cries of ahurt, confused, and silenced lonely boy. As both young child and adult writer, Nietzschesought one thing above all—to be heard (EH, P, 1) and understood (EH, IV, 9).2 Nietzschenever enjoyed an understanding audience.1 Friedrich Nietzsche, Human, All Too Human—A Book for Free Spirits, tr. R.J. Hollingdale (Cambridge:Cambridge University Press, 1986) at 179-180.2 Friedrich Nietzsche, Ecce Homo, tr. Walter Kaufmann (New York: Random House, 1967). References to EcceHomo are abbreviated without footnote as "EFT' and use the division labeling of the Kaufmann translation.73PROLEGOMENA TO A POSTMODERN THEORY OF LAWEven though Nietzsche easily smelled the entrails of other peoples' souls (EH, I, 8),Nietzsche appears not to have been consciously aware of how controlling his own subconsciouswas. If he had been self-aware, then why was he so obscure? This forces Nietzsche's readers toconsider how to go about interpreting Nietzsche.There are at least four ways to approach his writings. First, we can piece together whatthe conscious Nietzsche says. Unfortunately, a straightforward reading of Nietzsche is difficultif not impossible. "Whatever else we may be tempted to say of Nietzsche's ideas, it is unlikelythat we shall describe many of them as sensible. Time after time, Nietzsche tears at the fabric ofcommon sense, at the sense of ordinary language, at the language of reasonable thought."3Even a thorough and sympathetic translator such as Walter Kaufmann claims that Nietzsche wasan experimenter and not a systematic thinker, unified only by intellectual integrity.4 Indeed,obfuscation appears to be an essential aspect of Nietzsche's style.A second approach is to trace how Nietzsche's subconsciousness expresses itselfthrough his works. Alice Miller observes that Nietzsche's philosophy was his weapon in asubstitute battlefield5—he could not confront his deepest emotional problems directly becausethe lonely Nietzsche could not bear the threat of losing his fantasy that his mother loved him.Nietzsche's works are the muffled cries of an abused and isolated child who could not voice hispain to an understanding listener. However, this does not mean that Nietzsche's insights aremerely a gripping and sensitive expression of the scars of his suffering and oppression.Nietzsche the philosopher developed highly original and potent analytic tools in his attack onphilosophy, ideals and morality—deconstruction and perspectivism, for example. Nietzschealso discovered essential elements of complexity theory and psychoanalysis. Driven bypowerful unconscious emotional needs, Nietzsche's brilliant intellect honed razor-sharpintellectual tools. These tools are his gift to twentieth century thought. Our third approach,3 Alexander Nehamas, Nietzsche—Life as Literature (Cambridge, Mass: Harvard, 1985) at 141.4 Nehamas, Nietzsche, at 15.5 Alice Miller, The Untouched Key: Tracing Childhood Trauma in Creativity and Destructiveness, tr. Hildegardeand Hunter Hann= (New York: Doubleday, 1990) [hereinafter Miller].74NLETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMtherefore, is to identify, examine, and refine the tools Nietzsche created to move forward hissubconscious agenda.A fourth approach is to attempt to construct interpretations from Nietzsche's workirrespective of his conscious or unconscious intentions. What is the most germane reading ofhis writings from the perspective of twentieth century concerns? A strong misreading ofNietzsche's writings may conflict with Nietzsche's conscious or unconscious intentions, butoffer a better overall philosophy than Nietzsche could have foreseen.For example, Nehamas argues that Nietzsche's confusing style is an essential aspect ofpresenting Nietzsche's perspectivist philosophy.6 Miller argues that puzzlement is a feature ofNietzsche's writings as unconscious revenge for the puzzlement the four-year-old Nietzscheendured as his father's mental faculties deteriorated, and later in attempting to fathom, byhimself, the hypocrisy of the severe pedagogy of the Christian women who raised him.7Nietzsche is consciously ambiguous: he wants to be understood but he enjoys being obscure—"My triumph is precisely the opposite of Schopenhauer's: I say, "non legor, non legar" [I amnot read, I will not be read] (EH, III, 1). Was obscurity a deliberate masterstroke, orsubconscious revenge, or both?The truth is likely a combination of these factors. Clearly Nietzsche would be attracted tophilosophies that appealed to his subconscious agenda—they would feel right. Miller, forexample, notes that since Nietzsche was not permitted to speak freely as a child or adolescent,Schopenhauer would have rung true for Nietzsche in place of Nietzsche's own words.8 Thegenius of Nietzsche is that his powerful intellect exposed philosophical dead-ends and allowedhim to create the philosophical tools he needed to complete his emotional projects.A thoughtful reading of Nietzsche shows that he intuitively understood the essentialelements of complex adaptive system theory and applied it at many levels. On a philosophicallevel, he understood that complex adaptive systems require a degree of chaos to disrupt orderand avoid lock-in to systems with a manifestly suboptimal relationship to their environment. On6 Nehamas, Nietzsche, at 20.7 Miller, at 85-91.8 Miller, at 83.75PROLEGOMENA TO A POSTMODERN THEORY OF LAWan emotional level, the young Nietzsche (the subconsciousness of the adult Nietzsche) needed tochaotically disrupt the cruel morality (suboptimal lock-in) of those who raised and mistreatedhim. This helps explain Nietzsche's fascination with Dionysus. Dionysus plays multiple roles inNietzsche's life: a philosophical role—the chaos required for a complex adaptive system—andan emotional role—a character with whom Nietzsche could identify himself.When Nietzsche's writings stray from his emotional agenda, his philosophy is dull,banal, lacking in acute empirical observation, often cruel and frequently dangerous. Byidentifying the elements of Nietzsche's philosophy that were powered by his emotional needs,we identify the true fruits of his genius. The rest is obiter dicta.The Subconscious NietzscheChildren who are emotionally or physically abused by their parents often sever or repressgenuine, healthy emotional reactions from integrating into their conscious experience ofselfhood. Such abuse often includes repression of the child's need to express anger at itsparents and compelling the child to honour its father and mother. Young children have anemotional need for parent love, which they emotionally equate with their own survival. All wellbrought-up children are afraid that their angry words might kill those they love.9 Thus, theyidealize their parents and frequently idealize or repress knowledge of the abuse they suffered.Later in life, the repression manifests itself in any of several ways—depression, self-destruction, grandiosity, artistic expression—depending on the history of the person. ForNietzsche, it came out as critical writing. Nietzsche could criticize abstract ideas so that(unconsciously) he did not have to worry someone would die. Even when he enraged people,Nietzsche could defend himself with his intellectual prowess—he would not be facing them likea helpless, guilty child, as his subconsciousness believed he would if he confronted his mother.9 Miller, at 84.76NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMMiller concludes that Nietzsche's writings and what is known of his childhood showthat Nietzsche was an abused child who could not overcome his idealization of his parents and,instead, lashed out at others.[W]hat Nietzsche wrote was his hopeless attempt, which hedidn't abandon until his breakdown, to free himself from hisprison by expressing his unconscious but present hatred forthose who raised and mistreated him. His hatred, and his fear ofit, became all the more vehement the less he succeeded inbecoming independent of its objects, his mother and sister. ...Both mother and sister needed Friedrich's dependence on themuntil the very end. Since the perfectly raised child had learned atan early age not to defend himself but to struggle instead againsthis true feelings, the grown man was unable to find his way toreal liberation. His writing kept alive the illusion of liberationbecause on a symbolic level he actually did take steps in thedirection of truth and freedom. He took them in his life as wellbut only insofar as they did not involve the members of hisfamily. ... But [such steps were] still an ersatz solution as longas he was unable to recognize his idealization of his parents,who were responsible for his suffering. For his true feelings (ofanger, fear, contempt, helplessness, the wish to be free,destructive rage, and desperate dependence on his persecutors),originating in childhood, gave him no peace and kept demandingnew ersatz objects. 10Miller cannot offer a reductive proof of her claims—of the subconscious, one can onlyoffer a compelling interpretation or narrative based on the known facts of childhood and thepeculiarities of behaviour patterns later in life. Since these claims are bold and the literature onNietzsche does not appear to have absorbed them, this chapter will summarize at length Miller'sobservations on Nietzsche's childhood and its effect on his later writing.1° Miller, at 90-9177PROLEGOMENA TO A POSTMODERN THEORY OF LAWNietzsche's ChildhoodBoth of Nietzsche's parents were children of Protestant ministers and there were severaltheologians in both families. Nietzsche's father was a teacher and, later, a Protestant preacher.At age thirty, he married Nietzsche's mother, who was seventeen at the time. He also broughtboth of his unmarried sisters and his mother into the household at that time. Nietzsche was bornwhen his mother was eighteen. When Nietzsche was two, his sister was born. A brother wasborn a year after that, but died at the age of two.Nietzsche's father loved his son very much and as soon as Nietzsche could talk hisfather liked to spend all of his free time with Nietzsche. The father must have been proud ofyoung Nietzsche's developing intellect. Nietzsche would enter his father's study and watch him"quietly and thoughtfully." Nietzsche was spellbound when he sat at the piano with his fatherwho would improvise. "This important experience and the warmth the father may have shownhis son probably played a role in enabling the boy to experience strong feelings in spite of hisrigorous upbringing."1 IHowever, Nietzsche's father strictly forbade certain genuine, healthy feelings andseverely punished young Nietzsche for expressing them. Nietzsche's temper tantrums resultedin his father taking "energetic measures against this behaviour," which included locking the boyin a dark closet.12 Yet for a long time Nietzsche was stubborn "although he no longer rebelledbut withdrew silently into a quiet corner or to the privy, where he vented his anger byhimself."13 The strictness of Nietzsche's upbringing was intensified by Nietzsche'sgrandmother and two aunts, who were also concerned with the proper upbringing of thefirstborn child.Nietzsche's father died when Nietzsche was four, after eleven months of what wasprobably a brain disease. The father remained in the house for the eleven months that his mental11 Miller, at 78.12 Miller, at 76.13 Miller, at 79, quoting Curt-Paul Janz, Friedrich Nietzsche, 3 vols. (Munich: Hauser, 1978) at 48.78NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMfaculties deteriorated. The clever man Nietzsche so admired became stupid. Young Nietzsche nodoubt told his father things and asked him questions to use his father as a point of orientation.His father's responses must have become increasingly perplexing and unpredictable. YoungNietzsche would have been perplexed and scornful, but had to suppress his scorn because heloved his father. The father's condition and deteriorating behaviour were an embarrassment forthe family We can presume that Nietzsche could not openly express or discuss his reactions tolosing his closest attachment figure in such a terrible way.Soon after his father died, Nietzsche's little brother died. Nietzsche was the only male inthe household. Unfortunately, none of the women treated him with tenderness, warmth orgenuine concern. Even sympathetic biographers describe Nietzsche's mother as cold, stupid,and disinterested.14 Nietzsche's grandmother, two aunts and mother all tried to outdo each otherin teaching Nietzsche self-control, Christian virtues and to be the strong man of the house. Theprecocious and creative Nietzsche did not fit well into their Christian pedagogical dogma. "Theoriginality of his imagination and the honesty of his questions were too much for their sense ofmorality, and so they attempted to silence the child's curiosity, which made themuncomfortable, by strict supervision and a stern upbringing."15 Nietzsche had no choice but tosuppress his genuine feelings with all his might.One biographer describes a scene that clearly illustrates howextreme the boy's self-denial was. Caught in heavy rain on hisway home from school, Nietzsche did not quicken his pace butcontinued to walk slowly with head erect. His explanation wasthat "upon leaving school one must go home in a calm andmannerly way. That is what the regulations require." We canimagine the training that must have preceded such behaviour.16Notwithstanding his outward self-mastery, Nietzsche was very observant of people andcould not help but detect hypocrisy—what loving neighbour took pity on Nietzsche when14 Miller, at 92.15 Miller, at 81.16 Miller, at 81.79PROLEGOMENA TO A POSTMODERN THEORY OF LAWChristian women beat him? Nietzsche had no one with whom he could share these thoughts, asthis would provoke more beatings. He had to repress these questions and feelings, whichwould compound his feelings of loneliness. So extreme was his repression that he never evenrevolted at puberty. The diaries he kept from the ages of twelve to fourteen were the kind anadult might keep, written in the well-adjusted, reasonable, and well-behaved way that spoke theinternalized voice of his grandmother, two aunts, and mother.17Nietzsche' s Delayed Emotional PubertyThe vigour of Nietzsche's suppression took its toll. In one year of secondary school he hadover a hundred illnesses. His constant headaches, sore throats, and rheumatic ailments reflectthe words stuck in his brain and throat. Biographers could not identify any organic cause, otherthan a "weak constitution."18 Nietzsche could not maintain his conscious self-mastery forever:But the questions did not go away. Later, much later, afterNietzsche finished his schooling and had nothing to fear fromthe authorities—in this case his professors—because he hadbecome a professor himself, the questions and repressedfeelings broke out of the prison where they had been locked upfor twenty years. In the meantime, by finding an ersatz objectthey gained social legitimacy. Nietzsche did not direct hiscriticism at the real causes of his rage—his aunts, hisgrandmother, his mother—but at the values of his chosen field,philology. Still, this took courage, for they were values that haduntil then been held sacred by all philologists.19Like someone going through puberty, Nietzsche set out to reject everything he had onceloved in order to establish new values for himself. He thus attacked truth (Socrates) and the17 Miller, at 77, 82, 109-110.18 Miller, at 77.19 Miller, at 82.80NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMGerman culture he had grown up in. Nietzsche's revolt at puberty had been postponed until hehad highly developed interpretive and philosophical skills. Thus Nietzsche's observations haveboth emotional vigour and intellectual validity.Nietzsche's work as a professor at Basel gave him the temporary feeling that truth andfreedom liberated him from his dependency on and his rage toward his mother and sister. Theyneeded Nietzsche's dependence on them and used him for their own purposes all of Nietzsche'slife. Nietzsche's sister, for example, altered many of Nietzsche's letters for publication. She"intrigued untiringly to the detriment of his true interests and did not rest until his relationshipwith Lou Andreas Salome was destroyed. "20 Nietzsche's breakdown allowed his mother to carefor Nietzsche without being threatened by criticism. Brought up to fulfill her duty above all else,she would feel good and noble to sacrifice herself for her child, which society would respectand admire.But Nietzsche's work at Basel was not true liberation. He had to conform to thedemands of the university, which stunted his swelling need to find liberation and freedom, tovent pent-up affect. This lead to illnesses that resulted in 118 attacks in one year (1879).21 Hisillness spurred him to leave Basel and gave him more freedom to criticize the academic system."All who remain silent are dyspeptic" (EH, I, 5).Nietzsche contra WagnerNietzsche's fascination, then rejection of Richard Wagner appears to have been a repetition ofNietzsche's repressed tragic experience with his father.22 Wagner was a charismatic musician-composer-intellectual who was thirty years older than Nietzsche. Just as young Nietzschetolerated his father's hypocritical brutality to bask in his charm and intelligence, so too the adult2° Miller, at 90-91.21 Miller, at 109.22 Miller, at 93-98.81PROLEGOMENA TO A POSTMODERN THEORY OF LAWNietzsche overlooked the objectionable facets of Wagner's programme. Only after Parsifal, withits Christian ideals, did Nietzsche become fully conscious of the weaknesses of Wagner.We can surmise that Nietzsche felt disappointment, rage, and shame at being seduced byhis father's charm. The young Nietzsche was not permitted to express such feelings, whichremained imprisoned until he could experience them toward another charming musician. Thetenor of Nietzsche's later attack against Wagner is too strong for an emotionally matureNietzsche—Wagner had not done anything personal to alienate Nietzsche. The emotional vigourof his attack on Wagner must have derived its intensity from the repressed rage against hisfather. The perceptiveness of his criticisms obscures the emotional energy that drove them.Nietzsche's Late PeriodAfter leaving Basel, Nietzsche's attacks could proceed with less restraint. But so long as heavoided the true objects of his rage with substitute objects, his attacks merely became less andless restrained. By the time Nietzsche attacks women, he has left the prior grounding of hisscholarly objectivity and sensitivity to empirical observation of interpretation, philosophy,psychology, German culture and Christianity. His misogyny is understandable given hischildhood situation. Likewise, his sister was manipulative and insincere toward him. His sisterand mother made sure Nietzsche remained emotionally dependent on them alone (for example,by undermining his relationship to Lou Andreas Salome). Nietzsche could not openly show hisdiscontent.How could he, since he had only one sister and wanted tobelieve absolutely that she loved him and that her love was morethan exploitation and a need to win recognition at any price.2323 Miller, at 99.82NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMNietzsche therefore lashed out at all women, but lacking his usually keen insight, histargets were generalized caricatures of the women who abused him.The hyperbolic nature of Ecce Homo shows that Nietzsche was increasingly losing hisability to repress his unexplored and unrefined infantile urges (such as pride) as he had had toduring his severe upbringing.Nietzsche's BreakdownThe cause of Nietzsche's final breakdown is not agreed upon by biographers. Some attribute itto progressive paralysis entirely unrelated to Nietzsche's school day illnesses and his severeillness at the end of his Basel period. Some attribute it to venereal disease contracted whilevisiting a prostitute or treating the injured while he served in the war. Miller argues thatNietzsche ultimately remained unable to vent his rage at his mother and sister directly and had toretreat into insanity.According to this interpretation, Nietzsche's ersatz objects no longer served the functionof siphoning off his swelling rage. We can speculate that this was because his previousphilosophizing had exhausted his emotional and empirical experience—his burgeoningphilosophical power outstripped his ability to collect reliable empirical data. Nietzsche wasabysmally ignorant of social relations and class issues. Miller notes that Nietzsche never foundcomfort in social experience:[Nietzsche] was sure to reap the moral indignation of hiscontemporaries and of posterity, an outcome he accepted gladly,presumably even enjoyed, because he felt liberated by hisdaring. A different kind of liberation, such as having insightsthat could be shared with others, was unknown to him.2424 Miller, at 110.83PROLEGOMENA TO A POSTMODERN THEORY OF LAWIndeed, Nietzsche's brutal childhood made his formative experiences consist ofcontempt for the weak and obedience to those wielding power.25 His respect for the weak isderivative and forced—"Where one feels contempt, one cannot wage war; where onecommands, where one sees something beneath oneself, one has no business waging war" (EH,I, 7)—hardly heartfelt, compassionate empathy. Nietzsche distrusted pity because no one wasthere to pity him for his beatings. Thus Nietzsche's imprisoning childhood limited the possibletopics he could explore with emotional vigour and the insight of experience.Nietzsche could not find new targets worthy of his intellect soon enough to stave off hisdisintegration of self. He was unable to continue to repress his rage but feared it. If heexpressed his anger at his mother directly, his deep-set subconscious mind feared that it wouldkill her. Nietzsche saw Bizet's Carmen several times with great enthusiasm, attracted by itsambivalence and "killing for love."26 But the infantile mind associates death of mother withdeath of self. He could not overcome this fear of death—"Woe implores: Go, die! [Vergeh !] /But all joy wants eternity— / Wants deep, deep eternity!" (Z, III, 15; Z, IV, 19).27 Nietzschewas trapped and insanity was his only escape.Nietzsche's mother looked after him after he broke down mentally. She wrote a letterdescribing how although her son was uttering terrible screams, he had a cheerful expression onhis face. Miller's explanation is that "in her presence, the very little child was allowed to screamloudly for the first time in his life and that he was enjoying the tolerance he had finally wonfrom her. For we can scarcely conceive of someone screaming without a face racked bypain."28Nietzsche was a victim of his early intelligence—the young genius so successfullysuppressed feelings that his subconsciousness could not mature beyond its most primal fear—loss of mother love. It took steadfast courage to maintain his life-affirming Yes, a courage that25 Miller, at 99.26 Miller, at 94.27 Friedrich Nietzsche, Also Sprach Zarathustra, in The Portable Nietzsche Reader, tr. Walter Kaufmann (NewYork: Penguin, 1954). References to Also Sprach Zarathustra are abbreviated without footnote as "Z" and use thedivision labeling of the Kaufmann translation.28 Miller, at 92.84NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMracked his body with pain. One cannot help feeling deeply saddened that this great personsuffered so terribly and profoundly from childhood abuse.Nietzsche the DancerNietzsche identified himself with Dionysus. This is evident from the concluding words of EcceHomo, his last completed work before resigning to "Russian fatalism" (EH, IV, 9):Have I been understood?—Dionysus versus the Crucified.—Nietzsche here is the child whose cries were unheard, who was abused by those whopreached their love for him. We can easily see that the Crucified is the object of his rage, havingbeen transferred from his parents onto the institution in whose name they abused him—Christianity. The adolescent Nietzsche could not express or share his rage with other people,and so as a philologist, he discovered Dionysus as his ally.Nietzsche was thoroughly familiar with Dionysus through his studies as a student andprofessor of philology. Many aspects of the Dionysian myth would appeal to Nietzsche'ssubconsciousness. The young Nietzsche saw through the Christian ideals that his parents usedto vent their own pent-up affect on Nietzsche—he "smelled" the entrails of their souls and wasnauseated by the hidden dirt at the bottom of their character (EH, I, 8). Young Nietzsche wasnot permitted to experience his natural emotions and had to repress and stunt them for the sakeof abstract, Christian ideals. Young Nietzsche experienced his truth as the veracity of hisemotions and experiences, in contrast to the lifeless "truths" of Christian ideals (EH, P. 2):One has deprived reality of its meaning, its truthfulness, toprecisely the extent to which one has mendaciously invented anideal world.85PROLEGOMENA TO A POSTMODERN THEORY OF LAWDionysus was available to Nietzsche as a close metaphor to represent his allegiance tohis natural inclinations over the decadently applied ideals of Christianity. Dionysus wasNietzsche's first analytic tool to attack the hierarchic orderliness of Christian ideals andmorality, which he first attacks in the form of Socrates.Young Nietzsche was forced to suppress his temper tantrums and other outbursts—Dionysus represents the loss of boundary, loss of self that young Nietzsche had to master withself-control.Young Nietzsche had to dance to the whips of his mother, aunts and grandmother.Dancing is the natural avoidance response to being whipped on the behind; Nietzsche probablyhad to suppress even this natural reaction. In The Dancing Song in Part II of ZarathustraNietzsche associates himself with a little dancing god who cries in the darkness of solitude(young Nietzsche locked in a dark closet, or bathroom), forced to manufacture joy from withinhis suffering, perhaps blaming himself, experiencing self-pity and fantasizing his ownempowerment:"Indeed, I am a forest and a night of dark trees: but he who isnot afraid of my darkness will also find rose slopes under mycypresses. And he will also find the little god whom girls likebest: beside the well he lays, still, with his eyes shut. Verily, inbright daylight he fell asleep, the sluggard! Did he chase afterbutterflies too much? Do not be angry with me, you beautifuldancers, if I chastise the little god a bit. He may cry and weep—but he is laughable even when he weeps. And with tears in hiseyes he shall ask you for a dance and I myself will sing a songfor his dance: a dancing and mocking song on the spirit ofgravity, my supreme and most powerful devil, of whom theysay that he is 'the master of the world.'"The precocious Nietzsche infuriated his mothers by posing questions that threatened toexpose the hypocrisy he endured—he chased too many butterflies, he lost self-control. Theyoung Nietzsche knew his observations were forbidden wanderings (EH, P, 3) and his hopes86NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMof being understood were groundless. Nietzsche's fascination with Tristan and Isolde supportsthis reading. In Tristan the couple finds joy away from the light of social conventions andmorality, their love flourishes in the darkness of suffering and tragedy. Young Nietzsche fallsasleep in the light (the sluggard!), breaches the morality of light and day (enlightenment,Apollo). He foolishly thinks he will be listened to and understood by those whom he needs tolove him. Nietzsche must find joy beyond the daylight of society's ideals, in the dark reality ofgenuine emotional experience (Dionysus).The Other Dancing Song, in Part III of Zarathustra, is arguably the emotional climax ofthe work. Each of the first three parts was quickly written in just ten days—a pure outpouringof Nietzsche's subconsciousness. The Other Dancing Song was important enough for Nietzscheto amplify and repeat the Midnight Song in the penultimate section of Part IV of Zarathustra.In The Other Dancing Song, Nietzsche poetically (unconsciously) describes hisexperience of being physically abused and emotionally abandoned by his mother. As notedabove, mother love is "life" itself for the very young Nietzsche.The Other Dancing Song(1)Into your eyes I looked recently, 0 life: I saw goldblinking in your night-eye; my heart stopped in delight: a goldenboat I saw blinking on nocturnal waters, a golden rocking-boat,sinking, drinking, and winking again. ...Young Nietzsche has hopes of receiving the light of genuine mother love, which arouseshis playful intellect. But these hopes are quickly dashed as the psychologically attuned childsenses a beating.At my foot, frantic to dance, you cast a glance, a laughing,questioning, melting rocking-glance: twice only you stirred yourrattle with your small hands, and my foot was already rockingwith dancing frenzy.87PROLEGOMENA TO A POSTMODERN THEORY OF LAWMy heels twitched, then my toes harkened to understandyou, and rose: for the dancer has an ear in his toes.I leaped toward you, but you fled back from my leap,and the tongue of your fleeing, flying hair licked me in itssweep.Away from you I leaped, and from your serpents' ire:and already you stood there, half turned, your eyes full ofdesire.Young Nietzsche smells the entrails of her soul and is angry at the hypocrisy of herChristian ideals and the fact he must stunt his emotions and carry hidden truths.With crooked glances you teach me—crooked ways; oncrooked ways my foot learns treachery.The young Nietzsche is at core ambivalent—he is angry, outraged, full of mistrust, buthe needs his mother to love him.I fear you near, I love you far; your flight lures me, yourseeking cures me: I suffer, but what would I not gladly sufferfor you?You, whose coldness fires, whose hatred seduces,whose flight binds, whose scorn inspires:Who would not hate you, you great binder, entwiner,temptress, seeker, and finder? Who could not love you, youinnocent, impatient, wind-swift, child-eyed sinner?Whereto are you luring me now, you never-tameextreme? And now you are fleeing from me again, you sweetwildcat and ingrate!I dance after you, I follow wherever your traces linger.Where are you! Give me your hand! Or only one fmger!88NIETZSCHE-SELF AS COMPLEX ADAPTIVE SYSTEMYoung Nietzsche longs to love his mother and be loved for his genuine feelings, butunconscious drives (owls and bats) overcome her, confounding the young Nietzsche as sheturns against him.Here are the caves and thickets; we shall get lost. Stop!Stand still! Don't you see owls and bats whirling past?You owl! You bat! Intent to confound! Where are we?Such howling and yelping you have learned from a hound.Your lovely little white teeth are gnashing at me; out of acurly little mane your evil eyes are flashing at me.Nietzsche the hunter tracks decadent unconscious drives. He longs to share his insightswith his mother. He wants her to join him as a hound to sniff out the source of hypocrisy ratherthan be a doe (the object of Nietzsche's hunt) who leaps away from the hunter. Leaping hasoverlapping meanings here—the doe's leaping (his mother chooses to be the doe) andNietzsche's leaping (in pain or avoidance).That is a dance up high and down low: I am the hunter;would you be my dog or my doe?Alongside me now! And swift you malicious leapingbelle! Now up and over there! Alas, as I leaped I fell.Oh, see me lying there you prankster, suing for grace.The mother grabbed Nietzsche's arm and Nietzsche leaped to avoid the whip, falling tothe ground where he entreats the grace she hypocritically preaches other times. His entreaty failsand his tone quickly becomes introverted and sentimental, pining for the golden moment hethought he experienced at the beginning of the poem.I should like to walk with you in a lovelier place.Love's paths through silent bushes, past many-huedplants. Or there along that lake: there goldfish swim and dance.89PROLEGOMENA TO A POSTMODERN THEORY OF LAWNow he feels guilt. Miller notes that Nietzsche carried the weight of his mother andsister on his back all his life—"In his own mind Nietzsche was not sitting on the backs ofothers, but in his life he allowed the person closest to him to sit on his back to the very end." 29Are you weary now? Over there are sunsets and sheep:when shepherds play on their flutes—is it not lovely to sleep?You are so terribly weary? I'll carry you there; just letyour arms sink. And if you are thirsty—I have got something,but your mouth does not want it to drink.No one thirsts for Nietzsche's insights—the cheeky boy is slapped and Nietzsche isenraged. But he directs his rage at a serpent and witch—he must transfer his pent-up affect ontosymbols.Oh this damned nimble, supple snake and slipperywitch! Where are you? In my face two red blotches from youhand itch.I am verily weary of always being your sheepishshepherd. You witch, if I have so far sung to you, now youshall cry.Keep time with my whip, you shall dance and cry! Orhave I forgotten the whip? Not I!Young Nietzsche fantasizes his empowerment and revenge. Nietzsche was no doubtforced to retrieve the instrument by which his physical torture was administered. This isconsistent with the infamous line from On Little Old and Young Women—"You are going towomen? Do not forget the whip!" (Z, I, 18). The emphasis on "I" suggests that generallyNietzsche must bring the whip for his own punishment, but this time, in a mocking reversal, heshall make her dance and cry!29 Miller, at 108.90NIETZSCHE-SELF AS COMPLEX ADAPTIVE SYSTEMYoung Nietzsche cannot sustain his fantasy of revenge and in the second part of TheOther Dancing Song, his mother plays on his guilt and plucks at his heart. He fantasizes that hisgrace, his light (compare Z, II, 9 "The Night Song") will win his mother's love—"But then lifewas dearer to me than all my wisdom ever was."In the second part of The Other Dancing Song, the conscious Nietzsche asks us tointerpret the third part, the Midnight Song, as poem recited in time with a tolling bell—"whenyou hear this bell strike the hour at midnight, then you think between one and twelve." But oncewe see the second part as a conversation with his mother, who chides young Nietzsche fortalking back (cracking his whip) and accusing him of not loving his mother, then the deepermeaning of the third part becomes clear. Bells toll, they do not count. Moreover, the italicsindicate another voice. Lashes are counted. The unconscious Nietzsche favours these stylisticchoices for a reason. The Midnight Song is Nietzsche's mantra, his will to life affirming itself insuffering. The lashings are an eternal recurrence in a little boy's slow-moving perception oftime. The whipping has begun-91PROLEGOMENA TO A POSTMODERN THEORY OF LAWOne!0, man, take care!Two!What does the deep midnight declare?Three!"I was asleep—Four!"From a deep dream I awoke and swear:Five!"The world is deep,Six!"Deeper than day had been aware.Seven!"Deep is its woe;Eight!"Joy—deeper yet than agony:Nine!"Woe implores: Go!Ten!"But all joy wants eternity—Eleven!"Wants deep, wants deep eternity."Twelve!The Midnight Song moved Gustav Mahler, a fellow abused child,30 to use this poem inthe mournful fourth movement of his Third Symphony.Carl Schorske translates "Weh spricht: Vergeh!" as "Woe speaks: Go, die!"31 andDeryck Cooke translates it as "Grief says: Die !"32 The young Nietzsche, grief-stricken in hisfantasy "cave" (Z, III, 15, (2)) (i.e., locked in a dark closet, or in the bathroom) contemplatessubmission to death. Death is loss of mother love, but the means are ambiguous—doesNietzsche leave his mother or kill her? Is this the abysmal thought? Or is it his fear of death and30 Deryck Cooke, Gustav Mahler: An Introduction to his Music (Cambridge: Cambridge, 1980) at 7.31 Carl E. Schorske, Fin-de-Siecle Vienna—Politics and Culture (New York, Vintage, 1981) at 230.32 Cooke, Mahler, at 65.92NIETZSCHE-SELF AS COMPLEX ADAPTIVE SYSTEMsaying Yes to "life," which means saying Yes to an eternal recurrence? (Z, III, 13 TheConvalescent). In Ecce Homo, Nietzsche writes, "the spirit who bears the heaviest fate, afatality of a task, can nevertheless be the lightest and most transcendent—Zarathustra is adancer—.., he that has the hardest, most terrible insight into reality, that has thought the "mostabysmal idea," nevertheless does not consider it an objection to existence, not even to its eternalrecurrence..." (EH, III, on Z, 6). The "its" refers to the lashings, his heaviest fate.Thus Nietzsche could not drive his mother away emotionally. He felt guilty that hesometimes felt unloving feelings toward her (expressed in the second part of The Other DancingSong). His only hope of joy (regaining mother love, "Lust" not "Freunde" (Schiller-Beethoven)) is to bear the suffering. Nietzsche is "all entangled, ensnared, enamored" (Z, IV,19, The Drunken Song (10), compare above "Who would not hate you, you great binder,entwiner, temptress, seeker, and finder? Who could not love you, you innocent, impatient,wind-swift, child-eyed sinner?" Z, III, 15, (1)). Joy is a mother love that remains inseparablefrom hypocritical Christian morality and will not let Nietzsche develop into an emotionallywhole, honest and perceptive thinker—"Joy, however does not want heirs, or children—joywants itself, wants eternity, wants recurrence, wants everything eternally the same" (Z, IV, 19,(9)). Young Nietzsche cannot change his mother by sharing his insights into decadence—shedoes not thirst for his wisdom. Nietzsche has to elect between rejecting his mother (dying,suicide) or affirming life (a symbol for his mother) and bearing the suffering of being whipped,again, and again, and again—Have you now learned my song? Have you guessed its intent?Well then, you higher men, sing me now my round. Now youyourselves sing me the song whose name is "Once More" andwhose meaning is "into all eternity"—sing, you higher men,Zarathustra's round!Is Nietzsche announcing that he is exacting his revenge on his readers as they keepingeternally returning with reverence to his text in the same confounded, self-blaming state the93PROLEGOMENA TO A POSTMODERN THEORY OF LAWyoung Nietzsche must have been in before his authoritarian parents?33 The eternal recurrence,Nietzsche tells us, is "the fundamental conception of' Thus Spoke Zarathustra (EH, III, on Z,1).Nietzsche's insight into how to cope with the eternal recurrence drives away the abysmalthought (Z, III, 13). Nietzsche endured the eternal recurrence by deepening his insight intodecadent morality as he sat alone in his dark "cave" after each whipping; he remained in his caveuntil he had re-affirmed his emotional need for mother's love and had declared Yes to life.Nietzsche willed joy out of suffering. Indeed, the unconscious scars from childhood likelymeant Nietzsche could only find joy in suffering—an emotional masochism. Hence the visceralappeal of Tristan and Isolde, where the social conventions associated with day create thesuffering necessary for the lovers' joy at night.As already noted, the adult Nietzsche gets subconscious revenge on his readers by beingpurposely obscure. Interpreting Zarathustra is a Sisyphian task. Walter Kaufmann, a careful andsympathetic translator of most of Nietzsche's works, argues that the eternal recurrence is abizarre cosmological belief of Nietzsche's. Kaufmann notes: "It is tempting to construe hisphilosophy as a reaction against his childhood ... Yet this approach ... bars any adequateunderstanding of Nietzsche's philosophy."34 Yet Kaufmann dutifully translates the followingwords with which in Ecce Homo Nietzsche describes the secret of his philosophical success:"the hidden history of the philosophers, the psychology of the great names, came to light forme." (EH, P, 3). Surely Nietzsche here is directing us to apply his own methodology in orderto hear and understand Nietzsche the philosopher.33 Miller, at 85-86.34 Walter Kaufmann, Nietzsche: Philosopher, Psychologist, Antichrist, 4th ed. (Princeton: Princeton, 1974) at21.94NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMNietzsche's PhilosophyPsychoanalyzing Nietzsche does not rob him of philosophical significance; Nietzsche does notreduce to his psychological origins—that would be a genetic fallacy. But Nietzsche'sperspectivism does warn us that he has created a philosophy for his experiences and he cautionsthat we should create our own. This is not merely humility and consistent application of hisperspectivism—Nietzsche intuitively understands that his experiences are limited. With someunderstanding of Nietzsche's subconscious emotional agenda, we can now review Nietzsche'sphilosophy with an eye to discerning what carries emotional and empirical validity, and what wecan treat as obiter dicta.There are many distinct themes weaving through the works of Nietzsche—perspectivism, the will to Power, the eternal recurrence, psychology, self-creation,deconstruction of motives and of moral systems, Nietzsche's lack of positive morality, andNietzsche's anti-philosophical style. Some of the themes are clearly fascinating for Nietzschebecause of his childhood tragedy—the eternal recurrence, his morality of self-creation, his anti-absolutism, his profound mistrust of codes of morality, and his perspectivism.Of Nietzsche's themes, the will to power stands as perhaps the most radical and thatwhich has remained Nietzsche's own. The will to power is Nietzsche's discovery of complexadaptive system theory, one hundred years before its piecemeal discovery by late twentiethcentury scientists! The idea of will to power captures the fundamental aspects of complexity—itis a vague formulation of how the second law of thermodynamics ought to be revised.35The will to power is the teleological drive within complex adaptive systems to seek toprosper within an environment. For example, organisms exist on earth. Those organisms thatdo not evolve in a way that promotes their own survival, over time, will no longer exist. Thereis no universal reason dictating that organisms should evolve to better survive. It is a naturalistic35 A precise formulation of the exception to the second law of thermodynamics is a current project within thescience of complex adaptive systems95PROLEGOMENA TO A POSTMODERN THEORY OF LAWfact that the ones that are around are the ones who happened to have adapted well. Thus, there isan a posteriori teleology that arises.The basic precept of evolution—natural selection—was around before Nietzscheassumed his professorship at Base1.36 Before taking up his professorship Nietzsche consideredgiving up philology and going into science.37 Was the young Nietzsche smitten by the questionof evolution and how teleology could arise in a Godless universe? Nietzsche's continued workin philology, which concerned interpretation, language, psychology and metaphysics. Thisallowed Nietzsche to intuit the pervasive nature of the will to power, or the drive to createcomplexity. Tracing the actual historic development of the will to power in Nietzsche's thoughtis beyond the scope of this thesis. However, the following is reasonable hypotheses as to howthe idea of the will to power might arise and spread throughout the themes in Nietzsche'sthinking.Fantasia on a Theme by Friedrich NietzscheReality imposes the a posteriori telic criterion that all beings that do not immediately dissolvemust possess a drive to endure as their fundamental teleology. At its crudest, the will to poweris the goal to survive. However, once an environment becomes at all complicated, there willemerge all sorts of instrumental causalities that surviving organisms must react to by formingsubsidiary telic criteria. In any system of interest, therefore, there are many more telic criteriathat emerge other than bare survival, though survival seems in some sense to be the mostfundamental one over time. The subtle mind of Nietzsche would have mocked theories that werecrudely constructed without seeing beyond bare survival of the fittest.A complex adaptive system in an environment evolves an implicit set of rules. Theserules embody complicated teleologies that relate to the environment. If the rules are successful,36 Charles Darwin, The Origin of the Species (1859).37 Kaufmann, Nietzsche, at 25.96NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMthe system must evolve mechanisms to lock-in those rules so that the beneficial conduct willcontinue and the system endure.The philologist Nietzsche saw a similar evolving process in the construction of aninterpretation of a text. The text is like the environment; the interpretation is the complexadaptive system. The interpretation is like a set of rules for understanding the text. One's initialinterpretation is a crude approximation, simple rules. Nietzsche the interpreter keeps going backto the text and empirically tests his interpretation and refines his interpretation, addingcomplexity to the rules. The interpretation survives if it withstands the criticism of otherinterpreters. The pressure to construct more adequate interpretations, a will to power, emergesfrom the desire to survive rival interpretations.Having explored this analogy, Nietzsche discerned the same process in the formation ofa moral code. Here is where Nietzsche's subconscious emotional drive would propel his insightbeyond that of the crude evolutionary theory of his contemporaries. Nietzsche needed todevastatingly attack the cruel moral code of his parents. Complexity theory provided him withthe tool to craft his scattered insights into moral hypocrisy into a deadly weapon. An evolvingsystem is fundamentally historical—the telic criteria that emerge are entirely products of thehaphazard path of history—there is no universal endpoint. Thus Nietzsche could look for thehistorical origins of the rules that formed his parents' moral code. A moral code is a complexadaptive system that people develop to help satisfy their needs and desires (their telic criteria).Of course, once the moral code is in place, the moral code can only survive if there are doctrinesthat reinforce the survival of the code. Nietzsche observed that the self-reinforcing mechanismscould become too strong and lock-in to solutions that could later be seen to be manifestlysuboptimal. Nietzsche would have been drawn to this insight because he subconsciouslydetested absolutism.Absolutism could only be philosophically undermined if Nietzsche could undermine thenotion of universal truth and establish perspectivism. Nietzsche saw that the will to power (i.e.,the exception to the second law of thermodynamics) is the fundamental organizing force in theuniverse—objects, beings and essences could only be formed by complex adaptive systems in97PROLEGOMENA TO A POSTMODERN THEORY OF LAWresponse to the will to power imperative. But since evolving systems are contingently historicaland never have an end goal, there could never be any ahistorical objects, beings or essences thatwere more than a temporary response to the current environment from which the telicconstraints emerge. All essences are defined by their relationships to those criteria and eachother. Thus will to power is the fundamental aspect of any metaphysic—which must beexpressed in language.Nietzsche correctly saw that the attempt to describe reality with language is a complexadaptive system in itself. The conceptual and grammatical framework of language is thus anorder that must continue to evolve in order to more optimally relate itself to reality so as to bettersatisfy telic criteria. Nietzsche applied his perceptive powers to identify many telic criteria thatpromoted the formation of "essentialism" in language. Nietzsche saw that various self-reinforcing mechanisms in language resulted in reification of concepts and a masking of howthey falsified reality. These mechanisms thus interfered with continuing evolution of languageand knowledge. Furthermore, they resulted in enduring false metaphysics.Once the conceptual and grammatical framework of language is seen as an historicalattempt to create an order to satisfy a broader will to power (cultural adaptation), truth acquires awill to power of its own. Nietzsche refers to "truth" ambiguously. "Truth" in a particularlanguage order (like "good" in a particular moral order) means that which is a true statementfrom within that order ("linguistic truth"). But the language order only relates to theenvironment, it is not reality itself. Since reality is too complicated for language to achieve anentirely accurate schema of reality (knowledge optimism),38 linguistic truth is in a fundamentalsense falsifying. But living according to this falsification (the order) is necessary to survive—action requires illusion. Abandoning the order entirely results in dissolution—one falls into theabyss.Lock-in to a suboptimal order can be dangerous. The environment could change so thatthe order is no longer closely related enough to reality to satisfy its telic criteria, but lock-inprevents evolution. In this case, a new order—a new truth—must be forged. Nietzsche saw that38 See chapter four of this thesis.98NLETZSCHE-SELF AS COMPLEX ADAPTIVE SYSTEMover time the order of linguistic truth loses its connection to the telic criteria emerging from theapparent world and mendaciously misrepresents reality—ideals deprive reality of its truthfulness(ideals become excessively falsifying) (EH, P. 2). What a locked-in system requires issomething to bump it out of its rut and playfully explore candidates for more optimalconstructions of linguistic truths. This destabilizing force has been called "chaos" in moderncomplexity theory. Nietzsche saw himself as this force in his drive to undermine absolutism andmoral codes—Nietzsche called this force "Dionysus."We know from complexity theory that chaos is necessary to drive the evolution ofcomplexity, but the chaos must not be too strong, otherwise the system will dissolve intonothing. Indeed, complexity seems to arise where a complex adaptive system can advance bymodifying the structure of an old order and reorganizing how the entire new structure relates tothe new telic criteria that have emerged in the changing environment. Nietzsche identified thischaracteristic a hundred years earlier in his genealogy of the moral concept "good."In terms of cultural evolution, there would therefore need to be some people whofunctioned as Dionysus, flirting outside the boundaries of the truth-language-cultural-moralorder, being attuned to reality, and seeking ways to chaotically bump the order so it becomesmore optimal. Nietzsche's new philosophers, therefore, dance at the edge of the abyss (riskingcomplete loss of order) hanging by insubstantial ropes. It is ironic self-awareness that makes theropes insubstantial. The inner strength and drive to survive of these risk-takers—these seekersof knowledge—must be great, a task only for the strong, those teeming in will to power. Thegreater the degree of falsification in society's complex adaptive systems, the more "decadent"the locked-in orders have become, the greater the need for Dionysus.Nietzsche applied complexity theory to the psychology of the formation of personality orcharacter. Nietzsche insightfully saw that the self was a chimera resulting from the consonanceor coherence of many drives and agencies within the mind. The personality is a complexadaptive system. Emotional drives and experiences comprise the environment of this system andthe human body appears to have a will to power to create a self that can survive and integrate allof its genuine emotions.99PROLEGOMENA TO A POSTMODERN THEORY OF LAWWe know from complexity theory that a steady infusion of chaos results in telic wavesof change to the elements of a complex adaptive system. Again, a hundred years earlierNietzsche observed that in developing our character we should adopt "brief habits" and exploretheir implications like waves (GS, 310).39One's self is "decadent" insofar as it falsifies the empirical reality of emotionalexperience. One way of doing this is to form one's character according to a moral code thatfalsifies genuine emotional experiences. Nietzsche became expert at sensing where people'sconstructed self falsified their inner self. Nietzsche had long sensed that the reified asceticmorality of Christianity did not appropriately account for the empirical phenomenon of thegenuine emotions he experienced as a child. The moral code had locked-in to an order that failedto incorporate relevant telic criteria emerging from Nietzsche's personal uniqueness. Since eachpersonality is a complex adaptive system, each person is fundamentally historical and unique,so any rigid moral code is potentially oppressive. Nietzsche failed to develop the theme of usingempathy to expand moral relevancy—empathy and social justice were not on his emotionalagenda.°The creation of self by the self is perhaps the most self-reflexive and ironic of complexadaptive systems, more so than language. It is unclear to what extent Nietzsche differentiatedhealthy emotional drives from unhealthy ones—he was certainly aware of the possibility of self-deception. Nietzsche claims he could smell the entrails of souls, which suggests he had anintuitive notion of subconscious neuroses. Perhaps, if Nietzsche had had a better understandingof the effect of childhood trauma on shaping the subconsciousness, he could have unwound hisown twisted subconscious self.The idea of will to power applied to personality formation leads to Nietzsche's strategyfor coping with misfortune—the eternal recurrence. The will to power must develop a strategyto cope with misfortunes that are out of one's control, lest one be immobilized by despair.39 Friedrich Nietzsche, The Gay Science, tr. Walter Kaufmann (New York: Random House, 1974). References toThe Gay Science are abbreviated without footnote as "GS" and use the division labeling of the Kaufmanntranslation.40 This theme will be explored below in chapter eight.100N1ETZSCHE-SELF AS COMPLEX ADAPTIVE SYSTEMNietzsche's brilliant solution was to use disadvantage as a spur to greater self-creation, such thatone would not want to have lived one's life without that misfortune having occurred. Themisfortune is like an inoculation of chaos—the extinction of dinosaurs, for example, arguablyopened evolutionary niches that permitted homo sapiens to evolve. Would we wish dinosaursnever went extinct? Thus, those with a strong will to power welcome misfortune—joy iswrought from suffering.As insightful as this is, Nietzsche stumbled onto something dangerous—fatalism.Nietzsche's eternal recurrence can lure someone into unwisely tolerating a recurring, oppressivestate of affairs. The usually brilliant Nietzsche was blind to this danger. This blindness can betraced to emotional roots—the eternal recurrence was Nietzsche's means of turning his will topower against itself in order to avoid confronting his mother. He was never able to overcomehis unconscious fear of displaying anger toward her. As his anger swelled, eventually his willto power to create a self, consumed itself. The subconscious rage was an overwhelmingDionysian pressure to destroy the (falsifying) self-order Nietzsche had created and the eternalrecurrence was a lock-in that could only be dislodged at the cost of destroying all order.Another colour absent from Nietzsche's palette of brilliance was having positiveemotional social experiences. Thus Nietzsche never meaningfully applied complexity theory topolitics—he was admittedly anti-political (EH, I, 3).Finally, Nietzsche appears not to have found a way to apply complexity to women. Hisempirical insight into women was weak, based primarily on the horrible caricatures who ruinedhis life. He was anti-political and thus had little interest in the empowerment of women.The weaknesses in Nietzsche's emotional health should be viewed as warning signsposted at a partially completed real estate development. There is a sign in front of each lot that isstill under construction. Nietzsche left it to other thinkers to complete the development. Theblueprints for the proposed buildings are still sketchy because Nietzsche only viewed the lotsfrom afar. Today's builders should amend the blueprints to fit the lots, so long as they respectNietzsche's style. One style pervades Nietzsche's architecture—the will to power (complexitytheory). Nietzsche gives us a style that he does not know how to describe in straightforward101PROLEGOMENA TO A POSTMODERN THEORY OF LAWnarrative (it took science another hundred years). But he has shown us this style by example. Itis useful to think of Nietzsche as describing the "general deep structure" of the phenomena heinvestigates. Thus, for example, it would be a violation of his style for Nietzsche to provide uswith a particular morality. Thus Nietzsche only describes how the general principles ofcomplexity theory operate in the area of morality. The particular deep structure of morality willdepend on historical circumstances and how truth, language, personality and other complexadaptive systems have evolved. Nietzsche can do no better than recommend that those with thestrongest will to power ironically stand outside, beyond good and evil, and become comediansof the ideals. Only thus can the orders evolve more robust ideals.A Postmodern TragedyIf Nehamas is correct in characterizing Nietzsche's life work as an attempt to create a literarycharacter, then the story of Nietzsche is a tragedy without equal. No tragic moment is as movingas The Other Dancing Song because no tragedy is worse than ignorance of child abuse.Freud was dead wrong about Nietzsche achieving sanity. Zarathustra failed to escape theprison of his childhood. The literary critic Harold Bloom claims that Shakespeare's Falstaffoutshines Nietzsche's Zarathustra—Falstaff s power is "sublime pathos, potentia, the drive forlife, more life, at any and every cost. ... To exist without a superego is to be a solar trajectory,an ever-early brightness, which Nietzsche's Zarathustra, in his bathos, failed to be. 'Try to liveas though it were morning,' Nietzsche advises. Falstaff does not need the advice. "41Nietzsche's tragedy exceeds his life. Nietzsche's was clearly one of the great minds ofall time—his insights into complexity ante-dated scientific discoveries by a hundred years in anera when scientific knowledge doubles roughly every decade. But Nietzsche's childhoodtragedy compelled him to write obscurely—only now are we beginning to understand him, after41 Harold Bloom, Ruin the Sacred Truths—Poetry and Belieffrom the Bible to the Present (Cambridge: HarvardUniversity Press, 1989) at 82-83.102NIETZSCHE—SELF AS COMPLEX ADAPTIVE SYSTEMmost of his important insights have been derived elsewhere. Moreover, his childhood tragedyblinded him to irresponsible resignation to authority and contempt for the weak. Because of itsobscurity, his writings were vulnerable to misuse by death-affirming social forces, resulting inthe most horrible human holocaust of all time.Free spirits must hear and understand Nietzsche's cries and end the tragedy of sufferingand lost genius.Self as Complex Adaptive SystemDeconstructive postmodernism emphasizes three tasks: (1) identify false knowledge optimism,(2) identify the sources of self-interest that motivate the false optimism; and (3) identify whatinduces those who do not share the same satisfaction of self-interest to adhere to or tolerate thefalse optimism. Effective deconstruction thus requires precise concepts of decadence andideology, which correspond to the psychological or social sources of self-interest, respectively.This chapter has examined the self as a complex adaptive system to illustrate how decadence canconduct one's conscious behaviour. The major points may be summarized as follows.An intellectually maturing human experiences emotional trauma at various stages of life.Particularly as a child, a person will make crude causal associations between event paradigmsand the unbearable experience of pain. The immature mind cannot generate a subtle, rationalexplanation, so it makes an overgeneralized and exaggerated association. This results in a crude,unrefined strategy to avoid repeating an unbearable experience.A simple example is what happens after one gets violently ill after eating a type of food,lima beans for example. The mind subconsciously generates the feeling of impending illnesswhenever it infers that lima beans might soon be ingested. The crude association is not complexenough to associate the original illness specifically with the tainted lima beans eaten in theparticular case. The subconscious represses the ingestion of all food that triggers theovergeneralized association. Moreover, the conscious mind cannot overcome or revise this103PROLEGOMENA TO A POSTMODERN THEORY OF LAWsubconscious reaction. The subconscious mind has "locked-in" to a suboptimal strategy. Theschema is inaccurate, but just as one subconsciously winces to avoid bumping a bruise for fearof pain, the mind fears that a chaotic bump could trigger the association and recreate the pain.Thus the subconscious mind lures one away from re-evaluating the simplistic, subconsciousassociation.The subconscious mind can be usefully thought of as containing layers of not-complex-enough associations made in response to a history of emotional trauma. These associationsdirect one's behaviour as powerfully as an aversion to certain types of food, but are usually notself-apparent. Indeed, Freud hypothesized that these "agencies" were the primary personality,the conscious mind being secondary. One is decadent, therefore, when one's subconsciousmind has locked in to an inaccurate schema that controls conscious behaviour in a way that theconscious mind is unaware of.A therapeutic strategy of psychotherapy is to detect the underlying inaccurate schema (anillusion or fantasy) and to unlearn it. One approach to unlearning is to guide the patient toperceive how and why the lock-in occurs. Another approach is to re-trigger the association in acontrolled setting where emotional support will cushion the pain (change the outcome) and thebenefit of mature reflection can forge replacement associations.The task of psychotherapy is very similar to postmodernism itself. This might explainwhy Nietzsche saw himself as developing a medicine for society (exorcising moral illusions)even though he had no meaningful experience with social relations or politics. Had the effects ofNietzsche's childhood traumas not prevented him from seeing society as a complex adaptivesystem, Nietzsche might have considered the social dimensions of morality, rather thanfocusing solely on moral codes as a means of constructing one's self.104Chapter 6Society as Complex Adaptive SystemOur social habits, practices, manners, customs and culture all interact to constitute manyimportant institutions in our society. It has long been recognized that these institutions havegrown and evolved rather than being entirely the product of deliberate human design. Thistradition of historical social science has been recently reviewed and made thematic in the workof Friedrich Hayek.' This tradition attempts to show that society contains many useful emergentsocial orders, but the tradition has not developed an articulated, general theory of complexadaptive systems. Indeed, Hayek peremptorily concluded that a general theory of complexadaptive systems in sociology would not be possible.2Hayek drew upon his piecemeal insights as to how society comprises many complexadaptive systems to argue in favour of an extreme form of liberalism. This thesis claims that theexistence and desirability of complex adaptive systems in society do not imply liberalism.Hayek failed to apply comprehensively his insights into the nature of social orders, choosing ablend of knowledge pessimism and knowledge optimism that suited his ideological politicalvalues. The distasteful conclusions of Hayek's political philosophy, therefore, do not discredithis insight into the formation of social orders.The Emergence of Social OrdersA society comprises many individuals who interact in dynamic fashion. An ant colony, which isa simple form of society, is one of the most easily perceived instances of an order emergingfrom the concurrent behaviour of individuals independently acting according to rules—theanthill phenomenon. The anthill emerges as an entity with discernible, but fuzzy properties—it1 Friedrich A. Hayek, Law, Legislation and Liberty, 3 vols. (Chicago: University of Chicago Press, 1973); TheConstitution of Liberty (Chicago: University of Chicago Press, 1960).2 Friedrich Hayek, The Political Order of a Free People, vol. 3 of Law, Legislation and Liberty (Chicago:Chicago University Press, 1973) at 173.105PROLEGOMENA TO A POSTMODERN THEORY OF LAWis a social order. The topology of the anthill social order is particularly interesting because itsproperties greatly assist the collectivity of ants to survive in the environment. The fact the socialorder is under selective pressure means that the preconditions exist for the social order to evolveas a complex adaptive system.Hayek claimed that many of the social institutions necessary for a successful humansociety have also emerged spontaneously due to selective pressure. Hayek correctly observedthat the fact that some societies persist and others do not creates an a posteriori teleology.Therefore, those societies that adopt useful, self-reinforcing social institutions are the societiesthat are more likely to persist and continue to evolve. Hayek distanced himself from so-called"Social Darwinism" because his focus is on the social institutions that evolve, not the biologicalcharacteristics of the individuals in the society.Hayek correctly observed that the social orders that emerge are in a sense independent oftheir concrete elements. As in any chaotic or complex adaptive system, the emerging systemiceffects may be studied without regard to the underlying matter. The systemic order is a holisticproperty that emerges from the nature of the relations among the elements, and can occur in anyconcrete medium that is capable of supporting the relations involved.Hayek also correctly observed that the individuals comprising the orders act according toimplicit rules and that rule-exhibiting behaviour is essential for any complex adaptive system topersist and improve. Hayek observed that the actors from which a social order emerges need notbe aware of the rules. The rules need only be implicit in their behaviour. Indeed, this is usuallythe case. A spontaneous order only requires that the behaviour happens according to rules—thatbehaviour may or may not be intentional with respect to the purpose promoted by the existenceof the emergent order.Hayek claimed that it is wrong to expect human cognition to be able to fathom all aspectsof a social order. Hayek claimed that spontaneously evolved orders are capable of complexitythat far exceeds human cognitive ability. Hayek attributed this to the fragmentation ofknowledge of particular facts in a society that is too large for everyone to know each other. A106SOCIETY AS COMPLEX ADAPTIVE SYSTEMspontaneous order distributed over many individuals is capable of organizing information in amanner that a single mind cannot match.Therefore, no single, top-down planner could be capable of designing a social order thatcould be as effective as an evolved, emergent social order. For example, air pressure andtemperature are emergent, topological features that implicitly describe the average kinetic energyof the air molecules in a volume. Direct calculation would be computationally impossible. If therules of kinetic interaction of air molecules were changed, the system might lose the feature ofspontaneously providing a simple means to measure the average energy of all elements.Hayek was particularly interested in the emergence of free market orders and howmarkets exploit transactional information to efficiently allocate goods. Hayek realized that it wasin many cases pointless to attempt to manipulate the market directly. An example will illustratehis point. Suppose that in a white-water kayaking course there is a large standing wave that isstraight and perpendicular to the shore. Suppose the course designer would prefer a semi-circular standing wave instead. It would be pointless to attempt to directly change the shape ofthe standing wave—there is no direct, deterministic causal link from wave-form to materialelements. Thus, for example, it would be silly to attempt to shape the wave using plywoodbuttresses—the wave would lose its useful wave characteristics. The wave emerges from theinteraction of flowing water with irregularities in the stream bed. It is only by rearranging therocks in the stream bed that the shape of the standing wave could be usefully altered. Complexadaptive system theory tells us that there is no method to precisely predict the effect of alteringthe stream bed; trial and error based on experience and plausible guesses are all that can bedone.Hayek arrived at the same conclusion regarding useful social orders. The social ordersare abstract and there is therefore no direct method of reshaping them. The social order emergesfrom the interaction of rule-exhibiting behaviour in individuals. The social order can only besuccessfully amended by changing the rules.Hayek observed that society has spontaneously evolved many useful social institutions.Reasoning backwards from the teleology and topology of the emergent social order, Hayek107PROLEGOMENA TO A POSTMODERN THEORY OF LAWconcluded that the actors must act according to a set of rules that are sufficient to produce thesocial order. These rules are usually in the form of social habits, practices, manners, orcustoms. The individuals need not be aware of why the rules are useful, nor need even be awarethat they are acting according to rules—most individuals are blissfully unaware of their distinctcultural traits.Hayek argued that since we cannot observe direct causal links between implicit rules andthe useful, indispensable social orders that emerge, traditional habits, practices, manners, orcustoms have authority even in the absence of an articulated justification.Hayek considered market allocation of resources to be a social order that isindispensable for the survival of a large society. Though probably correct on this point, Hayekwent on to conclude that the only deviations from libertarianism that should be considered arethose that reinforce the emergence of useful social orders and ones that maximize the freedom ofindividuals to maximize self-interest.A Postmodern Critique of HayekThe theory of complex adaptive systems supports many of Hayek's conclusions, but hisreasoning is incomplete and inconsistently applied. Hayek did not demonstrate in any detail whyno single mind could assimilate all the particular facts necessary to design an effective socialorder. It might be possible that a single mind could assimilate relevant facts within a yet-to-be-discovered conceptual scheme that enables effective social engineering. For example, a finitegrammar for a spoken language is capable of generating an infinite variety of expressions. Themere existence of a very large number of relevant facts does not preclude effectivemeasurement, classification and analysis using large computer databases.Hayek was vague on why fragmentation of knowledge precludes rationalistic socialengineering from being as effective as evolved orders. Hayek correctly observed that wherethere is (1) a large population of rule-following actors, (2) a precise starting configuration,108SOCIETY AS COMPLEX ADAPTIVE SYSTEM(3) concurrent interaction of the actors, and (4) exogenous influences, the emergent order canonly be generally predicted with a fuzzy and probabilistic model. Hayek correctly observed thatchanges to any of the four listed features can chaotically change or destroy the emergent socialorder. Hayek failed to observe that while the shift to a new topology is chaotic, the topologicalfeatures of such changes can be studied. Hayek saw that knowledge optimism about socialorders is impossible without understanding how and to what extent. Without a constructivetheory of complex adaptive systems, Hayek resorted to knowledge pessimism. Hayekpessimistically assumed that emerging social orders are always highly unstable and, therefore,that interference should either be minimal or directed towards reinforcing the social orders. Infact, the stability of emergent orders can vary quite significantly. Moreover, in evolvingcomplex adaptive systems the topological features teeter on the edge of stability and instabilityand, indeed, evolve adaptive instability. A complex adaptive system must continually movetoward the boundary between stability and instability. As a result of Hayek's failure to observecomplexity in the stability of social orders, he assumed that social orders are highly unstable andhe was ultra-conservative about deliberate social engineering. Hayek's prescription was to lockin to stability.Hayek's error was to reason that the impossibility of knowledge optimism impliesknowledge pessimism. An example will help illustrate the gravity of Hayek's error. SupposeHayek had been in charge of medicine and medical research. Hayek would have keenlyobserved that the living body is an evolved system. Any microreductionist attempt to create ahuman body would result in a Frankenstein monster. Hayek would have prudently concludedthat we should favour minimal intervention in bodily processes when treating patients, lest thecure be worse than the symptom. Hayek would have also correctly reasoned that rationalisticattempts to impose treatment based on a priori philosophical principles would be obviously ill-advised—theory must defer to evidence from experience. But Hayek would have adopted acruel attitude toward those suffering intolerable, urgent, concrete pain—let the body heal itself.But unbearable suffering warrants immediate, active, plausible medical intervention. We candevelop useful schemas about bodily systems that evolve, improve and guide us to109PROLEGOMENA TO A POSTMODERN THEORY OF LAWprogressively more plausible interventionist medical techniques. The social corpus is nodifferent. A life racked with pain might not be worth living. In response to the prescription ofeconomic faith healers, Keynes noted that in the long run we are all dead.Had Hayek had the benefit of complex adaptive system theory his normativeconclusions should have been different. Complex adaptive system theory gives a more detailedaccount of why microreductive, rationalist approaches to social engineering are insufficient toconstitute a viable social order. Moreover, it provides a constructive account of the evolution ofsocial orders. Therefore, we need not share Hayek's excessive fear of tampering with theconditions for the emergence of social institutions. Indeed, it is only by introducing stress to thesocial order in the form of desirable constraints that the social order can avoid lock-in andcontinually evolve. In the case of the market, social planners should attempt to create a morecomplex market that responds to many social imperatives, rather than attempting to create a"puree' market with simple mathematical properties.Recent work in economics has re-evaluated many economic assumptions from theperspective of complex adaptive systems. This work shows that unregulated markets behavechaotically and can lock in to manifestly suboptimal allocations of resources. The prescription,however, is not to impose top-down, rationalistic price-fixing. The effectiveness of evolving,market-price allocation of resources should be respected. However, the situations in whichinefficiencies emerge can be studied, leading to interventionist strategies that do not impair butmake use of the organic, evolving capacity of the market. For example, a technology policymight subsidize new, rival technologies so that the more optimal technology is not squeezed outsimply because its rival enjoyed initial advantages that were irrecoverably amplified by positivefeedbacks in the market.3 Hayek failed to seriously consider the possibility of imposingmeaningful exogenous constraints on a social order without destroying its capacity to evolve.We can pass legislation that redefines the fitness function that shapes the evolving social orderand let the social order evolve its own solution to our new demands. The market can be thought3 W. Brian Arthur, "Self-Reinforcing Mechanisms in Economics," in The Economy as a Complex System, eds.Philip W. Anderson, Kenneth J. Arrow and David Pines, Sante Fe Institute Studies in the Sciences ofComplexity, vol. 5 (Redwood City, CA: Addison-Wesley, 1988), 9-31.110SOCIETY AS COMPLEX ADAPTIVE SYSTEMof as a genetic programming machine, where the computer spontaneously evolves efficientsolutions to intractable problems.4Hayek made another mistake that is common among economists. Though Hayekrecognized that the notion of absolute prices is unsound and prices are better viewed asemergent characteristics of a complex, evolving system (a market), Hayek failed to realize thathuman actors in the system also act according to complex, evolving strategies. Hayek falselyinferred that because an evolved order can implicitly incorporate rules of great complexity andsophistication, the rules used by the actors in the system would be those that are optimal for thecreation of that order. Hayek overlooked the fact that the strategies of the actors evolved andwould therefore not be perfectly optimal in relation to the emergent social order.Recent work in complex adaptive systems shows that economists have falselypresupposed that market participants implicitly act with perfect game-theory strategies.Participants only have less-than-perfect evolved strategies.5 In terms of mathematics, theeconomists have favoured the rational-actor hypothesis because it makes the mathematics of thenonlinear dynamical systems yield closed-form (equilibrium) solutions.6 Chaotic effects wereassumed not to exist. Reality was falsified. Hayek unjustifiably assumed that the market orderthat spontaneously emerges must be one in equilibrium.7 Once this assumption is abandoned,Hayek can no longer reason backwards from the existence of a perfect market in equilibrium tothe conclusion that its actors must unwittingly exhibit perfect game-theory, rational behaviour.The assumption of rationality induced Hayek to overlook layers of complexity withinhuman actors—the fact that the self is a complex adaptive system. As a result, Hayek curtlyasserted that the phenomenon of subconsciously influenced behaviour is irrelevant to social4 Genetic programming is discussed in chapter four of this thesis.5 As noted in chapter four of this thesis, if the strategies were perfect and precise, evolvability would be lost;fuzzy strategies are required to effectively adapt to changing conditions.6M. Mitchell Waldrop, Complexity—The Emerging Science at the Edge of Order and Chaos (New York: Simon& Shuster, 1992) at 252-254. Stephen Kellert examines how ideologies have played a role in the non-treatmentof chaotic phenomena in mathematics and the physical sciences—see chapter five of Stephen Kellert, In the Wakeof Chaos—Unpredictable Order in Dynamical Systems (Chicago: University of Chicago Press, 1993). Theeconomist Brian Arthur has noted ideological resistance to the implications of chaos theory to market economics:see Waldrop, Complexity, at 48, 252-254.7 Friedrich Hayek, Rules and Order, vol. 1 of Law, Legislation and Liberty (Chicago: Chicago University Press,1973) at 63.111PROLEGOMENA TO A POSTMODERN THEORY OF LAWtheory.8 While it is true that the existence of a social institution implies that the minimal,necessary conditions for its existence must be present in the behaviour of the actors, Hayekfailed to appreciate that the minimal preconditions only require an evolved, good-enoughstrategy in the actors—not perfect, game-theory strategies. Perfect game-theory strategies areonly required so that non-chaotic mathematics can be employed to create simpler mathematicalmodels of market behaviour. Since the actors need not be perfect, there is room for strategiesshaped by evolved, subconscious influences. Indeed, it appears that the necessary conditionsfor market orders are rather weak compared to other subconscious constraints. Hayekoverlooked the question how evolving social orders influence the creation of the necessary rulesin individual human behaviour and therefore overlooked the phenomenon of social ordersshaping the development of the subconsciousness.9Hayek's assumption of rationality also prevented him from critically examining therobust agent myth. While Hayek was evolutionary and anti-rationalist with respect to socialinstitutions, he reverted to narrow rationalism in his analysis of its actors. Hayek failed to applyhis insights into the complex adaptivity of the social order to all levels of reality, especially thecomposition of the self.Because Hayek assumed human behaviour is inadvertently rational and failed tocritically examine the robust agent myth, his political philosophy and theory of justice share theshortcomings of liberal modernism discussed in chapter two. His admitted willingness totolerate oppression and suffering in the name of doctrinaire principlesl° exposes his work toeasy charges of ideology.11 This is unfortunate, as many of Hayek's insights into the complexadaptive nature of social institutions have been corroborated by the science of complex adaptivesystems and should not be discredited by his blatant ideology.8 Hayek, Rules and Order, at 31.9 For an example of such an analysis see J.C. Smith, The Neurotic Foundations of Social Order—PsychoanalyticRoots of Patriarchy (New York: New York University Press, 1990).10 Hayek, Rules and Order, at 61.11 Christian Bay, "Hayek's Liberalism: The Constitution of Perpetual Privilege" (1971) 1 The Political ScienceReviewer 110-123.112SOCIETY AS COMPLEX ADAPTIVE SYSTEMSocial Theory after HayekHayek made several positive contributions to the development of a legal theory. Hayek made itclear that many indispensable social orders emerge from the regulated but independentinteractions of a large population of actors. Enduring constraints cause these orders to evolve sothat the orders are capable of better satisfying community goals. These orders would beimpossible to construct from first principles and microreductionist reasoning. Hayek wascorrect to warn that insensitive tampering with the rule-exhibiting behaviour of the actors (theirtraditions) might endanger valuable social orders that have evolved. One of the ways that suchsocial orders could be valuable is to implicitly process vast amounts of data to help accomplishan important social task. Markets, for example, tend to allocate social resources efficiently.The emerged and evolved nature of the social orders and the implicit traditions that arenecessary for their emergence cannot be derived from first principles. One can only observe andmake models of them, using fuzzy concepts and probabilistic reasoning. Using the models, wecan incrementally tinker with plausible hypotheses as to how to change the system. We mustapply models with humility and often defer to an intuition shaped by implicit familiarity withevolved traditions.Hayek erred by being too conservative. Stephen Toulmin has noted that all legal systemsof any sophistication divide into, what we call in our system, law and equity.12 Law representsthe formal model of rules, the doctrine. However, law is always incomplete. In concretesituations that invoke more conflicting values at one time than the law has progressed to handle,judges draw on intuitive notions of fairness. In Nicomachean Ethics, Aristotle referred to thisprocess as practical reason. Practical reason is best performed by a "large-spirited person" withan intuitive knowledge of the virtues—evolved, traditional behaviour patterns that we do notreally understand but can observe. An effective judge must thus be both socialized andempathetic.12 Stephen Toulmin, "Equity and Principles" (1982) 20 Osgoode Hall Law Journal 1 -17.113PROLEGOMENA TO A POSTMODERN THEORY OF LAWHayek properly advised us not to presume tradition should be ignored merely because amicroreductionist justification cannot be offered. The process of forming a more complex legaldoctrine is an attempt to model that tradition in conceptual structures. The intuitiveunderstanding of tradition that conflicts with conceptualized law, is the domain of equity. Hayekerred by directing us not to focus on the concrete. As Toulmin argues, equity is especiallyconcerned with the concrete, with expansion of context. Without embracing the concrete,empathy is not possible and a judge cannot be a "large-spirited person." If the development oflaw is likened to the development of a science, equity represents the results of experiments thatdo not yet fit the theory. As more equitable experience is chronicled (in precedent), theregularities become apparent. The legal doctrine then readjusts itself, perhaps undergoingKuhnian doctrinal revolutions of varying extent. 13 Hayek would have us forego this process,apparently because he believed that social orders would be more stable if they emerged fromunwitting behaviour. Had Hayek not been knowledge pessimistic toward conceptualizedreasoning about social orders, he might have sensed his inappropriate optimism about theunconscious capacity of human agents and this would have shaken his naive faith in markets.The success of common law, which Hayek himself praised,14 shows that Hayek'spessimism is unwarranted. Indeed, tradition (implicit rule-exhibiting behaviour) will continue toevolve greater complexity and responsiveness to social goals only if there is a sophisticatedbody of articulated doctrine. Law makes possible a more refined equity. Moreover, once theconceptualized legal model has developed into a good-enough model, it can be used to generateplausible candidates for effectively engineering the social order, including the extirpation oftraditions that are ideological. This is a role Hayek refused to consider due to his misperceptionof the stability of social orders.Therefore, if we do not follow Hayek into his pathological conservatism, his insightsinto the emergent and evolving nature of social orders shows that the process of law and equity13 Thomas S. Kuhn, The Structure of Scientific Revolutions, 2nd ed. (Chicago: University of Chicago Press,1970).14 Hayek, Rules and Order, at 22.114SOCIETY AS COMPLEX ADAPTIVE SYSTEMevolved by the common law is an effective general strategy for coping with the fact that socialorders are complex adaptive systems.Tradition, of course, includes ideology and prejudice. To remediate unwelcome sideeffects of social orders, we need better knowledge about how social orders evolve. Hayekprovided no insight here. The legal process has evolved probabilistic strategies as to what sortsof changes can be attempted. One of these strategies is proportionality analysis, which modelsthe interactions among complex social orders using fuzzy goals and probabilistic causation. Iargue in chapter ten that this strategy (deep-structure reasoning) is the most plausible way toapproach the problem of mediating the need to preserve implicit wisdom and the need toengineer social change.StructuralismAnother school of thought that concerned itself with social orders was "structuralism." Thismovement was inspired by the work of Ferdinand de Saussure. Saussure was a linguist whoreacted against stagnation in the historical school of linguistics in the late nineteenth century.Saussure redirected inquiry to the signs that comprised the language system and analyzed howthe signs related to each other to form a functioning whole. It was the static structure oflanguage that assigned meaning to signs.The static structure Saussure referred to was an emergent social order. What functionsas the sign is irrelevant—the material cause of the emerging order need only be capable ofexhibiting the relationships required for the social order to exist. Therefore, any social practicecould be viewed as a static system of signs. This gave rise to a new branch of social science—semiotics.Structuralist thinkers realized that the existence of social orders meant that humans musthave unconscious structures that are necessary for the emergence of each social order, as didHayek. Structuralists, however, better understood the importance of language and115PROLEGOMENA TO A POSTMODERN THEORY OF LAWpsychoanalysis. On the other hand, unlike Hayek, structuralists totally failed to appreciate theevolving dynamic of social orders in response to selective forces. As a result, structuralistsystems are static.The anthropologist Claude Levi-Strauss viewed the static nature of structuralism as agood thing; it allowed for the possibility of an eternal self as constituted by the self-enclosedfunctioning of a system of elements that comprise a timeless cultural order. Similarly, thepsychoanalyst Jacques Lacan viewed each human as the manifestation of a language-constitutedunconscious that no self could claim as its own.Structuralist accounts are disturbing because there is no centre of subjectivity left in thehuman—people are entirely socially constituted and essentially static, or heading that way.Lacan's model is more interesting because language itself is dynamic and a being totallyconstituted by language possesses more potential for change. Nonetheless, the model isessentially one of confinement and strict limits on creativity.In terms of complex adaptive system theory, the problem with structuralism is that itequates constraints on the fitness function that shapes the self with the self. The emergence ofsocial orders places constraints on how the self as its own complex adaptive system candevelop—it partly defines the fitness function for the self. The fact that these constraints aregreater than we had previously realized does not mean there is no self; it only means that therobust agent myth was mythic in proportion.The structuralists also fail to appreciate the selective forces that act on social orders. Ifthe social order is not entirely well suited to human reality this will create stress on individualsconstituted by that social order. The stress will result in individual adaptation, which will resultin evolution of the emergent social order.116SOCIETY AS COMPLEX ADAPTIVE SYSTEMFoucaultMichel Foucault's thinking is a strong reaction to structuralism. Foucault shared structuralistintuitions as to how social orders constitute personal existence. Foucault examined in detail howknowledge systems (discourses) evolve to preserve the existence of social orders, therebybecoming an instrument of power.Unlike many optimistic structuralists, Foucault saw the power implicit in social ordersas confinement. These knowledge-power structures work insidiously to restructure our desiresso as to promote the persistence of the social orders. Knowledge blindly evolves as the vesselthat constitutes how we interpret our experience of reality, and conceals its constituting role.Foucault develops an ethics of thought that ironically exposes the passive nature of theknowledge vessel. Foucault agitates us to escape and stand outside our socially constitutedselves and achieve intellectual ecstasy—the flight from confinement. 15The problem with Foucault is that he fails to develop criteria to distinguish confinementsthat emanate from desirable social orders from undesirable confinements. Foucault's ethic is thepursuit of unconfined desire, ecstatic flight. The pursuit of this intellectual high helps explainhis guru-like status among his followers. Also, we cannot overlook how Foucault's personallife must have shaped which philosophical projects captured the interest of his subconsciousmind.16 The need for Foucault to lash out at social constitution of desire, which clashed withhis own nature, caused him to overlook the positive aspects of social constitution.In terms of complex adaptive systems, Foucault failed to fully appreciate that creativityrequires constraint and order and that social orders are not necessarily a bad thing. UnlikeNietzsche, Foucault failed to see these constraints as opportunity for self-development. LikeNietzsche, Foucault failed to develop any positive role for social orders. Each sees the fitness15 James W. Bemauer, Michel Foucault's Force of Flight: Toward an Ethics for Thought (New Jersey:Humanities Press, 1990).16 Foucault, born in 1926, grew up in Poitiers, on the frontier of occupied France. Confmement by politicalforces shaped his early life. As well, Foucault was homosexual who participated in sado-masochism. Thisobviously made him an outsider to the dominant, homophobic social moralities that shaped discourse andexplains his acute sensitivity to social confinements that interfere with self-created desire.117PROLEGOMENA TO A POSTMODERN THEORY OF LAWfunction of humans as centered in the self. Nietzsche chose fatalism, Foucault chose flight.17Neither was able to construct knowledge with sufficient social or political content to create adiscriminating concept of ideology. They were knowledge pessimists toward society. Without aconcept of ideology, they had no useful criteria for deciding which social orders wereunacceptable or how useful social orders could be engineered so as to empathize with uniqueindividuals such as Nietzsche and Foucault.The concept of ideology is therefore central to the task of law and must be an importantaspect of any postmodern theory of law. We will examine ideology in chapter eight, aftershowing how law is a complex adaptive system that constructs social knowledge in the absenceof the possibility of knowledge optimism.17 Foucault's flights often took him from his confinement in Europe to San Francisco to engage in self-createdecstasies.118Chapter 7Law as Complex Adaptive SystemThe aim of this chapter is to show that the institution of law in our society behaves is a complexadaptive system. In particular, I will show that the schemas used in legal reasoning constructand improve knowledge in an evolutionary manner.The methodology will be to show how law exhibits all of the major empiricalcharacteristics that have been observed about complex adaptive systems. This is not a proof thatlaw is a complex adaptive system. It is a fallacy of reason to argue as follows: 1X's are complex adaptive systems.X's are described by model CAS.Law is described by model CAS. Hence, Law is a complex adaptive system.Whether law is a complex adaptive system cannot be proven at least until a detailedmathematical model is created that identifies the rules of the actors and shows how the legalorder spontaneously emerges as a result of interactions. Such work is beyond the scope of thisthesis.On the other hand, in our society the institution of law has spontaneously evolved, itdoggedly persists and it defies microreductionist theories of explanation, prediction andjustification. This strongly suggests that the legal order is a spontaneous order that has emergedand evolved because it serves a useful function for society—that it is a complex adaptivesystem. Moreover, we can demonstrate that law and, in particular, legal reasoning exhibit themajor features of complex adaptive systems. Once we describe legal reasoning qualitatively asthe process of constructing knowledge by evolution, this model will provide insight as to howprevious legal theories offer incomplete and distorting models of legal reasoning. The modelwill also guide future development of deep-structure expert systems. If these expert systems1 Elliot Sober, "Learning from Functionalism—Prospects for Strong Artificial Life," in Artificial Life II, eds.Christopher G. Langton, Charles Taylor, J. Doyne Farmer, and Steen Rasmussen, Sante Fe Institute Studies inthe Sciences of Complexity, vol. 10 (Redwood City, CA: Addison-Wesley, 1992), 749-765 at 760.119PROLEGOMENA TO A POSTMODERN THEORY OF LAWprove to be more successful in predicting case outcomes and providing useful argument, suchevidence will indirectly confirm that we can appropriately apply the complex adaptive systemmodel to legal reasoning.This chapter will consider law and legal reasoning in terms of the following features ofcomplex adaptive systems, which were listed at the end of chapter four: (1) the emergence of anorder of system behaviour that has an implicit schema; (2) a selective force that creates ana posteriori teleology in the form of a fitness function; (3) self-reinforcing mechanisms topromote the stability of the schema; (4) a tension between acting according to the rules of theschema and detecting when to create exceptions to the rules; (5) instances of schema inaccuracybased on false regularities or denial of regularities; (6) instances of lock-in; (7) annealingforces to prevent or dislodge lock-in; (8) avalanches of change propagating throughout theschema over time, in sizes that vary according to a power law distribution; (9) increasingcomplexity by accretion of exceptions followed by transformational compressions;(10) transformations that exploit the existing structure of the schema; (11) the fitness functionsand self-reinforcing nature of complex adaptive subsystems interfering with the viability of thecomplex adaptive system as a whole; and (12) development of awareness of the developmentallogic of change in the schema, both exogenously and endogenously.EmergenceThe institution of law is highly abstract and difficult to isolate as a sharply defined,autonomous, emergent social order. However, the fact that it is difficult to create a precisemodel of the legal order does not prove that no order exists. I will rely on intuitive notions as towhat the legal order involves, so as to avoid overlooking important aspects of the legal order bybeing too eager to define it.In terms of the material cause of the legal order, it is trivial to observe that law emergesfrom the interaction of individuals in society. The efficient cause of the legal order includes the120LAW AS COMPLEX ADAPTIVE SYSTEMformal institutions of law and the fact people tend to act according to rules, both out of habit andas conscious followers of promulgated commands. It is tempting to seek a more discriminatingdescription of the legal order by restricting the actors to the players of roles in the legalinstitutions, but once the cast of players includes those who are bound by the laws we see thatthis approach is not helpful. Law emerges from the interaction of actors playing roles in manysubsystems of the legal order.One very important feature of the legal order is the body of precedent decisions and thecode of laws contained in those decisions and legislation. Any theory of law that attempts torestrict its enquiry to these phenomena would be impoverished. However, the fact that we caneasily identify the corpus of laws and that we can observe entrenched practices of makingconscious decisions based on this corpus of laws, shows that the body of laws is a fundamentalaspect of legal process.The body of laws contains an implicit schema that includes assumptions about whatindividuals need, how those needs are satisfied, what social conventions should be respected,how social orders are created, the relative utility of social orders, and how modification of lawswould instrumentally affect all of these. The focus of this thesis will be on the body of rules ofconduct implicit in the decisions made by judges and the enactments of legislatures. In thiscorpus of laws, there are two distinct complex adaptive systems—the development of explicitlegal doctrine and the development of an implicit deep-structure schema.The system of explicit legal rules—legal doctrine—is easily identifiable. It is the focusof legal positivism, for example. On the other hand, many legal scholars overlook the nature ofthe deep structure of law. As argued in chapter six, social evolution has resulted in peopleinternalizing rules of behaviour that are necessary for the emergence of useful social orders. AsHayek has argued, these implicit rules have not been fully articulated into a conscious,conceptualized scheme. A socialized person will have a good intuition of what to do in mostsituations, but will have difficulty articulating the result in a coherent, conceptual scheme.121PROLEGOMENA TO A POSTMODERN THEORY OF LAWStephen Toulmin provides a good example of this phenomenon.2 In the mid-1970s theUnited States Congress appointed an eleven-member commission to consider the ethics ofmedical and psychological research on people. When considering the ethics of concretesituations, the commissioners rarely split along philosophical lines or, for example, along thelines of scientist versus non-scientist. In almost every case they came close to agreement, evenabout quite detailed recommendations. However, when the commissioners sought to justifytheir conclusions, the principles to which they appealed differed widely.Law displays the same phenomenon. Judges exhibit remarkably consistent intuitions asto what case outcomes should attach to concrete fact situations and these intuitions are generallymore subtle and refined than the legal doctrine. Legal doctrine, therefore, operates in a mannersimilar to a scientific theory—it is an evolving, provisional explanation of experimental data. Ascientific theory or model can be very useful for engineers to solve many problems. However,when scientists encounter recalcitrant experimental data, the theory can only generate plausiblepossibilities for refinement of the theory. In legal reasoning, judicial decisions provideexperimental data—judges use intuition to assign an outcome to a concrete pattern of facts.Judges and scholars then attempt to revise doctrinal models to account for the new experimentaldata. Legal doctrine, therefore, evolves as a complex adaptive system—it evolves to produce aschema that models the deep structure of law.The deep structure of law is also a complex adaptive system. It is broader than thecorpus of articulated doctrine; it encompasses the internalized rules that judges intuitivelyfollow. As such, it contains an implicit schema about how various types of behaviour areessential for the important social orders that arise, behaviour that explicit doctrine and socialscience are still incapable of justifying. However, this intuition must also evolve because thesocial orders are always evolving. Furthermore, like common sense, it evolves (or shouldevolve) in response to developments in science and the identification of harmful ideologies.The process of legal decision-making and rule-making thus involves two schemas. Thedoctrinal schema is the conscious, conceptualized model for decision-making; it is the corpus of2 Stephen Toulrnin, "Equity and Principles" (1982) 20 Osgoode Hall Law Journal 1 - 17 at 2-3.122LAW AS COMPLEX ADAPTIVE SYSTEMarticulated rule hypotheses (and underlying assumptions) contained in the opinions used tojustify previous case outcomes (precedents) and contained in legislative enactments. The deep-structure schema is the body of rules and underlying assumptions that are implicit in thesocialized intuition of decision-makers, which the outcomes in precedents chronicle.There are clearly other aspects of the legal order, many of which affect judicialoutcomes. However, the focus of this thesis is on legal reasoning, so the remainder of thischapter will focus on the features that these two subsystems share with complex adaptivesystems.Fitness FunctionThe previous two chapters show how the self is a complex adaptive system and how theinteraction of many selves results in the formation of social orders that are complex adaptivesystems. We observed in chapter four how problems might arise where the fitness functions ofrelatively autonomous complex adaptive subsystems (individuals) clash with the fitness functionof the complex adaptive system as a whole (society). We may usefully view law as an attempt topromote the necessary conditions for mediating and maximizing the satisfaction of the fitnessfunctions of individuals and the social orders that are useful for society.3Law has traditionally failed to consider complex adaptive subsystems in the form ofgroups of individuals, such as economic, gender, racial, ethnic or cultural classes. Criticalenquiry has shown that we must consider these phenomena in legal analysis. On the other hand,it is not self-evident that the fitness functions of these groups are as important as the ones forindividuals or useful social orders. For example, why should the law attempt to ensure the classof rich people persist as a self-reinforcing order within society? On the other hand, most peopleintuitively feel aboriginal culture is worthy of support through the legal order. Our conception of3 It is not very helpful to begin our analysis by attempting to reduce one fitness function to the other. Individualsbenefit from the existence of useful, viable social orders and vice versa. The holistic aspect of complex adaptivesystems should be a warning to suspend reductionist methodology.123PROLEGOMENA TO A POSTMODERN THEORY OF LAWthe legal order should therefore leave room for the development of heterogeneous fitnessfunctions. Nonetheless, there is a fitness function that shapes the legal order, however vague orinadequately constrained the fitness function is in its current composition.We have already noted that legal doctrine operates as a complex adaptive subsystem thatstands apart from the deep-structure complex adaptive system. The distinctness arises from thefact that the system of doctrine has a fitness function with at least two additional constraints.First, doctrine must justify its results in a conceptually coherent set of rules. Second, doctrinemust operate so as to restrict the style of argumentation and evidence that a litigant must adducebefore a court, so that judges can make decisions relatively quickly and affordably for litigants.4The requirements of conceptual coherency and lower information costs are thus additionalconstraints not present in the fitness function that shapes the deep structure. Legal doctrine isthus a style of reasoning that is engineered to permit coherent argument within strict limits oninformation costs.Self-Reinforcing Mechanisms in LawLaw has many self-reinforcing mechanisms and positive feedbacks that promote stability inlegal reasoning. Most obvious is the principle of universalizability, which put simply, meanslike cases should be decided alike.5 While the notion of "like" cases might at first glance seemself-evident, it becomes elusive under closer scrutiny. No two concrete fact situations areidentical; there are always some differences. Thus, there must be criteria to decide whether casesare relevantly alike.6 The criteria will either be doctrinal or intuitive, reflecting the two levels oflegal reasoning. In doctrine, factual relevancy is determined by the doctrinal categories and rules4 J.C. Smith, "Action Theory and Legal Reasoning," in Tort Theory, eds. Ken Cooper-Stephenson and ElaineGibson (North York, Ontario: Captus Press, 1993), 104-125 at 108-112.5 J.C. Smith, Legal Obligation (Toronto: University of Toronto Press, 1976), 88-108. The principle ofuniversalizability is closely related to the doctrine of stare decisis; however, stare decisis also includes rules fordetermining which court decisions are binding on which courts. In this latter sense, stare decisis is unrelated tothe principle of universalizability.6 Smith, Action Theory, at 105.124LAW AS COMPLEX ADAPTIVE SYSTEMthat previous cases used to justify their decision outcomes. In deep structure, judges draw ontheir intuitive insights into desirable social behaviour to determine relevancy. The deep-structureintuition induces a judge to consider a more refined category of relevant facts than could bededuced from the pre-existing doctrine. A judge would review the previous cases thatestablished the doctrine and distinguish them because the fact situations in those cases did notraise the factual categories under consideration—the judge distinguishes the previous cases. Thejudge would depart from doctrinal precedent on the basis of factual distinctions that create anew, limited exception in the doctrine. The pressure to follow doctrine in previous cases addsstability to the doctrine by localizing deep-structure intrusions and inhibiting propagation ofchange throughout the doctrine. The pressure to be consistent with previous outcomes based onsimilar facts (using deep-structure relevancy) promotes stability in the deep-structure schema.A related stabilizing influence has been the natural law myth. This is the assumption thata universal, unchanging body of law is being discovered. From the perspective of this thesis,this is not a desirable means of promoting stability in legal reasoning.A more pragmatic stabilizing mechanism is the implicit requirement that law beconceptually coherent. The need for coherency creates a tendency for small changes topropagate widely. Since judges fear disrupting areas of law or fact situations not underimmediate consideration, they tend to create many exceptional pockets to resist the need topropagate change beyond the factual context at issue before the court. Once the precedentschronicle enough exceptions so that underlying regularities become more obvious, then judgescan confidently amend doctrine in ways that can propagate widely.A recent case from the Supreme Court of Canada is a good example of a court localizingdoctrinal change. In London Drugs Ltd. v. Kuehne & Nagel International Ltd.7 the courtcreated a new exception to the doctrine of privity of contract. It has long been a principle ofcontract law that third parties to a contract cannot acquire rights or obligations pursuant to acontract between other parties. Legal commentators have criticized this rule as being particularly7 London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1993] 1 W.W.R. 1 (S.C.C.). For a fuller casecomment, see The Honourable Mr. Justice Lance Finch and Karen Horsman, "Case Comment: London DrugsLtd. v. Kuehne & Nagel International Ltd." (1993) 51 The Advocate 409-417.125PROLEGOMENA TO A POSTMODERN THEORY OF LAWharsh where employees accidentally damage goods and seek to take advantage of a clauselimiting liability in a contract between their employer and the owner of the goods. The rule isharsh because commercial reality makes it difficult for the employees to negotiate such alimitation with the owner of the goods. Moreover, the contract between the employer and theowner of the goods is generally considered to be the final word on allocation of risk—noreasonable owner of goods who agreed to an exclusion clause with an employer would fail toobtain insurance because it relied on the liability and solvency of the employees. The dissonancebetween doctrine and commercial reality implied that the doctrine failed to recognize a refiningregularity in the deep structure. In London Drugs the court was invited to create a broadexception or to relax the privity of contract rule, either directly or through the back door byamending tort doctrine. The majority opinion held that while commercial reality dictated achange in the doctrine, a change that went beyond what was necessary to decide the appealwould result in complex changes to doctrine and have uncertain ramifications. The courttherefore carefully fashioned a limited but principled exception based squarely on the facts of thecase which, in the majority's opinion, only resulted in an incremental change in the law.8The London Drugs majority also noted that the limited exception to the privity rulewould not open the floodgates to third parties suing on contracts between other parties. This isan example of another self-reinforcing mechanism in law—judges fear creating unexpected andunwelcome, large-scale social changes that imperil functioning social orders. A recent trilogy ofcases from the Supreme Court of Canada illustrates the danger of making doctrinal changesprior to generating sufficient fact-based decisions to illustrate competing considerations andexhibit regularities. In R. v. Askov9 the court considered whether criminal charges against anaccused should be stayed because the accused was not tried within a reasonable amount of timeas required by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. The court heldthat charges should be stayed where a trial for extortion and firearms offences was delayed for8 See the majority opinion of Mr. Justice Iacobucci, at 48-49. Similar comments favouring incremental changehave been made by Madam Justice McLachlin in Watkins v. Olafson (1989), 61 D.L.R. (4th) 577 at 583, [1989]2 S.C.R. 750; Mr. Justice Iacobucci in R. v. Salituro (1991), 68 C.C.C. (3d) 289 at 301, [1991] 3 S.C.R. 654;and Chief Justice Lamer in R. v. B. (KG.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 280.9 R. v. Askov, [1990] 2 S.C.R. 1199.126LAW AS COMPLEX ADAPTIVE SYSTEMtwo years through no fault of the accused but due to inadequate resources. The socialconsequences of the Askov decision were immense. In the year following the release of theAskov decision there were over 47,000 stays issued in Ontario alone, including offences asserious as manslaughter and rape. By 1992 the number of stays in Ontario exceeded 100,000and criminal administration was widely perceived to be in a state of crisis. Members of theSupreme Court of Canada began giving public speeches indicating that they had not intended theconsequences to be so extreme. The court soon had a chance to revise its position in R. v.Morin.lo Mr. Justice Sopinka opened his majority opinion by referring to the large-scaleconsequences of the Askov decision. In Morin the court considered the difficulties ofadministering criminal justice in the particular region where that particular case arose, factualcriteria that the doctrine in Askov failed to take into account. The Morin court held that thedoctrinal rules set out in Askov should not be applied as a formula and should defer to a morecase-by-case, fact-centered approach. Less than three weeks after the Morin decision, theSupreme Court of Canada released its decision in Reference re Milgaard.n In this case theaccused had been convicted of murder, had exhausted his appeals, and had served many yearsin prison. The accused applied to the Minister of Justice for a retrial based on evidencediscovered shortly after the trial. Over twenty-one years after the evidence was discovered, theMinister of Justice initiated a reference to the Supreme Court of Canada. In an opaque opinion,the court held that even with the new evidence the accused was probably guilty of the murderbut that the new evidence could possibly raise a reasonable doubt for a jury. The courtrecommended that the Minister of Justice set aside the conviction and direct a new trial. Thecourt also suggested that it might not be appropriate to have a new trial, but if the Attorney-General ordered a new trial and the jury returned a verdict of guilty, the court recommended thata conditional pardon be granted in view of time already served. Since the court held that theaccused was probably guilty notwithstanding the new evidence, the decision is best read as anextension of the principle that an accused's trial must be held within a reasonable time. Since the10R. v. Morin (1992), 12 C.R. (4th) 1 (S.C.C.).11 R. v. Milgaard (1992), 90 D.L.R. (4th) 1 (S.C.C.).127PROLEGOMENA TO A POSTMODERN THEORY OF LAWstate delayed the retrial of the accused for many years, the state arguably violated the accused'srights under paragraph 11(b) of the Canadian Charter of Rights and Freedoms. The court,however, had just delivered the Morin opinion with the Askov debacle fresh in its mind. Retrialapplications might have flooded an overburdened administration, resulting in large-scaleprisoner amnesty. But the reasoning in Milgaard did not even mention trial within a reasonabletime even though this was the effect of the decision in this case. Indeed, there was no doctrinalreasoning at all. The court's decision is very difficult to apply beyond its own rather peculiarfacts; the decision precludes any social impact beyond the range of judicial foresight. Thedecision will, however, be available as a factual precedent to help refine future developments inthe right to a retrial within a reasonable amount of time. The court sought to promote stability byde-emphasizing doctrine and creating an exception based on particular facts.Another stability-promoting force is the judicial recognition that individuals rely onstability in the legal order to make plans. Transactional commitments presume stability of lawsand legal concepts. Reliance is especially important with respect to real property because formost people expenditures relating to real estate require a significant portion of their wealth. Wetherefore see enduring stability and elaborate structure in the law of real property.12Less obvious mechanisms to promote stability include the phenomenon that conceptualcategories favour certain styles of thinking that perpetuate self-reinforcing self-interests. Criticalscholars, for example, seek to identify language-based features such as reification anduniversalization. Social power dynamics create ideologies that preserve favourable conceptualschema. Similarly, the social order shapes subconscious, neurotic structures in groups ofindividuals that favour certain conceptual schemas and make their way into the structure oflaw.13The common social background and training of judges and lawyers is another stabilizinginfluence. Finally, the difficulties of finding law (searching for cases) perpetuates the existing12 see, for example, the description of the conceptual intricacy of property rights in J.C. Smith, "A ConceptualModel for the Representation of Legal Knowledge," in Readings for Legal Reasoning and Artificial Intelligence,eds. J.C. Smith & Daphne Gelbart (University of British Columbia: Faculty of Law, 1993), 12-25.13 See J.C. Smith, The Neurotic Foundations of Social Order—Psychoanalytic Roots of Patriarchy (New York:New York University Press, 1990).128LAW AS COMPLEX ADAPTIVE SYSTEMconceptual schema. What is easier to find gets used more; cases indexed according toestablished categories are easier to fmd.Tension in Application of SchemaI have already mentioned the tension between law and equity. A judge must grapple as to whento apply doctrine and when to defer to intuition. Doctrine usually proves to be inadequate wherea concrete fact situation involves more competing goals than have been worked into thedoctrine. In this case, there is tension between the doctrinal schema and the deep-structureschema relevant to the facts of the case.The deep-structure intuition may also experience such a tension. The judge may find thatsocial orders have evolved, creating a tension in the deep structure. Also, as social sciencecomes to understand the topology of a social order, the judge may realize that an intuitivetradition was stronger than necessary and the tradition can be relaxed to accommodate otherconstraints. An example of this would be the extirpation of ideologies that had shaped the deepstructure.Schema InaccuracyThe Askov example shows how law can develop inaccuracies in its doctrinal schema. Theinaccuracy in that case was the failure to realize that the rights of an accused must be temperedby the competing goals of society that require government to budget the resources it allocates tothe speedy administration of criminal justice.Generally the courts overcome a shortcoming in the doctrinal rules by employinginterpretation principles or other techniques to bend cases to achieve the proper deep-structureoutcome. Once the pattern underlying the distortions becomes discernible, a court can refine the129PROLEGOMENA TO A POSTMODERN THEORY OF LAWdoctrine accordingly. Thus in London Drugs, a history of tension in the application of theprivity rule to contractual clauses excluding liability provided the court with ample material tofashion a principled, incremental exception to the general rule and await further fact-baseddecisions before making further amendments to the rule. The court in Askov erred by leavinglower courts little room to give effect to competing social goals, which the Askov court failed toforesee.I will discuss examples of false regularity and denial of regularity in the followingsection on lock-ins. In landlord and tenant law when determining whether a landlord warrantsthat leased property is fit for the use intended by the tenant, the common law incorrectly usedthe doctrinal distinction between fixtures and chattels to answer the deep-structure question"Who was the least-cost insurer?" In contract law, after determining that ensuing events havefrustrated a contract such that a court should excuse the parties from further performance, thecourts have denied regularities based on restitutionary principles. As will be seen below, in eachcase the lock-ins of schema inaccuracy had to be dislodged by legislation.Courts are properly suspicious of making changes for the sake of change. If the courthas overlooked competing goals, drastic social consequences might result, as did from Askov.The post-Askov Supreme Court has adopted a more disciplined attitude, favouring incrementalchanges in response to specifically identified goals. The majority opinion in London Drugsrepeatedly emphasized this attitude.Making doctrinal rules to justify decisions driven by opaque, deep-structure intuition islike squaring a circle. If the initial square is too large, subsequent courts will develop principlesof retraction or relaxation.14 If the initial square is too small, subsequent courts struggle toextend it. The elasticity of principles of interpretation allows the courts to arrive at correct deep-structure results notwithstanding the unrefined state of the doctrine. However, some doctrinal14 The Supreme Court of Canada has been struggling to accurately state the circumstances in which a fiduciaryduty arises. The plethora of cases following the Supreme Court's decision in Lac Minerals v. InternationalCorona Resources (1989), 61 D.L.R. (4th) 14 (S.C.C.), suggests the courts are in a retraction phase. It issubmitted that the courts are confusing fiduciary duties with broader, but less demanding duties to act in goodfaith.130LAW AS COMPLEX ADAPTIVE SYSTEMinaccuracies are too large and stabilizing principles such as stare decisis lock in lower courts intomaking bad decisions.Lock-ins in LawEven though doctrinal and deep-structure schemas necessarily labour with inaccuracy (since wecannot be knowledge optimistic about the social order), a healthy complex adaptive system willgenerate exceptions and refine the schema over time. However, there are self-reinforcingmechanisms in law and we should therefore see examples of inaccuracies being locked-in evenafter the inaccuracy becomes apparent to critical observers. This appears to be the case. Legaljournals are replete with articles by scholars who, in effect, are arguing that the law has locked-in to a suboptimal conceptual schema in relation to the features of the social order underconsideration.Because the transitions from schema to schema are chaotic and historical, positivefeedbacks can lock-in historical accidents. A series of three cases from the law of landlord andtenant nicely illustrates how law can become a prisoner of its history.15In Smith v. Marrable the court held quite sensibly that a lease of a furnished house hadan implied condition and warranty that the house was habitable. Shortly thereafter in Sutton v.Temple the court held that a lease of land did not have an implied warranty that if was fit for thepurpose intended by the tenant. The tenant in this case had leased the land to raise animals.Unknown to the landlord, a substance had accidentally spread on the land that was poisonous tothe tenant's animals, many of which died. The tenant sought to avoid the lease, arguing thatSmith v. Marrable applied. The court distinguished Smith v. Marrable because in that case thecontract included something other than the land and fixtures—i.e., the furniture—which implieda warranty and condition of habitability. The court reached the proper result but falsely15 Smith v. Marrable (1843), 11 M&W 5, 152 E.R. 693; Sutton v. Temple (1843), 12 M&W 52, 152 E.R.1108; Hart v. Windsor (1844), 12 M&W 68, 152 E.R. 1114. I thank Professor Arnold Weinrib for the example.131PROLEGOMENA TO A POSTMODERN THEORY OF LAWidentified the regularity that provided the criteria for factual distinction. The doctrinal distinctionbetween real property and personal property did not coincide with the deep-structure concept ofleast-cost insurer.As a consequence of this doctrinal inaccuracy, subsequently, in Hart v. Windsor thecourt held that the lease of an unfurnished house and garden did not imply a warranty ofcondition that the house was habitable. In this case, shortly after the term of the lease began thetenant abandoned the premises because bugs had infested the house. The court considered itselfbound by the doctrine in Sutton v. Temple because the lease did not include any chattels. Thecourt in Sutton v. Temple prematurely created a doctrinal rule without a sufficient body offactual decisions to adequately exhibit the contour of the principle of least-cost insurance. As aresult of doctrinal stare decisis, English common law locked-in to an inaccurate schema. Thedoctrinal rule precluded factual distinctions and amending the distinction between fixtures andchattels would have had implications throughout the law. Due to the inflexibility of the doctrine,subsequent courts were unable to decide factual relevancy on the basis of deep structureintuition and had to make harsh decisions. The inaccuracy of the doctrinal rule is evidenced bythe distortions that subsequent courts used to impose warranty obligations where the landlordwas the least-cost insurer. For example, if a house was leased with so much as a single chair,there was a warranty and condition that it was fit for habitation.Stare decisis locked-in the historical accident of a poor sequence of founding cases,which locked in a false regularity and eventually had to be over-ruled by statute.There are also examples of lock-ins of denials of regularity. One example is the law ofrestitution. Canadian courts now recognize a general principle of restitution apart from quasi-contract, whereas English courts deny that an independent cause of action exists.16 The denialof restitutionary principles has lead to problems in specific areas of law, such as the doctrine offrustration in contract law. Since frustration voids a contract, without an independent principleof restitution there is no basis upon which to compensate a party who has partially performed its16 See generally, Peter D. Maddaugh and John D. McCamus, The Law of Restitution (Aurora, Ontario: CanadaLaw Book, 1990) at 11-12.132LAW AS COMPLEX ADAPTIVE SYSTEMobligations to the benefit of the other party. Finally, the legislators passed The FrustratedContracts Act to remedy this shortcoming. However, as Professor Waddams has noted, thelegislation itself is an inflexible, blunt, doctrinal solution.17 The legislation only compensatesthe partially performing party for limited monetary payments and other limited expenses. Unlikelandlord and tenant legislation, the frustrated contracts legislation does not rank high on thepolitical agenda, so amendments are rare. Professor Waddams argues that Canadian commonlaw, now freed from its lock-in to a denial of restitutionary principles, should evolve to reflectdeep-structure intuitions about protection of reliance interests and thereby overtake the crudeapproach of the legislation.Annealing ForcesThe fundamental annealing force in law is the continual stream of new fact situations comingbefore the courts. To the extent that the deep-structure legal schema inaccurately models a socialorder, or the doctrinal schema is mis-aligned with either the deep-structure schema or the socialorder, conflict will arise and litigants will bring cases before judges.18 Judges should intuitivelysense the mis-alignment and produce an outcome consistent with their perception of the socialorder and its relationship to the set of fitness functions that shape the legal order, which shouldresult in change to the legal order. Change in society is thus introduced into the legal order bygenerating new conflict situations that spawn new case outcomes. New case outcomes reshapethe deep structure and, eventually, the shape of legal doctrine.1917 S.M. Waddams, The Law of Contracts, 3rd ed. (Aurora, Ontario: Canada Law Book, 1993), 11 395-397 at pp.269-271.18 It is also possible that the deep structure and doctrine schemas are adequate but a litigant is unhappy with theway the conflicting fitness functions shaping the legal order have been mediated. Thus, the legal order mightjustifiably favour collective interests over individual interests in a particular context, but the individual seeks tochallenge the law nonetheless. In other words, society is comprised of individuals and social orders whose fitnessfunctions clash to a significant degree. Nothing prevents a litigant from pursuing a result that unjustifiablyfavours the fitness function of one subsystem to the detriment of the whole. Such unfounded challenges shouldnot be an annealing force, but probably is in many cases due to judicial ideologies.19 In R. v. Salituro (1991), 68 C.C.C. (3d) 289 (S.C.C.) at 298, Mr. Justice Iacobucci cited the decision ofMadam Justice McLachlin in R. v. Khan (discussed below) as an example of the Supreme Court of Canada's"willingness to adapt and develop common law rules to reflect changing circumstances in society at large." As133PROLEGOMENA TO A POSTMODERN THEORY OF LAWA historical source of disruption to the legal conceptual schema has been the court ofequity and, after the unification of the courts of law and equity, the doctrines of equity. Equitybegan as a court of pure conscience, ameliorating the harsh effects of law.20 In other words,where the common-law doctrine was manifestly in conflict with the deep structure, a court ofequity would intervene even though the reasons why could not be articulated. The interventionof early equity courts was criticized as being as arbitrary as the length of the Lord Chancellor'sfoot. Over time, equity itself began to develop principles that increased in complexity.Nonetheless, equitable principles have always been applied with a high degree of discretion andnew equitable principles have been created much more rapidly than new principles of commonlaw.In Anglo-Canadian jurisprudence Lord Denning has played a clear role as an annealingforce, using and refashioning equitable principles to reformulate legal schemas to better achievedeep structure notions of justice.Avalanches, Compressions and TransformationsThe avalanches, compressions, and transformations that occur in the historical development ofthe doctrinal and deep-structure schemas in law are inter-related. A typical sequence ofdevelopment in an area of law is as follows. Many pockets of exceptional rules accumulate inthe doctrine. The set of exceptions enjoys a period of stability. As the deep structure is refinedand the doctrinal schema becomes less capable of providing satisfactory results, judges begin touse pliable interpretive principles to distort the exceptions to handle new cases. Eventually thestress is too great and the baroque collection of exceptions is compressed into a compact set ofprinciples. However, law retains the previous exceptions as exemplars as to how to apply thenew principles and these precedents stand as accumulated experience in ranking the importanceChief Justice Lamer noted in R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 281, such changingcircumstances may create compelling reasons to overturn previous decisions, thus overcoming the stability-promoting principle of stare decisis.20 See generally, Paul Perell, The Fusion of Law and Equity (Toronto: Butterworths, 1990).134LAW AS COMPLEX ADAPTIVE SYSTEMof the new principles in relation to conflicting values from outside the narrow area of law towhich the principles apply.There are many examples of this progression. Professor MacCrimmon, in associationwith deep-structure expert-system research at University of British Columbia, used deep-structure analysis to observe that the myriad exceptions to the hearsay rule of evidence law weremanifestations of two underlying principles—reliability and necessity.21 Not long afterwards inR. v. Khan,22 the Supreme Court of Canada agreed that the existing set of exceptions to thehearsay rule was inadequate. The court expressly noted the sequence of progression, from fixeddoctrine with many exceptions, followed by a period of attenuation as new cases expose thetension between doctrine and deep structure in novel fact situations:The hearsay rule has traditionally been regarded as anabsolute rule, subject to various categories of exceptions, suchas admissions, dying declarations, declarations against interestand spontaneous declarations. While this approach has provideda degree of certainty to the law on hearsay, it has frequentlyproved unduly inflexible in dealing with new situations and newneeds in law. This has resulted in courts in recent years onoccasion adopting a more flexible approach, rooted in theprinciple and the policy underlying the hearsay rule rather thanthe strictures of traditional exceptions.23The court therefore completed the progression by compressing the exceptions. How didthe court accomplish this? Rather than stretching existing hearsay exceptions or creating a new,singular exception to achieve the manifestly just outcome, the court proposed a new general rulefor creating new exceptions to the hearsay rule based on the principles of necessity andreliability identified by Professor MacCrimmon. The compression, however, did not destroy thestructure of the law; the exceptions were preserved as exemplars of the general principles asapplied in paradigm fact situations. The new principles, being well grounded in regularities21 See chapter one of this thesis.22 R. v. Khan, [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92.23 Ibid., per Madam Justice McLachlin, C.C.C. at 100.135PROLEGOMENA TO A POSTMODERN THEORY OF LAWexhibited by thousands of hearsay decisions, have since been used by the Supreme Court toreconsider other doctrines relating to the admissibility of evidence.24The development of the law of estoppel provides a concrete example for more detailedexamination. The example will also show how the science of complexity might assist a lawyerto analyze legal problems. Consider the following factual circumstances regarding theinterpretation of a lease:A landlord leases commercial property. The lease provides forfixed monthly payments of base rent which total $100,000 perannum and provides for annual participation rent calculated asthe amount by which 2% of the tenant's gross sales in a yearexceeds $100,000. The initial term of the lease is 20 years, andthe tenant has two ten-year renewal options. At the start of eachrenewal period, the lease resets the base rent to the market rate.The lease does not amend the formula for calculatingparticipation rent and the lease provides that the parties are to setthe new base rent without regard to the potential effect of theparticipation rent.The landlord sells the property to a subsequent landlordwho buys the property without notice of any equities betweenthe tenant and the original landlord. At the end of each of thenext nineteen years the tenant pays participation rent with acover letter that incorrectly refers to the threshold amount of$100,000 as "base rent." Just prior to renewal, the landlord andtenant begin negotiations on a new base rent and assume withoutreviewing the lease that they are supposed to calculateparticipation rent using the new annual base rent as the thresholdamount (instead of the fixed figure of $100,000). They assumedthis because this is the way such leases are usually structured.However, the definition of participation rent in the lease onlyuses the figure $100,000 with no reference to base rent. Duringoral negotiations to determine the base rent for the renewal, thelandlord defends its bargaining position by referring to a totalrent using the erroneous method of calculating participation rent.24 R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.).136LAW AS COMPLEX ADAPTIVE SYSTEMPrior to agreeing on a new base rent, the tenant exercises itsoption to renew. Negotiations for base rent continue for twoyears into the term of the first renewal when the landlorddiscovers the erroneous calculation of participation rent anddemands that the tenant pay the higher amount. The parties thensettle on a new base rent and agree to submit the interpretation ofthe participation rent clause to the courts.Should the landlord be entitled to calculate participation rent using $100,000 as thethreshold amount, or should the annual base rent, as adjusted from time to time, be usedinstead?This is a hard case. None of the standard doctrines for excusing the tenant from the clearterms of the lease apply in this case. Rectification is not available because the current landlordbought the land without notice of any equities. The participation rent clause, though unusual,need not be amended by implication in order to achieve business efficacy. There is no evidenceof custom or usage that deems such clauses to be adjusted without having to so specifically. Thelandlord was not aware of its rights, so there could be no waiver. Similarly, there was noamendment because the landlord did not intend to vary the terms of the lease. The tenant'sposition conflicts with the written lease so it cannot argue that there was an oral collateralcontract. There was no misrepresentation because the landlord's negotiating rhetoric was notuttered with the intent of inducing the tenant to renew the lease. The tenant is arguably estoppedfrom estoppel by representation because the tenant induced the landlord to make themisrepresentation. Similarly, the landlord owed no duty to advise the tenant as to the lease'slegal effect for the purposes of making a decision whether to renew the lease—the tenant is asophisticated operator that negotiated the lease with legal counsel. Proprietary estoppel isinapplicable because the tenant had not spent any money on improvements or the like. Finally,even if there were estoppel by representation or common mistake (which normally would notapply where the tenant unilaterally exercises a right), the tenant's remedy would be rescission.137PROLEGOMENA TO A POSTMODERN THEORY OF LAWBut the tenant lost this remedy when the tenant agreed to a base rent and affirmed the lease.Traditional doctrinal analysis is a labyrinth of dead ends for the tenant.The fact situation, however, is possibly governed by a new development in the law ofestoppel. A recent line of English cases has greatly expanded the doctrine of estoppel. Estoppelby convention had been a special type of estoppel by representation that prevented parties fromdenying the truth of recitals in agreements. In Taylors Fashions Ltd. v. Liverpool and VictoriaTrustee Co,25 Oliver J. (as he then was) extended the doctrine of estoppel by convention toinclude estoppel from denying common mistaken assumptions where to do so would beunconscionable. Subsequently, in Amalgamated Investment Property Co. Ltd. v. TexasCommerce Bank,26 Lord Denning seized the opportunity to pronounce the existence of ageneral equitable estoppel doctrine, embracing promissory estoppel, proprietary estoppel,waiver, acquiescence, relief against forfeiture, estoppel by representation, and estoppel byconvention. According to Lord Denning, whenever two parties have entered into a transactionor course of dealing on the basis of common but mistaken assumptions as to the legal effect ofan agreement, equity will prevent a party from enforcing strict legal rights that contradict thecommon assumptions where to do so would be unconscionable, unjust or unfair to the otherparty.The law of estoppel prior to the judgment of Lord Denning in Amalgamated InvestmentProperty was a collection of piecemeal exceptions. In terms of complexity theory, the law in thisarea was complex but without depth. Lord Denning identified unifying principles thatcompressed the law of estoppel. Prior to the compression, lawyers had to stretch and distortexisting estoppel doctrines to achieve outcomes that matched the judges' intuitive notions of fairoutcomes—the deep structure. When this was not possible, a "Dionysian" judge such as LordDenning "damaged" existing law by creating new categories of estoppel doctrine in order toachieve the deep structure.27 Lord Denning acted as an annealing force whose damage to the25 Taylors Fashions Ltd. v. Liverpool and Victoria Trustee Co., [1982] 1 Q.B. 133, [1981] 1 All E.R. 897.26 Amalgamated Investment Property Co. Ltd. v. Texas Commerce Bank, [1982] Q.B. 84, [1981] 1 All E.R.923 (Eng. C.A.).27 See, for example, Central London Property Trust Ltd. v. High Trees House Ltd., [1947] K.B. 130; and Crabbv. Arun D.C., [1976] Ch. 179.138LAW AS COMPLEX ADAPTIVE SYSTEMintegrity of the legal doctrine spurred it to adapt to better reflect the underlying deep structure.After sufficient experimentation with novel fact scenarios, the underlying regularities becameapparent and Lord Denning's chaotic input propagated a large avalanche of change. Thisresulted in a general equitable estoppel principle that compressed the burgeoning complexity ofestoppel doctrine. Thus we see many small changes (distortions of existing exceptions), fewerlarger changes (creations of new exceptions) and one very large change (the compression).Thus the changes exhibited the power-law distribution that is characteristic of complex adaptivesystems.The result of Lord Denning's compression may be criticized for being vague, but the oldcategories of estoppel remain available to provide useful guides for future cases. So, forexample, in Stiles v. Tod Mountain Development Ltd.,28 Madam Justice Huddart adopted LordDenning's general equitable approach but still relied on the doctrine in proprietary estoppel casesto articulate the competing values and fashion an equitable remedy that mediated these valuesaccording to the priority accorded in the earlier cases. Thus, the law behaves as a complexadaptive system by exploiting the pre-existing order rather than destroying it.An analysis of estoppel from the perspective of complex adaptive systems revealsanother dynamic associated with the Amalgamated Investment Property case. The legal systemoperates at two distinct but related levels of complex adaptive system—the doctrinal level inrelation to the deep structure, and the deep structure in relation to the social order. Lord Denninghas at least compressed several estoppel doctrines into an underlying principle of equity. Theunderlying deep structure of estoppel has been to protect reliance interests, prevent unjustenrichment, and grant restitution where appropriate. What is unclear from cases spawned byLord Denning is whether the new equitable estoppel principle goes beyond mere protection ofreliance interests, to fully enforce bargain expectations. Professor Waddams argues that thedeep structure of estoppel cases should be the protection of reliance and restitution.29 ProfessorDawson argues that the nature of commercial relationships in the social order is poorly modeled28 Stiles v. Tod Mountain Development Ltd. (1992), 88 D.L.R. (4th) 735 (B.C.S.C.).29 See chapters five, twelve and thirteen of Waddams, Contracts.139PROLEGOMENA TO A POSTMODERN THEORY OF LAWby the transaction model of the deep structure of law, even as supplemented with equitabledoctrines to protect reliance interests.30 Professor Dawson argues that Lord Denning's approachmarks a shift in the deep structure of the law, not merely the evolution of its manifestation indoctrine. Our complexity analysis suggests that one could estimate the probability of such a shiftby examining related developments in the law of relationships—including the law of fiduciaryduties, the requirement of good faith in contract negotiation and performance, oppression incorporate law, and the duty to warn.31Professor Dawson's argument has yet to be tested by the courts. In all of the Denning-inspired cases so far, the fact situations were analogous to relief from forfeiture cases—protection of the reliance interest implied enforcement of the expectation interest because thereliance could not be undone. For example, in Litwin Construction (1973) Ltd. v. Kiss,32investors were estopped from rescinding purchase agreements relating to a townhousedevelopment. The parties had mistakenly assumed that compliance with prospectusrequirements under the Securities Act would satisfy prospectus requirements under the RealEstate Act. Completion of the purchases was delayed and in the meantime the local housingmarket collapsed. The investors, seeking to escape their purchase agreements, discovered thatthe developer's failure to file a prospectus under the Real Estate Act gave the investors a right torescind. The B.C. Court of Appeal applied Amalgamated Investment Property and held that theinvestors were estopped since the common mistaken assumption had deprived the developer ofan opportunity to remedy the failure to file a prospectus or to re-sell the units before the marketcollapsed. The collapse of the market foreclosed the possibility of unwinding the transaction.Similarly, in Amalgamated Investment Property itself, the bank had disbursed funds and theestopped party had gone into bankruptcy—there was no possible way of undoing thetransactions to protect reliance interests without also protecting the expectation interest. The new30 T. Brettel Dawson, "Estoppel and obligation: the modern role of estoppel by convention" (1989) 9 LegalStudies 16-52.31 In R. v. B. (KG.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 280, Chief Justice Lamer observed that in decidingwhether to abandon the orthodox rule of evidence that prior inconsistent statements may only be used to impugnthe credibility of a witness and not be used as evidence of the truth of its content, the larger context of the trendwithin evidence law towards greater admissibility had to be considered. In other words, the court was sensitive toa broad shift in the underlying deep structure of evidence law.32 Litwin Construction (1973) Ltd. v. Kiss (1988), 29 B.C.L.R. (2d) 88 (C.A.).140LAW AS COMPLEX ADAPTIVE SYSTEMestoppel cases, therefore, have not yet presented an opportunity to choose squarely betweenenforcement of expectation interests or mere protection of reliance interests.The hypothetical landlord situation could potentially decide the issue. The commonmistaken assumption relates to a money obligation and the continuation of the lease isexecutory. It would clearly be possible for the court to unwind the transaction by declaring thelease to be terminated or giving the tenant the option of continuing on the basis of the true termsof the lease. On the other hand, a court might decide to enforce the expectation interests anddeem the lease to be amended for the remaining 18 years of the lease. Additional facts couldinfluence the outcome. If just prior to the renewal decision the landlord would have wanted thetenant to continue as tenant (due, say, to market uncertainty) and, in order to secure a tenant,would have agreed to amend the lease at the time of renewal to reflect the mistakenly assumedterms, then the tenant could make a strong case that its expectation interest should be fulfilled.In this case, a court might hold that the Denning-inspired cases support fulfillment ofexpectation interests. If, on the other hand, the landlord had a better use for the property andwould have preferred no renewal of the lease, then the landlord would have a strong case. Inthis case, a court might distinguish the Denning-inspired cases as applying only to protectreliance interests or treat the facts as exceptional. The historical contingency of which facts arosecould profoundly influence the subsequent development of the law.Courts will not rule on hypothetical or moot cases, for good reason. The institutionalconstraints on the court process mean that judges must make decisions with low time andinformation costs.33 Therefore, the expressive power of doctrine is incapable of fully reflectingthe deep structure. If the moot issue never comes up in actual situations that require judicialresolution, the inaccuracy of the doctrine can be tolerated. The expressive power of doctrine canbe allocated to the more pressing conflicts. Thus the courts engineer around the problem ofdoctrine's limited expressive power. Using complexity to engineer around the inherentinadequacy of a schema is a feature of complex adaptive systems.33 Smith, Action Theory, at 108- 112.141PROLEGOMENA TO A POSTMODERN THEORY OF LAWThe same observation applies with respect to the relationship between the deep structureand the social order. The expressive power of the deep-structure schema is necessarilyinadequate to fully account for the complexity of the social order. So, to return to our example,if situations that force the courts to decide between transactional-exchange versus relationship-exchange deep-structure models are very rare, then the courts ought not to make the choice. Onthe other hand, the relationship-exchange model might more efficiently reflect the social orderand the deep structure's expressive power is being wasted on baroque, makeshift adjustments(like estoppel doctrines) to shore up the deficiencies of the transaction-exchange model. In thiscase a court could achieve a substantial compression by converting to a relationship-exchangemodel in the deep structure. The compression would free the limited expressive power of thedeep structure to more optimally mediate more pressing conflicting values—complexity could bedeveloped along other dimensions. Such a change in the deep structure would constitute a rare,huge avalanche of change.We thus see that stare decisis reinforces the order in legal-reasoning schemas, and legalreasoning's flexibility to distort doctrine a little to achieve just results adds further stability.Doctrinal annealing is introduced by judicial encounters with novel fact situations and thejudges' need to achieve intuitively just outcomes where the existing order and distortingtechniques are inadequate. The complexity of the system advances from the judges' ability toreinterpret previous decisions and focus on their outcomes and factual distinctions. In this way,new doctrinal or deep-structure schemas can be created while preserving the collectedexperience of previous decisions. In this respect, the development of law is like thedevelopment of science, which reinterprets previous experimental data after each paradigm shift.However, science differs because it lacks the distinction between doctrinal schema and deep-structure schema.142LAW AS COMPLEX ADAPTIVE SYSTEMClashing Fitness FunctionsThe legal order is not a homogeneous whole. There are many subsystems that require self-reinforcing mechanisms that can clash with the purposes of the system as a whole.One example of a complex adaptive subsystem is the institution of courts of law. For thecourts of law to be effective as a social institution they must command some degree of respect inthe community. For this reason it is important that court process be public, so that the decisionscan be seen to be empathetic to diverse concerns, if not always totally fair in everyone'sopinion. Similarly, rules of discovery and punishment for contempt promote the efficacy of thecourt process. However, the aim of the legal order as a whole is justice, which is defined bysociety's fitness functions.34 It often happens that the internal goal of effective law courtsinterferes with the substantive rights of individuals. A good current example is the controversyover the privacy rights of victims of sexual crimes. The efficacy of the court system requiresthat trials not be conducted in secret. On the other hand, public disclosure of a victim's personallife, such as psychiatric sessions, can be psychologically devastating. It can be forcefullyargued that courts have over-emphasized the subsystem fitness function (effectiveadministration of justice) and failed to adequately satisfy the overall fitness function (substantiverights). Indeed, evidence of continual failure to creatively accommodate the competing goal ofrespecting the victim's integrity could probably be linked to patriarchal ideology.IronyFinally, law has achieved a high degree of irony. It is not uncommon for judges to makeobservations about the logic of how law develops. The Supreme Court of Canada in LondonDrugs explicit sought only to change the law incrementally. In R. v. B. (K.G.)35 Chief Justice34 See the section above on fitness functions.35 R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 279-281.143PROLEGOMENA TO A POSTMODERN THEORY OF LAWLamer described the circumstances in which the Supreme Court would not consider itself boundby the principle of stare decisis. The factors he listed included the attenuation of doctrine causedby changing circumstances in society at large.Courts in many areas of law now explicitly apply the principle of proportionality—including cases involving Charter rights, duties of corporate directors, and constitutionaldivision of powers—which had previously only been applied intuitively, as part of the deepstructure. In General Motors of Canada v. City National Leasing36 Chief Justice Dicksonreconciled a line of division-of-power cases whose doctrine had become hopelessly confusingbecause judges had attempted to make decisions that conformed to the deep structure ofproportionality, but gave justifications in awkward, essentialist doctrinal categories.37It is not uncommon for courts to openly admit that they are avoiding making a doctrinalrule because it would be premature to do so prior to the development of more complexity in thelower courts—without sufficient experience, the appeal court might detect false regularities andhamper the development of the law in a manner similar to the three landlord and tenant casesdiscussed above. Finally, the courts are becoming openly post-modern in their recognition ofhow the conceptual schema of language impairs the expression of the experiences of oppressedgroups in the social order.Pathway to a Postmodern JurisprudenceBy examining how law operates as a complex adaptive system, the underlying relationshipamong the various theories of jurisprudence becomes clearer. Positivism focuses on themechanics of doctrinal rules with little regard for their teleology and tends to overstate the needfor stability and the quality of knowledge achieved. Legal realism focuses on law's effect on thesocial order, with little regard for the coherency of legal decision-making. Critical studies and36 General Motors of Canada v. City National Leasing (1989), 58 D.L.R. (4th) 255 (S.C.C.).37 Proportionality will be discussed in detail in chapter ten of this thesis.144LAW AS COMPLEX ADAPTIVE SYSTEMpsychoanalytic-sociology examine sources of positive feedback that lock-in law to suboptimalschema, but these approaches tend to excessively discount the quality of knowledge achievedand overlook the legitimate need for stability in a complex adaptive system.A postmodern theory of jurisprudence would map the topologies of the complexadaptive subsystems most affecting the task of law. An important result would be amethodology to demonstrate how and to what extent the legal schemas exhibit manifest error—whether from inability to fully model the social order (inherent lack of expressive power), lock-ins due to social-power relations, lock-ins due to social-subconscious influences, or lock-insdue to the nature of language.145Chapter 8IdeologyOnce we have appreciated that society comprises many social orders that constitute theunconscious behaviour of its citizens, the concept of ideology should become an indispensableaspect of a theory of law. We saw in chapters five and six that while Nietzsche and Foucaultobserved the insidious mechanics of social constitution, they failed to develop criteria todistinguish undesirable social orders from desirable ones. Nietzsche provided guidance as tohow to evaluate self-creation, but none as to how to evaluate social orders in terms of collectivegoals. A theory of law must employ constructive postmodernism to evaluate knowledge claimsabout social orders so that we can construct a useful working definition of ideology. Usingideology as an analytical tool, a theory of law can begin to identify undesirable intuitivebehaviour and develop plausible re-engineering strategies.Ideology plays a major role in critical analysis; however, a single, coherent, adequatedefinition of ideology has remained elusive.' Roughly, to criticize someone as being ideologicalis the social science equivalent of criticizing a physical scientist as being unscientific. A chargeof ideology, however, is more serious—it goes beyond mere factual error and implies moralshortcoming in a person's position, specifically with respect to allocation of power withinsociety. A definition of ideology must therefore address the distribution of empowermentamong people in a society, consider the quality of the knowledge claims implicit in utterancesand gestures, and indicate how standards of what constitutes knowledge and empowerment aremediated through the use of language and other means of signification in social practice. Therange of ways in which critical scholars use the term ideology reflects the range of philosophicalpositions on what types of empowerment matter or how knowledge is constituted.It is difficult to construct a definition of ideology that is both philosophically coherentand useful. The contingent structures comprising any particular social order (including itsphilosophical presuppositions) to a large degree constitute what qualifies as empowerment and1 Terry Eagleton, Ideology, An Introduction (London: Verso, 1991) at 1.146IDEOLOGYknowledge claims in that social order. Critical analysis uses working definitions of ideologybased on the standards of knowledge and empowerment claims in the contemporary discourseof academia. As a result, many critical stances construct operating definitions of ideology thatcovertly presuppose contingent philosophical standpoints about empowerment and knowledgethat the participants do not feel disposed to challenge. Since many critical stances emerged in asocial order constituted by modernism, these stances failed to examine their own dependence onthe modernist world-view. Thus classical Marxists operate with a microreductive definition ofideology that measures empowerment in terms of class control over material resources andmystification in terms of variance from a fixed universal truth. Critical methodology oftenadopts a knowledge pessimistic stance toward select foundational elements of the world-viewbeing critically examined—for example, arguing that liberalism has wrongly universalized animpoverished, individualistic conception of human nature—without critically examining its ownself-evident truths. I call this "credit-card anti-essentialism"—the critical scholar is knowledgepessimistic until the preset spending limit has been reached. On the other hand, critical scholarswho have embraced deconstructive postmodernism on issues of empowerment and knowledgehave produced operating definitions of ideology that are vacuous and politically toothless.2Postmodern Construction of KnowledgeComplexity theory shows how to acquire teeth without submitting to the illusion ofmodernism—knowledge optimism. Eagleton, for example, retreats into the modernist utopianfantasy that a "just" society is not only well defined, but is achievable in principle and that oncejustice was achieved, ideology would disappear.3 Complexity theory implies that "just" can beno more well defined than could be the notion of an optimal evolutionary being—optimality canbe defined only in terms of an existing evolutionary landscape, the being can only seek to2 Eagleton, Ideology, at 7-10.3 Eagleton, Ideology, at 28.147PROLEGOMENA TO A POSTMODERN THEORY OF LAWimprove its position in that landscape, and the landscape will change unpredictably due to theside effects of the being's change of position. Likewise, justice can be defined only in terms ofcurrent social context and we can only seek to improve justice, not aim for some fictional,universal standard. Applying Eagleton to Eagleton, by being knowledge optimistic about what"just" means, he promotes a value congenial to himself in the form of a naturalized anduniversalized mystification.4As noted, a difficulty with deconstructive postmodern stances is they provide nostandard by which to measure the relative importance of power struggles or competing interests.Put another way, a modernist cannot understand how to measure relative empowerment andcreate a prescriptive egalitarianism in the absence of fixed universal truths, that is, without beinga knowledge optimist. A deconstructive postmodernist usually proposes pragmatism (i.e.,trivializes or downplays the problem), or resigns to nihilism, despair or radical subversion.From the standpoint of complexity theory, the problem of creating a standard to measureempowerment originates from the impossibility of achieving knowledge optimism whereversystemic behaviour emerges in a social order. It is well and good to be ironically aware that ourmodels of social orders use non-unique, fuzzy conceptual schemas that can only achieveprobabilistic accuracy, and to be aware that to the extent the models are inaccurate ourknowledge is mere construction.5 However, our urbane irony yields negligible cash dividendsbecause we have no general means of knowing precisely how the causal descriptions are or willbe inaccurate. Moreover, it is not just a matter of eventually discovering accurate causaldescriptions—at some point it is in principle impossible to improve the precision of what weknow about social orders.What is possible is to fashion schemas of social orders and the causal relations amongthem that reduce the negative impact of the inherent inaccuracies. The schema of knowledge canbe re-engineered so that the vague, fuzzy concepts upon which it is constructed models the4 Eagleton's six strategies of legitimation could be applied to his own position. Eagleton, Ideology, at 5-6.5 Though constructed, the knowledge is constrained by coherence and performance imperatives imposed bybiology and the particular social orders through which we are constituted. See the discussion in chapter six of thisthesis.148IDEOLOGYsocial order with adequate accuracy, but also plays within the fuzziness so as to more optimallysatisfy the needs and desires of the citizens. This can happen in at least two ways: selectconcepts and activities to exploit what is knowable, and use the inherent imprecision toaccommodate values other than factual accuracy.Scientific inquiry, for example, has historically avoided chaotic systems and focused itsstudy on reductive systems.6 But even where systems are chaotic, we can construct conceptsand activities so as to decrease reliance on the chaotic aspects. We achieve practical progress bydesigning technologies that emphasize what we can predict and rely on our capacity to respondto unpredictable events. For example, we know that turbulence in a stream is chaotic and thatwe cannot predict it with precision. Nonetheless, canoeing is a useful technology that copeswith the unpredictability of turbulence by exploiting what we can predict (buoyancy andpaddling response in still water), and by observing and responding in real time to what wecannot predict, generalizing our experience into probabilistic rules of thumb. We simply do notattempt to design technologies that would depend on accurate prediction of eddy formations.Similarly, we can engineer systems of knowledge to achieve more optimal overall satisfaction ofour needs and desires.Another example of engineering around inherent uncertainty is how we might choose toreact in an encounter with a tiger in the jungle. We could either run in all cases (and riskneedless flight in the case of a friendly or sickly tiger) or in each case we could attempt todiscern whether the tiger was a threat. In this example it would appear to be more optimal toadopt the former attitude. Replace "a tiger" with "a foreigner." Viewed in isolation, theprejudicial reaction is plausible—people are less capable of predicting personality outside theirown culture. We adopt innumerable presumptive attitudes to deal with uncertainty, whichbecome conceptualized in language and form the basis for hierarchies of further choices. Ourdiscourse emerges as a web of inter-related causal descriptions and conceptualizations ofpresumptive attitudes. As the discourse matures and refines itself, the discourse reshapes the6 Ian Stewart, Does God Play Dice? (Oxford: Basil Blackwell, 1989). See also the discussion in chapter four ofthis thesis.149PROLEGOMENA TO A POSTMODERN THEORY OF LAW"original" presumptive attitudes to account for new needs and desires that emerge from thediscourse. Thus, returning to our modified example, in view of the evolving constraints ofsharing a global community, it now appears more optimal to reverse our prejudicial attitudetoward foreigners, even though the new attitude would not necessarily represent reality anymore accurately and could even be less accurate.Stated in the language of complex systems, a knowledge system cannot model a socialorder with total precision. The schema for the knowledge system could be any of an infinitevariety of equally valid, but incompatible forms. The imprecision allows the system toexperiment to improve the factual accuracy of its schema. Imprecision also allows the schema torespond to other fitness function criteria other than factually accurate modeling of the socialorder and to optimize in terms of other fitness functions in society. But imprecision also leavesroom for knowledge schemas to become the unwitting vessels of rigid concepts that perpetuateundesirable, evolved social orders or of other lock-ins that unduly favour certain socialsuborders to the detriment of society as a whole. As noted in chapter seven, the fitness functionof the class can conflict with that of individuals outside the class or society as a whole. Eventhough society as a whole is worse off, the members of the privileged class are better off.Moreover, unwarranted knowledge optimism in the discourse can dupe non-members to acceptor tolerate the injustice.The crucial point for present purposes is that we can meaningfully speak of overallimprovement of a knowledge schema without requiring an absolute, universal standard tomeasure correspondence with reality. We can train competent canoeists even though we cannotcreate a precise theory of turbulence. With discourse, however, belief systems are much tooself-integrated for critics to easily measure the relative success or failure of isolated causaldescriptions and the presumptive attitudes they serve. Philosophy of science has been relativelysuccessful in developing methodologies for testing isolated causal descriptions,7 but Kuhn andFeyerabend have shown that even scientific progress is a complex system that eludes any7 Richard Boyd, "On the Current Status of the Issue of Scientific Realism" (1983) 19 Erkenntis 45-90.150IDEOLOGYuniversal methodology.8 In the realm of social sciences, hierarchies of complex social systemsabound and the strategy of selectively focusing on solvable problems in which to test isolatedcausal descriptions has been a much less useful method of minimizing the impact of unavoidableknowledge gaps about chaotic systems.9We have no means to measure success or failure from outside our existing web ofbeliefs and practices, our discourse. How do we measure the appropriateness of a knowledgeschema without the possibility of knowledge optimism? The measure of appropriateness cannotbe factual accuracy. For one thing, we have no transcendental perspective to evaluatecorrespondence to reality. Moreover, factual accuracy is just an especially empowering means tosatisfy our needs and desires—it is but one aspect of the fitness functions constrainingindividuals, society and groups within it. The more accurately our descriptions can predictphysical reality, the better we can devise physical technologies; the more accurately ourdescriptions can predict social reality, the better we can devise instrumental social technologies.We do not seek factual accuracy for its own sake—it matters only because it is very useful insatisfying, or providing additional means to satisfy, our needs and desires.Merely identifying the problem of evaluating the schema of a discourse as being how tosatisfy more optimally our needs and desires does not simplify the problem. As alreadydiscussed in chapter six, social orders to a great extent constitute our desires. Unique needs anddesires could only exist in the context of a particular discourse. How could we know whether alocally optimal satisfaction of all needs and desires in one discourse would be more optimal thanmodifying the discourse so as to substantially reshape and reconstitute the very needs anddesires by which optimality would be measured?8 Thomas Kuhn, The Structure of Scientific Revolutions, 2nd ed. (Chicago: University of Chicago Press, 1970);Paul Feyerabend, Against Method (London: Verso, 1978); Paul Feyerabend, Farewell to Reason (London: Verso,1987).9 Economics, the dismal science, has been criticized from within as focusing only on those phenomena for whichit has a mathematics (the economics of diminishing returns) and ignoring complex phenomena. See M. MitchellWaldrop, Complexity—The Emerging Science at the Edge of Order and Chaos (New York: Simon & Shuster,1992). In other words, economics has "excluded" unwelcome features of social reality, exposing the discipline tocriticism for being ideological insofar as diminishing returns economics promotes a capitalist conceptualizationof economic activity. See Eagleton, Ideology, at 5, 27.151PROLEGOMENA TO A POSTMODERN THEORY OF LAWDefining empowerment as the ability to satisfy needs and desires does help clarify therelationship between power and knowledge. Factual accuracy is clearly an important aspect ofempowerment—it results in technological empowerment and it clarifies how biological needsand desires can be more optimally satisfied or reshaped. However, because there is necessarilya gap between the factual accuracy of discourse and the reality of social orders, and because thatgap partly constitutes what qualifies as empowerment, power cannot be reduced to factualaccuracy.But even in the absence of absolute standards, we can be certain that the knowledgeschema in our discourse is accurate to a useful degree. Because of the technological success ofmany sciences, we can justifiably be confident that within their domains of applicability, thesesciences have achieved a high degree of accuracy beyond randomness. 10 We can relate these toobvious biological needs of humans (food and shelter) and confidently develop a set of minimalcriteria for empowerment. To the extent we share the same biology and basic desires, there is acontingent common ground from which to construct demands for a minimal degree of mutualempowerment. 11Attempts to achieve consensus beyond obvious physical needs have been notoriouslycontroversial. Each political philosophy offers its version of human nature and basic humanneeds. Consensus is elusive because early childhood experiences shape the humansubconscious into myriad forms, creating, for example, neurotic needs for social connection121° Davidson argues that the fact language works logically implies that we must have a core of fairly accuratebeliefs about reality. Donald Davidson, Inquiries into Truth & Interpretation (Oxford: Clarendon Press, 1985).11 This presumes there is sufficient common ground to accept egalitarianism as a constraint. This thesis does nottake up the task of defending egalitarianism, which is acknowledged to be a non-trivial issue.12 Peter Gabel refers to social connection as "vitalizing inter-subjective recognition." Peter Gabel, "ThePhenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves" (1984) 62 Texas Law Review1563-1599. See also Peter Gabel and Paul Harris: —The nature of this alienation is best described as the inabilityof people to achieve the genuine power and freedom that can only come from the sustained experience of authenticand egalitarian social connection." "Building Power and Breaking Images: Critical Legal Theory and the Practiceof Law" (1983) 11 New York University Review of Law and Social Change 369-411 at 371. Ed Sparer describeshis personal experience of this neurotic condition: "I shared their passions and felt my own spirit to be alive. Yetmy spirit seemed to transcend myself. I had become part of a larger whole. I had found 'community' and'solidarity.— "Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique ofthe Critical Legal Studies Movement" (1984) 36 Stanford Law Review 509-574 at 542. For a discussion of theneurotic aspects of group bonding and the Heraclean complex (the brotherhood of the collective), see J.C. Smith,The Neurotic Foundations of Social Order—Psychoanalytic Roots of Patriarchy (New York: New YorkUniversity Press, 1990) at 117.152IDEOLOGYor individualistic achievement.13 People who share common neurotic needs adhere to politicalphilosophies emphasizing those aspects of "human nature" most true to them. An appeal to whatwe confidently know about human nature, therefore, does not advance significantly ourproblem of evaluating the knowledge schema in a discourse.These difficulties, however, compel humility, not resignation. We can make progress inmuch the same way we construct a meaningful interpretation of a literary work. When weinterpret a text we continually refine our understanding (looping around the hermeneutic circle),constructing an interpretation that minimizes dissonance with the text and provides insight into,and even modifies, the understanding of the world we bring to the text. We never know forcertain whether our interpretation of a particular trope in the text is correct; we gain confidenceas dissonance is reduced and our understanding more sensibly coheres with the text and ourexperience. Constructing an interpretation is like spinning a web—the strength of the webcannot be reduced to a few privileged foundational strands. The web's strength derives fromhaving innumerable contacts with external reality (empirical observations) and a well-engineeredpattern connecting them (discourse). Improving discourse and the social order is a Lilliputiantask; human rationality is too inept to intelligently impose a Leviathan approach. 14In terms of complexity theory, a discourse is a complex adaptive system for satisfyingthe fitness functions for individuals, society and groups within it—it empowers. The primeinstrument for maximizing overall satisfaction is factual accuracy—knowledge. But knowledgeschemas also mediate the conflicting fitness functions of individual, society and groups withinit—they allocate power. The discourse evolves as a complex adaptive system by frequentlytesting its relationship to reality to improve its satisfaction of the operative fitness functions. Thecurrent state of discourse provides a plausibility function for interpreting empirical observationsand testing the viability of the discourse. Indeed, the discourse is the only plausibility functionavailable, since humans have no privileged access to reality apart from constructed discourses.13 Alice Miller, "Depression and Grandiosity as Related Forms of Narcissistic Disturbance," in The Drama of theGifted Child—The Search for the True Self (New York: Harper Collins, 1990), chapter 2.14 The metaphor is from Stephen Toulmin: "If the political image of Modernity was Leviathan, the moralstanding of 'national' powers and superpowers will, for the future, be captured in the picture of Lemuel Gulliver,waking from an unthinking sleep, to fmd himself tethered by innumerable tiny bonds." Cosmopolis—The HiddenAgenda of Modernity (Chicago: University of Chicago Press, 1990) at 197-198.153PROLEGOMENA TO A POSTMODERN THEORY OF LAWThis is a version of a pragmatic, coherence theory of truth. Coherence defines what truthcan be for participants in the discourse because the participants have no means of measuringfactual accuracy directly. Our language includes truth statements about what empowers us. Thuswe have in our language justification for making evaluations of empowerment and the basis forrhetorical argument. However, insofar as our argument transcends the domains of differentcomplex systems (which includes almost all of social sciences and more of the physical sciencesthan we have so far admitted), we must argue with humility and accept that the force of ourassertions is always rhetorical.15 Argumentation involves generalizations that we assert willcontinue to match experience and can be applied by analogy to different domains. The coherenceof language provides a measure of the plausibility of such strategies, but analogy and coherencenever guarantee correspondence with reality—modernism universalizes pathologically. Thedegree of plausibility provides the only available basis we could have to evaluate arguments.This includes plausible claims about the needs and desires of people in a society and, therefore,claims about the relative importance of power struggles. A definition of ideology that avoidsmodernist illusions need not be toothless—modernists just want to bite off more than they canchew.Toward Egalitarian EmpowermentSince we have an available strategy for measuring empowerment, we can address allocation ofpower. Egalitarianism argues for equal distribution of empowerment. Within a single discoursewe can therefore generate competing arguments of comparable strength as to whetherempowerment is unequal and the reasons for the inequality. Evidence of unequal sufferingsupports a forceful argument that the discourse should be re-engineered. Nevertheless, the15 Chaim Perelman and L. Olbrechts-Tyteca, The New Rhetoric—A Treatise on Argumentation (Notre Dame,Indiana: Univ. of Notre Dame Press, 1971); Chaim Perelman, The Realm of Rhetoric (Notre Dame, Indiana:Univ. of Notre Dame Press, 1982); Stephen Toulmin, The Uses of Argument (Cambridge: Cambridge UniversityPress, 1958); Stephen Toulmin, The Place of Reason in Ethics (Chicago: University of Chicago Press, 1986);Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry—A History of Moral Reasoning (Berkeley, CA:University of California Press, 1988).154IDEOLOGYavailability of meaningful argument does not mean that egalitarian issues can be simplyresolved. Causal links are difficult to establish—does soft pornography diffuse or amplify malesexual aggressiveness? The standards of plausibility in argument itself therefore haveimplications for allocation of power.We can provisionally define ideology as the unwarranted but plausible manipulation ofthe suppleness of argument merely because it affects the allocation of power in a non-egalitarianmanner. The manipulation can either be consciously intended or a teleology created a posterioriby selective pressures implicit in the structure of the situation.16 It is insufficient for a critic toidentify an argument as ideological simply because it is rhetorical in form (it is naturalizing,universalizing, exclusionary, etc.). A critical analysis should identify to what extent theargument is plausible, discover how it exceeds its plausibility, and expose how this excessrelates to the ideologue's interests in allocation of power.For example, arguments in favour of hierarchy are criticized as ideological. Argumentsfor hierarchy are rhetorical (since social organizations are complex systems) and the result ofimplementing hierarchy has manifest consequences for allocation of power. However, hierarchyis plausible as a pragmatic solution to the problem of the information and transaction costs ofattempting to reach group consensus in a context constrained by time or other budget pressures.A software project requiring thousands of programmer-years of effort could not realistically becompleted in a reasonable time frame without authoritative budgeting decisions made by lessthan all of the programmers involved. The decision would be better made by a manager (or,more realistically, a management team). The decision-maker(s) would preferably have expertisein making such decisions, creating a sensible division of labour. On the other hand, theauthority of a manager in budget decisions could not justifiably be extended to theprogrammers' baseball team. Such an extension of hierarchy would be unwarranted and an16 Much in the same way the structure of competition creates a teleology for phylogenetic survival in evolution.See Mark A. Bedau and Norman H. Packard. "Measurement of Evolutionary Activity, Teleology, and Life," inArtificial Life II, eds. Christopher G. Langton, Charles Taylor, J. Doyne Farmer, and Steen Rasmussen, SanteFe Institute Studies in the Sciences of Complexity, vol. 10 (Redwood City, CA: Addison-Wesley, 1992), 431-461.155PROLEGOMENA TO A POSTMODERN THEORY OF LAWargument that the software manager should, ex officio, be manager of the baseball team wouldbe plainly ideological.17Any top-down justification for the allocation of power will probably be ideological ifthere exists a plausible, alternative, bottom-up justification. Applied to the problem of judiciallegitimacy, legitimacy only exists to the extent it follows from factors such as the experience andexpertise of judges, the fact people take a formal dispute-resolving procedure more seriously,and the benefits of more predictable outcomes. Liberalism justifies authority by an appeal to theabstract notion of social consensus. Liberalism thus compounds unjustifiable knowledgeoptimism in both directions—going up to the abstraction of social consensus, and coming downthrough the concept of legitimacy. Because there are more plausible justifications for a lessembracing concept of legitimacy, any oppressive effect of liberalism caused by its unjustifiablyexpansive concept of legitimacy is ideological.Our provisional concept of ideology must be further refined to account for the fact thatthere are multiple discourses, even within a single community. We lack absolute means ofknowing how empowered a person is whose experiences are constituted by a differentdiscourse. For example, an autistic person may have a very strong need to possess an object inorder to maintain a sense of control and orientation within the environment. The dominantdiscourse might adopt the attitude that people in a group should share possession of objects, andlack any recognition that the experience of losing control of an object could be fundamentallydis-empowering to someone. Such a discourse would view removal of the object as a trivial dis-empowerment. Forcing the autistic person to share possession would be unjust andinegalitarian. However, this judgment assumes we could view the situation from a bird's-eyeperspective and presume all other things to be equal. But a bird's-eye perspective is, inprinciple, impossible. A non-autistic person could only come to perceive the inegalitariantreatment by empathizing with the plight of the autistic person and expanding the dominantdiscourse to account for autistic experiences. The non-autistic person must commensurate the17 Of course there could be independently good reasons, such as the manager's extensive experience as aprofessional baseball manager. These collateral arguments should not be called ideological, even though theyaffect allocation of power.156IDEOLOGYclashing discourses. The non-autistic person could only empathize by inferring from thestrength of reactions common to both discourses that possession is very important within thereality of the autistic person. If the autistic person did not display negative emotions in a mannerintelligible to a non-autistic person, the non-autistic person would be inadvertentlyoppressive. 18But to characterize inadvertent oppression as inegalitarian presumes there is sufficientcommon ground between the discourses to be able to say the suffering of one isdisproportionately worse than the other. The results of Donald Davidson's work are importantin this respect. As noted above, Davidson argues that the fact we can successfully translatebetween languages logically implies we share a core of common meaning based on commonexperience.19 The existence of common ground affords the practical solution to the problem ofcommensurating different discourses. In attempting in good faith to empathize with otherexperiences, we have a pragmatic strategy to expose inadvertent oppression. Logically, weknow that no universal translating algorithm could exist, but the strategy of empathizing in goodfaith has yielded good practical results.The problem of commensuration is similar to the legal problem of conflict of laws.Fixed rules lead to contradictions and manifestly unjust results—the unlimited range of plausiblelegal solutions to social goals makes it impossible to specify a universal methodology with anyprecision. Ideally, a judge would attempt to understand why an issue is important in the otherlegal system and to gain some feeling for how important it is. Only then could the judgeengineer a legal result that could optimize the satisfaction of each state's interests. In the finalanalysis, the judge is allocating power. The wisdom of the result depends on how much thejudge has been able to empathize and how successfully the judge applies these insights withinegalitarian constraints.18 In the film Lorenzo 's Oil (United States, 1993), the mother of a child who was unable to communicate forseveral years, eventually discovers that she had been oppressive to her son by continuing to read children's storiesappropriate to the age of her son when he lost his ability to communicate. The oppression could only be detectedonce the child could signify displeasure in a manner intelligible to the mother.19 Davidson, Inquiries.157PROLEGOMENA TO A POSTMODERN THEORY OF LAWGeneralizing this to any dispute between non-homogeneous persons, the prime qualitywe could want in a judge is the capacity to empathize. Given that Canadian judges are typicallychosen from a pool of chronic over-achievers who need to succeed in order to maintain self-esteem, and given that inability to empathize is characteristic of over-achievers,20 and given thatthis condition is aggravated by the extremely narrow range of experience and homogeneousbackgrounds of such people,21 we would have to conclude that the selection procedure forCanadian judges is seriously defective. As noted in chapter six, in Nicomachean Ethics Aristotleasserted that empathy was essential for the "large-spirited person" to successfully engage inpractical reason.Many critical scholars have pointed out the seriousness of this lack of capacity forjudicial empathy. Carol Smart, for example, shows how male-oriented thinking simplifies awoman's experience of being raped and creates legal categories that are too simplistic.22 A courtwill acquit a rapist if it deems the woman to have consented, or if it has any reasonable doubtwhether she consented. The dichotomy of consent and non-consent is far too simplistic tocapture the precarious position a woman typically finds herself in. She may seek intimacy, yetnot sexual intercourse. She may accurately perceive a very real threat of violence and have tosubmit and feign consent, pleasure or at least not resist. Yet the dichotomy of consent and non-consent fails to capture these dynamics. In terms of complexity theory, this embarrassing failureof law is not the fault of the structure or logic of law. As discussed at length in chapter seven,legal doctrine is typically inadequate in responding to all the values involved in a concretesituation. In this situation judges are supposed to draw on intuition to sense the inadequacy ofthe doctrine and should either bend the doctrine to achieve the right result or create newexceptions to refine the doctrine. The consistent, blatant failure of the judiciary exposed byCarol Smart and others is clear evidence of ideological barriers preventing the judiciary fromempathizing with women's experiences and responsively reshaping the law. The misogynistic2° Miller, The Drama of the Gifted Child, chapter 2.21 Joel C. Bakan, "Constitutional Interpretation and Social Change" (1991) 70 Canadian Bar Review 307-328 at319.22 Carol Smart, Feminism and the Power of Law (New York: Routledge, 1989), chapter two. The followingdiscussion merely considers one aspect of Smart's much more complete analysis.158IDEOLOGYpatriarchal ideology has been well studied. I only add my earlier observation that those with aneurotic drive to achieve typically lack a capacity to empathize, particularly with those whosuffer under tyranny.23 Loading the judiciary with hard-driving, verbally abusive, grandiose,litigation lawyers is not the prescription for egalitarian justice.The importance of empathy has been re-emphasized in recent years under the banner ofpragmatism,24 but it should be noted that empathy is a necessary and not a sufficient conditionfor social evolution toward egalitarianism.25Egalitarianism will usually be more difficult to achieve than simply empathizing andfavouring the party most hurt in a particular dispute. We have to heed Hayek's advice andconsider the possible effects of such changes on the emergence of desirable social orders. Theentire social context must be considered—for example, implementing a guaranteed annualincome scheme might make more sense than the chaos caused by relaxing the law of theft.26As well, not all conflicts about allocation of power can be neatly adjudicated so as tomaximize equality of empowerment in a manner that can be justified in the language of each ofthe respective discourses. At some point the possibility of commensuration is exhausted and theparties simply haggle for greater power. Ideally, the outcome of the negotiation would reflectthe resolve of each participant where resolve reflected the acuteness of the parties' needs forgreater empowerment. The parties disagree on principles, but reach a treaty as to how to sharepower. They would then entrench the negotiated allocation of power into their respectivediscourses through rules, myths or other modifications of discourse. These rules need not haveany direct purpose in modeling reality, they need only cause the groups to respect the negotiatedallocation of power.Unfortunately, existing power imbalances tend to distort the outcome of suchnegotiations.27 The parties to the negotiation must have minimal empowerment in order to be23 See comments regarding Nietzsche and his blindness to tyranny in chapter five of this thesis.24 Richard Rorty, Contingency, Irony, and Solidarity (Cambridge. Cambridge University Press, 1989).25 Bakan, "Constitutional Interpretation," at 326-327.26 Institutional competency would be an issue if the courts were presented with these alternatives. The courtshave very limited ability to reallocate power except piecemeal in response to narrowly framed questions.27 Not all negotiation problems necessarily result from power imbalances. For example, cultural differencesmight result in persons from one culture being disposed to understate their needs, while the opposition mighttend to overstate theirs.159PROLEGOMENA TO A POSTMODERN THEORY OF LAWable to state their needs with resolve. Oppression typically undermines the resolve of theoppressed and silences their voice at the table. It is a Catch-22 situation, the oppressed have tobecome empowered before they are empowered enough to voice their experiences and becomepart of the discourse (and part of the rationality that frames the language of moral argument).Obviously the oppressed must acquire power by other means before they can expect any benefitfrom rhetorical (rational) argument or negotiation—whether by acquiring technology, byacquiring economic power, by mobilizing sympathy in powerful third parties, by terrorizing.The available strategies for empowerment are generated by the contingent social context.The pragmatic problem of measuring relative empowerment is therefore not asintractable as is the philosophical one. The real-world constraint that a discourse must produce aviable social order ensures that human discourses overlap enough so that we are, with effort,generally capable of detecting symptoms of oppression and systemic dis-empowerment.Moreover, our increasing understanding of the subconscious mind assists us in exposing"false" needs and desires deriving from the subconscious symptoms of obvious forms ofoppressive childhood trauma. Experience shows that we share sufficient commonunderstanding to make considerable practical progress before we became philosophicallybogged over knowledge uncertainty.28 Eagleton is therefore not justified in scurrying for coverunder the modernist umbrella in order to legitimate critical analysis.Defining IdeologyLet us now attempt to define ideology with some precision.Our first attempt is to define ideology as the gap between discourse and factualaccuracy—ideology based on a correspondence theory of truth. To sharpen our definition, wecould bifurcate factual accuracy into correspondence with physical reality and correspondence28 Of course the possibility of progress does not ensure progress. Those enjoying the benefits of ideologicalallocations of power are rarely embarrassed by arguments that expose inegalitarian oppression. See Balcan,"Constitutional Interpretation," at 327-328.160IDEOLOGYwith social reality to reflect the fact that discourse partially constructs the phenomena to whichempirical statements about society relate. Three problems with this definition are immediatelyapparent. First, there are no means to measure the gap—no critical analysis of an ideology couldmeaningfully compare discourse to the way the world really is. Second, this definition wouldcall all discourse ideological because knowledge gaps pervade all discourse about the socialorder—knowledge optimism is nearly always false in relation to social phenomena. Third, theunavoidable fuzziness of knowledge about social orders and other complex systems is importantso that the discourse has enough "play" to be able to experiment, develop complexity andthereby continually improve its satisfaction of its multiple teleological constraints.Our second attempt is to define ideology as where a speaker uses language in a mannerincoherent within the discourse shared between speaker and critic, or at least within thespeaker's own discourse—ideology based on a coherence theory of truth. 29 This would capturethe falseness, distortion and mystification referred to by false consciousness definitions ofideology.30 To accommodate evolution of the discourse, the standard of coherence should notbe pathologically strict. The problem with this definition of ideology is that it is not helpfulwhere discourses are not homogeneous and allocation of power cannot be finessed by commonstandards of plausible argumentation.This leads to a third attempt to define ideology based solely on allocation ofempowerment. Ideology is interested in allocation of power through the process of producingideas, beliefs and values in social life, that is, through the use of discourse for manipulatingpower relations. But allocation of power per se is not a bad thing. Two cultures withuncommensurated discourses may sensibly negotiate a treaty that each side respects by addingincoherent myths that do not accurately represent factual reality to their respective discourses.This leads to our ultimate attempt at definition: ideology is the bad-faith use ofdiscourse-related tactics by an oppressor to dis-empower people where there is a coherentjustification from within the oppressor's discourse not to do so. "Bad faith" as used in this29 The term "speaker" here includes someone who performs a social practice that conveys meaning with the sameeffect as speaking.30 Eagleton, Ideology, at 10-18.161PROLEGOMENA TO A POSTMODERN THEORY OF LAWdefinition includes failure to make a reasonable effort to empathize with the oppressed, wherereasonableness is a function of how obvious it should be from the standpoint of the oppressingdiscourse that it is causing noticeable discomfort to the oppressed. This definition might appearsomewhat odd because a concept would not be ideological until there was good reason (fromthe perspective of the oppressing discourse) to believe that the concept causes oppression. Theoddity is necessary, otherwise all discourse would be ideological because a perfect discoursecould never be achieved. The "good reason" standard changes as the quality of knowledgeimproves as the schema of the discourse is constructed.The intuition behind this definition of ideology is that one is being ideological once thereare justifiable grounds to say one should know better. If a colony of aliens stranded itself onearth and we could not understand them, it would be pointless to say we were being ideologicalwhen we said, "You just can't please those aliens." But once we have justification to suspect weare causing them great suffering, our statement would indicate lack of genuine desire toempathize and would be ideological. We would either be deluding ourselves,31 or we wouldlack genuine desire for egalitarianism.Our definition of ideology also accommodates the possibility of ideology by non-dominant discourses. Persons in a non-dominant discourse are ideological when they performspeech acts that are unjustified within their own discourse. For example, a critical scholar mightadvocate the abolition of legal rules when, as is argued in this thesis, the use of rules can bejustified in the critic's own discourse. At first glance this may appear to be too strict and undulycritical of morally defensible, rhetorical civil disobedience done for the purpose of correcting amanifest power imbalance. However, the solution for the non-ideological scholar is to weavethe empirical observation of unfair suffering into the discourse, from which a non-ideologicalargument could then be made. Of course, an activist may well choose ideology as a means tofacilitate political change, but it remains ideology nonetheless.31 For example, people might adopt fantasies in order to allow them to satisfy subconscious sadistic desires thatexist because their helplessness as a child had been abused. See Alice Miller, For Your Own Good: HiddenCruelty in Child-Rearing and the Roots of Violence, tr. Hildegarde and Hunter Hannum (New York: NoondayPress, 1990).162IDEOLOGYThis definition of ideology is true to the intractable nature of ideological battles; theyresult from the difficulty of proving that there are causal links from concepts in a discourse toparticular miseries suffered by the oppressed, and the ease with which causal links can berhetorically denied. The standard of proof one requires will clearly be a matter of debate andone's charity will be colored by self-interest. The "bad faith" element captures this. A good faithattempt at egalitarianism requires empathy, which may require that one relax one's standards ofproof or disproof.Finally, the requirement for bad faith in our definition does not restrict itself to self-conscious ideological activity. On the other hand, it avoids calling an activity ideological merelybecause the activity has an effect on allocation of power. "Bad faith" includes any unwarrantedmanipulation of the suppleness of argument that occurs because it affects the allocation of powerin a favourable manner, whether the manipulation occurs consciously or it occurs because of ateleology created a posteriori by selective pressures implicit in the structure of the socialsituation. In other words, if the ideology functions as a self-reinforcing mechanism to a socialorder that is undesirable in kind or in degree, then the bad faith element of the definition hasbeen met. But of course we cannot say bad faith is present until the self-reinforcing effect isdiscoverable within the discourse.Using the Definition of IdeologyIn chapter five we briefly noted that deconstructive postmodernism should involve three tasks:(1) identify false knowledge optimism, (2) identify the sources of self-interest that motivate thefalse optimism, and (3) identify what induces those who do not share the same satisfaction ofself-interest to adhere to or tolerate the false optimism.The concept of "decadence" signifies the process where an individual clings to falsebeliefs because they serve false subconscious needs. The distinctions between true beliefs andfalse beliefs, true needs and false needs are problematic—the distinction is as changing and as163PROLEGOMENA TO A POSTMODERN THEORY OF LAWimprecise as the constructed knowledge that improves but can in principle never achieveknowledge optimism. Ideology is correspondent to decadence—ideology applies to therelationship between the individual and social orders; decadence applies to the relationshipbetween the individual and subconscious orders.Constructive postmodernism concerns itself with the construction and quality of evolvedknowledge. It considers to what extent knowledge is falsely optimistic; it recognizes thatknowledge pessimism about ideological positions is rarely justified. Some critical scholars havenoted that successful ideological positions must contain some element of empirical validity,otherwise it would be unlikely that others would adhere to or tolerate the ideology. 32 It is tritenegotiating lore that the other side is unlikely to negotiate in good faith while under theimpression that its concerns have not been understood. This may help explain the rhetoricalimpotence of critical scholarship. Put simply, they overstate their case. So long as they do, theideologues will only incrementally relent with trepidation.The courts are in a similar position. In chapter seven we saw that the post-AskovSupreme Court of Canada is very wary about screwing up important social orders. It is well andgood to show how the institution of private property contributes to oppression and arguablyviolates the Canadian Charter of Rights and Freedoms. However, private property is useful formany reasons, and until critical scholars can show to what extent private property is useful orhow its utility can be otherwise met, we can expect and do see only incremental erosion ofproperty rights through taxation and regulation in response to social goals.Courts are particularly ill-suited to making non-incremental changes since they havevirtually no capacity to foresee the effects of change on the social order. The information costsare too high for the litigation process, which is already prohibitively expensive for most. Thelegislative process is much better suited to commissioning in-depth studies about the potentialeffects of non-incremental change. Courts will only make such shifts once facts becomerelatively undisputed within the scientific community, legal scholarship, or have otherwisepercolated to the level of common sense. Thus years of feminist scholarship have now made it32 Eagleton, Ideology, at 12.164IDEOLOGYcommon sense that obscenity is objectionable because its degrading images of women andchildren promote oppressive conduct.33 Of course revulsion toward obscenity was alwayspresent as an unarticulated tradition. However, because this tradition lacked an articulatedjustification, it incrementally eroded under pressure from "progressive" civil libertarians whobranded censorship laws as unjustifiably prudish. Obscenity laws suffered incremental erosionuntil the extent of their utility could be articulated in feminist discourse.34I am not advocating Hayek's extreme position that tradition is inviolable and law-makersshould only legislate to entrench libertarian values. However, legislatures and courts mustconsider the limits of their institutional competence. Presented with evidence of oppressiveeffects, they must experiment to reverse the oppressive effects, but courts in particular mustlimit themselves to incremental experiments that seem plausible according to their deep-structureschema about society. Since law is a complex adaptive system, we can expect that the steadyintroduction of incremental changes will lead to avalanches of effective change from time totime.Unlike other complex adaptive systems, we cannot simply dispose of the results offailed social experiments, as evolution discards its mutant rejects. More radical changes requiremore knowledge about the utility of existing social orders, how they might be affected, howtheir utility might otherwise be met and what side effects of change can be expected. Anessential aspect of critical scholarship, and legal scholarship, should be to analyze and makeavailable the results of research about social orders for use by law-makers (including judges).Only this way can courts increase the magnitude of the increment in incremental change.Social orders are emergent systems, so we know that we cannot make predictions aboutsocial orders with precision over time. However, by modeling such systems by simulating therelationships and interactions of the agents on computer, we can "flight-test" changes to socialorders and acquire an intuition for their topologies.35 Such models would enhance the33 R. v. Butler, [1992] 1 S.C.R. 452.34 Another dividend from critical feminism is that we now have criteria to identify obscenity that are more usefulthan the community standard test, which tended to introduce ideological prejudices.35 John H. Holland, "Complex Adaptive Systems" (1992) 121 Deedalus 17-30 at 18.165PROLEGOMENA TO A POSTMODERN THEORY OF LAWcompetence of legislatures and courts to implement less potentially damaging, plausible, non-incremental change.Since the legal process is a social order, composed of many suborders, that must beintegrated with the rest of society's social orders, there must be a social science of law entirelyseparate from legal reasoning. For example, only by creating computer models and flight testingvariations in laws of contempt, openness of trial, and other process-related laws, can courtsnavigate the problem of victim rights other than with incremental changes based on blindintuition.Merely identifying ideological thought is insufficient to cause positive change. AsProfessor Ury observes regarding negotiation, one must build a "golden bridge" so that theideologues can change their positions to accommodate other interests without fear of sacrificingtheir own legitimate interests.36 By studying social orders as complex adaptive systems, criticalscholarship can begin to allay the understandable fears that retard social progress. Nonetheless,even if legitimate interests are acknowledged and accommodated, ideologues might still not bedisposed to negotiate allocation of power in good faith, and the ideologues might need to bewarned about the "best alternative to a negotiated agreement."37 Once negotiation fails, we leavethe domain of critical scholarship and enter the domain of social action.3836 William L. Ury, Getting Past No: Negotiating with Difficult People (New York: Bantam, 1991) at 90.37 Ury, Getting Past No, at 113.38 I do not mean to imply that social action should be delayed until negotiation proves impossible. Unrest andviolence have social costs, but so does negotiation.166Chapter 9A Brief Survey of Legal TheoriesLaw is a complicated social order. It is thus not surprising that there are many legal theories.Each theory privileges some aspect of law or its effect on society and seeks to describe all legalphenomena in relation thereto. A legal theory is typically knowledge optimistic about itsprivileged aspect and knowledge pessimistic about those aspects that are the foundations forother theories. Each theory criticizes the others' unjustified knowledge optimism and falselyreductive nature. Because the legal order is a complex adaptive system, we know thatknowledge optimism about the legal order is false and that any reductive theory will beultimately distorting.Lasswell and McDougal distinguish between a theory about law and a theory of law.1Theories of law are those designed to guide the participants in legal process; theories about lawseek enlightenment about the process with the aim of improving the system. An analogy wouldbe the difference between a theologian in a particular religion (a theory of religion) and ananthropologist (a theory about religion). We can clarify this distinction using the theory ofcomplex adaptive systems. Society comprises numerous social orders, the institution of lawbeing a particular cluster of related orders. Some legal theories reduce law to the practicaldynamics used in the legal order without directly considering the effect of the legal order onother social orders or even the effect of the practical dynamics on the legal order itself. Theselimited perspectives are called theories of law. On the other hand, one cannot constructinsightful prescriptions for changing legal process without an appreciation for the practicaldynamics. Indeed, in a postmodern jurisprudence the distinction between theories about law andtheories of law breaks down because legal reasoning must be fully ironic. Legal reasoning mustdirectly incorporate a theory about law and consider limitations on institutional power due toinstitutional incompetence. The only difference between legal reasoning and legal scholarship1 Harold D. Lasswell and Myres S. McDougal, Jufisprudence for a Free Society—Studies in Law, Science andPolicy (New Haven: New Haven Press, 1992) at 5.167PROLEGOMENA TO A POSTMODERN THEORY OF LAWshould be the extent of the resources each has for advancing knowledge about the legal order—practice is generally reactive, scholarship should be proactive.This chapter will survey five legal theories that have preoccupied jurisprudence for sometime: natural law, the historical school, positivism, sociological jurisprudence, and Americanlegal realism. The survey will examine the legal theories in terms of selective knowledgeoptimism and knowledge pessimism, standards of justification, the legitimation of authority,allocation of power, and the implicit model of legal reasoning.Natural LawNatural-law theories ground "authority" in transcendental sources—sources that cannot betested empirically, such as theology or metaphysics. Authority is to be distinguished from"control," which is effective, naked power without a moral or political justification. Authorityfor decisions comes from a special type of justification. This justification is based on thedecision's causal relation to goals; it is teleological. Two important contributions of natural-lawtheory, therefore, have been the distinction between authority and control, and the teleologicalstyle of reasoning from goals.The major problem with natural-law theory is that the goals are logically deduced from apriori metaphysical sources—there is little empirical justification for the goal clarifications.Rather, goals are deduced from knowledge-optimistic theologies or metaphysics. For example,a Kantian approach infers goals from the grammar of language and logic. But there is noagreement on what a priori metaphysics are true and no criteria for deciding among them.Moreover, we know that the knowledge optimism is false. The strength of the natural-lawtheories rests solely on how well the metaphysics happens to model the topologies of the manysocial orders in society. Most natural-law theories do well in regard to social institutions such astruth-telling, but very poorly with regard to economic and political realities.168A BRIEF SURVEY OF LEGAL THEORIESJustification in natural law is by logical deduction from metaphysics. Since themetaphysics are contingent on the intuition of the elites of the philosophy, it is possible for thelegal reasoning to account for social orders with clashing fitness functions by reformulating theaxioms of the metaphysic. Traditions can thus have indirect authority through the contingentselection of axioms.However, in natural-law reasoning the logical derivations force consistency overincompatible contexts so that the grammar of deductive logic inappropriately constrains theimplicit models of social orders in a natural-law schema. Chaos theory tells us that differentemergent social orders cannot be linked deductively, and that each social order must beseparately modeled empirically using fuzzy concepts and linked to other modelsprobabilistically. Natural law's inherently distorted models of social orders impair the ability ofnatural-law reasoning to forecast the effects of changes to law on social orders. This has notdirectly concerned natural-law jurisprudence because it focuses on the metaphysical authority ofgoals rather than empirical effects on society.Since the logic of the metaphysic is what is primary in natural law, experience isinterpreted only in terms of the abstract. Only recalcitrant experiences that are strong enough towarrant re-evaluation of first principles are accommodated. As a result, the natural-law style ofreasoning is inherently unempathetic to ways of experiencing reality that differ from theintuitions of the mandarins of the metaphysic.Natural-law schemas also fail to take direct account of the allocation of power in society.Apart from the fact that its inherent incapacity for empathy defines away much oppression,allocation of power is seen as the justified byproduct of acting according to moral principles.Power accumulated according to moral principles is justly retained. This weakness is aggravatedbecause the principles emerge from the intuitions of the makers of the dominant metaphysic.These intuitions are shaped by ideology and decadence, but natural law has no tradition ofsubjecting these intuitions to critical analysis. The oppressed must depend upon the ability of thephilosophical elite to be profoundly self-critical without any philosophical tools for criticaldeconstruction.169PROLEGOMENA TO A POSTMODERN THEORY OF LAWTo summarize, natural law privileges the notion of authority based on justifications thatare teleological to goals. This is a necessary aspect of a theory of law; however, natural lawbinds the teleology into reductive logic and restricts goal formation to the structure of deductivelogic and the privileged intuitions of the elites of a very narrow discourse.Natural-law justifications are only indirectly empirical. The style of reasoning isinherently unempathetic to alternative discourses. Inegalitarian allocation of power isrationalized and virtually immune from critical analysis. The distorted modeling of social ordersimpairs the possibility of effective social engineering through law.The Historical SchoolWhereas natural law focuses on goals logically derived from abstract metaphysics, the historicalschool of jurisprudence privileges concrete social orders. In the nineteenth century the historicalschool promoted the notion that the culture of a community incorporated some sort of geist orsoul. However, the historical school failed to develop a theory about social orders and providedlittle normative direction for law-making.Hayek and the structuralists can be seen as later forms of this tradition. The centralinsight is that people unconsciously embody the customs that are required in order for socialorders to emerge. The social orders are given privileged status. The advantage of the historicalschool over natural law is that the historical school is sensitive to the effects of law on thecommunity. Unfortunately, the historical tradition lacks a good theory about the formation andpersistence of social orders and is therefore too knowledge pessimistic about the possibility ofusing law as an instrument of change—all diachronic change is accidental. Complexity theory,on the other hand, shows that while we cannot be knowledge optimistic about diachronicchange, we can have topological knowledge and achieve plausible teleological instrumentalchange.170A BRIEF SURVEY OF LEGAL THEORIESAuthority in the historical school is located in tradition. Since there is no theory aboutsocial orders, there is little possibility for justification. Legitimacy comes from consensus as towhether the laws properly reflect or support traditions. Hayek refined this analysis to somedegree, by empirically identifying some of the necessary conditions for certain economic socialorders.Allocation of power is not directly considered. The legitimacy of the traditions and theirnecessary preconditions justify the distribution of power that results.The historical school is plainly inadequate in terms of the capacity for empathy andcritical analysis.PositivismPositivism (or analytical jurisprudence) has until recently been the dominant theory ofjurisprudence. As such, much academic effort is put into shoring up its more obviousdeficiencies. Positivism is therefore more of a moving target than other legal theories.Positivism is a reaction against both the transempirical notions of theological and naturallawyers and the vague diffuseness of the historical schoo1.2 Positivism purports to be empiricalby studying the use of rules in legal reasoning; it is the study of the necessary conditions forconceptualized rule systems to govern human social behaviour. As such, positivism can comedangerously close to natural law; however, the content of the rules is determined by the existingcorpus of the common law rather than the intuitions of the philosophical elite. The ability ofpositivism to model social orders, to form teleological goals, and to consider the effect of lawson social orders, is thus parasitic on the extent to which common law has in fact been not beenpositivist.Positivism's obsession with rules precludes it from appreciating the full dynamics ofactual legal reasoning. Positivism can only prescriptively argue for rationalization of the body of2 I asswell & McDougal, Jurisprudence, at 8 -9.171PROLEGOMENA TO A POSTMODERN THEORY OF LAWrules without providing a satisfying account of how new rules arise. For positivists, suchadvances are merely ineffable discretion where rules are not determinative. Because ofpositivism's knowledge optimism about conceptualized rule systems, it vastly overestimateshow deterministic common law doctrine is or can be, and thus vastly underestimates the degreeof "discretion" in legal reasoning.In positivism, the authority of "discretionary" law-making is deduced from the idea ofsovereignty. The legitimacy of this sovereignty depends on knowledge optimism regarding theexistence of some sort of political will that funnels the interests of all members of society. Thisreductive notion of political legitimacy is absurdly simple and clearly fails to capture the verycomplex problems of modeling and mediating the conflicting fitness functions of individuals,multiple social orders and social classes. The typical stratagem is to project some "self-evident"form of human nature on everyone so as to simplify the complexities enough so that the idea ofa funneled political will can appear plausible.Positivism's need for political legitimacy blinds it to the complexities of social orders.Therefore, even though current forms of positivism look for policies or goals to guide theexercise of discretion, their simple model of society precludes an empathetic and criticalnegotiation of policies and goals. If positivism were openly empathetic, then the politicallegitimacy of the sovereign would be exposed as myth and authority would be undermined.Furthermore, in positivism the goals and policies are wealdy inferred from the body of existingrules, retarding the capacity for progressive change. Empathy and responsiveness to criticalanalysis only enter into positivism indirectly through equity, the dynamics of which positivismcannot explain.Another problem with positivism is that it is knowledge optimistic about the power ofconceptualized rules to manage human social behaviour—authority and control are not clearlydistinguished. Positivism fails to focus on the concrete effects of rules on social orders,compounding its inadequacies at empathy and critical analysis.The success of positivism is entirely parasitic on the ability of judicial legal reasoning tobe sensitive to the necessary conditions for the emergence of social orders and to conceptualize172A BRIEF SURVEY OF LEGAL THEORIESthese intuitions. While legal reasoning has operated in the nature of a complex adaptive system,positivism has attempted to lock legal reasoning into a microreductionist rule hierarchy.Regarding allocation of power, positivism's naYvetë regarding political legitimation andthe effectiveness of doctrinal rules precludes insightful analysis of power distribution in society.Sociological JurisprudenceSociological jurisprudence has made major contributions to legal theory by focusing on theeffect of law on social orders. Another contribution has been to emphasize the divergencebetween the doctrinal laws and the laws actually followed by citizens—the difference betweenauthority and control is appreciated.The quality of sociological jurisprudence of course depends on the quality of the socialscience. Social theories that privilege a single social order or set of social orders give theadvantage of more insight but are not comprehensive. Moreover, such theories give goodinsight into the concrete effects caused by laws, but since they have lacked models of socialorders as complex adaptive systems, they have been less successful in prescribing a means toplausibly engineer change without endangering other social orders. The major shortcoming ofsociological jurisprudence has been a failure to integrate empathy and critical analysis into legalreasoning itself.Sociological jurisprudence has successfully dismembered the knowledge optimisticmyths of positivism and natural law, but has wrongly presumed knowledge pessimism towardrule systems and actual legal reasoning. Sociological jurisprudence has yet to fully deal with theproblem of clashing fitness functions. Sociological jurisprudence needs to apply complexitytheory to construct a positive theory of legal reasoning and to mediate among conflicting fitnessfunctions for individuals, social orders and classes. I will argue in the next chapter that this isbest accomplished by a hierarchy of fuzzy goals that are causally related probabilistically.173PROLEGOMENA TO A POSTMODERN THEORY OF LAWSociological approaches have not yet developed an empirical means of goalclarification.3 In chapter seven I argued that courts do this as part of legal reasoning, butinstitutional constraints mean courts should follow rather than lead this sort of inquiry.To summarize, sociological jurisprudence has immensely expanded capacity forempathy and critical analysis in legal thinking about law. As such, sociological jurisprudencehas initiated more change than other legal theories, which tend merely to describe and rationalizethe status quo. Sociological jurisprudence has tended to overlook the constructive aspects oflegal reasoning and provided little guidance for integrating critical methodology into legalreasoning. Sociological jurisprudence has also failed to elucidate the problem of egalitarianismwithin the context of conflicting fitness functions for individuals, social orders and classes.American Legal RealismLegal realism has been principally a reaction against positivism's obsession with systems ofarticulated rules. Legal realism's principle contribution has been to show that doctrinal rulesunderdetermine judicial outcomes and that judges are humans who make decisions based onintuitions, including prejudice. Legal realism shifted the focus of attention from the verbalizedlegal doctrine in decisions to the factual outcomes and their effect on society. In its extreme,legal realism could become a form of behaviourist psychology. A more informed legal realismfinds authority in people's empirical perspectives about social consequences. Judges makedecisions that are responsive to people's views about values and their expectations aboutsanctioned authoritative choice, as informed by social science.A major shortcoming of legal realism is that this hefty agenda has swamped efforts toproduce constructive guidance to either decision-making in general or the clarification of socialgoals in particular. The massive undertaking of Lasswell and McDougal to set out the tasks for a3 Dean Roscoe Pound began an inquiry into goal clarification but merely extrapolated goals in the corpus ofexisting laws and made no empirical study of social orders, their interactions and their effects on egalitarianism.174A BRIEF SURVEY OF LEGAL THEORIEStheory about law is merely preliminary work.4 Lasswell and McDougal also sought to redressthe lack of clarification of goals; however, the set of values they postulate is essentially aprincipled outline of what they perceive to represent a consensus of enlightened perspectives onthe matter.5 There is little ironic awareness of how a set of relatively few values from whichother goals are logically deduced inherently fails to capture the full dynamics of social orders.While in principle it is impossible to precisely model social orders and the conflicting necessitiesand priorities of individuals, social orders and classes, the shortcoming must be appreciated inorder to temper one's concept of authority and legitimacy. The concept of authority in legalrealism is therefore as vague as its prescription for legal decision-making.The lack of a detailed procedure for ongoing goal clarification also makes this approachinherently resistant to empathetic responsiveness to different experiences. Vagueness impairsthe formation of keen critical analysis. Vagueness also precludes any working criteria for statingor evaluating justifications for law-making decisions.To summarize, current forms of legal realism are careful to avoid the narrowpreoccupations of other theories of law, but only offer vague platitudes instead.A Postmodern Theory of LawHaving pointed out some shortcomings of other legal theories, I will briefly apply constructivepostmodernism to the issues discussed in this chapter.The major presupposition in the postmodern theory of law is that legal reasoning hasoutperformed any other human strategy for mediating and satisfying the conflicting fitnessfunctions of individuals, social classes and social orders. The main evidence for this is itsdynamic as a complex adaptive system that resists reductionist attempts at reform and shows anevolving balance between theory construction and experience.4 a^sswell & McDougal, Jurisprudence, volume one.5 Lasswell & McDougal, Jurisprudence, volume two.175PROLEGOMENA TO A POSTMODERN THEORY OF LAWThis is not to say that legal reasoning has been perfected. The influence of natural law,positivism and liberalism, for example, has significantly impaired the capacity of law toempathize with the experiences of the oppressed. Additionally, legal reasoning has been slow toevolve critical ironic stances. However, I will argue in chapter ten that this is not inherent tolegal reasoning. Legal reasoning, like all schema-building enterprises, has an inherent amountof play that is available for the purposes of good-faith experimentation, more complex mediationof conflicting fitness functions, or decadence and ideology. Legal scholarship has now evolvedcritical ironic stances and legal reasoning must do the same. Nothing about the nature ofcomplex adaptive systems or the institutional constraints of law-making precludes such adevelopment.Justification cannot be as totally precise as positivists would like, but is not as vague asin legal realism. Insofar as judicial decisions must be sensitive to context and unarticulatedpreconditions for desirable social orders, we have to trust the decision-makers to be empatheticand thoroughly socialized. Admittedly, this presents a problem for authority and legitimacy.How long should traditional obscenity laws resist libertarian encroachment in the absence ofgenerally recognized justifications? Judicial wisdom is a slender straw, but with enhancedcritical capacity, more representative staffing and more emphasis on empathy, the severity of theproblem can be reduced.Allocation of power remains a problem because the problem of what constitutesegalitarianism has been finessed in this thesis. Critical analysis helps identify sources ofobvious inegalitarian distribution of power, but critics have been too knowledge optimistic intheir utopian alternatives. Progress on this issue will require substantial advances in what weknow about social orders. We need a good sense of the value of a social order to society and thenecessary conditions for its continuing emergence. For example, the institution of truth-telling isnot destroyed by principled exceptions such as lying to a killer who asks where his intendedvictim is hiding, but rampant, arbitrary lying undermines the benefit of being able to trustothers—the social order dissolves. Legal reasoning has rudimentary techniques, such as176A BRIEF SURVEY OF LEGAL THEORIESproportionality analysis, but the quality of such reasoning is a direct function of the quality ofknowledge about social orders.A postmodern theory of law thus does not differ immensely from other theories of law.It principally seeks to make explicit what other theories accomplish in an implicit and distortedmanner. A postmodern theory of law focuses on how legal reasoning works as a whole ratherthan seeking to describe the process of law in terms of the phenomena that are most amenable toreductionist accounts. Legal reasoning in a postmodern theory of law must contain a theoryabout law. Legal reasoning in a postmodern theory of law attempts to be radically self-critical,but is only incremental in response unless it can be reasonably sure that essential social orderswould not be endangered. A postmodern theory of law is not embarrassed by problems withlegitimacy; the problem is announced and judges gain respect by demonstrating good faith,socialization, ironic self-awareness, and the capacity to empathize.The next chapter will show that legal reasoning in a postmodern theory of law is not leftvague, as in legal realism. It will provide constructive, plausible criteria for decision-makingregardless of the quality of knowledge about social orders. It will show how the quality of legaldecisions improves with improvements in the quality of knowledge about social orders and howcritical insights and different experiences can be taken into account.177Chapter 10Evolving the Deep-Structure ModelIn this chapter we will re-examine the deep-structure model of legal reasoning and address threequestions. Is goal-based reasoning the most plausible strategy to cope with incompleteinformation about social orders? What would a computational model of goal-based reasoningentail? Does this approach accommodate general critical concerns?Goal-Based ReasoningSociety is a complex adaptive system. Society emerges from the collective, concurrentbehaviour of its citizens. The needs of the citizens and the disintegrating pressures from theenvironment define a fitness function for the society. A society persists because enough of thecitizens have internalized the rule-governed behaviour necessary for the society to maintain thesocial orders that are required for the society to satisfy its fitness function. Law is anundertaking to improve the ability of society to satisfy its fitness function by manipulating therule-governed behaviour of the individuals. The basic task of legal reasoning, thus conceived, isto consider the impact of proposed rules on useful social orders.What are useful social orders? Most of them are intangible and vague. Truth-telling is anexample of a useful social order. If people tell the truth then the communications of others canbe trusted, which has tremendous value for society. If this social order breaks down, acommunity moves from an atmosphere of trust to an atmosphere of distrust. Truth-telling is soimportant that we seem to have evolved physiological reactions to promote truth-telling (guiltand embarrassment), which good liars unlearn. We have a good intuition that truth-telling is avirtue to be honoured.Of course mere survival of society is not a strict enough fitness function to satisfy theaspirations of most people. Indeed, we might not agree that maintaining society is a good in178EVOLVING THE DEEP-STRUCTURE MODELitself; one might seek to derive all social goods in terms of self-interest. We tell the truth becausewe want to be trusted and that gives us an advantage coping in society and in the environment.However, there are free-rider problems where individuals are able to externalize costs—it mightbe in their self interest to lie and exploit the naive from time to time. This suggests that lawsshould be passed to discourage such conduct, but how would one justify those laws without thenotion of collective interest. Social orders are chaotic systems so we may have to accept thatprecise causal links cannot always be made between beneficial social orders and individual self-interest. Conversely, one might attempt to derive self-interest from the interests of society. Topersist, a society must satisfy some minimum level of its citizens' individual needs. However,this approach has difficulty justifying as much respect for the individual as we intuitively feel isnecessary.More than two thousand years of moral philosophy has not resolved the problem ofmediating clashing fitness functions for individuals, classes, and social orders. If a clear moraltheory were required for legal reasoning there would be no legal reasoning. Since the deepstructure of law is a complex adaptive system, the solution is to start with vague strategies thatare little better than random, and then improve by increasing complexity. We decide obviouscases, then proceed to refine our approach through incremental experimentation and empiricalobservation of the effects that are obviously good or bad.Since legal reasoning concerns itself with social orders, the simplest and moststraightforward reasoning strategy would centre on Aristotle's four types of causation. Thematerial cause is almost always the same—people. The efficient cause of a social order alwaysincludes the rules that govern behaviour (tell the truth). The formal cause is the end product (anatmosphere of trust). Since we have no direct instrumental control over the formal cause (wecannot legislate an atmosphere of trust), the formal cause is not a direct concern. The final causeis the selective factor that creates an a posteriori teleology in favour of the formal cause (theutility and well-being engendered by living in an atmosphere of trust). Often it is difficult toarticulate the final cause and the social goal is referred to by identifying the formal cause (theatmosphere of trust), or perhaps the rules themselves where they are obvious (truth-telling).179PROLEGOMENA TO A POSTMODERN THEORY OF LAWTherefore, the two prime causal invariants about social orders are that they serve goalsand that rule-governed behaviour brings them into existence. Therefore, the form of legalreasoning that requires the least amount of information is goal-based. We begin with animprecise, general strategy and seek to improve as the quality of our knowledge about the socialorder improves.We do not begin with precise information about social orders—neither the goals theypromote, nor the rules necessary for them to emerge. We begin with intuitions that weconceptualize in terms of vague goals—truth, safety of person, freedom—and virtuousconduct—truth-telling, respect, tolerance. However fuzzy these goals and rules are, we have agood-enough intuition to sense that they often conflict in concrete situations.' The social orderof truth-telling might compel one to tell the truth, whereas the social order of safety of personsmight compel one to lie to avoid harm. How does one resolve the conflict without moreinformation?The most straightforward way is to conceptualize our intuitions of each social order as anamed goal—truth (b1), safety of person (b2). Our dilemma presents two possible outcomes:favour truth over safety of person (bi/b2); or favour safety of person over truth (b2/b1). Withoutmore information, we must decide which is more important. Since we do not have a precisemoral theory, we draw on intuition and favour safety of person. All things being equal and notknowing more, we favour b2 over bi. This is our first precedent.Suppose we knew more about the social orders. For example, we observe that certainsystematic exceptions to the truth-telling rule do not impair the social order of trust that is soimportant to society. In fact, we learn empirically through incremental experimentation that if welimit exceptions to truth-telling to concrete situations where it is necessary to lie to preservehigher-ranking social goals, then people will still trust each other when they speak. Thisadditional information (empirical, sociological evidence) allows us to make a qualitative advancein the structure of our reasoning. We can universalize the alternative outcomes into rules andI Defining truth becomes very difficult when closely examined. A whole philosophical tradition has struggledwith the problem. Likewise, what constitutes a violation of personal integrity—rape without physical injury,emotional abuse, harassment, jocular play?180EVOLVING THE DEEP-STRUCTURE MODELthen consider what the relative impact would be on each affected social order. Thus, forexample, if favouring b1 over b2 would significantly impair b2, but favouring b2 over bi wouldonly slightly impair b1, then we should favour b2.Coval and Smith have shown that this is indeed what courts do when they confront hardcases.2 The reasoning is not arbitrary; it is rule-governed but uses very fuzzy concepts (truth,safety of person) and probabilistic reasoning (promotes, significantly impairs, is more importantthan).Once the court has some information as to the probable impact of a generalized outcomeon either of two affected social orders, the court can do more than simply intuitively assertwhich social order is more important. Simple "weighing" of competing principles or rights onlyapplies in the simplest cases. With additional causal information, the reasoning can becomemuch more structured. The situation is shown in the following diagram.2 S.C. Coval and J.C. Smith, "Rights, Goals, and Hard Cases" (1982) 1 Law and Philosophy 451-480. Seealso, S.C. Coval and J.C. Smith, Law and Its Presuppositions: Actions, Agents and Rules (London: Routledge& Kegan Paul, 1986).181PROLEGOMENA TO A POSTMODERN THEORY OF LAWFigure 10.1. Architecture of Basic LegalReasoning about Social OrdersWhere there is no information about the impact functions, a court can only presume R ipromotes S1. R2 promotes S2, Ri impairs S2 and R2 impairs Si. The court is forced to decideby ranking the value of Si higher than S2, or vice versa. Moreover, the vagueness of the causalrelations means that the relevancy function that maps fact patterns to rules will likewise befuzzy. But if the court, through social science evidence or evolved common sense, learns thatRi would probably significantly impair S2, or worse, would destroy S2, then the court wouldhave reason to favour R2 even if S2 were not as important as Si. This is the substance of theproportionality rule.As information gets better, the reasoning becomes more subtle. Thus, in estimating theprobable impact of an outcome, the proposed universalized rule need not be presumed to beabsolute. Judicial irony about proportional reasoning means that the universalized rule could bepresumed to be in the most minimal form known to be required to promote the social goal, and182EVOLVING THE DEEP-STRUCTURE MODELsubject to principled exceptions to account for the possibility of significant impact on othersocial goals.3 As judicial knowledge about the causal links from proposed rules to social ordersbecomes more precise, the concepts forming the predicates of the rules become less fuzzy andthe estimates of the degrees of probable impairment to the social orders become less vaguelyprobabilistic.The structure of legal reasoning increases in complexity as the common law developsbetter models of social orders (goals) and their relationship to rules. A social order mightcontain instrumental subgoals, that may themselves be social orders. The social order ofcollective bargaining, for example, would probably be significantly impaired in most cases if theemployees were denied the right to picket during a strike. The social order of propertyownership, for example, promotes many different goals, including personal privacy andeconomic self-determination. In the Supreme Court of Canada case Harrison v. Carswel1,4 thecourt had to decide whether employees of a store in a shopping mall would be permitted topicket in front of the store entrance, which was on the property of the mall owner. Employees ina mall face an anomalous factual problem because there is no publicly-owned thoroughfareleading to the entrance of the employer's place of business. The right to picket becomesineffective because remote picketing has a much less potent effect on the customers of the store.The balance of power lists toward the employer. On the other hand, the right to control access isa fundamental aspect of property rights. This was a hard case.Without more information, the court had to honour existing precedent and rule that thegeneral social value of property rights outweighed the general social value of collectivebargaining. However, with more causal information the reasoning could have progressedbeyond a crude weighing. Essentially, the court viewed property rights as an indivisible whole.Counsel for the employees should have emphasized that property rights are instrumental to more3 The same structure applies to constitutional evaluation of legislated rules, except one of the rules already exists.An implication of this structural difference is that the rule's causal link to the social order being promoted and therule's minimality cannot be presumed and must be established. Moreover, constitutional considerations mightimpair the ability of a court to make exceptions in concrete situations where a legislated rule significantlyimpairs another important social order.4 Harrison v. Carswell, [1976] 2 S.C.R. 200. My analysis here draws heavily on the analysis by Coval andSmith, "Hard Cases," at 457-459.183PROLEGOMENA TO A POSTMODERN THEORY OF LAWthan one social goal.5 A court would be entirely justified to reason that if people lost controlover access to personal-use property, then the social goal of personal privacy would beseriously impaired. Additionally, many commercial enterprises would be impaired if they totallylost control over access to their property. However, in a case where a business generallypermits public access to its property, the pursuit of commerce would not be significantlyimpaired if a principled exception to the right to control access were made for store employeeswho picket peacefully. There are many examples where property rights are relaxed to permitwhat is necessary for other important social goals. The Harrison v. Carswell court could havereasoned that the value of collective bargaining rights expressed in precedents and statutesjustified this limited encroachment on property rights. The damage to collective bargaining wasdisproportionate to the damage to the goals served by property rights in the particular concretesituation. The court locked-in to an essentialist concept of property as an indivisible right, ratherthan seeing property as merely a social order whose value derived from its instrumental role inpromoting other social orders.The subtlety and complexity of legal reasoning improve with the quality of knowledgeabout social orders. However, since the social orders are emergent systems, chaos theoryinforms us that the models of the social orders will always have to use fuzzy concepts andprobabilistic reasoning. In other words, except in isolated pockets where hierarchies ofdeductive reasoning are constructed (such as the Personal Property Security Act6), the courtsmust resort to proportionality analysis to mediate disputes arising from fact situations thatinvoke conflicts between desirable social orders.Even where a fact situation is clearly within a deductive scheme, it is always possiblethat the rule affects a social order that has not been accounted for in the regulatory scheme.Therefore, a court always retains equitable discretion to create principled exceptions to specificrules where the universalized outcome of a fact situation would disproportionately impact5 I am unaware of what arguments were actually made to the court.6 This is the Canadian legislation for the registration of security interests in personal property. An example iswhere borrowers give collateral for loans other than real estate mortgages.184EVOLVING THE DEEP-STRUCTURE MODELanother desirable social order compared to the rule's contribution to the social order promotedby the regulatory scheme.The elaborate code of rules could either be common law (such as the rules againstperpetuities), or legislated. The two situations are not very different. In the case of legislation,rules of interpretation are used to bend the rules to reflect conflicting social goals. Where thiscannot be done, the Canadian courts can now use the Canadian Charter of Rights and Freedomsto introduce the conflicting social goal? The court's approach to legislation is thus similar to thelaw and equity dynamic discussed in chapter seven.The complexity of the proportionality analysis will reflect the quality of judicialknowledge about the least-well understood social order and the rules it requires. Where aconcrete fact situation pits a rule from a detailed code against a rule that promotes a vaguelyunderstood social order, a court must ascend the deductive scheme of the code until social goalsof roughly the same generality are being compared. Thus, a court does not compare picketing toproperty rights; picketing must be seen as a rule to promote collective bargaining, which isinstrumental to promote the right to a basic wage and the goal of egalitarianism. Similarly,property promotes privacy and the right to earn a wage. Since these goals are roughlycomparable, the disproportionate impact on the first set of goals is more obviously importantthan the negative effect on the goals served by property rights. A coherent and precise moralenquiry was not necessary to make the decision—the topmost social goals could remain vagueand sui generis.Examples of this process include judicial review of decisions from expert tribunals andthe use of expert testimony. The tendency of the expert is to undervalue the importance of socialgoals outside the domain of expertise; the tendency of the court is to fail to appreciate the causalimportance of a fact or rule within the expert's domain. The difficulty in commensuratingprecise rules with vague goals creates a significant opportunity to mystify ideological law-making.7 Things are not all that simple. Not all desirable social orders are reflected in the constitution and the rankingsare not made clear. There is also the question of the political legitimacy of the courts overruling legislation.185PROLEGOMENA TO A POSTMODERN THEORY OF LAWChaos theory implies that in principle we cannot achieve a universal, precise, non-probabilistic schema to account for the causal relations among rival social orders. This meansthat legal reasoning will remain at core fuzzy and probabilistic, even when there is a precisehierarchy of rules encoded by legislation, even in the civil code tradition. Lothar Philipps givesa good example from a German statute.8 The rule provides that a person involved in a trafficaccident may not leave the site of the accident until somebody arrives who is willing to take thedriver's name and information on the car and the accident. Notwithstanding the seeminglyprecise rule, the courts have evolved principled exceptions that vary according to the facts—theamount of time elapsed before someone arrives, the extent of the damage, the time of day.Philipps shows how fuzzy logic is capable of reproducing the results of the courts withoutprecise information about what goals are being served. The courts can only express vagueintuitions in the form of fact-oriented conclusions, such as no one should have to wait manyhours at night where there is only minor damage. As the case law develops, the fact patternsilluminate the contours of relevancy. By identifying the social goals being promoted, the causalrelations that define the relevant distinctions can be articulated with more precision.Legal reasoning, therefore, is rule-governed but inherently imprecise. The degree ofimprecision will be a function of the quality of knowledge about the social orders causallyaffected in a concrete factual situation. As the quality of knowledge improves, the legalreasoning can be further refmed to accommodate critical analysis. A court, for example, is proneto overestimate the strength of rules that are necessary to preserve a desirable social order. Associal science improves, the addition of new causal assertions can show how to plausiblyweaken the rules to accommodate other social goals. With more knowledge, the damage to theother social order need not be as extreme before it satisfies the proportionality test. Criticalscholars, therefore, have an important role in expediting the introduction of causal evidence intojudicial recognition, and exposing instances where the courts are implausibly ignoring suchevidence.8 Lothar Philipps, "Unbestimmte Rechtsbegriffe und Fuzzy Logic—Ein Versuch zur Bestimmung der Wartezeitnach Verkelusunfallen" (Vague Legal Concepts and Fuzzy Logic—An Attempt to Determine the Required Periodof Waiting after Traffic Accidents) in Strafgerechtigkeit, eds. Fritjof Haft, Winfried Hassemer, Ulfrid Neumann,Wolfgang Schild, and Ulrich Schroth (Heidelberg: C.F. Muller Juristischer Verlag, 1993), 265-279.186EVOLVING THE DEEP-STRUCTURE MODELCritical scholars have noted the tendency of law-makers to create knowledge-optimisticcodes of precise rules (a symptom of legal positivism), or to reify instrumental social orders intoindivisible rights (a symptom of natural-law jurisprudence). This tendency interferes with theability of legal reasoning to properly apply proportionality analysis. In these cases, the decisionsof law-makers can be justifiable criticized without the need for a precise moral theory orphilosophies that assume better knowledge is available. The decisions are wrong on the basis ofthe quality of available judicial knowledge—the knowledge contained in precedents, what isproven in court, and common sense.Finally, once improved knowledge about social orders allows courts to weaken theirformulations of the rules necessary to maintain social orders, the courts can more fully accountfor the social goal of egalitarianism. For example, it took over a hundred years of experience forcourts to learn that the atmosphere of commercial certainty fostered by the reliability ofcontractual promises would not be undermined by principled exceptions for unconscionability,mistake and oppression.Computational Goal-Based ReasoningThe inherent imprecision of legal reasoning presents a problem for computational models inexpert systems.One strategy would be to focus on deductive rule codes and hope that the fact situationspresented to the expert system were not causally related to social orders for which we do nothave as precise a model. But the need for hope means that we can never know whether theexpert system has produced a reliable result, or reliable argument in the case of argumentgeneration. A vague but important goal can create a fuzzy category of relevant, exceptional factsthat could probably significantly impair the social order associated with that goal. As mostlitigation lawyers know, all cases are hard cases—positivist models simply will not do.187PROLEGOMENA TO A POSTMODERN THEORY OF LAWIn contrast, deep-structure jurisprudence captures the properties of legal reasoning thatfundamentally work with vague concepts and probabilistic causation, and refine the reasoningstrategy as the quality of knowledge improves. We therefore seek an expert-system design thatcan handle imprecision and improve as information is added. The expert-system designdescribed in chapter one begins to capture some of these requirements.The key elements of the deep-structure expert system are factual descriptions of casescenarios, factual assertions, causal assertions, goal descriptions, goal rankings, and judicialoutcomes. The minimum content of a case precedent contained in the expert-system database isa set of factual descriptions and a judicial outcome. The expert-system designer develops a setof working hypotheses as to the principles underlying the doctrine in an area of law.9 Theseprinciples lead to identification of goals, causal assertions and factual assertions presupposed inthe judicial decisions. These elements are utilized according to general deep-structure principlesof legal reasoning. Thus, when analyzing a hypothetical situation, the system will attempt tolink the hypothetical facts to recognized goals using recognized causal assertions. Whenever thehypothetical facts invoke conflicting goals, general deep-structure principles are employed tofavour one goal over the other in the particular context. Using general deep-structure principlesregarding the ranking of legally recognized sources, the strength of authority warranting theelements in competing arguments is used to form conclusions as to the most probable legaloutcome. The particular deep structure of the legal system emerges from the elements containedin the particular case precedents represented in the database of the expert system. Finally, byincluding causal assertions, factual assertions and goals recognized by alternative sources (suchas critical literature), the expert system can generate plausible arguments contrary to the mostprobable legal outcome. The person consulting the expert system is left to judge whether thesocial science assertions could be proven in evidence or would be accepted as common sense.9 See for example Marilyn T. MacCrimmon, "Expert Systems in Case-Based Law: The Hearsay Rule Advisor,"in Proceedings of the Second Conference on Artificial Intelligence and Law, University of British Columbia, June1989 (New York: ACM Press, 1989); and Susan Jane Blackman, "Expert Systems in Case-Based Law: The RuleAgainst Hearsay" (Master's Thesis, Faculty of Law, University of British Columbia, 1988).188EVOLVING THE DEEP-STRUCTURE MODELNo one has attempted to implement the deep-structure expert system model described inthis thesis. Such a project would be nontrivial but it does not appear to be impossible inprinciple.The kernel of the system would be a proportionality inference engine that employed afuzzy logic to deal with vague concepts and estimates of probable causal impairment. Thedispute would define the potential conflicting outcomes to be considered, which would beuniversalized into proposed rules. The inferencing would use the initial set of hypothetical factsand the database of precedent causal assertions to search for goals that were causally linked tothe proposed rules. Proportionality analysis would then attempt to discern whether one of thegoals would be disproportionately impaired. If proportionality analysis was indeterminate, thenthe precedent database would be searched for cases that ranked one goal higher than the other.The are several degrees of enhancement that could be added to this kernel. The topmostsocial goals could be analyzed in terms of instrumental goals or constituting social orders(goals). This information could be exploited to infer more about goal ranking. Goalrelationships would also enable additional inferencing about probable causation—promotion ofan instrumental goal would transitively promote another goal, for example.Generating universalized rules will be quite difficult, particularly since proportionalityanalysis presumes the proposed rule is minimally strong for the purposes of the social order itpromotes. While this might appear to create a computationally intractable problem, we canborrow a complexity-building strategy from complex adaptive systems. Therefore, we canbegin by assuming less information than we actually have, and evolve more complex strategies.Development would stall if detailed logics were applied in early stages.Following this strategy, increasing the refinement of the goal relationships wouldeffectively create more precise models of relevant social orders. Development along these linescould continue until the system was capable of modeling detailed rule codes. However, it wouldbe premature to introduce such schemes until the system was capable of handling casesinvolving less precise models.189PROLEGOMENA TO A POSTMODERN THEORY OF LAWThe most profound implementation problem will be the language in which factual,causal and goal assertions are expressed in the expert-system database. The courts embarked onthe evolution of legal reasoning with a detailed, intricate and organic language. Computers, onthe other hand, must begin with crude, representational markers for the existence of relevantfacts. In order to support an ever-expanding (large-spirited, empathetic) notion of "relevancy,"cases must be capable of an ever-expanding vocabulary. In the area of computerized retrieval oflegal precedents, Judy Dick has confronted the problem of open-ended relevancy with relativesuccess. 10 However, her solution of enriching the expressive power of the language primitivescreates problems of computational intractability in the logic of proportionality. The interimsolution for a deep-structure expert system will have to be to begin with a restricted factualvocabulary and add only enough expressive power to accommodate the existing cases andcritical perspectives.A Critical Look at Expert SystemsIn the first part of this chapter I have applied insights from complex adaptive system theory tosketch the elements of deep-structure legal reasoning in greater detail. In the second part I havebriefly sketched how a computational model of goal-based legal reasoning could be developed.Since deep-structure expert systems could thus evolve toward increasingly faithful renditions ofthe deep-structure model of legal reasoning, it is compulsory that the designer of such systemsinitiate critical inquiry into the effect of such systems. I conclude this chapter by addressing aseries of critical questions regarding expert systems, and deep-structure expert systems inparticular.1° Judith P. Dick, A Conceptual, Case-Relation Representation of Tem for Intelligent Retrieval (TechnicalReport CSRI-265, Computer Systems Research Institute, University of Toronto, July 1992).190EVOLVING THE DEEP-STRUCTURE MODELContra Rule UsageDeep-structure expert systems use rules. Some critical scholars argue against rule usage, butcomplexity theory establishes that rule usage (whether explicit or implicit) is necessary for asystem to more optimally satisfy teleological criteria. If we assume for present purposes that weagree that social teleology should include survival of the social order and be subject to thefurther constraints that undisputed human needs should be satisfied in roughly egalitarianfashion, then rule usage per se cannot be criticized.Contra Explicit Rule Formulations—AlienationA less extreme rule criticism endorses implicit rule usage but criticizes explicit rule formulation.Some critical scholars argue that it is psychologically alienating for humans to consciouslyevaluate whether their actions would comply with express rules. This argument is weak.Humans have achieved considerable success in coping with the environment, relative to otherspecies, because of language (self-conscious communication) and the cultural evolution thatensued. The power of language is that it enhances human ability to generate plausible strategiesfor responding to challenges presented by the environment, and our ability to preservesuccessful strategies. Critical scholars who advocate rule-less custom bear the burden ofdemonstrating that the psychological harm of self-conscious adaptation outweighs its manifestbenefits.1111 Especially because the very success of language has created a social order that threatens the physicalenvironment that humans depend upon. The teleological constraint of survival requires even greater abilities toplausibly adapt our social order. It would be folly to retreat into un-selfconscious evolution of custom as astrategy to cope with environmental issues.191PROLEGOMENA TO A POSTMODERN THEORY OF LAWContra Explicit Rule Formulations—Implicit ModelingA person might be able to achieve greater teleological success by modeling the complexity of theenvironment with an implicit, internalized complex system in the mind—a form of intuition.Merely duplicating the actions of an external complex system would not work because complexsystems are too sensitive to starting conditions and environmental influences (i.e., they arechaotic) for a parallel complex system to be accurate. This would be like attempting to predictthe precise pattern of spilled water by mentally visualizing the spillage event—it cannot be doneaccurately. Nonetheless, an internalized complex system that did not simply attempt to mimic anexternal complex system might be capable of more precision than a linguistic conceptualization.One could argue in favour of implicit complex systems rather than explicit formulation in ratio-deductive language. For example, a good billiards player successfully internalizes the complexphysics of billiards without any cognitive formulation of the physics.12Even if one's internalized model is not a complex adaptive system, implicit rules areoften much more efficient than conceptualized thinking. Computer scientists who study complexadaptive systems observe that non-conceptual solutions are often more computationally efficientand criticize conventional artificial intelligence research as being too obsessed with constructingcognitive representations.13 Similarly, some philosophers argue in favour of virtue-based ethicsover consequentialist ethics because the computational requirements of the latter are toodemanding.14 Furthermore, the cognitive processes of formulation into discourse andconceptual reasoning create opportunities for error and obfuscation.On the other hand, it is not clear whether such implicit systems are appropriate to humanculture. Unlike other complex adaptive systems, human societies lack the luxury of testingmany rival implicit models. A billiards player can ruin countless shots in practice. Other speciescan experiment with implicit, genetic rules by simultaneously creating many candidates and12 This is sometimes referred to as the difference between intelligence and intellect. See David E. Van Zandt, "AnAlternative Theory of Practical Reason in Judicial Decisions" (1991) 65 Tulane Law Review 775-831 at 780,830.13 Steven Levy. Artificial Life—The Quest for a New Creation (New York: Pantheon, 1992) at 249, 277-279,291-292, 296, 304.14 See for example, Gilbert Harman, Change in View—Principles of Reasoning (Cambridge: MIT Press, 1986).192EVOLVING THE DEEP-STRUCTURE MODELsacrificing the losers on the altar of natural selection. The egalitarian constraint forecloses thisoption for human societies. Society must therefore evolve by selecting only highly plausible rulecandidates. Explicit rule formulation enhances our ability to analyze and restrict adaptations tohighly plausible candidates. Furthermore, uncritical reliance on implicit rules has provensusceptible to unconscious ideological or psychological abuse.Rule IndeterminacyThe use of rules to regulate the social order might also be rejected because rules are tooindeterminate. The indeterminacy will inevitably be exploited by dominating social groupswhenever rules are used for purposes of social regulation.This argument fails to recognize that rule indeterminacy is an essential feature of thehuman condition, whether the rules are explicit or implicit in custom. 15 The possibility ofdomination is equally present in societies governed by custom—the selective pressures implicitin a custom-driven society will just as surely lead to evolution of customs to entrench thepowerful. While conscious manipulation of social practice creates the possibility of ideology, italso creates the opportunity for critical review.Furthermore, the critical argument is inconsistent. If rules are too indeterminate toproduce a coherent teleology of goals and policies, then how does the critical scholar accountfor the success of rules in implementing the teleology of entrenching the dominant class? Rules,therefore, are capable of implementing a teleology notwithstanding their inherent indeterminacy.Furthermore, complexity theory demonstrates that the indeterminacy is required to preventexcessive order and permit chaotic experimentation. The evil is not rule indeterminacy but thefact that ideological abuse has replaced good-faith play. The solution, therefore, is not to rejectrule formulations as a means of regulating the social order. There are manifest benefits to such15 As Schauer observes, rules need not be formulated into linguistic expressions—custom is as much a rule as isa specific formulation of the rule. Frederick Schauer, Playing by the Rules—A Philosophical Examination ofRule-Based Decision-Making in Law and in Life (Oxford: Clarendon Press, 1991). In particular, bothunarticulated and internalized causal models remain subject to chaotic constraints on prediction.193PROLEGOMENA TO A POSTMODERN THEORY OF LAWrules, which have been admitted by some critical scholars.16 The unavoidable nature of ruleindeterminacy implies that critical studies (the detection of ideology and decadence) will alwaysbe a necessary and important element of intelligent cultural evolution.The critical questions for the deep-structure expert system, therefore, are whether itsdesign perpetuates liberal denial of rule indeterminacy and whether it facilitates critical exposureof any bad-faith abuse of the play in rules. The two questions are inter-related. As to the firstquestion, the entire deep-structure approach is premised on the indeterminacy of doctrinal rules.We know from our definition of ideology that ideology is present when judges overlookplausible arguments that egalitarian constraints are unfulfilled due and this happens because ofthe judges' "bad-faith" application of indeterminate doctrinal rules. These plausible criticalarguments would be based on evidence of suffering that could be causally attributed to certaintypes of factual situations. The deep-structure expert system facilitates the development ofcritical argument by accommodating the addition of causal assertions that events exhibitingcertain fact combinations violate social policies. 17 The factual context to be considered by thedeep-structure expert system is always expandable—relevancy is an open-ended function. Anemerging feature of the deep-structure expert system is that whenever there are relevant causalassertions of oppression, the system will generate critical argument, complete with warrants ofauthority associated with each element of the argument.The deep-structure expert system evaluates the relative plausibility of arguments usingthe law's rules for resolving conflicting assertions based on respective warrants. Since proof ofassertions by evidence in court has the highest warrant, the deep-structure expert systemultimately relies on the expert-system user to predict whether critical assertions could beintroduced into the legal system through evidence and critical arguments would thereby havegreater plausibility within the legal system.16 see, for example Patricia J. Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights"(1987) 22 Harvard Rights-Civil Liberties Law Review 401-433.17 The criticism would be more effective if the causal link related to intermediary goals that were more specificthan the general goal of egalitarianism. More plausible proofs can be constructed with more specific causalassertions.194EVOLVING THE DEEP-STRUCTURE MODELThe deep-structure expert system respects rule indeterminacy because at all times itcontains conflicting causal assertions of different warrant. The expert system user mayreconsider whether causal assertions relied upon by the various arguments remain plausible inview of changes in the social order. The indeterminacy must come from the user because thedeep-structure expert system only models the structure of judicial decision-making in the legalorder and not the social order. Evolution of the social order is exogenous to the deep-structureexpert system. Evolution of the particular deep-structure of the expert system is introduced bymeans of user assertions or the addition of ground-breaking precedents of high warrant.A valid criticism of the deep-structure expert system is that it relies on the user to addcritical sources to the database and relies on the user to make judgments as to which competingcausal claims are more plausible. The first concern could be alleviated through automaticcollection of critical material. The second concern is unavoidable. The social order determineswhat is plausible and this is exogenous to the deep-structure expert system. The deep-structureexpert system only purports to be a tool, so these judgments are left to the tool-user. The usermight choose to ignore critical argument generated by the deep-structure expert system, but atleast ideological effects would have been exposed.Coherency ConstraintDeep-structure expert systems derive their usefulness insofar as they incorporate the essentialfeatures of any complex adaptive system and they measure plausibility in a manner consistentwith language's pragmatic solution to epistemological limitations. This suggests possibleshortcomings. In general, complex adaptive systems need not be subject to the coherencyconstraints of language. A complex adaptive system, for example, could function successfullyusing inconsistent rules that are selected for application probabilistically. On the other hand,applying the coherency constraints of language appears to be the most effective strategy forgenerating plausible alternative rules. And, as noted above, unlike many complex adaptive195PROLEGOMENA TO A POSTMODERN THEORY OF LAWsystems, human culture is constrained from simultaneously testing multiple experiments andletting the losers be annihilated by the brute force of selection. Until we understand complexsystems better, it appears that language is the best alternative for generating plausible adaptivestrategies.General Deep Structure Not ComplexIt might be argued that the deep-structure expert system is too weak because it does not itselfconstitute a complex adaptive system. This objection misses the point that the system is intendedto avoid the unpredictable complexity of legal doctrine and relies on the user to monitorunpredictable developments in the social order. The general deep structure is not complexbecause the form of human reasoning capacity is likewise constrained.The deep-structure expert system has the potential to become a complex adaptivesystem. Its potential complexity is obscured by the fact that its database continues to retainprecedents regardless of later developments. As new precedents or causal claims are added, thepremises of arguments will be affected, creating the possibility of positive feedbacks, lengthyreiterating arguments and chaotic results. The deep-structure expert system designer must decidewhether to re-evaluate all arguments each time a potential premise is affected by an intermediatecomputation. The current design of the system does not, which is justified only becauseperformance constraints generally preclude humans from working out the full implications ofrevising a particular belief. 18 To what degree courts will attempt to make the deep structurecoherent depends on the intellectual energy each court is willing to apply to the task. The currentdesign assumes that in each case courts only seek local consistency and leave it to subsequentcourts to deal with the deeper inconsistencies that are important enough to require additionaljudicial decisions.18 Harman , Change in View.196EVOLVING THE DEEP-STRUCTURE MODELInability to Model Social OrderA major shortcoming of the deep-structure expert system is that it only attempts to model thedeep structure of the legal order. No attempt is made to predict changes to the social order orchanges in language. However, complexity theory demonstrates that predicting such changes isimpossible. It would be a flaw in the deep-structure expert system to purport to do so. Changesto the social order are accommodated to some degree by allowing changes to the causalassertions, factual assertions and goals.However, evolution of the language and, in particular, evolution of the concepts used toexpress goals and assertions are serious problems for the deep-structure expert system. Changein the language is not directly accommodated in any way analogous to how changing factual andcausal assertions are accommodated. The seriousness of the language problem will be directlyproportional to the rate of change in language compared to the rate of change in the legal order.The deep-structure expert system will be useful to the extent the pace of change in the legal deepstructure exceeds the rate of evolution of the language.No Model for Doctrinal RulesLegal doctrine is a pragmatic response to the problem of information costs. Doctrine has tofinesse the gap between what is provable in court and what is capable of justification outside ofinstitutional constraints with the benefit of time and other resources. Moreover, doctrinal rulescannot predict improvements in knowledge about social orders. As a result, doctrine functionsas a collection of myth-like rules designed to efficiently regulate the bulk of contentious socialproblems it handles. A strength of the deep-structure expert system is that it avoids doctrinalconcepts, except to the extent such concepts enter the deep structure through the social order andthe language of causation. The deep-structure expert system accomplishes this by shifting the197PROLEGOMENA TO A POSTMODERN THEORY OF LAWburden of information costs onto the user, who decides whether various assertions could beproved.At this stage of its development, the deep-structure expert system provides no link todoctrine at all. All argument is in terms of deep structure and it is left to the user to convert deep-structure arguments into doctrinal arguments. It would be useful if the deep-structure expertsystem could also generate argument in terms of doctrine. However, it is difficult to model therelationship between deep structure and doctrine. Doctrine is a constrained system of rules thatevolves to pragmatically match the legal order's evolving deep structure.19 It is not possible tofix a set of rules for creating doctrinal rules to efficiently implement the deep structure.20Doctrine is a complex system that evolves as chaotically as any other complex adaptivesystem—doctrinal revolutions are analogous to the scientific revolutions described by Kuhn.The additional constraint on the evolution of doctrinal rules is to maintain simple, lowinformation cost rules that still closely match the more subtle, underlying deep structure.21There are strategies for generating doctrinal argument from deep structure, even in theabsence of a fully articulated theory of the relationship between doctrine and deep structure. Forexample, the advocate could draw on unprovable policy assertions via metaphor to manipulatethe judge into intuitively favouring one interpretive canon over another. Similarly, suchmetaphors suggest possible factual distinctions as candidates for doctrinal amendments.Description of Social GoalsThe relationship of the deep-structure expert system to social goals is also problematic. Nophilosophical justification can be offered that privileges one particular description of law's19 John Dewey, "Logical Method and Law" (1924) 10 Cornell Law Quarterly 17-27.20 This is equivalent to the problem of deriving a set of rules to deduce genotype from phenotype. Doctrinal rulesare the genetic building blocks, and the effect of doctrine as a whole is the phenotype.21 The enhanced degree of subtlety is proportional to the extent of increased budget for information costs enjoyedby the deep-structure model. Doctrine is pragmatic by channeling the worst effects of information deficiency awayfrom the most common matters the courts encounter. In this respect, doctrine attempts to manage inaccuracy in amanner similar to discourse. The difference is that the court's inherent institutional knowledge gap can beidentified from outside the system, whereas there is no such transcendental perspective to evaluate discourse.198EVOLVING THE DEEP-STRUCTURE MODELimplicit goals over any other. The characterization of goals is purely a pragmatic attempt toformulate a conceptual system that accounts for the results of judicial outcomes and producesarguments that are empirically plausible. It will doubtless be the case that judicial outcomes aremore complex than the deep-structure model. Nonetheless, it is probably the case that only bycreating and testing deep-structure expert systems could additional complexities be revealed—Newtonian physics was the foundation for discovering relativity and quantum physics.A damaging criticism of the deep-structure expert system is that the constitution of thesocial goals is not made transparent to the user. The deep-structure expert system would beimproved if it could generate critical argument about the goal formulations. This is onlyaccomplished indirectly through the introduction of critical causal assertions. This limitation ofthe deep-structure expert system is related to its general inability to deal with evolution oflanguage.ParatextsThe use of deep-structure expert systems can be criticized for stifling the potential variety offorms of legal argumentation. Ronald Collins and David Skover argue that the modes ofexpression and communication in legal process have a profound effect on the law itself.22 Theauthors predict that the introduction of electronic media will transform the appellate process in amanner similar to how shifts from orality to writing, and from writing to print, previouslytransformed the nature of common law.The shift to print has had a decontextualizing effect, consistent with the general trend ofmodernism. In print media, facts and reasons are abridged to suit the typographic text. Rules arederived from the texts to govern future cases. Typography thus enhances the modernist valuesof uniformity, predictability, universality, and analytic applicability of printed commands, and atthe same time, denigrates all that is personal and subjective, particular and disorganized, fluid22 Ronald K.L. Collins and David M. Skover, "Paratexts" (1992) 44 Stanford Law Review 509-552.199PROLEGOMENA TO A POSTMODERN THEORY OF LAWand open-ended.23 If the appellate courts elected to view "paratexts" (the creations of anyelectronic media, such as a videotape of the evidence presented at trial or a videotape of contractnegotiations), it would be difficult to remain immune from contextual messages. The authorsask whether law could continue to pursue abstract principles of law once paratexts are used andconjecture that the era of paratexts would move law away from "Gutenberg jurisprudence" andcloser to a "gestalt jurisprudence," which would be premised on the notion that a case could notbe severed from the entirety of its context.24If this were indeed the trend in law it would deal a severe blow to expert systems, whichare entirely rule-oriented. Deep-structure expert systems entirely lack ability to integrateperceptual analysis of videotapes into its conceptual deliberations. Presumably, the appellatejudge would become like an art critic—"I know credible evidence when I see it!" An advocatewould learn evidence law by viewing the tapes relied on by appellate courts. Case reportingwould be utterly transformed.The "paratexts" scenario is another form of implicitly rule-governed behaviour. We donot have to abandon language and rule-governed reasoning in order to re-contextualize appellatedecision-making. Decision-making can be re-contextualized with empathy. Paratexts will bevery useful in enhancing the capacity of appellate judges to empathize with marginalizedsubjective experiences and should be encouraged. However, enhancing the capacity toempathize serves the goal of enriching the discourse to reflect new relevancies. It would be amistake to abandon deep structure for some form of aesthetic capacity.Access to Expert SystemsThe final criticism of deep-structure expert systems considered here is whether the availability ofexpert systems would itself cause oppressive results. This question could only be resolved23 Collins and Skover, "Paratexts," at 534.24 Collins and Skover, "Paratexts," at 551.200EVOLVING THE DEEP-STRUCTURE MODELthrough empirical inquiry, which is beyond the scope of this thesis, so the comments here aremerely speculative.Access to expert systems could become a privilege effectively restricted to dominantsocial groups. To the extent expert systems were an effective tool, restricted access wouldexacerbate power imbalances. On the other hand, the trend in computer technology has recentlybeen in the other direction, namely, decentralization of computing power. Transferring legalexpertise from the intuition of a small number of privileged experts into a more public domainwould be analogous to the creation of public libraries. Even if technology remained beyond thereach of many oppressed groups, expert systems could be used to great effect by the "cadres."Indeed, Marx and Lenin spent a good deal of time in public libraries in London and Switzerlandto great effect, notwithstanding much of the proletariat could not read.Assuming, then, that deep-structure expert systems could be accessible to those whowould use them in good faith, would expert systems be useful or harmful? To the extent thatexpert systems merely make law more efficient, they would perpetuate and entrench existingpatterns of social domination. On the other hand, expert systems might increase access to legaladvice for disempowered groups. Their limited resources would therefore be used moreeffectively. Even if this did not give them a greater direct voice in the development of the law, adeep-structure expert system would help expose the ideological elements of the particular deepstructure perpetuated by the legal system. To the extent ideology was made more generallyapparent, either the prospects for reasoned change would be enhanced (by undermininglegitimation of power imbalances) or the manifest impossibility of rhetorical argument ornegotiation would signal the need for alternative means to seek empowerment. Disempoweredgroups would thus waste fewer resources seeking a legal solution to their problems and pursuestrategies outside the legal process.201PROLEGOMENA TO A POSTMODERN THEORY OF LAWConclusionIt is possible to design expert systems that avert the worst ideological features of liberalism andlegal positivism. It is even possible to design expert systems to assist in the formation of criticalargument. It is not possible to prevent bad-faith users from ignoring the critical possibilities ofexpert systems—you can lead a horse to water but you can't make it drink.Deep-structure expert systems suffer some of the same inherent limitations as does thehuman intellect. Transformations in the social order are unpredictable. The deep-structure expertsystem accommodates such change by allowing the user to add competing factual and causalassertions of different plausibility (warrant). The deep-structure expert system does not directlyaccommodate conceptual changes in the discourse, and this is a serious problem that should beaddressed in future work. For the time being, deep-structure expert systems are useful to theextent conceptual change is relatively slow.Whether the availability of deep-structure expert systems will be progressive orregressive for oppressed groups is an empirical, sociological question. It is similar to askingwhether the availability of better, cheaper lawyers would be beneficial. If only the powerful gotthem, egalitarian goals would probably suffer. If both sides got them, the subtlety of argumentwould be enhanced, enhancing the likelihood of more egalitarian social solutions.25Awareness of critical argument could result in more sophisticated ideology. In response,critical studies would have to sharpen critical analysis even further. In response to this, ideologywould become even more sophisticated, to which criticism would again have to respond, and soon. The result of such a predator-prey arms race should be more complex and useful socialtheories with which to analyze and redress social problems.25 Adversarial relationships (including predator-prey, parasite-host, mutual competitors) tend to increase the paceof evolutionary development. See Levy, Artificial Life, at 201-202.202Concluding ObservationsClassical jurisprudence has not developed useful models of legal reasoning because it begins byasking questions unrelated to the question how legal reasoning works. The presupposition inclassical jurisprudence was that progress would be made by making concepts analytically clearand coherent, so that underlying conceptual and normative problems would be exposed.The theory of complex adaptive systems shows that this approach was misguided byattempting to create clarity, certainty and precision where none was warranted. The genius oflegal reasoning lay in its ability to reach decisions using poor quality knowledge andimprecision, and to steadily improve the quality of decision with the quality of institutionalknowledge.We have seen that the disease of assuming there is precision where none exists(modernism) can be cured by postmodernism. Critical thinking is the program of exposingknowledge optimism, the interests it serves, and the means it employs. But critical thinkingalone does not produce social reform. Insights from complex adaptive systems must beemployed in a program of constructive postmodernism.The philosophical purpose of constructive postmodernism is to show how meaning andcreativity remain important features of the human condition. The operational purpose is to showhow to build bridges from ideological, modernist positions to solutions that can be seen torespect their justifiable concerns.By demonstrating how knowledge about social orders is constructed, constructivepostmodernism shows how legal reasoning can continue to progress in incremental fashionwithout being ideological. Computational modeling of legal reasoning will be instrumental torefining the structure of legal reasoning and facilitating exposure of the vehicles of ideology.Moreover, computational modeling will facilitate empirical verification of postmodernjurisprudence.The theory of complex adaptive systems shows another important role for computers—simulation of social orders. The ability to simulate evolutionary processes has allowed scientists203PROLEGOMENA TO A POSTMODERN THEORY OF LAWto derive new principles of evolutionary change that they have verified by subsequentobservation of nature. Computer simulation of emerging social orders, by simulating theinteractions of rule-following agents, has potential for vastly improving the quality of ourmodels of social orders. This alone would permit law-makers to be much less incremental andspeed the pace of plausible social reform. Legal scholars should be especially concerned withmodeling the social orders constituting legal process.Finally, computer simulations based on the principles of complex adaptive systemsallow one to "flight-test" variations to rules. This offers the possibility of discovering morecomplex and optimal solutions to the problem of mediating the clashing fitness functions ofindividual, class and various social orders.204GlossaryAttractor^The mathematical structure that describes the topographical properties(the geometric shape) of the nondeterministic regularity in the behaviourof a chaotic nonlinear dynamical system.Chaos^Chaos Theory—Denotes the condition of a nonlinear dynamical systemthat exhibits sensitive dependence on initial conditions such that completedeterministic knowledge about the system is impossible.Complex Adaptive System Theory—Denotes increasingly aggressivealteration of the elements of a nonlinear dynamical system to disrupt orvary the system's attractor. The promotion of increased instability of asystem's attractor over time.Computational ModelA computational model is a model that is specified in concepts andrelationships that are capable of being simulated on a computer. Theability to simulate a model allows us to better visualize, test, vary orrefine the model. Computability also implies favourable mathematicalproperties that suggest the logic in the model is more easily capable ofexisting in physical processes.Constructive PostmodernismConstruction of knowledge about the world by evolution without perfectinformation, without perfect language, and without the possibility ofperfect knowledge about reality. The study of the evolution of knowledgeby complex adaptive systems.205PROLEGOMENA TO A POSTMODERN THEORY OF LAWDecadence^The state where inappropriate associations in the subconscious mind(neuroses) control an individual's behaviour but this neurotic control isdisguised by rationalizations based on knowledge optimism.Deep-Structure Expert SystemA legal expert system is a computer program that a person can consult foradvice on a legal issue. A legal expert system based on legal positivismprograms the logic of a code of doctrinal rules (such as tax rules). Adeep-structure expert system ignores doctrinal rules and analyzes legalprecedents in terms of the social goals they serve. A deep-structure expertsystem decides legal questions by projecting the ranking of goals implicitin the precedents to the hypothetical facts being considered.Doctrinal Rules^The express rules set out in statutes and court decisions. For example,the tax code is a set of doctrinal rules. In contract law, the rule that acontract is unenforceable unless there is consideration is a doctrinal rule.Dynamical SystemA collection of components that interact over time. The instantaneousstate of such a system can be described by assigning mathematicalvariables to represent features of the system. The dynamics arerepresented by a rule for transforming the current state description intoanother description for another time.Epistemology^The study of what constitutes knowledge and what can be known.206GLOSSARYEssentialism^Belief in the possibility of a language based on knowledge optimism. Abelief that studying the "essences" of concepts in a language providesknowledge about the world.Fractal^A type of strange attractor. It generally consists of a pattern that repeats atall levels of magnification (like a coastline) and tightly packs into layerswithout crossing itself, thereby giving the appearance of a texture ofhigher dimension (like a filo pastry or croissant).Goal-Based ReasoningDoctrinal reasoning is the application of doctrinal rules to a set of facts todecide a legal problem. Goal-based reasoning analyzes rules in terms oftheir social purposes. Precedents and statutes are viewed as authoritativerankings of competing social goals in different situations. A judge usinggoal-based reasoning examines the causal links between a set of facts andsocial goals and uses the rankings implicit in legislation and precedent todecide the new case.Ideology^The state where the need to preserve inegalitarian allocation of socialpower among social groups controls the construction of legal rules butthis indirect control is disguised by rationalizations based on knowledgeoptimism.Knowledge OptimismThe belief that all features of all systems, including nonlinear dynamicalsystems, can be deterministically accounted for by laws of cause andeffect and deductive logic.207PROLEGOMENA TO A POSTMODERN THEORY OF LAWKnowledge PessimismThe attitude that since a science has failed to and seems incapable ofproviding a microreductionist theory about a system, knowledge aboutthe properties of the system is not possible and all attempts should beabandoned.Liberalism Faith that an egalitarian society will result by safeguarding self-evidentindividual rights through the rule of law. The rule of law assumes thatgovernment discretion can be controlled by laws that are either self-evident fundamental rights (constitutional individual rights) or reflect thewill of the community (legislation). Egalitarianism is assumed to followfrom the principle of equality before the law.Microreductive TheoryA theory about a system that deterministically accounts for all propertiesof the system in terms of its constituent parts, precise laws of cause andeffect, and deductive logic.Modernism^A faith that the world can be, in principle, completely known ordescribed by a unified, perspective-free theory based on clear and distinctideas, self-evident truths and deductive logic.Nonlinear Dynamical SystemA dynamical system whose evolutionary equations are nonlinear.Intuitively, the value of certain variables are subject to positive feedbacksas the system evolves.208OrderGLOSSARYChaos Theory—A synonym for attractor. Hayek uses the term order torefer to social institutions in society, rather than the structure of society ingeneral, and distinguishes between spontaneous orders and designedorders. Legal writers tend to refer to the entire structure of society as thesocial order.Complex Adaptive System Theory—The promotion of increased stabilityof the attractor of a nonlinear dynamical system over time.Positive FeedbackThis happens when the result of a process becomes an input factor thatpromotes the continuation of that process.Postmodernism^A belief that most systems in the world warrant neither knowledgeoptimism nor knowledge pessimism, but allow for complex adaptivesystems of knowledge measurable by plausibility.Relativism^The belief that there are no criteria to evaluate the relative worth ofconflicting moral codes—everyone is free to construct their own versionof truth as they please. Perspectivism claims that because language isimpoverished and we can only experience the world through language,many incompatible perspectives are equally valid; however, perspectivescan be evaluated in terms of one's own experience or shared experiences.Constructive postmodernism restates perspectivism in terms of complexadaptive systems. Many knowledge optimists incorrectly claim that if youdo not believe there is a single universal truth, then you are a relativist.209PROLEGOMENA TO A POSTMODERN THEORY OF LAWRobust Agent^A person with the capacity to acquire knowledge, make rational decisionsbased on that knowledge, and to implement those decision into action.Schema^A model about the world that is implicit in an order.Strange Attractor In a nonlinear dynamical system that loses energy, the attractor is a shape(topology) of non-integral dimension. A fractal is an example of a strangeattractor.Teleological^Goal-oriented. The development or application of mechanisms as meansto an end (a goal, a final cause). If the mechanism evolves because ofmultiple experiments which have been weeded out by reason of a finalcause (such as survival), an a posteriori teleology is said to arise since theteleological influence is indirect. [The term "teleonomic" is sometimesused in philosophy of science and biology, but this thesis avoids thisneologism as it is confusing and unduly preoccupied with responding totheological explanations of biology.] A teleological model of legalreasoning is one that emphasizes the social goals served by laws.Topological ModelsModels that qualitatively describe the general behaviour of a chaoticsystem. The chaotic nature of such systems means that mathematicalmodels cannot yield precise predictions, so that a graph depictingpossible future states will result in a multi-dimensional geometric shaperather than a definite point. 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