Complexity theory developed in the natural sciences as a way of explaining how patterned order like a starling murmuration could emerge without a guiding hand or central controller. Complexity theory is firmly established in the natural sciences, and its insights have also been relied on in the social sciences to, for example, elucidate the workings of the global financial system.
Increasingly it is accepted that we can, and should, think of law as a complex system – the result of the actions and inter-actions of law actors (legislators, judges, etc.) in a networked relationship, operating with no overall guiding hand, giving rise to complex collective behaviours that can be observed in patterns of law communications.
Complexity theory is, then, another possible addition to the list of legal theories, which includes, for example, natural law, positivism, sociological jurisprudence, realism, critical legal studies, feminist jurisprudence, postmodern jurisprudence and critical race theory. But complexity is not just another possible approach to be added to a list. If we accept that law is a complex system, we should apply the insights from complexity theory to the study of law.
To understand the possibilities of complexity theory, consider the following:
A legal researcher is tasked with writing a report on the law on the protection of wild animals. She draws up 3 lists of the legislative provisions, court decisions, and governmental regulations. But, she knows she must also consider judicial cases on the interpretation of legislation, the way government regulations have implemented acts of parliament, and any reliance by the courts on executive orders. Now she can see a networked relationship between the rules adopted by the legislature, courts and executive, evidencing a more complicated picture than suggested by her 3 lists, and, being a talented computer scientist, she develops a programme to model those relationships. But, still, she sees only part of the picture, as there will be relevant legislative provisions and judicial decisions in property law and human rights law, etc. When writing her report and reflecting on the legal rules and networks of relationships, she begins to see patterns in the rules, a body of “Wildlife Law”, albeit that its content is not always clear, and she must make choices when filling in the gaps in this Wildlife Law, and in the exercise of that discretion, we would expect (and hope) she would use her professional and ethical judgement.
The scenario highlights the different ways complexity theory can be used in legal research: in observing the complicated nature of law communications; in suggesting the possible use of new technologies; in emphasizing the organizing properties of emergent phenomena; and in pointing out the ethical responsibilities of the legal researcher.
The first approach equates complexity with complicatedness – the notion that the law system is simply too complicated, or complex, for any mortal lawyer to understand. The literature here highlights the difficulties of capturing every combination and permutation of legal rules and practices.
Second, and related to complicatedness, is the idea of computational complexity, which draws on the mathematical theory of complexity outlined by computer scientists to develop computational algorithms to model law systems.
Third, there is the approach that sees emergence – the idea of ‘the whole being more than the sum of the parts’ – as the distinguishing feature of complexity. Emergence describes phenomena that arise from and depend on the interaction between underlying phenomena that are at the same time autonomous from those phenomena: something new emerges from ‘below’.
Finally, there is the general (or postmodern) approach to complexity, which regards all attempts to produce laws of complexity as a negation of the insight that some systems cannot be modelled perfectly because they are complex systems. We must, so the argument goes, recognize the limits of our knowledge of the law system, and the ethical responsibilities of lawyers and law academics when writing about the law.
These themes – and the different approaches suggested complexity – are explored in a new collection of essays on the subject: Complexity Theory & Law: Mapping an Emergent Jurisprudence, edited with Jamie Murray & Tom Webb (Routledge, 2018). The work addresses such questions as how we understand the idea of law, the role of law as a regulatory tool and the advantages of an approach to legal questions from complexity, including the academic function of critique.
An introductory chapter, ‘Encountering Law’s Complexity’ introduces the reader to the science of complexity, explains the basic idea of complexity theory, outlines the ways complexity has been used in the academic discipline of law, and to provides an outline of the chapters in the collection. This Chapter is freely available online (Introduction: Complexity theory and law).
It is time that law academics acknowledged the complexity of the law system. And to do that, they must look to complexity theory to explain the nature of law.