Laws Of Unintended Consequence: A Warning To Policymakers
This week Caryn Devins joins 13.7 regular Stuart Kauffman to consider the role of reductionism in our legal system. Devins is a third-year law student at Duke University School of Law.
An all-too-common reaction to a given societal ill is to bellow – with righteous indignation, of course – that "There should be a law against that!" For drug abuse, internet bullying, bigotry, even rudeness, we have become a society conditioned to expect legal solutions to social problems.
Implicit in our faith in the legal system, however, is the assumption that there is a linear relationship between the passage of a law and the consequences enabled by that law. This assumption dictates that if we attach a civil or criminal penalty to an undesirable behavior, then we should see less of that behavior. In the legal world, this concept is known as deterrence, and since the writings of Jeremy Bentham it has been at the core of criminal justice policy.
Yet it only takes a cursory study of this nation's drug prohibition policy, particularly the 40 million arrests it has generated since 1970, to acknowledge that the idea of deterrence has little empirical support. This is because deterrence, along with most core concepts in our modern legal system, falls prey to the reductionist fallacy.
An intellectual tradition that has captured the world since the invention of Newtonian physics, reductionist methodology breaks down systems by studying their component parts. Accordingly, reductionism assumes that by understanding the parts, we can understand the whole. Early evolutionary biologists, for example, believed that macro-scale phenomena, such as the emergence of a new biological species, could be explained by the microscopic process of gene variation and natural selection in individual organisms. Now group selection and species-level selection are parts of evolutionary biology.
In short, recent scientific advances have undermined the reductionist view of change in biological organisms and ecosystems. The assumption that isolated genes "cause" particular phenotypes, or physical traits, turned out to be wrong. Instead, scientists realized that "genes" are not isolated entities like beads on a string, one per trait, but rather complex, interconnected regulatory networks.
Physical traits are actually emergent properties arising from the complex interactions within these networks. It is rare that they can be understood by looking at any given gene.
The legal system is a complex, dynamic system akin to a biological ecosystem.
Yet, like the original evolutionary theorists who assumed a linear relationship between genes and physical traits, mainstream legal analysis is still thoroughly reductionist.
Legal policy makers largely assume the same linear relationship between individual laws and the behaviors of the legal system, and consequently society. This assumption is dramatically wrong. Each statute, each regulation, each case-law precedent serves, in the entire web of the law, as an adjacent possible niche, a tool that enables un-prestatable consequences. The behaviors enabled by our vast, complex network of laws lead to outcomes markedly different than those sought by the policy makers who enacted each individual law. You could say, this is the law of unintended consequences.
The distinction between reductionism and emergence is far from semantic.
Reductionist thinking ensures policy-making that is as destructive as it is uninformed. The passage of many individual laws, each seemingly inspired by common sense, can in the aggregate unleash unforeseen cruelty. There is perhaps no example more poignant than the American fascination with utilizing the force of law to repel people from sin. Personal behavioral choices deemed immoral, including drug and alcohol use, abortion and prostitution have been punished with differing degrees of severity. Even attitudes deemed unacceptable, such as personally held bigotry, have been specially targeted through sentencing enhancements in hate-crimes legislation.
But are humans merely Pavlovian dogs, ripe for social conditioning? Does aberrant behavior disappear once it is criminally proscribed? Let us acknowledge the true answer: Of course not.
These laws do not solve social problems. They do trigger a litany of unintended, cascading consequences — from black markets and the violent drug cartels they spawn to a prison system that incarcerates 25 percent of the world's prisoners in a country with only five percent of the world's population. These emergent consequences counsel against using the legislative process to enforce personal moral values.
The temptation toward formal moral condemnation — known in the legal world as the "expressionist" function of law — is bipartisan. It is fundamentally not an ideological problem, but a conceptual one. Yet the use of law to force changes in individual behavior often ultimately ushers in deep social pathology that hurts conservatives and liberals alike.
A law may be passed with noble intentions, but its uses inevitably stray far from its original purpose. As the legal system evolves dynamically, laws come to serve as adjacent possible niches, typically for the benefit of the powerful and to the detriment of the powerless. The more numerous the laws, and the heavier the sanctions, the greater the opportunity for persecution of the innocent.
As law professor Grant Gilmore once observed, "In Heaven, there will be no law, and the lion will lie down with the lamb. ... In Hell, there will be nothing but law, and due process will be meticulously observed."
We ignore the emergent consequences of law at our peril.
Next week, we will examine the criminal justice system's most notorious deterrence-gone-wrong story: federal sentences for crack cocaine.