Volume
3, March 2003
The Problem of
Observation
Introduction
There is perhaps no area more popular or in demand among
legal academics and faculties of law recently than the amorphous area known
alternatively as ‘law and science’ or ‘law and technology’ or ‘law, science and
technology’ or some other combination of these terms. In truth, these areas of
research are better described as ‘the law as applied to recent developments in
science, technology, biology, etc.’ a description making for a less catchier
title perhaps. Nevertheless, academics active in these areas research the law
of new technology, or the law of scientific innovations, or the law of
biological developments. They do not research law and science or law and
technology or law and biology as such, i.e., as two disciplines sharing some
common epistemology or ontology or enjoying other insightful analogies. Theirs
is not an inquiry into the common foundations of science and law, but an
investigation that has been carried out many times before, of the laws and
legal doctrines relevant to specific forms of human behavior. In these
instances, it is an investigation as to what rules and regulations should cover
the newly developing frontiers ranging from computer networks to embryonic stem
cells.
These
are of course extremely important and worthwhile inquiries. In this article,
however, I will not be concerned with this form of academic activity about the
law. What will concern me here is that other way in which an inquiry into ‘law
and science’ can be understood, as an investigation of how, and in what manner,
law and science are similar. My argument, interestingly enough against the
background of proliferation of such inquiries, is that law and science (I shall
limit my discussion to the discipline of physics) share not only some
interesting superficial analogies but also a deeper, common epistemological
basis. More accurately, there are epistemological limits placed on both law and
physics that are in all important respects similar. These limits on the
‘quality’ of knowledge imposed on both physicists and lawyers are known as a
Problem of Observation existing in the disciplines of physics and law.
The
term Problem of Observation is a term that was first coined by the Danish
physicist and philosopher of science Niels Bohr.[1]
It signified for Bohr, in a manner that I shall discuss below, the limits of
attainable knowledge in physics as evidenced by theoretical developments and
practical experiments in quantum mechanics at the time. It signified that the
time-honored method of learning through theorization and experimentation,
grouped together somewhat inaccurately in English by Bohr to be called
Observation, suffered from a fundamental breakdown that imposed limits on what
exactly could be learned and the manner in which it was learned, a breakdown
that could be termed in what was a bit of an understatement as a ‘problem’.
Hence, Bohr’s Problem of Observation.
Of
course, what was for Bohr ‘merely’ a Problem of Observation signified for
others, most famously Einstein, what could be called a ‘problem of reality’.[2]
According to Bohr’s opponents the puzzles created by quantum physics indicated
that the knowledge learned through quantum physics could not ultimately reflect
reality. There had to be, according to Einstein, a more fundamental theory of
physics that would, through the knowledge it provided, solve the puzzles of
quantum physics. The debate between Einstein and Bohr was therefore a broad
philosophical one. Einstein understood quantum physics to be an ontologically
flawed theory. It made for an understanding of physics that was incomplete and
inconsistent with other theories, such as Einstein’s theories of special and general
relativity. Bohr thought that Quantum physics did not produce an inferior
understanding of reality, but a philosophical realization that there are limits
to the regular method of obtaining knowledge. According to Bohr, the special
circumstances of quantum physics brought to the foreground an epistemological
problem that potentially existed in many other disciplines. Although I will
base my discussion of the Problem of Observation in law on Bohr’s philosophical
insights into physics I should note, therefore, that Bohr’s insights were not
accepted by a significant portion of physicists attempting to ‘make sense’ of
quantum physics, and led at the time by none other than Einstein.
With
that in mind, I will discuss Bohr’s Problem of Observation as it is manifested
in physics, then distill from it along Bohr’s lines of inquiry its essential
elements, those elements necessary (and put together, sufficient) for a Problem
of Observation to appear in any discipline of academic research. After
identifying these elements, I will show them to exist in the area of law and
therefore conclude that a Problem of Observation exists in both physics and law
despite these disciplines’ many obvious differences. Finally, I will indulge in
a bit of speculation as to what the existence of a Problem of Observation in
the study of law may bring about. Since academic legal activity has been
conducting itself unaware of such an epistemological problem it will probably
not come as a great surprise that a Problem of Observation means little to the
great majority of work done in legal research (just as, coincidentally, it
means little to the majority of work done in physics). Where the existence of a
Problem of Observation does have an effect is in the area of jurisprudence and
legal theory, which has been enjoying a renewed interest in methodology, and I
shall discuss its implications on the renewed, ‘pragmatic’ way of conducting
jurisprudence.[3]
One
more caveat before I begin my discussion of physics and law. My argument will
not be that legal reasoning (usually distinguished from or compared with moral
reasoning)[4]
and scientific reasoning are the same. That is, I do not argue that knowledge
is gained or should be gained in law and its areas of interest in the same
manner that knowledge is gained or is purported to be gained or should be
gained in those disciplines of the exact sciences such as physics or
mathematics. Although such an argument could be made, and indeed has been
practiced by many (most notably perhaps by Austin)[5]
it is not my argument here. Rather I will argue that the manner in which
scientists interact with their subject matter, and legal academics with their
subject matter, whatever these respective subject matters may be, is similar
enough in a few crucial aspects to warrant the extrapolation of some
epistemological conclusions from the philosophy of science into the philosophy
of law.
Physics
It
is a famous anecdote that by the turn of the nineteenth century physicists
thought that save the minor problem known as ‘black body radiation’ all of the
important problems in physics had been solved.[6]
Little did they know that this ‘minor’ problem would prove such a can of worms
to their aspirations that within a matter of decades the discipline of physics
would be turned on its head, with strange and wonderful terms such as
‘uncertainty’ and ‘probability’ coming to the fore of scientific research. One
of the physicists attempting to make sense of all these developments was Niels
Bohr. The father of what today is known as the Copenhagen Interpretation of
quantum mechanics, Bohr set out to develop the philosophy of science so that it
would be able to furnish somewhat of an answer to the puzzles posed by the
experiments of quantum mechanics, puzzles that seemed, disturbingly enough, to
emanate from reality itself.
These
ontological puzzles (or more accurately in Bohr’s understanding,
apparently-ontological puzzles) ranged from the proper interpretation of light
(was it composed of waves, or particles?) to the inability of physicists to
measure certain attributes of particles that they were studying, attributes
that seemed to be coupled so that an increased knowledge of one came at the
expense of the other (the most famous pair is that of position and momentum).
Unlike Einstein (and others) Bohr identified an epistemological (and not
ontological) foundation (or lack thereof) common to all these puzzles, that he
called a Problem of Observation. But before arriving at this conclusion Bohr
took apart the elements of scientific research, as he understood them.
According
to Bohr academic activity in physics was divisible into two major forms of
‘observation’.[7] One was the form of academic work known as
theorization. Bohr called this form the mode of description.[8]
The second was the form of academic work known as experimentation. Bohr called
this mode the interactive mode of observation.[9]
In order for academia to flourish (in physics at least) both interactive and
descriptive (or non-interactive) modes of observation were not to impede each
other. Once such an impediment existed a Problem of Observation occurred.
What
these modes of observations consist of is pretty self-evident from their
titles. The mode of theorization is quite simply the mode in which the
physicist theorizes about whatever natural phenomenon the said physicist is
currently preoccupied with, such as the nature of light, or gravity, or
elementary particles, or multi-dimensional super-strings, whatever those may
be. As an ideal mode of activity, it consists of the physicist detaching
himself or herself from her subject matter, reality, and using the concepts of
the discipline (such as the notions of particle, or wave, or energy, or matter)
to construct a theory, i.e., an explanation utilizing these concepts to clarify
whatever aspect was of interest to the physicist in the observed phenomenon.
It
is important to note that this is an ideal description of scientific activity.
It is not intended, nor did Bohr intend it, to convey how scientific inquiry
actually transpires. What is of importance is that no matter how such research
does transpire it is divisible along Bohr’s lines, into a mode of theorization
and a mode of experimentation.[10]
The
other mode of observation, the mode of experimentation or mode of interaction,
is again, as its title conveys self-evident. In the mode of experimentation the
physicist ventures into the laboratory, that scene of experiments, in order to
conduct a series of active investigations into that aspect of the natural
phenomenon the physicist is interested in. The purpose of the experiments is to
expose or reveal a quantifiable observation about the nature of the phenomenon
at hand. Such an experiment, if conducted according to the appropriate
scientific methodology, is designed to yield objective, or at the very least
inter-subjective results, i.e., results that can be repeated (and therefore
verified) according to the same methodology by other researchers. So light may
be cast through one or two slits on a screen beyond, and the emerging pattern
recorded. Or the course of planets around stars may be recorded, or the
trajectory of particles emerging from the collision of two particle beams in a
particle accelerator, and so on.
Now
it becomes clears from the description of these examples of experiments that
experiments conducted without the aim of a certain theory in mind are few and
far between. In other words, experiments are designed with certain theories in
mind, and they serve (ideally) to support or refute these theories according to
the results that they yield. Similarly, out of an experiment designed on the
premises of a certain theory another theory may emerge as happened perhaps most
famously in the cases of ‘black body radiation’ experiments and photoelectric
cell experiments that ultimately led to the triumph of quantum mechanics over
classical physics.
There
is, therefore, a relationship or interaction between the two modes of
observation as described by Bohr. The mode of theorization gives birth to the
mode of experimentation, which in turn influences further theorization, which
in turn prompts further experimentation, and so on and so forth. When something
happens to this reciprocal relationship a Problem of Observation is created,
and the two modes of observation can no longer support each other and the
discipline they are conducted in. The alarming result is the seeming collapse
of the acquirement of knowledge.[11]
Bohr
identified two attributes of this reciprocal relationship between the two modes
of observation that he perceived as necessary to prevent a Problem of
Observation from occurring.[12]
These attributes or elements can be discerned from an analysis of the
methodological differences between ‘practicing’ the science of classical
physics and ‘practicing’ the science of quantum mechanics.
Suppose
I want to weigh a big, unwieldy, yet not too heavy textbook on tax laws and
ways to evade them (hence the book’s size). I have scales on which I weigh
myself every time I go on a diet but I cannot weigh my textbook on them since
they are designed for people to stand on with both feet in order for them to
function. My ingenious solution – I weigh myself with the book and then I weigh
myself without the book. The difference between the two measurements is the
weight of the book! My mastery of physics was enabled in this example by my
assumption that I could extract myself, quite literally, from the equation of
the book’s weight. My interaction with the experiment I was conducting, to use
a more sophisticated terminology, was determinate. I was able to know (here is
where my mastery of the laws of physics lies) in advance how my weight will
affect the total weight of the book and myself, and therefore I was able to
deduce, by conducting a series of experiments, the weight of the book. So the
first attribute of classical physics which enables the relationship between
theorization and experimentation is determinacy, the ability to know in advance
and in a quantitative form the effect the physicist will have on the experiment
conducted.
Suppose
now that before conducting my weight experiments I was eating chocolate while
leafing through my tax textbook. I accidentally smeared some pages with
chocolate, and I am now concerned that I changed the weight of the book (I
suppose I should be concerned about the effects of eating chocolate on my own
weight, but only for dietary purposes, not for the purposes of the experiment
since in both measurements the chocolate will already be inside of me.) For
most purposes my concern would be unjustified. Why? Because the weight of the
chocolate stain is quite negligible compared to weight of the book. I would be
unable to detect any difference between the stained and pristine versions of my
tax book using the scales I have at home. The second attribute of classical
physics is therefore negligibility. It is safe to assume, in those experiments
in which the physical physicist is not intended to be part and parcel of the
experiment, that the affect the physicist will have on the experiment is
negligible, and cannot significantly change its results. A car will continue to
zoom at 100 MPH, to give another example, whether or not a policeman watches
it. The officer’s vision (in this case his sight, or his radar, or his laser
gun, are the ways that the officer interacts with the ‘experiment’ – the
zooming car) will have no effect on the car’s velocity.
The
two attributes a scientist possesses when interacting with her experiment in
classical physics are therefore negligibility and determinacy. The affect of
the scientist on the results of the experiment can always be said to be either
negligible, or determinate, or both (but not necessarily both). Why are these
two attributes important to Bohr and the Problem of Observation? They are
important because their existence enables the reciprocal relationship between
the two modes of observation as defined by Bohr. The classical physicist builds
upon pre-existing notions in order to construct a theory of the natural
phenomenon observed.[13]
Out of the theory experiments are constructed, and conducted, in order to
reaffirm or refute the theory in question. But it is only because the effects
of the actual scientist upon the experiment are either negligible or
determinate that one can truly deduce the impact the experiment has had upon
theory. Were the effects not so negligible, or not so determinate, it would
become extremely difficult for such deduction to take place. In fact, argues
Bohr, a Problem of Observation would occur, and theory could no longer
explicitly rely on experiment for its purposes (and vice versa). The reciprocal
relationship would be broken.
That
is exactly what happens, according to Bohr, in quantum mechanics. First, some
experiments become inherently indeterminate. It is impossible to measure with
the same accuracy both the position and the momentum of a particle, for
example. One is always secured at the expense of the other according to the
principles of quantum mechanics. The scientist measuring one parameter causes
indeterminate changes in the measurement of the other. It is important to note
that for Bohr these were truly epistemological limitations, neither technical
measurement problems that will be solved one futuristic day, nor a reflection
of ontological flaws in quantum physics.[14]
Experiments in which interference patterns of light are created illustrate this
point beautifully. According to the theory that understand lights as waves when
one shines light through two slits an interference pattern (i.e., dark and
light strips) is created on a screen behind the slits. This is a famous and a
simple experiment, which has been conducted successfully many many times.
According to the theory that understands light as particles, however light is
constructed of, well, particles. It should be possible, according to this
theory, to position a detector between each slit and the screen and measure
where each particle of light passes on its way to the creation of the
interference pattern. However, when such detectors are positioned no pattern
emerges. It is as if the measurement of the particle-like attribute of light
comes at the expense of its wave-like attribute and vice versa (no detectors
yield a pattern of interference but no knowledge of where the particles of
light went either). The insertion of detectors (that symbolize the scientist in
this case) causes indeterminacy in the results of the experiment. It was meant
to measure the wave-like attribute of light but due to the interaction of the
scientist it can’t.
So
one ‘fact of life’ of quantum mechanics is that in some cases the interaction
of the scientist with the experiment leads to indeterminate results. Another
‘fact of life’ is that in some cases the interaction of the scientist with the
experiment cannot be safely neglected. For instance, experiments that attempt
to measure quantities like the energy or momentum of particles are interfered
with by the very light used to measure the position of those particles. The
light carries with it its own energy that is transferred to the particle which
is the focus of inquiry, altering its ‘original’ energy and momentum as a
result, so that it is impossible to determine what they were. The scales of
energy carried by the light and by the particle are similar, hence it is
impossible to neglect the affect the scientist has on the experiment. It is as
if I smeared so much chocolate as to indeed alter the weight of my tax book.
But negligibility (or lack thereof) is not only an attribute exhibited
microscopically, although the microscopic is the boundary at which classical physics
breaks down and quantum mechanics takes over. One of the more famous
macroscopic examples of the effects of non-negligibility (and of indeterminacy)
is the sad tale of Schrödinger’s cat.[15]
In this rather brutal example a cat is trapped in a sealed box. An ampoule of
cyanide gas is attached to the cage and a mechanism is constructed so that the
particle released upon the decay of a certain radioactive element triggers the
mechanism which then breaks the ampoule which then releases the gas which then
kills the cat. All that is known about the radioactive element is that there is
a 50% chance that it will decay within the hour. So what can the mad scientist
conducting the experiment say about the status of the cat after one hour has
passed? It is of course either dead, or alive. But scientifically the cat is
‘existing’ in a state that is a mixture of both outcomes, as long as the box
remains shut. It is both dead and alive so to speak, although such a statement
is of course, while mathematically correct, pure nonsense. The cat ‘becomes’
instantly dead, or alive, the moment it is observed by the scientist (say by
opening the box). The interaction of the scientist with the experiment is in
this case anything but negligible. It affects the results of the experiment and
leads to an epistemological conclusion unobtainable by other means.
Note
that if the interaction of the scientist with the experiment in all these
examples was indeterminate but negligible (I don’t know exactly how much
chocolate I smeared, but what does it matter anyway?) or significant (i.e., not
negligible) but determinate (my weight is not negligible but I know what it is)
one would not have a Problem of Observation, even when quantum mechanics are
concerned. A Problem of Observation is created only when the interaction is
both indeterminate and significant. In other words, while either attribute is
necessary to the creation of a Problem of Observation, neither is sufficient.[16]
Now
imagine that the interaction of scientist with experiment is both significant
and indeterminate. What happens to the reciprocal relationship between
experiment and theory? It breaks down. The scientist is unable to ascertain (or
refute) the theory which led to the experiment (and the notions at its base) by
means of the experiment’s results. And these results, in turn, cannot lead to
the creation or modification of theory since they are tainted in a manner that,
while significant, is undeterminable. The implication these results have on the
notions and theories, which led to the experiment, which produced the results,
is impossible to ascertain. Consider the (classical) notions of particle and
wave that are at the basis of theories about the nature of law. These theories
produce experiments, such as the two-slit interference experiment discussed
above. The results of these experiments are then supposed to reinforce (or
undermine) the theories about light and the notions at their base. But when the
results vary with the introduction of detectors, (that theoretically are supposed
to change nothing), i.e., with the interaction of the scientist with the
experiment then they cannot be said to relate in any manner to the theories
that prompted them. They neither reinforce nor refute them. The results of the
experiment and the theory are estranged. They have nothing to do with each
other. As a result, theorizing about light cannot progress. There can be no
theoretical evolution, no realization which conceptualization of light is
correct. Is it waves or is it particles? The experiments simply cannot help the
scientist decide. Knowledge about light, in this manner, can no longer be
gathered. There is a Problem of Observation.
How
is the Problem of Observation solved, or worked around? After all, physicists
have not abandoned their laboratories in droves after the theoretical
development of quantum mechanics. One solution is to abandon the classical
notions, and try and develop ‘modern’ notions. The talk about cats existing in
a ‘mixture of life and death’, of particles’ ‘probability functions’ and
‘spins’, of light being both wave and particle, are all attempts to create new
notions that will correspond better to mathematical formulations and gloss over
the Problem of Observation. But Bohr (again, unlike others) thought these new notions
do not really take the Problem of Observation away, but simply bury it in
layers of jargon. Bohr’s first important insight was that the Problem of
Observation was only a problem of observation, or investigation, or inquiry. It
was, in other words, an epistemological problem and not an ontological problem.
The puzzles and paradoxes of modern physics did not reflect a breakdown of
reality but rather a breakdown or an acknowledgment of the limited manner in
which scientists could ever hope to understand reality. In this Bohr resembled
Einstein more than either would perhaps care to admit. Einstein too did not
believe that the puzzles of quantum physics reflect reality, and devoted of
course a significant amount of his time to perfecting ‘thought experiments’ in
order to prove just that. Yet for Einstein the fact that quantum physics could
not ‘decide’ between the notion of light as waves and the notion of light as
particles, or the fact that quantum physics allowed one particle to affect
another instantaneously meant that reality could not be as quantum physics
portrayed it. For Bohr such puzzles reflected the inadequacy of our classically
developed physical notions to understand a reality more complicated than these
notions would allow for. And since Bohr also thought that classical notions
were the only intuitive notions that could figure meaningfully in any theory,[17]
i.e., in any attempt to simplify and explain interesting aspects of natural
phenomena he arrived at the conclusion that the problem he was facing was
epistemological, not ontological. The way could be found, and had to be found,
therefore, to retain the classical notions that were at the foundations of
theoretical knowledge and build further knowledge with them, despite the
Problem of Observation. And this assumption was Bohr’s solution. Bohr simply
postulated that classical notions that were the building blocks of the mode of
theorization superceded any epistemological problem that might occur. Bohr
decided that epistemologically the relationship between the two modes of
observation was more fundamental than the Problem of Observation, and therefore
had to be retained despite the Problem of Observation’s existence. After all,
it did serve to promote knowledge in the many cases where no Problem of
Observation arose. So Bohr came up with an idea known as Complementarity, which
was namely the idea that the two modes of observation are more fundamental than
the Problem of Observation. They always complement each other to form together
the basis of knowledge in any given discipline, and they continue to complement
each other in those instances where a Problem of Observation occurs.
The
idea of Complementarity is somewhat of a letdown as a solution to the Problem
of Observation. It is a workaround, a philosophical detour, constructed by Bohr
around the pothole that is the Problem of Observation on the highway of
knowledge. In the case of light, for example, it leads to the concession that
scientists will never fully understand the nature of light. Light is dual in
nature, and its complementary aspects, of particle and wave, are the only ways
in which scientists can conceptualize and theorize about it. So some
experiments will continue to enforce its wave-like nature, while others will
continue to enforce its particle-like nature, but a decision will never be made
between the two. Complementarity, or more accurately the Problem of
Observation, is in this sense a realization of the limitations of the
epistemology of physics, rather than an acknowledgement that quantum physics
does not provide a complete and consistent understanding of reality.
Disappointments
aside, the discussion of the epistemology of physics leads to the conclusion
that in the exact science of physics a Problem of Observation occurs when two
attributes coexist in the interaction of scientist with subject matter. These
two attributes are the interaction’s significance, and the interaction’s
indeterminacy. Details of quantum mechanics aside as well, these two attributes
can conceivably and potentially occur whenever an attempt to advance knowledge
is made, in any discipline. Indeed, his debate with Einstein whether the
puzzles of quantum physics reflect its ontological shortcomings or a more
general epistemological problem encouraged Bohr not to view the division of
academic research into these two modes as limited to physics. In later work he
attempted to extend it to disciplines such as biology and psychology, and
others have sought to extend it to disciplines such as anthropology.[18]
I argue below that despite the debate over it within the philosophy of science
the Problem of Observation can be shown to exist, not potentially, and not
conceivably, but specifically, in the study of law, but I am not even the first
to attempt and apply Bohr’s work to law. Englard attempted to do just that in
the area of private law, an attempt that was unsuccessful for several reasons
which I shall not go into here, not the least of which was the failure,
however, to recognize the shared epistemological basis of science and law, that
I shall now demonstrate.[19]
Law
Why
is law like physics? The short answer of course is that law is nothing at all
like physics. Law is not an exact science, there are no laboratories in which
lawyers experiment, no mathematics with which legal academics construct their
theories of law. So it seems a bit ridiculous, not to say pretentious, to
attempt and draw an analogy between physics and law that would be meaningful
and insightful to the study of law. Nevertheless I will show here that law and
physics share the same epistemological problem, the Problem of Observation. In
order to do so some form of analogy, even if only for the purposes of example
and illustration, must be drawn between physics and law.
In
Bohr’s ideal and perhaps naive discussion of the science of physics there was a
scientist attempting to decipher the secrets of nature, there was of course
nature itself (in form of whatever phenomenon or aspect of a phenomenon that
was of interest), and there was the manner in which the scientist observed
nature. This observation proceeded in two modes, the mode of theorization and
the mode of experimentation, which could be considered, as an attempt at
generalization, as a mode of interaction (experimentation) and a mode of
non-interaction (theorization). Accordingly, here is my suggestion for the
legal analogy: Bohr’s scientist is replaced with a participant in the legal
system (a term that should be broadly understood as referring to anyone that
discusses law or writes about law). Nature is replaced by law, and observation
remains, in a sense, observation. So that instead of the scientist observing
nature I now present you with the legal participant commenting on law.[20]
So far, so simple, even if not very impressive or perhaps accurate. Of course,
the foundation on which the Problem of Observation was able to grow was laid by
Bohr with his suggestion that observation occurs in two modes. Accordingly, I
propose two modes for legal writing. In one mode participants write about the
law as it is, and in the other mode participants write about the law as it
ought to be. I will therefore call these descriptive and prescriptive forms of
legal writing.[21]
Now
it is not my intention to classify every bit of legal theory and every last
legal article as descriptive or prescriptive. In fact, although it could
probably be argued that certain works are more descriptive or are more
prescriptive I think that every work is a bit of mix of both and discusses the
law as it is, the law as it should be, reasons for why the law is as it is,
reasons for why the law should change, and so on. So I cannot stress enough how
much I do not intend the above portrayal of legal writing to imply anything
about how legal writing is actually done. In fact, there is probably smaller
resemblance between my portrayal of the science of law and academic activity
about the law than there is between Bohr’s portrayal of the science of physics
and the work physicists actually do. What my division of legal writing into the
two modes of description and prescription actually achieves is a much humbler
goal. It enables the understanding of legal writing in a way conducive to the
realization that a Problem of Observation exists in law.
It
also helps me answer the following question: Why is law distinct from other
disciplines? (That are also, presumably, eager to claim the Problem of
Observation as their own as well.) The answer lies in the goals of prescriptive
legal writing. For surely prescriptive legal writing is distinct in its aspirations
from literary criticism or the weekly movie review. It brings forth not only
its own interpretation of the law, but also concrete suggestions as to how the
law should change. It is closer in kind therefore to the restaurant column more
than it is to the movie column. For it deals with the law, work that is not
static once completed (like a movie, or a book, or history, if history can be
referred to as ‘work’)[22]
but work that can change and does change in response to the needs and desires
of society. The law is never a finished product, even if it is not necessarily
“working itself pure”[23]
according to some theoretical ideal.
Perhaps
all legal activity, all that participants in the legal system are doing, can be
understood as an attempt to create a consensus about how to bring about
inherently controversial change, change that is laden with moral, social and
political implications and that is ultimately, in some sense, binding. This
tension in law is what sets it apart from other areas of inquiry in those disciplines
known as the humanities or social sciences, and what distinguishes prescriptive
legal work from criticism voiced within these other areas. It is also what
distinguishes law as a discipline in which the Problem of Observation has the
potential to emerge, as opposed to literature, or history, or sociology, or
economics. There could be other analogies drawn between physics and these
disciplines that might make even for compelling arguments as to other possible
applications of Bohr’s Problem of Observation (anthropology is an obvious
candidate, as I have mentioned above), but none share this unique feature of
law.
Before
I discuss when and where this Problem of Observation appears let me first
illustrate how, in my portrayal of the discipline of law, observation, i.e.,
writing about the law, occurs. In order to do so I find it helpful to discuss
the law on three artificial levels of generality, constructed solely for the
purposes of clarification.[24]
Those are, first, the level of particular norms, or rules, or laws.[25]
Second, the level of legal doctrines, of areas of law, such as torts,
contracts, aerospace law, and so on. Third, the level of law in general, where
theories about law are offered from various perspectives, such as Hart’s,
Dworkin’s, or Raz’s unique perspectives.[26]
Take
a look at a particular law, such as that law often used in examples, a traffic
law limiting vehicles to a certain speed on the highways. Some innovative
research was recently published suggesting that if vehicles do not travel then
road accidents do not occur. I seize the opportunity and write an article in
which I argue that traffic should be brought to a stop, i.e., that the speed
limit should be zero.[27]
Much impressed by my argument and the support it has in empirical research the
legislature convenes to amend the law and all traffic is brought to a halt.
After a short period of living under these conditions someone else writes an
article suggesting that perhaps traffic should be allowed to proceed at a
certain speed after all, for reasons that have become a bit more obvious
recently. The law is amended again, and so on, and so forth.
How
does reciprocity happen in this example? The descriptive mode is the foundation
upon which a prescriptive argument is constructed. This, in turn changes the
law. The law’s description changes accordingly, prompting a different
prescriptive argument, changing the law again. And again the law’s description
changes, etc., etc. Note that in the example above the bit of writing actually
describing the law was relatively trivial, as is sometimes (but certainly not
always) the case when discussing particular laws. So it seems perhaps in the
example above that descriptive legal writing is somewhat of an artificial
construct. One needs only to think of slightly more complicated examples to
realize that this is not the case. It is also important to realize that in my
ideal example the articles I wrote, and the articles written presumably by my
many outraged colleagues had their stated desired effect on the law. That is,
the law changed exactly as prescriptive legal writing willed it to change.
Unfortunately (or fortunately, as the prescription may go) that is not always
the case. It is also the key to the realization that a Problem of Observation
does exist in law. The vagaries of law’s normative change, as I shall discuss
below, bring about this problem’s existence.[28]
It
seems therefore pretty obvious that a reciprocal relationship exists between
the two modes of legal writing, at least when focused on particular legal
norms. What of the level of legal doctrine, or areas of law? Here too a
reciprocal relationship exists although the discussion of law is both more
general and more complex. Consider tort law. One participant might argue that
tort law serves the purposes of distributive justice (i.e., restoring a
pre-existing ratio between litigants according to their respective wealth, or
wisdom, or height or whatever other criterion carries favor with the courts).[29]
Another might argue that tort law serves the purposes of corrective justice
(i.e., restoring or performing the compensatory equivalent of restoration of
the state of affairs between litigants).[30]
Both probably rely on what they attempt to be an objective description of tort
law in support of what is, in effect, their prescriptive program. And both
expect their prescriptive program to produce a corresponding change in tort
law, in the adjudication of specific cases, and in the legislation of existing
and future torts. This change will of course bring about a change in the
description of tort law as relied upon by the various participants when
detailing their prescriptive programs, and so the reciprocal relationship
continues.
There
does not exist therefore a fundamental distinction between the reciprocal
relationship as it is carried out on the level of particular norms, and between
the reciprocal relationship as it is carried out on the level of legal
doctrine. What difference does exist relates to the discussion of legal
doctrine being on the whole more complex than the discussion of specific laws
or rulings, although that is not of course necessarily the case. There may
therefore be a bit more description involved when discussing areas of law than
when discussing particular laws in of themselves, and the call for change of
areas of law is again possibly more complicated than a call for change of a
specific ruling or piece of legislation would be. Be that as it may, the
observation of law as it is conducted on both these levels remains basically
unchanged.[31]
Finally,
observations about law, the nature of law, the mechanism of law, the essence of
law, and so on are generally given as well. These too can be divided into
descriptive and prescriptive observations (although as I said I suspect every
legal theory is a mix of both). Here too it can be said that descriptive
observations form the basis for prescriptive observations, which then bring
about a change in the description of law, leading to a change in the
prescription of law and so on.
It
seems such an undisputed fact that particular laws and areas of law are open to
criticism and therefore open to change and revision.[32]
It is perhaps a bit surprising that theories, notions of conceptions of law,
are sometimes thought not to be so receptive to the possibility of change. This
is a delicate point, and perhaps an example will do it some justice. One legal
theory that is undoubtedly prescriptive in its aspirations (and therefore makes
for an easy example) is Dworkin’s theory of law.[33]
According to Dworkin law’s purpose is to justify political coercion in society,
and such justification is best achieved when law enjoys a virtue Dworkin calls
integrity.[34] As is the
case with particular norms and areas of law Dworkin bases his analysis of law
on a description of law in general, and several specific legal systems.
According to this description the degree of integrity a legal system enjoys
varies from system to system. Dworkin’s prescription, so to speak, is meant to
enhance the integrity of systems that relatively lack it, and preserve it in
those systems that enjoy it already. If judges act accordingly (Dworkin’s
theory is directed mainly at judges, and has come under criticism for being a
theory of adjudication rather than a theory of law)[35]
then law will change and legal systems will change. The description upon which
Dworkin rests his program for law will also change, and presumably Dworkin will
finally rest his case, much in the manner that I did having convincing the
legislature to abolish traffic.
Legal
writing is therefore reciprocal in its relationship even when it comes to
discussing law in general. Note that I have made no assumption about law’s
openness to change. My only assumption is that legal writing necessarily
presumes that law is open to change, at least when it is operating in its
prescriptive mode.[36]
Otherwise it has no point, and will indeed resemble literary criticism.[37]
That the law of so many jurisdictions has changed time and time again proves
this academic assumption is not so careless.
Now
all these examples are of course a bit too easy. The legislature always does
what the academics want, rulings and indeed legal reasoning change according to
the dictates of legal theory, etc. Legal academics enjoy, according to this
pretty picture, unrivalled success and influence. The sad truth is that this is
not the case. However, it is a happy fact for my purposes, since it
demonstrates that the conditions necessary for a Problem of Observation to
occur in law do exist. My claim, therefore, is that the actual circumstances of
the interaction of participants with law cause a Problem of Observation to
appear in law, and disrupt the reciprocal relationship between the mode of
description and the mode of prescription. These circumstances are the direct
result of conflicting claims about law’s purpose (or purposes) on whatever
level of generality one chooses to discuss the law.
The
real circumstances of legal writing are that one never knows the normative
effects a specific piece of writing will have upon the law. Change in law is
subject to so many conflicting political and social interests, not to mention
straightforward normative arguments, that the effects of one specific writing
are impossible to predict in advance.[38]
At the same time, this matrix of interests and arguments makes it impossible to
decide in advance that particular works could be safely ignored. The arguments
of one article may suddenly fit far-flung interests in their end results so as
to elevate it into favor and cause it to have great influence over the legal
issue discussed.[39]
Yet
if these two aspects of the sad reality of the participant’s life seem familiar
it is because they echo exactly those two attributes of quantum mechanics that
cause a Problem of Observation to occur in physics. Those two were the
indeterminacy of the interaction and its untold significance (i.e., the
impossibility to safely neglect it). What is the indeterminacy of the legal
interaction if not the inability to determine the effects writing will have
upon the law? And what is its untold significance if not exactly that, the
inability to discard with certainty certain writing as irrelevant?[40]
The interaction of the participant with the law (i.e., the prescriptive mode of
observation) is therefore done under two constraints: First, the change it
causes in the law is indeterminate in advance, and second, the change it causes
in the law can never safely be neglected in advance. Since change in the law is
essentially unpredictable the reciprocal relationship between descriptive legal
writing and prescriptive legal writing is broken, and a Problem of Observation
occurs.
It
so happens that the undisputed majority of participants writing about the law
are blissfully unaware that the study of law suffers from a Problem of Observation.
But this is not as surprising or detrimental to my argument as it may seem. A
lot of work is done in physics and other sciences without the Problem of
Observation rearing its ugly head as well, even though in principle it
continues to exist. That is because in many cases it is possible to safely
assume that certain works will be neglected, or it is possible to come up with
a sufficient approximation of the effects a certain article will have upon the
law. For instance, it is probably safe to assume that articles about the law
written by tenured professors at Ivy League institutions will change the law
more than articles written by students at non-credited law schools. The key
point here is that it is safe to assume this in a lot of cases and circumstances,
but not in all of them.[41]
So the reciprocal relationship between the law’s description and its
prescription continues to peacefully exist most of the time, just as it does in
physics between theory and experiment, and perhaps in other disciplines as well.
The Problem of Observation certainly does not permeate every aspect of legal
life.
Make
no mistake about its existence, however. An illuminating and convincing
argument as to its existence lies by way of counter-example. Suppose that what
holds true in most circumstances is true in every circumstance. That is, students
from certain schools are never treated seriously and Ivy League professors are
always treated seriously and so on. If this were indeed the case then we would
probably have by now some form of ‘conclusive-argument-clincher’ grading that
we could apply to legal writing. It would state, for example that a student’s
work is always negligible, a graduate student’s work negligible if it pertains
to public law, a non-tenured professor’s work negligible if it is about
constitutional law or something similarly silly along these lines. Such a form
of ‘negligibility-grading-in-advance’ seems to me absurd. It is absurd because
the legal world would like to believe that its writing will be judged according
to its merit (in terms here not of overall academic quality, although that too
is an important consideration, but of its efficacy at securing normative
change) and not according to its pedigree (i.e., one’s institutional
affiliation). Of course pedigree is one popular rule of thumb as to the
existence of merit, but the correlation between pedigree and merit does not
necessarily exist in each and every case.[42]
The
same argument can be constructed with respect to our ability to know in advance
how particular writing will change the law. Here too, if this were the case
then one would be able to predict normative changes as a routine manner. But it
so happens that arguments that appear very convincing when given from a certain
perspective lose favor when other considerations are taken into account, and
their affect on the law is therefore mitigated. Similarly, arguments with
little to them may suddenly gain favor in the eyes of the courts or legislature
and bring about greater change in the law that could have been anticipated. The
argument that tort law should rest solely on corrective considerations may
appear to some to be more philosophically sound than the opposing argument
basing tort law on distributive considerations as well. So it could be thought
in advance that it would bring about change in the law as adjudicators,
legislators, lawyers and other participants recognize its validity. However,
the shear magnitude of social and political factors urging tort law to take
distributive concerns into consideration as well may cause the argument basing
tort law on corrective justice to be overwhelmed, rejected, and largely
ignored. Of course the opposite might hold as well. One never knows in advance
what normative change a particular argument or prescriptive observation will
bring to the law.
The
unrealistic nature of these counter-examples supports, therefore the conclusion
that no determination in advance can be made with respect to prescriptions
about the law, in its two aspects relevant to my discussion. Prescriptions
about the law cannot be unceremoniously ignored, and the actual change they
will bring about in the law cannot be determined in advance. Although neither
of these aspects is sufficient, on its own, to create a Problem of Observation
in the study of law both are necessary to its conception and their mutual
(continuous – this is not a redundant requirement in law as I shall shortly
discuss) existence is a sufficient condition for a Problem of Observation to
exist.
As
ludicrous as it may have seemed at first, it appears that physics and law are
epistemologically similar, at least as far as the pursuit of knowledge is
concerned. In both disciplines the participant is interested in increasing
knowledge, so in both disciplines theories about their subject matter are
constructed. In both disciplines these theories are then measured against a
state of affairs that does not directly rely upon these theories for its
ontological foundation. In both disciplines this measurement of theory, or interaction
with the current state of affairs brings about an indiscernible change in the
very state of affairs the theory is set to address. And in both disciplines the
understanding of their subject matter is disturbed as a result of this change,
the participant cannot uninterruptedly rely on this understanding in order to
improve upon it, and knowledge cannot be freely increased. Both disciplines
suffer from a Problem of Observation.
I
need not remind the reader that this epistemological similarity does not equate
physics and law. In physics, after all, Bohr argued that the Problem of
Observation reflects an epistemological, rather than ontological issue.[43]
In other words, scientists pursue knowledge in physics without the intention
(and Bohr argued, ability) of changing the state of nature. The uncertain
quality of their measurements detracts from their ability to theorize about
nature so that what seems to them an ontological fact (for instance, that light
is both particle and wave-like in its essence) is in fact a reflection of their
epistemological limitations. In law participants set out with the intent of
changing the law, their subject matter. If, in my crude analogy between physics
and law the ontology of law is made up of the laws of society then one crucial,
and of course well-known, difference between physics and law is that in physics
observation, the tool of epistemology, cannot change what is, whereas in law
observation as I have characterized it, although still epistemology’s tool,
works to change what is law according to what ought to be law on a regular
basis. So the Problem of Observation in law is not manifested, as it is in
physics, through a warped perception of (legal) reality. The Problem of
Observation in law is, in this sense, much less of a problem. It does not
reflect the fundamental difficulty physicists have to perceive the laws of
physics as they truly are. There is no such difficulty for academics studying
the law. Or so it would seem. In the next section I will examine closely this
assumption, especially as it pertains to that third level of generality when
discussing the law, the level of theories about the law in general.
Jurisprudence
What
is the significance of the Problem of Observation for legal writing? In order
to answer this question I must first discuss its apparent insignificance for
legal writing about particular laws and (perhaps to a lesser degree) about
doctrinal areas of law. The recognition of this insignificance emanates from
the realization that the idea of the Problem of Observation is meant to provide
a partial answer to an (according to Bohr, merely apparent) ontological
problem. So when this apparent ontological problem is termed a Problem of
Observation insight is gained that whatever difficulties research in the
discipline at hand seems to suffer from, they are epistemological difficulties,
not ontological ones. But as far as law, or let me discuss initially,
particular laws are concerned, it is hard to conceive of even an apparent
ontological difficulty. There are no puzzles or paradoxes that appear to
confound the legal observer about particular laws (let us leave aside for the
moment objections to legislation and adjudication on political, moral and
social grounds). In fact, legal reality, or legal practice (to the extent that
these two terms are synonymous and at all meaningful) appear to be rather
ordinary. Accordingly, writing about particular laws appears to go about its
non-Problem of Observation course, so that despite the inherent significance
and indeterminacy of prescriptive writing (which necessarily exists as I have
discussed above) prescription is able to lead to change in the law, to a new
description of the law, to an alternate prescription for the law, and so on.
Note
that the circumstances here are different than the circumstances discussed in
the previous section. There I mentioned those instances whether the interaction
between participant and law can be safely neglected or determined in advance,
and therefore a Problem of Observation does not arise, even though it is in
principle present (mirroring physics, where classical assumptions can be made
in certain circumstances, even though the underlying theoretical foundation is
necessarily that of quantum mechanics). Here my assumption is that we are
already under the conditions in which a Problem of Observation could exist.
That is, my assumption is that the effects of the particular prescriptive
writing cannot be summarily dismissed or readily discerned in advance. Still,
it is difficult to conceive of an example (since I have not yet discussed the
importance of the continuity of interference with observation in law) in which
some question about the existence of a particular law could arise, and then be
partially answered by the recognition that it is an epistemological rather than
ontological problem. At the same time, however, it is commonly observed that
‘the law is silent’ on certain issues, or that there is no law regarding
certain matters, or that no one knows what area of law is applicable, or that
the nature of law itself is controversial.[44]
I will argue that such observations about law, whether they are about law in
general, or about areas of law or particular rules, observations that appear to
be ontological observations about the law, are examples of those instances in
which a Problem of Observation in law does occur.
Imagine
if you will the following legal triangle. At two corners stands the
participant, split for the sake of the argument into a descriptive and
prescriptive version. At the third corner stands reality. The lines of argument
flow thus: Description from the descriptive participant to the prescriptive
participant, prescription from the prescriptive participant to reality, and
change from reality to the descriptive participant. A new cycle can then begin.
(Its starting point is of course arbitrary.) As long as there is no apparent
ontological problem reality exists secure in its corner, and the lines of
observation flow freely, and in sequence. But should such a problem appear to
exist then reality would vanish, and the triangle would collapse.
Now
imagine a triangle of physics. At two corners stand the theoretician and
experimenter, and reality stands at the third corner, cornered in by the
metaphor so to speak. Theory flows from theoretician to experimenter,
experiment from experimenter to reality, and results from reality to
theoretician. When the results are unobtainable it appears as if reality is
unobtainable and an ontological problem has occurred, but it is actually ‘only’
a Problem of Observation.
The
difference between the two triangles is that whereas in physics the results are
unobtainable, and appear as a change in reality, in law change is readily
observable after it has already happened (as far as particular laws are
concerned at least). There is no problem discerning how the law has changed
after the fact, even if before it was impossible to predict with precision the
effect a particular prescriptive argument would have upon a particular law.
There is no continuity of interference. Since the state of particular laws
after each and every prescription is readily obtainable an ontological problem
does not seem to appear, and needless to say, solving it by means of declaring
it an epistemological problem is unnecessary as well.
It
is clear, therefore, (to the extent that this analogy between physics and law
clarifies anything about the law) that an ontological problem would seem to
appear in law only when the results of prescriptive legal writing would be, in
some sense, unobtainable, leading to the mistaken assumption that it is
impossible for legal writing to decipher the nature of law. As far as
particular laws are concerned such an occurrence is difficult to imagine, and
in order to imagine such an occurrence I must further develop my crude analogy
between physics and law, to determine in what manner interference with
observation in law can continue, so that the results of prescriptive legal
writing would become unobtainable.
Whereas
such terms as objectivity, reality and the rules of nature appear to be
well-defined and understood in physics and other exact sciences (at least for
the moment) it is obvious that their legal counterparts fall under far greater
scrutiny and disagreement. A closer examination of the terms equivalent within
legal discourse (if such a notion exists) to these scientific terms draws one
inevitably into the quagmire that is jurisprudence. Jurisprudence has moved
over the years from the assumption (or presumption) that law can be understood
by studying it from afar, noting its common features and analyzing them,[45]
to the realization that the reality of law cannot be observed like the reality
of physics, mainly because the reality of law, unlike the reality of physics
includes those members of society on whom the law operates, its participants.
The reality of law, in other words, is composed not only of bare legislation
and adjudication but also of society, for which these laws exist. To ignore the
manner in which society perceives the law would therefore be to miss out on an
important illuminating perspective about the law.[46]
The
realization (which in hindsight appears pretty obvious) that the reality of law
is distinct from the reality of physics, and that therefore the methodology of
legal theoretical inquiry should be distinct from the methodology of scientific
inquiry leads of course to the realization that what appear to be ontological
problems in physics will probably emerge under different conditions then what
appear to be ontological problems in law. Indeed, it partially explains why it
is that there are less of these apparently-ontological problems in law to begin
with. Clearly these legal conditions will have something to do with the insight
that society is part of legal reality. But although philosophers of law largely
agree that society plays a role in their quest for understanding law, they
largely disagree as to what that role actually is. The perception of law, of
what law is, the understanding of law by participants, plays a role in accounting
for what law actually is (to the extent that these are two distinct notions)
that differs from theory to theory.
Clearly
some philosophers of law would disagree.[47]
The law is what their particular theories hold to be, regardless of how members
of society perceive it. It may be, these theorists would say, that some
theories hold such a perception to be of great importance, but that does not
mean that their contribution towards the improved understanding of law is in
any way dependent on the manner in which people actually think about the law.
Ironically, these theorists think about law a lot like physicists think about
the laws of nature. Law is ‘out there’, its nature or essence or some other
important aspect of it waiting to be discerned and distilled by the perceptive
theoretician, regardless and in many cases despite what popular opinion might
take it to be. But law is not like physics. It changes whereas physical
reality, remember, at most appears to change. It changes not as a result of a force
of (legal) nature but as a result of the constant interaction members of
society, participants, have with their law. Its individual norms reflect
society’s particular values (with great or little success, as the case may be)
and so do its doctrinal areas. Why suddenly assume, therefore, that the
understanding of law in its entirety, the understanding of law’s essential
features (that change of course from theory to theory) is not influenced by the
same interaction?
And
of course, not all legal theorists hold that the notion of law can be distilled
without reference to its popular perception. That legal theory should rely on
the popular perception of law is one crude way of summarizing ‘pragmatic’
jurisprudence.[48] Indeed, one
simplistic distinction between those two big tents of jurisprudence known as
positivism and anti-positivism is that positivism studies the law as it is,
whereas anti-positivism studies the law as it should be. Although simplistic
and inaccurate this distinction nonetheless captures the emphasis some
theorists put on equating the theory of law with law itself, while other
theorists perceive a theory of law as a goal for law to achieve. What is of
importance for my purposes, however, is the recognition that a debate exists
within jurisprudence as to the role the perception of law by its participants
plays in the construction of theories of law. That such a debate is even able
to meaningfully exist within jurisprudence indicates how distinct legal reality
is from physical reality. The existence of this debate justifies, therefore,
the following crucial ‘pragmatic’ (or rather, empirical) modification of my
analogy between physics and law: Whereas in physics the notion of reality is
independent of the opinions physicists hold with respect to nature, in law the
notion of law is dependent on how the law is theoretically perceived by
participants, legal academics (and their rejection of this assumption within
the theories they put forward) notwithstanding. And now I can ask the
following: What is the significance of the conclusion that the notion of law is
dependent on its perception by members of society? In what (if at all)
circumstances does it bring about an apparently-ontological problem in law?
Since
an apparently-ontological problem is one in which it there seems to be a
problem with legal reality, and since legal reality is constructed, in part, on
the basis of the perceptions members of society have about the law then it
appears that one instance in which an apparently-ontological problem will come
about is when it is impossible to determine in advance or safely neglect the
effects a particular prescription will have, not only on law in general, but on
these perceptions in particular. When an interaction between a prescription for
law and the perception of law occurs, when a prescription for law seeks to
change legal reality by directing itself at the perceptions of law, then a
continuous interference with the observation of law occurs, and it is then an
apparently-ontological problem will occur. It would become impossible for
philosophers of law that seek to describe the law, and explain it through its
description, to rely on legal reality, at least in its part that relies on the
perceptions of members of society, in support of their explanation. Any
analysis of law, they would therefore conclude, must be independent of what the
law is perceived to be. That some legal philosophers are in fact arguing
strongly for this position is an indication, therefore, that they are faced
with what seems to them to be an ontological problem.
But
on what level of generality, so to speak, is a prescription directed at the
perception of law? The short answer is that it is directed at the perception of
law at all levels. My distinction between particular rules, areas of law, and
law in general is, recall, artificial. It is of no substance when discussing
the perception of law, since the perception of law involves all of these
levels. When a particular prescription advocates change in a particular law
questions of the interpretation of particular norms, their limits, their
sources, their precedents, and so on arise, and these are all inescapably
connected to the perception of the area of law with which the particular norm
is connected, and to the perception of law in general. These perceptions
cannot, in practice, be disentangled into separate and distinct perceptions.
One is then left with a case-by-case analysis. Sometimes there is such a
consensus surrounding the particular norm in question, such as my traffic law,
that the prescription aimed at it hardly bothers more general perceptions of
law. Sometimes the norm in question is highly controversial, such as the norms
of abortion, or capital punishment. People then say they do not know what the
law is regarding that particular issue, emphasizing not their lack of
knowledge, but what they perceive as a lack of law. But this is merely a
restatement of the apparently-ontological problem that appears to them.
Participants truly believe that there is a problem with legal reality when such
issues are discussed, that there is no law in existence. My discussion has
aimed to show that such a conclusion is mistaken. The law does exist, and the
problem that appears to be ontological is in effect epistemological, a problem of
not knowing what the law is, a Problem of Observation.[49]
Areas
of law are subject to case-by-case analysis as well. The perceptions of what
these areas are (for instance, what tort law is about, or what privacy law is
about, and so on), are shaped on the one hand by the particular laws that
constitute them and how these individual norms are perceived. On the other
hand, prescriptive work is at times directed at areas of law in general and
specifically at the popular perceptions of these areas, seeking to change them,
and through them, that particular area of law. So apparently-ontological
problems can arise, in these circumstances, in two forms. There can be a
dispute over the nature of an area of law, which reflects contradicting
perceptions about that area. For example, there can be a dispute whether tort
law incorporates distributive concerns or corrective concerns. Problems of this
type are usually formulated as problems over what the nature or essence or idea
of the area of law is. Another form of apparently-ontological problems focuses
on controversial issues and their allocation to areas of law. How should an
agreement between a couple and a woman, that she hand over her child to them be
judged, for instance? Is it a matter for contract law? Is it a matter for
constitutional law, a question of human rights? Questions such as these signify
that the reach of an area of law, its boundaries and scope, are in doubt. This
is also, therefore, an apparently-ontological problem. In both cases the
problem is created when the prescription affects the perception of the area of
law in an indeterminate yet significant manner so that in both cases it seems
that there is a problem with the area of law. In both cases, however, the
problem is, again, epistemological and not ontological, a Problem of
Observation.
Jurisprudence
always aims to affect general perceptions of law. Perceptions of law in general
are affected less by prescriptions of particular laws (except in exceptional or
outrageous instances that have the potential to change the perception of law in
general), and less by prescriptions directed at understanding areas of law
differently, than they are affected by prescriptive work addressing law on its
most general level directly.[50]
It is in jurisprudence that the greatest controversies surrounding the nature
of law arise, precisely for this reason. Since there are constant arguments in
jurisprudence over the law philosophers of law reasonably assume that the
nature of law is in doubt. They routinely ask ‘what is law?’, an
apparently-ontological problem. Yet here too an epistemological problem is in
fact at play, the same Problem of Observation. Let me return again to my legal
triangle in order to illustrate this point. When a philosopher of law puts
forward a theory of law she is, to use my terms, offering a prescription for
how law should be perceived, and therefore offering a prescription for how the
law should change. But since it is impossible to predict in advance how
perceptions about the law will change, or even to suggest in advance that the
philosopher’s theory about law could be neglected, any attempt to later
describe the law cannot succeed, since it depends on the very perceptions the
theory of law was directed at and these, in turn, are subject to continuous
interference. Members of society presumably become aware of the theory of law,
yet the manner in which their perception of law changes remains undefined. Some
participants will adopt a new perception, some will remain unchanged in their
own convictions, some will seek a perceptional middle ground, and so on. The
total, or representative, or common, or consensual perception of law will
remain, however, vague.[51]
Since any later description of law relies on obtaining information about legal
reality, and since the perception of law by members of society is in effect,
unobtainable, the outcome is that academic work that purports to be descriptive
(emanating from that other corner of the triangle), i.e., that purports to tell
us what law is, has what are actually prescriptive implications. Rather than
merely accounting for legal reality (which it cannot do in these circumstances)
it has unintended effects on the perception of law by members of society.[52]
Perhaps
a concrete example is in order. Consider Raz’s theory of law. According to Raz
the law is a social institution that claims authority over members of society.[53]
It mediates between members of society and their reasons for action, but in
order to be able to mediate between members of society and their reasons for
action the law itself must not rely on these very reasons as its source, even
partially. It must not refer members of society back to those very reasons it
purports to replace as an authority. Otherwise it would not be able to claim
authority and fulfil its social role as Raz understands it.[54]
That is why Raz is considered an exclusive positivist, in contrast with those
(inclusive) positivists that argue that the law is able to rely on these
reasons, at least partially.[55]
So the question in dispute (or actually, one question in dispute) between these
schools of positivism is how to make sense of certain legal norms (whether
legislation or precedent) in certain jurisdictions that appear to rely, or
refer to reasons for action, such as morality. Inclusive positivists argue that
these are part and parcel of the law.[56]
Exclusive positivists argue that these are best understood as directives of
adjudication, since according to them there can be extra-legal principles of
adjudication (Dworkin, of course, who dismisses all forms of positivism, would
disagree.)[57]
Now
this debate between exclusive and inclusive positivists is an excellent example
of how the Problem of Observation confounds jurisprudence, once it is
considered according to the terminology I have developed above. Raz sets out
initially, with his understanding of law as an institution that claims
authority, to offer what is primarily a description of law. He sets out to tell
us what law is, not how the law should be. Confronted, however with a debate that
addresses the perceptions of participants directly (how are these legal norms
that refer to morality be understood, and is there any argumentative force to
their popular perception as law?)[58]
Raz’s insistence that these directives are best understood as directives of
adjudication carries with it an unintended prescriptive consequence. He is
understood as arguing (even if this is not his intention) that these directives
should be understood (by participants in the legal system, legal theorists
notwithstanding) as directives of adjudication. So work that sets out to be
descriptive turns out to have unintended prescriptive implications, as a result
of an ongoing ambiguity within the perception of participants.
The
result of examples such as this is that for philosophers of law the nature of
law seems controversial, unclear and subject to debate. There appears to be a
problem with it since no one can state what it actually is, and therefore there
appears to be an ontological problem. But if anything at all can be learned
from physics in law it is this lesson: In this case what appears to be an
ontological problem is an epistemological problem. Law is not in of itself
problematic, but obtaining knowledge about the law is. Knowledge about the law
is unobtainable in the circumstances I have just described but it is important
to recognize that this is a problem emanating from the manner in which legal
philosophers (and philosophers of science) obtain their knowledge, and not an
inherent problem of law. It is a problem of the observation of law which
necessarily includes law’s participants’ perceptions, and not of law itself.
Solving
the Problem
The
realization that the problems he was facing in the philosophy of science were
epistemological rather than ontological was only the first step for Bohr. The
Problem of Observation had to in turn be solved, or sidestepped, even once it
was recognized to apply to knowledge rather than reality. What are the
ramifications, therefore, of arguing that disputes commonly thought to be about
what particular laws are, or what areas of law cover, or of what the nature of
law is, are in fact not disputes over these issues but rather manifestations of
the inherent difficulty in obtaining knowledge about the law since it is
partially constituted by the manner in which members of society perceive it?
What are the implications of the Problem of Observation for legal theory and
legal philosophy?
Since
disputes over particular laws and areas of law are so intertwined with
normative, social and political arguments over the desired legal result it
seems pointless to argue that the Problem of Observation will add any value to
these debates. Any consequences it may have will quite simply be overwhelmed by
these far more vivid and relevant arguments, and rightly so, for these
controversies are not, ultimately, about law’s ontology and epistemology and
they should not be ended by any conclusions that the Problem of Observation may
lead to. Of course, jurisprudence too is subject to moral and political
arguments, and those who believe that one should become a positivist (or
anti-positivist) because of positivism’s (or anti-positivism’s) moral value are
likely to be unmoved as well by any significance the Problem of Observation may
hold to this or that particular legal theory.[59]
Still, there might be a lesson here for legal philosophy to learn from Bohr’s
philosophy of science, that might at the very least allow philosophers of law
and participants in general to understand jurisprudence from a new and illuminating
perspective.
That
lesson is this: Recall that in physics, Bohr’s next step was to ‘solve’ the
Problem of Observation by concluding that since it was an epistemological and
not an ontological problem it had to be overridden by insisting that the two
modes of observation were fundamental modes of epistemology. It was only
through them that knowledge was gained. The fact that a Problem of Observation
appears should not lead physicists to the conclusion that their modes of
observation have to be discarded as inadequate. It should rather lead them to
the realization that they have no choice and are forced to continue their
search for knowledge using concepts and notions and ideas that cannot be
completely supported by empirical data. Those notions are their building blocks
of physical knowledge, and cannot be replaced or rejected. Therefore, the two
modes of observation had to be retained no matter what the circumstances were,
or what Problems of Observation arose. They continued to complement each other
despite the apparent ontological, and actual epistemological, breakdown.
Accordingly, Bohr called his solution to the Problem of Observation the idea of
Complementarity. Although Complementarity is a bit of a philosophical
anticlimax it nevertheless holds insight for law, and jurisprudence in
particular.
Translating
Complementarity from the language of physics into law it becomes apparent that
the lesson learnt in law as well is that the two modes of legal observation are
more fundamental than any apparent epistemological problem that the observation
of law suffers from. So in jurisprudence in particular it becomes apparent that
descriptive work and prescriptive work both continue to be necessary to the
advancement of knowledge about the law despite the ongoing debates within
jurisprudence about the nature and reality of law, and the necessity (or not)
of developing a ‘pragmatic’ jurisprudence. These debates render a description
of law unobtainable and tainted by prescriptive considerations according to my
discussion. Furthermore, the idea of complementarity shows that debates over
which conception or idea or theory of law is ‘correct’ or better fits the
reality of law are especially pointless, despite their superficial appeal.
Theories that are predominately descriptive (as some would argue Hart’s theory
of law is) and theories that are predominately prescriptive (as some would
argue Dworkin’s theory of law is) will all continue to be necessary building
blocks of the knowledge of law for as long as there is a substantial lack of
unity where the perceptions of participants are concerned. There is no point to
‘choosing’ between them, since they reflect the fundamental manner in which
knowledge about law is obtained.[60]
So long as we understand law as being a product of our perceptions, this is the
unfortunate reality of our knowledge about the law.
