From Mindspillage
Einstein's Dreams, a brief novel by Alan Lightman, explores human relationships and human actions through a series of vignettes, each one changing a different aspect of the way time works. Lightman's scenarios present only small pieces of the possibilities created by each different flow of time, but in doing so opens the reader up to provide the missing pieces, and provides by contrast commentary on the way life works in our own universe, with its own flow of time.
In showing the way the patterns of life change when the flow of time changes, he reveals how important unspoken assumptions are to the way we live. When time flows in a measured, linear fashion, one set of behaviors is natural, and never questioned. When it does not, how must we adjust? What can we no longer take for granted?
The law, too, rests on unspoken assumptions: that time flows forward in a linear fashion. That people grow up, live a standard lifespan and die. That choices may be proximate causes of consequences. That some things can be known, and others cannot. Take some away and the way law works must be different. No explicit legal code sets out these assumptions as conditions that have to hold for the rest of the law to apply, but every judge, even the strictest textualist, will keep them in mind when handing down a decision.
Similarly, change a single foundational aspect of the law, and social and legal interactions change around it. In a world where it is known that everything is predestined, how can we have law and punishment? Or do we still, but without any language of intent: for it has become irrelevant, nonsensical; we could not have done anything but what we did. In a world without any causal links between actions and consequences, the same, or more so.
A few fanciful scenarios, in the same spirit as Lightman's, illustrate the problems; a bit of explanation of a necessarily incomplete picture only raises more questions.
Dream Journal, 10 Apr 2010:
The parties have come to the court, dressed in their best suits, prepared with expansive briefs of their best arguments. They cite no cases. In this world there is no written law, and no precedent. Every case is judged on its own merits, based on philosophies, values, and community norms. The idea that a judge's mistakes must be repeated over and over simply because they were made once is only the subject of fiction: better here to have to repeat good lines of reasoning than perpetuate the bad.
Without precedent to rely on every case takes time; fact-finding takes on a critical importance. But research is cheap: no one must pore over books of past cases looking for the one with the most favorable analogy; the winner is the one with the most persuasive argument.
Some call the system dishonest: they say the judges know how and why they have decided in the past, how they are likely to decide in the future, and cannot expunge that from their minds even if they would wish to. They say it favors the clever, the well-spoken, the well-liked, over those who ought to have been able to expect a different outcome. Outsiders have difficulty moving in and knowing what to expect; those who do not share or understand the community norms move away, frustrated by inability to predict the outcomes.
And the judges have authority only held up by their acceptance by the community; as soon as they begin to find the "wrong" way, the residents begin to find other ways to settle disputes. Where is the law made, then, and what has precedential value?
Much legal philosophy exists describing the possible ways of thinking about law within the system. But even legal philosophy rarely considers removing the basic assumptions; instead, the job is almost entirely left to the genre of "science fiction" or "speculative fiction", and any work of fiction which does so too explicitly is likely to get that label (or worse, fantasy!), relegated to the ghettos of the bookstore, not serious enough for academia. By framing its speculations as a series of dreams, Einstein's Dreams escapes the "genre fiction" label despite being, in the most literal of senses, science fiction.
When science fiction turns into science fact, what happens? The idea of near-instantaneous communication between networked computers in every jurisdiction at once; the law has adapted poorly, with judges shoehorning lines of thought from older modes of communication onto current decisions, some with more reasonable outcomes than others.
Dream Journal, 14 Apr 2010:
There are two types of people in this world: those who will live perhaps a hundred years at most, and those who may live forever. Some choose to go into suspension as a last resort after learning of a life-threatening illness: rather than live out their lives with ever-decreasing abilities and health, better to wait for a future with a cure. Some despair about their circumstances—a lover has left, a child departed, an opportunity passed by—and any future looks better than the present. Some are dreamers who hope to experience a voyage through time.
In this world the laboratories are filled with bodies in cryonic suspension. Their estates and their affairs remain in limbo. The first to be frozen were considered to be legally dead: the law had no way to deal with a person who might live for an indefinite amount of time, incapable of response. After one was successfully reanimated after fifty years in cold sleep, everything changed.
Cryonics is already taking place: dying people being frozen in hopes of being resurrected in a future where they can be restored to health. The decision is not only (currently) irreversible but expensive and socially stigmatized; only hundreds have signed up despite the possibility being available for decades. What happens to law in a future where anyone may choose to go into suspension, at any time, at little cost, for any duration, when so much of law is based around time?
Property rules present the clearest problems. What happens to the estate of a person in indefinite suspense? How does the rule against perpetuities hold up for an immortal? What if the "dead hand" is only sleeping? Currently, the estates of the frozen, if not distributed to individual heirs, are held in trust. But in all cases, the person is treated as legally dead, no longer a consideration.
Perhaps the suspended person should incorporate: instead of becoming legally dead, become a legal person only, a body without a soul, with agents to carry out their duties and obligations. The current law falls apart when it is possible the "decedent" may live again.
One of Lightman's vignettes proposes a world where every man has his own time; some are stuck in various points and cannot escape. What if every man has his own law?
Dream Journal, 16 Apr 2010:
Here every man has his own law. People segregate based on shared principles: those who hold to strict interpretation of documents will never contract with one who takes a pragmatic approach. Someone who holds to a contributory negligence rule will not start an enterprise with someone who holds to strict liability. A family must choose a shared law for their household; a marriage requires conversion for all future dealings. A child must abide by the law of the family until she moves out and begins her own.
Consistent expectations are lost: every decision requires individual negotiation. Most ignore the law entirely, relying more on interpersonal relationships to govern how disputes will come out. But everyone thinks about every legal transaction in terms of what it will cost, and adjusts their own personal law to enable what they wish and prohibit what they don't. Some settle into a permissive, forgiving norm; they are cautious with those who appear harder-edged, not entirely trusting their motivations. Some, more worried about risks, want everything set out and interpreted strictly; they will sacrifice a bit more flexibility and forgiveness for the comfort of knowing what to expect.
Law on a smaller scale is a popular idea that has appeared in many forms. Micronations and small jurisdictions are time-honored. Temporary communities are formed at events such as Burning Man, with their own set of laws and norms. Gordon Tullock proposes government stretching down to the scale of homeowners' associations in The New Federalist; Patri Friedman wants to create floating islands of political experimentation, joining and separating by consent.
But even law on the scale of nations makes transactions difficult. I lost my passport abroad and had to incur great expense to be let back in to my own country without unreasonable delay. The organization I co-direct will not place equipment in most other countries, to avoid the difficulties in complying with multiple, sometimes conflicting, sets of laws.
The people in Lightman's alternate universe could not interact fully because of their differing times; despite my libertarian leanings the people in my universe, I think, would suffer similarly.
No judge will discard the physical laws of the universe in making a decision. They are fundamental enough that they need no statement; no one will ever challenge the most conservative of judges for assuming in his decision such underlying principles as gravity, causality, forward-flowing time. But what of less fundamental principles? Several decisions have taken into account such intuitively obvious ideas as God as a moral authority, or the lesser mental capabilities of women...
Dream Journal, 20 Apr 2010:
The Oracle keeps his chambers in the historic downtown district; his priests have offices throughout the major cities, with functionaries holding posts further out into the less densely populated areas. When two inhabitants have a dispute they can settle by no other means, they bring their case to the Oracle, who questions them briefly before withdrawing for consideration. By the end of the day he hands down a decision: a winner, a set of remedies, a few koan-like phrases. What the Oracle hands down is law; there is no higher venue of appeal.
It is known that here there is one correct law, which has existed since the beginning of time, but its details have not been revealed in their entirety. The Oracle himself is chosen from a quasi-monastic order, which has devoted itself to the divination of the law from observation of the universe and philosophical reflection.
Parties who come before the Oracle do not bring witnesses or briefs, do not cite previous outcomes as precedent. The just outcome is determined by the Oracle alone, who has no explanation for his decision that could serve as a guide to future decision.
In this world a caste of legal interpreters keep track of previous oracular decisions and attempt to divine a pattern; they propose principles the way a mathematician makes conjectures, but with no opportunity for proof, only counterexample.
Others reject the dominance of the Oracle altogether. Instead they settle their disputes themselves. They, too, use the interpreters' histories. But aware that their decisions have no weight, they accept decisions among themselves, aware that breaking a settled agreement means being forced to accept the system for which they have no respect.
The theory of "natural law" seems strange and unworkable to me. It is clear that we don't all share the same values and instincts, have differing ideas of what is truly right. We cannot simply trust our moral intuitions to come to the socially optimal decision where everyone's instincts are different; those who do not act in accordance with them may not be deliberately wicked or self-deluded, but genuinely different. The idea of "natural law" then strikes me almost as a religious exercise. Taking the idea to an absurd extension leads to the priesthood of the law who alone can divine what the true law is.
Ronald Dworkin posits a "Judge Hercules" who is able to discern the correct outcome—the "one right answer" in any legal case; the goal of legal interpretation is to come as close as possible to Hercules' decision. But is he even possible, or must he do the same weighting based on unwritten individual values and assumptions as everyone else, coming to an idiosyncratic decision?
Is the purpose of law only to settle disputes, or to provide a framework for society as well? And when a community becomes dependent on an oracle to settle disputes, what happens?
In Einstein's Dreams, most of Lightman's scenarios are purely fanciful. Extend their speculations too far and you realize most are nonsensical, impossible, unworkable; these are not "possible worlds" in a logical sense, at least not without changing so much more that the scenarios no longer resemble our own enough to make their point. Attempting to flesh out the vignette to make the universe consistent would be nearly impossible. Some take a plausible future and run a little further with the legal aspects of the idea. And some exist today, only slightly altered, though we may see them more clearly when they are presented as a universe not our own.
Some of the entries in these speculations are as well: when implications are pushed a bit further they either diverge more strongly than the scenario suggests or settle back into something that looks an awful lot like home. (Logically consistent alternate universes are difficult to imagine, not least because of the problems in testing them!)
But most of the principles of American common law are also not logically consistent. Extend them far enough and their intersection cannot be predicted except by getting into the mind of the judge. When a line of precedential cases that has relied upon one principle runs into another line of cases that has based themselves on another principle, to a situation where both would apply, the result is a bit like smoothing wallpaper that hasn't been laid perfectly straight: somewhere there is going to be a bubble or crease in the middle; there is no way to smooth it out that doesn't involve a compromise, or tearing it off and starting again.
There is a famous paper in legal philosophy called "The Case of the Speluncean Explorers" by Lon Fuller, which uses a fictional case to illustrate several different judicial philosophies in action. In it, four men in an exploring society become trapped in a cave. Having lost hope of rescue and without enough provisions for all four to live much longer, they draw lots and kill one for food. Shortly afterward they are rescued and brought to trial for the murder. Each justice lays out an opinion. But none states my view (though one comes close): the outcome must be different than it would be in a world where everyone may expect access to food, resources, decision-making authorities. It was the first paper assigned in a seminar course I took last year and, probably as intended, the one that colored my view of everything else I read in it.
I wanted to view everything through that lens of depending on unspoken assumptions and trying to voice them, and which ones may not hold; I still do.
Lightman gives relativity a humanizing story by describing what happens when assumptions about time no longer hold, depicting Einstein as having dreams about time; meanwhile, I can take even Lightman's story and think about law (perhaps this is why people hate lawyers, and people who can't leave well enough alone). I was sorry when I finished Einstein's Dreams; I wanted it to be far longer; it's made up for its brevity in that I am continually drawn to thinking about it.