Law's Complexity: A Primer

Abstract

The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex? Would assembling a cogent, descriptively accurate theory of what makes the legal system complex help us to formulate more accurate and useful propositions about the legal system? I have to believe it would, and in my pursuit of such an explanation I have leaned heavily on the theory of complex adaptive systems - the study of systems comprised of a macroscopic, heterogeneous set of autonomous agents interacting and adapting in response to one another and to external environment inputs. At its deepest level, complex adaptive systems theory as applied to the legal system presents a rich and dynamic field of study. It asks whether the targets of law are complex adaptive systems, and if so what that means for law's design. It asks whether law itself, however we define its boundaries, is also a complex adaptive system, and if so what that means for law's design. And it asks how law and its regulatory targets co-evolve and what that means for law's design. This article orients those three questions within the context of complex adaptive systems theory. Part I provides a short primer on complex adaptive systems theory and suggests ways of usefully mapping it onto the legal system to expand our understanding of its behavior and properties. To make the case for the practical utility complex adaptive systems theory has for law, Part II explores a few of the major implications the theoretical foundation has for institutional and instrument design issues in law. I close by offering suggestions for next steps in the development of the theory of law's complexity.