(not so) Random thoughts from today's class.
As metaphor, the "machine" allows us to ask interesting and important questions about Law.
1) Who builds the machine?
Insert here the polemic of your choice. The machine is built by the landed gentry, or by liberal-minded elites, by the common man as a place for resolution, or by a small number of power-brokers in some undisclosed location. In any case, who builds the machine, who describes the algorithm, even the operating system for the machine dictates what the machine does (or even whether the machine does anything at all).
2) Who pays for and maintains the machine?
Having built the machine, using it is not costless. This also dictates what the machine "does." Certain kinds of disputes will be resolved using the machine, and others will be resolved using other social tools. The differing abilities of parties to gather resources to use the machine will affect the outcome. If this is true, then the machine is not a truth machine, but rather a tool of political decision-making.
3) What does the machine do?
The machine is given a Necker's cube of opposing stories, and is asked to choose between them. "The truth is that stories oppose."* The truth IS that stories oppose, but in deciding, the machine gets "an answer." It denies the truth that both stories are "true" and it decides which truth is better. The machine says that Necker's cude is being viewed from above. It is a "decision engine" not necesarrily a "truth engine." I'm reading a book now. It's a description of what's wrong with Europe's approach to fundamentalist Islam, and the war on terror(ism). I disagree with most of what is said in the book. The interesting point, is that from the author's point of view, his viewpoint is the truth about the situation. I draw a completely different set of conclusions from the same facts. What interests me most is understanding why we come to different answers. Given his set of biases, his conclusions are unassailable. The argumentation is sound, the facts I accept as true. However, given our different weighting of social factors we arrive at opposite conclusions on the same facts. The truth is that we are both right. The choice is a political one.
A useful analogy for the machine is as a neural network. This will, of course, only be a useful analogy for a samll audience, but I'm in that audience, so I find it useful. The nework applies law to facts, and gives an answer. In the parlance, the facts represent the input layer, and the verdict is the output. Within the net, the "legal rules" are expressed as the nodes and their weighted interconnections. Over a process of repeated use, the number of nodes and their interconnecting weights are altered until the machine gets the answer "right" most of the time. Legal doctrine is encoded within the machine. Then comes along a case, a set of facts that when presented as the input gives what everyone agrees is the "wrong" answer. A new legal concept is required to "fix" the machine, and a new node with new weightings is added to the decision network. The network gives the old (right) answers for all the old questions, but now it gets the "right" answer for this new "problem case." This is doctrinal development.
There are problems with developing dooctrine in this way, as we have all experienced during our time studying cases. At some point, the network becomes unstable, and it begins to get the wrong answer too often, or it becomes unpredictable (the lawyer's nightmare). Certain key legal concepts address this problem, by being so broad and subjective in their applciation that they afford almost any interpretaion. "Reasonableness" is the best example I can think of. The courts have given themselves, over time, a rule so loose that it can be bent to deliver almost any outcome. Strict textualism is not a retort here, since someone still has to decide what the words "obvious meaning" is. In this way, the machine can fulfill its function; it can give an answer, it can say "the cube is being viewed from above." As long as there's no revolution in the streets (AKA subsequent legislation) then the machine got the "right" answer.
*Quotes from Nesson's audio journal Jan 3.
Contributors: Scott Sneddon