Category: politics

The GDPR and the future of the EU

In privacy scholarship and ‘big data’ engineering circles, much is being made about the EU’s General Data Protection Regulation (GDPR). It is probably the strongest regulation passed protecting personal data in a world of large-scale, global digital services. What makes it particularly fearsome is the extra-territoriality of its applicability. It applies to controllers and processors working in the EU whether or not the data processing is itself being done in the EU, and it applies processing of data whose subjects are in the EU whether or not the controller or processor is in the EU. In short, it protects the data of people in the EU, no matter where the organization using the data is.

This is interesting in light of the fact that the news is full of intimation that the EU might collapse with the result of the French election. Prediction markets currently favoring Macron, but he faces a strong contender in Le Pen, who is against the Eurozone.

The GDPR is scheduled to go into effect in 2018. I wonder what its jurisdiction will be once it goes into effect. A lot can happen between now and then.

Three possibilities of political agency in an economy of control

I wrote earlier about three modes of social explanation: functionality, which explains a social phenomenon in terms of what it optimizes; politics, which explains a social phenomenon in terms of multiple agents working to optimize different goals; and chaos, which explains a social phenomenon in terms of the happenings of chance, independent of the will of any agent.

A couple notes on this before I go on. First, this view of social explanation is intentionally aligned with mathematical theories of agency widely used in what is broadly considered ‘artificial intelligence’ research and even more broadly  acknowledged under the rubrics of economics, cognitive science, multi-agent systems research, and the like. I am willfully opting into the hegemonic paradigm here. If years in graduate school at Berkeley have taught me one pearl of wisdom, it’s this: it’s hegemonic for a reason.

A second note is that when I say “social explanation”, what I really mean is “sociotechnical explanation”. This is awkward, because the only reason I have to make this point is because of an artificial distinction between technology and society that exists much more as a social distinction between technologists and–what should one call them?–socialites than as an actual ontological distinction. Engineers can, must, and do constantly engage societal pressures; they must bracket of these pressures in some aspects of their work to achieve the specific demands of engineering. Socialites can, must, and do adopt and use technologies in every aspect of their lives; they must bracket these technologies in some aspects of their lives in order to achieve the specific demands of mastering social fashions. The social scientist, qua socialite who masters specific social rituals, and the technologist, qua engineer who masters a specific aspect of nature, naturally advertise their mastery as autonomous and complete. The social scholar of technology, qua socialite engaged in arbitrage between communities of socialites and communities of technologists, naturally advertises their mastery as an enlightened view over and above the advertisements of the technologists. To the extent this is all mere advertising, it is all mere nonsense. Currency, for example, is surely a technology; it is also surely an artifact of socialization as much if not more than it is a material artifact. Since the truly ancient invention of currency and its pervasiveness through the fabric of social life, there has been no society that is not sociotechnical, and there has been no technology that is is not sociotechnical. A better word for the sociotechnical would be one that indicates its triviality, how it actually carries no specific meaning at all. It signals only that one has matured to the point that one disbelieves advertisements. We are speaking scientifically now.

With that out of the way…I have proposed three modes of explanation: functionality, politics, and chaos. They refer to specific distributions of control throughout a social system. The first refers to the capacity of the system for self-control. The second refers to the capacity of the components of the system for self-control. The third refers to the absence of control.

I’ve written elsewhere about my interest in the economy of control, or in economies of control, plurally. Perhaps the best way to go about studying this would be an in depth review of the available literature on information economics. Sadly, I am at this point a bit removed from this literature, having gone down a number of other rabbit holes. In as much as intellectual progress can be made by blazing novel trails through the wilderness of ideas, I’m intent on documenting my path back to the rationalistic homeland from which I’ve wandered. Perhaps I bring spices. Perhaps I bring disease.

One of the questions I bring with me is the question of political agency. Is there a mathematical operationalization of this concept? I don’t know it. What I do know is that it is associated most with the political mode of explanation, because this mode of explanation allows for the existence of politics, by which I mean agents engaged in complex interactions for their individual and sometimes collective gain. Perhaps it is the emerging dynamics of the individual’s shifting constitution as collectives that captures best what is interesting about politics. These collectives serve functions, surely, but what function? Is it a function with any permanence or real agency? Or is it a specious functionality, only a compromise of the agents that compose it, ready to be sabotaged by a defector at any moment?

Another question I’m interested in is how chaos plays a role in such an economy of control. There is plenty of evidence to suggest that entropy in society, far from being a purely natural consequence of thermodynamics, is a deliberate consequence of political activity. Brunton and Nissenbaum have recently given the name obfuscation to some kinds of political activity that are designed to mislead and misdirect. I believe this is not the only reason why agents in the economy of control work actively to undermine each others control. To some extent, the distribution of control over social outcomes is zero sum. It is certainly so at the Pareto boundary of such distributions. But I posit that part of what makes economies of control interesting is that they have a non-Euclidean geometry that confounds the simple aggregations that make Pareto optimality a useful concept within it. Whether this hunch can be put persuasively remains to be seen.

What I may be able to say now is this: there is a sense in which political agency in an economy of control is self-referential, in that what is at stake for each agent is not utility defined exogenously to the economy, but rather agency defined endogenously to the economy. This gives economic activity within it a particularly political character. For purposes of explanation, this enables us to consider three different modes of political agency (or should I say political action), corresponding to the three modes of social explanation outlined above.

A political agent may concern itself with seizing control. It may take actions which are intended to direct the functional orientation of the total social system of which it is a part to be responsive to its own functional orientation. One might see this narrowly as adapting the total system’s utility function to be in line with one’s own, but this is to partially miss the point. It is to align the agency of the total system with one’s one, or to make the total system a subsidiary to one’s agency.  (This demands further formalization.)

A political agent may instead be concerned with interaction with other agents in a less commanding way. I’ll call this negotiation for now. The autonomy of other agents is respected, but the political agent attempts a coordination between itself and others for the purpose of advancing its own interests (its own agency, its own utility). This is not a coup d’etat. It’s business as usual.

A political agent can also attempt to actively introduce chaos into its own social system. This is sabotage. It is an essentially disruptive maneuver. It is action aimed to cause the death of function and bring about instead emergence, which is the more positive way of characterizing the outcomes of chaos.

Lenin and Luxemburg

One of the interesting parts of Scott’s Seeing Like a State is a detailed analysis of Vladimir Lenin’s ideological writings juxtaposed with one of this contemporary critics, Rosa Luxemburg, who was a philosopher and activist in Germany.

Scott is critical of Lenin, pointing out that while his writings emphasize the role of a secretive intelligentsia commanding the raw material of an angry working class through propaganda and a kind of middle management tier of revolutionarily educated factory bosses, this is not how the revolution actually happened. The Bolsheviks took over an empty throne, so to speak, because the czars had already lost their power fighting Austria in World War I. This left Russia headless, with local regions ruled by local autonomous powers. Many of these powers were in fact peasant and proletarian collectives. But others may have been soldiers returning from war and seizing whatever control they could by force.

Luxemburg’s revolutionary theory was much more sensitive to the complexity of decentralized power. Rather than expecting the working class to submit unquestioningly to top-down control and coordinating in mass strikes, she acknowledged a reality that decentralized groups would act in an uncoordinated way. This was good for the revolutionary cause, she argued, because it allowed the local energy and creativity of workers movements to move effectively and contribute spontaneously to the overall outcome. Whereas Lenin saw spontaneity in the working class as leading inevitably to their being coopted by bourgeois ideology, Luxemburg believed the spontaneous authentic action of autonomously acting working class people were vital to keeping the revolution unified and responsive to working class interests.

ideologies of capitals

A key idea of Bourdieusian social theory is that society’s structure is due to the distribution of multiple kinds of capital. Social fields have their roles and their rules, but they are organized around different forms of capital the way physical systems are organized around sources of force like mass and electrical charge. Being Kantian, Bourdieusian social theory is compatible with both positivist and phenomenological forms of social explanation. Phenomenological experience, to the extent that it repeats itself and so can be described aptly as a social phenomenon at all, is codified in terms of habitus. But habitus is indexed to its place within a larger social space (not unlike, it must be said, a Blau space) whose dimensions are the dimensions of the allocations of capital throughout it.

While perhaps not strictly speaking a corollary, this view suggests a convenient methodological reduction, according to which the characteristic beliefs of a habitus can be decomposed into components, each component representing the interests of a certain kind of capital. When I say “the interests of a capital”, I do mean the interests of the typical person who holds a kind of capital, but also the interests of a form of capital, apart from and beyond the interests of any individual who carries it. This is an ontological position that gives capital an autonomous social life of its own, much like we might attribute an autonomous social life to a political entity like a state. This is not the same thing as attributing to capital any kind of personhood; I’m not going near the contentious legal position that corporations are people, for example. Rather, I mean something like: if we admit that social life is dictated in part by the life cycle of a kind of psychic microorganism, the meme, then we should also admit abstractly of social macroorganisms, such as capitals.

What the hell am I talking about?

Well, the most obvious kind of capital worth talking about in this way is money. Money, in our late modern times, is a phenomenon whose existence depends on a vast global network of property regimes, banking systems, transfer protocols, trade agreements, and more. There’s clearly a naivete in referring to it as a singular or homogeneous phenomenon. But it is also possible to referring to in a generic globalized way because of the ways money markets have integrated. There is a sense in which money exists to make more money and to give money more power over other forms of capital that are not money, such as: social authority based on any form of seniority, expertise, lineage; power local to an institution; or the persuasiveness of an autonomous ideal. Those that have a lot of money are likely to have an ideology very different from those without a lot of money. This is partly due to the fact that those who have a lot of money will be interested in promoting the value of that money over and above other capitals. Those without a lot of money will be interested inn promoting forms of power that contest the power of money.

Another kind of capital worth talking about is cosmopolitanism. This may not be the best word for what I’m pointing at but it’s the one that comes to mind now. What I’m talking about is the kind of social capital one gets not by having a specific mastery of a local cultural form, but rather by having the general knowledge and cross-cultural competence to bridge across many different local cultures. This form of capital is loosely correlated with money but is quite different from it.

A diagnosis of recent shifts in U.S. politics, for example, could be done in terms of the way capital and cosmopolitanism have competed for control over state institutions.

metaphysics and politics

In almost any contemporary discussion of politics, today’s experts will tell you that metaphysics is irrelevant.

This is because we are discouraged today from taking a truly totalizing perspective–meaning, a perspective that attempts to comprehend the totality of what’s going on.

Academic work on politics is specialized. It focuses on a specific phenomenon, or issue, or site. This is partly due to the limits of what it is possible to work on responsibly. It is also partly due to the limitations of agency. A grander view of politics isn’t useful for any particular agent; they need only the perspective that best serves them. Blind spots are necessary for agency.

But universalist metaphysics is important for politics precisely because if there is a telos to politics, it is peace, and peace is a condition of the totality.

And while a situated agent may have no need for metaphysics because they are content with the ontology that suits them, situated agents cannot alone make any guarantees of peace.

In order for an agent to act effectively in the interest of total societal conditions, they require an ontology which is not confined by their situation, which will encode those habits of thought necessary for maintaining their situation as such.

What motivates the study of metaphysics then? A motivation is that it provides one with freedom from ones situation.

This freedom is a political accomplishment, and it also has political effects.

habitus and citizenship

Just a quick thought… So in Bourdieu’s Science of Science and Reflexivity, he describes the habitus of the scientist. Being a scientist demands a certain adherence to the rules of the scientific game, certain training, etc. He winds up constructing a sociological explanation for the epistemic authority of science. The rules of the game are the conditions for objectivity.

When I was working on a now defunct dissertation, I was comparing this formulation of science with a formulation of democracy and the way it depends on publics. Habermasian publics, Fraserian publics, you get the idea. Within this theory, what was once a robust theory of collective rationality as the basis for democracy has deteriorated under what might be broadly construed as “postmodern” critiques of this rationality. One could argue that pluralistic multiculturalism, not collective reason, became the primary ideology for American democracy in the past eight years.

Pretty sure this backfired with e.g. the Alt-Right.

So what now? I propose that those interested in functioning democracy reconsider the habitus of citizenship and how it can be maintained through the education system and other civic institutions. It’s a bit old-school. But if the Alt-Right wanted a reversion to historical authoritarian forms of Western governance, we may be getting there. Suppose history moves in a spiral. It might be best to try to move forward, not back.

post-election updates

Like a lot of people, I was completely surprised by the results of the 2016 election.

Rationally, one has to take these surprises as an opportunity to update ones point of view. As it’s been almost a month, there’s been lots of opportunity to process what’s going on.

For my own sake, more than for any reader, I’d like to note my updates here.

The first point has been best articulated by Jon Stewart:

Stewart rejected the idea that better news coverage would have changed the outcome of the election. “The idea that if [the media] had done a better job this country would have made another choice is fake,” he said. He cited Brexit as an example of an unfortunate outcome that occurred despite its lead-up being appropriately covered by outlets like the BBC, which offered a much more balanced view than CNN, for example. “Trump didn’t happen because CNN sucks—CNN just sucks,” he said.

Satire and comedy also couldn’t have stood in the way of Trump winning, Stewart said. If this election has taught us anything, he said, its that “controlling the culture does not equate to holding the power.”

I once cared a lot about “money in politics” at the level of campaign donations. After a little critical thinking, this leads naturally to a concern about the role of the media more generally in elections. Centralized media in particular will never put themselves behind a serious bid for campaign finance reform because those media institutions cash out every election. This is what it means for a problem to be “systemic”: it is caused by a tightly reinforcing feedback loop that makes it into a kind of social structural knot.

But with the 2016 presidential election, we’ve learned that Because of the Internet, media are so fragmented that even controlled media are not in control. People will read what they want to read, one way or another. Whatever narrative suits a person best, they will be able to find it on the Internet.

A perhaps unhelpful way to say this is that the Internet has set the Bourdieusian habitus free from media control.

But if the media doesn’t determine habitus, what does?

While there is a lot of consternation about the failure of polling (which is interesting), and while that could have negatively impacted Democratic campaign strategy (didn’t it?), the more insightful sounding commentary has recognized that the demographic fundamentals were in favor of Trump all along because of what he stood for economically and socially. Michael Moore predicted the election result; logically, because he was right, we should update towards his perspective; he makes essentially this point about Midwestern voters, angry men, depressed progressives, and the appeal of oddball voting all working against Hilary. But none of these conditions have as much to do with media as they do to the preexisting population conditions.

There’s a tremendous bias among those who “study the Internet” to assign tremendous political importance to the things we have expertise on: the media, algorithms, etc. My biggest update this election was that I now think that these are eclipsed in political relevance compared to macro-economic issues like globalization. At best changes to, say, the design of social media platforms are going to change things for a few people at the margins. But larger structural forces are both more effective and more consequential in politics. I bet that a prediction of the 2016 election based primarily on the demographic distribution of winners and losers according to each candidate’s energy policy, for example, would have been more valuable than all the rest of the polling and punditry combined. I suppose I was leaning this way throughout 2016, but the election sealed the deal for me.

This is a relief for me because it has revealed to me just how much of my internalization and anxieties about politics have been irrelevant. There is something very freeing in discovering that many things that you once thought were the most important issues in the world really just aren’t. If all those anxieties were proven to just be in my head, then it’s easier to let them go. Now I can start wondering about what really matters.

The FTC and pragmatism; Hoofnagle and Holmes

I’ve started working my way through Chris Hoofnagle’s Federal Trade Commission Privacy Law and Policy. Where I’m situated at the I School, there’s a lot of representation and discussion of the FTC in part because of Hoofnagle’s presence there. I find all this tremendously interesting but a bit difficult to get a grip on, as I have only peripheral experiences of actually existing governance. Instead I’m looking at things with a technical background and what can probably be described as overdeveloped political theory baggage.

So a clearly written and knowledgeable account of the history and contemporary practice of the FTC is exactly what I need to read, I figure.

With the poor judgment of commenting on the book having just cracked it open, I can say that the book reads so far as, not surprisingly, a favorable account of the FTC and its role in privacy law. In broad strokes, I’d say Hoofnagle’s narrative is that while the FTC started out as a compromise between politicians with many different positions on trade regulation, and while its had at times “mediocre” leadership, now the FTC is run by selfless, competent experts with the appropriate balance of economic savvy and empathy for consumers.

I can’t say I have any reason to disagree. I’m not reading for either a critique or an endorsement of the agency. I’m reading with my own idiosyncratic interests in mind: algorithmic law and pragmatist legal theory, and the relationship between intellectual property and antitrust. I’m also learning (through reading) how involved the FTC has been in regulating advertising, which endears me to the adjacency because I find most advertising annoying.

Missing as I am any substantial knowledge of 20th century legal history, I’m intrigued by resonances between Hoofnagle’s account of the FTC and Oliver Wendell Holmes Jr.’s “The Path of the Law“, which I mentioned earlier. Apparently there’s some tension around the FTC as some critics would like to limit its powers by holding it more narrowly accountable to common law, as oppose to (if I’m getting this right) a more broadly scoped administrative law that, among other things, allows it to employ skilled economist and technologists. As somebody who has been intellectually very informed by American pragmatism, I’m pleased to notice that Holmes himself would have probably approved of the current state of the FTC:

At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. (Holmes, 1897)

These are strong words from a Supreme Court justice about the limitations of common law! It’s also a wholehearted endorsement of quantified science as the basis for legal rules. Perhaps what Holmes would have preferred is a world in which statistics and economics themselves became part of the logic of law. However, he goes to pains to point out how often legal judgment itself does not depend on logic so much as the unconscious biases of judges and juries, especially with respect to questions of “social advantage”:

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

What I find interesting about this essay is that it somehow endorses both the use of economics and statistics in advancing legal thinking and also endorses what has become critical legal theory, with its specific consciousness of the role of social power relations in law. So often in contemporary academic discourse, especially when it comes to discussion of regulation technology businesses, these approaches to law are considered opposed. Perhaps it’s appropriate to call a more politically centered position, if there were one today, a pragmatist position.

Perhaps quixotically, I’m very interested in the limits of these arguments and their foundation in legal scholarship because I’m wondering to what extent computational logic can become a first class legal logic. Holmes’s essay is very concerned with the limitations of legal logic:

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

For Holmes, nature can be understood through a mathematized physics and is in this sense logical. But the law itself is not logical in the narrow sense of providing certainty about concrete propositions and the legal interpretation of events.

I wonder whether the development of more flexible probabilistic logics, such as those that inform contemporary machine learning techniques, would have for Holmes adequately bridged the gap between the logic of nature and the ambiguity of law. These probabilistic logics are designed to allow for precise quantification of uncertainty and ambiguity.

This is not a purely academic question. I’m thinking concretely about applications to regulation. Some of this has already been implemented. I’m thinking about Datta, Tschantz, and Datta’s “Automated Experiments on Ad Privacy Settings: A Tale of Opacity, Choice, and Discrimination” (pdf). I know several other discrimination auditing tools have been developed by computer science researchers. What is the legal status of these tools? Could they or should they be implemented as a scalable or real-time autonomous system?

I was talking to an engineer friend the other day and he was telling me that internally to Google, there’s a team responsible for building the automated system that tests all of its other automated systems to make sure that it is adherence to its own internal privacy standards. This was a comforting thing to hear and not a surprise, as I get the sense from conversations I’ve had with Googler’s that they are in general a very ethically conscientious company. What’s distressing to me is that Google may have more powerful techniques available for self-monitoring than the government has for regulation. This is because (I think…again my knowledge of these matters is actually quite limited) at Google they know when a well-engineered computing system is going to perform better than a team of clerks, and so developing this sort of system is considered worthy of investment. It will be internally trusted as much as any other internal expertise. Whereas in the court system, institutional inertia and dependency on discursive law mean that at best this sort of system can be brought in as an expensive and not entirely trusted external source.

What I’d like to figure out is to what extent agency law in particular is flexible enough to be extended to algorithmic law.

algorithmic law and pragmatist legal theory: Oliver Wendell Holmes Jr. “The Path of the Law”

Several months ago I was taken by the idea that in the future (and maybe depending on how you think about it, already in the present) laws should be written as computer algorithms. While the idea that “code is law” and that technology regulates is by no means original, what I thought perhaps provocative is the positive case for the (re-)implementation of the fundamental laws of the city or state in software code.

The argument went roughly like this:

  • Effective law must control a complex society
  • Effective control requires social and political prediciton.
  • Unassisted humans are not good at social and political prediction. For this conclusion I drew heavily on Philip Tetlock’s work in Expert Political Judgment.
  • Therefore laws, in order to keep pace with the complexity of society, should be implemented as technical systems capable of bringing data and machine learning to bear on social control.

Science fiction is full of both dystopias and utopias in which society is literally controlled by a giant, intelligent machine. Avoiding either extreme, I just want to make the modest point that there may be scalability problems with law and regulation based on discourse in natural language. To some extent the failure of the state to provide sophisticated, personalized regulation in society has created myriad opportunities for businesses to fill these roles. Now there’s anxiety about the relationship between these businesses and the state as they compete for social regulation. To the extent that businesses are less legitimate rulers of society than the state, it seems a practical, technical necessity that the state adopt the same efficient technologies for regulation that businesses have. To do otherwise is to become obsolete.

There are lots of reasons to object to this position. I’m interested in hearing yours and hope you will comment on this and future blog posts or otherwise contact me with your considered thoughts on the matter. To me the strongest objection is that the whole point of the law is that it is based on precedent, and so any claim about the future trajectory of the law has to be based on past thinking about the law. Since I am not a lawyer and I know precious little about the law, you shouldn’t listen to my argument because I don’t know what I’m talking about. Q.E.D.

My counterargument to this is that there’s lots of academics who opine about things they don’t have particular expertise in. One way to get away with this is by deferring to somebody else who has credibility in field of interest. This is just one of several reasons why I’ve been reading “The Path of the Law“, a classic essay about pragmatist legal theory written by Supreme Court Justice Oliver Wendell Holmes Jr. in 1897.

One of the key points of this essay is that it is a mistake to consider the study of law the study of morality per se. Rather, the study of law is the attempt to predict the decisions that courts will make in the future, based on the decisions courts will make in the past. What courts actually decide is based in part of legal precedent but also on the unconsciously inclinations of judges and juries. In ambiguous cases, different legal framings of the same facts will be in competition, and the judgment will give weight to one interpretation or another. Perhaps the judge will attempt to reconcile these differences into a single, logically consistent code.

I’d like to take up the arguments of this essay again in later blog posts, but for now I want to focus on the concept of legal study as prediction. I think this demands focus because while Holmes, like most American pragmatists, had a thorough and nuanced understanding of what prediction is, our mathematical understanding of prediction has come a long way since 1897. Indeed, it is a direct consequence of these formalizations and implementations of predictive systems that we today see so much tacit social regulation performed by algorithms. We know now that effective prediction depends on access to data and the computational power to process it according to well-known algorithms. These algorithms can optimize themselves to such a degree that their specific operations are seemingly beyond the comprehension of the people affected by them. Some lawyers have argued that this complexity should not be allowed to exist.

What I am pointing to is a fundamental tension between the requirement that practitioners of the law be able to predict legal outcomes, and the fact that the logic of the most powerful predictive engines today is written in software code not words. This is because of physical properties of computation and prediction that are not likely to ever change. And since a powerful predictive engine can just as easily use its power to be strategically unpredictable, this presents an existential challenge to the law. It may simply be impossible for lawyers acting as human lawyers have for hundreds of years to effectively predict and therefor regulate powerful computational systems.

One could argue that this means that such powerful computational systems should simply be outlawed. Indeed this is the thrust of certain lawyers. But if we believe that these systems are not going to go away, perhaps because they won’t allow us to regulate them out of existence, then our only viable alternative to suffering under their lawless control is to develop a competing system of computational legalism with the legitimacy of the state.

discovering agency in symbolic politics as psychic expression of Blau space

If the Blau space is exogenous to manifest society, then politics is an epiphenomenon. There will be hustlers; there will be the oscillations of who is in control. But there is no agency. Particularities are illusory, much as how in quantum field theory the whole notion of the ‘particle’ is due to our perceptual limitations.

An alternative hypothesis is that the Blau space shifts over time as a result of societal change.

Demographics surely do change over time. But this does not in itself show that Blau space shifts are endogenous to the political system. We could possibly attribute all Blau space shifts to, for example, apolitical terms of population growth and natural resource availability. This is the geographic determinism stance. (I’ve never read Guns, Germs, and Steel… I’ve heard mixed reviews.)

Detecting political agency within a complex system is bound to be difficult because it’s a lot like trying to detect free will, only with a more hierarchical ontology. Social structure may or may not be intelligent. Our individual ability to determine whether it is or not will be very limited. Any individual will have a limited set of cognitive frames with which to understand the world. Most of them will be acquired in childhood. While it’s a controversial theory, the Lakoff thesis that whether one is politically liberal or conservative depends on ones relationship with ones parents is certainly very plausible. How does one relate to authority? Parental authority is replaced by state and institutional authority. The rest follows.

None of these projects are scientific. This is why politics is so messed up. Whereas the Blau space is an objective multidimensional space of demographic variability, the political imaginary is the battleground of conscious nightmares in the symbolic sphere. Pathetic humanity, pained by cruel life, fated to be too tall, or too short, born too rich or too poor, disabled, misunderstood, or damned to mediocrity, unfurls its anguish in so many flags in parades, semaphore, and war. But what is it good for?

“Absolutely nothin’!”

I’ve written before about how I think Jung and Bourdieu are an improvement on Freud and Habermas as the basis of unifying political ideal. Whereas for Freud psychological health is the rational repression of the id so that the moralism of the superego can hold sway over society, Jung sees the spiritual value of the unconscious. All literature and mythology is an expression of emotional data. Awakening to the impersonal nature of ones emotions–as they are rooted in a collective unconscious constituted by history and culture as well as biology and individual circumstance–is necessary for healthy individuation.

So whereas Habermasian direct democracy, being Freudian through the Frankfurt School tradition, is a matter of rational consensus around norms, presumably coupled with the repression of that which does not accord with those norms, we can wonder what a democracy based on Jungian psychology would look like. It would need to acknowledge social difference within society, as Bourdieu does, and that this social difference puts constraints on democratic participation.

There’s nothing so remarkable about what I’m saying. I’m a little embarrassed to be drawing from European Grand Theorists and psychoanalysts when it would be much more appropriate for me to be looking at, say, the tradition of American political science with its thorough analysis of the role of elites and partisan democracy. But what I’m really looking for is a theory of justice, and the main way injustice seems to manifest itself now is in the resentment of different kinds of people toward each other. Some of this resentment is “populist” resentment, but I suspect that this is not really the source of strife. Rather, it’s the conflict of different kinds of elites, with their bases of power in different kinds of capital (economic, institutional, symbolic, etc.) that has macro-level impact, if politics is real at all. Political forces, which will have leaders (“elites”) simply as a matter of the statistical expression of variable available energy in the society to fill political roles, will recruit members by drawing from the psychic Blau space. As part of recruitment, the political force will activate the habitus shadow of its members, using the dark aspects of the psyche to mobilize action.

It is at this point, when power stokes the shadow through symbols, that injustice becomes psychologically real. Therefore (speaking for now only of symbolic politics, as opposed to justice in material economic actuality, which is something else entirely) a just political system is one that nurtures individuation to such an extent that its population is no longer susceptible to political mobilization.

To make this vision of democracy a bit more concrete, I think where this argument goes is that the public health system should provide art therapy services to every citizen. We won’t have a society that people feel is “fair” unless we address the psychological roots of feelings of disempowerment and injustice. And while there are certainly some causes of these feelings that are real and can be improved through better policy-making, it is the rare policy that actually improves things for everybody rather than just shifting resources around according to a new alignment of political power, thereby creating a new elite and new grudges. Instead I’m proposing that justice will require peace, and that peace is more a matter of the personal victory of the psyche than it is a matter of political victory of ones party.