The Inverse of Law

Part I: If it works...

You can describe the process of evolution in a very simplified manner as organisms following the principle of "If it works do it more, if it doesn't work do it less". That is to say, if what you're doing appears to be working (you are surviving to adulthood and producing children) then keep on living your lifestyle until something changes. On the other hand, if you're not surviving to adulthood and not producing children then you'd better try something else quick, otherwise you'll become extinct. Over time hundreds or thousands of mutations will occur within a species, most of which will have no beneficial effects and will eventually fade out because individuals that inherit the mutation will not survive to adulthood or produce children. However, very infrequently a mutation will occur that gives an individual a better chance of surviving to adulthood and producing children, and because it works that mutation will be passed on and can become prevalent in the gene pool. This is all just another way of saying "If it works do it more, if it doesn't work do it less."

As a mental experiment, we can imagine a time when birds were around on our part of the planet but had not yet learned to migrate. Back in this hypothetical time birds did just fine in the spring, summer and fall, but when winter rolled around large numbers of them perished due to the cold temperatures and lack of food.  Since staying in one place the entire year was a strategy that didn't work very well it didn't take much impetus for them to try something else, such as flying away. However, we can image that at this time there wasn't an instinct for automatically flying South, so what you would have seen was a ring-shaped pattern of birds flying every-which direction with a number of them continuing to stay in the same place. The birds that randomly ended up flying East or West didn't do much better than those who stayed put, and the birds that flew North obviously did even worse. However, some birds must have flown South purely by chance and found themselves in a much more pleasant climate and environment. Most likely some of these birds elected to spend the rest of their lives in their new locale, but undoubtedly a few of them ended up flying back to their original home in the North. The ones that came back were well-fed and healthy from their Southern vacation and found only a few shivering, starving birds left in their original habitat. You can imagine which of these groups was the most likely to produce the most offspring - obviously the healthy, well-fed birds that flew South for the winter. And over time - a lot of time - the birds that had a genetic tendency to fly South lived longer and had more children than the birds that didn't and eventually came to be predominate in the population. (Note that I'm not implying that this is absolutely the way that birds became migratory - I'm just asking you to accept it as an example of the way the "If it works do it more, if it doesn't work do it less" principle could work.)

We sometimes make the mistake of thinking of evolution as something that happened in the distant past, when in reality it is going on all around us right now. For example, I've recently noticed that some ducks and Canadian geese have been spending the entire winter in the ponds, lakes and fields around the office buildings where I work and are not flying any farther South at all. And in fact I've also seen a few articles on the subject in the local newspapers here in North-Eastern Ohio. The office buildings have warm heating vents and maintenance workers who plough the snow and put out hay, so some of these birds have decided that it's not worth expending all that energy to fly South when they can now get by just fine by staying where they are. In other words, our actions have tipped the balance in the other directions for the ducks and geese such that it's now a better strategy to spend the winter here, be well-fed and even more rested than the birds that are still flying South. Flying South still works as well as it ever did, but it still takes a lot of time and energy to play that strategy and now it appears that staying in one place works even better for some birds in certain places. If we could freeze all the environmental factors in place and fast-forward a few thousand years we could very well find that the majority of ducks and geese in North-Eastern Ohio no longer migrate and instead spend the entire winter here. Remember, "If it works do it more, if it doesn't work do it less".

If we start looking we can find evolution and the "If it works..." principle in other places besides the plant and animal kingdoms, such as in the products and processes of our economy. For example, if we were to place a car from the 1920's next to a new one fresh off the assembly line and then compare them from twenty feet away they would superficially appear fairly similar. They both have four tires, an internal combustion engine, steering wheel, windshields, brakes, exhaust, driver, passenger and back seats, enclosed cabin, metal frame construction, etc. But when you examine them both up close you'll find hundreds if not thousands of individual design improvements in the new car - cruise control, automatic transmission, anti-lock brakes, electronic ignition, anti-theft alarm, emissions control monitors, a less wind-resistant profile, etc. You wouldn't see them, but there have also been improvements that were added and then later dropped in between the two designs. Once 8-track tape and cassette players were common, now cd-players are installed. There always used to be a full-size spare tire, but now many cars only have a limited-range donut tire. The point that I'm trying to make is that the design and manufacture of cars has evolved over the past century as builders introduced incremental features that made them more successful in their environment. Some of these features worked and were successful, others worked for a time but were later superceded and still others were dropped completely.

Part II: Positive and Negative Feedback

It seems a little tedious and unnecessary to analyze evolution in cars, computers, televisions, digital watches or any other product because we already expect them to change. Every year we expect that there are going to be new models with new features, improvements, efficiencies, cost benefits, etc. One of the reasons that there are always new models is that the manufactures are constantly in competition with one another to sell the most products, and another reason is that the manufactures rely on negative feedback. In other words, if Ford were to somehow produce a car with a cardboard body and nobody bought it then the company would immediately drop that particular "improvement" and either go back to what they did before or try something new. On the other hand, if the cardboard car had strong sales then you can bet that next year there would be even more cardboard car models on the showroom floor. (Coca-Cola went through this very same process when they tried to introduce a new formula which failed miserably and prompted a return to "Coke Classic".)  So, "negative feedback" is just a more concise way of saying "If it works do it more, if it doesn't work do it less."

Negative feedback is a very powerful design factor because its reaction to external forces keeps a particular system in balance. The prototypical example of negative feedback is the thermostat on your furnace. When the temperature in the house gets too low, the thermostat turns on the furnace, heats the house and brings the temperature back up. When the temperature reaches a certain level the thermostat turns the furnace off to prevent the house from getting too hot. The negative feedback loop in the thermostat keeps the house within a particular temperature range, avoids extremes of hot and cold and keeps the system in balance. The negative feedback loop in the evolution of birds allowed the species to survive by working out a migratory system whereby the flocks wintered in the warmer South and returned to their original habitats in the spring. The negative feedback loop in sales figures and market research allows a company to react to market forces and make more of the products that people want and to stop making the products they don't.

The opposite of negative feedback is positive feedback, and it is a very dangerous design principle because its reaction to external forces keeps a particular system out of balance. For example, a positive feedback thermostat would continue to run the furnace even though the temperature had risen. And just imagine what would happen to a manufacturer that introduced a cardboard car, and then continued making more of them even though they had dismal sales. And what would have happened to birds if they had all continued flying North for the winter, even though practically every bird that did it died? Positive feedback is saying in effect "If it doesn't work, do it more!" Or, "I know that nobody bought a cardboard car last year or the year before, but if we just keep making them eventually they'll start selling." Or even "I know we've flown North for the winter for the last hundred years and every time we do ninety percent of us end up dying off, but if we just bear down, concentrate and keep doing it more then I know it will start working!"

The whole purpose of that last paragraph was to show you that positive feedback doesn't work, and that companies or species that employ it will soon become extinct. But it might surprise you to know that positive feedback is present in large segments of our society, it doesn't work just like it wouldn't work for cars or birds, and nobody even notices! In fact, I guarantee that you can open any newspaper and find examples of it practically at will. For example, how many times have you heard that the way to solve crime is to hire more police officers, build more jails or impose longer sentences? That the way to solve traffic congestion is to build more highways? That we need to hire more teachers, impose more standardized tests, put more computers in the classroom, pass more gun-control laws, grow more food, elect more republicans/democrats/libertarians/etc, give more money to medical research, more, more, MORE. Doesn't this sound like positive feedback to you? "We've had crime every year since the dawn of civilization, every year we've hired police officers, built prisons and given criminals longer sentences, and if we just keep doing it more then I know it will start working." "Our children aren't getting quality educations and their test scores are dropping, so what we need to do is give them more homework and more tests." It seems that the cure for every problem in our society is to keep doing more of what hasn't worked all along.

Part III: Positive Feedback in Our Society

The rules of negative feedback and evolution state that if something isn't working then you should do it less and instead do more of something else. However, our society can't react that way because our government and public institutions are based on written laws, which are by design resistant to change. Laws are an arbitrary set of mandated, contrived instructions that have not been tested in their environment but yet are not allowed to evolve or die. This does not preclude there ever being "good" laws - if a law works in its environment and adequately performs its function then it can be called successful. However, if the environment changes, the law doesn't perform its function or has pejorative side effects then it must still be enforced and is not allowed to change or react. Laws are sometimes no longer enforced or become obsolete, but they often continue to be enforced long after their usefulness has expired simply through force of habit. For example, you still occasionally hear about Blue Laws on the books that prohibit swearing in public places, carrying an unwrapped ukulele on the street, marrying your wife's grandmother, regulating alcohol sales on Sunday, etc.

You can argue that laws can be rescinded or contravened by new laws, but this is typically an arduous process that can involve law suits and years of court appeals before a change finally occurs. My point is that living under the "rule of law" is like stepping on one of those moveable conveyor belts you find at airports - it compels you to move forward without any effort at all but it's nearly impossible to stop, change directions or get off. Just imagine what would happen to a politician who announced that the death penalty and outrageously long sentences hasn't solved the crime problem and that if elected he or she would bring together all the community leaders to discuss any and all alternatives to courts and prisons. Obviously this poor misguided person would be pilloried as "soft on crime" and the winning candidate would be the one advocating more police, prisons and laws. Or what if a school principal stood up in a PTA meeting and announced that the assembly-line approach to education where every child is expected to learn the same information at the same rate as every other child has failed miserably, and that the staff had decided to try eliminating the individual grade levels and instead group children by their interests and abilities. I have no doubt that this unfortunate principal would be immediately run out of town as a radical liberal who was endangering their children's future. People have become so used to the static, unbending structures that form the basis of our society that it becomes very difficult to accept the idea that some things need to change or can be changed. We learn at an early age that the Constitution is the rock upon which this country was founded, and rocks certainly don't adapt or evolve!

Part IV: The Next Obvious Question

We could continue to dwell on further examples of how laws that encourage positive feedback don't work, but instead it would be more productive to ask and attempt to answer the next obvious question. You can think of laws as acting as the genes of our society - like a computer program they provide a set of instructions that control the actions of the individual members of our society. So, you can think of our society as the sum total of all the individual members implementing and acting in accordance with the laws of our society. On the one hand, genes can be thought of as the master-programmers of their organisms - they provide basic responses to stimuli and instructions that hopefully allow their hosts to survive and flourish in their environment. On the other hand, laws can be thought of as the rules governing the behavior of the society as viewed as a whole population, which hopefully allows its individual members to survive and flourish in their environment. Genes are fluid and evolve by testing new strategies and reacting to a changing environment, but unfortunately laws are static and prevent the members of a society from easily trying new strategies. In a way our laws are like cancerous cells, unable to change or move in any direction except forward, running full-throttle on a positive feedback loop.

So, what then is the "next obvious question"? If laws that encourage positive feedback ultimately don't work, then what would a society with laws based on negative feedback look like? In other words, how can we make laws act more like genes so that they can evolve and react to a changing environment? To start with I think we need a change in terminology. The word law has too many inherent connotations - a law that doesn't always have to be obeyed or may not always be enforced is no longer a law but is instead a suggestion, guideline, hint, etc. Since we're starting from scratch and re-inventing the basis of a society why don't we call these underlying guidelines lenes? (Law + Gene = Lene) A lene is therefore a guideline for behavior that has worked in the past that should be applied to the current situation, keeping in mind that if it no longer works it can be replaced with something else. The collection of all the lenes that a particular group of people follow therefore defines that society - the lenes give a strong indication of how that society's members function towards one another, interact with their environment and behave towards other groups. But the important thing to keep in mind is that lenes aren't laws - lenes are only around as long as they continue to work. If they stop working then they have to be discarded and replaced with something else. Shifts in the environment are probably gradual and infrequent events, so a society's body of lenes will most likely remain stable for long periods of time. When a shift does occur there will be an intermediate period where various alternative lenes are tried, and then stability will return once a new working set is found. And in this case the environment in which lenes operate is not just the physical world around us but also includes areas like the political climate and the current state of technology.

Another difference between lenes and laws is that in general there shouldn't be any lenes for not doing an action. In general, genes instruct an organism how to respond in a given situation, not how not to respond. For example, there is some genetic element that instruct birds to fly South for the winter, but no genes for not flying North, East, West, upside-down or straight up. Any bird that does have a gene for flying North, East, West, upside-down or straight up in winter is not going to survive and what will be left are the birds with genes for flying South. In effect the genes say "Do this", not "Don't do this, this, this and this." Likewise, a lene should instruct you how to behave in a given situation rather than prohibit you from doing something else. It's often ineffectual to try to force people down a certain path by banning access to all the other paths because people will always try to find a way around your barricades. The path that the lene encourages you to take should be the path that will work the best for you and your society, and individuals that take the other paths will not do as well in your environment.

Since we've now defined the lenes it's time to invent one and put it to the test. A lene should encourage you to behave in a way that's beneficial in your environment, so an example of a lene for people living in a desert area could be "apply economic costs to the use of water proportionate to the amount of water available." Note that the lene doesn't say "each person must not consume more than 5 percent of their body mass in water per day, water their lawn more than once a week, install low-flush toilets, use flow-restricted shower heads, etc." because anything with the words "must" or "must not" is a law, not a lene. A law attempts to prevent members of a society from doing something that some of them are probably going to do anyway, while a lene encourages them to behave in a way that is beneficial or attempts to bring the system back into balance. Using the water example, imposing rules and restrictions around the use of water simply encourages people to cheat and use more than their fair share without repercussions, unless a nosy neighbor happens to turn them in. As people find ways to cheat more enforcers, regulations and ordinances will be required to keep water consumption down, resulting in yet another positive feedback loop. However, contrast that with the way the lene works: if there are relatively few people around or the water supply happens to be plentiful this year then the cost of water will be low and people can use as much water as they like. However, if people begin to use too much water then the supply will drop, its cost will increase and people will begin to use less. As they use less water its supply will increase, the cost will drop and they can begin to use a little more again, with the result being a negative feedback loop. Of course they could still try to cheat by diverting more water from some other source, but the people living near the water the first group is trying to obtain may be following the lene "you'll regret it if you let your resources be over-used" and fight to stop them.

The water-use lene was a relatively simple example, so why don't we try to find a lene for a more weighty issue. One of the most hot-button issues is crime, and no crime is more serious than murder. Surely there isn't any better way to deal with murderers than to lock them up for life, give them a lethal injection or the electric chair? Well, we've been locking them up and executing them for centuries, building more prisons and hiring more police officers and they strangely still don't seem to have gotten the message yet. So you could argue that since having laws on the books against murder hasn't prevented people from murdering each other that maybe it's time to give the lenes a chance. Once again, lenes encourage people to behave in ways that are beneficial in their environment or attempt to bring the system back into balance. I'm going to say that in this case the environment and the system include not just society but also the general attitude in that society. That is, some societies have an attitude of forgiveness, others have an attitude towards retribution/restitution, others may have a laissez-faire point of view and others may be a combination of the three or something else entirely. Therefore any lene we come up with for an issue like murder has to work within that society's "attitudinal environment". That is to say, there is no one right lene for all societies.

Inventing a working lene for something as serious as murder will be extraordinarily difficult because we don't have the context of a lene-based society in which to place it, but we can probably make a few guesses. To start with, locking the perpetrator up in prison for essentially the rest of his life probably won't be part of the lene. If one person is removed from society through murder then removing yet another person won't bring the society back into balance. "If one person is removed, then do it more and remove another!" is an example of positive feedback and has no place here. And after all, even we know that two wrongs don't make a right! The lene also can't say Thou shalt not commit murder because that would make it a law and lenes can only encourage you to behave in a way that's beneficial. So, perhaps a primitive kind of lene would say that if you remove a human resource from the community then you owe something of great value to the victim's relatives in order to discourage murder and to re-balance the society when it does occur. Whatever the "something of great value" is would have to be specific to whatever that society holds in high regard. Perhaps it's labor and the perpetrator would become a kind of slave for a period of time, or maybe it's some physical form of wealth like cattle or money. Of course I can hear the howls of protest now about allowing murders to "buy off" their crimes, but remember that this lene would be tested over time and if it worked it would survive and if it didn't work it would be dropped or mutate into something else. For example, if some wealthy person in the society decided to commit a series of murders and then pay off the relatives it would soon become obvious that this person was working to destabilize the community and he or she could be ejected from that society or stripped of all wealth. Lenes also don't have any consideration for our sense of morality or justice - they simply follow the principle of "If it works do it more, if it doesn't do it less."

In any event, we still have the same problem in that lenes by definition are continually being tested and evolve until the ones that are left are the ones that work in their environment. Therefore, we really can't just invent a lene for murder or anything else because we don't have any way to test it and we certainly can't wait around until a working one appears. So in order to find one we'll have to look someplace where there aren't laws or a traditional criminal justice system and see what is in use there. But then again, where aren't there laws or a traditional criminal justice system? Doesn't every civilized country live under the rule of law and have branches of government to enforce them? The answer is that tribal societies get by just fine without laws or the mechanisms of a state, and have lived a successful lifestyle since the birth of humanity. What the tribal people have are lenes - rules and guidelines that have evolved and withstood the test of time because they work in their environment. So if we're looking for real, working lenes why not look in places where they are being used today? Places like the aboriginal societies in Australia and the tribal peoples of India and Pakistan, Africa, South America and elsewhere.

Part V: Where the Lenes Are

Tribal laws are lenes by definition - they are received rules and guidelines for behavior in a society that have evolved, withstood the test of time and work in their environments. Tribal laws aren't introduced in committee, debated by tribal lobbyists and lawmakers, written in stone in the big book of tribal laws or enforced by the tribal policemen. Tribal laws are unique for each society because each society inhabits a unique environment - what works for an aggressive, xenophobic desert people wouldn't necessary work for laid-back, hospitable forest dwellers. Tribal laws generally don't try to change human nature because people are just as likely to be selfish, boorish, disruptive or hostile as they are to be generous, gracious, attentive or peaceable. As lenes they instead work to bring the system back into balance and to correct the damage that occurs when people do behave in ways that aren't beneficial. Tribal laws and lenes don't require people to be angels in order to work - they accept the fact that people will behave like people have always behaved.

In her essay "The Greater Common Good", Arundhati Roy writes "Nehru and Gandhi were generous men. Their paradigms for development are based on assumptions of inherent morality. Nehru's on the paternal, protective morality of the Soviet-style Centralised State. Gandhi's on the nurturing, maternal morality of romanticised village Republics. Both would work perfectly, if only we were better human beings. If only we all wore khadi and suppressed our base urges - sex, shopping, dodging spinning lessons and being unkind to the less fortunate."On the other hand, Australia's Public Debate forum states that "Aboriginal law operates on a much more personal level than our national legal system. It works by bringing offender and victim together, by mediation, by both personal and ritual apology and atonement. The crime is not isolated from the wider relationships of tribal life and there is emphasis on healing the sense of hurt of the victim by involving them fully in the process of redemption." These two quotations epitomize the difference between societies based on laws and communities based on lenes - the difference between positive and negative feedback, the difference between behavior fixed by decree and behavior allowed to evolve and adapt. Lenes are truly the inverse of Law - not anarchy, but a return to a lifestyle and society that embraces evolution rather than struggles against it.

Finally, to answer the question of a lene for murder I'll give you the following article from Pakistan's DAWN English-language newspaper and let you be the judge.

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http://dawn.com/1999/19991215/nat15.htm

15 December 1999 Wednesday 06 Ramazan 1420

 DAWN, Pakistan's most widely circulated English language newspaper

Tribal court settles murder case

By Our Correspondent