Jurisprudence and Structural Realism

2 For a discussion of the conceptual shift that occurred, see Floridi, *The 4th Revolution: How the Infosphere is Reshaping Human Reality* (Oxford University Press, 2014). For an introduction to the Philosophy of Information, see Floridi, *Information: A Very Short Introduction* (Oxford University Press, 2010). For a more developed survey, see Floridi, *The Philosophy of Information* (Oxford University Press, 2011).

3 The Philosophy of Information. Luciano Floridi describes the field this way: “Information is the Cinderella story in the history of philosophy. Think of it for a moment. Understanding information is a necessary input for any philosophy of knowledge, no matter whether ordinary (epistemology) or scientific (philosophy of science). There is no ethic without choices, responsibilities, and moral evaluations, yet all these need a lot of relevant and reliable information and quite a good management of it.” Floridi, ‘Introduction’ in Floridi, *The Routledge Handbook of Philosophy of Information* (New York: Routledge, 2016), 1. The same is true for law, of course. No legal decision is made without information that includes the semantic meaning of the law and an increasing variety of non-semantic informational forms.

4 Marmor, *Philosophy of Law* (Princeton University Press, 2011).

6 Language and Information, 1999).

7 See Shannon, ‘The Mathematical Theory of Communication’ (1948) 27 *Bell System Technical J.* 379, reprinted in Shannon and Weaver, *The Mathematical Theory of Communication* (The University of Illinois Press, 1963), 29.

8 Ibid., vii.

9 Floridi, ‘Introduction’, 2.

10 Ibid, 2–3.

11 Ibid., 3.

12 These salient features [of law] in some such skeleton way as follows: They comprise (i) rules forbidding or enjoying certain types of behavior under penalty; (ii) rules requiring people to compensate those whom they injure in certain ways; (iii) rules specifying what must be done to make wills, contracts or other arrangements which confer rights and create obligations; (iv) courts determine what the rules are and when they have been broken, and to fix the punishment or compensation to be paid; (v) a legislature to make new rules and abolish old ones.” Hart, *The Concept of Law* (Oxford University Press, 1994), 3.

13 See, e.g., Kuhlthau and Tama, ‘Information Search Process of Lawyers: A Call for “Just for Me” Information Services’ (2001) 57 *J. Documentation* 25, 32, 34, 36–37. Many resources are listed in ‘Information Behavior’ (Legal Information Systems & Legal Informatics Resources) <http://www.personal.psu.edu/rcr5122/Dissertations.html> Jan. 23, 2017.

14 Among the most sophisticated use-cases at the time of this writing is offered by the artificial intelligence company Ross Intelligence, Inc., which uses advanced natural language programming. Ross Intelligence <http://www.rossintelligence.com> Jan. 23, 2017.

15 Eisenberg, ‘The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns’ (2011) 2011 *U. Illinois L. Rev.* 1713–38; see, e.g., for the systems theories approaches, Katz and Bommarito, ‘Measuring the Complexity of the Law: The United States Code’ (2014) 22 *Artificial Intelligence and L.* 337; Bommarito and Katz, ‘A Mathematical Approach to the Study of the United States Code’ (2010) 389 *Physica A: Stat. Mechanics and its Applications*; Ruhl, ‘Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State’ (1996) 45 *Duke L. J.* 849; Miller, ‘Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin’ (2000) 20 *Pace L. Rev.* 409; and Katz, ‘Quantitative Legal Prediction—Or—How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry’ (2012) 62 *Emory L. J.* 909.

16 Built on the affordances of the printing press: on the linearity and sequential processing demands of written text, which evokes the need for interpretation, reflection and contestation. The study and practice of law have thus been focused on establishing the meaning of legal norms and their applicability to relevant human interactions, while establishing the meaning of human action in the light of the applicable legal norms. Data-driven agency builds on an entirely different grammar, its building blocks are information and behaviour, not meaning and action. We need to face the possibility that this will drain the life from the law, turning it into a handmaiden of governance (that fashionable term meaning anything to anybody), devouring the procedural kernel of the Rule of Law that enables people to stand up for their rights against big players, whether governmental or corporate or otherwise. In this article I will test the interface between law and data-driven agency by understanding law in terms of information, assuming that we cannot take for granted that law will interact with an artificially intelligent ICT infrastructure (ICTI) in the same way as it has interacted with written and printed text (our previous and current ICTI). By framing law as information, I hope to convince the reader that technological infrastructures matter, require our attention and must somehow be brought under the Rule of Law. This will not be business as usual, as it will require rethinking and redesigning the architecture of the Rule of Law.” Hildebrandt, ‘Law as Data in the Era of Data Driven Agency’ (2016) 79 *The Mod. L. Rev.* 1, 2.

17 Leiter relies primarily on two of Quine’s essays: ‘The Two Dogmas of Empiricism,’ and ‘Naturalizing Epistemology,’ discussed infra at 12–21.

18 Leiter, *Naturalizing Jurisprudence* (Oxford University Press, 1996).

19 Wittgenstein, *Philosophical Investigations* (Massachusetts: Wiley-Blackwell, 2001).

20 Patterson, *Law and Truth* (Oxford University Press, 1996).

21 Ladyman, ‘Structural Realism’, (*Stan. Encyclopedia of Philosophy* Jan. 10, 2014), <https://plato.stanford.edu/entries/structural-realism/> Feb. 25, 2017.

22 See, e.g., French and Ladyman, ‘Remodeling Structural Realism: Quantum Physics and the Metaphysics of Structure’ (2003) 136 *Synthese* 31–56.

23 See Hacker, ‘Wittgenstein and Quine: Proximity at a Great Distance’, in Arrington and Glock, *Wittgenstein and Quine* (New York: Routledge, 1996) 1–38.

24. Hacker notes: ‘Both repudiate classical foundationalism in epistemology. Quine’s stance is epitomized in the dictum that “There is not first philosophy.” Holism displaces foundationalism, and ‘naturalized epistemology’, drawing upon psychology, neurophysiology and physics, replaces the investigation of the justification of knowledge claims with causal explanations. Wittgenstein’s private language arguments undermine classical foundationalism. It is replaced (in On Certainty) not by naturalized epistemology but by socialized epistemology.” Ibid, 3.

5. ‘ask for the meaning, ask for the use.’ Quine, in one of his relatively rare references to Wittgenstein, quotes it approvingly.” Ibid. (Quine and Wittgenstein disagree on many points as too, including, critically, Quine rejects Wittgenstein’s view of the normativity of language.) Hacker explains, From the point of view of a normative conception of meaning such as Wittgenstein defends, a behaviouristic conception like Quine’s is simply no conception of meaning at all, not even an ersatz one. Indeed, it is not a conception of language, for a language stripped of normativity is no more language than chess stripped of its rules is a game. Ibid, 15–16.

26. See infra pp. 28–29.

27. For a brief introduction to Structural Realism, see Ladyman, supra note 20.

28. For background on Mortiz Schlick, see Oberdan, ‘Moritz Schlick’ (The Stan. Encyclopedia of Philosophy, May 28, 2013), <https://plato.stanford.edu/archives/win2016/entries/schlick/> Jan. 21, 2017.

29. See Maxwell, ‘Structural Realism and the Meaning of Theoretical Terms’ in Winokur and Radner, Analyses of Theories and Methods of Physics and Psychology (University of Minnesotta Press, 1970), 182–92; Maxwell, ‘Theories, Perception and Structural Realism’ in Colodny and Maxwell, Nature & Function of Scientific Theories (University of Pittsburg Press, 1970) 3–34; Worrall, ‘Structural Realism: The Best of Both Worlds?’ (1989) 43 Dialectica 99–124.

30. Floridi, ‘A Defense of Informational Structural Realism’ (2008) 161 Synthese 219–53.

31. Floridi, ‘The Renaissance of Epistemology’ in Baldwin, The Cambridge History of Philosophy 1870-1945 (Cambridge University Press, 2003), 531–41.

32. Ibid, 532.

33. Ibid, 533.

34. Ibid.

35. Ibid.

36. A particularly influential movement within neo-Kantianism was “psychologism.” For a study of it see Kusch, Psychologism: A Case Study in the Sociology of Philosophical Knowledge (New York: Routledge, 1995).

37. See Dummett, ‘Preface’ in Husserl, Logical Investigation (New York: Routledge, 1982), xiiv-xix.

38. Ibid, xiiv.

39. Dummett, The Origins of Analytic Philosophy (London: Bloomsbury, 1993).

40. The critical difference between them centered on their alternative construal of what is represented to the mind in intentionality. Ibid, 38–39.

41. Ibid, 5.

42. Rorty, The Linguistic Turn: Essays in Philosophical Method (The University of Chicago Press, 1992).

43. Frege, The Foundations of Arithmetic: A Logico-Mathematical Enquiry into the Concept of Number (Illinois: Northwestern University Press, 1999).

44. Ibid, 73.

45. Dummett, 5–6.

46. See Glock, What is Analytic Philosophy? (Cambridge University Press, 2008), 29–30.

47. See Dummett, 15–21.

48. See Glock, 34–39.

49. For background on Neurath, see Cat, ‘Otto Neurath’ (The Stan. Encyclopedia of Philosophy, Dec. 3, 2014), <https://plato.stanford.edu/archives/win2014/entries/neurath/> Jan. 21, 2017; see also Hamilton, ‘Otto Neurath’ in Dancy and Sosa, A Companion to Epistemology (Massachusetts: Wiley-Blackwell, 1993), 303–04.

50. See, e.g., Neurath, ‘Physicalism’ in Philosophical Papers 1913-1946 (Holland: D. Reidel Publishing Company, 1983), 52–57.

51. See Hamilton, 303 (“Neurath was never attracted to the empiricist, foundationalist strand [of logical positivism].”)

52. Floridi describes him in this passage: “For Neurath, the epistemic justification of science was not to be achieved by means of an appeal to external facts or alleged intuitions, but internally, through logical coherence (which did not necessarily exclude some ordering relations), instrumental economy, pragmatic considerations of social and scientific ends, a rational use of conventions by the scientific community, and a constantly open and public debate. Following Duhem, Neurath argued that, given an apparently successful theory, rival explanations can be made to fit the same evidence that supports it, and that in replacing or revising a theory, hypotheses and observation statements come under scrutiny as whole networks, not individually. Practical expedience rather than absolute truth was determinant.” Floridi, ‘The Renaissance’, 534.

53. Quoted in Ibid, 35 (citing Philosophical Papers, 92).

54. Quine, ‘Two Dogmas of Empiricism’ in Gibson, Quintessence: Basic Reading from the Philosophy of W. V. Quine (Massachusetts: Harvard University Press, 2004), 31–53.

55. He states, “The totality of our so-called knowledge or beliefs, from the most causal matters of geography and history to the profoundest laws of atomic physics or even pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges. Or, to change the figure, total science is like a field of force whose boundary conditions are experience.” Ibid, 50.

56. Quine, ‘Carnap and Logical Truth’ in Schilpp, The Philosophy of Rudolf Carnap (Open Court, 1963), 405.

57. Quine, ‘Epistemology Naturalized’ in Quintessence, 259–74.

58. Ibid, 274.

59. Ibid.

60. Ibid, 260.

61. For a discussion of Whitehead and Russell, Principia Mathematica (2011), see Kneale and Kneale, The Development of Logic (Oxford University Press, 1984), 517.

62. Gödel, On Formally Undecidable Propositions of Principia Mathematica and Related Systems (New York: Dover Publications, 1992).

63. Quine, supra note 56, at 260.

64. Ibid.

65. Ibid.

66. Ibid, 269, reprinted in Kornblith, Naturalizing Epistemology (1994) 3 (emphasis added by Kornblith).

67. Ibid.

68. Legal theorists have associated with Ronald Dworkin’s legal theory. And, there is a form of substance naturalism (which seeks harmony by looking to avoid conflicts of legal theory with the conclusions of the natural sciences), which is associated with Scandinavian Legal Realism. See Leiter, ‘Naturalism in Legal Philosophy’, (The Stan. Encyclopedia of Philosophy, Jul. 31, 2012), <https://plato.stanford.edu/archives/fall2014/entries/lawphil-naturalism/> Jan. 21, 2017.

69. Leiter, supra note 17, at 39.

70. Leiter, supra note 67.

71. See supra text accompanying note 55.

72. Leiter, supra note 17.

73. Ibid.

74. Leiter, supra note 17, at 40.

75. Ibid. at 23–24.

76. Ibid at 25–26.

77. Ibid, 16.

78. Ibid, 17. (Leiter notes that for a discussion of Hart’s argument, see Patterson, ‘Legal Realism’ in A Companion To Philosophy of Law and Legal Theory (1996) 261–79.

79. Ibid, 21.

80. Ibid, 23.

81. Ibid (citing Llewellyn, The Bramble Bush: On the Law and Its Study 33 (1951), 33).

82. Ibid, 39.

83. Ibid, 40.

84. Although Soft Positivism was attributed to Hart by Raz, he acknowledges that it was his position in the Postscript to the Concept of Law. See Hart, The Concept of Law, 251.

85. Leiter, Naturalizing Jurisprudence, 160.

86. Ibid.

87. Ibid.

88. Ibid.

89. Ibid.

90. Ibid, 162–63.

91. Ibid, 175.

92. Wittgenstein, Tractatus Logico-Philosophicus (1999). For an introduction to Wittgenstein’s philosophy, see, G.E.M. Anscombe, An Introduction to Wittgenstein’s Tractatus (1959).

93. Wittgenstein, Ibid, 4.

94. Ibid, 29.

95. Ibid, 47.

96. Apel, Towards a Transformation of Philosophy (1973).

97. Ibid, 6.

98. Ibid, 7.

99. Wittgenstein, Tractatus, 52.

100. Apel, 32.

101. Ibid, 32.

102. Wittgenstein, Philisophical, 75–88.

103. See Kripke, Wittgenstein: on Rules and Private Language (1982).

104. Wittgenstein, Philisophical, 69.

105. Badiou, Wittgenstein’s Antiphilosophy (2011).

106. McDowell, Mind and World (1996), 18–23.

107. McDowell writes, “The fundamental thrust of Wittgenstein’s attack [on private language] is not to eliminate the idea of a private language, which by itself would merely push the line of thought he opposes to this point. Wittgenstein’s attack undermines even this position, which has already given up the idea of a private language, by applying the general moral: a bare presence cannot be a ground for anything.” Ibid,19.

109. Ibid Patterson states, “I take the task of jurisprudence to be that of providing a philosophical account of what it means to say that propositions of law are true and false.” Ibid, 4.

110. Ibid, 7.

111. Ibid (quoting Dworkin, The Philosophy of Law 8 (1977)).

112. Ibid.

113. Ibid, 8.

114. Ibid.

115. Ibid.

116. Ibid.

117. Leiter describes Patterson’s argument this way: “…when Dworkin gives a belabored argument of moral philosophy for the constitutionality of affirmative action or Posner gives a complex efficiency argument for the law of negligence, whatever it is they are doing it does not look much like law. Their arguments in short, whatever their intellectual merit and ingenuity, do not sound much like lawyer’s arguments, the sorts of arguments lawyers could stand up and make in court without being laughed out of the courtroom or cited for contempt.” Leiter, Naturalizing, 139–40.

118. Ibid, 9.

119. Ibid, 10.

120. Ibid.

121. Ibid (quoting Moore, ‘Precedent, Induction, and Ethical Generalization’ in Precedent in Law (Laurence Goldstein ed., 1987) 183, 198).

122. Ibid (quoting Moore, ‘A Natural Law Theory of Interpretation’ (1985) 58 S. Cal. Law Rev. 277, 294).

123. Ibid.

124. Ibid, 11.

125. Ibid, 12.

126. He explains: “The view I identify as “postmodern” rejects the project of unraveling the connection between propositions and what makes them true. From a postmodernist point of view, to say that some proposition is true is to say that “a sufficiently well placed speaker who used the words in that way would be fully warranted in counting the statement as true of that situation.” Ibid, 150.

127. Patterson, Law and Truth, 12.

128. Ibid, 152.

129. Ibid, 14.

130. Ibid, 15.

131. Ibid (quoting Unger, The Critical Legal Studies Movement (1986), 9).

132. Patterson explains: “Unger states that one should neither accept doctrine blindly not reject it as a whole. This leaves one in the difficult position of deciding just what to include and what to leave out. To make these choices, “you need a background perspective theory of the relevant area of social practice, a theory that does for the branch of law in question what a doctrine of the republic or the political process does for constitutional argument.” This where the trouble starts.” Ibid.

133. with sociology. He notes Hart’s criticism of this position stating, “One cannot understand the nature of justification without investigating how individuals in a practice use rules as justifications for another’s behavior. Singer thinks that if a rule does dictate results mechanically it can play no justificatory role. This is absurd. Were it true, we could not understand how rules govern everything from cello performance, to chess, to traffic regulation. Are all of these activities, which we see as governed by rules, to be dismissed as merely behavioral response to cultural stimuli?” Ibid at 18.

134. Ibid 128.

135. Ibid, 133.

136. Ibid (quoting Bobbit, Constitutional Interpretation (1991), 34).

137. Ibid.

138. Ibid, 134.

139. Ibid, 136. There are six modalities that Patterson takes from Bobbitt: (1) historical; (2) textual; (3) structural; (4) doctrinal; (5) ethical; and (6) prudential. Ibid, 137 (quoting Bobbit, 12–13).

140. Patterson, ‘Law and Truth: Replies to Critics’ (1997) 50 SMU L. Rev. 1563, 1589 (citing Hacker, Wittgenstein’s Place in Twentieth Century Analytic Philosophy (1996) 97–136).

141. Ibid.

142. He calls this “the denial of the truth-conditional account of law.” Patterson, Law and Truth, 19.

143. Ibid.

144. bid (quoting Bobbitt, 23).

145. Leiter, Naturalizing Jurisprudence, 139.

146. See Patterson, ‘Law and Truth: Replies, 1591.

147. Ibid at 1593.

148. Leiter, Naturalizing Jurisprudence, 139.

149. Schlick argued against Neurath’s coherentism in ‘Positivism and Realism’ (1932), ‘On the Foundations of Knowledge’ (1934), and ‘Facts and Propositions’ (1935), in Dancy and Sosa, Companion to Epistemology, 465.

150. Schlick, General Theory of Knowledge (1918); See also Dancy and Sosa, Companion to Epistemology, 465.

151. For historical background on the origins of structural epistemology see Gower, ‘Cassirer, Schlick and “Structural” Realism: The Philosophy of the Exact Sciences in the Background to Early Logical Empiricism’ (2000) 8 Brit. J. for Hist. Phil., 71–106. See also Russell, The Problems of Philosophy (2012); Russell, Stebbing, and Heath, ‘Symposium: Materialism in the Light of Modern Scientific Thought’ (1928) 8 Proceeding Aristotelian Soc., Supp. 130–42 (describing Whitehead’s and Russell’s contribution to early structural realism); Maxwell, ‘Scientific Methodology and the Causal Theory of Perception’ in Lakatos and Musgrave, Problems in Philosophy of Science 148–60 (1968), 148–60 (discussing Russell and Poincaré).

152. Floridi, ‘A Defense’, 219.

153. This approach has been particularly influential in the philosophy of physics. See, e.g., French and Ladyman, ‘Remodeling Structural Realism: Quantum Physics and the Metaphysics of Structure’ (2003) 136 Synthese 31–56.

154. Poincare, Gover Maxwell make similar claims.

155. Floridi, supra note 1, 341.

156. Ibid, 361.

157. See Ibid, 44–79.

158. Floridi, ‘A Defense’, 229.

159. Floridi, The Philosophy of Information, supra note 1, 52. Formal Methods is developed from the Z verification specification language, which is derived from the set logic of Zermelo.

160. Floridi defines Informational Structural Realism (ISR) as follows: “Explanatorily, instrumentally and predictively successful models (especially, but not only, those propounded by scientific theories) a given LoA [Level of Abstraction] can be, in the best circumstances, increasingly informative about the relations that obtain between the (possibly sub-observable) informational objects that constitute the system under investigation (through the observable phenomena.” Ibid at 361.

161. and Page, Complex Adaptive Systems: An Introduction to Computational Models of Social Life (2007). For a discussion of law as a complex dynamic system, see Ruhl, 14; Jones, ‘Dynamical Jurisprudence: Law as a Complex System’ (2008) 24 Ga. St. U. L. Rev. 873–83; Katz, Stafford, and Provis, ‘Social Architecture, Judicial Peer Effects and the “Evolution” of the Law: Toward a Positive Theory of Judicial Social Structure’ (2008) 24 Ga. St. U. L. Rev. 977–1001.

162. For a discussion of quantitative approaches to law’s complexity, see Holz, ‘Chaos Worth Having: Irreducible Complexity Pragmatic Jurisprudence’ (2007) 8 Minn. J.L. Sci. & Technology (2007) 303.

163. A similar note should be observed about the relationship between PLI and the field of Artificial Intelligence and Law. Floridi notes this, suggesting that the philosophy of AI was premature in the sense of having arrived before a clear sense of the nature of information had emerged. See Floridi, A Very Short Introduction to Information, supra, note 1, 2–3.

164. Ruhl, 897. The belief that law is a complex system was advanced first by Luhmann, Law as a Social System (2008).

165. Lochner v. New York, 198 U.S. 45 (1905).

166. Buck v. Bell, 274 U.S. 200 (1927).

167. Skinner v. Oklahoma, 315 U.S. 535 (1942).

168. Justice Douglas delivered the opinion of the majority, stating: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear.” Ibid, 541.

169. For a discussion of the eventual abandonment of the practice of forced sterilization and repudiation of the eugenics movement, see Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics (2008).

170. Cohen, Imbeciles, The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (2016).

171. Ibid, 320.

172. For a discussion of the biological cell as computational system, see Venter, Life at the Speed of Light: From the Double Helix to the Dawn of Digital Life (2013), 25–46.

173. These comments are offered here to suggest why an informational jurisprudence is needed, and how it might be grounded. A full theoretical account, including a normative jurisprudence that is based on an informational moral philosophy, is needed. Subsequent essays will take up these issues.