Guest Blawg: Gretchen S. Sween

Today we get a special treat -- a guest blawg by the one . . . the only . . . the delightful . . . Gretchen S. Sween.  

Her post deals with the epistemology of drawing lines.  Blawgletter thinks you'll like it.  We sure did.

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Before I built a wall I'd ask to know

What I was walling in or walling out,

And to whom I was like to give offence.

 

Robert Frost

 

Last night, I heard about a delightfully absurd bill that has been introduced in Congress.  The thing is spearheaded by Senator and former Presidential candidate Sam Brownback and reputedly sponsored by about twenty other (mostly Republican) Senators, including Senator John McCain.  The bill, at least as described by a member of the news media, would impose a federal ban on efforts to create human-animal hybrids. 

 

Huh? 

 

My thoughts instantly leapt to the pig valve that was nicely implanted in my mother a few years ago in the wake of a heart attack and the subsequent discovery that a critical feature of that life-sustaining pump had failed.  If this “no human hybrids” legislation were enacted, would that make my mother ex post facto illegal?

 

Okay, I understand that Mr. Brownback’s bill is not actually targeting pig valves but rather mermaids, centaurs, and The Island of Doctor Moreau.  So, I turn to a less facetious question:  Why are we humans, especially those in the business of lawmaking, so obsessed with defining rigid boundaries, borders, bright-line cutoffs? 

 

Interestingly, science, one realm of human endeavor where our longing for essential answers is clearly manifest, has been quite successful in the past century or so at deconstructing the very notions of essentialism and clearly discernible boundaries.  Indeed, the Greatest Hits of Twentieth Century Scientific Innovation could be aptly dubbed “The Triumph of Fuzzy Borders.”  Consider quantum physics, which at the most basic level of physicality, blurs the distinction between waves and particles and relies on retroactive causation.  And of course cosmology teaches that the universe itself has no outer boundary, but continues to move away from a singularity in all directions at the speed of light.  Then there is chaos theory, which provides insights into the dynamics of non-linear systems, such as weather, the formation of coastlines, and the stock market, which produce patterns—but patterns that can never be predicted with any certainty from one moment to the next because their “initial conditions” are highly sensitive to even the most subtle kind of feedback.  And of course there is the development of modern psychology-neurobiology, which has successfully dismantled the long cherished belief in mind-body dualism.  Moreover, anyone who has spent any time studying genetics (or raising a kid, a pet, or a plant) will tell you that trying to separate the precise boundary between DNA and environmental influences is impossible—not just because of current epistemological limitations but because, from the outset of life (another fuzzy boundary) the feedback between genes and environment is so pronounced that the contributions of each set of variables cannot be ascertained with apodictic certainty.  Ever.

 

So, scientists have pretty much gotten the message, at least in their professional capacity, that many natural phenomena are most accurately described as having ambiguous boundaries, best expressed in terms of probabilities and trends rather than rigid, singular determinations.  That is, from a scientific perspective, “right answers” to certain kinds of questions will often be expressed as a continuum instead of a hard number.

 

And well before scientists finally found their way to wave-particle duality, evolution, psychoanalysis, the double helix, and the general realization that boundaries are porous things, this terrain had been canvassed by plenty of poets.  If you don't believe me, go read some Euripides or Shakespeare or Wallace Stevens.  But since poets, like scientists, are human, one can also find plenty of poets (think of Plato) who have resisted evidence suggesting that the demarcation between nature-culture, male-female, love-hate, right-wrong, light-dark, true-false is somewhat indeterminate.

 

So, what about lawyers, lawmakers, judges?  Does our work reflect a peculiar impatience with fuzzy borders?  Certainly, The Law is replete with attempts to draw a clear line between “okay” and “not okay.”  And isn’t most litigation about accusing some entity of crossing over some line or another—and then fighting tooth and nail to shape the way a supposedly disinterested fact-finder will apply The Law (as presented) to the facts (as presented) to reach a conclusion, if not necessarily The Truth?

 

An affection for bright-line distinctions reflects the quintessential human fantasy:  the desire to wrest order out of chaos.  And those who make and interpret the law like bright-line rules because they seem more orderly, more predictable.  But no matter how deftly judges and legislators try, they cannot parse language finely enough so as to create absolute, eternal, and transparent answers about what a given community has decided is okay.  Language, the medium of lawmakers, is perpetually fluid.  And the legislators and judges who try to draw these keeping-chaos-at-bay lines can never predict all the ways they have come up short until after their efforts have been put to the test out in the real world.

 

Anyone who remained moderately conscious during their first year of law school must remember noting how Sisyphean the whole project seemed—or worse, irredeemably arbitrary at some level.  Remember that infernal fox case?  It wasn’t the guy who’d prepared for days and schlepped over hill and dale chasing the fox that The Law had rewarded with ownership rights.  It was the guy who’d appeared out of nowhere, at the very last second, and merely laid hands on the little critter first.  That case came out the way it did because the arbiters of The Law had decided, quite reasonably, that trying to sort out the true meaning of Ownership would be hopelessly complicated and that a clear boundary between ownership and non-ownership was better for civil society.  Therefore, the person in possession prevailed, not necessarily True Ownership or Cosmic Justice. 

 

We all got it—at least eventually.

 

But outside of the law school context, perhaps the tremendous compromise that the fox case represents is not so apparent.  Perhaps we do not discuss often enough the fact that this compromise was consciously embraced to serve pragmatic interests.  Perhaps practitioners do not remind the world often enough that hard edges in The Law are largely constructs.  Constructs with some practical value, to be sure, but nevertheless constructs, not the ding an sich.  Clarity, certainty—these are all terrific values.  I’m a big fan.  But perhaps the art of crafting and interpreting The Law would be enhanced somewhat by occasional reminders that few boundaries are truly rigid and that a great deal of fuzziness characterizes the transitions between many states—matter/energy, liquid/gas, guilt/innocence, human/non-human, living/non-living.  Indeed, some of the ugliest episodes in legal history involve attempts to cling to hard distinctions—based on race, gender, mental capacity—where one side of a fuzzy boundary was defined as good/entitled/capable and the other was not. 

 

Perhaps, in seeing bright-line rules as a tool to curb arbitrary adjudications, The Law has been unduly optimistic or cynical, it is hard to say which.  At least in some circumstances, clinging to bright-line rules may be more likely to engender arbitrary results.  This should come as no surprise to students of The Law, who know that all manner of tests once considered to be based on “bright lines” have been extinguished or faded away.  In truth, most lawyers’ bread-and-butter involves cognizance that there are very few bright lines or certainties of any kind in the quagmire known as litigation.  Even facts are never as wonderfully solid as we like to imagine.  Facts, like the law, are subject to interpretation—a process that takes place in a context that is forever shifting, thereby continuously affecting the variables that impinge upon the interpretation.

 

In short, some nuance is frequently missing from certain legal debates—about how best to define the border between Texas and Mexico, about what kinds of marriage contracts states may sanction, about how to determine who is mentally retarded and thus exempt from execution, about the difference between “strict construction” and “judicial activism,” and about the need to ban “human-animal hybrids.”  No matter how personally attached we may be to bright-lines, lawyers know professionally that borders—whether they are made out of matter, facts, or law—are rarely digital.  Working to inject this insight into more high-profile legal debates might ultimately help more lawmakers and judges resist the urge to seek refuge in bright-line cutoffs that do not always (or even often?) allow us to best approximate Justice.

Thanks, Gretchen!

Our feed suspects Ms. Sween of liking jury trials.