When it comes to quixotic quests, perhaps none is more intractable than nudging a hopelessly dysfunctional system in the Bokononic direction of enlightenment.
A few years ago, a correspondent reminded me of Augustine, who is notable for having introduced the term "Original Sin" into the conversation. Of course, being a systems scientist rather than a theologian, I'm more inclined to analyze ''systemic errors'' rather than reckon anything as mortifying as "Original Sin." Still, it occurred to me that Augustine might have been on to something, so I took a closer look at what he was blathering on about with all of that godspeak.
Turns out a few of those pioneering oligarchs (e.g. Solon and Hammurabi, among others) had introduced a tragic logic error into their calculus. Rather than call it "Original Sin," I'd rather call it "Hammurabi's Original Logic Error" or "Humankind's Original Logic Error." Either way, the acronym comes out HOLE, so that one can smirk and say that those who embrace their flawed paradigm have a HOLE in their head.
But I digress. It's difficult to do peer-reviewed original research in the field of Neuro-Mathematical Systems Theology, so one is obliged to follow the lead of Umberto Eco, who said, "Whereof we cannot express a theory, we must narrate a story instead."
And I say, even if we can express a theory, we damn well better present it as a story anyway, since theory tends to make most people's eyes bleed.
"Condemnation without investigation is the height of ignorance." —Albert Einstein.
The Four Keystone Kops of the Apocalypse are seen here chasing the bullet-ridden Fearless Fosdisk, the intrepid detective of a bygone comic book era.
Fearless Fosdick, with legendary epic failure, is thwarted at every turn, as he struggles in vain to tell The HOLE Story.
The HOLE Story is the story about this or that HOLE in our culture — a gap (or lacuna) that blocks progress in the Advance of Science and Civilization.
There is one HOLE in particular that is especially insidious. It's the one I call Humankind's Original Logic Error.
It's should come as no surprise that humans have a poor track record when it comes to mathematical reasoning and precision thinking. Even the best minds of mathematics have struggled to discover and correctly prove Mathematical Theorems (and to convincingly disproveFalse Conjectures).
There are a number of interesting mathematical notions that appear in the history of humankind's attempt to sort fact from fiction. Many of them have origins in Theology — a branch of study that predates the age of Scientific Theory and Mathematical Theorem.
"Theory" comes from the Greek, theoria, meaning, "I behold."
So what was the First HOLE — Humankind's Original Logic Error?
Augustine of Hippo called it by a different name. He called it Original Sin (from the Latin, sin, meaning a mistake, or "missing the mark."). If you blithely and foolishly adopt this classic misconception, suggests Augustine, you must have a HOLE in your head.
But what, precisely, (and in modern mathematical language) was the actual error here?
Taboo or Not Taboo? That Is the Question.
In Genesis, the mistake was referred to metaphorically, as "eating the Fruit of the Tree of Knowledge of Good and Evil." The warning (in Genesis 2:17) was that it's a deadly mistake to partake of the "Fruit of the Tree of Knowledge of Good and Evil."
The mistake arises because of mankind's predilection to dichotomize notions like Good and Evil into two binary categories (like Right and Wrong, OK and Not OK, Lawful and Unlawful). Such binary categories require Judgment as to which side of some presumptive bright line to classify some situation or event.
Error Function (in Blue) vs. Heaviside Switch Function
Dividing things into two binary categories is a tragic mathematical blunder, because there is a continuum between Saintly Good and Demonic Evil. Whenever there is a continuum, there needs to be a smooth and graceful continuous response, rather than a sudden switch from acceptance to rejection, or from tolerance to intolerance.
And so it's a subtle math error, to impose a binary function over the spectrum rather than to devise a graceful and continuous response function.
According to Simon Baron-Cohen (cousin of the comedian Sascha Baron Cohen), the function we are most in need of is the Empathy Function.
As to Humankind's Original Logic Error, I'll take "Or Else" for Twenty Quatloos, Alex.
If you had the task of reinventing the legal system, what would you propose?
I would replace it with a functional regulatory structure.
When I say 'functional' I mean that in a technical, mathematical sense, not in a rhetorical sense.
If you are a student of literature, you may be aware of the writings of Harold Bloom. He is the Yale University academic who has written extensively about the characters in Shakespeare. He also wrote a book analyzing the canon of western literature. He divides the canon into four chronological ages: Theocratic, Aristocratic, Democratic, and Chaotic. One might ask what comes after the Chaotic Age?
I would nominate the Fifth Age as 'Cybernetic'.
Cybernetic Systems are found both in nature and in high technology.
In living systems, Cybernetics explains how organisms regulate themselves through subtle feedback control processes.
In technology systems, Cybernetics explain how complex nonliving systems maintain self-regulation through carefully designed feedback control processes.
The mathematical modeling process that characterizes Cybernetic Systems is the same process in either case.
In a functional feedback control process, the component in the feedback loop cannot be chosen arbitrarily. The feedback unit is obliged to model the mathematical inverse of the main system.
In the analysis of feedback control, legal systems operate as primitive Zeroeth Order Controllers. There are very few systems that can be effectively regulated with a simple Zeroeth Order Controller.
The next most sophisticated feedback controller is called a First Order Controller, or Differential Controller. In a First Order Differential Controller, the feedback unit models the mathematical inverse of the First Derivative of the System Model. This is often simplified to a linear proportional controller. In economics, this corresponds to a fixed unit price for the consumption of a rare commodity. In a salad bar, you can pile as much salad on your plate as you like, and then you pay by the ounce. The optimal price to charge is the price that is neither too low nor too high; the salad bar runs out of salad just as the last customer is being served (supply exactly balances demand at the optimal price).
Higher Order Controllers fold higher order derivatives of the System Model into the solution, and are thus more graceful. Zeroeth Order Controllers are either altogether dysfunctional, or herky jerky, see-saw.
First Order Differential Controllers are smoother, but not altogether graceful. Think of an elevator that travels at a constant speed between floors and jerks to a stop. That's typical of a First Order Differential Controller. If you want your elevator to gently slow down as it arrives at a floor, you need at least a Second Order Controller.
Nature is full of feedback loops, some of which are more graceful than others. Buffered Aspirin is a Second Order Pain Controller. Regular Aspirin is First Order. Shooting the horse with a broken leg is a Zeroeth Order Pain Killer.
Hammurabi hardly knew anything about mathematics, system modeling, feedback control processes, and the like. He introduced a Zeroeth Order Control Structure and admonished us to put our faith in it. It was a mathematical mistake. I call it Hammurabi's Original Logic Error. Theologians call it Original Sin. There are very few systems which can be successfully managed with a Zeroeth Order Regulator. Human society is not one of them.
We need at least a Second Order Regulator, which means we have to wrap our brains around some serious system models of human socio-cultural dynamics and some serious calculus for solving those models for the optimal regulatory structure.
The Law, as defined by the disciples of Hammurabi, cannot possibly rise to the challenge, since it never rises above Zeroeth Order Control Architectures.
My correspondent continues:
Is there any type of existing prototype or model of this system (second order regulator) as it relates to human interaction (or the law)?
Yes, there are several alternative models. The oldest known alternatives to Hammurabism were proposed by the founders of the world's great religions. Figures like Moses, Buddha, Confucious, Lao Tsu, and Jesus recommended radically different practices from those contemplated by Hammurabi and his adherents.
Similar ideas can be found in Secular Humanism and Ethics. If you study Lawrence Kohlberg's model, he outlines six stages of moral development. His student, Carol Gilligan, proposes a seventh stage, which she calls the Ethics of Care.
In the 20th Century, figures like Gandi, King, Mandela, Thich Nhat Hanh, and the Dalai Lama helped bridge the gap between traditional religious teachings and secular teachings on ethical methods for solving the problems of conflict, violence, oppression, injustice, corruption, poverty, ignorance, alienation, suffering, and terrorism.
In the meantime, the Humanities were contributing to the challenge of modeling human characters and human socio-cultural dynamics. Shakespeare and Dostoevsky both made major contributions to the art of modeling human systems.
Sociologist Victor Turner made seminal contributions to this process as well, with his pathbreaking notions of Communitas and Liminal Social Drama.
René Girard extracted an insightful model of human socio-cultural dynamics through his insightful analysis of Dostoevsky's novels.
If you solve Girard's System Model for the optimal strategy, you get practices remarkably similar to the teachings of the founders of the world's great religions. But it's not grounded on faith. It's grounded in analytical system modeling, with scientifically valid models of human socio-cultural dynamics.
Is this a realistic possibility?
In theory, yes. But it will take a major paradigm shift in our beliefs and practices. We're gonna have to let go of some long-standing mythologies and dysfunctional practices — a transformation that carbon units have not demonstrated much ability to achieve, with the notable exception of a few rare individuals.
Probably the only way such a paradigm shift can ever take place is through the medium of storycraft. Our core beliefs are those which we embed in the stories we tell ourselves. Every culture and every age has its characteristic myths — the stories we tell ourselves to define our beliefs and practices. That's why dramatists like Sophocles, Homer, Cervantes, Shakespeare, and Dostoevsky are so important. They reflect the cutting edge in the crafting of stories through which we define ourselves.
I studied Engineering, so I'm not a storymaker; I don't have that talent. But I recognize that the tragedies which bring us together are recurring tragedies because we have failed to capture them in a compelling story.
My favorite modern storymaker is JK Rowling. Her heroes are highly functional adolescents. And among the adults in their storybook lives, only Dumbledore appreciates that in order for them to solve the problems in a functional manner, they must necessarily break every rule in the book. Were Harry Potter and his friends to obey the rules, they would be utterly dysfunctional and ineffective.
In the Harry Potter stories, magic is a metaphor for functional solutions. Arthur C. Clarke said it best: "Any technology, sufficiently advanced, is indistinguishable from magic."
Were humankind able to evolve into the Age of Functionality, it would be a magical transformation.
If this model has been explored, why do you think it has not been accepted? And do you think that will ever change?
Not that many people are aware of it. I estimate that fewer than one person in 500 knows about these system models at all, and even fewer have digested them. Keep in mind that most people have never heard of Systems Theory, let alone any specific system model.
I expect it will change ever so slowly. Look how long it took for the Copernican model of the Solar System to overthrow the Ptolemaic Model, or for Newton's model of gravitational mechanics to take root. Similarly, it's been a century since Einstein published his Theory of Relativity. And while almost everyone has heard of it, almost no lay person understands it. Even though Einstein's iconic formula is widely recognized, few people can explain what it really means.
I've always believed that the study of history is necessary to prevent society from repeating past mistakes. I don't quite see the connection with story telling — and how that relates to implementing a new legal system. How do you connect the two?
History is His+Story. Stories are how we understand sequences of events and discern the underlying cause and effect linkages that renders a story coherent. Until modern times, almost all cultural learning was mediated by stories.
The story of the Hammurabic Method of Social Regulation is a woeful tragedy in slow motion. The story has been slowly unfolding for nearly four millenia.
I was born in 1945, the year the Second World War ended, and the year the world first began to learn of the horrors of the Holocaust, during which time the Nazis were incinerating Jews at the rate of 2 million a year.
I long thought the Holocaust was an abberation. But then I looked at the statistics for genocide and political violence for the entire 20th Century. During the 20th Century, the governments of the world killed some 200 million people. That's an average of 2 million people a year, year in and year out. That's the price humankind is paying for our lust for political power and our belief in the rule of law. If that's not a tragedy, I dunno what is.
And yet the oldest story in the canon of western literature — the story of Adam and Eve and the Apple — predicted that very outcome. It's a story everyone knows and almost no one appreciates for its insightful prediction.
What that tells me is that carbon units are woefully learning disabled.
Nor do I know a functional solution to that problem.
A century ago, a forward-looking entrepreneur named Theodore Vail crafted one of the most successful technology systems ever to serve the American public. Starting from Alexander Graham Bell's invention of the telephone, Vail created a business venture to market the new telecommunications marvel. Eventually, Vail's visionary genius gave rise to the Bell System — an entirely self-contained operation that delivered end-to-end telecommunications services to residential and business customers, as well as to the government.
Elsewhere around the globe, the telephone and telegraph services were operated by the same government bureaucrats who ran the post office. For the longest time, the US was unique in the way telephone service was provided by means of the ubiquitous Bell System.
The jewel of the Bell System was Bell Telephone Laboratories — arguably the premier research and development organization on the face of the planet for much of the Twentieth Century. The Bell System became a model for the application of systems theory, systems engineering, and systems operation. The American telecommunications network had become the envy of the world. Americans enjoyed both the best and the cheapest phone system of any nation.
Then, around 1980, the US government decided that the Bell System had become too successful and too monopolistic. The Justice Department moved to break up the Bell System in the biggest anti-trust case since Standard Oil. And in 1984, AT&T consented to the dismantling of the Bell System. The rule of law was dominant over the concept of system integration.
What is it about high-functioning systems that the government finds so threatening? To gain some further insight into the destiny of large integrated systems, let us turn to another system model — this one from the natural world. Let us examine the solar system.
Henri Poincaré and the Solar System
By 1900, the educated world had become familiar with Newton's laws of gravitational mechanics. The Copernican model of the solar system had become accepted. The calculus was in place, and scientists now had the tools to compute the orbits of the planets around the sun. In this climate, a question arose.
Can it be shown that the solar system is stable, under the assumption of Newtonian gravitational mechanics? If you run a model of the solar system (such models are called orreries), can you show that the orbits of the planets are forever stable, or does the solar system "blow up" by flying apart or spiraling into the sun?
The King of Sweden was sufficiently intrigued by this question that he offered a handsome cash prize to anyone who could rigorously prove that the solar system was stable, under the assumption that the motions of the heavenly bodies is indeed governed by Newton's laws.
Enter Henri Poincaré, who decided to take a crack at this problem and the prize.
Computing the orbits of all the planets and their satellites is a daunting task, so Poincaré began his work with a much simpler model. He began with a trivial solar system that contained one large sun at the center and but one planet, in a nice circular orbit. It was fairly easy for Poincaré to show that after one orbit, the planet returned to exactly the same position. This two-body solar system was periodic, hence stable.
Then Poincaré added a third body. But he didn't just add another planet in a different orbit. Nope nope nope. He did something you might not have expected. He added a comet in an elongated elliptical orbit — one that swung way out to the outer reaches, far from the sun, and then swooped in close to the sun, crossing the orbit of the planet along the way.
And then Poincaré discovered something astounding.
For the longest time, the planet, in its circular orbit, and the comet, in its elongated elliptical orbit, remained in their original orbits. But then, on one pass, something different happened.
Eventually, as the comet crossed the orbit of the planet, it did so while the planet was nearby. When the comet passed close to the planet, the gravitational attraction between them kicked into action, and the orbit of the comet was bent. Thereafter, it assumed a new and different elliptical orbit. And the planet was affected, too. It was deflected a tiny amount from its circular orbit, which now became slightly elliptical, too.
Nothing much interesting happened after that for a very long time, until the comet made another close pass to the planet. And then, once again, its path was bent, sending it into yet another orbit. And the planet's orbit was perturbed again, as well.
So the first thing that Poincaré found was that a three-body solar system isn't periodic. The orbits are not permanent, but change due to the interactions between the bodies.
But wait. There's more...
Poincaré discovered something even more unexpected.
He went back to his three-body solar system and ran the orrery again. Only this time, he started the comet in just a slightly different orbit than the first time. And what he found amazed him. While the same basic phenomenon happened, the history of the solar system was markedly different. After a few close passes, the two versions differed wildly from each other. Even the tiniest, most infinitesimal change eventually leads to dramatically different histories.
Poincaré had discovered what we today call "exquisite sensitivity to initial conditions." What that meant was that the future of the solar system was not predictable, because the tiniest error in specifying the initial conditions eventually leads to completely different outcomes.
But wait. There's more.
Eventually, the comet, when it crossed the orbit of the planet doesn't have a close call. Nope. Eventually it collides with the planet. Not unlike the asteroid that plummeted into the Yucatan some 65 million years ago, thereby killing off the dinosaurs.
So the solar system, is not stable, but chaotic, unpredictable, and doomed.
And all the objects — in this case just three of them — are religiously obeying Newton's laws of celestial mechanics: the inverse square law of gravity, and F = ma.
What Poincaré had discovered in the early years of the Twentieth Century were the roots of Chaos Theory. But it would take another 50 years before that branch of mathematics came of age.
Poincaré presented his results to the King of Sweden, who was so astonished that he awarded Poincaré the prize. Of course Poincaré had proven the opposite of what the King had anticipated. The solar system was not inherently stable under the assumption of Newtonian gravitational mechanics, but unpredictable, chaotic, and doomed.
Poincaré's most astonishing result was that a rule-based system, in which the rules were rigorously followed, was not an orderly system as everyone imagined, but a chaotic system.
Is there no hope? Are we hopelessly trapped in a rule-based system, hopelessly trapped in an unpredictable, chaotic, and doomed system?
Is there is a solution? We turn now to CNN Headline News...
Imagine there is a traveler aboard that ill-fated comet — a trenchant CNN news reporter who is going to keep us informed of the unfolding drama. And who better to do that but our favorite CNN field reporter, Christianne Amanpour.
So here is Christianne, decked out in her flak jacket and fly-away hair, gripping her microphone and breathlessly reporting the trajectory of the ill-fated comet from the depths of space.
In between live reports, Christianne is chatting offline with her colleague and occasional news rival, Wolf Blitzer, safely stationed (as usual) at the Pentagon in his well-pressed suit. Wolf is envious of Christianne's plum assignment — clearly the capstone of her fabulous career. But Christianne is troubled, since this story has a disturbing (if predictable) ending.
"I hope you have your make-up kit so you can look good for your final transmission," says Blitzer.
"Very funny," retorts Christianne, "but I really wish there were some way to change the ending. I can't imagine you having to don a flak jacket and take over for me after I meet my maker."
But Wolf has pity for young Christianne, so he offers a glimmer of hope. "Let me call up this guy at Jet Propulsion Laboratory and see if he has any bright ideas." Wolf places the call and explains the situation to his buddy in rocket science.
"What resources does Christianne have?" inquires the space jock.
"She has her flak jacket, her microphone, her makeup kit that she never uses..."
"What's in the makeup kit, Wolf?" asks the guy at Jet Propulsion Lab.
"Oh, the usual... Face powder, eye shadow, and the aerosol can of hair spray that she never uses."
"Did you just say that Christianne has an aerosol can of hair spray she never uses?"
"Well yeah," says Wolf, "haven't you ever seen her, with her fly-away hair?"
"She's saved," announces the rocket guy.
How is Christianne saved?
The rocket scientist advises Christianne to fire her aerosol can sideways to her direction of travel. Yes, sideways. Christianne does this, thus producing a reactionary thrust, in accordance with Newton's Second Law of Motion. She's got the Force with her, now. By changing the direction of her trajectory, she can steer around the looming earth and avoid a direct collision.
Our CNN news crew has discovered the joys of rocket science.
Christianne lives to report another day, and Wolf can continue to wear his suit at the Pentagon.
The solution involved an understanding of the model of the system in which Christianne is embedded. And then she had to solve that model (with the aid of some rocket scientists at JPL who know how to solve system models). By solving the model, they supplied her with the best practice that was concordant with the laws of celestial mechanics, to change her fate from doom to victorious survival.
Note that the solution did not involve adding more laws to the books of celestial mechanics. It did not involve any legislative or political or judicial acts. It just involved comprehending and solving a system model.
And that is the moral of my story. Rule-based systems are unpredictable, chaotic, and doomed. The solution is to advance to model-based reasoning, and to learn to solve system models for the best practice to avoid the Apocalypse.
Functional Systems vs. Rule-Based Systems
So... How does this help us understand the error in the architecture of human culture?
Our civil culture is rule-based. Most people believe, without question, that rule-based systems are orderly and predictable.
But that belief appears to be in question. The entire branch of mathematics known as Chaos Theory studies the production of chaotic and disorderly systems from the repeated application of a few simple rules. Scientists now know perfectly well that repeated application of rules generates chaos. It's a mathematical fact.
Just as the heavenly bodies obey the discoverable laws of celestial mechanics (which have only been known since the time of Kepler, Copernicus, Galileo, and Newton), the earthly bodies also obey the discoverable laws of human socio-cultural mechanics.
At the time of Copernicus, few souls knew of his work. Indeed, he did not publish his tome until after his death. And I can understand why. Systems thinkers have not been well received by the Powers That Be. After all, look at how the Justice Department viewed the creation of Theodore Vail.
Today there is a new Copernican Revolution afoot. Today there are emerging models of human socio-cultural dynamics that apply to the motions (and emotions) of the earthly bodies. If you run these models forward, the way Poincaré did with Newton's Laws, you find the system is chaotic, unpredictable, and doomed.
But if you solve the system models for best practices (the way the scientists and engineers did at Bell Telephone Laboratories), you find a computable solution. But the solution is generally not rule-based. The solutions are functional and operational, in the sense that they are constructed by solving the underlying system models.
Rule-based systems are too weak to compute the "rocket science" needed to avoid the apocalyptic doom of rule-based cultures. This is a theoretical notion for which there are insufficient stories to illustrate the point. Umberto Eco said, "Whereof we cannot express a theory, we must narrate a story instead." And even if there is a theory, if the theory is arcane, we still need a story to convey the idea to those whose eyes glaze over when theory gets too dense.
The first systems thinkers who gained any insight into the models of human socio-cultural mechanics, and who solved them for best practices ended up founding all the world's major religions. But their followers only got the recommended solution for the times, not the general model itself, nor the methods of reasoning to solve it.
Now we are getting the underlying model itself. And thanks to a handful of brilliant thinkers, we also have the associated methods of reasoning.
In the case of the solar system, and in the case of the Bell System, one can bother to learn the underlying system models, the associated methods of reasoning to compute and solve the models, and the resulting policies and practices that emerge from that analytical process.
In the case of human socio-cultural systems, there is a similar program of research afoot. Much of it is arcane and difficult to access. But a few geniuses have figured out how to tell stories about it. From Fyodor Dostoevsky to Lewis Carroll to JK Rowling, there are some remarkable political allegories which begin to make these abstractions accessible to a general audience. Alas, most theoreticians are lousy story tellers. Where is Umberto Eco when we need him?
Here is an excellent video from BBC Four on Chaos Theory.
I was originally drawn to The Volokh Conspiracy because one of the more prominent bloggers on the site, Orin Kerr of the George Washington University School of Law, specializes in research on cybercrime law, including the Computer Fraud and Abuse Act (CFAA), under which Aaron Swartz was indicted. Professor Kerr has written about the Aaron Swartz case, as well as other related cases. He also testifies before Congressional subcommittees responsible for cybercrime legislation.
Readers at The Volokh Conspiracy typically have lively discussions about the issues which the law professors opine about and otherwise bring up for discussion.
I was participating in a handful of these conversations when I ran into difficulties with the DISQUS Commenting System. Unable to diagnose the problem, I wrote to Eugene Volokh. There ensued this curious exchange, which Professors Volokh and Kerr have graciously consented to permit me to reproduce here.
~~ Frachtwagens von Kauderwelsch~~
Dear Professor Volokh,
A few days ago, I ran into a perplexing glitch while participating in the comments sections of Volokh Conspiracy.
When I try to enter a comment with my DISQUS ID, the comment posting box remains unprocessed.
I tried logging out of DISQUS and posting with my well-known alternate screen name, and that worked at first, but then that also glitched. I tried clearing cookies, to no avail.
I am now seeing this error message in the comments below your latest post:
You do not have permission to post on this thread.
I am wondering if there is some other problem -- perhaps something other than a technical glitch with DISQUS.
I would be grateful if you would kindly ask one of your staff to help diagnose and correct the problem.
-- "Whereof we cannot express a theory, we must narrate a story instead.'' —Umberto Eco
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Barry,
You cannot comment at the blog because I decided that it was in the best interest of the blog to end your commenting privileges. I apologize, but my conclusion was that your many comments were just too often not closely related to the posts: In particular, your comments tend to be about subjects of interest to you, rather than about the subject of the thread, which led to frequent "thread jacking" and side discussions of little relevance to the posts that made the threads lose their focus. I also thought some of your comments came off as rude, although I realize that you may not have meant them that way.
Just to pick one example, in the comment thread about NYU's new dean, you turned a discussion about an outside dean hire at a law school into a discussion of internal hiring in corporations, focused on an issue that you are apparently interested in (how corporations may "kick someone upstairs") that wasn't related to the subject of the post (Morrison was an outside hire, so he obviously wasn't promoted for that reason). And then when I noted (in response to someone's comment) that becoming a law school dean wasn't very good training to be solicitor general because "you're not only not practicing law, you're not even thinking all that much about it.," you responded, "Orin, do they teach metacognition within the corridors of law schools?" That was either an obnoxious comment to me or else yet another comment about some topic of interest to you (who teaches "metacognition") rather than of interest to the thread.
Anyway, I apologize if you're unhappy with the news. But our preference is to try to maintain a comment thread that stays pretty closely to the subject of the posts, and your comments consistently veered the discussion away from that focus. Again, my apologies.
Orin
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Orin,
Thank your for disclosing your responsibility in terminating my posting privilege on Volokh Conspiracy. That resolves my perplexity, exchanging it for one of astonishment and vexation.
I would like to respectfully request a public hearing, review, and discussion, before a representative panel of your peers and other veteran and respected participants in the conversations at Volokh Conspiracy, regarding the issues of fairness, appropriateness, and due process, in decisions such as the one you have enacted here.
That is, I would like to propose the above open conversation in the spirit of truth and reconciliation among fellow academics who seek to converse among their peers in a collegial and congenial manner, in accordance with the highest principles of scholarly ethics and good faith.
Prof. Kort: It’s just a blog, and in particular our blog. We run it and the comments threads in the way we think is best, and we run it as a sideline to our day jobs. If we had to have a big procedure before such decisions are made, we basically couldn’t effectively moderate comments, which we means that we wouldn’t have comments at all, so that neither you nor anyone else could post comments. And, it being our dinner party, we get to set up the guest list.
But the good news is that it’s a very big Internet out there. There are millions of blogs you can comment on them, and of course you can easily set up your own as well. So public hearings, review, discussion, and due process strike us as rather out of place given that it’s our blog, and given the extremely small value of the privilege at stake.
Eugene Volokh
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Professor Volokh,
I understand your position, and I respect it. But permit me to make you aware of the subtle implications of your community's policy and practice.
As you know, the modern concept of law descends from practices originally introduced into civilization by figures like Solon and Hammurabi. It's instructive to take a look at the very first law of Hammurabi's Code:
1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.
Capricious and arbitrary ostracism is not an issue to be taken lightly, at least not by those whose traditions descend from deep regard for the Rule of Law.
When Thomas Jefferson and the other Founders drafted the US Constitution, one of the provisions they put in Article One was a prohibition against Bills of Attainder. As you know, a Bill of Attainder is the technical term in the law for declaring a person to be an unwelcome outlaw or outcast (without respect to having violated any specific law that applies equally to everyone). The Founders excluded Bills of Attainder from the tools of governance because 4000 years of political history had demonstrated that such a toxic practice is corrosive and ridden with corruption, and invariably sinks any regime that comes to rely on it.
So what is the remedy? One amusing answer can be found in the second law of Hammurabi’s Code. As Hammurabi advises, the solution is to call upon the alleged miscreants to go jump in the lake.
So yes, it's just a blog. Just a blog exemplifying the best scholarship, best thinking, and best practices of some two dozen of America's most visible academics in the field of law.
Professor Volokh, is this the best your scholarly community can do in terms of setting a worthy example for young and impressionable students of law to learn ethical best practices from their elders?
The Rule of Law is very important when it comes to government action. It may even be important for large organizations in which membership matters a great deal, such as private universities -- though even there that's not clear, given that many private employers operate without quasi-legal procedures for dismissals, demotions, and so on (and derive many advantages from being able to do so).
But I've certainly never felt bound to decide whom to invite to my parties -- or whom to exclude from my parties -- through the Rule of Law. It's hard to see much of a connection between that and bills of attainder. The blog is a big party. You've been here for a while, but now we'd rather not have you. There are very many others you can go to. Hammurabi has his domain, we have ours.
Eugene
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Professor Volokh,
Do you mind if I share our correspondence with others, outside of the community at Volokh Conspiracy?
Regards,
Barry
-- "A blog is not a Just Place. It's just a place." —Caprice
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Please feel free to.
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Sorry, hit enter too quickly -- please feel free to share my messages to you; as to Orin’s message (and any others’, if there are), please check with them.
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Thank you, Eugene.
Orin, may I also have your permission to share with others, outside of the community at Volokh Conspiracy, your correspondence (in situ below) to me, explaining and defending your decision to ban/block/excommunicate me from participation in the conversations at Volokh Conspiracy?
Regards,
Barry Kort
-- "When it comes to quixotic quests, perhaps none is more intractable than nudging a hopelessly dysfunctional system in the Bokononicdirection of enlightenment.'' —Moulton, "Inherit the Windmills"
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Barry,
When I wrote it, I didn't intend that my message would be posted publically: It was an explanation to you, not to the world. At the same time, I don't think I have a way to stop you from sharing it if you decide to do so. So if you do share it, I would appreciate it if you would point out that the message I wrote you was intended for a private audience of you, not a public audience.
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Hi Orin,
Thanks for getting back to me.
I'll give you several options to think about, Orin.
1. You can rescind the ban or block and accept my suggestion to discuss the issues that divide us, in the spirit of truth and reconciliation, and in a manner commensurate with an academic culture of collegiality and congeniality.
2. You can sustain your decision, ipse dixit, and respond (or not) in the venue(s) I select to examine, reflect on, and discuss my unsettling experience at Volokh Conspiracy.
3. You can sustain your decision, ipse dixit, and suggest an amicable conflict resolution exercise in a mutually agreeable venue apart from VC, supervised and/or moderated by someone with credentials comparable to those of Hal Abelson, whom we would both trust to be fair-minded, constructive, impartial, and equally helpful to both of us.
Do you have a preference, or perhaps a fourth alternative to suggest?
Regards,
Barry
-- "Whereof we cannot express a theory, we must narrate a story instead.'' —Umberto Eco
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Actually, while I normally defer to the judgment of my cobloggers, at this point I’d like to take the matter out of Orin’s hands, unless he strenuously objects. Prof. Kort, you are a high-maintenance commenter who is doing more to interfere with what we’re doing than to advance it. You are therefore no longer welcome on our blog. I don’t want to spend more time discussing this with you. My guess is that if you select venues to examine, reflect on, and discuss your experience, other readers of those venues will likewise see what I’m seeing here, and will sympathize with our decision to no longer have dealings with you. But of course it’s entirely up to you (subject to Orin’s request in his 2:24 pm message). You can say whatever you want to say; I’m just happy that you will be saying it elsewhere.
Eugene Volokh
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It would be helpful if I understood what you are doing, Eugene.
All it says is "The Volokh Conspiracy is a group blog. Most of us are law professors."
That says what you are, but not what you are doing. Evidently I don't apprehend what you are doing. I searched for a Mission Statement but found none. You adopted a curious name, "Conspiracy," but I have no clue what your community of bloggers is "conspiring" to do.
Color me vexed and perplexed on that one, Eugene.
Also, it would be helpful if you could put a noun phrase to "see what I’m seeing here" as the word "what" has no antecedent. Please enlighten me. What is the proper name of that which you are seeing here?
Regards,
Barry
-- "Whereof we cannot express a theory, we must narrate a story instead.'' —Umberto Eco
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Prof. Kort: As I mentioned, I don’t want to spend more time discussing this with you.
Eugene Volokh
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I acknowledge your state of exasperation, Eugene.
Peace.
Barry
-- "Whereof we cannot express a theory, we must narrate a story instead.'' —Umberto Eco
It's My Party
Title: It's My Party
Artists: Eugene, Orin, and Moulton
Composer: John Gluck, Wally Gold, Herb Weiner, and Barsoom Tork Associates
YouTube: It's My Party -- Lesley Gore (1965)
Eugene
Nobody knows where Barry has gone
Moulton left the same time
Why was he scolding our band
Is he opposed to some crime?
It's my party, and I'll cry if I want to
Cry if I want to, cry if I want to
You would cry too if he scandalized you
Orin
Playin' my game, testifyin' all day
Leave me alone for a while
'Till Gohmert's dancin' with me
I've got no reason to smile
It's my party, and I'll sigh if I want to
Sigh if I want to, sigh if I want to
You would sigh too if it happened to you
Moulton
Eugene and Orin just walked through the door
Like a liege with his king
Oh what a sudden surprise
Orin's makin' me sing
It's my problem, and I'll cry if I want to
Sigh if I want to, try if I want to
You would try too if it baffleplexed you
It's my problem, and I'll cry if I want to
Sigh if I want to, try if I want to
You would try too if it baffleplexed you
It's My Party
Brenda Walsh as Laverne - Beverly Hills 90210
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Non Più Commenti
Title: Non Più Commenti (You Shall Comment No More)
Artist: Yehven Kauderwelsch
Libretto: Benjamin Miller
Music: Wolfgang Amadeus Mozart
Original Aria: Non Più Andrai (You Shall Cavort No More)
Opera: Le Nozze Di Figaro (The Marriage of Figaro)
You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
No more will you question us on our logic
though with no better reason, our endeavor is tragic
and though we feel that your math is black magic
Yet, we know that you have your acclaim
Yet, we know that you have your acclaim
It's our game, though it's a shame
we'll ban your name, and proclaim
you are no longer welcome
You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
Now we all dance the fandango
trading thoughts while never questing
to discover, if our precedence
shall uncover bigger question
are we right, or are we mistaken
trading thoughts, while you're forsaken
while you're forsaken
while you're forsaken
And in mistaking not uncover
the thought of none but one and other
Our montage may seem quite phony
in our reason there's bologna,
strudel, pastries, and minestrone,
fresh spaghetti, and spumoni
mac and cheese and a cigar
It's our game, though it's a shame
we'll ban your name, and proclaim
you are no longer welcome
You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
Professor Kort we are victorious
though as inglorious as we are!
Professor Kort we are victorious
though as inglorious as we are!
