Holding Court in a Chinese Room: Justice as an Emergent Property

"A fascinating area where hierarchies tangle is government -- particularly in the courts." --Douglas Hofstadter, Gödel, Escher, Bach

Introduction: Legal Niceties, Legal Necessities Once, while skimming a textbook, I stumbled across a wonderful story hidden in a discussion of the federal government's customary requirement of title searches all the way back to the original source. (Certainly the last place I expected to find entertainment.) The section concluded with a fanciful -- perhaps apocryphal -- tale of a New Orleans lawyer, who had searched title back to 1803 on behalf of a federal agency, and later sent them this response to a query:
Gentlemen: I am in receipt of your letter of the fifth of the month inquiring as to the state of the title prior to the year 1803. Please be advised that in the year 1803 the United States of America acquired the Territory of Louisiana from the Republic of France by purchase. The Republic of France previously acquired title from the Spanish Crown by conquest. Spain acquired title by virtue of the discoveries of one Christopher Columbus, a Genoese sailor who had been duly authorized to embark upon his voyage of discovery by Isabella, Queen of Spain. Before granting such authority, Isabella, a pious and cautious woman, obtained the sanction of His Holiness, the Pope. The Pope is the Vicar on earth of Jesus Christ, the only son and heir apparent of God. God made Louisiana.1 2

1 Honestly, I don't know the exact page number for this quote, but it's somewhere in the middle of the most recent edition of Aspen's Property textbook. Since it's likely a fairytale anyway, I'm not too concerned. 2 This is also as good a place as any to note that, as this is merely a very early draft, this paper takes quite a few liberties with citations and overall seriousness. Hopefully the reader will not take the occasional levity as indicating a lack of earnestness.

Although the story is worth reading for the punchline alone, in its own way, it points to a fundamental conundrum of property law: where does "title" come from? The rule of discovery seems the obvious answer: "whoever gets there firstest with the mostest."3 And that rule might provide guidance when we colonize the Moon, but on Earth most land "discovered" and then backed by title was already being used by someone else. "Discovery" is a euphemism for "conquest of someone who doesn't count." Nevertheless, "title," as a legal artifact, must start somewhere. The Supreme Court addressed precisely this question in Johnson v. M'intosh,4 concerning who could treat with the former Native American nations. After dispensing with the primary issues, Chief Justice Marshall considers at length the morally suspect act of taking Indian land by fiat. His answer is a watershed moment in American constitutional law:
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned... However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled... it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.5

Marshall makes a remarkable argument here: though seizing Indian land was repugnant to natural law, contrary to civilized norms, and an "extravagant" fabrication, it must nevertheless be sustained by the Court. If not, the country itself would, as a legal matter, cease to exist, and the Court would disappear with it. This is not mere "structuralist" or prudential analysis; Marshall is
3 Hopefully the irony of aping Nathan Bedford Forrest in the context of colonial conquest won't be completely lost on the reader -- its significance only dawned on the writer in retrospect. 4 21 U.S. Wheat 563. 5 Id. at 591-92, emphasis mine.

positing an analytic truth, demanded by the very existence of the government -- the Court is literally incapable of deciding otherwise without vanishing in a puff of logic.6 There are other examples of such reasoning in the Constitutional canon, but none quite so stark. This paper draws on that unique moment in order to posit a methodological and normative theory of the law that has ethical currency, but that need not appeal to an external source of authority, be it the king or the people. I propose that a purely structural mode of analysis hinted at in Johnson provides a viable framework for analyzing and making substantive propositions about our legal system. My argument -- despite drawing on scientific and mathematical concepts for explanation7 -- is ethical: if environmental constraints on the legal system demand certain outcomes, those outcomes have normative force, independent of an a priori source of authority. Furthermore, this framework entails an implicit critique of most canonical theories of judicial authority. Because Constitutional law seems best-suited to accommodate my analysis, I concentrate there, although my conclusions should apply to other legal arenas as well. I should mention that some of my groundwork points resemble -- at first glance -- academic tropes long since argued
6 Credit where credit's due: "Now, it is such a bizarrely improbable coincidence that anything so mindbogglingly useful [the Babel fish] could have evolved by chance that some thinkers have chosen to see it as a final and clinching proof of the non-existence of God. The argument goes something like this: 'I refuse to prove that I exist,' says God, 'for proof denies faith, and without faith I am nothing.' 'But,' says Man, 'the Babel fish is a dead giveaway, isn’t it? It could not have evolved by chance. It proves you exist, and so therefore, by your own arguments, you don’t. QED.' 'Oh dear,' says God, 'I hadn’t thought of that,' and promptly vanishes in a puff of logic." Douglas Adams, The Hitchhiker's Guide to the Galaxy. 7 A brief sidebar on science and the law -- I am well aware that many legal academics have a strong aversion to any introduction of "hard science" into legal discussions, apparently out of some deep academic shame regarding Christopher Langdell or Social Darwinism. Frankly, this is nonsense. As David Dow says while criticizing the use of Gödel in legal scholarship, "Law scavenges usefully from things that law is like." I explicitly disavow any claim that the maxims of science or mathematics apply directly to the law. However, it bears repeating that the law has always found inspiration in science: as any first-year Constitutional Law student knows, the founders themselves drew deeply from the well of the Enlightenment. Likewise, economics grew out of probability theory, and modern management from Edison's machine shops. Making analogies between social sciences and the natural world is not some sort of logical fallacy.

into the ground; the search for origins is as old as civilization, and certainly not new to the law. However, once the threads are woven together, I believe that they do form a novel whole.

Part I: The Morality of the Law

The most salient feature of the Johnson quandary is the problem of origins: finding the source of original authority that can create "title" in the first place. In constitutional law, the same problem of origins is sometimes phrased in terms of whether the system reaches "all the way up."8 In other words, is there some external source that "justifies" the operation of the law? Obviously, I don't have any pretensions of discovering the "source" of the law, or even making an argument about why one theory of authority makes more sense than another. This is just a broad sketch of the contours of the legal system as I see them. I divide the moral inquiry into two issues. First, a structural question: the source from which the law derives its authority and the ends to which it is directed -- i.e., what entities reside "above" and "below" the judiciary in a conceptual sense. Second, an ethical question: the moral framework of the law that governs its decisions.

The Origins and Ends of the Law In its nascent form, the law found its animus in a god or the sovereign (or both), and from that authority flowed the right to adjudicate. In this formulation, the law's authority, though unassailable as originating in divine right, is nevertheless a delegation of power. The agents of the law are not the sovereign: they merely act in his name. This model still applies to the present,
8 Berman, Mitchell, “Consitutional Decision Rules,” 100 (2004).

at least under some theories: in the place of a deity, one might substitute the state, or the people's will, as the normative force backing the operation of the legal system. Another theory justifies power as originating in a compact. Here, the judiciary's authority derives from an agreement between sovereigns. The compact and delegation models are subtly different: in a compact, the judiciary is an instantiation of shared power, as opposed to an agent of a higher power. Of course, the two models need not be exclusive. The authority of the judiciary in the United States is alternately characterized as a grant of power from the populace, the states, from both, or found in a compact between some combination of the states, the people, the federal government, or even the government's individual branches. The thread binding these descriptions is their conception of the judiciary as contingent; its authority can be annulled by the force which granted it, either by revoking the delegation or withdrawing from the compact. A third theory of judicial power locates authority in the law per se, independent of an external agent. Some variety of this account runs through theories of natural law, liberal rights, and national or popular ethos. Each considers the law at least partially self-validating, if it acts justly and in accordance with certain rules. The common element is that while the law is not necessarily sovereign, its authority is internal, grounded in its own conduct. However, I wish to emphasize that, for my purposes, there is an important distinction between prima facie justifications of the law -- those that refer to an external set of 'rules -- and internally-referencing justifications -- those that measure the authority of its law by criteria of 'self-consistency.' The broader point, which we'll revisit later, is that in any event these accounts are largely interchangeable -- as a purely functional matter, no 'story' of the law's origin excludes another. Indeed, each has been told in different ways and with different players, since the birth of the nation, by Chief Justices and Presidents alike, and often at the same time. And yet, every version

of the genesis myth shares one feature with all others: each describes the exact same nation, with the same judges, the same legal structure.

The Means and Ends of the Law The inverse question -- which bridges the gap between structure and morals -- is the end to which the law is directed, rather than its source. That is, the responsibility of the law, the purpose it serves; not necessarily the objects it regulates, but the authority to which it is accountable. Three points need explanation before going forward. First, though all theories of the law demand fidelity to an end, that responsibility cannot be invariant. As the maxim goes, "The only constant is change." To adapt to different circumstances, the law requires structural points of reference. That reference might be historical: hence, our legal system's emphasis on precedent and tradition. Or it might be contemporary: as in our doctrines of deference, separation of powers, and the institution of elections. Or even predictive: this is the very heart of policymaking. Some structuring is continuous or procedural: demands of internal consistency, efficiency, error reduction, predictability. And of unique interest is the coherence of the system itself -- the question raised in Johnson. Second, these are organizational components. This list omits 'moral' values, e.g., redress, individual justice, and so forth. I hope the conceptual overlap is not too confusing; for example, tradition is often considered a moral end in its own right, but in my framing, the moral value is distinct from the structural act of historical reflection. From a structural standpoint, moral imperatives are the endpoints of the law, not processes. Of the above list, only the Johnson component is actually conclusory. Third, my analysis assumes a perfectly-functioning justice system. I don't propose to

consider problems of judicial inaccuracy, inefficiency, or even cultural disagreement -- although such consideration would probably bolster my argument. It seems to me that even if the ends of justice are practically unattainable, that implicates the efficacy of the system, but not necessarily its normative underpinnings. For now, we can assume an idealized model. Regardless, the origins and goals of the law can both -- in theory -- be constant. For example, we might say that normative authority originates in a state-individual compact and is directed toward societal justice. The only necessarily moving parts are the processes mediating between the beginning and end. Of course, the reality is not so simple, which leads to the question of moral frameworks.

In constitutional law, the problem of normative justification arises most starkly in the context of rights adjudication questions -- but although this is familiar judicial territory, it provides scant intellectual comfort. Of course, there's no lack of literature on the judicial balancing of moral values. (In fact, it may be confidently said that there is too much.) And yet, the Herculean efforts of the courts and the academy on the subject have been to little avail. Modern substantive due process jurisprudence makes this fact painfully apparent. One touchstone here is Justice Scalia's opinion in Stanford v. Kentucky9, where he declares that the "pattern of enacted laws" defines morals for judicial purposes, and that the proper recourse for those who disagree is to change the laws. Justice Brennan's dissent in Stanford10 rightly criticizes the circularity of Scalia's "the law is the law" rule. Brennan argues that such a standard would require abdicating the Court's countermajoritarian responsibilities, writing, "This Court abandons its proven and proper role in our constitutional system when it hands back to the very majorities the Framers distrusted the
9 492 U.S. 361 (1989). 10 Id.

power to define the precise scope of protections afforded by the Bill of Rights."11 However, even if the Court must make moral judgments, Brennan's admonition offers little guidance: it only raises the question of how the Court is to weigh competing moral concerns, if not solely against the laws. In practice, the previous example -- promoting "societal justice" -- is a fiction. Every legal decision requires identifying, valuing, and balancing competing rights. To do so, the Court needs a framework backed by normative force. Such a framework might be simple: for example, in the schema outlined in the previous section, we could say that Scalia's Stanford test uses a consensus theory, with a legislative point of reference. Oregon Employment Division v. Smith12, maybe the most recent pronouncement on the issue, takes a similar approach. In other instances, the governing authority might control: though "the king can do no wrong" might no longer be an operative proposition, it has a modern analogue in the doctrine of sovereign immunity. Earlier, I mentioned tradition as an animating purpose, as expressed in precedent, the common law, and custom. The Constitution, arguably drawing on tradition, sovereignty, and consensus simultaneously, might deserve its own category. And at the far end of the complexity spectrum lies the wide realm of Ethics in general: natural law, utilitarianism, deontology, liberal rights, and so forth. Returning to our structural analysis, these justifications (or combinations thereof) are what I characterize as the "ends" of the law. We call a decision calculus "normative" if it entails a cognizable stopping point for legal inquiry.

Part II: The Justice Machine

11 Id. 12 494 U.S. 872 (1990).

An attentive critic might call this picture suspiciously convenient, or simplistic, or even blatantly reductionist. Sure, this mechanical conceptualization of the law -- a source of authority, a mediating structure, then an ethical end -- is a passable 'broad sketch,' but only in that it's like drawing the Mona Lisa with crayons and finger paint. This notion of a 'justice machine' leaves out too much. In a sense, I agree. Most notably, the distinction between internal (structural) and external elements is suspect. Even if one imagines away inefficiency, we make these so-called "normative" decisions about the internal structure of our legal system all the time: which precedents we follow; which traditions we look to; the laws and procedures we write and re-write and amend. "Consensus" is a conceptual nightmare -- we're still trying to figure out who gets to vote. There's no monolithic "tradition" out in the ether -- as Garry Willis put it, "Running men out of town on a rail is at least as much an American tradition as declaring unalienable rights." Far from being value-neutral or conclusory, structural decisions are often anything but. I'm willing to take that argument just a bit further. My claim is that all legal rights theories, from originalism to utilitarianism to critical legal studies, fail to explain judicial rationality, precisely because none adequately disentangles the origins of the law's authority from its structure and goals. The top-to-bottom formulation fails not because it is reductionist, but because it is simply wrong. My argument is that the law has no origins and no destination. The law is nothing but structure, "all the way up." In fact, there is no "up" at all -- the structure is not linear, but recursive.

By way of illustration, suppose that a Justice Machine did exist. This Machine would

take the same information as a court -- the same plaintiffs, the same defendant, the same evidence -- and always render the same decision.13 Observers would still see a court -- not HAL in black robes. (If the notion of a computer is too discomfiting, one might imagine a rulebook or formula that would always supply the same answer as a court -- surely many law students will find this notion attractive.) So, the question: If the Machine were one day swapped in for the "real" court, would it necessarily make a difference? In other words, is there anything about the authorities from which the court originates or to which it is responsible that is necessary to its function?

Part III: A Moral Order

Before continuing, I want to briefly address the issue of relativism. To be clear: my argument is emphatically not that the law lacks a valid normative basis. My claim is that the law's moral authority is emergent -- that there is a sound logical argument to the effect that justice and legitimacy originate in the structure of the system, rather than from an external source. The following section explains how this can be the case.

Justice Out of Form and Structure I began this discussion with Johnson v. M'intosh because it provides a rare example in American law of a legitimate normative decision that is -- by Marshall's own admission -13 This is, of course, just a variant of John Searle's "Chinese Room" argument, and more generally the famous Turing test. I am applying the argument to a different end, for this is not a paper on artificial intelligence -- in fact, in a sense I am applying the test in the opposite direction. However, it may be a userful exercise for the reader to consider the parallels between debates in artificial intelligence debate and the arguments presented paper. For more on Searle's argument, see, e.g., http://en.wikipedia.org/wiki/Chinese_room.

contrary to conventional moral principles. By "legitimate normative decision," I mean the sort of "end" I described above -- a cognizable stopping point for judicial analysis. Marshall's decision is consistent -- not complete, but simply logically coherent, for the existence of the Court is of course not necessary in a broader sense -- as a normative matter. But how can a normativelycoherent judicial conclusion exist without any external ethical justification? It is important to acknowledge and emphasize that Marshall's decision is, in fact, potentially immoral, and Marshall clearly recognizes as much. In this regard, Johnson is again distinct from other constitutional cases at the "edges" of the law. For example, there are many judicial opinions and political precedents that appeal to a "greater good" or an unconventional source of authority, such as Lincoln's suspension of habeas corpus, or the Court's decision in Korematsu.14 Likewise, there are "stopping points" declared simply by fiat -- such as Marshall's establishment of judicial review in Marbury. These decisions have been constant sources of contention (I make no claim as to whether or not the cases were decided correctly), because they lack definitive logical conclusions. In each case, one can easily make (and many have made) a slippery-slope argument: that the court places no logical limits on executive authority, national emergency powers, or judicial fiat, respectively. But Johnson is not susceptible to that criticism: Marshall's conclusion results from an environmental condition of the state itself. There is literally nothing further down the slope. The decision is not immoral, but amoral in that it does not turn on any internal ethical judgment. Unfortunately, Johnson v. M'intosh, despite its unique features, does not have a happy result -- again, as Marshall seems to admit. In order to demonstrate that "emergent" justice can in fact be just, we must first cast a wider net. It seems to me that certain elements of our judicial system, such as the concept of stare decisis or the prohibition of retroactive laws, act in the same
14 323 U.S. 214 (1944).

vein, but referencing a concrete case is difficult, because little precedent adopts the broad-level view with which this paper is concerned. Thankfully, Kim Scheppele points the way toward just such a possibility in her superb comparative-law essay comparing Bush v. Gore to other globally-disruptive cases in German and Soviet/Russian law. She points out that the Supreme Court's decision in Bush v. Gore "left supporters of both Al Gore and George W. Bush with a sense that the drama didn't have a proper conclusion. After the immense tension of the thirty-six days when the election hung in the balance, the whole vote-counting process was simply called off by a Supreme Court decision."15 The sudden drop of the gavel, and the resulting disarray, shares that same lack of closure with the cases cited above -- Korematsu, Marbury, etc. Scheppele argues that this fundamental discomfort is related to the very basis of the rule of law, which in its ideal form is coterminous with principles of justice. The decision in Bush v. Gore -- again, regardless of whether it might be considered "correct" -- lacked the elements that guarantee the rule of law, in its haste, its politicized nature, and most of all in moving-target aspect of the decision, where the court kept "shifting the ground out from under the litigants so that, in the end, the case is decided by rules that did not seem to be in existence when the case was begun or that had been discarded along the way only to be picked up as decisive later on."16 While this dilemma has a moral tint, the rationale is deeply structural. The United States, Scheppele points out, lacks an explicit rule-of-law provision in its Constitution.17 For the most part, such a provision might have been unnecessary, but it does not follow that it would be superfluous. Scheppele points to tyrannical regimes that nevertheless operated under constitutional orders or the color of law. Her most salient examples are Nazi
15 Sheppele, Kim, “When the Law Doesn't Count: The 2000 Election and the Failure of the Rule of Law,” 1363 (2001). 16 Id. at 1365. 17 Id. at 1356.

Germany and the Soviet Union.18 Under the Nazi regime, laws were often given effect but changed so rapidly that they could not be followed, or were passed retroactively to confer legitimacy on the actions of the government.19 In the USSR, the common pattern -- aside from the theatre of show trials -- was overlapping or self-contradictory laws, which meant that citizens could not avoid acting illegally, and were thus subject to arrest at any time.20 The consistent theme in both cases -- at least for the purposes of this paper, which is not particularly concerned with comparative law -- is that the legal system could act legitimately by its own terms, and yet still be unjust. The common flaw is thus structural: a fault in the construction of the constitutional order such that the law is not required to be internally consistent, or capable of being followed. Scheppele considers in detail the ways in which the law can be turned against itself,21 but that is not particularly my concern. More interesting is her explanation of the Soraya decision under the new German Constitution, in which the court
took the leap and extended constitutional principles to override the literal wording of the civil code in this case, explicitly invoking the Rechtsstaat principle... On first pass, this may sound like the opposite of the rule of law... But immediately, this power is qualified by outlining the practical responsibilities of the constitutional judge as she does this... the judge is constrained not only by a theory of constitutional interpretation or by having the appropriate attitude toward the text of the law, such as it is. Instead, the judge is constrained also by her responsibilities to those to whom the law is directed--specifically the litigants, but also those who form the community into which the decision comes as an intervention in a concrete legal dispute.22

Soraya is a clear example of a positive outcome in a case that employs the same jurisprudential
18 19 20 21 22 Id. at 1371. Id. at 1378. Id. at 1384. Id. at 1375. Id. at 1376-79, emphasis mine.

method invoked in Johnson. The Courts in both cases acted outside or in spite of conventional standards of law and morality, instead making internally consistent legal decisions based solely on the institutional order itself. Scheppele provides a strong defense23 of the Soraya decision against any accusation that it might be categorized with Korematsu and Marbury as drawing an arbitrary line in the sand, and I need not add to her argument -- instead, I turn to the more interesting problem of proposing a theoretical framework to explain these results.

Authority Without an Origin For some reason, it seems initially counterintuitive to imagine a just authority not backed up or constrained by an outside force. Perhaps this is because we consider 'justice' or legitimate judicial authority to include an implicit limit. Maybe we consider independent political forces unjust by nature -- like dictators or kings, who may be benevolent but still dangerous, unpredictable, and whose regimes come with no guarantee of future fairness. It is often (probably too often) said that the American Constitution is "brilliant" by virtue of its many checks and balances, and all its myriad constraints on power; likewise, "activist judges" and the "unitary executive" are the eternal bogeymen of our constitutional order. The horrible hidden truth invoked by critical legal studies is that maybe there is no man behind the curtain -- that maybe the entire system is up for grabs by anyone with enough power and ambition. Although I obviously consider these concerns in some respects overwrought, I do acknowledge that the search for authority, be it in the form of a sovereign or a code of ethics, represents a very rational human concern, and one deeply embedded in the legal system itself: the ability to identify the entity from which to learn the rules and demand redress. Douglas Hofstadter, whose theory I use to formulate my answer to the dilemma of a "headless tyrant,"
23 Id. at 1378.

characterizes this anxiety aptly:
The irony is that once you hit your head against the ceiling like this [with the three federal branches fighting each other], where you are prevented from jumping out of the system to a yet higher authority, the only recourse is to forces which seem less well defined by rules, but which are the only source of the higher-level rules anyway: the lower-level rules, which in this case means the general reaction of society. It is well to remember that in a society like ours, the legal system is, in a sense, a polite gesture granted collectively by millions of people -- and it can be overridden just as easily as a river can overflow its banks.24

Although one might read this passage as making an appeal to "popular sovereignty" -- the common recourse of many critical legal theorists -- that would be incorrect. Hofstadter is describing not an ultimate source of authority, but referring to the situation we would find ourselves in if the rules disappeared: a state of anarchy. His argument is that the judiciary is by its very nature contingent, a "polite gesture" -- that the legal system derives no solidity from a grant of authority, be it a delegation or a compact. Hofstadter's argument is not, in fact, directed single-mindedly at describing or extending Gödel's Incompleteness Theorem, but is rather an explanation of how subjectivity might come about as an emergent feature of complex structures; this is the claim that interests me. I recognize that there is no shortage of papers attempting to shoehorn Gödel's Theorems or Hofstadter's work into the body of legal thought, but it would not be a stretch to say that most of those efforts fall fairly wide of the mark. As Hofstadter himself takes pains to point out, analogizing from mathematics to other disciplines is tricky at best, and Gödel's result is much more specific to mathematics than it is sometimes treated.25 Consequently, none of the previous scholarship that I'm aware of really takes a stab at the subject in the way I'm about to. For an
24 Gödel, Escher, Bach: An Eternal Golden Braid, Douglas Hofstadter (1999, pp.692-93). 25 Id. at 696.

example of a more rigorous and actually, well, academic paper overlapping my topic, Douglas Lipshaw treats the subject of properly analogizing far more elegantly than I could in applying Hofstadter's result to contract law.26 Lipshaw points out that importing Hofstadter's result to the law is not at all a matter of saying, "Ah hah! The Law is self-referential, and therefore incomplete!" or something to that effect -- though many writers seem to take him as claiming such. Even if this is the case, there is no significance to the conclusion.27 It is neither original nor useful to say that the law is selfreferential, sometimes self-contradictory, and often just flat-out wrong. In fact, our entire judicial canon consists of cases overturning or clarifying what came before: thus, we can say with confidence that the one thing our legal system has done most consistently is screw things up.

The Conscience of Systems Hofstadter's radical claim -- which is easily missed reading Gödel, Escher, Bach -- is that "meaningless symbols acquire meaning despite themselves."28 In other words, a sufficiently complex correlation (Hofstadter uses the term "isomorphism") between a self-referential system and reality creates meaning internally and spontaneously, without need of an external jump-start or an objective standard. The necessary incompleteness of the complex system demanded by Gödel creates, by implication, a subjective presence to fill the gaps. Hofstadter claims that "the Gödelian strange loop that arises in formal systems in mathematics... is a loop that allows such a
26 Lipshaw, Jeffrey, “Instrumentality, Objectivity, Self-Reference, and the Futility of Justifying Contract Law” (2007); available online at http://ssrn.com/abstract=976033. 27 As Dow points out, Gödel has been deployed in equal measure to trash every variety of legal theory, from CLS to formalism. Dow, David R., “Godel and Langdell – A Reply to Brown and Greenberg's Use of Mathematics in Legal Theory” (1993). The actual question seems to be whether an "incomplete" or "inconsistent" legal system is a problem, and if so, to whom -- and even that question isn't very interesting. Regardless, the papers on the subject are in almost ludicrous disarray, although perhaps Hofstadter would enjoy that. 28 Hofstadter, infra at P-3 (1999).

system to 'perceive itself', to talk about itself, to become 'self-aware', and in a sense it would not be going to far to say that by virtue of having such a loop, a formal system acquires a self."29 Even if I were able to do Hofstadter's claim justice -- and it takes him hundreds of very dense pages to build up his argument, but it is in the end plausibly convincing -- I think it unnecessary to go the full nine yards and claim that the judicial system is somehow self-aware as a person is self-aware, and even Hofstadter admits that this is not his precise meaning and should be "taken with a grain of salt."30 I only ask the reader to consider the argument that our legal system, or at least the court, represents this sort of interpretive nexus that Hofstadter describes. This is actually an easy jump to make -- the Court is, when you think about it, nothing more than a series of feedback loops, of old cases and doctrines coming up for reconsideration, new laws being compared to older cases, the constitution, and perhaps moral rights -- these rules generate decisions, which go out into the ether, and which will no doubt return to the court one day in a different form and a different context, but now as precedent. No matter what judge sits before the court, the process itself will more or less continue to run the same way. Thus, the court interprets -- not the ever-changing judge, and in some sense the court takes on a life of its own. It is bound in all the structural manners we discussed earlier -- to its past precedents, its current litigants, to predictability. But it is bound by no grant of authority, but by the third standard we enumerated, the internal grant of legitimacy, operative so long as it serves its community. In fact, the Court often acts more creatively and proactively than we give it credit for. As Dow points out, the law "scavenges"31 near and far for not just ways to explain itself, but for new and better ways to make decisions -- it attempts to improve itself. Ernie Young has written
29 Id. 30 Id. at P-7. 31 Dow, infra (1993).

on the Supreme Court's occasional reliance on supra-constitutional values, or the incorporation of "sub-constitutional actors" like administrative agencies into the process of interpretation.32 While these are not necessarily the hallmarks of self-awareness, they certainly indicate strong self-correction mechanisms built in at a deep level. This leaves us with a point and a test. The point, I think, is that a self-contained judicial system is nothing to be feared, from an academic or institutional perspective. On the contrary, in our third origin narrative, the force of the system's authority only reaches so far as it is able to properly exercise justice -- it should in fact give us comfort to consider a system empowered only by its successes and abilities, rather than by authority perhaps improvidently granted. And like math after Gödel or physics after Heisenberg, a better model does not annul our academic pursuits -- it might even give more fertile ground for explanation. The test is a theoretical one, but hopefully illustrative. It is simply this: can an "emergent" sort of justice, if such a thing can be said to exist, provide a stopping point in the otherwise irresolvable cases such as Marbury? Here I am essentially posing to the Justice Machine Turing's halting problem33 -- given a case that admits of no "clean" resolution, is the proposed system able to nevertheless make an intelligent choice one way or another? It seems to me that the answer follows cleanly if one agrees with the arguments made above. If the illusion of a higher authority is merely a polite gesture, and yet the system is still able to make intelligible decisions in cases like Korematsu, then the answer is 'yes.' Of course, that does not relieve us of the difficult talk of struggling to bring our means in line with our ends, but it does allow for a headless king who is nevertheless benevolent, which is a novel and fascinating possibility.

32 Young, Ernest, “The Constitution Outside the Constitution” (2007). 33 For a more detailed explanation, see, e.g., http://en.wikipedia.org/wiki/Halting_problem.

The Refuge of the Self There is one final problem which I'd like to address: in the world I describe, what exactly is the role of the judge? Surely he or she is not merely a machine consulting a rulebook, yet neither is the judge a wholly independent entity -- they are constitutive of the internal rationality of the court. I think that the most apt description of the judge's role in a ethics based on structure rather than scripture is found in Michel Foucault's characterization of the Stoic philosopher Seneca, who made a practice each night of reciting to himself the acts of the day and the faults he had committed. Foucault thought that
There is something paradoxical in seeing the Stoics... giving so much importance to the examination of their conscience whilst, according to the terms of their doctrine, all faults were supposed equal. It should not therefore be necessary to interrogate oneself on each account.34

The parallel to the dilemma of this paper is straightforward -- what is the purpose of remonstration in a system of natural order? Foucault found it significant that when Seneca recited his errors to himself, he used both judicial and administrative vocabulary at the same time. This is an ethical practice, but regulatory. In a sense, Foucault's view of Seneca is rather Kantian:
These faults, as he says himself, are not really faults; they are mistakes. And why mistakes? Either because he did not keep in his mind the aims which the sage should set himself or because he had not correctly applied the rules of conduct to be deduced from them. The faults are mistakes in that they are bad adjustments between aims and means. Significant also is the fact that Seneca does not recall those faults in order to punish himself; his only goal is to memorize exactly the rules which he had to apply. This memorization is meant to reactivate fundamental philosophical principles and readjust their application. In the Christian confession the penitent
34 Foucault, Michel, “Subjectivity and Truth.”

has to memorize the law in order to discover his own sins, but in this Stoic exercise the sage memorizes acts in order to reactivate the fundamental rules.35

To return to our own metaphor, the role of a judge in a complex, self-referential system is not as an adjudicator or an administrator, but rather as a guide, a reciter of the acts and goals of the society. Foucault speaks of a “subject” as the target of moral judgment, and in this purely structural account, we find subjectivity -- that is, the essence of an independent ethical agent -emerging from the struggle to apply the imperfect law, from the Hofstadterian “strange loop.” Generally, judges are not policymakers, nor do they decide on the punishments which they are expected to mete out -- those substantive determinations are left to legislators. Judges and courts, as the Hofstadterian interpretive nexus, instead merely shape the form of the judicial structure as it passes through the lens of judgment. Foucault is worth quoting at length in conclusion, and I leave it to the reader to draw any final connections:
One can therefore characterize this examination in a few words. First, the goal of this examination is not at all to discover the truth hidden in the subject, it is rather to recall the truth forgotten by the subject. Two, what the subject forgets is what he ought to have done, that is, a collection of rules of conduct that he had learned. Three, the recollection of errors committed during the day serves to measure the distance which separates what has been done from what should have been done. And four, the subject who practices this examination on himself is not the operating ground for a process more or less obscure which has to be deciphered. He is the point where the rules of conduct come together and register themselves in the form of memories. He is at the same time the point of departure for actions more or less in conformity with these rules. He constitutes -- the subject constitutes -- the point of intersection between a set of memories which must be brought into the present and acts which have to be regulated.36

35 Id., emphasis mine. 36 Id.

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