Volume 3, May 2003
Bill Shields, J.D.**
*Avner Levin’s article was published in the March 2003 edition of the Journal of Philosophy, Science & Law.
**Associate General Counsel, Defense Nuclear Facilities Safety Board, and Ph.D. candidate, Science and Technology Studies Program, Virginia Tech.
With regard to the representation of quantum mechanics in the article, I have no serious scientific reservations, except to note that Bohr’s particular version of the Problem of Observation was not and is not universally accepted. Although we continue to believe today that the fundamental limits imposed on certain measurements hold true, the connection between these limits and other aspects of physical theory remains unclear. The physicist David Bohm, for example, long advocated a "Hidden Variable" formulation that attempted to restore the notion of causality in the sense Einstein preferred. John S. Bell, in a series of papers beginning in 1965 has identified inequalities (called "Bell’s inequalities") that can be applied to the outcome of certain quantum mechanical experiments in which the Einstein-Podolsky-Rosen paradox can be tested. A variety of such experiments have been carried out, and the results have confirmed that the inequalities are violated, i.e., locality in the usual sense cannot be assumed. My point is that "Bohr’s Problem of Observation" is at bottom a very complicated problem that continues to confound physicists. Levin’s discussion leaves the reader with the notion that Bohr settled the matter with a "philosophical detour" and there the matter lies. While Bohr’s view has certainly not been refuted, the last chapter in this story has hardly been written.
The difficulties I have with Levin’s drawing of a parallel between indeterminacy of measurement at the quantum level and “the law” are manifold, but in this brief comment I will note only a few.
First, beginning at the sub-heading “Law,” Levin creates a parallel between a “scientist observing nature” and a “legal participant commenting on law.” This parallel is simply too generalized to draw any conclusions from. A “scientist observing nature” under most circumstances (as Levin acknowledges) can make arbitrarily exact measurements so long as quantum phenomena are not important. Things can be counted, spectroanalyzed, weighed, chemically analyzed, and so on. None of these measurements have anything to do (in any important respect) with quantum theory. “Law” can mean quite a few different things, and what meaning is taken affects any parallel to be drawn. Law can be regarded as what is in the books, i.e., the Constitution, statutes, cases, and regulations, or the body of broad legal principles such as fairness, equity, impartiality, and transparency, or what lawyers and judges do for a living, or in the very broadest sense, a social contract that all members of society are expected to sign. “Writing about law” can involve any or all of these meanings.
With regard to what might be regarded as “measurement” in the law, the closest parallel I can draw to a physical measurement is when a client asks me, “what is the law on X?” To answer that question, I conduct research and the results of that, plus my own tacit knowledge and legal experience, allow me to offer an answer. That answer will be indeterminate to a degree, and that is made clear to the client. Levin refers to this (I believe) as “descriptive writing” though no actual writing is necessary. This is a reasonable parallel to a scientist attempting to take measurements without disturbing the system.
I can agree with Levin that “prescriptive legal writing” as he defines it does have change as its goal. The writer is trying to disturb the system. But here again, the parallel breaks down. Huge amounts of legal writing are generated in our society, and much of it has no measurable impact on any aspect of “the law” in the various ways it can be defined. As a legal colleague with much legislative experience sometimes remarks when asked about some controversial piece of legislation proposed in the U.S. Congress, “there are thousands of bills introduced every year and
90% of them never get beyond referral to committee.” The formulation “descriptive writing–prescriptive writing–law changes” is simply not true. Moreover, someone writing prescriptively about law with the intent of disturbing the system is quite unlike a scientist using a complex piece of apparatus in an attempt to measure precisely the position and momentum of a particle. In that case, the scientist is trying not to disturb the system, but in the end is defeated by a fundamental principle that limits his or her ability to avoid the disturbance. There is no parallel principle I know of in the practice of law. Changes in the law, however defined, are a complex societal process and the net impact of those who write about the law is probably negligible.
In the last paragraph of the essay, Levin argues that “descriptive work and prescriptive work both continue to be necessary to the advancement of knowledge about the law.” As a lawyer, I do not understand Levin’s view. Descriptive work (as I understand Levin means it) is an attempt to learn the current state of the law in some area, “legal research,” whereas prescriptive work is a deliberate attempt to disturb the law in some area, which might be viewed as “creating law” if it succeeds. There is no legitimate sense in which the law is “out there” waiting to be “known” in the sense that physical phenomena may be.
Finally, Levin comments that “so long as we understand law as a product of our perceptions, that is the unfortunate reality of our knowledge about the law.” In fact, because law however defined is a form of societal consent, it is very much a product of our perceptions. In Baghdad over the last week, when the residents perceived that the “rule of law” (an admittedly oppressive one) had been temporarily destroyed, the social contract broke down and “lawlessness” was rampant. Whatever may be written in all the books and treatises, law at bottom is our consent to live by certain rules, and in a very real sense, those rules are what we perceive them to be.
 See, e.g., David Bohm, "A Suggested Interpretation of the Quantum Theory in Terms of ‘Hidden’ Variables,"Physical Review 85: 166 (1952).
 See J.S. Bell, Physics 1: 165 (1965).
 See, e.g., Alain Aspect, Jean Dalibard, and Gerard Roger, "Experimental Test of Bell’s Inequalities Using Time-Varying Analyzers," Physical Review Letters 49: 1804 (1982).
 For good overall discussions of this problem, see Quantum Implications, Essays in Honour of David Bohm, ed. B.J. Hiley and F. David Peat (London: Routledge, 1987) and Anthony Sudbury, Quantum Mechanics and the Particles of Nature (Cambridge: Cambridge University Press, 1986).
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