Theorization and Modelling of Law

• Author: Roberto Mancilla
• Position: LL.B. Instituto Tecnologico y de Estudios Superiores de Monterrey, LL.M., J.S.D. University of California, Berkeley
• Pages: 38-63

ANCILLA IURIS (anci.ch) 2015: 155 – Article 155

Theorization and Modelling of Law: Some meso to macro models of legal

behavior

Abstract

This paper is part of a larger project – a theory of Law – that purports make theory and practice more

inter-relatable thanks to systems theory, complexity and cybernetics modeling of legal behavior. The

great aim is to apply computer simulation and modeling to the study of Law.

Here we shall only take up two models of Law, because of space constraints. The first concerns how

knowledge about Law, Justice and the Rule of Law is created and circulates. The second refers to what

norms are and how they are implemented, along with a brief notion of who are the Law’s subjects. These

models are applicable on a midrange to macro-scale (cities of a certain size, States, confederations of

States and onwards), despite the fact that the implementation model can also be used on small scale-

systems like communities, dyads, triads and so on.

The work offered in this study is correlated with the Law and Society approach to legal empiricism, and

I conclude that theory and practice holds a recursive relation: theory without a practical referent is fic-

tion and practice without theory is blind development. Computer modeling is a way to further the com-

plementary relationship that both ought to hold.

I. Introduction

The Law and Society Movement – which rose from American Legal Realism and came as

a response to legal formalism in the 1960’s – has become increasingly important in the wake

of growing complexity within national and international legal frameworks. This complexity

has forced lawyers and scholars to deal with concrete problems and contexts instead of tak‐

ing a top‐down approach where a theory would be used to organize and systemize an exist‐

ing mass of norms and legal relations.

Law and Society depicts Law as a culturally and structurally embedded social institution,

seeking to analyze it by empirical means; despite of a lack of consensus on how to define it, it

is understood that Law and Society are nested in one another. Their fundamental approach

consists of making a differentiation between “law‐in‐action” and “law‐on‐the‐books”,1 cen‐

tering on the former, and emphasizing the ways in which extralegal social processes continu‐

ously construct and reconstitute the meaning and impact of legal norms.2 In her introductory

book to the Law and Society approach, Calavita summarizes this difference masterfully:3

1* LL.B. Instituto Tecnologico y de Estudios Superiores de Monterrey, LL.M., J.S.D. University of California,

Berkeley.

1 This distinction was first made by Roscoe Pound on 1910 on his seminal article Law in Books and Law in

2Lauren Edelman & Mark Suchman, Legal Rational Myths: The New Institutionalism and the Law and Society

Tradition, Law & Social Inquiry, Vol. 21, No. 4 (1996), 907, 908.

3Kitty Calavita, An Invitation to Law and Society. An Introduction to the Study of Real Law http://lawlib.shi‐

razu.ac.ir:8080/pdfTemp/ebooksclub[1].org__Invitation_to_Law_and_Society__An_Introduction_to_the_

Study_of_Real_Law__Chicago_Series_in_Law_and_Society_.pdf

Roberto Mancilla*

Roberto Mancilla – Theorization and Modelling of Law

156 ANCILLA IURIS (anci.ch) 2015: 155 – Article

Gaps between the “law‐on‐the‐books” (the sign indicating no access) and the “law‐in‐

action” (the de facto policy of granting access) are a central concern in law and society

research, and the pervasiveness of these gaps is one of the field’s founding ideas.

Sometimes the issue is routine nonenforcement … Sometimes the pattern reveals

selective nonenforcement … The disparate treatment implicit in vagrancy, loitering,

and anticamping laws reflects the economic interests and biases of class societies,

joined in the United States and other racialized societies by racial stereotypes. Some‐

times such law‐on‐the‐books and law‐in‐action gaps are the result not so much of

class or race biases – or even ulterior motives like those implicit in the drug‐ dealers’

tax – but of structural dilemmas faced by policymakers and enforcement agents.

Three aspects of the Law and Society as a practical program were stated by Phillip Selz‐

nick in his article on the Jurisprudence and Social Policy program of the University of Califor‐

nia at Berkeley:4

Law and Society as problem centered inquiry: Its starting point is the experiences of the

populations and the individuals that constitute institutions; genuine problems emerge

from practical experience. It is integrative because it brings to bear every relevant intellec‐

tual resource and normative because it postulates a state of well‐being in the light of

which existing arrangements are to assessed.

Law and Society as Law in context: Law is always part of a larger normative order; it

begins with an understanding that “positive law” is only part of a larger sphere. Histori‐

cal, sociological, economic, political, and psychological foundations of legal rules and pol‐

icies are to be explored. Also, social change is a central concern; Law in society suggests

that rulemaking, sanctioning and adjudication are pervasive aspects of social life and that

their legal forms belong to a continuum.

Law and Society as Law in action: The legal order is more than a system of norms and

rules, it is a set of agencies responding to social needs and pressures; the latter are subject

to the vicissitudes that beset any human institution and they also face the dilemmas of

lawmaking and administration. Thus, studies of law in action take place in a world of

pressure, constraint, and opportunity; principles, policies, and rules form only in a part of

the environment of decision.

The downside of the approach of Law and Society is that it brings forth myriad narratives

that sometimes contradict one another because they view the same phenomena from differ‐

ent angles; furthermore, the implementation of empirical studies presuppose theoretical

approaches to Law, politics and social relations, which vary from one practitioner to the next.

Empiricists are wary of theories of Law because traditionally, they have been created with

an abstract approach that simplifies the nuances of the social relations that underlie Law. The

purpose of this paper is to offer models of legal behavior based on circular causal relations,

where the effect feeds back into the cause in an ongoing process; these capture the complexi‐

ties of sociolegal reality better and can help to unify different narratives into a coherent

whole.

4Philip Selznick, Jurisprudence and Social Policy: Aspirations and Perspectives, 68 California Law Review

206 (1980), 215, 216.