The Hand Is Invincible, Nature Knows Best, and Justice Is Blind: Markets, Ecosystems, Legal Instrumentalism, and the Natural Law of Systems
Bibliographic record
Abstract
The motto “Soit Droit Fait” appears on the crest of the law school where I teach. Translated, the phrase means “Let Right Be Done.” It reflects the instrumentalist’s mantra: law is a means to an end, or a tool for the social good.1 In this essay, I will argue that legal instrumentalism is inconsistent with the nature of dynamic systems and in particular ecosystems and markets. The notion of dictating particular ecological or economic ends conflicts with the natural behavior of these systems and their immutable rules. The basic features of ecosystems and markets are not controversial. No one versed in the ways of these systems would seriously propose to control the population of butterflies or the price of duct tape. Yet result-oriented measures and practices have become commonplace, not because the systems are misunderstood but because the role of law is misconceived. Law is not able to dictate how ecosystems or markets operate. On the other hand, ecosystems and markets can provide insight about how law should work. Legal decisions emanate from a system of governance. This system should operate more like ecosystems and markets than like technicians attempting to fix problems one at a time. Isolated, instrumentalist legal commands are incompatible with the operation of law as a system. Providing ad hoc answers on a case-by-case basis is as much of an affront to legal principles as controlling butterflies is to the nature of an ecosystem. Instrumentalism is a flawed method by which to govern systems, but systems can reveal effective ways to approach the legal enterprise. In this article, I will first make observations about instrumentalism in the context of legal theory and then about the nature of ecosystems and markets. On the first topic, I
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.007 | 0.010 |
| Meta-epidemiology (narrow) | 0.001 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.009 | 0.078 |
| Scholarly communication | 0.016 | 0.025 |
| Open science | 0.002 | 0.006 |
| Research integrity | 0.008 | 0.007 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".