When Congressman Anthony Weiner told Luke Russert that “I can’t say with certitude” whether a picture apparently sent from his Twitter account to a young coed was his it recalled Bill Clinton’s famous answer when he was asked whether he ever had sex with Monica Lewinsky.
“It depends on what the meaning of the word ‘is’ is. If the–if he–if ‘is’ means is and never has been, that is not–that is one thing. If it means there is none, that was a completely true statement….Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.”
How can truth be a matter of “it depends”? Well the lawyerly Bill Clinton knew that what Jack Balkin, writing in the Harvard Journal of Law and Public Policy explained. The relationship between reality and the law is not what the layman might expect. “law creates truth — it makes things true as a matter of law,” he writes. So to the question, did Bill Clinton have sex with Monica Lewinsky, well it depends — and it depends on the law. Balkin writes:
Consider, for example, the common law distinction between trespassers, licensees, and invitees. Landowners have different tort duties toward people who trespass on their property, enter their property for business reasons, or visit as invited social guests. Simply by making these distinctions, the common law makes it possible for it to be true or not true that a person is a trespasser, licensee or invitee.
Sexual harassment law makes it illegal to engage in sexual harassment. At the same time, it defines a practice as understood by law called sexual harassment. It makes it possible for someone to be a sexual harasser or not be a sexual harasser in the eyes of the law. It creates legal rights against sexual harassment and makes it possible to protect and violate these legal rights. Similarly, when law creates intellectual property rights in computer code, it makes it possible to violate those rights, to be or not to be a copyright infringer.
It is interesting to contrast the lawyer’s view of truth with that of the physical scientist or engineer. In that paradigm, truth creates the law. As Richard Feynman put it:
Nothing is certain or proved beyond all doubt. You investigate for curiosity, because it is unknown, not because you know the answer. And as you develop more information in the sciences, it is not that you are finding out the truth, but that you are finding out that this or that is more or less likely.
That is, if we investigate further, we find that the statements of science are not of what is true and what is not true, but statements of what is known to different degrees of certainty: “It is very much more likely that so and so is true than that it is not true;” or “such and such is almost certain but there is still a little bit of doubt;” or – at the other extreme – “well, we really don’t know.” Every one of the concepts of science is on a scale graduated somewhere between, but at neither end of, absolute falsity or absolute truth.
You change the scientific “law” to fit the facts. The facts are not created by the law. In science, it isn’t that the truth doesn’t exist; what is doubtful is the existence of a perfect human formulation of it. But the reality itself is really “out there”. It is doesn’t depend on what the law says. Balkin understands the distinction between legal truth and scientific truth. He emphasizes its importance in order to focus on the fact that “law creates truth” only because the state has power.
So in this sense, law is continuously proliferating truth into the world. It is making things real. It is making things true and false. These things are not true and false from the standpoint of mathematics or natural science. Rather, they are true and false from the standpoint of law.
But the truth that law produces is nothing to sneeze at. Because law is a form of power that is backed up by and helps constitute the authority of the state, what the law says is real, and what the law says is true or false has important consequences in the world. Put another way, law’s capacity to create truth and make things real is the flip side of its power.
Law has power because it can make things true or false in ways that matter to us; conversely, law can make things true or false in ways that matter to us because it has power over us.
The power to make truth is an enormous one. One of the consequences of creating a very powerful state — either via liberal social policy or through totalitarianism — is that its very existence changes the “truth” that affects us in our daily lives. By contrast, in a very weak state, most law is provided by the direct facts, not by institutions. In fact, on a battlefield where “arms silence the law” (Inter arma enim silent leges) the only laws which apply are the laws of physics.
A society without any law whatsoever would be like the jungle. On the other hand, one with too much law would result in a synthetic society consisting entirely of fictions. the modern Western world is closer to the second type: a society of fictions. It would ultimately be unsustainable, because unless the state which governed such a law-ridden society were omnipotent, reality would inevitably intrude. The facts would over-rule the law.
It is possible to regard the crisis now facing the West as an information problem. Maybe it has too many institutionally created fictions, from great leaders who are mostly credentials, to financial institutions that are “too big to fail” all the way to preposterous world views that are founded only on the fiat of political correctness. One solution to the problems which arise from this is to make the state omnipotent on the theory that if we make government strong enough, it can override reality. The other solution is to make just big enough to ameliorate the law of the jungle but not dominant enough to distort the real world.
In the real world, government may really be bankrupt and not just temporarily borrowing more money; the West may actually be at war with fundamentalist ideologies and Weiner knows with certitude whether the picture sent from his Twitter account is or isn’t one of him.
If it is important to know the scientific truth then we should set out to discover it. How would we know the truth? Maybe we should ask a lawyer for the answer.