Wednesday, December 29, 2010

Law without Categories?

A recent New Scientist story about the descent of birds from dinosaurs (James O'Donoghue, Living dinosaurs: How birds took over the world, Section 2, Was archaeopteryx really a bird?, 08 December 2010; subscription required) contained this passage:
The real question is, where do you draw the line between dinosaurs and birds? Ask different palaeontologists and you will get subtly different answers. That is because the distinction is basically arbitrary, says Xing Xu of the Institute of Vertebrate Paleontology and Paleoanthropology in Beijing, China, who discovered many of the Chinese fossils [of feathered dinosaurs].
This is a common theme in biology: the boundaries between species are arbitrary. And yet we continue to think in terms of species, since categorization is such a strong human reflex.

Jurisprudence and regulation in particular is built on categorization, defining categories that determine the response to a particular situation. At the heart of current network neutrality argument is the question of whether  a company falls in "Title II" in which case a whole raft of  telecommunication regulation regarding common carriage applies, or "Title I" in which case they are much more lightly regulated.

However, as the analogy to biology illustrates, most interesting categories have fuzzy boundaries, making for a delightful amount of work for lawyers and lobbyists, but not necessarily helpful outcomes.

Taxonomies are backward-looking; they attempt to fossilize a reality but are constantly open to revision. (This necessity for revision undermines the certainty which category-based rules purport to offer since categories are less robust than they appear, necessitating the case-by-case interpretation which proponents of rules contend is the weakness of the alternative approach, principles-based regulation.) They evidently work well enough, though; they're pervasive. A paper by David Bach & Jonathan Sallet about VOIP regulation (The challenges of classification: Emerging VOIP regulation in Europe and the United States, First Monday, Volume 10, Number 7, 4 July 2005) explains the situation very well:
From a practical point of view, classification stands out because classifying different services is what regulators principally do. In an ideal world, one could just draw up rules for VOIP that address the aforementioned critical issues, keeping in mind the technology’s novelty and the substantial differences that exist between conventional circuit–switched telephony and innovative packet–switched VOIP. In the real world, however, a first step in the regulation of new technologies is usually to try to fit them into existing service categories, in part because those are the tools that regulators work with and in part because classification can provide shortcuts through complex regulatory problems. Alternatively, regulators may be inclined to ask whether VOIP service is "like" or "substitutable" for current services — an approach that may obscure technological achievement. Either way, much is at stake in these decisions.
Fitting VOIP into existing regulatory categories is not simply an administrative or technical act. Since categories are associated with distinct sets of rights and responsibilities that have distributional and market strategic implications, a large number of stakeholders have mobilized to affect the outcome. . . .
Unpacking the political economic dynamics of evolving VOIP regulation highlights a second, more analytic reason to focus on classification. The debate over how to classify VOIP represents the leading edge of the question whether regulatory classification is useful in a world of converging technologies. . . .
In the eyes of most regulators and industry observers, correctly categorizing VOIP provides a shortcut through regulatory uncertainty. Yet precisely this is the problem with classification. As policymakers almost reflexively ask how a new technology fits into existing categories, the underlying political and social objectives of regulation can get lost.

A behavioral alternative comes to mind: the regulations that should apply do not derive from the category into which an action falls, but from its consequences; in Bach & Sallet's terms, one needs to look to the political and social outcomes, not the inputs.

Thursday, December 09, 2010

Not even a metaphor

Said Industry Minister Eric Besson, describing an upcoming auction of radio licenses in France, "These frequencies are of very, very high quality." What? How can a frequency, merely an attribute of electromagnetic radiation, be of high quality?

I’ve been inveighing against the misuse of spectrum metaphors for some time, but it took this quote to make me realize that the figure of speech at issue is really metonymy, not metaphor.

Metonymy is referring to something not by its name, but by something that is intimately associated with it (Wikipedia). Some examples:

The designers come up with the ideas, but the suits (worn by executives) make the big bonuses.

The pen (associated with thoughts written down) is mightier than the sword (associated with military action).

Freedom of the press (associated with the journalists and what they write) is an important value.

The White House (associated with the President and his staff) stood above the fray.

He bought the best acres (associated with the land measured in acres).

Both metaphor and metonymy substitute one term for another: metaphor by some specific similarity, and metonymy by some association. In spectrum language both are at work, for example in “Guard bands leave too many frequencies (or spectrum) lying fallow.”

Metonymy: Frequencies are associated with radio licenses

Metaphor: Radio licenses are like title to property

Metonymy: Property title is associated with the land to which it relates

Metaphor: Fallow land stands for any underused asset

Saturday, December 04, 2010

Heresy as Diagnostic

Heresies, or more exactly, the arguments that lead to one perspective being labeled as orthodoxy and the other as heresy, are pulsing pointers to a religion’s sore spots, those questions of doctrine or practice that have multiple plausible but incompatible answers. Heresy seems to be a useful tool for analyzing a set of beliefs. (Any book recommendations gratefully received.)

I was drawn to the question of heresy by reading Augustine’s Confessions, and Peter Brown’s masterful biography, Augustine of Hippo (1967, 2000). For instance, comparing Augustine and Pelagius, he writes

“The two men disagreed radically on an issue that is still relevant, and where the basic lines of division have remained the same: on the nature and sources of a fully good, creative action. How could this rare thing happen? For one person, a good action could man one that fulfilled successfully certain conditions of behavior, for another, one that marked the culmination of an inner evolution. The first view, was roughly that of Pelagius; the second, that of Augustine.”

My guess is that the choice between solutions that leads to a perspective being labeled heresy is necessary for a consistent set of beliefs, but that something is lost when the choice is made. I’m reminded of Isaiah Berlin’s approach to conflicts of values, summed up thus by John Gray in an interview with Alan Saunders on the Philosopher’s Zone (Australian Radio National, 6 June 2009)

“ . . . the idea that some fundamental concepts of human values are intractable, rationally intractable, in the sense that first of all they can't be resolved without some important loss, and secondly reason is very important in thinking about these conflicts, and then being clear about what they are, what they're between and what's at stake in them. [E]qually reasonable people can come to different judgments as to what ought to be done, so certain types of conflict of value are intractable. . . . So this idea of a kind of fundamental and intractable moral scarcity if you like in human life, such that there have been and there will always be intractable, the conflicts of values, and we can resolve them more or less intelligently in particular contexts that can be more or less skillful and intelligent and reasonable settlements of these conflicts, but they can never be overcome or left behind.”

Such differences may point to a conflict between incommensurable world views. For example, in an article about “relativity deniers”, (Einstein's sceptics: Who were the relativity deniers?, New Scientist 18 November 2010, subscription required) Milena Wazeck explains,

"Einstein's opponents were seriously concerned about the future of science. They did not simply disagree with the theory of general relativity; they opposed the new foundations of physics altogether. The increasingly mathematical approach of theoretical physics collided with the then widely held view that science is essentially simple mechanics, comprehensible to every educated layperson."

I would not be at all surprised if there is at least something like this at play in the argument over climate change; opponents have been all but branded as heretics, and there is religious fervor on both sides.