Thinking about the law through fiction

Like many scholars, I did not get much published in 2020. However, one of my projects that did move forward is a book chapter on Dune and corporate law, written in Portuguese (with João Gabriel Arato Ferreira) for a book on geek law. In this chapter, we analyse the corporate structure of the CHOAM Company, a major player in the first books of the Dune series, and compare it with Brazilian corporate law. Through this exercise, we intend to highlight how different socio-political circumstances lead to different approaches to corporate regulation.

Of course, this argument is not really new. After all, there is a substantial body of comparative law that analyses the similarities and differences between the corporate law of various jurisdictions.1 Nor is the use of fictional legal systems an entirely novel tool for legal studies.2 So, why bother with such a study?

The main reason, of course, was that writing this paper was fun: João and I are both hardcore Dune fans, and, coming from a legal background, the en passant mentions to CHOAM’s governance structure caught our attention more than they should.3 In my particular case, many of my personal research interests — and a less absolutist approach to knowledge — were somewhat influenced by reading Dune at an early age. But this kind of exercise has some didactical and methodological implications that can make the analysis of fictional law interesting for (some) applications.

First, this kind of analysis can be useful from a didactic standpoint. Unless you are looking at a book (or another medium) that deliberately geeks about a certain subject — for example, I cannot imagine the experience of reading Snow Crash as a linguist —, it will not go deeply into your legal issue of choice. As a consequence, the legal discussion will not contain all the nuances and edge cases that appear in real life, allowing your analysis to focus on a few salient issues. This is the case even if the fictional medium is bad at lawyering, as it might be fun to explain what is wrong with fictional law.4

As a didactic tool, an analysis of fictional law will probably refer to one or more real-world legal systems. One way to do so is to study why fictional law is different from existing laws: for example, one might think about how the existence of superheroes might impact liability laws.5 But, in certain cases, it is interesting to consider why, in a radically different world, things are somewhat similar to what we have right now.6 In both cases, an analysis will need to clarify how the law is different (or similar) to what we have now and why that is the case.

The answer to the how question will need to rely solely on the information that the fiction under analysis gives us,7 as it aims to explain the in-universe dynamics. But, for answering why things are that way, one needs to provide an explanation of a (fictional) social phenomenon.8 To a certain extent, such explanations are also dependent on in-universe explanation, as they seek to unveil the internal logic that gives sense to a certain piece of law within the narrative, or why that law does not make sense.9 But this narrative is, itself, shaped by external factors, such as the social context in which an author is working — which influences not just their imagination, but also their understanding of the law and the legal resources upon which they may draw if they want to detail a legal issue — or the kind of story that an author wants to tell. So, in the same way that discussions of real-world law resort to references to factors such as legislative intent, discussions of fictional law will need to attend to external factors.

One advantage of exploring whys and hows through fiction is that, Balrog wings notwithstanding, one is less likely to have anything meaningful at stake in the debate. This has two interesting consequences: first, it may assist in the cultivation of moral imagination, as one is invited to consider positions and issues from a distanced position that might be untenable when considering real-world cases.10 Furthermore, it has a methodological consequence: since the contour conditions of fiction are easier to change than real-world legal systems, one might use fictional scenarios as a form of thought experiment.

Thought experiments are well-known tools in the natural sciences, which have also been deployed toward issues in political theory.11 Roughly speaking, a thought experiment asks a “what if” question: what would happen if a relevant factor were different? 12 Asking this kind of question can be useful, for example, as a way to explore the consequences of a change in the law before it comes into force, or to see the impact of a given concept on how we think about a legal problem.

Such an exercise can bring useful consequences, such as highlighting contradictions within a given theory, but only if the thought experiment is plausible and coherent. This is where fiction becomes useful: a well-written fictional universe will probably have more complexity than an armchair example that one might think when seeking a counterexample for an argument, while still having an acceptable internal logic. Furthermore, it is more likely to be written in an accessible language, reducing the barriers to understanding a scenario. Hence, fictional narratives can be a valuable source of hypotheticals for examining our assumptions and reasoning.

This does not mean, however, that thought experiments should be applied everywhere. One could write extensively — as I have done elsewhere — about the limits of this approach, but there are two issues that I want to call attention to here. First, it is important to remember that thought experiments provide us with models for thinking about a situation, but those models might not map neatly to the real world, whether due to lack of information or because the real situation has relevant factors that were not taken into account in the hypothetical scenario. Second, thought experiments may shift the focus towards nicely-designed scenarios and shift attention away from the messy situations which actually threaten the rights of real people.13

While, to a certain extent, such issues might be avoided or mitigated by thinking carefully about how to use fictional scenarios in an approach to a given problem, it might be the case that fiction is not a good tool for thinking about certain issues. But, under the right circumstances, considering how the law in fiction is different from the law in the real world might not only be a fun exercise but also teach us something about actual legal systems and issues.

  1. See, e.g., Reinier Kraakman and others, The Anatomy of Corporate Law: A Comparative and Functional Approach (3rd edn, Oxford University Press 2017). ↩︎

  2. See, e.g., the yearly GikII conference. Regarding the usefulness of fiction for comparative law, see Mathias Siems, ‘The Power of Comparative Law: What Types of Units Can Comparative Law Compare?’ (2019) 67 The American Journal of Comparative Law 861. ↩︎

  3. Especially since the most recent Brazilian Portuguese translation of the books, commissioned by Editora Aleph, makes some translation choices that pick exotic legal terms which turn out to map to legal structures which are somewhat different from the ones picked by the original author, Frank Herbert. ↩︎

  4. For an example of this approach within legal philosophy, see Lon L Fuller, ‘The Case of the. Speluncean Explorers’ (1949) 62(4) Harvard Law Review 616. ↩︎

  5. I vaguely remember that The Boys started with something along these lines, but, since I am not a fan of the genre, I did not watch much of it. ↩︎

  6. Consider, for example, how Max Gladstone’s Craft sequence explores the classic trope of magic-as-contract and organizes magical practice in terms of law schools, law firms and corporate contracts. ↩︎

  7. Unless you are really geeking out, in which case you will probably make use of additional canonical sources, such as the Star Wars Visual Dictionaries. ↩︎

  8. About explanations in the social sciences, see Gurpreet Mahajan, Explanation and Understanding in the Human Sciences (3rd edition, OUP India 2011); Georg Henrik von Wright, Explanation and Understanding (Cornell University Press 2004). ↩︎

  9. The Dune universe has a feudal-ish structure, which allowed Frank Herbert to place his desired emphasis on human factors, such as the role of the Fremen. But, to make this world remotely coherent, the author had to introduce various justifications for why certain development — such as space travel, shields, or artificial intelligence — have not led to a radically different society. Some of those justifications were presented, in-universe, as legal norms and institutions, a subset of which were the subject of my aforementioned paper. ↩︎

  10. Russell Blackford, Science Fiction and the Moral Imagination: Visions, Minds, Ethics (Springer International Publishing 2017). ↩︎

  11. Kimberley Brownlee and Zofia Stemplowska. ‘Thought experiments’ in Adrian Blau (ed), Methods in Analytical Political Theory (Cambridge University Press 2017). ↩︎

  12. For an example in a legal domain, see Lawrence Solum’s presentation of Oliver Wendell Homes’s “Bad man” argument. ↩︎

  13. For an application of this critique towards the field of “Robot rights”, see Abeba Birhane and Jelle van Dijk, ‘Robot Rights? Let’s Talk about Human Welfare Instead’, Proceedings of the AAAI/ACM Conference on AI, Ethics, and Society (2020) accessed 2 June 2020. ↩︎

Researcher, Law and Artificial Intelligence

Currently researching the regulation of artificial intelligence at the European University Institute.