Some discussions I've had with people about what are basic "unalienable" rights have made me realize that a lot of people don't understand what I think is the basic structure of law. Furthermore, when they use science as an analogy, I realize they also don't understand the basic structure of science. Let's get science right and then move on to law and rights.

     SCIENCE

     My credentials: I have been a scientist for thirty years. I call myself an industrial mathematician and my career has been all about finding better ways for businesses to run. To find better ways to do something, one has first to understand the current way they do things and then to understand enough of the science of their business to figure out how to do it better. (The final stage, selling the solution, has never been my forté and I've left that part to others more skillful.) I may not work in a laboratory with beakers and animals in cages, or even with racks of electronic test equipment, but my career and mindset are decidedly "scientific."

     In addition to being a practitioner of science I've been the the lecture hall with Professor Thomas Kuhn, one of the twentieth century's great minds in Philosophy of Science. You may remember Professor Kuhn (pronounced "coon") from his work The Structure of Scientific Revolution and the viral use of the buzzword "paradigm." So, in addition to my practice, I've had the opportunity to think about science in a more-abstract way.

     So let's start with a question. (I always start with a story or with a question, so here goes.) We think of technology as invention and exploration of nature as discovery, right? Was gravity discovered or invented?

     "That's easy," you may say. "Gravity was always there, part of nature, and was discovered by Isaac Newton when he got bopped on the head by an apple falling from a tree." The actual specifics of Newton's revelation aren't important here, it's the notion that Newton's theory of gravitation was a discovery of something fundamentally there rather than an invention. That's where I claim you're wrong.

     The fundamental experimental bases of gravity were around in the time of the ancient Greeks, probably even before then. The two observations I cite are the fact that stuff thrown in the air tends to come back to the ground and that there are wandering stars, called "planets," that have repeating cycles of travel through the sky. Ptolemy and Pythagoras, and later Kepler, had theories of planetary motion and I believe there was knowledge of some basic physics around falling objects on earth. (Since the Great Big Fire destroyed the Library at Alexandria, we may never know how much was really known back then.)

     Newton's realization was that he could come up with a single formula that explained both of those phenomena, falling objects on earth and things moving in the sky. Newton said that any two objects attract each other with a force (defined elsewhere in Newton's laws of physics) proportional to the product of the two masses and inversely proportional to the square of the distance between them. It was not a discovery but an invention. We already knew about the effects but didn't have a good theory. Newton's formula doesn't help understand the "why," it just makes life a whole lot simpler calculating the "what." Later astronomers used Newton's laws to calculate orbits of asteroids and other things, Karl Frederick Gauss comes to mind.

     Later on, and my History of Science is fuzzy here, nineteenth-century physicists came up with the notion of a potential-energy field. Any mass generates "potential energy" that increases with distance in a prescribed way and it is the "gradient" of that potential energy that produces the "kinetic energy" of a falling object or the "acceleration" that maintains orbits for objects in space. Notice, there is no new observationally-useful information here, just the invention of a simpler, clearer, more-comprehensive view of the observations we already have about gravity.

     Einstein likened gravity with an accelerating reference frame with his elevator thought experiments, that we can't tell the difference between gravity and acceleration. This, too, is a wonderful invention of insight into gravity.

     More-recently, in the last century, we understand the potential energy as a geometric deformation of space itself. This insight explains how massless light particles get bent by gravity wells in space. There is still no "why" as we still have no idea why deformed space produces potential energy fields that create inverse-square gravitational attraction. Still, the invention of these more-sophisticated views of gravity give us greater insight. These greater insights allow us to invent amazing new technology.

     Don't get me wrong. There is practical scientific inquiry going on as well. In addition to the steady stream of white-coated lab scientists poking at nature, there have been dramatic moments, "critical experiments," where an experimental observation has diverted scientific thinking. Michaelson's and Morley's experiment on the aether of the universe and the dramatic solar-eclipse pictures from 1919 come to mind. Still, these generate or vindicate invented science, new ideas that explain earlier observations better than the old ideas.

     This is a hard concept for the pursuit-of-truth science weenies. Copernicus wasn't right while Ptolemy was wrong and Einstein wasn't right while Newton was wrong. Their explanations were better and, as an extra bonus, their explanations explained observations not known earlier. How often do you need the curvature of the earth, as opposed to a flat-earth theory of geography, in your day-to-day life? How often do you need the equation of time, as opposed to the uniform twenty-four-hour day and four even seasons? Science is much more than pursuit of truth, it is codifying and explaining the complex world in a simple way. While a blackboard full of equations with Greek letters may not seem simple to you, or even to me with my advanced degrees, it's a lot simpler than trying to explain nature's ways on a case-by-case, ad-hoc basis.

     Yes, I admit Galileo's explanation of falling objects was right and Aristotle made specific predictions that could have been tested and proven false in his own time. (Maybe he was more politician than scientist!) But the Papal geocentric rather than heliocentric view of planetary motion was still a valid viewpoint, just not as predictive nor as simple as Galileo's viewpoint.

     What is utterly important to understand in science is not the increasing list of answered questions in a row, as Karl Popper opined, but Thomas Kuhn's notion that the questions themselves change, that the deep questions of a century ago, rather than being answered by newer insight, were rendered obsolete by newer paradigms.

     Are we okay on this? It's a big pill to swallow. Truth is absolute, not relative, but the scientific codification and understanding of that truth is a growing body of knowledge and insight, invention rather than discovery.

     LAW

     Knowing how people want to relate to each other is as old as the hills. The Judaic bible, the five books of the Torah, the Law, were not new back then. I believe they were an exquisite codification of the expertise and knowledge of smart people determining how people ought to relate to each other.

     The purpose of law, as I see it from Philosophy-of-Science viewpoint, is to codify and to simplify rules of conduct so following the rules, obeying the law, gets us the behavior we want from ourselves and others. I'm willing to stop at a red light in exchange for cross traffic stopping when my light is green. We could form an exchange of contracts, what times east-west traffic has the right of way and what times north-south traffic has the right of way, or we can make a agreement, a "law" that says that a traffic light dictates the right of way and we're all going to follow it.

     So is law discovered or invented? Again, I appeal the notion that what we want our law to do is old and well established. We want to stay safe where we are, get where we're going, make deals with other people and have some control over our destinies. The invention part is how we get there and it depends on what reality we're living in.

     For example, let's look at music and video. Back in my day media were scarce and expensive enough that we could control content distribution by controlling the media. I couldn't just stamp my own vinyl record to make a copy and tape recorded copies were markedly inferior to originals, so there was a clear quality motivation to buy the original. In case sound quality was insufficient, the cover art of a vinyl record wasn't easy to duplicate either. So long as a record company could control manufacture of media, they could control distribution of content and law was all about who could manufacture what. In the used-record stores I've seen racks of "fan club issues," otherwise known as "bootleg" albums.

     Now the message is free of any medium. Not only can I copy a compact disk (CD) or a digital video disk (DVD) fairly easily, we can download image and video files from the Internet. New capabilities, new technology, new systems mean we need new law. We're not changing the message of the law, but we're changing how we enforce copyright. Laws that protected landline telephone call privacy have to be revised to cover cellphone calls. We're not re-discovering what we want to do, we're re-inventing how we do it.

     The bad news is that the constant change is an opportunity to put things into our law that the original framers, and those who seek out those original ideals, did not intend. Certainly it would be hard to argue that the legal structure of the United States of America is faithful to the principles it adhered to a century ago.

     Writing good public law (criminal and tort) and private law (contracts) is hard and many of these legal relationships require revisiting as circumstances change.

     One of the drawbacks of law, and letter-of-the-law arguments, is how much it can cost to be right. Criminal or civil, most of us would find ourselves paying more than a year's income to defend ourselves in the legal system. Picture yourself arrested for a robbery where somebody of similar height and build with the same hair color held up a convenience store. You'll need bail money and legal fees. Make it a wrongful civil suit and, again, you're looking at a lot of legal fees and lots of time defending yourself.

     Often part of the service of a service provider is quick and painless concession of a legal position. My experiences with my two insurance claims were terrific, one had a cheque in my hands within an hour, the other within a few weeks. I've gotten products unsatisfactory to me for various reasons, broken sometimes, not the right product sometimes, and not had hassles returning them to the store. Stories I hear from other people aren't so terrific, especially home, car, and airplane mechanics. I believe good law with swift execution works wonders at making the good people happier and the bad people more miserable.

     RIGHTS

     So we go a step further and decide that certain legal positions are not only ours to defend but ours not to have to defend. We call these "rights" in the United States. You have the right to remain silent, not only are you allowed not to speak to arresting officers, you don't have to defend that decision later. There is a presumption about a right that a law, by itself, may not offer.

     I remember a friend of mine marveling when I lived in a place where we didn't lock our doors. Hiding his envy, he asked me why I felt it was such a big deal. I fumbled with the answer and said something stupid like, "Well, what if my neighbor wants to borrow a cup of sugar when I'm not home?" I found it hard to answer, but maybe the answer goes something like this:

     The difference between a law and a right comes when the entire community defends it without hesitation. If I have to go to court, then it's a law. If I can raise "the hue and cry," then it's more of a right. The spy movies and elite-killer television shows have their lead characters "sleep with one eye open." When my rights are secure, then I can sleep through the night. Knowing I don't have to worry about personal injury from fistfights in my workplace, for example, means I can confront bad work and be effusive in my praise and support for good work. I can take personal and professional stands. (Knowing I won't be fired by idiot bosses would be even better.)

     I remember what I think of as a typical American story. I was walking past an embassy, I forget whose, and there was a protester less than a meter from a police officer. He was yelling and pointing his finger a few centimeters from the officer's chest. So long as he didn't actually touch, the cop stood there and took the abuse. Do you want to try that in Cuba? How about France?

     While I can't define the difference, think of a right as something I don't have to defend, that others will cheerfully defend for me, that I expect to defend for others. A right is, well, it's the right thing to do!

     So what are these rights? In 1215 in England it was simply having law supersede royalty. That was a big deal, worth fighting for. By 1789 in the newly-formed United States, it was an entire Bill of Rights excluding laws favoring or hindering any religion, maintaining a free press, allowing a well-armed population, respecting our homes, protecting us from self-incrimination, guaranteeing a jury trial, prohibiting cruel and unusual punishment, et cetera.

     There's nothing here protecting a defendant from spouse testimony. Neither attorney-client nor doctor-patient privilege is asserted. There is no mention of privacy being a right. Yet, somehow, we have become comfortable with these additions to the framework defined two centuries ago. These changes came, I believe, (here we go again!) not because we discovered rights that were always there but because necessity drove us to invent them. A world of lawyers, doctors, cell phones, and surveillance cameras drives us to defend rights we didn't need in simpler times.

     The articulation of rights, like any good law, is a sequence of judgment calls that demands the best legal thinking we can muster. When we're done, we want rights we can live with, not only for ourselves, but for others. If you're going to make Internet access a right, then you better be comfortable that any of your neighbors can be your cyber-stalker. Those naked pictures you posed for at your roommate's bachelor party are going to bounce around the office, maybe now, maybe in ten years. If you believe in privacy rights, then can you define privacy in such a way that both you and your Internet-spy friend are protected. Remember, we're talking about rights, hard lines in the sand that we're comfortable not crossing, not even thinking about crossing.

     Never mind what the rhetoric says, no rights are self-evident and the only thing that makes them unalienable is our commitment to them as unassailable.

     Another example: When I was in graduate school, a libertarian fellow was attacking my view on nuclear power plants. At that time, there was sentiment that these plants were somehow dangerous to their surrounding communities and I suggested that communities should be able to act to keep them from being built. My libertarian friend had a canned example that no pushback was appropriate until some harm was done. I quipped back, "Would you stop a fellow who shot a gun into a crowd even though the first bullet didn't hit anybody?" He paused for a second and asked me where I got that example. Besides depressing me about being the only one who thinks of examples for himself instead of reading about them, it concerned me that people, even those whose politics I respect and admire, haven't thought through the full implications. (You can only imagine what I think of the follow-through of the big-government, to-hell-with-people's-rights political view.)

     HARD PROBLEM

     My point isn't to promote despair and certainly not to forgive sloppy thinking. Understanding the notion that law and rights are invention rather than discovery is challenging. It means rejecting the divinity and godliness of various written works from history. Leaning on science as an example of discovery is fraught with ultimate discomfort. Karl Popper recognized that a good scientist expects a future generation of science to supersede current theory and Thomas Kuhn defined that process in terms of "paradigms," a word whose later popularity irritated him.

     We need the same recognition in law and even rights. While the doctrines endure, the articulation of rights changes with circumstance. It's nice to take comfort in the godliness of our natural rights, but reality doesn't work that way. Even something as simple as right to life gets complicated in a world with organ donors and transplants, in a world of do-not-resuscitate (DNR) orders in hospitals. Does free speech seem the same in a world where a single Facebook accusation can go viral and idiots believe anything they read on the Internet? ("Was she really only twelve?" You get the idea.)

     If this sounds like I'm putting a far-greater responsibility on us than the religious-right, rights-given-by-god advocates would, then you would be absolutely right. We have tough choices to make and it doesn't make it easier when half the voters really don't get the principles in the first place. (Never mind which half, the fact that our country is divided the way it is means some half really doesn't get it.)