General Relativity and the Folly of Artificial Distinctions

I recently came across an article in the Harvard Law Review written by Lawrence Tribe entitled, “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics.” See Lawrence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 HVLR 1 (Nov. 1989). At first, I balked at the title because too often analogies to physics are used badly to bolster an argument where they have no place. But in the introduction, Tribe assures the reader that this is not his intent. Instead, the essay argues, “the central conceptual shifts represented in modern physics provide useful new ways of thinking and talking about law, legal argument and legal practice.” Id. at 3.  So I read on.

Tribe describes the shift from Newtonian Mechanics to General Relativity. In the Newtonian world, spacetime is a static  background upon which bodies are moved by forces. In General Relativity, spacetime is active. The mass of bodies upon spacetime cause it to curve and in turn, its curvature determines how bodies can move. 

In the “Newtonian” view of jurisprudence, the law is a static background  entity. Judges look at it and apply it, their actions causing no change to the law itself. A post-Newtonian view of the law, based on insights from General Relativity, better fits our modern intuitions about the law. Tribe argues:

Just as space cannot extricate itself from the unfolding story of physical reality, so also the law cannot extract itself from social structures; it cannot “step back,” establish an “Archimedean” reference point of detached neutrality, and selectively reach in, as though from the outside, to make fine-tuned adjustments to highly particularized conflicts. Each legal decision restructures the law itself, as well as the social setting in which law operates, because, like all human activity, the law is inevitably embroiled in the dialectical process whereby society is constantly recreating itself. Id. at 7-8.

See Student Comment, Page  7