The truly philosophical inquirer into nature will not consider it a disgrace, that he is unable to explain every thing; he will wait, and labour with hope, tempered by humility – for the progress of discovery; – and he will feel that truth is more promoted by the minute and accurate examination of a few objects, than by any premature attempts at grand and universal theories.
– Sir Humphry Davy, Elements of Chemical Philosophy (1812)
Depending upon whom you ask, we may be living on the cusp of quite an interesting age. Perhaps it is the age of generative AI. Perhaps it is the age of AGI, where artificial general intelligence arrives to equal human intelligence across the latter’s very large span. Perhaps it is the quantum era. Perhaps it is indeed the quantum era that ushers in AGI… that maybe ushers in the age of superintelligence. When perhaps we humans learn amazing things… or get squashed like bugs.
Or perhaps the hype will prove quite the scientific dud. Either way—skeptical, optimistic, or downright paranoid—we might think about that quantum aspect. What ought the law, today, be learning from quantum science?
One answer, of course, is ‘next to nothing.’ “A 19th-century statute criminalizing the theft of goods is not ambiguous in its application to the theft of microwave ovens,” Justice Scalia once penned, and fascinating science may or may not call for changes in the law. On the other hand, sometimes it should. “What the ancients knew as ‘eavesdropping,’ we now call ‘electronic surveillance,” wrote Justice Douglas, “but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb.” And ‘digital is different’ became legal Fourth Amendment reality, for example, through a string of important Supreme Court opinions.
So, it’s worth some thought. And, inspired by books like Adam Kay’s Escape from Shadow Physics and Tobias Hürter’s Too Big for a Single Mind, by still vivid recollections of marveling at (and battling) Schrödinger’s wave equation in my days as an electrical engineer, and by many a conversation with my daughters working in contemporary quantum computing and mathematics, Rehabilitating Einstein – What Quantum Discomfort Can Teach the Criminal Law is a paper I’ve been meaning to write for several years. If the fates align, I soon enough will… before some brilliant scientist screws it all up by actually figuring out quantum reality.
For now, a fascinating recent survey by Nature prods me to write this post. To situate it, some background—
According to the so-called ‘Copenhagen interpretation’ favored by such brilliant minds as Niels Bohr and Werner Heisenberg, superposition is not merely a mathematical construct but also a physical reality. Particles really do exist in a probabilistic superposition of states until they are observed, at which point that wave function collapses into a single definite outcome.
Not everybody has been a fan. Albert Einstein was a famous skeptic, as was Erwin Schrödinger. Indeed, a correspondence between the two spurred Schrödinger to the thought experiment of the both dead and alive cat precisely to show the absurdity of Copenhagen thought—Schrödinger termed it a “burlesque case”… only to have the damn cat become a classic analogy to teach the ‘reality’ of physical quantum superposition. “I don’t believe that when I am not in my bedroom,” said Einstein, “my bed spreads out all over the room, and whenever I open the door and come in, it jumps into the corner.” In other words, while they understood the mathematics of entanglement and superposition, it does not necessarily follow that there is any match in physical reality—a different physical mechanism might be ‘arriving at the same place.’
Today, even as these quantum principles begin to do computing work (e.g., here and here—hey, how could you not be interested in quantum dirt?!)—that debate remains, as demonstrated by Nature’s poll. While the Bohr/Heisenberg ‘Copenhagen interpretation’ was the most favored in Nature’s study (36%), very few of even those respondents were confident in its view that quantum objects indeed exist in a probabilistic superposition of all possible states until observation—the stuff that drove Einstein to distraction. Others believe in an infinitely splitting multiverse, or that something altogether different is going on—who knows what—for which a mathematics of superposition and entanglement merely happens to predict some things correctly.
All of which is to say… contemporary physicists know a great deal, yet we still know next to nothing about our physical reality, including whether quantum effects in our brain (if there are ‘quantum effects’ anywhere, in the sense I’m using the term) might explain consciousness. Which seems pretty good reason to be humble when it comes to making assumptions about that brain that involve depriving human beings of their basic dignities and liberties. We may not only “embarrass the future,” as the Supreme Court likes to say; we may very well condemn ourselves. Given what we do know, we can’t any longer be collectively satisfied with theories like the ‘anger of Zeus’ or ‘god in the volcano,’ sure. But given what we do not know, nor can we yet comfortably consult the ‘altar of science’ when it comes to criminal judgment. We are forced to simply plow ahead, knowing we are driving blind.
Einstein and Schrödinger weren’t willing to accept the weirdness of quantum without being able to understand the why of it. Again, it wasn’t that they couldn’t understand the math—they were of course among those figuring that out. It was an inability to understand something more fundamental. “Quantum mechanics is very impressive,” Einstein would concede, “but an inner voice tells me that it is not yet the real thing. … [I]t does not bring us any closer to the secret of the Old One.” Given how many historic figures have considered rational, deterministic judgment as the singular spark of divinity in humanity, I am inclined to agree. But we still lack the science to be sure.
So, unable to know the why of human judgments, we ought to be unwilling to take any comfort in punishing others for not making judgments we think we wish they had. We’ve still got to do it, of course. Anarchy does not commend itself. So, along we proceed with criminal law because we must—our best thinking is that we need it to maintain a relatively safe and peaceable society. But we ought to proceed in great discomfort. We ought to be ready to shed our criminal theories and mechanisms just as soon as we logically are able, just as Einstein hoped to shed quantum weirdness. In the gem from Les Misérables, we’d do well to be as patient as we can.
And I think that’s what criminal law ought to learn from quantum. At least for now.
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