Lessig's Pathetic Dot Model

• Imaginary Encounter on the Clapham Omnibus

Oh Jung launches a green public relations agency but finds her skiving staff more passionate about hobnobbing with one another in their pea-coloured pantry than with environment journalists and sustainability campaigners. She ponders her options: Announce a rule fining usage of the pantry outside lunch hour? That would earn her a reputation as a 'draconian bitch'. Start an in-firm campaign about minimal pantry usage? A 'preachy, micromanaging alpha hen'. Frame the fine as a 'facility usage fee' charged per five minutes? 'Madame Scrooge'. At least that last one does not demean the female gender. But wait, Oh Jung has a flash of inspiration! She will plant transparent bags of dried mealworms on the pantry tabletop and cupboard shelves as part of a sustainable eating initiative. After all, didn't experts say that insects are a rich source of protein that will be the future of food? She crunches down on one of the creepy-crawlies with a devilish grin.

• What is Lessig's Pathetic Dot Model?

American political activist, open technology access advocate and law professor Lawrence Lessig popularised in his book Code and Other Laws of Cyberspace, released in 1999 and last formally updated in 2006,*1*2 the idea that four modalities of regulations govern people's behaviour in any area of activity and law is only one of them. The other three are: norms, the market, and architecture. Here, norms refer to behavioural standards that must be complied with to avoid criticism and sanctions by a community, the market concerns the control of availability and affordability through production costs and the pricing of goods and services, and architecture refers to physical configurations, be they gadget designs, web interfaces, city layouts*3, temporal spacing of activities,*4 or actual building structures. Lessig visualised the individual as a 'pathetic dot' subject to these four forces. So might an employee who learns Oh Jung's true goal and her four options (rule, instilled expectation, price, physical arrangement).

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• How Can Lessig's Four Modalities of Regulation be Realised? 

Take the case of fastening seat belts. The four forces may compel a driver to buckle up, three of which would probably tie her down even in an anarchy:

1. Law—As everyone knows, legislation in many countries would fine her for not wearing it.
2. Norms—Public awareness campaigns over the decades have so powerfully shaped people's beliefs about the importance of wearing one that her passengers, neighbouring drivers and anyone else in the know would likely cast looks of contempt or concern if she wilfully refused to wear one. In fact, these looks are unnecessary in most cases because she herself has more often than not been conditioned to frown upon the possibility of driving without a fastened seat belt.*5
3. The market—Insurance companies might reject accident claims upon discovering her negligence to fasten up.
4. Architecture—Vehicles might be designed to be drivable only after their systems register the seat belts clicking into place.

Conceivably, the four modalities can be used to influence not merely the presence or absence of a behaviour but also its timing, locations and types of participants. Some real-life examples include:

1. Law—Employment laws stipulating wage surcharges for overnight work in Colombia*6 and racial segregation laws enforced in the United States until the mid-1960s
2. Norms—Notions about acceptable hours for casual social visits, occasions to avoid swearing, and gender duties around the house
3. The market—Peak hour pricing for cabs and leisure spots connected to minority-populated neighbourhoods by infrastructure impossible to traverse with cheap transport options minorities can only afford*7
4. Architecture—Unsheltered exercise park versus air-conditioned gyms usable during summer noons and, for the infrastructure in the previous point, highways with low overpass structures overhead that would block public buses

 As you may have noticed, the four modalities interact. Architecture and the market can collude to block poor minorities' access to prestigious leisure spots. When the same happens with access to education, information and professional development resources, they have the potential to entrench the existing class structure, which may in turn limit the diversity of lawmakers and legal scholars, thereby restricting law reforms and legal thought development. Norms, markets and architecture can also trump laws directly by engendering disrespect for the rule of law, especially among the governing elite, and impeding financial and physical access to legal resources. Potentially positive interactions exist as well: norms of orderliness and cooperation that foster legal compliance, law-enforcing and norms-improving architectural elements like blue lights that hinder drug injection in sheltered public areas, judicial opinions*8 and statutory reforms taking the lead from evolving moral customs, etc.

Critically, law has the power to shape the other three modalities:

1. Norms—Law frequently shapes norms in the sense that, in places that uphold the rule of law, lawfulness tends to be associated with morality. More than that, law can mandate behavioural education efforts,*9 provide the institutional, manpower and financial support for public awareness campaigns, and empower governmental agencies to set guidelines that are not strictly legally binding or directly enforceable yet are persuasive as standards of conduct.
2. The market—Law compels contracting parties to keep their promises, safeguards properties (landed, intellectual, etc.) purchased and regulates currencies.*10 Not only that, it enforces taxes and subsidies that adjust market conditions.*11
3. Architecture—The existence of statutory building requirements, zoning laws and product regulations is well-known. But even beyond that, legislation can confer on government agencies some scope of discretionary power to govern various infrastructure and product designs.

In the seat belt examples above, law can demand that driving licence applicants learn about the importance of fastening the belts, assign the task of drilling this effectively to the appropriate government departments, withhold any government subsidies of auto insurance payouts when accident victims did not belt up, and prohibit sales of cars that can be driven without seat belts in place.*12

• Strengths of the Four Modalities Model

1. As in Oh Jung's imagination, the use of less apparent regulatory forces may, rightfully or wrongfully, lessen perceptions of tyranny and oppressiveness.
2. To the extent that law devolves rule-setting powers and/or leaves the burden of shaping behaviour to the other three modalities, the legal system can be streamlined, making it easier to manage and navigate. Legal resources may also be utilised in a more economical fashion as a result.
3. The three non-legal modalities can complement law. Community policing and self-policing, in the case of norms, reach where law enforcement officers, limited in numbers and nowhere omniscient and omnipresent, cannot reach. Powerful still are market scarcity and physical barriers that choke would-be wrongdoers of resources necessary for misdeeds, rendering the targeted behaviour next to impossible.
4. Norms address the root of the problem: undesirability of the targeted behaviour. In so doing, they win thinkers and movers over to the cause, facilitating reforms on the other three fronts.
5. Compared to laws and norms, markets and architecture generally do not require knowledge of them on the part of would-be wrongdoers to forestall misdeeds.*13 A lock blocks a door whether or not a thief*14 foresees it doing so and whether or not she realises that stealing is wrong. The caveat is that misdeeds are often multisegmented, so mechanisms have to be in place upstream enough to prevent collateral damage. Without a secured main entrance, the thief may trespass into a museum, tamper with electrical circuits and assault all guards in the way before realising that the door to a coveted artwork is locked.
6. Compared to laws and norms, markets and architecture generally do not depend on retributive actions pursued after the event (i.e. ex post) to forestall misdeeds. A lock prevents thefts whether or not the thief gambles on evading arrest and whether or not the local police and court system have proven competent enough in punishing criminals to convince her otherwise. 
7. By doing without human intermediaries, automated markets and physical mechanisms reduce the need for manpower and forestall biased policing. However, since human judgment is still required in the design process, some risk of discrimination remains. This is perhaps less of an issue in scenarios where these markets and mechanisms arise spontaneously by happenstance, without any participant's intention.

• Vulnerable Spots

1. Instead of protecting personal autonomy, the use of less apparent regulatory forces may be seen as underregulation and shirking of responsibility if, as is more often than not the case even with direct legal responses, problems remain.
2. Application of indirect modalities of regulation without upfront disclosure of their regulatory nature may strike shrewd individuals who see them for what they are as wile, undermining respect for and faith in the system. That, in turn, ramps up the difficulty of securing broad cooperation for successful regulation in general. 
3. Undisclosed indirect regulation also results in lack of transparency and potential misunderstandings about provenance and responsibility.*15 A patient critical of public authorities may nevertheless comply with government-mandated family planning advice a physician dispenses in the belief that the physician is sharing her own professional opinion.*16 With societal norms propagated outside professional contexts (even if, as an under-noticed fact, they first started in those contexts) and seemingly natural market forces and architecture, the tendency for ordinary people to take the state of affairs for granted may be stronger. When public discourse does occur, blame may be pinned on the wrong factors and parties until visible human intermediaries like the said physician are directly interrogated. All these impede efficient and timely reforms to the system.
4. Norms bring along with them the threat of mob rule. Compared to laws, the formation of social customs appears to be more heavily driven by instincts, untested beliefs and prejudice, and less by robust evidence and reasoning. A case in point is none other than society's double standards in its reactions to male assertiveness and female assertiveness.*17*18
5. Like laws, norms take time to be communicated and internalised.*19 Unlike laws, norms can be fuzzy to read and slow to spread. Individuals who are bad at reading norms for some reason (e.g. unfamiliarity with a new culture, autism) may perceive them only after sustaining punitive action.
6. Responses to market rule are not easy to predict, owing to the limitations of the homo economicus model. Sometimes, financial incentives backfire because they tarnish qualities (possible examples: image of selflessness, independence) people value more than money. Sometimes, higher prices signal prestige and thus desirability.
7. When unaccompanied by the corresponding norms, laws, markets and architecture are vulnerable to change and circumvention. Indeed, a study published in 1980 found that 41.6% of motorists driving vehicles with belt inducement systems defeated the systems by disconnecting the mechanisms, fastening belts behind them, etc.*20 While improvements are frequently possible, regulators will probably find themselves in perpetual cat-and-mouse games. 
8. Precisely because of the absence of human intermediaries, automated markets and physical mechanisms*21 can be inflexible. The current debate on self-driving cars and other robotic products and services already offers plenty of fodder for thought. In the opening scenario, Oh Jung might unfairly terrorise any diligent employee popping into the pantry out of genuine need for bodily fuel.

• Food for Thought

Lawrence Lessig's model appeals with its simultaneous simplicity and mind-opening quality. It is also this mind-opening quality that inspires one to look at its simplicity from fresh angles. Three questions emerge in the process.

First, are only four modalities of regulation plausible? Information control (see 'Acoustic Separation') and subtle psychological influence (see 'Nudge') are also means of modulating behaviour, but they do not seem to fit neatly into 'Law', 'Norms', 'Market' or 'Architecture'. Not all information concerns right and wrong (norms); the message may try to shape perceptions of market availability or architectural permissibility instead. Subtle psychological influence does not always necessitate norm manipulation either, since it may impact only private and subconscious decisions. Neither does it always necessitate market or architectural manipulation (e.g. visual display of water usage through complimentary smart shower devices), because messages can be conveyed in words (e.g. ranking of water usage in neighbourhood), as with norms. A four-modalities model may restrict our sight and imagination.

Second, what if the quest of discerning invisible forms of regulation is extended to discerning invisible forms of each modality? In the case of markets, there exist non-monetary currencies like power, emotional labour and time which can be exchanged for coveted items and treatment, as when graduate students, salaried or unsalaried, act obsequiously to remain in a professor's good graces. Although there is a substantial body of literature on such currencies, a bird's eye view of how each can be organised for behavioural modulation would still be beneficial. In the case of architecture, physical structures can possess symbolic, emotional and reactive dimensions depending on associated narratives, inhabitant mix, etc. and even, as another law academic Karen Yeung suggests,*22 reside within the human dot's body (i.e. biological interventions). 

Third, does the portrayal of an individual as a 'pathetic dot' surrounded by four great forces miss the larger picture? As evident from the discussion so far, people regulated are capable of modulating each modality of regulation, whether by peer influence, resistance, escape or retaliation. In many instances, they, like Oh Jung, double as regulators in various circles of life. And in functional democracies nowadays, laws, not least, originate from ordinary citizens who elect lawmakers*23 and convey their opinions through referendums, public consultation exercises, etc. Moreover, even at the top level, regulators do not always work in perfect harmony—in some places, they may well generate synergistic effects; in others, they contradict and even compete with one another. A third academic, Andrew Murray, pointed out that individuals have the ability to gather and communicate, acting simultaneously as regulatees and regulators in a complicated web where action at one point produces changes that are hard to forecast at the others.*24 He christened this web the 'Active Dot Matrix'.*25 By contrast, to characterise those regulated as pathetic dots is to risk blinding them to their responsibilities and potential to help themselves.

In a nutshell, while Lessig's enlightening model is a great reminder to look beyond the obvious in spotting and working with mechanisms of group/collective control, it should be but a starter.

• More Servings

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*1:Lawrence Lessig, 'About' (Code v2) <http://codev2.cc/about/> accessed 29 May 2018 (mentioning a wiki for readers' updates at any time).

*2:Lawrence Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (Basic Books 2006).

*3:Lawrence Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (Basic Books 2006) 127.

*4:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 132.

*5:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 343.

*6:Carlos Sandoval, 'Colombia' in Ernst & Young (ed), Strategic Global Topics Spring 2017 edition - Wage & Hour Law (Ernst & Young 2017) 13.

*7:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 128.

*8:E.g. Hewer v Bryant [1970] 1 QB 357, 369.

*9:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 129.

*10:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 127.

*11:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 127.

*12:A similar series of examples can be found in Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 130.

*13:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 344-45.

*14:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 344 (invoking an example of a thief prevented from committing theft regardless of her knowledge that an object is a lock blocking the door).

*15:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 133.

*16:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 133-34.

*17:Hannah Riley Bowles, Linda Babcock, and Lei Lai, 'Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask' (2007) 103 Organ Behav Hum Decis Process 84.

*18:Peggy Klaus, 'Neither Men Nor Mice' The New York Times (New York, 7 March 2010) BU10.

*19:Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (n 2) 345 ('Law and norms can be made more code-like the more they are internalized, but internalization takes work.').

*20:E Scott Geller, John G Casali, and Richard P Johnson, 'Seat belt usage: A potential target for applied behavior analysis' (1980) 13 J Appl Behav Anal 669, 672.

*21:Karen Yeung, 'Are design-based regulatory instruments legitimate?' (2014) King's College London Law School Research Paper No. 2015-27, 14 <http://dx.doi.org/10.2139/ssrn.2570280> accessed 12 June 2018.

*22:Yeung.

*23:Andrew D Murray, Information Technology Law: The Law and Society (3rd edn, Oxford University Press 2016) 73.

*24:Andrew D Murray, 'Conceptualising the Post-Regulatory (Cyber)state' in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing 2008) 301 and 303.

*25:Murray (n 24) 301.