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blatherskiteIn the movie Hook, Robin Williams tells one of my favorite lawyer jokes. He begins by asking how lawyers are different from rats. His answer: Well first, there are fewer rats. Second, there are some things even a rat won't swallow. Third, and perhaps most importantly, nobody would object to performing painful and humiliating experiments on lawyers.
Despite my clearly vicious bias against lawyers, I attended this panel because the panelists (including Charles Stross and James Morrow) were a fascinating bunch, and I confess to a certain morbid curiosity about the topic of how legal systems will continue to abuse us in the future. After all, no matter how one feels about lawyers, laws seem somewhat inevitable, and where there are laws, there will always be lawyers.
My pet theory of humans is that as soon as you get three of us in a room together, and one person leaves, politics is spontaneously generated. Arguably, we only need two people, or one very confused person. But politics is just the start of the famous slippery slope. Bradford Lyau noted that a group of pretty much any size will evolve some form of codified law, and that fits with my reading of history. Not long after we have politics, legal systems develop, and then lawyers, and everything pretty much goes to hell from there on in. In Robert Heinlein's Time Enough for Love, one of the themes that few readers seem to comment on is how every so often, society accumulates enough politics and laws—and idiots—that the only sane solution for an intelligent being is to pack up, leave everything behind, and start over from scratch. I have some sympathy for that notion; jurisprudence is my favorite one-word oxymoron.
The positive side of a legal system is that it ostensibly makes everyone, including the government, equal before the eyes of the law. Well, perhaps not everyone. After all, we've seen many cases in modern times where legal equality is little more than a convenient fiction. The internment of Americans and Canadians of Japanese ancestry during World War II was a particularly shameful example in recent history, but any modern Black or Muslim can tell you how the legal system isn't nearly as colorblind as we might wish to believe. Ask any aboriginal peoples, including Native Americans in North America, about how well the law and treaties with federal and local governments protect their rights—but only if you want an earful. It's also true that the modern legal system in most countries favors the rich, since they can afford the best lawyers and can endure the longest lawsuits. One elegant way to solve this problem might be to let both parties in a lawsuit choose whoever they want for a lawyer and commit to paying for them no matter what happens subsequently, and then allow either party the right to take away the other party's lawyer. It would certainly level the playing field.
Okay, enough lawyer bashing. As I noted in my September post on genocide in fiction, fiction offers enough distance from the humanity of a situation that we can ask tough questions. For example, are artificial intelligences going to be protected by the law? Probably only to the extent that it's convenient for us—and frankly, having created them, there'd be little incentive for us to recognize them as sufficiently intelligent to be deserving of any civil or other rights. How about alien visitors? I'd like to think so, but the immigrant experience in current Western society doesn't give me much hope. On the other hand, if the aliens come to us, they'll outclass us so badly in the technology department we'd better hope they want to afford us any rights. I'm hoping to see the movie District 9, which examines some of this against a not so covert backdrop of what originally seemed to me to be apartheid-era South Africa. The alien experience under a human legal code was occasionally done brilliantly in the 1989 TV series Alien Nation (the pun on the word alienation was not accidental), something I'll need to watch again some day.
Legal systems can be surprising and strange, and not always intuitive. Charles Stross noted that the Scottish legal system allows a jury to reach three verdicts rather than the two that are familiar to North Americans: proven (the charge is correct), not guilty (the person is innocent), and not proven (we think they may have done it, but the evidence is insufficient to prove it either way). He also noted that the severity of punishment is less of a deterrent than the certainty of being caught. James Morrow noted that the great thing about the invention of the jury system is that for perhaps the first time in modern Western history, it placed control in the hands of more people than just the rich or powerful. However, he also noted that there are serious drawbacks, such as irrational decisions and juries who decide to make a political statement about an unpopular law, and that the law is an attempt to institutionalize morality (not necessarily of the religious kind). But the question is who decides that morality.
Justice (getting what you deserve) often takes strange forms. For example, "social Darwinism" long predates Darwin—Darwin only provided a scientific basis for it—but it provides a handy rationalization for denying justice to anyone who can't pass the moralist's screening criteria. A keen sense of justice seems to have been an important part of human evolutionary history, since even monkeys and apes have been shown to have a sense of injustice, and can get quite sulky or nasty when their comrades receive unwarranted rewards. But we may have reached the point in our evolution at which we're developing legal systems that no longer satisfy our inner monkey.
Kate Nepveu, a lawyer, noted that our current legal system assumes (as incorrectly as economists do) that humans are rational actors and that the truth can be found. Neither assumption is necessarily valid, at least if you define rational as "makes sense to me"; people often have very good reasons for doing things that seem to others to be irrational. When laws don't appear sensible to people, the laws get broken. Small breaches of small laws that make no sense lead to disrespect for progressively larger laws until the whole system breaks down. This may be why seemingly trivial actions such as aggressively preventing graffiti and littering in some neighborhoods is said to have dramatically lowered the local crime rate—though I'd want to see a good replicated study to state with confidence that this is anything like a real law of human nature. She mentioned the book Predictably Irrational as an exploration of this topic, and I think I'm going to try to track it down some day.
Nepveu had many interesting things to say (enough so that I changed a few of my original plans and stopped in at a few of her panels just to hear what she had to say). For example, she noted that civil law and some other forms are prescriptive and proactive. In contrast, other laws are reactive and are developed to deal with a specific situation rather than to provide more generally applicable guidance that would cover a range of situations; thus, many overly specific laws tend to accrete over time, leading to huge, illogical, mutually contradictory corpora that are only intelligible to lawyers. The phrase "ignorance of the law is no defence" seems somehow unjust when legislation grows so large and complex that the common man or woman has no hope of understanding it. This seemingly "metastatic law" (a phrase I coined while writing this blog post) is, as Nepveu noted, a particular problem when society hasn't yet figured out how they feel about some issue; the law soon becomes equally confused. Charles Stross picked up on this point by noting how draconian many modern laws related to the Internet have become, something I take to be a specific example of a broader phenomenon: when people don't understand something, they fear it and seek ways to feel a sense of some control, and laws are one such way of exerting control.
Since my blog is nominally about fiction, it's worth concluding on a fictional note. There's much room for drama and an interesting tale when competing bodies have overlapping jurisdictions, but with different guiding legal and other philosophies. I didn't record who said this (memory says Stross), but you can propose that there are certain fundamental principles that can be used to define any legal system: for example, laws must focus on physical, mental, or economic damage, and everything else is just details. Combine this with the notion of clashing philosophies or jurisdictions and legal or other issues that society hasn't yet reached consensus about, and there's much room for interesting fiction.
Despite my clearly vicious bias against lawyers, I attended this panel because the panelists (including Charles Stross and James Morrow) were a fascinating bunch, and I confess to a certain morbid curiosity about the topic of how legal systems will continue to abuse us in the future. After all, no matter how one feels about lawyers, laws seem somewhat inevitable, and where there are laws, there will always be lawyers.
My pet theory of humans is that as soon as you get three of us in a room together, and one person leaves, politics is spontaneously generated. Arguably, we only need two people, or one very confused person. But politics is just the start of the famous slippery slope. Bradford Lyau noted that a group of pretty much any size will evolve some form of codified law, and that fits with my reading of history. Not long after we have politics, legal systems develop, and then lawyers, and everything pretty much goes to hell from there on in. In Robert Heinlein's Time Enough for Love, one of the themes that few readers seem to comment on is how every so often, society accumulates enough politics and laws—and idiots—that the only sane solution for an intelligent being is to pack up, leave everything behind, and start over from scratch. I have some sympathy for that notion; jurisprudence is my favorite one-word oxymoron.
The positive side of a legal system is that it ostensibly makes everyone, including the government, equal before the eyes of the law. Well, perhaps not everyone. After all, we've seen many cases in modern times where legal equality is little more than a convenient fiction. The internment of Americans and Canadians of Japanese ancestry during World War II was a particularly shameful example in recent history, but any modern Black or Muslim can tell you how the legal system isn't nearly as colorblind as we might wish to believe. Ask any aboriginal peoples, including Native Americans in North America, about how well the law and treaties with federal and local governments protect their rights—but only if you want an earful. It's also true that the modern legal system in most countries favors the rich, since they can afford the best lawyers and can endure the longest lawsuits. One elegant way to solve this problem might be to let both parties in a lawsuit choose whoever they want for a lawyer and commit to paying for them no matter what happens subsequently, and then allow either party the right to take away the other party's lawyer. It would certainly level the playing field.
Okay, enough lawyer bashing. As I noted in my September post on genocide in fiction, fiction offers enough distance from the humanity of a situation that we can ask tough questions. For example, are artificial intelligences going to be protected by the law? Probably only to the extent that it's convenient for us—and frankly, having created them, there'd be little incentive for us to recognize them as sufficiently intelligent to be deserving of any civil or other rights. How about alien visitors? I'd like to think so, but the immigrant experience in current Western society doesn't give me much hope. On the other hand, if the aliens come to us, they'll outclass us so badly in the technology department we'd better hope they want to afford us any rights. I'm hoping to see the movie District 9, which examines some of this against a not so covert backdrop of what originally seemed to me to be apartheid-era South Africa. The alien experience under a human legal code was occasionally done brilliantly in the 1989 TV series Alien Nation (the pun on the word alienation was not accidental), something I'll need to watch again some day.
Legal systems can be surprising and strange, and not always intuitive. Charles Stross noted that the Scottish legal system allows a jury to reach three verdicts rather than the two that are familiar to North Americans: proven (the charge is correct), not guilty (the person is innocent), and not proven (we think they may have done it, but the evidence is insufficient to prove it either way). He also noted that the severity of punishment is less of a deterrent than the certainty of being caught. James Morrow noted that the great thing about the invention of the jury system is that for perhaps the first time in modern Western history, it placed control in the hands of more people than just the rich or powerful. However, he also noted that there are serious drawbacks, such as irrational decisions and juries who decide to make a political statement about an unpopular law, and that the law is an attempt to institutionalize morality (not necessarily of the religious kind). But the question is who decides that morality.
Justice (getting what you deserve) often takes strange forms. For example, "social Darwinism" long predates Darwin—Darwin only provided a scientific basis for it—but it provides a handy rationalization for denying justice to anyone who can't pass the moralist's screening criteria. A keen sense of justice seems to have been an important part of human evolutionary history, since even monkeys and apes have been shown to have a sense of injustice, and can get quite sulky or nasty when their comrades receive unwarranted rewards. But we may have reached the point in our evolution at which we're developing legal systems that no longer satisfy our inner monkey.
Kate Nepveu, a lawyer, noted that our current legal system assumes (as incorrectly as economists do) that humans are rational actors and that the truth can be found. Neither assumption is necessarily valid, at least if you define rational as "makes sense to me"; people often have very good reasons for doing things that seem to others to be irrational. When laws don't appear sensible to people, the laws get broken. Small breaches of small laws that make no sense lead to disrespect for progressively larger laws until the whole system breaks down. This may be why seemingly trivial actions such as aggressively preventing graffiti and littering in some neighborhoods is said to have dramatically lowered the local crime rate—though I'd want to see a good replicated study to state with confidence that this is anything like a real law of human nature. She mentioned the book Predictably Irrational as an exploration of this topic, and I think I'm going to try to track it down some day.
Nepveu had many interesting things to say (enough so that I changed a few of my original plans and stopped in at a few of her panels just to hear what she had to say). For example, she noted that civil law and some other forms are prescriptive and proactive. In contrast, other laws are reactive and are developed to deal with a specific situation rather than to provide more generally applicable guidance that would cover a range of situations; thus, many overly specific laws tend to accrete over time, leading to huge, illogical, mutually contradictory corpora that are only intelligible to lawyers. The phrase "ignorance of the law is no defence" seems somehow unjust when legislation grows so large and complex that the common man or woman has no hope of understanding it. This seemingly "metastatic law" (a phrase I coined while writing this blog post) is, as Nepveu noted, a particular problem when society hasn't yet figured out how they feel about some issue; the law soon becomes equally confused. Charles Stross picked up on this point by noting how draconian many modern laws related to the Internet have become, something I take to be a specific example of a broader phenomenon: when people don't understand something, they fear it and seek ways to feel a sense of some control, and laws are one such way of exerting control.
Since my blog is nominally about fiction, it's worth concluding on a fictional note. There's much room for drama and an interesting tale when competing bodies have overlapping jurisdictions, but with different guiding legal and other philosophies. I didn't record who said this (memory says Stross), but you can propose that there are certain fundamental principles that can be used to define any legal system: for example, laws must focus on physical, mental, or economic damage, and everything else is just details. Combine this with the notion of clashing philosophies or jurisdictions and legal or other issues that society hasn't yet reached consensus about, and there's much room for interesting fiction.
(no subject)
Date: 2009-10-17 10:59 pm (UTC)Alternatives to lawyers
Date: 2009-10-18 11:20 am (UTC)I have this naive and idealistic notion that the legal system should support the negotiation of consensus rather than requiring expensive lawyers to deal with incomprehensible laws. I make my living as an editor, with the goal of making even complex concepts comprehensible; I generally succeed, even for my Chinese physicist authors writing in their second language (English). Lawyers make their living ensuring that only other lawyers can understand or remember the corpus of law. We are therefore natural enemies, much like cats and dogs. (I have the same axe to grind against postmodernism and cultural studies: often they have brilliant insights, but cloak them in impenetrable prose.) Also like cats and dogs, we could get along together happily if our goals were compatible.
I once asked a lawyer why the laws were written so incomprehensibly. He replied that it was to ensure precision, and that the writing was sufficiently unequivocal that all parties could understand the words perfectly, and he claimed that no lay writer could ensure this. When I asked why jurisprudence was necessary instead of just reading the unequivocal and precise laws, and why so many contracts ended in conflicts over incompatible interpretations of obscure wording, he quickly changed the subject.
A good lawyer is worth their weight in gold when it comes to negotiating the legal system, and many are both ethical and interested in upholding the spirit of the law rather than just its letter. If more lawyers believed in that philosophy, there'd be fewer lawyer jokes.
More Worldcon musings: Future legal systems
Date: 2009-10-18 12:53 am (UTC)Why is [your favorite research center] substituting lawyers for rats?
Lawyers are more plentiful than rats.
The lab assistants don't fall in love with the lawyers.
There are some things a rat just won't do.
JakeR
Broken Windows
Date: 2009-10-19 09:49 pm (UTC)link (http://www.city-journal.org/2009/nytom_ny-crime-decline.html#gk)
Brent Buckner commenting as Anonymous
Re: Broken Windows
Date: 2009-10-20 01:33 pm (UTC)