The purpose of law is three fold--to provide rules within a society, to deter certain activities and to provide for punishment or compensation for illegal behavior. All systems of law are based upon the notion of natural justice, or are descended from systems of natural justice. As is commonly understood, justice involves everyone reaping as they have sown, no more, and no less. Thus, all disputes about the justice of any situation center on what the deserved consequences of actions are. There has been general agreement among men of many of these deserved consequences. Indeed, the notions of an eye for an eye, or a tooth for a tooth, or exact compensation for damages have been in legal use since ancient times, as evidenced by the code of Hammurabi, or the Laws of Manu, or the Hebrew Pentateuch. Nevertheless, all legal reasoning is based on circumstantial and therefore uncertain evidence, and judges and juries have to make judgments--there are no mathematical formulas, save in narrow areas of criminal law, where honest proceedings can lead to just results in the sense outlined above. We also have to recognize that mature areas of the law are not generally areas of dispute--disputes always arise in areas where the understanding of rights and obligations of different parties is not clear.
The Law today in many countries is derived from English jurisprudence, wherein the accused is presumed innocent unless proven guilty. The system is based on the notion of individuals possessing some rights which are inviolable. And it is these rights that are stated eloquently in the American Declaration of Independence, 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.' The Commentaries on the Laws of England by Sir William Blackstone still remains the best summary of this common law tradition, as borne out by its presence on the shelves of most lawyers.
There are other legal traditions, such as the civil law or inquisitorial justice systems of continental Europe, where an individual's record is maintained in the police files even when acquitted in legal proceedings. In these systems, perhaps, state or community interest is deemed supreme, while common law or adversarial systems aim at protecting the individual through a legal contest under an impartial referee. Indeed, these inquisitorial systems exist even in Common Law countries--such as the systems that penalize traffic violations, or other administrative tribunals, or institutions that terminate membership or privileges when members are accused of some wrong-doing (though never convicted).
While laws are instituted and executed to ensure justice, they may do so only indirectly.There are three ways in which this occurs. The first is that legal proceedings are expensive, and it is seldom that both parties to a dispute have access to equal resource levels in a dispute. Examples are rich citizens versus poor citizens, or the government versus private individuals. Fair contests occur when wealthy individuals or groups confront each other or the state--it is in these contests that the law becomes clarified, and society obtains clearer guidelines for behavior. The second is that most people in stable societies are law abiding, for it is far easier to be law abiding than to be law breakers. Thus, when most members of society accept that the present system of laws, even with its flaws, is much better than alternatives they can think of or agree upon, they will naturally follow those laws. Thirdly, so long as most individuals in a society believe their laws and their administration to be just, they will not desire any drastic changes. Thus, the appearance of justice, in accord with the beliefs of members of a society about justice may be the prime cause of law and order in societies. This appearance of justice is maintained so long as most people are not forced to be embroiled in legal disputes, and there aren't too many examples of dispute resolution that offend the notion of justice in members of that society.
In what follows, we will discuss the problems facing modern legal systems, without specific reference to any particular system. For our object is to determine specific problems and approaches to their solution using the increasing interconnectedness of society.
The principal direct functions performed by legal systems are the following: the collection and presentation of evidence, the rendering of judgments or decisions based upon that evidence, and the execution of those judgments. Each of these steps presents unique problems in a world of growing connectivity and movement. In simpler times, the collection of evidence was inexpensive, as the number of possible suspects in a crime was small (usually not more than all of the people in the village), and the number of methods used by them in a crime was also small (not too many technologies known or available to exploit). The presentation of evidence was also easy as everyone knew the principles or cause effect relationships involved--these concepts were part of common knowledge: the judge and jury, the disputants, the witnesses, and the attendees of the proceedings, all understood what was being discussed. Moreover, most everyone in a small society knew most everyone else to some extent, societies were hierarchical, and most everyone knew their place, and did not resist exploitation because they did not see any alternatives; this made most crimes rarer. Further, many acts that would be considered criminal today weren't on the books then. Exploitation and slavery of different varieties were also an accepted fact of life. Thought control and political correctness did not then exist, for none was powerful enough to enforce such laws. There were generally no prohibitions on varieties of commerce considered illegal in many countries today. Thus, the only crimes in the book were the basic violations of individual life, liberty or property, or breach of contract--all of which are significantly easier to establish than many crimes under modern laws. Because of limited uncertainty in the facts and the universal understanding of those few facts, rendering correct judgments was also easier. The rarity of crime also made most enforcement easier--though criminals could easily escape to other jurisdictions or become outlaws. The laws were generally harsh, and death sentences were generously doled out, and economized on the efforts to curb criminal tendencies. As societies were poorer, they could not afford the re-education and reform of criminals that our prosperous societies can afford. They typically set harsh punishments to deter most others from following in the footsteps of criminals. For cases of breach of contract, punishment was always direct--exact to double compensation for losses. People went to debtors prison, or worked as bondmen until they paid off their debts or damages.
1) Legal Assumption; an Old Habit.
Aristotle, in the Nicomachean Ethics (book five), wrote of the necessity of law being written in general terms:
"The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms. Where, then, it is necessary to speak in general terms, but impossible to do so correctly, the legislator lays down that which holds good for the majority of cases, being quite aware that it does not hold good for all."
But Aristotle did not have the internet. In fact, the closest thing to such a massive forum for a democratic exchange of ideas was the city council, and that was available only to a select few. That Aristotle valued laws being writ for the "majority" was simply out of necessity, meaning that it was quite literally impossible to presume how every single individual citizen would value the law. Thus to write laws pertaining to the majority was to guarantee the least amount of misrepresented individuals. Can we say today that we are equally obstructed from accessing information on how the individual wishes to be represented? Doesn't the ability of mass collaboration change everything?
"As the Chief Justice of the Supreme Court of Canada, Madame Justice Beverly McLaughlin, recently stated at a recent Canadian Bar Association meeting, access to justice is a basic right, just as education or health care are considered to be. She also issued an urgent call to action to governments, lawyers and judges to find solutions to the access-to-justice “crisis” jeopardizing the country's legal system, which has now become too expensive and complicated for the vast majority of Canadians. This is a pressing problem in which we all play a role in finding the solution."
Shouldn't technology be able to change this?
This is a rather important topic--affecting all. Understanding the workings of the law here may help to device solutions to the great expense and time involved in using current systems. Not only do better systems have to be designed, but we also need means for transitioning from the present systems to those better systems. Positing unworkable ideals, or positing ideal systems without the means to put them into practice does not serve any purpose. Socialism worldwide presents an example of utopian ideals leading in practice to serfdom, sometimes gradually, and sometimes rapidly.
contributed by Kartik Ariyur on May 16 5:49pm
Wikinomics and the Law Industry
Law “industry”? Isn’t that an oxymoron? Unfortunately not. Whether viewed from the perspective of the percentage of GDP related to the provision of legal services, the presence of numerous large law firms among lists of largest privately held companies, or by the response of a consumer dealing with a prepaid legal plan, the provision of legal services in North America (and the US in particular) has become a significant industry. As an industry, though, it often competes with one arm tied behind its back – stringent rules on conflicts of interest that would make most businesspeople laugh, restrictions on advertising, on cross-disciplinary practice (e.g. practicing law and accounting under one roof)and others. Its biggest debility, though, is one of internal mindset. Until perhaps 20 years ago, law firms acted as closed, clubby enclaves rather than as businesses. Law schools did not prepare lawyers to be managers of a business and it showed. When the restrictions were eased somewhat, the more entrepreneurially-oriented among lawyers saw the opportunity (actually, necessity) of operating their firms like a business. Larger firms hired professional managers, marketing directors, even non-lawyer CEOs. The mindset of legal practice and business practice being separate spheres began to collapse.
But not disappear. The practice of law is inherently conservative – practitioners make reference to precedent – what a prior judge did or decided, regardless of how long ago – in order to argue what should happen now.This leads to a mindset (or attracts people who are already of such mindset) of conservatism and slow adoption of change. Another aspect of the legal mindset is its adversarial nature – whether directly (in litigation-oriented spheres) or indirectly (in more “cooperative” spheres such as transactional practice). Even when parties seem to be collaborating, as in a transactional context, the attitude remains one of non-cooperation, of viewing the negotiation or transaction as a zero-sum game. A third factor contributing to lawyer mindset is secrecy,albeit necessitated, to a degree, by attorney-client confidentiality requirements.Conservatism, secrecy, adversarial posture – where is there room for the wikinomics revolution here?
The answer – everywhere! For example, smaller and medium size firms without the access to the large databases of form agreements and legal briefs that large firms have can collaborate to create virtual databases of these documents, wikified to get the “kinks” out. Wiki –style collaboration can also enable (subject to those nasty ethical rules again) smaller to medium sized firms to expand their reach across jurisdictional lines and identify appropriate co-counsel in other jurisdictions when their services are necessary (it’s a great way to pre-test actually working with these people rather than simply plucking their names from a directory). Wiki-style collaboration could also lead to the establishment of that long-held chimera, the “virtual” law firm, enabling smaller groups of lawyers to hold themselves out as being larger and deeper in experience.Firms of all sizes can create blogs about particular judges’ propensities (a favorite piece of information among litigators, which may finally pit their inherent propensity for silence against their egos and love for the sound of their own voices).Larger firms could use blogs by their more senior partners or department heads as an interactive form of (or substitute for) email.Firms of all sizes could (and are finally beginning to) use blogs as a marketing tool to differentiate themselves from their competition. The issue here is creative thinking, something lawyers pride themselves on but more often than not sorely lack.While many aspects of the lawyer mindset are an impediment to the enactment and flourishing of wikinomics, the sheer impelling force of the model will, at some point, win out. As with many questions of competition, the question is – who will the first movers be and will that be to their advantage. Here, the field is wide open and the evidence in favor of succcessful adoption is great. The only thing needed is creativity and guts.
Page Last Updated: Jan 5 2:41pm by Neil Jacobs