This is going to be another post where I cast aspersions on the legal system from a position of relative ignorance. In fact, it’s that ignorance that I want to talk about in particular.
(also, I’m going to use ‘law’ to mean simply the standing rules and regulations of a society, including those of an anarchic society, although I’m aware that many anarchists are ‘against laws’ because they define ‘law’ slightly differently)
Because, why are we ok with the fact that we don’t really know what the law says? I mean, I could probably tell you a good number of legal facts, especially those most relevant to my life. But I doubt they would add up to 1% of the legal facts that there are, and even if we added in all those which I might have a chance of guessing based on common sense, I think it would still be a minority. And I don’t imagine many other people are much better off. In a word, law functions as a specialism.
Now we might be fine with that if we were dealing with a scientific discipine, or a complex craft – we’re not surprised that most people understand only a minority of medicine or of chemistry. But law’s not a scientific discipline, it’s a public creation, and it’s meant to be something that we all give assent to – indeed, which at some level exists because we all assent to it. And of course, it’s supposedly our responsibility to be familiar with it, because ignorance is not a defence.
So the idea of law suggests that everyone should have a fairly good working knowledge of it; but the reality of law is that almost nobody does. That’s pretty crap, isn’t it?
And the same point holds more generally as well. Most people probably couldn’t explain much about the committee system or how our legislature works, nor that much about the different levels of government and their interactions. But it’s supposedly being done on our behalf, and we are, hilariously enough, supposed to understand enough to hold our representatives accountable.
Is this inevitable? How has it arisen? I don’t have much patience for simply admonishing people to ‘educate themselves more’, nor to have informational videos shown in schools – if people have no interest in politics or law, and see them as remote and irrelevant, it makes more sense to wonder whether they might be substantially right than simply to encourage them to change their minds with inspiring buzzwords.
I’m not going to try to trace out the history of law and government in all their forms. But I will make a couple of abstract observations.
1) People tend to remember and understand what they interact with and actively use on a regular basis;
2) Things which must be interacted with and actively used by persons X on a regular basis tend to become intelligible to persons X.
That is, the process of use has effects in both directions – forcing a law (or other thing) to fit its users, and forcing the users to learn about it. Moreover, though:
3) How hard it is to remember and understand something will influence how much people use it;
That is, the process of use is also itself the effect of how well users and used fit together. A quick consideration of these general points indicates that this is liable to produce a system with a lot of feedback, that will settle into one of a small number of stable positions.
For instance, if only a small number of people understand and can apply the law, for whatever reason, then each new law that gets written will be adapted to this – it will only need to be understood by a small number of people who already know a lot of background and can dedicate a lot of time to studying it. This is liable to make those laws more complex than they would otherwise be, which will then further discourage people from outside the special group from studying it. This continues in a vicious cycle – although of course, the group itself will no doubt take deliberate action, where necessary, to safeguard its position.
This would lead to a situation where law was complex because only specialists used it, and only specialists used it because it was complex.
On the other hand, though, what if laws were, to begin with, used by almost everyone? Then each new law that gets written will be required to be as simple, readily intelligible, and straightforward as possible – which in turn would make it easier for the great majority of people to understand it, and this in turn would keep them using it, and maintain that pressure to keep the system simple.
As a result, law would be simple because everybody used it, and everybody used because it was simple.
What this would probably require would be to replace specialist and professional bodies with participatory ones. For instance, replace the police with a rotating militia of the able-bodied, replace managers and executives with temporarily-elected members of the workforce, and, most relevantly to our concerns here, replace professional appliers-of-the-law with people chosen by lot or by rotation from a pool of volunteers – rather as they did in democratic Athens.
Now, the model I’ve sketched here leaves out any question of whether, independently of these social forces, law needs to have a certain level of complexity – or rather, because clearly some such level is needed (we can imagine making a set of rules just too simple to give anyone any useful guidance), what is that level? It might, potentially, be so high that it’s inevitable that only specialists will understand it – that is, the second ‘stable point’ I laid out may in fact be unstable, because it would produce a dysfunctional legal system.
But I wouldn’t think so. The question is made difficult though by the fact that it’s hard to get answers to this question that aren’t someone’s ‘considered judgement’, a sort of ‘educated gut’ – which is liable to be significantly skewed by what sort of epxeriences they’ve had, what sort of system they’ve been working in (because for our emotional selves, often the limits of our experience come to seem like the limits of possibility).
Moreover, when you bring in more variables – how involved are people in politics, how long is the working day, what’s the general level of nutrition, etc. – it becomes, to my mind, very implausible that no possible combination of social factors could make the law(and politics, etc.)-as-genuinely-public-property a workable model.
So I think a good ideal to hold up and promote is to live in a society where the law is known and understood, in most of its essentials, by all citizens, and in which a specialised caste of law-experts, of legal advisers and legal representatives, and legal interpreters and so forth can be dispensed with because they are no longer needed.
PS. This would of course be a nice complement to a society in which that law was also made by all citizens through some form of direct democracy.
PPS. It’s easy to see this as a matter of one specialised class trying to defend its privileges against others, and also as a class issue (legal knowledge being mainly held by members of the upper classes), or a state-vs-society issue.
A less obvious lens through which to look at it might be an age thing. If law takes a lot of effort to learn, it’s more of an advantage, and more of a source of status, for those who have lived long enough to learn it, over younger people. I’m thinking here not just of the sort of law we have in modern societies, but also of sacred law, traditional law, custom, etc. How complex these are made (and how much access to that knowledge is restricted) will affect the balance of power across age gaps.