I’m a lawyer and I read this article (and have read others along the same lines) with great interest.
Within the law, there are some many areas which may seem simple, but have extraordinary complexity and depth. The “discovery” phase of litigation—which this article focuses on—is not one of these areas.
I suppose innovative technology represents a threat to my current livelihood (although there’s still plenty of lower-hanging fruit left between the machines and my own job). But on an emotional level, given a zero-sum competition between the machines and the legal industry in its current ridiculously bloated form (at least in America), I find myself rooting for the machines.
I’ve read that (U.S.) law is basically contradictory: you can start with generally accepted legal principles and derive both a conclusion and its negation.
I suspect that computers are going to have a hard time dealing with this. ;)
Law students are certainly sometimes called to argue both sides of an ambiguous question, and litigators have to argue on behalf of their clients. Furthermore, the big, famous cases in America are almost always Supreme Court cases. But any case that makes it to the Supreme Court has survived intense selection pressure. The overwhelming number of cases that are actually litigated are resolved in the lower courts. A greater number of potential cases are settled or resolved before trial. The law is mostly confusing only at at the very distant margins.
I don’t know that U.S. law in general is more contradictory than any other legal system intended to govern human behavior—it is made by humans, expressed in human language, and is finite in length—all the law libraries in the world are too short to anticipate the full range of possible human activity. That leaves a huge area of ambiguity under any system of law.
The author of that law review article cited above confused me. On the one hand, he started out by evoking the “nightmare vision” of Orwell’s 1984. But the stated goal of his essay is “to establish three points: 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society’s power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law.”
This sure wasn’t Orwell’s goal. In 1984 there was no law. Also, as Orwell explained in Why I Write:
Here one comes upon an all-important English trait: the respect for constituitionalism and legality, the belief in ‘the law’ as something above the state and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.
It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this, everyone takes for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like ‘They can’t run me in; I haven’t done anything wrong’, or ‘They can’t do that; it’s against the law’, are part of the atmosphere of England...Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. The totalitarian idea that there is no such thing as law, there is only power, has never taken root.
It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense, legal rules are never clear, and if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions, it makes it possible to take the first step on the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.
This is a long spiel, mostly about things that have been rattling around in my own head for a while—sorry to drone on. The law certainly does need a jab once in a while.
This may be quite true in general. I don’t know enough math to say otherwise. But human laws are written in human languages, not in the precise language of math. The ambiguity comes out of the words of the law itself.
With human laws, we have lots of empirical evidence. Over and over again, societies have come up with many systems of law which have purported to be complete and unambiguous, or at least interpretable. Controversies and ambiguities always come up anyway. Judges and lawmakers have tried to stop these leaks by adding new laws, prophylactic regulations, and commentary—again expressed in human language. And so the cycle repeats itself, and the law metastasizes, without ever eliminating all controversy and ambiguity.
I originally just copied the title as given by orwell.ru, but looking it up, I see it was first published in the fourth and last issue of Gangrel, and later reprinted in subsequent collections. I think orwell.ru had it right.
The fates of unemployed lawyers aside, the upside for the rest of us is that as it gets cheaper to crack down on white-collar crime it will become less prevalent, leading to increased economic efficiency. (At least, assuming we all benefit from increased economic efficiency.)
It should be noted however that actually enforcing every rule on the book the way it was “meant” to be enforced would cripple the economy and make life unbearable.
I’m a lawyer and I read this article (and have read others along the same lines) with great interest.
Within the law, there are some many areas which may seem simple, but have extraordinary complexity and depth. The “discovery” phase of litigation—which this article focuses on—is not one of these areas.
I suppose innovative technology represents a threat to my current livelihood (although there’s still plenty of lower-hanging fruit left between the machines and my own job). But on an emotional level, given a zero-sum competition between the machines and the legal industry in its current ridiculously bloated form (at least in America), I find myself rooting for the machines.
I’ve read that (U.S.) law is basically contradictory: you can start with generally accepted legal principles and derive both a conclusion and its negation.
I suspect that computers are going to have a hard time dealing with this. ;)
Law students are certainly sometimes called to argue both sides of an ambiguous question, and litigators have to argue on behalf of their clients. Furthermore, the big, famous cases in America are almost always Supreme Court cases. But any case that makes it to the Supreme Court has survived intense selection pressure. The overwhelming number of cases that are actually litigated are resolved in the lower courts. A greater number of potential cases are settled or resolved before trial. The law is mostly confusing only at at the very distant margins.
I don’t know that U.S. law in general is more contradictory than any other legal system intended to govern human behavior—it is made by humans, expressed in human language, and is finite in length—all the law libraries in the world are too short to anticipate the full range of possible human activity. That leaves a huge area of ambiguity under any system of law.
The author of that law review article cited above confused me. On the one hand, he started out by evoking the “nightmare vision” of Orwell’s 1984. But the stated goal of his essay is “to establish three points: 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society’s power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law.”
This sure wasn’t Orwell’s goal. In 1984 there was no law. Also, as Orwell explained in Why I Write:
There’s a short classic book, originally from 1948, called An Introduction to Legal Reasoning. On the first page, the author explains:
This is a long spiel, mostly about things that have been rattling around in my own head for a while—sorry to drone on. The law certainly does need a jab once in a while.
I don’t think that in order to describe (or prescribe for) a complex system you necessarily need a complex specification.
This may be quite true in general. I don’t know enough math to say otherwise. But human laws are written in human languages, not in the precise language of math. The ambiguity comes out of the words of the law itself.
With human laws, we have lots of empirical evidence. Over and over again, societies have come up with many systems of law which have purported to be complete and unambiguous, or at least interpretable. Controversies and ambiguities always come up anyway. Judges and lawmakers have tried to stop these leaks by adding new laws, prophylactic regulations, and commentary—again expressed in human language. And so the cycle repeats itself, and the law metastasizes, without ever eliminating all controversy and ambiguity.
P.S. It occurs to me that laws are leaky generalizations
Costanza:
To be precise, that quote is from “England Your England,” not “Why I Write.”
I originally just copied the title as given by orwell.ru, but looking it up, I see it was first published in the fourth and last issue of Gangrel, and later reprinted in subsequent collections. I think orwell.ru had it right.
Are you sure you’re not just committing the same fallacy that says Turing machines are vulnerable to Gödel’s paradox?
Well, I sort of meant it as a jab at the law...
The fates of unemployed lawyers aside, the upside for the rest of us is that as it gets cheaper to crack down on white-collar crime it will become less prevalent, leading to increased economic efficiency. (At least, assuming we all benefit from increased economic efficiency.)
It should be noted however that actually enforcing every rule on the book the way it was “meant” to be enforced would cripple the economy and make life unbearable.