There are a few odds
and ends that I would like to bundle up before proceeding. These are
items that have occurred to me since I wrote the first What is Law? post back in March. Items I would have written about earlier in this
series, if they had occurred to me. Since I am writing this series as
I go, this sort of thing is inevitable I guess. Perhaps if I revisit
the material to turn it into an essay at some point, I will fold this
new material in at the appropriate places.
Firstly, in the
discussion about the complexity of the amendatory cycle in legislation
I neglected to mention that it is also possible for a new item of
primary legislation to contain amendments to itself. In other words
it may be that as soon as a bill becomes and act and is in force, it
is immediately necessary to modify it using modifications spelled out
in the act itself. Looking at it another way, a single Act can be
both a container for new law and a container for amendatory
instructions, all in one legal artifact. Why does this happen?
Legislation can be crafted over long periods of time and consensus
building may proceed piece by piece. In a large piece of
legislation, rather than continually amending the whole thing –
perhaps thousands of pages – sometimes amendments are treated as
additional material tacked on the end so as to avoid re-opening
debate – and editorial work - on material already processed through
the legislative process. It is a bit of a mind bender. Basically if
an Act becomes law at time T then it may instantaneously need to be
codified in itself before we can proceed to codify it into the
broader corpus.
Secondly, I mentioned that there is no central authority that controls the production of law. This complicates matters for sure but it also has some significant benefits that I would like to touch on briefly as the benefits are significant. Perhaps the biggest benefit of the de-centralized nature of law making is that it does not have a single point of failure. In this respect, it is reminiscent of the distributed packet routing protocol used on the internet. Various parts of the whole system are autonomic resulting in an overall system that is very resilient as there is no easy way to interrupt the entire process.
This
distribution-based resilience also extends into the semantic realm
where it combine with the textual nature of law to yield a system
that is resilient to the presence of errors. Mistakes happen. For
example, a law might be passed that requires train passengers to be
packaged
in wooden crates. (Yes, this happened.). Two laws might be
passed in parallel that contradict each other (yes, this has happened
many times.) When this sort of thing happens, the law has a way of
rectifying itself, leveraging the “common sense” you can get with
human decision making. Humans can make logical errors but they have a
wonderful ability to process contradictory information in order to
fix up inconsistent logic. Also humans possess an inherent, individual
interpretation of equity/fairness/justice and the system of law
incorporates that, allowing all participants to evaluate the same
material in different ways.
Thirdly, I would
like to return briefly to the main distinction I see between legal
deductive logic and the deductive logic computer science people are
more familiar with. When deductive logic is being used (remembering
always that it is just one form of legal reasoning and rarely used on
its own) in law, the classic “if this then that” form can be
identified as well as classical syllogistic logic. However, legal
reasoning involves weighing up the various applicable deductive
statements using the same sort of dialectic/debate-centric reasoning
mentioned earlier. Put another way, deductive logic in law very
rarely proceeds from facts to conclusion in some nice tidy decision
tree. Given the set of relevant facts (which have themselves to be
argued as “the relevant facts”) there may well be multiple
applicable deductive logic forms in the corpus of law which,
depending on which ones are used and the order they are used, will
result in different conclusions.
Again, this is where
the real skills of a lawyer manifest. The possible routes through the
law at Time T, that can be applied to a set of relevant facts F, is
often vast and grows exponentially with the complexity of the facts
being considered. Lawyers develop the ability to “prune” the
routes down to something manageable in the same way that, say, chess grand masters, prune the set of options in any chess game situation.
This is perhaps the
biggest "oops" moment I have seen when IT people first see
the “rules” expressed
in legal language. They see stuff that
looks like it can be turned into classical logic e.g. indicative mood
statements and then proceed to the non sequitur that it can be
re-expressed in classical mathematical logic forms. What computer
science people tend not to see at first is the rhetorical structure
that sits underneath the indicative statements. I don't think it is
overstating the case to say that every legal
question is essentially
a debate. You can analyse the corpus to find in favour
of any given
proposition or against any given proposition. Each line of reasoning
can feature chunks of good old fashioned mathematical logic but the
final conclusions do not come from the decision trees, they come from
the fuzzier process of weighing up the logic on every side of the
debate, in order to arrive at a best – but necessarily tentative –
answer. As Immanual Kant said, there are no rules for the application
of rules.
Nick Szabo (the man
who coined the term “smart contracts” which we will be turning to
soon), uses the terms “wet code” and “dry code” to describe
the difference between legal reasoning and classical computer
reasoning. Dry code is the stuff with low representational complexity
we can convert into classical computer software. There is some of that
in law for sure, but a lot less than you might think. Most of it is
“wet code” because of the open textured nature of the text of the
law, the unbounded opinion requirement, the extensive use of
analogical reasoning and the dialectic nature of the deductive logic
in law.