Comment by jacques_chester | Hacker News Reader

Comment by jacques_chester | Hacker News Reader

jacques_chester

I have to admit, I share some of the author's smugness.

The world is very, very complex.

That is why the law is very, very complex. It covers everything humans do, have done, or will do. Alone, together, in small groups or large groups. As private individuals or public bodies. With real objects or imaginary objects. In their homes, on the street, in public buildings, in private parks. On the ground, under the ground, on the water, under the water, in the air, in orbit, out to the limits of human space.

Every day people come to the courts with potentially totally novel combinations of people and events, and the courts guarantee they will make a decision.

The courts have been doing this for nearly a thousand years and are still chugging along solving new problems. This should indicate that this is not a permanently solvable problem. The law is an adaptive, dynamic system.

All of this is why, as a software engineer who once studied (and mercifully quit) law, I am sometimes bemused by the idea that bodies of law can be ignored or swept away by code.

The law doesn't see it that way and in this game, the law gets the final move.

Author here. I'm "smug" in the sense that I've made all of the mistakes of the DAO folks and many more beside. One of them was optimistically assuming that many more things could be done in an extralegal context than actually turned out to be feasible.

See for example this "smug" post that I was (correctly) critiqued for 868 days ago: https://news.ycombinator.com/item?id=7155644

Note the comment here re: "this guy does not understand how the world actually works": https://news.ycombinator.com/item?id=7155872

With the updated forced learning curve on the legal system actually works over the last two years I've learn that a lot o what I previously viewed as cruft in the legal system is actually the complex adjudication of edge cases similar to what we see in well architected and executed software tests.

Missed div by zero can bring your whole system down. Forgetting the right clause in a contract can in a multi-million dollar deal as well.

Yeah, I think there would need to at the very least be some sort of artificial general intelligence capable of applying the existing body of law to new situations. I.e. able to take penumbral cases and work them out in a way we would consider reasonable, which isn't going to happen any time soon. https://en.wikipedia.org/wiki/Penumbra_(law)

> The courts have been doing this for nearly a thousand years

The courts have been doing this for over five thousand years! Since the beginning of recorded human history.

And they have been doing it using basically the same legal ideas we use today - only the details on what the laws are differ.

(Did you have a particular event in mind to say "nearly a thousand years"?)

> nearly a thousand years

I'd guess because it's the approximate age of the recorded English common law, which is the main basis of the American legal tradition.

https://en.wikipedia.org/wiki/English_law#Common_law

(not that that is the first court or legal system in human history)

I mean... five thousand years would be what, the Code of Hammurabi? Cities of refuge, eye for an eye, and all of that? I don't think the average person had access to a court, at least, not one that anyone in the last millennium would recognize.

I'm likely going to be a software engineer after graduating next year with a degree in math, cs, and economics, but I am also vaguely considering going into law (whatever that means, I don't really know) could you share why you say mercifully and what drew you away from it please?

> The law is an adaptive, dynamic system.

I think this is the key point that a lot of people (at least those with an engineering or similar background) overlook - the law isn't a fixed, prescriptive set of rules that are rigidly enforced[0]. It's a complex, evolving system that is constantly evaluating situations, re-evaluating old ones, and considering multiple 'soft'[1] factors that are near impossible to explicitly define. Designing a fixed set of rules to cover the same would quickly become a huge pile of edge-cases (arguably what caselaw already is), and you could never realistically hope to cover every situation.

Few examples of why I think such an approach is misguided (from English law):

1. R v R [1991] UKHL 12 - Until this case, there was the idea at common law that there is a martial exception to rape - a wife has essentially pre-consented to intercourse, and therefore cannot be raped by her husband. The House of Lords recognised that such an exception was no longer acceptable[2], and were able to overrule it without being bound by a fixed rule[3]. A more rigid legal system could have produced a worse outcome here by upholding the prior exception.

2. House of Lords Practice Statement [1966] 3 All ER 77 - Essentially a recognition of the above situation. The House of Lords declared that it, as a court of last resort, would no longer be bound by precedent if departing from it was in the interests of justice - "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law."

3. Ruxley v Forsyth [1995] UKHL 8 - Ruxley was contracted to build a pool of a certain depth, but actually built it one foot shallower. If you take a rigid approach to the law, you likely end in one of two scenarios: there has been a breach of contract, therefore damages must be awarded OR no damages have been suffered (e.g. change to house price, functionality of the pool), therefore no award is made.

The Court in this case recognised that awarding the full cost of rebuilding would be unreasonable, and that there was no direct financial effect (e.g. change of house value) that would allow the award of damages. The Court however also recognised that the value provided by the contract may be non-monetary, and so made a partial award for "loss of amenity".

It is cases like these that make me think that designing a fixed set of rules to be rigidly applied will result in worse decisions being made. Certainly, there are some advantages to such a system (as recognised in the Practice Statement, it would provide a "degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules"), but the individual nuances of cases are such that often they cannot be adequately considered until the event has taken place.

> I am sometimes bemused by the idea that bodies of law can be ignored or swept away by code.

I don't think it is a completely flawed idea though. I suspect a majority of cases currently handled by the lower courts COULD be handled by such a system, as many cases are fairly run-of-the-mill applications of established rules. I believe you would need to retain the upper courts of appeal though, for the reasons I outlined above. This of course brings in some wider considerations though, such of the costs related with such an appeal and ensuring access to justice for even the poorest members of society.

[0] Such a thing would of course be possible, but I doubt it would produce more fair/just decisions than the current system. More predictable (which is an important element of just decision making in its own right), but less able to adapt to new/unexpected situations.

[1] e.g. fairness, justness, broader social situations, good/bad faith

[2] "[W]here the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule [... I]t is the removal of a common law fiction which has become anachronistic and offensive"

[3] Of course, I expect that all fixed set of laws would be subject to change (e.g. by Parliament), but they do not have the ability to consider each event on a case-by-case basis and and interpret the law on the fly.

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