Transforming the Law into Code

By its nature, the law seeks to regulate human affairs, which can have as many variations as there are people, thoughts, and actions. That is, law works with what is basically an infinite set of potential variations.

In trying to define what is right and what is wrong, what is just and unjust, the law adopts rules and principles to attempt to make sense of the common cases that arise. But there will always be an exceptional case waiting around the corner.

That is why judge-made law lies at the core of law. It deals with issues as they arise case by case in an individualized setting. When judges write opinions, they set precedents to help guide future decisions. The precedents in themselves embody sets of rules or principles as they applied to a particular set of facts. When new facts arise, the law can apply the same principles or can distinguish the new facts and declare a variant outcome based on such facts. It is a highly customized system that can't be systematized unless and until human conduct can be systematized - that is, it never can be made predictable except insofar as it concerns recurring types of situations, meaning that exceptions will always arise.

When legislatures try to systematize law, they do so through statutes. These are authoritative pronouncements of law that say, in effect, "for this type of issue, here is what the law will be."

Statutes are so general, though, that courts need to interpret them as they apply to individual situations that may arise under them. This leads right back to the case-by-case approach of judge-made law.

Statutes also have implementing regulations by which they are clarified and applied to detailed situations. Just try to read through the Code of Federal Regulations sometime. You will find a maze of detail so individualized that no one would possibly want to waste time trying to systematize. Again, the human factor looms large. Tax regulations might say that this or that constitutes taxable income. But some lobbyist has managed to get Congress to inject bizarre exceptions. Again, though, the real problem is how any given regulation applies to real-world facts. These come with infinite variations and lead right back to the case-by-case type of system found in courts - thus, nearly every administrative agency has a corresponding court (the Tax Court, for instance).

When David Dudley Field tried to simplify law in the 1870s in California, he got the California legislature to adopt the Field Codes. These were complete restatements of all the judge-made law then extant in California, all set forth in simply-worded statutes, drafted by the brightest people with the express intention of making the law understandable to lay people. It was a grand experiment in legal simplification. What happened? The judges began interpreting the statutes case-by-case, had to decide how the new "simple" language related to the older more complex language in evaluating the continuing worth of the older precedents, and finally had to decide whether the legislature did or did not intend to change the law from what it was before in adopting the new language in any given area. By the time the courts went through that maze, and then had to apply the simple statutes to many sets of complex facts that inevitably arose in real life, they had managed to promulgate a new body of judge-made law that was more complicated than ever. The Field Code, then, turned out to be one of the world's biggest belly flops - it began with a great flourish and ended up a humiliating embarrassment.

The same with form contracts - it all turns on customization. If you want to take an elegantly worded contract and just sign it without considering how it might apply to your deal, you are asking for trouble.

Law also has innumerable localized variations. There is municipal law (that varies with each city or town), state law (that varies with each state), federal law (that varies with each nation), and international law. Different scenarios can potentially implicate laws from one or more of these disparate levels at the same time. Who decides which law applies in a complex fact pattern where activities might have occurred in multiple states or nations? Or how the law of one region may or may not be qualitatively better than the law of another? Any coding system would need to make such determinations.

That all said, if someone can figure out how to put all this in code in any way that is meaningful, it will be one of the most stunning accomplishments ever.

The underlying article is a good read. The idea of reducing the overall body of law to code, though, is pretty fantastic, in my judgment.

Millions of bureaucrats, both large and petty, derive their power from the complexity, ambiguity, and room for arbitrary, capricious enforcement of the existing legal code. Dislodging them would probably require mass bloodshed on the scale of the French Revolution.

And treating the presently existing legal system as a logical program can lead to disaster. See "What Color are your Bits?" (http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php)

Once a law is in "code form", links, ambiguities, contradictions and loopholes becomes (more) obvious, and extending it with e.g. precedent and opinions is simple. It would also help the legislative process - you propose you change, and everyone can run their test-suite on it, and see if and how they'll be affected.

My first though was the software that the European Union has been developing (I don't know the state of it) that, on the fly, translates what the writer is typing into a intermediate language and back into the writers language - that way ambiguities and idioms are caught immediately. It's not exactly useful for poetry, but should help in creating concise and unambiguous texts, even in just a single language.

While we will never be able (and probably shouldn't attempt) to reduce the law to something resembling C, I'm strongly of the opinion that the law badly needs wikification if only for the sake of its own long-term acceptability. The more abtruse and inaccessible a rule system, the greater the liklihood of its displacement, as every tinpot dictator is aware.

It is not the government's central function to pass and enforce laws, nor is that the goal that legislators set for themselves.

From a philosophical perspective, the function is to government is to govern. There is no reason that this must necessarily entail laws. In many cases simple speechifying and arbitration might suffice. Very often, it would be more appropriate to repeal a law than to pass a new one. Internal consistency is not required (or is a moot point) if there is no code of laws. And while that seems a huge leap from today's situation, it is in principle a possibility.

From a more practical perspective, the role that our government has taken is to be seen to do something. For example, the CAN-SPAM law certainly involved passing a law. But that law had no basis in reality; it's utterly impractical and unenforceable. Assuming that our legislators aren't stupid, there was never any requirement that this law be used to prosecute spammers. Rather, the intent was to demonstrate to the public that the government was "doing something about the problem". Thus, there was no need to ensure that it was consistent with anything, or even that it had any actual meaning.

Thus, it's perfectly feasible for a functional government to have inconsistency in its legal code.

    if (plaintiff.type == LARGE_CORP) { punitiveDamagesRatio = INT_MAX; }

Note that many of the things that are typically considered DO are legal in circumstances that do not have an explicit "DO doesn't apply here". Even worse, in many of those circumstances, the identity of the actor determines whether the act is DO and the "exemption" is usually for only some DO acts.