Common Law

So here's a little something to think about. Most people, be they ``normal people'' or ``technogeeks'' will tell anyone who cares to listen that their 3-year-old computer system has really outdated software that keeps getting larger and larger, and perhaps they need to reinstall everything ever so often just to make sure that the computer ``still works''. This demonstrates the basic premise of software, namely the need to constantly re-examine the software that has been written, and perhaps even to write a newer version of it when the time comes that the kludges are no longer working as well or if the said kludges are also less maintainable.

Sounds nice and good and commonsensical.

Now, consider the legal/penal system in many of the world's countries today. For a large part, there is the concept of Common Law, which basically refers to law that exists because the courts ruled a certain way. However, for the part of law that is not Common Law, there are many statutes/rules/codes written to govern what is and is not permissible, including the punishments in cases of infraction. So, one way that the legal system works is to rely on the codified law to judge cases, and where there are precedents for a particular case, they will be studied and then the concepts of Common Law will apply, perhaps with the legislative arm of the government creating new laws to ensure that the outcomes thus specified are generalised into laws. These newly created laws will, in principle, help to clarify what is and is not permissible under the eyes of the law, based on the arguments that were put forth from the arbitration of the case.

So far, I have not said anything that is out of the ordinary yet. But now comes the kicker.

If one thinks of the law as a computer program that determines what is acceptable and what is unacceptable, and that the society's people are the running components of the entire ``computer system'', then the analogy will be clear that the law itself ought to be engineered the way software is engineered, i.e. there should be some limited time before the program (or in this case, the law) be re-written so as to reduce the kludges and other gunk that has gathered over the years and to ensure that the law is easier to enforce, thus reducing the latency between when someone first invokes the law and when the matter gets resolved in the courts.

A succinct version of the law has many obvious advantages. The citizenry are aware of exactly what they are allowed and disallowed to do, which means that the allegations of police officers abusing their police power and/or charging people in custody under the myriad of possible crimes [that the impounded never truly knew] will be reduced. The law, being much smaller in numbers of governing statues/codes/regulations, will be more easily maintained and thus have much fewer contradictions as a whole than before. Obsolete pieces of law that made sense at that point in time (like segregation for example) can also be easily identified and discarded to make the law more relevant to daily living.

Unfortunately, it is almost impossible to do what I have just described, despite having the aforementioned benefits. The biggest issue here is that of inertia, and that of transition. Inertia comes about because there are thousands of lawyers out there who have spent much of their lives wheeling and dealing under the current law, and a change of the law to something less complicated will most likely to be met with serious objection because it degrades the status of a lawyer from that of a modern day warrior to just a peon who happens to know a little more than the ordinary person on the law. But transition will prove to be the bigger problem---there will be a vacuum of governance when the old code of law is being revised into the concise form; which version ought one to follow if the new version of the law looks siginificantly different from the old one? The last big issue why the law will not change in the way that I describe is that the modern society, despite its claims to democracy, is not truly egalitarian the way many would have envisioned it. All people are created equal in terms of political and social representation, except some people happen to be more equal than others and thus have a vested interest in some of the laws that were written. Thus, a creation of a concise version of the law may mean the end of special provision for various corporations/individuals who have made use of the law to their own gains through careful manipulating.

So what has this little thing show us? There might be ways in which we can make things better, but under various guises of ``equality'' and other liberal-sounding jargon, we find that the system our forebears have left us are the ones that we are forced to work with, whether or not we like them.