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From: bprice@bmcg.UUCP
Newsgroups: net.legal
Subject: Re: a modest proposal for the rehabilitation of the legal system
Message-ID: <489@bmcg.UUCP>
Date: Wed, 31-Aug-83 15:30:56 EDT
Article-I.D.: bmcg.489
Posted: Wed Aug 31 15:30:56 1983
Date-Received: Sat, 3-Sep-83 03:53:49 EDT
References: <963@utcsstat.UUCP>
Organization: Burroughs Corporation, San Diego
Lines: 58


    Laura's "modest proposal" to restructure the system so that lawyers get
paid only for preventing trouble, rather than for rectifying (or, as some
would have it: causing) problems has a rather attractive goal.  Preventative
lawyering is to litigation as preventative medicine is to healing.  The 
biggest (and perhaps fatal) difference lies in the following saying:

        "We [in the USA] have a government of law, not of men."

    Examine that saying, and remember when and in what contexts you've heard
it before.  Then ponder the meaning.  Law is objective (at least, it purports
to be); "men" are usually subjective.  The subject of law is the interaction
among humans (and human agencies/institutions):  by the nature of humanity, 
most of these interactions have and display a large measure of subjectivity.
Yet the law attempts to regulate these interactions by ignoring the nature
of the participants.

    If, in a fit of pique, I were to say to (an imaginary) Joe that "Somebody
ought to take rabbit!jj's terminal away from him", and if Joe stole that
terminal, I would be guilty, under the law, of conspiracy.  Conspiracy is a
felony, and I could get a year or more in the custody of the Department of
Corrections!  The law, being "objective", can not permit "I wasn't serious"
as a defense:  the fact of my utterance, followed by Joe's independent action,
is conclusive.  (So, I'm simplifying it some.  The point isn't damaged.)

    Since most lawyers are human beings, the is some motivation towards 
"fairness" in the law.  Since the basic assumption of law--that it is possible
to substitute law for judgement--is erroneous, fairness causes complexity with
all the problems we programmers know complexity to bring with it.  In programs,
complexity brings bugs and "features":  in a law, we call them "loopholes" and
"technicalities".

    Unfortunately, I have no solution to propose.  An essential element of any
solution is the widespread recognition and acceptance of several (currently
unpopular) ideas.  One of these has been flamed at here when Laura brought it
up, that each individual is inherently responsible for his own life, and the
results of his own [in]action.  The second, mentioned above, is that law is
*not* a substitute for judgement--indeed, there is no substitute for judgement. 
A third, is that the only reasonable basis for judgement is results.  A wise
man that I know says "Judge only by results:  such a judgement is sometimes
harsh, but always fair."  

    Taken together, the above means that ther should not be a law against
drunken driving: instead, the principles above imply that the drunken driver
is fully responsible for any results of his drunken driving.  In particular,
if he should kill anyone, he is guilty of murder.  If his drukenness were
intentional (he got drunk willingly), the murder is also intentional.  If his
drunkenness was premeditated (he did not get drunk instantaneously), the
murder was also premeditated.  "sometimes harsh, but always fair!"

    I would prefer to live in such a society, even though the idea scares me
a little.  From what I've seen on the net this summer, I surmise that few
net-readers would like it: Laura probably would, Tom Craver also.  As I said,
the idea is scary.  How many of you would prefer such a lawyerless society?
    
-- 
--Bill Price    uucp:   {decvax!ucbvax  philabs}!sdcsvax!bmcg!bprice
                arpa:?  sdcsvax!bmcg!bprice@nosc