23 November 2013

On the future of law and justice

The first paragraph is just an introductory summary of my previous post on Peak Technology, skip to the second paragraph for my ideas about law and justice.

In our times, it is a commonly accepted belief that society evolves with the advent of technology. Technology is seen as progress. And when technology has some drawbacks and causes problems, then some more advanced technology is often seen as the solution. In general, it is assumed that much of the progress of societies is driven either directly or indirectly by technology. In many cases, this connection is obvious and in my opinion, the advance of medicine is one of the most obvious examples. Common belief, however, extends the notion of "technology as the cause of progress" even to areas of social progress which are not inherently driven by technology. As an example, consider the topic of free speech or the equal-rights movement for people of different sexual orientation. Proponents of technology claim that free speech is promoted a lot by information and communication technologies like the printing press, movable type, or --nowadays-- the Internet. They go on to say that those possibilities of communication encourage diversity in society, which in turn supports all kinds of equal-rights movements, be it for ethnicity, gender, sexual orientation, religion, or some other dividing line. There is also the argument that the scarcity of resources in less technologically advanced societies leads to conflicts, while the abundance in modern society leaves something for everybody and thus encourages sharing. (But as of 2013, the social divide in some of the richest and most technologically advanced countries, such as the USA, is greater than in some technologically and economically less advanced countries, such as Norway and Finland. (Google “Gini coefficient” for info on that.) This is just one of many counter-examples that could be given to the hypothesis that "technology is the main driver of progress".)

In this article, however, I want to introduce one social improvement of society which offers huge gains for people and institutions while it is entirely independent of technology. I am proposing to improve the system of law and justice, whose modern roots go back two thousands years to the Roman empire whose laws are still studied any contemporary aspirant of the legal profession. I am referring to this historic legacy just because the improvement proposed is so independent of technology that it could as well have been introduced in classical Roman times. The idea is very simple: turn justice from a competitive into a cooperative profession. Replace questions of "who is right?" and "who's right (or obligation) is it?" with the quest for just and balanced compromises. Just imagine that instead of getting a lawyer to "fight for your right", you will get a lawyer to counsel you about the laws and customs of a specific domain and to help you take beneficial and sustainable decisions. Sustainable, here means that it will not infringe on other's rights in a way that will incite opposition to your actions. Further imagine that if two parties have a disagreement of high stakes they will not each assemble a team of highly paid and about to overwork lawyers to fight it out in front of a judge, but they will instead appeal to a highly reputed mediator which will align their interests and the tradition of the law and past similar cases to form a compromise which serves both their interests to the best possible and also sets an example of how similar disputes can be solved in the future.

One of the founding principles of the legal profession is that formalized law provides safety and freedom of action because parties with conflicting interests are able to prevent conflicts or to know the outcome if conflict happens. Another important principle is the balance of interests. Another one is that decisions should only be based on relevant facts of the matter and not incidental elements such as nobility, affluence, ethnicity, or other properties of the actors or the circumstances. (The latter is the famous "blindness of justice" to irrelevant matters.) All of those principles are preserved with the proposed improvement while many other aspects are changed.

I see a lot of advantages in such a reformed legal system:
  • laws would be much simpler, since their purpose would not be to give a fixed solution for every possible case and instead leave some wiggle-room for the disputing parties and their legal counselors.
  • legal conflicts would occur less often because counselors will advocate the way of consideration instead of the confrontational road.
  • legal conflicts could be resolved much more timely and with much reduced cost
  • all members of the legal profession would swear an oath of justice similar to the oath of Hippocrates in medicine. they will commit themselves to the principles of law and to working towards the goals of both parties in a conflict as well as the evolution of law which benefits society at large.
  • parties which can afford more or better lawyers will not be advantaged any more.

So lawyers become consultants and mediators instead of being advocates and lobbyists. Wouldn’t that be much more in line with the original values and virtues of justice and more beneficial to our society and all its members?


Torsten Feig said...

Is that what you propose as the lawyers' new task not what judges do today? What is the role of jugdes in your justice model, or are they replaced by those mediators?

Robert Jack Will said...

Hi Torsten, thanks for this good question. I see judges and lawyers as part of one group of people who have the same education (law, communication, dealing with people, ...) and the same common responsibility, namely justice and fairness in society.
I think currently a legal graduate will have to practice as lawyer for a while before than can become a judge and I think the same will be the case in the future: someone needs to have experience as a legal consultant and be very good at it before they will be respected enough to be accepted as a mediator. People need to have a lot of trust in the mediator before they will accept the decisions and compromises which he proposes.
Of course, there can still be a kind of mediator which in addition to his or her great reputation for justice and fairness will be selected by the state to officially mediate in very difficult cases with officially binding decisions.

Judges are addressed as "honorable" in English ("Euer Ehren" in German). It would be nice if they would really be selected to be the most honorable and virtuous person among all those who have studied and practiced the law. :)

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