Issue #24, 10/10/2006

The Futility of Law

NOTE: This topic was later refined and turned into a printed newsletter: LAWYERS CAN BE SAVED (which is better than the essay below).

Once upon a time, a few centuries ago, leaders started writing down laws so that citizens would know exactly what they could and couldn't do. There had always been conflict among men, which was often settled by force. The creation of law promised an end to bloodshed. Henceforth, we would obey written rules, and disputes would be settled by civilized means.

This new technology carried great promise but also created its own set of problems. The law, it turns out, can be as brutal and tyrannical as marauding Vandal hordes, just in a different way.

What happened when we started writing down rules is that morality became a linguistic phenomenon. What one should and shouldn't do was translated into fixed words, and the arrangement of those words became highly significant.

Instead of evaluating right and wrong on its own merits, we started to look to the words for instruction. If the words said we could get away with something, then we did it. What was lost was a personal evaluation of the probable effects of our actions.

The law became a substitute morality, and not a very good one. Written law, it turns out, is only as good as the people who write it — who in the modern world turn out to be boneheaded legislators with overt political agendas.

The law has only one means of solving a problem: Hit it with a sledgehammer. If someone hurts someone else, then we hit him with a sledgehammer. If two people have a dispute, then we drag them through court for a couple of years, then hit one of them with a sledgehammer. If two people had been in love but are no longer, then we hit them both with sledgehammers. We hit their children with sledgehammers. We hit corporations with sledgehammers. We hit criminals with sledgehammers, repeatedly, and hope by this action that we will turn them into better citizens.

One thing the law is not well-suited for is emotional and contextual sensitivity. The law is blind—remember?—and if two people do the same crime, they're going to be whacked with the same sledgehammer, even if it has an entirely different effect on each of them.

The law can be intricate, but not creative. Creativity lies mainly in deciding not to pursue the law in certain situations.

The law is all words, but real life is more than that. Non-linguistic mechanisms inside your brain allow you to make an intuitive judgment about the true effects of your actions on people's behavior. Sometimes a sledgehammer is warranted, but most of the time a more subtle and sensitive approach is much more effective.

Imagine a mother who tried to raise her child based only on the advice written down in parenting books — in essence, the law. If there was ever a crisis, she would run to her Dr. Phil Parenting Encyclopedia and try to find the relevant chapter. Once she found the proper advice in writing, she could proceed to follow it.

By this time, of course, the kid may already be dead. The written advice in parenting books may have some merit, but no rule is precisely tailored to your particular situation. What you should be doing instead is listening to your child, understanding his internal needs, then responding adaptively and opportunistically to the true underlying problem.

That's what the law can't do. It can't respond quickly, and it is generally inept at responding to the unique circumstances and opportunities of the situation. It can only stand by with a sledgehammer.

The creation of a new statute is usually the result of the particular hysteria of the moment — like the 9/11 attacks or the Columbine massacre. Once the statute is in place, however, it inevitably creates new and unintended side effects, sometimes worse than the original affliction.

You try to address these problems in case law and new iterations of the statute, but soon the law is an unwieldy mess that doesn't really solve anyone's problems. The law, by and large, cannot prevent people from killing each other. All it can do is hit people with sledgehammers after the fact, and occasionally kill the killers.

As necessary as it is, the law is a huge drain on society. The law doesn't build anything or produce anything; it only only cuts people down and redistributes resources that are already there.

The law is there when you need it, but it tends to drain the life out of everything it touches, so you never want to invite it into your home.