Why the law is slow, impersonal and obsessed with details

About a decade ago, as part of a long period of depression, I took up the study of law.

Eventually I gave it away in favour of programming computers. But law can be fascinating in its own right. Software development has more in common with legal thinking, and vice versa, than either might realise or care to admit.

There is one place where the law excels, however. It is institutions and norms. When you are drawn into a court, you are drawn into a mechanism that has in Common Law countries (broadly, the English-speaking world) been evolving for most of a thousand years.

And the law, as an institution, as a system, has learnt many lessons about itself. To outsiders law can seem fusty and rooted in its ways. This is not a coincidence, because lawyers are inducted into an institutional memory that recalls failures of justice over a span of hundreds and hundreds of years. They are never forgotten; they are renewed constantly with each generation of lawyer. We in software could learn from the lawyers in this regard.

Consequently, the legal system is slow, impersonal and obsessed with details.

Which brings me to this horrid mess.

Why the law is slow

All of the major events in the PyCon saga happened in the space of about 3 days. There’s been some side commentary about how this is a product of the modern Twittering age. It’s not really: it’s a product of humans. We act in passion as it seizes us.

A mob of twitterati is still a mob and mobs are not a new phenomenon. It wasn’t so long ago that “lynch mob” was more than just a metaphor. The problem with mobs is that once formed, they tend to zoom off and quickly cause great harm.

Righteousness — the belief that the moral correctness of belief and action is so pressing and important that it transcends mere law and custom — is dangerous when it rests in an individual. When it seizes the hearts and minds of a mob, it is a direct threat to everyone in its path. Go check the criminal code of your state or country — don’t be surprised to learn that riots and mobs are one of the few occasions where police can be authorised to use lethal force.

What’s changed is the geographical dispersion of mobs. What used to be localised to single towns now exists in a virtual town that crosscuts the world. Happily this reduces the chances of actual physical outcomes. But it doesn’t change the dynamic of mobs.

Passion’s greatest enemy is time. Time dissipates passion, saps its strength. The law is slow because of its structure, but lawyers also know that studying events from a distant time reduces the blinding effect of passion. This is a lesson that the law has learned the hard way, over and over. And it is a lesson well-learned. Passion has its place in the law, but it is tamed and corralled. It is servant, not master.

Why the law is impersonal

So the law strives to be passionless and to take its time.

It also strives to be impersonal. The law carefully avoids connection between the officers of court and the persons in dispute.

I think this is the root of hatred for lawyers and judges. They consciously refuse to align themselves to warring tribes. They act and think bizarrely — they are neither comrades in arms nor dastardly enemies. To the passionate, a lawyer or judge is instead a strange alien who has floated down to decide their fate. Machiavelli counselled the Prince to always take sides, because no matter how a dispute turns out, winners and losers both will try to punish neutral parties who didn’t support them. And so it is for judges and lawyers.

But the law must be impersonal if it as at all to work. In this case, most of the commentary has been by folk aligning themselves into tribes, the pro-Adria and anti-Adria (falling pretty close to being a 1:1 match with sex). The sackings were made by persons involved at only one step from the issue; the disputants themselves have appealed not to law or mediation but to a public anxious to take sides.

What does this do? It makes matters worse. Where you had one mob, now you have two. And the power of homophily to drive out dissenting views is of course formidable. Thomas Schelling’s coin segregation model shows how very small gradients in preferences can lead to a totally polarised population in a short period.

The law’s path out of such messes is to involve the uninvolved as officers of the court.

Why the law is obsessed with detail

Lawyers sometimes appear to be obsessive-compulsive about pulling the cloth of a case into ever finer threads.

But that is, in fact, their job. A legal case is a graph of facts and laws. Lawyers must ensure that they have checked every node of the graph, because you cannot know in advance what will decide the case. You may speculate, sometimes with enormous confidence, but you cannot know. The lawyer’s duty is to check.

Small, subtle, even infinitesimal differences of fact or law frequently turn out to massive consequences. Again, each lawyer’s shared institutional memory involves hundreds of such examples.

In the PyCon saga, taking events “in the vibe” will lead to misjudgement in all directions. And that’s exactly what is happening in the pro- and anti- camps. Different people are picking out different facts, or emphasising them differently, or sometimes having different facts.

In law the facts must be exhaustively worked out. And then the legal rules which apply for those facts are exhaustively worked out. It would not surprise me if a court of law could spend a day on the question of exactly when Adria posted pictures to twitter, more days on exactly what was said to whom and so on and so forth. Why? Because to the law, A then B could easily lead to an utterly different outcome to A then B then C, or A then C (with an assumed B) and so on. Events, facts, orderings matter and need to be nailed down with great care and examination.

What is there to learn?

Stop using Twitter. Would you write a computer program by asking for requirements 140 characters at a time? Writing code 140 characters at a time? Running tests one at a time, 140 characters at a time?

Or perhaps, more fairly: stop relying on Twitter. For any discussion of consequence, it neatly recreates all the worst things that lawyers and judges have learnt over hundreds of years to carefully avoid.

When your decisions have heavy consequences, such as depriving someone of their livelihood, it is even more important to keep your head and take your time. One thing I learnt in student politics is that no matter how damning the first evidence you’re shown is, and no matter how badly you want to believe it or disbelieve it, wait — wait! — for the rest to come in before taking precipitous action.

I’m not saying that you need to study law, or become a lawyer, or keep a lawyer on retainer. But the steady, passionless, impersonal, detail-obsessed nature of legal reasoning is a powerful tool in itself.

When someone asks you for your opinion of the current blowup, the safest answer will always be: “ask me tomorrow”.

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