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August 12, 2003

A Law Vent (boring - don’t read it)

People by and large do not understand the Law.

No... I should not say that. Many people do have a rudimentary kind of vague understanding of what the rules are even if they do not know how the rules work or how deep they penetrate our society.

In fact, in many ways, the Law is our society.

Let me explain.

Legal rules and regulations follow, in the general kind of way that a slow moving river might follow a mountain, the course of society. Law, in this way, reflects our society’s norms and aspirations while being a part of the whole landscape.

On one level the law is just a bunch of rules.

The Law is made up of rules that have been purposively initiated in order to modify and curb the behaviour of the population. These rules would have little meaning without enforcement, the law carries with it penalties to go with the rules. These penalties represent the value that we place on the rules. The penalties vary according to several factors including the perceived moral culpability of the behaviour being modified, the influence of particular companies and individuals, the monetary cost of such actions and the perception of bias caused by the rules themselves.

But the law is more than being just a bunch of rules to restrict behaviour. It is deeper than that.

To most of us, for example, the Income Tax Act is just a method by which the government collects taxes. However, it is not just a tool of collection, it is a tool of behaviour modification. The Income Tax Act moves manufacturing and service industry jobs from place to place. By taxing many items differently, it modifies what is manufactured and what is purchased. It modifies where things are purchased and by whom. It pushes money from one sector to another and, to a large extent, dictates where investments will be made and how people will spend surplus dollars. In this way the Income Tax Act, far from being simply a set of rules most of us follow each April, is a system that influences us every day of our lives in ways that we do not even see.

There are more rules than just the rules we see.

Underneath the laws that people most commonly come in contact with such as those found in the Criminal Code or the Divorce Act, is a whole set of rules governing how the laws will be used and interpreted. Many of these rules, unlike the laws themselves, are quite fluid and flexible and can be bent or even discarded depending on the situation, the persons involved or pressure from society itself. These rules were almost all created to deal with the concept of Fairness but between the complexity of the society that created them and the changing feelings within that society as to what Fairness actually is, these rules have become a web that moves forward from its own inertia.

Can you imagine how complex a system this is? We have an enormous set of rules (laws) governing the lions share of our behaviour and we try to keep these rules "fair". Then, underneath this, we have this whole other huge system of rules dictating how you fairly keep the rules fair.

These underlying rules effect people in many ways and not only after they have already been affected by the laws themselves. Not too many of us, for example, have to deal with the doctrine of Hearsay regularly or directly. However, many of us do have some vague idea what it means and it does affect us all. Hearsay changes the very nature of the news that is reported every day. There are things about court cases, criminal investigations and government decisions that are never learned because the rules regarding Hearsay keep them from the public. This, in turn, changes the public perception of government, the legal system and specific cases of national interest such as (sadly enough), the O.J. trial. These changed perceptions, in turn, affect the very system that has changed the perception - and the whole mess rolls forward once again.

The O.J. trial is perhaps a good example because the law is often about truth and that trial demonstrates the difference between two primary legal measurements of truth, beyond a reasonable doubt and the balance of probabilities.

My father once asked me how OJ could be not-guilty and guilty at the same time and the answer is to be found between the balance of probabilities (used in civil cases between private litigants) and beyond a reasonable doubt (used in criminal cases). OJ was found by a civil court to be, in essence, most likely guilty, while the criminal court, bound by the rules of that system, could not find him almost definitely guilty. So was he really guilty? That is, did he do it?

How would we ever know?

How certain are we of knowing anything?

Because the perceptions of our society are based upon empirical ideologies, Truth, to most of us, is a particular thing. Events happen in a particular way that can be reported, measured and explained. We see the law as failing in its search for truth every day but that is a problem we have with truth and not a problem we have with the law.

In grade 7 science it was true that the atom looked like the solar system, in grade 11 chemistry it became true that it was a much more complex set of vectors based on probability. Which atom was more true? Well, it depends on what you are doing with it I suppose.

Similarly, the validity of Newton’s physics and Einstein’s physics depends on what you are doing. Newton’s physics works perfectly well when you are dealing with objects on a larger scale than the molecular, but to deal with molecules you need Einstein. The truth in law is not more or less elusive than this. It depends on what you are going to do with it. The balance of probabilities works well when we are just going to fine you but when we are talking jail or death, we need beyond a reasonable doubt.

People do not realize the scope of the law and how it effects us. The law is so deeply integrated with our society that it is our society. The Law is not just about murder, custody and tax collection. It is not just about how we treat each other. It is about how we see each other. That is why those who are essentially "in" the system have so much easier a time with the law than those who are marginalised. To a great many people in our society, the law reflects perfectly or very closely their own system of values. These people seem to inherently know who would be at fault in a situation. To another great many people, the law is this huge force filled to a greater or lesser degree with conflicting rules and unnecessary punishments. These people are not mistaken, they are just not a large enough part of the system to have the system perfectly reflect their own ideas about how society should be.

The old, white landowners who founded our system left it with a lot of inertia to carry it forward in their favour, reflecting their values and needs. However, the also left us with a system based on empirical facts, pragmatic solutions and utilitarian principles so, as marginalised groups grow in strength and influence, the law changes to suit their needs. The truth shifts.

The law is not uncaring and it does respond. It responds because it changes with society and it is not uncaring because neither are we.

Finally, there are some people who do not understand the law. In my opinion, this is because these people are so self centred or so ignorant about life in our society that they simply can not comprehend anything about it. Everyone believes that everything they do is basically right and just (as distinct from legal) but those who are constantly at odds with the law, have no hope of ever understanding it. They might learn the rules, but they will not understand. They will go through life alternately boggled, astounded and indignant over the way the law works seeing every decision as an affront to their own, personal, morality.

I do not think that the law is always right and it is far from perfect, but I do not think it is wrong because it makes life difficult for these people. The system we have is basically a good one and those who are so outside of it as to see it as a threat are those who would tolerate no system of law or justice other than one based upon the whims of their own will. I pity these people for having to live in our society but I would never wish to be their neighbours.

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