
Transforming the Law into Code - fogus
http://blog.law.cornell.edu/voxpop/2009/08/05/tidying-up-the-law/
======
grellas
Law can be significantly improved through technological innovation but, at its
heart, does not lend itself to mechanical application.

By its nature, the law seeks to regulate human affairs, which can have as many
variations as there are people, thoughts, and actions. That is, law works with
what is basically an infinite set of potential variations.

In trying to define what is right and what is wrong, what is just and unjust,
the law adopts rules and principles to attempt to make sense of the common
cases that arise. But there will always be an exceptional case waiting around
the corner.

That is why judge-made law lies at the core of law. It deals with issues as
they arise case by case in an individualized setting. When judges write
opinions, they set precedents to help guide future decisions. The precedents
in themselves embody sets of rules or principles as they applied to a
particular set of facts. When new facts arise, the law can apply the same
principles or can distinguish the new facts and declare a variant outcome
based on such facts. It is a highly customized system that can't be
systematized unless and until human conduct can be systematized - that is, it
never can be made predictable except insofar as it concerns recurring types of
situations, meaning that exceptions will _always_ arise.

When legislatures try to systematize law, they do so through statutes. These
are authoritative pronouncements of law that say, in effect, "for this type of
issue, here is what the law will be."

Statutes are so general, though, that courts need to interpret them as they
apply to individual situations that may arise under them. This leads right
back to the case-by-case approach of judge-made law.

Statutes also have implementing regulations by which they are clarified and
applied to detailed situations. Just try to read through the Code of Federal
Regulations sometime. You will find a maze of detail so individualized that no
one would possibly want to waste time trying to systematize. Again, the human
factor looms large. Tax regulations might say that this or that constitutes
taxable income. But some lobbyist has managed to get Congress to inject
bizarre exceptions. Again, though, the real problem is how any given
regulation applies to real-world facts. These come with infinite variations
and lead right back to the case-by-case type of system found in courts - thus,
nearly every administrative agency has a corresponding court (the Tax Court,
for instance).

When David Dudley Field tried to simplify law in the 1870s in California, he
got the California legislature to adopt the Field Codes. These were complete
restatements of all the judge-made law then extant in California, all set
forth in simply-worded statutes, drafted by the brightest people with the
express intention of making the law understandable to lay people. It was a
grand experiment in legal simplification. What happened? The judges began
interpreting the statutes case-by-case, had to decide how the new "simple"
language related to the older more complex language in evaluating the
continuing worth of the older precedents, and finally had to decide whether
the legislature did or did not intend to change the law from what it was
before in adopting the new language in any given area. By the time the courts
went through that maze, and then had to apply the simple statutes to many sets
of complex facts that inevitably arose in real life, they had managed to
promulgate a new body of judge-made law that was more complicated than ever.
The Field Code, then, turned out to be one of the world's biggest belly flops
- it began with a great flourish and ended up a humiliating embarrassment.

The same with form contracts - it all turns on customization. If you want to
take an elegantly worded contract and just sign it without considering how it
might apply to your deal, you are asking for trouble.

Law also has innumerable localized variations. There is municipal law (that
varies with each city or town), state law (that varies with each state),
federal law (that varies with each nation), and international law. Different
scenarios can potentially implicate laws from one or more of these disparate
levels at the same time. Who decides which law applies in a complex fact
pattern where activities might have occurred in multiple states or nations? Or
how the law of one region may or may not be qualitatively better than the law
of another? Any coding system would need to make such determinations.

That all said, if someone can figure out how to put all this in code in any
way that is meaningful, it will be one of the most stunning accomplishments
ever.

The underlying article is a good read. The idea of reducing the overall body
of law to code, though, is pretty fantastic, in my judgment.

~~~
mgreenbe
IANAL, but I totally agree---algorithmic law is a frightful prospect indeed,
not to mention totally untrue to our legal tradition.

The second point the article makes is a good one, though. Lexis-Nexis and
Westlaw are useful tools, but they are neither free nor particularly easy to
navigate. A hypertext version of the law, organized hierarchically and cross-
linked with explanations for lay people as well as expert opinions, would be
invaluable. A "Legapedia", if you will---or "Nomopedia", if you're not the
sort to mix Latin and Greek. :)

~~~
grellas
As long as it is not called a Thesaurus Legum, I am fine with it.

This would be an excellent resource, is technically achievable, and would
further the worthwhile (in my judgment) goal of undoing the guild-like control
over legal knowledge once held by the lawyers.

~~~
mgreenbe
I'm happy to see you agree, but---to play devil's advocate against my own
belief/desire---consider the following Mad Lib:

An online reference crosslinking lay and expert knowledge would be an
excellent resource, is technically achievable, and would further the
worthwhile (in my judgment) goal of undoing the guild-like control over
[PROFESSION (adj.)] knowledge once held by the [SAME PROFESSION (pl. n.)].

Are there professions about which this doesn't fit? For example, is WebMD
satisfactory for medicine? More to the point, this doesn't really exist for
computer science, the first field you'd expect to have it. What do you (and
others) think the barriers are? Unwilling/absent expert users? Lack of
incentives?

~~~
grellas
I think the practical barriers are very high, as there would be no commercial
incentive for someone to devote the enormous amounts of time it would take to
do this for any field.

In law, there is also the huge problem of licensing barriers that prevent
lawyers from practicing outside of specific jurisdictions in which they are
authorized. This heavily tends to balkanize the field and also puts up high
barriers to entry and to the sharing of knowledge and expertise.

Specific services like Lexis and Westlaw are given commercial incentives to
organize legal data (case law, statutory law, etc.) and put out high-priced,
proprietary search services that give subscribers access to many key legal
authorities. Since they do this based on very lucrative contracts, I doubt
that we will see any opening up of this information for free or easy access.

As a practical matter, the barriers will be around for a long time to come.

Unlicensed fields, in contrast, face only the practical barriers, but these
are huge. Over a lengthy period of time, though, these will gradually lessen,
as more and more significant information is brought into public accessibility
via the web - at some point, it might become practical to start and sustain a
project - maybe through volunteer efforts ala wikis or open source - that
begins to realize such a vision. But it is a long way off.

------
asciilifeform
What makes these poor naive souls think that the law _wants_ to be transformed
into code?

Millions of bureaucrats, both large and petty, derive their power from the
complexity, ambiguity, and room for arbitrary, capricious enforcement of the
existing legal code. Dislodging them would probably require mass bloodshed on
the scale of the French Revolution.

And treating the presently existing legal system as a logical program can lead
to disaster. See "What Color are your Bits?"
(<http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php>)

~~~
fatdog789
Or you know, you could just _change the law_ to eliminate their positions.

No blood, no mess, no silly truther-type calls for revolution.

~~~
asciilifeform
The very nature of law, law-making, and law-enforcement attracts such people
and repels others. Therefore even traditional revolution would ultimately
fail. One would need to do something _new._

------
mseebach
Making law "compile" could be useful in democratizing a process that's
entirely dominated by lawyers.

Once a law is in "code form", links, ambiguities, contradictions and loopholes
becomes (more) obvious, and extending it with e.g. precedent and opinions is
simple. It would also help the legislative process - you propose you change,
and everyone can run their test-suite on it, and see if and how they'll be
affected.

My first though was the software that the European Union has been developing
(I don't know the state of it) that, on the fly, translates what the writer is
typing into a intermediate language and back into the writers language - that
way ambiguities and idioms are caught immediately. It's not exactly useful for
poetry, but should help in creating concise and unambiguous texts, even in
just a single language.

~~~
fatdog789
Most of the problems with the law are in the ambiguous edge/border scenarios
that were not foreseen at the time the law went into effect, for example, b/c
the law has been extended by practice or case law.

Also, most law is applied more like fuzzy logic than like discrete logic -- a
judge has a set of factors, each of which he may weigh separately, in reaching
a decision.

------
anigbrowl
I wish I could upvote this more than once. I have been ruminating on these
ideas for several years; even given the ambiguities uncomputabilities inherent
in a natural-language legal system, every time I go look at a piece of
legislation the first thought that runs through my mind is 'why is this code
so hideously untidy?'

While we will never be able (and probably shouldn't attempt) to reduce the law
to something resembling C, I'm strongly of the opinion that the law _badly_
needs wikification if only for the sake of its own long-term acceptability.
The more abtruse and inaccessible a rule system, the greater the liklihood of
its displacement, as every tinpot dictator is aware.

------
CWuestefeld
I must disagree with the OP's justification: "this recent push for
transparency has ignored government’s central function, to pass and enforce
laws."

It is not the government's central function to pass and enforce laws, nor is
that the goal that legislators set for themselves.

From a philosophical perspective, the function is to government is to govern.
There is no reason that this must necessarily entail laws. In many cases
simple speechifying and arbitration might suffice. Very often, it would be
more appropriate to _repeal_ a law than to pass a new one. Internal
consistency is not required (or is a moot point) if there is no code of laws.
And while that seems a huge leap from today's situation, it is in principle a
possibility.

From a more practical perspective, the role that our government has taken is
to be seen to _do something_. For example, the CAN-SPAM law certainly involved
passing a law. But that law had no basis in reality; it's utterly impractical
and unenforceable. Assuming that our legislators aren't stupid, there was
never any requirement that this law be used to prosecute spammers. Rather, the
intent was to demonstrate to the public that the government was "doing
something about the problem". Thus, there was no need to ensure that it was
consistent with anything, or even that it had any actual meaning.

Thus, it's perfectly feasible for a functional government to have
inconsistency in its legal code.

~~~
fatdog789
Law cannot be inconsistent. If one law is inconsistent with another, one or
both gets struck down.

------
jcromartie

        if (plaintiff.type == LARGE_CORP) { punitiveDamagesRatio = INT_MAX; }

------
Goladus
The problem with translating legalese into a programming language is that the
targets are police officers and juries, not Von Neumann machines or lambda
calculus.

------
saurabh
I wonder how the Gödel's Incompleteness Theorems apply here.

~~~
limmeau
The author says (and I agree) that the process of judging cannot be easily
performed completely by a computer, and goes on arguing for better retrieval
systems for legal texts -- so Gödel would probably just shrug.

Actually, I think laws (at least in the Civil Law sense; I'm not too familiar
with Case Law) could be adequately represented in some formal logic language
if the value judgements are made explicit so that the semantics of the law
language specifies the meaning of most operators explicitly but leaves the
judging-operator up to human judgment.

Then, laws could be model-checked for loop-holes.

~~~
fatdog789
Case law is very rarely discrete; the point of case law is that the law is not
_and should not be_ mechanically applied.

Case law arises from the chancery courts of England, where the primary goal of
the court was to do what was "fair", rather than simply what the law said.

------
anamax
I look forward to how one can mechanically handle "disorderly conduct".

Note that many of the things that are typically considered DO are legal in
circumstances that do not have an explicit "DO doesn't apply here". Even
worse, in many of those circumstances, the identity of the actor determines
whether the act is DO and the "exemption" is usually for only some DO acts.

------
jcdreads
Is the author the same Stuart Sierra from the Clojure lists? (Just curious.)

~~~
benatkin
Yes. In the bio at the bottom of the article it says that he works on AltLaw,
which is an open source clojure app.

<http://github.com/stuartsierra/altlaw-backend/tree/master>

------
ramy_d
The hacker news title is extremely misleading. I almost typed some off hand
comment about Lessig's Code book and how I couldn't finish it because of such
ideas. This article was good though.

~~~
oconnor0
Care to explain about "Lessig's Code book and how I couldn't finish it because
of such ideas"?

~~~
ramy_d
Such ideas like coding the law. I admit it's been a while and I never finished
reading it. After having read his Free Culture book, I mean, I was so for his
ideas in Free Culture, and then it was the complete opposite with Code v2. I
couldn't stomach it, so I passed.

I remember ideas that would essentially be turning the internet into a fascist
regime where you would have to show your credentials at every stop or be
refused access to the web.

anyway, care to take a shot? <http://codev2.cc/download+remix/>

I got as far as chapter 10, but could never finish the intellectual property
chapter, or so my bookmark tells me.

