Chapter 7 CHAPTER VI: LAW AND COMMUNICATIONS

Law can be defined as the moral control over communication and one of its forms, language, especially when this norm is under the control of some authority strong enough to make its judgments effective social sanctions.The law regulates the process of "coupling" between individual behaviors in such a way that justice is done and disputes are avoided or at least arbitrated.Therefore, the theory and practice of law includes two kinds of problems, one is about the general purpose of law, that is, about the concepts of justice, etc.; the other is about the technical problems that make these conceptions of justice come into force.

Empirically, he said, there have been such different claims about the concept of justice in history, just as there have been such different religions in the world, or just as anthropologists have admitted that there have been such different cultures.I do not believe that we can find a higher standard for judging these concepts than our own moral creeds, which are indeed another name for our concept of justice.I myself hold a liberal view rooted in the Western tradition, but which has also spread to, and indeed borrowed from, the countries of the East, which have a strong intellectual-moral tradition; I can only speak of my own and those around me's views on the necessary conditions for the existence of justice.The most appropriate words to express these demands are the slogans of the French Revolution: Liberty, Equality, Fraternity.They mean: the freedom of each person is to develop the possibilities embodied in him to the greatest extent; equality means that when A and B exchange positions, what was fair and reasonable to them is still fair and reasonable; Apart from the limitations brought about by human nature itself, there are no restrictions on the good wishes between people.These great principles of justice imply and require that no one take advantage of his personal position to impose harsh contracts on others.Society and the state may resort to coercion for their own existence, but it must be carried out in a manner that does not cause unnecessary violations of liberty.

Yet even the greatest human comity and liberalism are not, by themselves, sufficient to ensure a code of law that is both impartial and effective.Besides the general principles of justice, laws must be definite and repeatable so that each citizen can predetermine his rights and duties, especially when they conflict with those of others.He must try to be able to determine with reasonable certainty what point of view the judge or prosecutor in his position will take.If he cannot do this, a code, however well thought it may be, will not suffice to free his life from strife and confusion. Let us examine this question from the simplest point of view, that of the law of contracts.Assuming that according to the contract, Party A is obliged to complete a work that is generally beneficial to Party B, then Party B is also obliged to complete a work that is beneficial to Party A or pay Party A.If the nature of each work and remuneration is perfectly definite, and if one party to the contract does not resort to coercive means to impose on the other his will, which has nothing to do with the contract itself, then we can rest assured that the parties to the contract will judge for themselves. Whether the contract conditions are fair and reasonable.If the contract is manifestly unfair, we may assume that one party to the contract is at least in a position to refuse to make the contract.But if the meaning of the terms used is not determined, or if their meaning varies from court to court, the parties to the contract cannot in any justice ascertain the meaning of the contract.It is therefore the primary duty of the law to make sure that a person's rights and duties are not ambiguous in a given situation.In addition, we should also have a legal interpretation agency, which should be as independent as possible from the will and interpretation of the case handling agency.Repeatability is a failing condition of fairness and rationality, because fairness and rationality cannot be had without it.

From here we can see why precedent has very important theoretical significance in most legal systems, and why it has important practical significance in all legal systems.Some legal systems attempt to base themselves on certain abstract principles of justice.Roman law and the various legal systems under its influence belong to this class, and they are indeed the law of most countries in Europe.But there are other legal systems, such as English law, which openly proclaim precedent as the main basis of legal thought.No matter what kind of legal system it is, any newly emerging jurisprudence term cannot have a completely definite meaning if its limitations have not been determined through practice; and this is a matter of precedent.To not accept a decision based on an established case would be to object to the uniformity of interpretation of the language of the law, which is in fact a difficult case, and probably one with poor consequences.Every case decided should contribute to the further determination of jurisprudence, which is consistent with past decisions, and it should lead naturally to the decision of new cases.Every expression of the law should be tested against the customs of the land and the related activities of the people.Judges who are engaged in legal interpretation should perform their duties in accordance with the following spirit: if judge A is replaced by judge B, it will not cause an essential change in the court's interpretation of customs and statutes.Naturally, this is to some extent an ideal rather than a realized fact.But if we do not closely follow these ideals, we will have chaos, or even worse, a state without jurisdiction, where crooks can profit from every possible interpretation of the law.

In the law of contracts all this is very evident; but, in fact, the above-mentioned problems have wide-ranging implications, affecting other branches of the law, and especially civil law.Let me give an example to illustrate.Due to the negligence of X's employee, X, X caused X's part of the property to suffer losses.Who will pay for it?According to what proportion to compensate?If everyone has the same knowledge of these problems beforehand, that person can routinely insure his own business at the greater cost, and thereby keep himself safe.He can use these means to compensate for a considerable part of his losses.The general effect of this approach is to distribute the loss to the society so that everyone will not go bankrupt.Therefore, the law of private offense has a similar nature to the law of contract to a certain extent.Generally speaking, any legal liability, including the possibility of inability to pay for the loss, will induce the person who suffered the loss to transfer his loss to the whole society by means of an increase in the price of commodities or labor.Here, as in the case of contracts, unambiguity, precedent, and a very clear tradition of legal interpretation are far more valuable than theoretical fairness and reasonableness, especially in the assessment of damages.

Of course, there are exceptions to the above statement.For example, the old debt imprisonment laws were unfair in that they placed those who were liable to pay their debts in a position where it was difficult to obtain the means of repaying them.There are many laws at present that are also unfair because, for example, they presuppose that one of the parties is entitled to a freedom of choice that does not exist under existing social conditions.What I have said about the laws of debt confinement is equally true of labor debtors, and many other similar social ills. If we want to practice the philosophy of liberty, equality, and fraternity, we must add to the requirement that legal responsibility is unambiguous, that legal responsibility should not be of such a nature that one party is compelled to act while the other is free.The history of our dealings with the Indians is full of such instances, both of coercion and of vagueness of legal interpretation.From the earliest colonial times, the Indians had neither enough population nor equivalent weapons to deal with the whites on a fair and reasonable basis, especially the so-called dispute between the whites and the Indians. After the signing of the land agreement, this situation became more obvious.In addition to this great injustice, there is also a semantic injustice, which is even more serious.That is to say, the Indians are hunter-gatherers and have no concept of private land.For them, there is no such property as land title, although they have the idea of ​​hunting rights in a particular area.

In their agreements with the colonists, what they hoped for was hunting rights, generally speaking, only common hunting rights in certain areas.The white man, on the other hand, thought (if we gave the best possible explanation of what the white man did) that what the Indians wanted was landed property.Under these circumstances, even the semblance of fairness is impossible, let alone whether there is such a thing as fairness. At present, the most unsatisfactory part of the laws of western countries is the criminal aspect.The law seems to regard punishment as sometimes a means of intimidating other would-be offenders from committing crimes; It is sometimes seen as a means of social and moral transformation of individuals.These are four different tasks, which can be accomplished in four different ways; therefore, unless we know how to regulate them correctly, our whole attitude towards the prisoner is self-contradictory.At present, criminal law speaks now one language and now another.Unless we make up our minds that what our society really needs is atonement, whether isolation, rehabilitation, or the threat of would-be criminals, these measures will not work, but will only mess things up so that a criminal lead to more crimes.If any code of law is drawn up, if a quarter of it is based on the prejudices of eighteenth-century England, which favors the hanging, a quarter is based on the principle of separating criminals from society, and a quarter is based on indifference. A policy of ruthless reformation, and a quarter of a policy of hanging a dead crow to scare off the rest, must be of no use to us.

We could also say that, whatever the law's other duties, its first duty is to recognize its own shortcomings.The primary responsibility of the legislator or judge is to make a clear and unambiguous statement, and the method of interpreting this statement, not only for experts, but also for ordinary people at that time, can only be the only one, not many. diverse.The technique of interpreting past judgments must reach this point: a lawyer should not only know what the court said, but also guess what the court is going to say with the greatest probability.The legal problem can thus be viewed as a communication problem and a cybernetic problem, that is to say, the legal problem is the orderly and repeatable control of a number of dangerous situations.

In many branches of law, there is a lack of satisfactory semantic consistency between what the law wants to say and what the law actually considers.Whenever this theoretical agreement does not exist, we live in an uninhabited territory, as if we had two currencies in circulation without a common basis of exchange.The lack of uniformity between different courts, or between different monetary systems, has always given loopholes to dishonest brokers who, financially or morally, only He accepts payment from others in the most favorable monetary system, and he only pays in accordance with the system that makes him sacrifice the least.In modern society, criminals, like dishonest brokers, do best by gaming the law.I pointed out in a previous chapter that noise can be seen as a disruptive factor in human communication, a force that is destructive but not malicious.This is true for scientific correspondence, and it is to a large extent true for ordinary conversation between two persons.But when it's used in court, it's all wrong.

The whole nature of our legal system is struggle.It is a conversation in which at least three parties take part, say, in a civil case, the plaintiff, the defendant, and the legal system represented by the judge and jurors.It was a game in the very von Neumann sense, in which the parties tried to make the judge and jury their collaborators in every way prescribed by the letter of the law.In this game the opposing lawyer, unlike nature itself, can manage to introduce confusion into the news of the party he opposes, and he does so consciously.He managed to make the opponent's statement into something meaningless, and consciously blocked the opponent and the news between the judge and juror.In this blocking process, deception is sometimes very necessary.Here we don't need to take the legal process at face value with Erie Stanley Gardner's detective stories to see that there are several occasions in litigation that not only allow deceit but encourage it, or that not only allow conscious to conceal the intent of the sender of the message, and to encourage him to do so.