Legal solutions are preferred in a number of contexts:
In some cases, legal solutions are mandated by powerful people and institutions in an effort to avoid any need for emotional involvement with those affected by the decisions. A legal solution, once crafted, provides a standard framework that can be implemented broadly without further thought. For example, retail stores increasingly use a "legal solution" for handling returned merchandise. They have specific policies that they follow and will refuse returns that do not meet them. This contrasts with the situation 10-20 years ago where returns were handled on a case-by-case basis.
Because legal solutions eliminate the need for judgement, their use is effective in reducing the likelihood of charges of bias based on race or other prohibited factors.
Excessive rulemaking is generally a hallmark of bad managment. See OverRegulation. Contrast MinimalistLaw.
There are two types of laws. There are the hard laws, such as "Do not drive faster than 90km/h on the highway." These rules benefit from being clear, precise, and making crime incontrovertible. However, they are inflexible as they are negotiable only on the legislative level where the laws are formed, barring higher laws that controvert them (such as the Constitution). There are also soft laws, such as "Drive safely on the highway." These rules benefit from being negotiable and tolerant to situational variances. If the weather is bad, driving at 90km/h would be very dangerous. If the highway is empty, straight, and the weather is clear, enforcing a speed limit is inhuman (e.g. rural Saskatchewan). However, the extra step of negotiation makes the process of indicting a highly contentious affair, with the hidden biases and failures of those involved in the negotiation playing a part. This is why it is necessary for TheCollective to judge soft laws, normally represented in the RealWorld by a sample population of jurists. Conversely, hard laws lend themselves to TechnologySolutions; this is why it is preferable to have soft laws online, even if not necessarily the best, as some eager builder will lobby to encode the rule.
Legal solutions suffer from RulesLawyer?s, who seek loopholes and ignore the implicit. They benefit with both hard and soft laws; either holding people to ridiculous hard laws or "negotiating" soft laws in bad faith. The obvious reaction to rules lawyers is to seek to close loopholes, hoping to beat the lawyers at their own game. However, this significantly reduces clarity, which is a failure of OpenProcess. It may be more appropriate to defend against lawyers with PeerPressure: disparaging such behaviour as counter-productive and somewhat anal.
Two other types:
Internal law is preferable to external law, and both are worse than a social or technological solution. For example, a legal solution to copyright disputes isn't as effective as a social situation: delete the disputed content. By creating a yardstick that "must" be defended, law can sometimes hinder natural attempts to LimitDamage - inviting a tough response where a softer approach might be more applicable.
Any community which attempts to make illegal things where the CommunityDoesNotAgree is heading for trouble. People tend to disregard laws they disagree with, unless penalties are very severe and the enforcement effective. So either you have a body of people accustomed to breaking the law (hence less respectful of the authority that writes it) or you have a society that routinely imposes draconian penalties for minor infractions. See the drug laws and DMCA in the US for an example.
Now, how best to remedy situations where the government outlaws something that many people think is perfectly reasonable is a matter for debate. Some people seem to think quietly breaking the laws in question is a good form of protest. Others think you should obey the laws, but work to change them. Still others prefer to flagrantly violate the laws while trying to draw attention to themselves: CivilDisobedience?.
Software, publishing, music, and other information businesses have the benefit of an uncluttered regulatory framework. Oh sure, we have copyright, and so those of us with an international audience have to be up on the Berne convention, and the copyright laws of our nation and a few others where we have servers or some other sort of presence. We have to watch out for patent and trademark problems, and respond to takedown notices, and may require some awareness of how libel laws affect what we allow others to say using our resources, and so on. Export limitations on cryptography. Obscenity laws. Really a walk in the park, considering.
Most businesses have a much more convoluted regulatory framewark. Consider a restaurant. In the U.S., it goes like this:
The point is that it is impossible to achieve 100% compliance with such a large body of law, particularly when so many areas are open to interpretation. This situation is not unique to restaurants, nor to the U.S. Many people with limited background in business don't realize the difficulty of solving the maze. And, the reality is that because of costs and the overall competitive and regulatory environment, that businesspeople take a middle road: complying with most of the more important regulations and disregarding others.
Much of the compliance work to be done doesn't create value for anyone. There are forms to fill out, licenses to obtain, records to keep on file. The burden is especially problematic for smaller businesses that cannot amortize the compliance cost over as large a revenue base.
OnlineCommunities are just like any other community in some sense. As a social system, they require laws to regulate social interactions that would otherwise be subject to the whims and fancies of human nature. Humans don't normally tolerate this any more, and rather prefer to create rules and regulations. The question arises then, Do these rules and regulations differ much from face-to-face organizations or other bureaucracies? And if so how?
Relevant issues include
Lastowka, F. G. and Hunter, D. (2004). The laws of the virtual worlds. California Law Review, 92(1), 1-73. Available from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=402860
It seems wrong to see an online community constitution as a LegalSolution, it still has the character of WikiAsGame, as a set of rules that can't be legally enforced. -- HelmutLeitner
Internal rules and guidelines are a LegalSolution, though they are very different beasts from an externally imposed LegalSolution. Sometimes they are backed up by external law, sometimes they are backed up by a home-grown PoliceForce. -- MartinHarper
Internal rules are a social or cultural solution. If one can send a lawyer or a police man, it's a legal solution. Internal rules are almost never backed by external law, because in that case the rule would be redundant. Sometimes external laws are rephrased or otherwise explained, but that doesn't make them internal rules. -- HelmutLeitner
An issue of librarianship - how shall we define LegalSolution? It's defined here (and I've been using it to mean) both "internal law" (rules, policies, guidelines, housework rotas, etc) and "external law". Maybe it would be clearer to specialise the concept of a LegalSolution to external law, and the concept of "internal law" to a different place - perhaps RulesSolution? It's just a question of scale that seperates a housework rota drawn up between two people from a free trade agreement drawn up between two countries, but scale matters, and seperate pages might clarify things. -- MartinHarper
"LegalSolution" isn't really the right term for rules and guidelines in a community - at least not in the context of ConstitutionalCrisis. Sure, a solution involving the creation of a mini-"legal system" might be called a "legal solution" in everyday language, but this doesn't correspond to the use of LegalSolution on this wiki. The creation of an internal group constitution is one variant of what we've been calling a CommunitySolution. The term LegalSolution, as we've been using it here, means the use of "legal force", through usage of the external-world's legal system.
On the other hand, the creation of an internal legal system might have some bearing on future disputes, should external legal force be used in those disputes (i.e. maybe the external-world law would respect the internal legal system over and above some other measure of communal will that we would think is more appropriate). But it's still a CommunitySolution, not a LegalSolution, even if it has "external legal effects" (what doesn't?).
Well, in that case this page definately needs a rewrite, and some of the pages linking here need fixing. At any rate, it seems that we've been using the same term in different ways, so a fix would be good. -- MartinHarper
I respectfully disagree with Bayle. The term LegalSolution has been consistently applied to other legal frameworks that do not come from the states we inhabit (e.g. policies, rules, by-laws). We just rewrote it a few months ago--where isn't it clear about this?
A constitution is not a CommunitySolution, but a LegalSolution. I have long thought "CommunitySolution" is better named a SocialSolution?. A community solution has consistently meant something like organizing a group to go pick up litter in the neighbourhood park once a month. (vs. say writing an anti-litter municipal by-law)
Law are words written that must be obeyed are laws. (cf. Dictionary:law) Organizations have by-laws, religions have divine laws, states have their own laws. There is the law of the sea, and contract law, and CodeAndOtherLawsOfCyberspace. Is there another synonym for the word law? I don't really think so.
Rules are not the same thing as laws, as rules may simply be guides. They do not have to be obeyed. -- SunirShah