[Home]MinimalistLaw

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The thesis that law (taken here to mean binding rules of any social organization) should be as small as it can be (like a micro-kernel; do everything in "user-space" if possible). Why?

Law can be inflexible.

In many organizations, it takes a lot of time for law to change and to execute. Less formal methods of operation are faster. However, they are also more susceptible to unfair prejudices. Before the regulation of public accomodations in America, for example, there were "informal" rules about who could sit where in restaurants, theaters and buses. Certainly it was faster to tell blacks to sit off to the side rather than to confront racism in the community and in the heart of the business owner. Certainly it's more flexible for people to be able to make up their own minds about where their customers should be seated. But that flexibility allowed for painful, degrading, humiliating injustice for decades.

Law demands resources.

The more law there is, the more time that entities involved with the organization will have to devote to understanding the law. In a small organization, this is how much time is spent reading through the bylaws, when individuals could be doing something else. In a large society, this corresponds to how much of the labor pools is lawyers, some of whom could have other, more directly productive jobs if the law was simpler.

The law consumes time. Part of the slowness of law comes from the extra intellectual work needed by all parties to craft and understand the myriad details when the law is precise, and the general rule when the law is vague. Part is simply the refusal of societies with extensive and precise bodies of law to fully fund the administration of the law, leading to enormous backlogs, poorly-chosen shortcuts and interminable delays. As far as time-cost goes, the law probably needs more monetary resources than anyone is willing to give it in order to make it speedy. Nobody can say what exactly the opportunity cost curve of more speed against more money looks like, so it's basically guesswork.

In some cases, those entities regulated by laws are considered to be morally obligated not to break the law (most governmental systems of law work this way, especially the criminal side of things). It makes no sense to imagine that someone is morally obligated to obey a body of law if they do not have the resources to read and understand the entirety of that law first. However, this may not be equally true on all populations. The precise definition of aggravated assault (do you know it? does your jurisdiction call it 'aggravated assault'?) does not have to be understood in order for people to know whacking each other with machetes is illegal.

Law can provoke conflict.

By stating things precisely, all parties are denied the option to defer possible disagreements by leaving things vague. The flip side of this is that stating things precisely can prevent future conflict by making it clear to everyone what their rights and responsibilities are.

Just because something is legal doesn't mean it is moral. Yet, in many communities, this maxim is not often applied, and folks tend to think that that they are cannot be doing something really bad if they never break the law. This encourages people to do things that they would otherwise have considered immoral (and doing those things causes conflict with others). One especially strange example of this is frivolous lawsuits; in many places, they are not illegal, however many (not all) people consider them immoral.

Law curtails the freedom of individuals.

That is one of the main reason why MinimalistLaw should be a self-evident principle. Some freedoms need to be restricted as they conflict with the freedom of others (you should not have the freedom to shoot me), but much care is needed to avoid restricting freedom more than is strictly needed.

Many of the above arguments make reference to the large amount of precision embodied in law. It is worth noting that laws are not totally precise, however. Law-makers attempt to craft laws flexible enough for a judge to adapt to the particularities of the case. This increases legal risks, since you cannot just read a book and then determine what is right and what is wrong. To demonstrate to yourself the imprecision of law, try this exercise: try to find a precise definition of the works protected by copyright laws.

One point of contention is whether laws should capture what people feel is right. The principal of MinimalistLaw says no; laws are a framework for social interaction and organization, not a statement of morality. However, MinimalistLaw is not the consensus viewpoint; hence many laws do try to capture morality.

Law often creates winners and losers

To reduce conflict the status quo is often stabilized. This closes the system (traditions, ownership, status). The rich become richer and stronger with the law on their side. They have the knowledge and the resources to influence the creation of laws in their favour. They have the resources to use the law system to their advantage.

Theoretical problems

MinimalistLaw doesn't give a clue what "minimal" really is. In effect it seems a program to fight laws without discussing or judging their advantages, problems or costs.

If minimal would mean "the right amount" of laws, then there could be no conflict because everyone could agree on that. But then the concept of MinimalistLaw would break down, because the discussion "is law XYZ good to have" (beneficial, effective, necessary) would remain unchanged.

Law or no law - you always create winners and losers. Freedom is often used as a hype word to disguise the search for individual advantages. This can be at the costs of other individuals or at the cost of the community. Laws are often the reaction to individuals using existing freedoms without conscience.

The assumption that minimizing laws will maximize freedom is theoretically unfounded. Often freedom is only guaranteed by laws. The examples of Islamic states that go back to MinimalistLaw (Islam and tradition) of a few hundred pages (compared to ~10^5 pages in modern industrial states) neither exhibit much freedom nor potential for future development.

Rebuttal

I think there's no theoretical problem here: the fewer the laws the better. Very simple, effective and easy to apply in practice. It seems a program to fight the proliferation of complexity in the systems of laws. The problem with "discussing or judging advantages/problems/costs" is that by and large such discussion never happens for real, and there's always the law :) of unintended consequences. Say you have a law dedicated to the prosperity of European farmers, it's a noble cause, isn't it ? But why make it a law ? Whatever you want to accomplish with that law, try to do it without. Or if in practice it can't be accomplished without a law, then maybe it shouldn't be accomplished at all.

Of course there are winners and losers. That's the whole point. In a world of limited resources, competition is the only known good way to allocate them. Of course every individual should search after his own interests, that's again the whole point. 

     "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, 
     but from their regard to their own interest." -- Adam Smith
More enlightened individuals may recognize that it is in their own individual interests (because of religous reasons or otherwise) to seek after the wellfare of others, to be idealist, and so on, so forth. They can do that at their own expense and should not presume that others should do the same, and much less that others should be forced (by a system of law or otherwise) to give up what they think are their best interest.

As for freedom being hyped, I am affraid that this is a gross exaggeration. History has proven time and again that the "public interest" is more likely to be hyped to the detriment of individual freedoms and it all ends up that the whole society has to suffer.

The point that "laws are often the reaction to individuals using existing freedoms without conscience" is well addressed in the points I've made below. So what if some people exercise their freedom "without conscience" ? Who cares, and who are we to judge ? It only matters if that exercise of freedom really hurts other people and those people can't do anything else about it, but appeal to the law. Besides what's unconscionable for Helmut may very well be legitmate for Bayle. As long as you cannot prove that it does hurt you, Helmut, you just have to let it go. --CostinCozianu

Costin, I'm not arguing that existing law systems are good enough or that a special new law should come into existance. So your appeal "let it go" is misplaced. I think that laws can't be down-judged in general. There are many laws that make perfect sense. "Drive on the right side of the road" makes sense, doesn't embody a moral and doesn't reduce freedom noticably. "Don't drive drunken" restricts freedom but not unreasonably. Our dialogue should also take into account that we come from totally different cultures and countries. Although we share many values and act in an international open communication space, words have totally different meanings (in case of freedom even different myths) attached. US, Rumania, Austria provide completely different backgrounds. Asian people wouldn't even understand what we are arguing about. You shouldn't think that I'm representing a position that wants to restrict freedoms or maximize laws. We share many values. I just think that a bad argument - MinimalistLaw - should be called a bad argument. I think it is an argument of propaganda and emotions and not one of rational discourse.

Abstract arguments don't work. Your "the fewer laws the better" would apply to traffic laws as well as to the US constitution's "all men are created equal". "fewer laws" doesn't take into account that democracy is in fact a "law production system" with a parliament making decisions that take the form of laws. One can't maximize freedom and democracy at the same time.

The more interesting questions are: Which laws unduly restrict your freedom? In society? In online communities? Here at Meatball? Can we create a common view about these issues? -- HelmutLeitner

Costin, in total I feel the situation is unclear and I feel free not to agree. Different people may chose different priorities and I think they shouldn't be pushed to select freedom as their prime value. It is unclear, what "law" means in this context - obviously you see a constitution as something different and Bayle basically talks about all kinds of regulations and social norms. The term "freedom" isn't exactly well-defined either - if you feel up to the task, give us a page WhatIsFreedom?. As I said, cultures differ a lot. When you promote freedom, I don't know whether you do this from the position of personal experiences coming from a communist dictatorship (which I could understand very well) or as a computer scientist living in California promoting the American way of life (which I wouldn't share with the same enthusiasm). From my experiences in online communities, discussions about freedom are often just challenging existing goals or traditions of a community. In this context I usually take the side of the community because I think the core group of a community is autonomous to chose their way. I do not value the freedom of a single individual higher than the freedom of a small group of individuals. -- The field of this discussion is vast. I think it is relevant to online communities and I believe that a dynamic compromise between freedom and order must be constantly sought. "freedom above all" seems to me like a oversimplification, a "central reduction" that sounds good but doesn't solve the problems. But I wouldn't mind to go into an open dialogue if you are interested. -- HelmutLeitner

Now when I promote freedom, I promote it first from the position of someone who witnessed firsthand how life is in the absence of freedoms. One can never underestimate what that means. Although to the dismay of my online friends I do have leftist political views, I think both my life experience and my religious and cultural background come to contradict what mainstream "left" or mainstream "christian" arguments are on this subject. Both regard individual freedoms as sub-ordinated to the "greater good", and as far as I can see, such an attitude contains a contradiction in terms that both the political "left" and the religious "right" cover with so much baloney, it's embarassing to follow. The left wants to take away economic freedoms, while the (religious) right wants to take away moral freedoms, and both pretend to do it for the "greater good" of society as a whole. History has proven time and again that the greater good is better served if people do not presume to have a crystal ball that allows them to see what that greater good is, and act upon it while restricting the freedom of other people. The road to hell is paved with good intentions.
But of course, the situation for online community is different than the principle of minimalist law applied to the societies, because online communities can essentially choose to be private clubs. The guy who pays the bills has an inallienable freedom to establish the rules.
So if every particular community is free to choose as much law and as little freedom (or as much freedom and as little laws) as the founder(s) or the active member(s) damn please, the interesting question to explore is how this balancing act influences the outcome. So the only sensible thing to do other than to speculate is to look at examples, as objectively as possible. WikiWikiWeb, MeatBall, WikiPedia, UseNet, the blogging world (various blogging networks). --CostinCozianu

This is sort of a pet peeve of mine (that there are far too many laws); its relation to MeatBall (besides anything concerning law being related to communities), is OutcastNewcomer. The fact that MeatBall is legally allowed to treat "non-members" in various ways is not the crucial question; the question is, should MeatBall do these things (should from both a moral "what is right" and a practical "how does this accomplish our goals" standpoint)? -- BayleShanks

What do you mean the relation of "there are far too many laws" to MeatBall is OutcastNewcomer? Do we have a lot of laws? How do they "relate" to OutcastNewcomer? What's the relationship?

Oh, sorry, I was very unclear there. No, MeatBall does not have too many laws (c.f. OverRegulation), in fact I think it is rather MinimalistLaw in that we have lots of conventions and community feelings as to what is right, but there are only a few of these that we crystallize into very precise statements which are listed prominently. That is, MeatBall seems to prefer informal CommunityExpectations to formalized rules (c.f. LegalSolution).

The relation to OutcastNewcomer is this: there were comments about the relation of the problem of how we treat OutcastNewcomers to the legal systems governing us. I assert that, although it is important in a practical sense to know what the legal system thinks of our policies (and my impression is that it has nothing to say about them), the fact that they may be legal does not mean they are moral (and, even if they were illegal, that wouldn't imply they were immoral). Furthermore, this is not due to a failing of the legal system, but rather due to the fact that a legal system cannot encompass morality -- and, expanding upon the implications of that assertion, my view is that we really should have MinimalistLaw (in any legal system, not in MeatBall).

Summary of the relevance to OutcastNewcomer: even thought I think we are legally O.K. to do what we want to newcomers, that doesn't help us much to decide what we should do.

In a democratic society, the belief that the law reflects morality, and it's moral to follow the law, are reasonable. In fact, it's not very reasonable to believe anything else. If you don't like the law, you can change it. In a democratic society, the laws generally become better (eventually). In the case of frivolous lawsuits, nuisance lawsuit legislation was introduced. Over time, this legislation will improve so frivolous lawsuits are difficult. Of course, you are really complaining about the United States, aren't you? It's not the same everywhere.

In a democratic society, the belief that the law reflects morality, and it's moral to follow the law, are reasonable

Reasonable perhaps, and many believe it, but I assert that actually such a system is actually unworkable. A good example (seemingly extreme, but sadly not) is religion. Many people believe in various religions, and believe in their system of morality. Some of these systems of morality disagree (for example, is it immoral to have multiple sexual partners?). I assert that the proper function of law in a country with significant proportions of people of disagreeing factions is not to make choices between their moralities, but rather to provide a minimal framework for nonviolence and the production of the necessities of life. Certainly the community will make some further compromises between its various factions, but I don't think these should be written into the law (i.e., perhaps in some societies people who sleep with many people are shamed, in other societies they may not be; but I don't think it is wise to have legal repercussions for such a thing when there is a substantial minority which disagrees).

The reasons I think that other arenas are better suited than law for mediating such compromises are given in the first section at the top of the page.

In other non-governmental organizations, for similar reasons, I also feel that ironclad, hard to amend, formal written rules should be similarly minimal.

If you are of a religion prohibiting multiple partners yet you live in a country in which it is allowed, you cannot be moral just by following the law. I think there are other examples of this; for example, in the United States, supporting the KKK (a group whose purpose is to be racist) is not illegal but I feel that it is immoral. I don't think it should be illegal, either (although I believe that this sort of thing is illegal in many other countries).

Also, yes, I am complaining about the United States, because I'm not enough of a scholar to know how legal systems work elsewhere. It seems to me that systems based more on case law may be different than US law. However, certainly even in many non-US countries the body of written, legislated criminal law eclipses the ability of many citizens to read it, so that part at least is valid in many places. -- BayleShanks

I disagree with the very idea of MinimalistLaw. Law, religion and morale seem to have the same function for a community. They define a framework for our possible actions and provide a base for cooperation, synergy and community. At some point someone has thought about "is this type of action good for the community or not" and has made a decision in the form of a rule. This saves the members of the community lots of time and energy. IMHO it makes sense to rethink such decisions, but this will typically not minimize the amount of rules. I agree that existing law is growing out of bounds, incomprehensible to most people, and that it should be refactored - but society has not yet found a way to do this. -- HelmutLeitner

Here's another example of the distinction between law and morality: consider the case (inspired by real life, but thankfully not my own) of a child whose parents were often very mean to them. The parents often verbally abuse the child in a variety of ways (for example, tell them they were worthless and ugly), and this child grows up to have no self-esteem and a very negative outlook on life. I think what these parents did was terrible, and was not only unwise but also clearly immoral. However, as far as I can tell this is not, and should not be, against the law.

A law against viciously making fun of your child would do more harm than good, because it would be impossible for the court to reliably find out exactly what was really said, how often, and what the context was. Also, even if some extremes were agreed to be bad by most of society, making an actual law would prompt the prosecution of a large number of borderline cases, in which it would not be clear if what was done was "too mean".

So, even when society can agree that a particular thing is morally wrong, there can be good reasons not to place that moral judgment into the law. -- BayleShanks

I think this is a strawman argument.

I think the purpose of this page isn't clear. Is it about changing our law system? Then it should dig much deeper. Does it serve as an argument against Meatball's real name policy? Then it clearly fails because of its theoretical weakness.

Obviously the need for laws is highly dynamic. Without a drug problem nobody would create a drug law. A drug law doesn't solve the drug problem, it may create even problems of its own. This doesn't mean that it is better to have no drug law.

If a society perceives problems it may create laws to improve the situation. This solves some problems and creates some new problems. The overall effect should be positive. Often this is not the case and laws have to be changed. But this is not something one can judge from a one-sided perspective.

This is a one-sided page, so it must fall short. -- HelmutLeitner

The need for laws is grossly exaggerated and manipulated by those who stand to profit from laws: politicians, the legal profession, other specific interest groups that vary from one law to another. The finest example is the tax code: it could be simple (one line formula) or it can be obscenely complicated. It's always the case that the promoters of law masquerade their interest under the pretext of the communal good, so the tax code is complex because it has all kinds of exemption to stimulate this or that economic phenomenon deemed by the government to be beneficial. This is all just a bunch of non-sense that benefits the cottage industry that grew around the tax code.

The bulk of the laws are designed to restrict individual freedom in order to promote the "greater good". The greater good has always been a very slippery argument, and the results of imposing individual sacrifices for the greater good of society have more often than not proven disastruous for the very society. That's why the principle of MinimalistLaw should be self-evident because laws by their very nature go against the individual freedom.

An individual freedom can be restricted in principle only if:

Societies in general find it very easy to see the first condition and act upon it, but naturally tend to overlook the second condition with serious consequences. A classic example is the de-criminalization of homosexuality. Societies have outlawed homosexuality in the past because it had and probably continues to have a negative impact on people who follow traditional systems of morality (that would include my very self). The Orthodox Church of Romania vehemently opposed decriminalization of homsexuality and very recently they opposed the first gay parade in Bucharest, the same kind of behavior is found in what is called the "Christian Right" in the US. Was the impact on others so serious as to warrant restriction on the freedom of homosexuals to the point where they were put in jail just for being who they are ? Some would say: obviously not -- but it took ages to reach this conclusion. Some still pretend to this day that it impacts the greater good or the public interest.

But it's not that obvious after all. In American cities that allow gay parades and gays displaying their affection in public, inspite the fact that such things bother traditionalists at least on esthetical grounds, well, in the same cities you are forbidden to paint your house in orange and black (or whatever colors you damn please), just because "it makes the neighborhood ugly". It's likely that a lot of people have been more or less shamed into accepting human rights and individual freedoms because that's what the ellites tell them to, and they have yet to internalize those as self-evident principles.

The only resolution to these kind of puzzles is that individuals should consciously assume the responsibility to go the extra mile to accomodate the liberty of others. If we find after many millenia of evolution, that individual freedom is a self-evident principle, then MinimalistLaw should be also self-evident or in the very least a direct consequence of maximizing individual freedoms.

As such most laws and the obscene quantity of words wasted in those laws should be regarded as the problem and not the solution. Systems of law are ultimately systems of logic and are not unlike programs or mathematical theories. The more lines of code they have the worse they are.

What applies to the general society most definitely applies to wiki societies. Wiki laws are designed to deal with individuals who negatively impact others. But the laws themselves and their enactment can be more of a problem than a solution, so the principled question to ask is what can be done to accommodate individual freedom while avoiding the negative impact ? Well, we can have laws and social mechanism to restrict individual freedoms, or we can try inventive solutions to go the extra mile. --CostinCozianu

Costin, the term democracy isn't clearly defined but the structures of our different democracies are defined in our constitutions. Therefore basic values like equality or freedom are usually described in the constitutions. Laws can be made by parliaments that violate the constitutions but they are controlled and maybe reversed by using institutions like supreme courts. But that's not the point. The point is that to a certain degree democratic bodies are autonomous to make decisions (laws). Whatever principles (greater good, minimalist law, public opinion) guide the making of laws - we can not assume that people (parliaments) agree on them (in different US states for example). It's their right and their freedom to make laws within the constraints of the constitution as they think it's best for them. It's part of democracy to respect that. And no absolute authority like God or Costin is meant to overrule them. If we had such a moral or logical authority who had an answer to every question we maybe wouldn't even need democracy. -- HelmutLeitner

Jason:

First, "Welcome to this site". I've enjoyed watching some of your persectives become apparent as this page developed.

One aspect of the preceding dialogs that has caught my attention is the assertion that States don't have Rights, instead they have Responsibilities. Not withstanding the subsequent differentiation of Rights and Powers, I am intrigued by the "Right to tax" which, if I recall, was one of the rallying cries and main points of the American revolution ( "No taxation without representation." ).

My recent musings on this are coloured by:

I would be very interested in your views of this 'Right to tax'.

Regards -- HansWobbe

Thanks, it's nice to be here. Taxation is a really interesting beast which is anomalous in a lot of ways. Obviously people want to pay as few taxes as possible. However, they also give the state many responsibilities to handle problems they can't handle themselves, and everyone knows the money has to come from somewhere. If it's not going to come from conquering other societies and taking their resouces as their own, it has to come from some sort of taxation. Taxation, and budgetary constraints in general, are like any other restraint on state power. "We want you to protect the state's children from abusive or neglectful parents, but you only have $1 billion to spend on it." is not that different from "We want you to protect us from criminals but don't let the police violate our privacy without a court order from a judge who's independent of the police." The state does not have the "right" to tax its citizens - rather, it has the responsibility to do all of the things that it is tasked to do and taxation is a tool granted to the state in order to help it accomplish what people wish it would accomplish. Sometimes (often? always?) the amount of taxation the state can do is limited and thus it is forced to prioritize some tasks above others. Many times (always?) the prioritization is the center of an enormous dispute.

The "no taxation without representation" complaint is a good example. The people of the American colonies felt that the tasks they wished the British colonial government to accomplish were not being accomplished, that instead their monies were being used for other, illegitimate things. The representation they supposedly desired (actually many Revolutionary elites didn't want representation, but it was a good example of the misconduct of the British, so they used it as a rallying cry) was to grant more control over the regulation and priorities of their government. Without that, they believed the system was unjustified, as it wasn't responsive to what they considered as the responsibilities of the state. Possibly it might be fruitful to delve into the Federalist and Anti-Federalist papers to get some specifics on how this question was considered historically. -- JasonCorley

Thank you, Jason, for some thought-provoking insights.

It's going to take me several days to ponder this and decide how it fits with my on-going consideration of the roles and responsibilities of my 'elected rerpresentative'.

(This is one of the areas in which I have come to appreciate that there are vast differences between .US and .CA. None the less, though, I believe there are sufficient commonalities in several democratic systems that it may be possible to discern some valid general principles that ideally, should be encouraged at this time. After that, we may even be able to make use of some of the merging technologies to help us improve our various governments, in a constructive manner.)

-- HansWobbe

"as small as it can be" in the intro is perhaps a little vague, which speaks to the theoretical problems raised later. I wonder if a better phrasing might be along the lines of:

Given two sets of laws, both of which meet the wants and needs of a community, choose the simplest set.

This is different to the "maximise freedom" thoughts sometimes expressed. For example, consider the speed limit on motorways. A simple law says "don't travel faster than 70mph". A more complicated law would say "don't travel faster than 70mph in poor weather conditions, and don't travel faster than 80mph in good weather conditions". The first law is simpler, and is therefore more minimal. The second law allows for greater theoretical freedom.

Both laws meet the needs of the community of car drivers - the want to travel faster when the weather is good can be allowed for by choosing not to prosecute drivers in those situations, rather than by writing it into the law.

--MartinHarper

"There can be no justice when laws are absolute. Life itself is an exercise in exceptions." -- Jean-Luc Picard ;)

The "law is paradoxial"-paragraph in WikiIsParadoxical.

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