Thursday, February 11, 2016

Law Is As Blind As Luck - Inequal, Chaotic and Unjust

Most people think the law is equal, orderly and just. But it's not.

That's not to say we should ignore the law. Humans can't live in peace and harmony without laws.

But that doesn't mean you should stake your life on the law, any more than you should stake your money on luck.

Law is like gambling. Yes, you may win. But don't count on winning just because you're right.

Equality

Luck is blind. That's the joy of gambling. Everyone has an equal chance of winning - young or old, smart or dumb, male or female. Even a weaker player can beat a superior player. Even a customer can beat the House. Once in a while. It happens. People get lucky. Who knows, it may be you.

But that's not quite true. With enough power and money, you can control your luck. You can increase your odds in winning at Blackjack by counting cards. You can be a professional poker by reading up on books, taking up lessons from better players and having a lot of cash for multiple buy-ins. No one starts at zero. The poor starts with a few dollars, the rich start with millions. How's that equal?

In law, everyone starts at zero when they're born. After that, their paths diverge. A forensics expert or lawyer will know how to commit the perfect crime. An orphan on the streets can't appreciate the value and afford the price of gloves. A rich banker accused of corporate fraud can hire the best lawyers in town. A poor shopkeeper accused of shooting a robber has to queue up at legal aid.

Yes, the law may be blind. But those who believe that everyone is equal in the eyes of the law are even more blind.

Fortune favours the suited-up

Order

Yes, all games involve a huge slice of luck. At the Blackjack table, your have a 7 and 4. You're licking your lips. High chance of drawing a ten, jack, queen, king and ace! But no, instead you hit a 2... and then boom, a queen (bitch!). Even poker, where skills are just as important as statistics, is subject to luck. Your pocket aces builds up to an A-A-A-K-K full-house, only for your opponent to reveal King quads. Yes, luck can be cruel.

Still, luck can be minimised, risk can be mitigated. There are rules to know, formulas to follow. Some are as simple as not drawing another card when you already have 20 in Blackjack (duh!). Others are more subtle, like taking note your opponent betted big and raised each time a King flops up on the table.

Similarly, at first blush, law can be rather arcane and impenetrable to a layman. Contracts can run to hundreds of pages, one can spend hours deciphering a single clause. Court trials are unpredictable.

Not so, lawyers say. Most contracts have template clauses that have definite meanings. Some cases are so baseless that they get thrown out of court without going to trial. There are more settled boundaries of black and white, than unexplored terrains of grey areas. There is more order than chaos.

But how much order is there, when it really counts? Yes, there is order in the details (a lawyer can tell you what this and that clause means). Yet, there is still chaos in the outcome (a lawyer will be hard-pressed to tell you what your chances in court are). At least in card games, risks can be statistically quantified (pocket aces have a +80% winning odds against pocket kings, by the way). When asked to rate the strength of his legal advice, the best a lawyer can do is mumble unhelpful clich├ęs like "it depends" and "fair chance".

Going legal is like trying to get lucky.

Justice

Justice (as we understand it) plays no role in gambling. Just because you're heavily in debt and in need of cash, doesn't mean Lady Luck will smile upon you.

In contrast, law is justice. Or so lawyers are fond of saying. But how true is that?

Put aside the lopsided cases. An accused caught with a smoking gun at the crime scene is as likely to escape sentence as a poker player winning against King quads. No, the true test of whether justice exist is in the tough borderline cases. For if justice truly exist, a judge would be able to weigh both sets of evidence on a scale, and ascertain which sides weighs more heavily. It doesn't matter whether A has 100 grams or 50 grams against B's with 49 grams - A will tip lower in both counts, even a child can see that.

So why do judges on the same panel still disagree with each other? Why do cases still get overturned on appeal? Are judges incapable of weighing and identifying justice?

Or is justice a subjective concept based on individual beliefs? Conservative judges are prone to uphold governmental policies. Liberal judges tend to side with individuals invoking their fundamental liberties.

Or is justice also dependent on biological factors? Research shows that paroles granted by judges to prisoners vary according to the time of the day: high early in the morning, low close to lunchtime, rising again after lunch, then falling again towards the end of the afternoon.

Towards the end of The Dark Knight, a half-scarred Harvey Dent abandons the bedrock of beliefs that made him briefly shine as Gotham's district attorney and white knight. He finds faith, instead, in a coin.

Twisted as it is, the logic has some appeal. Is justice not best served by chance, which is inherently "unbiased, unprejudiced, fair"? If those whose judgement we place our faith in to govern society (prosecutors, policemen, politicians and yes, even judges) can all fall prey to corruption, is it not better to leave judgment at the fall of an object that obeys to the immutable laws of the universe and no other?

Or maybe 'justice' as an 'objective truth' doesn't even exist. That it's just one big giant lie. And as Death in Terry Pratchett's Hogfather puts it chillingly:
"Then take the universe and grind it down to the finest powder and sieve it through the finest sieve and then show me one atom of justice..."
Can you? Can anyone?

The minted coin. A judge you can count on, every hour of the day. Doesn't get hungry, sleepy or grumpy.

Law Is Luck

Law is chaotic. Law is a coin-flip. Law can be rigged in favour of the powerful.

That's how law in our world is, right now. In terrible shape - just like gambling, if not worse.

But it doesn't have to be that way. Maybe it's just humans making it bad. Institutions are weak. Lawyers are laggards. The system is broken, and no one cares and dares enough to fix it.

Maybe there is sense in leaving law in the hands of an object. Not a coin, but a computer. After all, law is really grounded in logic, and machines processes logic better than humans.

Maybe one day, a breed of super-intelligent judges enriched by centuries of collective knowledge and capable of sifting through the atoms of justice will rise - and finally bring balance, certainty and fairness to the law.

But until that day comes, law is as blind as luck.


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