Do you remember Andy Rooney on 60 Minutes? Every once in a while, he would ask in a
plaintive tone, “Did you ever wonder why … ? He really didn’t know the answers
to his questions, but as an outside observer some things just didn’t seem to
make sense. And that, in turn, makes me
remember one area in which I wondered why without really knowing the
subject: legislative drafting software.
More than thirty years after I first thought about it, the
idea of software supporting legislative drafting is not likely to ever take
off, even if I was sure that it made sense.
However, it’s one of those things that I have never seen explained or
even tried (I did a quick Google search on the subject and turned up no
examples of such software). And if it
did make sense, it seems to me that it could make a major difference both in
the effectiveness of laws and in the effectiveness of all of us in dealing with
them.
So let me lay out the problem and my solution as I see it,
and then anyone who cares can explain why this makes sense – or doesn’t. And if no one answers, I’ll just keep on
wondering.
The Law Is a Computer Language
As it happens, I had a Dad who as a law professor gave me a
little insight into laws and the process of drafting them, through occasional
readings of material from the Legislative Drafting Fund that he ran to help
Congress draft bills and laws. And as I
grew more acquainted, and also got some training in computer science, I
realized the similarities between writing a program and writing a law.
The words and phrases used in laws seem ambiguous, but are
given meanings as specific as possible (‘semantics’) to allow clear interpretation
of the laws. The law itself can be
thought of as a giant “case” statement:
In case 1, do this, in case 2, do this, etc., where each “case” applies
a specific test, and the sum of the “cases” is supposed to cover all possible
circumstances to which the law can be applied.
The “dos” within these cases involve trials, degrees of guilt, tests of
innocence, etc.
So what’s the problem?
The problem, as I see it, is that all is dependent on us fallible human
beings. Laws fail to cover cases; they
use the wrong language to cover a case, so that the judge must either follow a
mistaken law or figure out “what it should have meant”; or new needs arise and
it is hard to determine if the existing law is adequate or not. Moreover, the proliferation of laws to fix
laws makes “ignorance of the law” the norm among non-legal types and
surprisingly frequent across specialties even in the legal profession – causing
unnecessary legal violations.
No such problems, potentially, exist with computer
languages. Computer languages allow
semi-automatic testing to see if all cases are covered, if the program performs
as intended, and if code from an existing program can be applied to a new
need. The computing industry has decades
of experience in this; the legal industry has none – unless you count training
individuals in legislative drafting for each state or for the Federal
government, periodically to be updated as new tricks arise.
Programming Instead of “Precedent” and “Common Sense”
But the implications of creating testable
software mimicking both existing laws and proposed ones goes beyond simply
legislative drafting. As I understand it
(which is to say, far too little), the ways that laws typically adapt to
ever-changing circumstances are by “precedent” and “common sense”. “Precedent”
I take to mean an initial take on how something not clear from the law’s text
should be handled, then used as a guide to future decisions (unless, rarely,
overturned). “Common sense” I take to mean in Holmes’ sense of “The life [i.e.,
the ability to grow] of the law is common sense”: we assume that the drafters of laws would be
OK with our interpreting them as providing general, adaptable guidelines, even
if a strict reading of the law would seem to contradict some extensions of the
law.
These kludges seem to carry us past much of the excesses of
the legislative process, although they do not necessarily completely solve the
rigidity of law. However, a closer look
suggests that we could do better in adapting laws to new circumstances than
simply precedent and common sense. For
one thing, it is clear that courts are now undertaking, without the requisite
expertise, to assess things like evolution and climate change, not to mention
economics. More fundamentally, there is
simply no mechanism for accepting the way that science may come to contradict a
law – as in the purported case where Indiana passed a law setting pi to 3 (all
right, that’s mathematics, not science, but still …). Science is not common sense, but it is far
more soundly based in reality. And
precedent itself may set in stone things that need more frequent revision.
While testable software that approximates laws and draft
laws cannot overcome these problems, it can provide a means of detecting
them. In so doing, it allows greater
scope for creativity in finding ways to overcome the limitations of precedent
and common sense. For example, using a
body of legislative “programs” as data, one could imagine a scientific fact and
“insert” it in a variety of cases to see how laws handle it.
Likewise, one could imagine a corporation or individual
running a proposed action against this “program” data instead of just
consulting a corporate or personal lawyer.
Would this end the need for these?
Not at all; rather, they simply would not be wasting their time and
their employer’s money with straightforward answers to legal questions.
So What About It?
I don’t know; all of the above seems reasonable to me. So why hasn’t anyone tried? Or have they, and have they concluded that it’s
not worth the effort? I await the
answer, not with baited breath, but with a sense that I’ll probably never know.
