Sunday, 22 February 2015

Law is not Rocket Science

     I would be surprised if there were anyone reading this who is unfamiliar with the term "pseudoscience". Although it's often used simply as a pejorative to condemn any claim about the natural world one disagrees with (creationists call evolution pseudoscience, oil company flacks call climate change pseudoscience, etc.) there really is a meaningful distinction to be made between actual science and pseudoscience. Science is not so much a body of knowledge as it is a method of acquiring and testing that knowledge; something is properly said to be pseudoscience when it attempts to establish credibility and authority by adopting the superficial trappings of scientific claims, without actually following scientific methods.
     To some extent, I can understand the appeal of pseudoscience, especially because the subject matter of real science is usually so complex and difficult to understand. When someone speaks confidently about enzymes and antioxidants and leptons and Higgs bosons, it sure sounds like they know what they're talking about, even if we don't, so for most of us just accepting what a pseudoscientist has to say is no different from accepting what a real scientist has to say. We defer to the person who sounds like an expert.
     And the reason science is often so hard for non-experts to understand is that the natural universe was not built for the purpose of being easily understood by us. The only reason we are able to understand as much of it as we do is because our brains, which evolved to solve certain kinds of problems (including some rudimentary physics problems), are also reasonably good at general problem solving. That makes it possible to make sense of physics (we hope), but there's no reason to expect it to be easy. Indeed, when you start getting into areas of physics that are completely outside of our ancestral experience, such as the quantum mechanical realm of the extremely small or the relativistic realm of the extremely fast/massive, the discoveries of modern physics become extraordinarily difficult for our hunter-gatherer brains. So I have some sympathy for those who are taken in by pseudoscience. Science is hard, and so people who don't get it do have a kind of excuse.

     But I have less sympathy for pseudo-law, which may not be a word but is enough of a thing to prompt an Alberta Court of Queen's Bench Justice to compose a lengthy and thorough refutation of what he calls Organized Pseudolegal Commercial Arguments. A common feature of many of these arguments (often promulgated by people calling themselves "sovereign citizens" or "freemen on the land") is that they seem to understand law as being some kind of arcane magic, complete with special and secret incantations. OPCA theories often include bizarre and unnecessarily complex entities, like the following graphic which came across my Facebook feed some months ago:

     This is kind of preposterous. A corporation is an artificial person, a legal fiction, invented and modelled upon the ancient and pre-legal concept of the natural person. Yes, plain old ordinary personhood. You are not a corporation, you are not stock, you are not collateral. You're just a person, and you have been since you were born. There's nothing magical about your social security number (or our Canadian equivalent, the Social Insurance Number). It's just a unique number meant to allow the government to know which John Smith is which for its various administrative purposes. This nonsense about corporate entities is all just ignorant hocus-pocus from people who know just enough legal terminology (and just little enough of its actual meaning) to get themselves hopelessly confused, and then to try to turn that confusion to their advantage.

     To be fair, even lawyers seem to be subject to somewhat superstitious beliefs about the law, particularly when it comes to drafting contracts and other legal documents. There is tremendous risk-aversion, so simply copying the language of previous instruments is perceived as safer than drafting up new language from scratch. That's actually a pretty reasonable strategy most of the time, but it can get a little silly on occasion, especially if one is refusing to change something not because the existing text is exactly what one means, but because one is uncertain what will happen if this or that word is removed.
     For example, the reason many legalese documents include redundant phrasing ("I hereby give, bequeath and donate...") is a legacy of the time after the Norman Conquest, when the Engish nobility spoke French, the commoners spoke English and the people who could read and write spoke Latin. It wasn't that "give" and "donate" had different meanings; it was that the courts wanted to make sure everyone understood the meaning, so they included as many synonyms as possible to ensure that at least one of them would get through. Of course, the adversarial process being what it is, some clever shyster might call attention to one of these words being missing at some point ("Normally, my Lord, in a contract of this sort, one gives, bequeaths and donates the property in question, but clearly here both the latter two words are absent, meaning that the contractor could not have intended to bequeath or donate the property..." so there has always been a kind of pressure against simplification. Lawyers don't want to get into trouble by messing with something that seems to work, even if they don't fully understand why it works. But the lawyer who doesn't understand exactly why a particular contract precedent is the way it is generally isn't stumped by a cosmic mystery, but rather faces an eminently solvable problem she just doesn't have the time or inclination to bother solving.

     That's the difference with science. Science studies the natural world, which doesn't care whether or not we understand it. Law, however, is ultimately about human interactions and how to resolve disputes between humans about what ought to be done. In other words, law by definition must be intelligible by human beings; it cannot be some inscrutable mystery. Sure, no single individual understands all of it, but the very nature of law is such that all of it is human-made reasoning about human choices. Moreover, it is supposed to be transparent and available to everyone; the very notion of a secret law is absurd. There can be secret contracts and proceedings conducted behind closed doors, but a secret law cannot be binding on people who can't know about it.
     So, for example, consider the preposterous claim that some Sovereign Citizen types like to make in Canadian courts. They point to the motto displayed on the wall, "Ad mare usque ad mare" which is Latin for "From sea to sea", and claim that it means the Canadian court is an admiralty court with no jurisdiction on land. What's wrong with this argument, apart from the complete failure to understand what a motto is? Well, it implies there's some kind of secret "real" law that we're all in the dark about, and this secret law is somehow binding upon the courts and prohibits them from exercising authority over those who cite it.
     That isn't how courts work. There may be points of law that the courts take time to understand correctly, but there are no secret laws. In practice, the law really is whatever the court says it is. You absolutely can argue that a court has no jurisdiction, and such arguments are often made, and successfully, too. But here's the thing: you actually have to convince the court, which means if they say they have jurisdiction after you've made your argument, well, too bad. If you think she's wrong, you can appeal to a higher court, but it will be a higher court that decides.

     Don't get me wrong. Law can get complicated, and yes, you probably should talk to an expert (i.e. a lawyer) if you have any questions, and even if you don't think you have any questions, you probably should have some. But a lot of the time, the reason you need a lawyer is not because the law is complicated so much as it is because lawyers are trained to see disputes in a dispassionate, non-partisan way, and when you're in the middle of a dispute it can be very hard to get the emotional distance to be even a little bit objective. The basic principles of law itself are easy, and not at all mysterious.

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