The Law is Complicated Because Reality is Complicated
In response to my post about people who represent themselves Sami wrote:
@Xenocles: The trouble with the law being "simple" is that life isn't and people aren't. Complexity in law is not inherently bad.
For a very reductive example: Killing someone should surely be against the law. We depend on the social contract in part to prevent people from stabbing us if we tread on their toe by accident and suchlike.
However, "killing someone is murder and bad" is an over-simple law, because what about self-defence? Self-defence should be allowable, right? Well then how are you defining self-defence? What level of threat is justification, what manner of killing represents a fair demonstration of the principle of self-defence?
I tend to think about commercial law more, because there are so many more instances of such conflicts, and because the lack of drama in the topics makes it easier (I think) for people to wrap their heads around it and say "oh, yeah, I could imagine myself in such a lawsuit…on either side".
First, we need a law about renting real estate. Your hardcore natural righters will say "no we don't, we just need the freedom to contract". OK, either way, moving on.
So landlord X rents space Y to tenant Z, where tenant Z runs a small manufacturing facility.
Ten years later Z moves out.
Z did not re-roof the facility. Is he liable for damages? Clearly the facility is in worse condition than it originally was. But on the other hand, it's normal depreciation. The landlord has to be responsible for upkeep, right?
Let's assume that the contract even talked about this: it said the tenant is responsible for all "customary" upkeep. We still need someone to decide…and that decision should ideally be congruent with what was decided in the same court five years earlier about a case six blocks away.
So the court decides that tenants are not customarily responsible for re-roofing. But the tenant's machinery also cracked the concrete slab a bit. Is that reasonable? Did the fact that the landlord rented this out as "light manufacturing" imply anything about expected loads?
Can the landlord wait 30 years to file the lawsuit? Why / why not?
If we decide that the landlord can wait five years, and tenant / firm owner Z sells the firm to new owner N, can landlord X sue new owner N?
What if owner Z didn't disclose the potential possibility of a lawsuit? Does that change anything?
I could go on for hours.
Young libertarians who haven't seen how crufty and hairy the real world is often want to say "specify it in a contract!", but in the absence of an accreting law code, contracts might end up being 20,000 pages long…and those 20,000 pages could be used to harbor weird gotchas and surprises, so reviewing contracts would suddenly cost much much more than it does now. So it does make sense to keep the accumulated decisions outside the contract proper, in some other document.
A software engineer might call the accumulation of laws "a third party library".
As an ancap / voluntaryist (a) I'm in favor of competing third party software packages: I like a world where we have a choice of Microsoft, Macintosh, Android, Linux, etc. and would like to see the same in the law, and (b) I think that the law contains vast numbers of necessary complications, but it contains even vaster numbers of unnecessary complications, many of which work to the detriment of the average citizen, and I think that competing legal codes would help to resolve that in so far as there would be a selective / market pressure for rationalization and simplicity.
…but I do not assert that we should get rid of legal operating systems altogether and program every application "on the bare metal" without reference to the accumulated wisdom / headaches of the ages.
Last 5 posts by Clark
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