by Barry Goldman
Back in 1987 Jared Diamond wrote a piece for Discover Magazine titled “The Worst Mistake in the History of the Human Race.” In it, Diamond argued “the adoption of agriculture, supposedly our most decisive step toward a better life, was in many ways a catastrophe from which we have never recovered.” Hunter gatherers, Diamond wrote, ate better, worked less, lived longer, and had fewer diseases than farmers. “With agriculture came the gross social and sexual inequality, the disease and despotism, that curse our existence.”
I have come to a similar (and related) conclusion. In this piece and the ones that follow I’m going to argue that the second worst mistake in the history of the human race was the adoption of the rule of law.
The official website of the US court system says:
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated
- Equally enforced
- Independently adjudicated
- And consistent with international human rights principles.
The idea rests on three assumptions. It assumes we are capable of determining what the rules should be. It assumes we are capable of arranging the rules into a complete and coherent system. And it assumes we are capable of applying the rules of that system fairly and justly. The evidence does not support those assumptions.
Human social life might be more efficient if it were governed by a system of written rules. It might be easier to administer a system that treats everyone the same. But treating everyone the same and treating everyone justly are not equivalent. A $20 parking ticket is a $20 parking ticket. But it is not the same penalty for a rich person as it is for a poor person. We can’t have a system that requires a tax audit before it imposes a parking fine, but a just system would not allow rich people to buy the right to violate the law.
In any complex system, there will be conflicting rules. We will need rules to determine which rule to apply. And there will be exceptions. So we will need rules about when the exceptions apply. And when there are conflicting exceptions, we will need rules about when to apply which one. The map, if it is complete, will have to be as big as the territory.
And when all the rules are listed, and all the arguments are made, someone will still have to make a decision. The question before that person will be: What is the right thing to do here? And there will be no rule for making that decision.
So we’re back where we started. The whole reason we thought we needed a system of written rules was to take the subjectivity out of decision making. But you can’t take the subjectivity out of decision making, and you wouldn’t want to if you could. You can’t do it because all systems of rules are incomplete. And you wouldn’t want to because it is precisely at the point where subjective human judgment enters the picture that justice can be found.
So, the first problem with the rule of law – the idea that everyone is equal before the law, even as an aspiration – is that it is unjust. No system of rules can do what we want it to do. Robert Frost once said, “Poetry is what gets lost in translation.” Similarly, justice is what gets left out of a system of rules. Anyone who has ever filled out a form will recognize this difficulty. The instant the information you want to convey gets interesting, it will no longer fit on the form. In the same way, no situation that is interesting enough to become a case can be solved with a simple rule.
Rules are Procrustean by their nature. In order to get reality to fit on a form or into a system of rules, we need to stretch the parts that are too short and cut off the parts that are too long.
Daniel Kahneman calls this process “substitution.” He wrote, “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” Questions about justice are among the most difficult questions there are. Questions about law at least appear to be more tractable. For this reason, our system translates questions about justice into questions about law.
Some people are satisfied with this state of affairs. Some, like Justice Oliver Wendel Holmes, are convinced that the substitution of tractable legal questions for more difficult questions of justice is an improvement. Holmes wrote, “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” Holmes did not believe doing justice was his job. He believed his job was to “apply the law” and “play the game according to the rules.”
I disagree. The administration of justice is not a game. And thinking it is a game is profoundly and dangerously wrong. A game is its own point. The point of a justice system is to do justice.
George Orwell can help. In Politics and the English Language, Orwell offered six rules of writing. The first five are easy: “Never use a long word where a short one will do” and “Never use the passive where you can use the active,” for example. But it is his last rule that is the most important: “Break any of these rules sooner than say anything outright barbarous.”
I am convinced it is my job as an arbitrator – and Holmes’s job as a Supreme Court Justice – to avoid doing anything outright barbarous. But this is precisely the opposite of what the rule of law requires. As the Supreme Court said, “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice.”
Perhaps an example would help.
The grievant was a 30-ish woman. In high school she was involved in a drunken car accident that left her in a coma. When she emerged she had brain damage, speech problems, and a limp. Her father worked at the big industrial plant in their small town and prevailed on management to give the her a job as a custodian. She was a cheerful, friendly type and everyone liked her.
Some years later the plant was acquired by a larger company far away. New management instituted a random drug testing policy with zero tolerance. On the first day of the new policy, the grievant was randomly selected, and she tested positive for marijuana. Management discharged her. The Union grieved. I got the case sitting as a labor arbitrator.
The grievant testified she didn’t drink alcohol. She said everyone already thought she was drunk. But she did smoke weed. “Pot is my beer,” she said.
I asked to meet with counsel privately. The lawyer for the company, a local guy, nearly fell into my arms. “Please help us,” he said. “Nobody wants to see this woman fired, but the new owners are serious and they want to come out strong with the new policy and show everybody they mean what they say.”
The legal analysis was clear. The policy was reasonable (weed was illegal, after all). Employees had been given notice of the change. The Collective Bargaining Agreement said management had the right to impose reasonable work rules. Discharge was the proscribed penalty. I had no choice.
I didn’t see it that way then, and I don’t see it that way now. I did what the Supreme Court says I must not do. I engaged in outcome-driven legal reasoning based on my own brand of industrial justice. I ruled that the grievant didn’t really receive proper notice of the new drug policy. I found her reading comprehension was impaired, and therefore posting a written notice of the new drug policy did not provide her the actual notice to which she was entitled under the Americans with Disabilities Act, and I put her back to work.
I did what I thought was right. But the system of which I am a part – the rule of laws and not of men – requires me either not to do that or to sneak around and dissemble when I do.
The solution to this difficulty comes if we return to Jared Diamond’s insight. Like the move to agriculture, society’s move to a system of written laws was a mistake. We lost something essential when we adopted a systematized, bureaucratized, professionalized rule of law. We can more closely approach what we mean by justice if we take our disputes away from the judges and lawyers, out of the marble halls and put them back under the shade tree.
We can best resolve our disputes by sitting down together face to face and talking about them.