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Survival of the fittest: Law

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We live in a complex world and the law is just as complex. Things that are celebrated in one society can be illegal in another. For example, in the United States, it is legal to own a gun. In Japan, not so much. Beef is the food in the US. In India, beef is not only illegal but also taboo. LGBTQ relationships are mostly legal in America but illegal in many other countries. The law is not always just. The law is not always fair. The law is not always logical. But the law is the law. People create, interpret and enforce it to maintain social order.

Undoing society

Our ancestors started in a world free of rules. They had the freedom to be nude, violent, sexually undisciplined, abusive, unfair, and more. They gave up nudity for clothing. The right to kill was outlawed for the privilege of not being killed. Society became “majorly” monogamous which helped humans evolve into the big-brained world conquerors. These big-brained creatures then added more and more laws for issues like minimum wages, intellectual property, contractual obligations, defamation, and everything else they could think of.

In the process, society created space for the survival of the fittest and almost everyone else (which is a good thing). In evolutionary biology, characteristics may aid or hinder survival in a particular environment. Similarly, the legal system as a whole has played an important role in the development of a complex society that can and does support billions of people. The law is not static. It changes with the times. And today, the change is faster than ever.

The change is either led by a curious mind in comfort or a distressed one in trouble. At present, humans are at the epitome of both: prospering as a species and struggling as individuals. This calls for change, a big one. But there is a problem: we are out of the wise. The people who made the laws/norms over millenniums are dead. Neither did they leave behind any operating manual on the how-to of the law nor did they leave minutes of the board meeting where they discussed the need for the law. We can only make guesses about which laws form the foundation of society and which ones need to be done with for progress. This leads to our other problem: We have an abundance of the wise.

Everybody is an expert on what the laws should be. Especially in a democracy, every expert’s opinion matters. Opinions vary wildly on social welfare, abortions, freedom of speech, wealth distribution, punishments, and almost everything else. And opinions are also held strongly. Everybody wants a change, in one way or another.

So, what would a perfect legal system look like? To imagine it, we must travel to a hypothetical place: the Law Law Land.

Law Law Land

Imagine a world with states that are not defined by geographical boundaries but by a community of people such that:

  • People are citizens of a state if they consent to every law of the state.
  • There is a territory for every combination of rules.
  • The states don’t change laws but people travel to territories where every law is agreed upon by them.
  • People are free to travel to a state of their choice.
  • Everything is perfectly mobile. All the material and mental assets can be transferred to any territory without cost.
  • There is an umbrella society that provides for effective enforcement of the law whatever it is for a state.
  • All states are equally distant from each other and have similar levels of natural resources.
  • States compete for economic resources (i.e. efficient states prosper).

When such a place is established:

Every law (and a combination thereof) that survives over time, is fit. If a law is not fair, people will travel to other territories. If a law does not punish a crime enough, people will travel to places with laws that protect their interests. If a law is extremely strict, people will travel to places with liberal laws.

The places where people flourish have laws that are ‘right’. The righteousness of the law is not measured by any eternal or moral ideal but by the standards felt justified by the people living in the territory.

If a state wants communism, it is fine. Capitalism is equally fine. A place would exist where nobody owns a weapon. A place would exist where everybody owns arms. More women, and eventually men,  will be found in states with stricter laws against ‘rape’. Slavery would be abolished if nobody wants to be enslaved. No minority will be found in majoritarian states and no majority will be found in states with affirmative action. Everyone would eventually be happy but there is a catch: such a place does not exist.

Back to Real World

The world was once built like the Utopia we just visited. Humans used to live in tribal groups with different norms and customs. Now, the planet has over 190 countries and their laws are a reflection of the choices of a majority of their citizens. Indians have banned beef, and Islamic nations have penalized blasphemy. Many countries tried communism but then later moved away from it. People want some rules, they get them. Isn’t this the utopia we imagined? The problem lies somewhere else: large populations, cultural heterogeneity, and rigid laws.

The US population was 2.5 million in 1776. It is more than 130 times larger today at 330 million in 2022. “Society would be better off if all private property was abolished”,  more Americans agree with this statement than the total population of the US at the time of the Declaration of Independence. America is also more racially and religiously diverse than ever. No amount of monkey balancing can satisfy such a diverse populace.

Open market for Law

It is always better to experiment, learn, and improvise than to blindly follow an ideology. People need to experience their convictions to truly understand them. If the ideas are not put to test, they will never be fully understood or accepted. And proven ideas should always take precedence over untested ones in the realm of national politics.

We can take a lesson from Charles Darwin who illustrated evolution as an interplay of three principles: variation, heredity, and natural selection. We should allow variations to enter our legal system to better adapt it to the needs of the people, allow for its improvement, and select what works well for the people and the community as a whole.

Imagine law sanctuaries created in deserted locations around the country that experiment with different sets of rules. These sanctuaries would provide a safe space for people to explore new legal systems and figure out what works best for them. Successful implementations can be scaled up, while failures can provide valuable lessons. This could be a great way to create more efficient and just legal systems.

The rule of law is not a mechanical, but a human process, and we should treat it as such.


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