The Nature of Laws

It occurred to me I haven't bothered you with my random thoughts for a while, so here's a topic that keeps coming back to me: The consistency of laws. In mathematics it's the whole point, in physics it's a guiding principle, but when it comes to our societies' legal system, the consistency of laws is considerably more murky.

As a teenager, I had a period when I was convinced that direct democracy would be the answer to all flaws in our democratic system. I also thought that the reason why we do not have a direct democracies is that it was in practice unfeasible. After all, Germany has some more inhabitants than Switzerland. With the advent of the internet, so I thought, direct democracy should eventually become practicable - globally! - and lead to flourishing of democracy.

I was really excited about that prospect for some while, until it occurred to me that there are other good reasons why a representative democracy is preferable, reasons that our, your, and their funding fathers thought about, and that a teenager needed some time to figure. It is ironic that a decade later I found the excitement about direct democracy echoing back at me from the internet, lacking exactly the awareness of the merits of representation that I had been lacking.

One of these merits of a representative democracy is what Jaron Lanier referred to very aptly as “low-pass filtering.” Opinions are easily influenced by all kinds of events and peripheral news, and in times when hypes pass around the globe in next-to-no time these opinions are in addition strongly amplified. One couldn't base any decent policy on such a constantly changing background of opinions.

Another problem that is that even without the high-frequency noise, people's opinions are inconsistent. He was a strong defender of freedom of speech, untill that blogpost proclaimed his product is a big piece of shit. Nuclear power plants are great, unless they are in your backyard. And abortion is evil until your teenage daughter dies in labor.

These are several variations of inconsistencies between laws on different level. The constitution (basic law!) is on the most fundamental level. It's what defines your nation. These laws are, for good reasons, very hard to modify. But they are also very general and with that quite vague when it comes to concrete applications. In other cases they are just outdated and require new interpretations; a good example is property rights in times of file sharing. But the point is that all laws more concrete for specific situations should be in agreement, read: consistent with, the fundamental laws.

If law was maths, one could derive everything from the basic axioms, but of course that's not strictly possible. One of the main reasons is that eventually our legal system is based on words that lack precise definitions and interpretations that change with time and context. But still, measures have to be taken to make sure no laws exist that are in conflict with each other, and that means in particular no newly passed law should be in conflict with the agreed-upon basic laws. Otherwise the legal system is inconsistent.

One problem of that sort that has made a lot of headlines in the last years is gay marriage in the USA. If your country grants equal rights to all its citizens they better be all allowed to marry their partners. It's not a question of public opinion, it a question of consistency with the constitution and a case for the constitutional court. As we've seen, the public opinion is indeed, sadly enough, inconsistent. But that's only my opinion of course, and I'm not the constitutional court.

Another problem of that sort, the one that triggered this post, is Switzerland's ban on the building of minarets in a recent referendum. Yes, that is correct. Nevermind religious freedom. But hey, the Swiss Justice Minister says the decision is “not a rejection of the Muslim community, religion or culture.” No? Then what is it? Let's see:

“Supporters of a ban claimed that allowing minarets would represent the growth of an ideology and a legal system - Sharia law - which are incompatible with Swiss democracy.”

The catholic church is of course a great example for democracy. But more importantly, banning minarets cures the symptoms, not the disease. It's a pointless, stupid, ineffective and constitutionally doubtful decision that should never have been allowed as referendum to begin with. If you have problems with certain practices a religion exercises, it's them that you should ban, not their architecture. I'm glad Switzerland is not in the European Union.

Now that I've voiced my outrage, let me say the underlying question is of course a tricky one. What questions is it that you can pose to a group (crowd, electorate) and get a useful answer? James Surowiecki in his book “The Wisdom of Crowds,” has summarized many research results that have targeted this question. But many questions still remain open and, what is worse, none of these results seem yet to have made it into application.

Knowing which questions one can pose to a group under which circumstances and expect a useful answer is important for our lives on many levels. Just take the question whether a group of successful scientists is able to select the most promising young researchers. It's not that I actually doubt it, what bothers me more is that we don't know. We are still operating by trial and error, and this is one of the reasons why I say we need to finish the scientific revolution.

Since I'm afraid these thoughts have been a little too random and I've lost the one or the other or the other or the other reader, let me wrap up: Direct democracy is not always the best option, and inappropriate use can result in inconsistencies. If you want intelligent decision making - in a referendum, in your committee, in your company - you better first figure out under which circumstances which way of aggregating opinions has proved to be successful.

“Public Opinion... an attempt to organize the ignorance of the community, and to elevate it to the dignity of physical force.”

~Oscar Wilde