1. I am placing my views on the nature of a new legal system here only because people will want to know "where I am coming from"; and perhaps to supply a point of departure for those who aren't accustomed to addressing the problems of the legal system. For their participation is precisely what is needed, the present system suffering so heavily from inbreeding of thought and ideology.

  2. I view my contribution mainly as an activist and facilitator seeking a sufficient consensus to get the project off the ground. Accordingly, there is no attempt here to draw a unified picture of what such a system would look like. Rather, presented is a smorgasbord of ideas obtained at different times and places primarily from my dealings with the criminal justice system over the past three years and from the many faculty and students who have been so kind to share their thoughts with me in my trips around the University of Florida campus.

  3. I like to think that no one could review this section without having ideas of their own on the nature of a better legal system; and if this is the case it is serving its purpose. As a matter of policy I don't divulge sources for anything discussed herein unless given explicit authority to do so, so that people may feel free to discuss these issues with me.

  4. A word about criminology. I view the science of criminology as having been born to fill part of the void created by the fact that law is not a science; and as such it would appear that a major area addressed in this home page -- dysfunctionality of the legal system as a cause of anti-social and criminal behavior -- would be within the scope of criminology. However, from what little I know of criminology, it appears closely associated with and dependent to some extent upon the legal establishment, both financially and ideologically.

  5. More than this however, having seen how the legal and jail systems are major contributors to crime in my 18 months in jail over the past three years, I find it difficult to understand how the legal and jail systems could still be presenting such a problem if criminology had been addressing this area. Thus I assume the problems of the legal system are somewhat off-limits to criminology. I could be wrong in this and would appreciate being advised about any sources out of criminology or anywhere else for that matter that address the problems of the legal system.

  6. Of course I concede that "easier said than done" would appear to be a gross understatement on the subject of legal reform; for one needs only read Florida Bar literature to view their closed, inward focused mutual admiration society (as examined in the section of this home page on access to the legal system.) It is thus my job to demonstrate to potential contributors to such a project that we are increasingly approaching some far more unthinkable alternatives to a new legal system if something isn't done soon to replace or open this ancient system up to readily available 20th century knowledge and perspectives.

  7. In referring to the proposed new discipline of law as a science, I am referring to its character in utilizing the scientific method rather than to any particular established science nor does it suggest that I am excluding in any way disciplines outside of the sciences. For in my view, the design of a system is best done according to rather mainstream and proven concepts by those in the various social sciences, hard sciences and other fields such as what is now law, religion, history, philosophy and many more, as serves the purpose.

  8. For as far as I can see we have mainstream knowledge and perspectives vastly ahead of the present legal system so it isn't necessary to go into more controversial areas to come up with a vastly superior system. There is of course no hard and fast rule on this and of course designing a new discipline of law presupposes that from its initial seeding, it will develop its own character and ideology as it fills its social niche through time as a social science; as all the existing social sciences have done. For of course it is the inability of the present legal system to do this that is its great failure.


  9. In the past, when legal systems have degenerated to an intolerable level, each within its own context and culture, they have been changed; sometimes through peaceful means and sometimes through some of the most atrocious means of which mankind is capable. Thus the much needed new code for the Roman Empire, reducing 3,000,000 lines of code to 150,000 lines (5 percent) of that amount, installed by the Emperor Justinian in 533 AD was achieved through peaceful means; and the code of 1804 for France had to wait for a long destructive and bloody revolution to find expression.

  10. It is scarcely intelligent to argue whether or not the Florida legal system will cause a revolution to justify changing it. For, although the continued frightening build up in anti-government paramilitary organizations and such things as "common law courts" are a product of the present dysfunctional legal system in a host of ways deserving of the highest concern, this legal system is a gross transgression of our basic humanity, far below any level of honesty, functionality or ideological integrity that our culture both requires and has the right to; particularly when considering that the means to create a far better legal system are clearly available.

  11. One need only cite a few of the horrendous problems presented by the present legal system:

    1. In Florida, more than half of our citizens with legal problems don't even have access to the courts; the courts being reserved largely for the rich. Thus disputes are resolved not by the rule of law but by the rule of money, power, influence, violence, and all manor of substitutes to the rule of law; with many of these unattended civil problems such as domestic violence and substance abuse spilling over into the criminal justice system bringing both great public expense and destruction to people and families thus further compounding societal problems and expense.

    2. For its part, the criminal justice system is a massive failure -- a veritable breeding ground for anti-social and criminal behavior, recidivism, the destruction of families, placing families on welfare etc., to the point where this country now has five times (seven times according to the Economist magazine) the number of jail beds per capita as major European democracies such as England, France and Germany; with the figure in Florida already pre-scheduled to go to ten times this number in ten years. It is thus drawing massive amounts of money away from other desperately needed support for our state's children, education and many other areas all of which will only re-appear transformed into far greater problems in the future; all a downward spiral with no end in sight.

  12. However when it comes to assuming responsibility for this state of affairs, the present legal system is fully teflon coated. When you ask lawyers about all these problems they will tell you its not their fault. Its the fault of the legislature, the public, criminals, Columbian drug kings, immigration, fuzzy thinking social scientists -- anyone and everyone but them. And of course they are right; for that is precisely the way they have designed "their" system -- to get around any and all responsibility.

  13. And this brings us to one of the many antiquated modus operandi of the present legal system; for it embodies a gross violation of one of the most fundamental principles of management science -- that authority and responsibility be commensurate. Thus judges have great authority to dish out court orders all day long but no responsibility for the end result of their actions. Should the corporate world adopt such a view of management, we could do no less than predict the demise of capitalism in very short order.

  14. And they have accomplished this by simply making sure everything they do is a procedure of some kind; thus allowing them to merely satisfy the requirements of a procedure to claim successful completion of their job. Thus when divorce court leaves the two parties pennyless from paying lawyers and hating each other even more than when the divorce proceedings started -- the legal profession can just walk away; having done its job. When drug addicts cycle endlessly through the jails -- the legal profession can just walk away; having done its job. Don't like it? Sorry, nothing we can do. See your congressman.

  15. Its form over substance. For, their procedures are the form, and the substance is our Nation's basic moral and religious values, psychology, sociology, economics etc; all of this fundamental knowledge of the modern world scarcely even entering the legal process.

  16. And since lawyers spend the whole of three years of schooling studying little else but such procedures they leave law school with an abiding belief in, if not addiction to, the idea that their ritual of state power, masses of detailed statutes, case law, and the adversarial trial are essentially the best if not only modality of dealing with most of the worlds problems. In essence the present legal system has elevated form into systematic complicated stylized ritual crowding out basic moral values and substance.

  17. And it is thus the massive failure of this process that only inspires the legislature to churn out more and more masses of statutes addressing every conceivable ill, real or imagined, in the abiding belief that the gross failure of previous legislative micro-management of everything conceivable through a mindless legal system can be remedied by yet more massive legislative micro-management of everything conceivable through a mindless legal system. For such micro-management by the legislature is a necessary part and parcel of a mindless procedure based legal system; facilitating however a lot of employment for both the legal profession and legislators.

  18. And since lawyers and judges are only trained in reading and applying statutes and case law -- procedure -- the present legal system, backed by its state power and ritual, shows little sign of being prepared to deal with these problems; and indeed couldn't possibly deal with them under its present ideology.

  19. This points out of course a second major problem in the operation of the present legal system. There is no getting around the fact that lawyers and judges need the training sufficient to understand the problems and conflicts of the people before them, whatever those problems and conflicts may be.

  20. Try as you may, you can't proceduralize away the need for substance in decision making. In business, a manager in marketing needs to know marketing; a manager in software development needs to know software development; a manager in customer service needs to know customer service; and they all need to know the basic fundamentals of good human relations and management techniques.

  21. In like manner, we can be thankful the medical profession has not reduced the practice of medicine to an endless set of detailed procedures as the legal profession has. Each time a doctor should prescribe treatment, it would be recorded in "case law". Every subsequent doctor would consult this endlessly growing body of "case law" prescribing the same treatment according to the same symptoms. In the same manner that a divorce court judge knows how to sift through endless cases on divorce but has no training in the psychology of divorce, an education in medicine would consist of learning how to sift through endless "cases" about medicine but nothing at all about medicine.

  22. Thus when a patient is prescribed the wrong treatment for a particular set of presenting symptoms causing him to pass out requiring hospitalization this is duly recorded in "case law". Subsequently every time he and others go to a doctor with the same presenting symptoms thus getting the same wrong treatment and passing out, we might expect to have patients cycling through hospitals in a similar manner as drug addicts cycle through jails and might expect to see five times as many hospital beds as the Europeans have; in addition to five times the number of jail beds as they have. This is not a strained argument. The criminal statutes we have only fill up jails, making the drug culture worse, not better.

  23. And like lawyers, doctors could claim no personal or social responsibility for their handling of these cases and defeat any medical malpractice suit by demonstrating that the right case law was followed. This conversion to procedure over substance would of course vastly increase employment for doctors as well; not to mention employment in the publishing industry, publishing masses of "case law".

  24. Thus proceduralizing the medical profession would offer many of the same benefits to doctors that the legal profession enjoys. And of course we could talk about proceduralizing just about any profession so that all professions could enjoy the benefits of having neither personal nor social responsibility for their actions, and much better employment.

  25. The legal process, that is the process of making statutes by the legislature, case law by the courts, and applying this body of law through the adversarial trial with judges and juries is a decision making process-- guilty, not guilty, divorce granted, divorce not granted etc. Moreover it is a decision making process that is entirely unique to the legal system; no other discipline employing anything even close to it. In fact, virtually all disciplines employ essentially the same decision making process except for the legal system which is radically different.

  26. This begs the question of why other professions haven't adopted this process; particularly when it is seen to have such great advantages such as avoiding both civic and personal responsibility and increasing employment. Thus it is instructive to apply it to another profession, say architecture, to see why.

  27. We will assume that an architect has been hired to design a house. The house differs with an existing design, which has been approved and built in the town, only in that the basement is made of wood instead of concrete block which the existing house has.

  28. Our designer will draft and submit the necessary "legal papers" to the "court". The court consists of a public official ("judge") who knows nothing about architecture but has gone to school for three years to learn how to sift through all the designs that have been previously submitted in the town over the past 200 years plus the "statutes" which are designs for houses that have been made by the "legislature" consisting of elected officials who also know nothing about architecture either. The court then impanels a "jury" which also knows nothing about architecture to determine if the submitted design is sufficiently close to an existing design to allow the house to be built.

  29. Thus, when the case is tried, we have the judge who knows nothing about architecture, sifting through both statutes and case law, which were made by "legislators" or "judges" neither of whom knew anything about architecture. We have the jury which knows nothing about architecture trying to decide whether the design of the house in question fits some previous design; not whether the basement will rot out from under the house, which is the real question to be addressed.

  30. In the event the prospective home owner has lots of money he may hire an expert witness who will say what the home owner wants him to say and who knows something about architecture. In this event the "State" may hire another expert witness who will say what the "State" wants him to say and who knows something about architecture. The jurors, not knowing anything about architecture, won't know which expert witness to believe if either.

  31. Of course, it should be noted that this is not the procedure actually employed to gain approval from a public body to build a house. Fortunately it is much more logical. It is however the procedure that would be employed if the standard "legal process" or anything close to it were employed.

  32. Lets try another example. Suppose an automobile designer at Ford wished to submit a design for a new car to Ford management. First, he would submit the necessary "legal papers". His "case" would be heard by a "judge" and "jury" who were other Ford employees none of whom knew anything about automobile design and who would compare his design with a set of designs ("statutes") previously made by other Ford employees who knew nothing about automobile design. As well they would compare it with previously submitted designs ("case law") that, although made by automobile designers, were written up and previously classified by people ("judges") who knew nothing about automobile design.

  33. These examples reveal the problems with this procedure for decision making whether in the context of a legal system or otherwise:

    1. The entire knowledge base upon which a decision will be made is "knowledge starved". For it is constructed by people-- judges, jurors and legislators-- none of whom have any expertise in the subject.

    2. The people themselves making the decision are "knowledge starved" for none of them-- the judge or jurors-- have any expertise in the subject to be decided.

    3. The decision must be based on a set of detailed rules ("statutes" and "case law") which is only effective for very simplistic decision making even if they are assembled by people with the necessary expertise.

  34. As a consequence, there are two serious drawbacks to this method of decision making:

    1. Because the entire process is starved for knowledge upon which to base a decision (substance), the result will be very idiosyncratic. It's a crap shoot.

    2. In the best of circumstances, the process can only handle very simple easily understood major issues. Complex multifaceted questions requiring much expertise will profoundly confuse the process and many important aspects will fall through the cracks.

  35. It can be seen that both of the above two principles played important roles in the O.J. Simpson murder trial. For, knowing these limitations, the defense lawyers simply massively overloaded the process inevitably leading to a very idiosyncratic result.

  36. As a corolary to the above characteristics of this decision making process, it may be argued that the simplistic characteristics of many legal issues themselves, such as the grounds for divorce or the criminal justice system's simplistic maxim "if you do the crime you do the time" are dictated by the process. In other words, this decision making process can't handle anything more complicated; and of course one must ask whether it can handle even the simplest decision making function intelligently.

  37. Thus in the O.J. Simpson murder trial, if it had been tried by a well motivated panel of say three judges who between them were trained in all of the psychological, sociological and evidentiary (such as blood samples, genetic issues, etc.) of murder, the trial would have been over in two weeks, with a much more valid result. In the case of divorce the judge would have training in the psychological, sociological and economic issues of divorce and would be in a position to do the best he could in the far more complex issue of putting the people's lives back together for their own good and that of society. In the case of drug addicts going before the criminal court the judge trained in drug addiction would examine the far more complex issues involved than just "if you do the crime you do the time" and do his best to make the defendant into a good citizen.

  38. Substantive law (statutes and casee law) administered through the adversarial trial are the very core of the legal profession's antiquated dogmatic world. We have been conditioned to accept this legal process as the only process over two thousand years of use; which the legal profession appears hidebound to perpetuate. Studying this structure for three years in law school may also leave lawyers addicted to the idea that their world is the best of all possible worlds or if not that it is the only possible world; both falacies. Thus it is quite possible that the simplistic solutions to complex problems such as automatically placing people in jail for every conceivable kind of behaviorial problem (if you do the crime you do the time mentality) that lawyers often advocate, is consciously or unconsciously a product of their profesisons incapacity to apply anything more complicated or comprehensive to the solution of society's complex contemporary problems.

  39. Undoubtedly this method of decision making was much more acceptable and functional in the simpler static world of previous centuries where there wasn't much in the way of expertise as we know it available; there being essentially no psychology, sociology, economics, architectural design for houses, mechanical design for automobiles, etc. as we know them now. Further you didn't keep your money in an offshore bank, you kept it under your mattress. In this much simpler world the process had a much better chance of performing its decision making function in a reasonable and acceptable fashion.

  40. One last observation might be made. Much of the justification for this decision making process has to do with the requirement for equal justice; the theory being that everyone will get a ruling under the same case law and statutes, more or less, and therefore the results will be equal in the same circumstances. I think it is open to debate whether any semblance of equal justice can be obtained in many cases because of the idiocsyncratic nature of the process. However more importantly, there may be better goals of the legal process than equal justice as it is applied making it a moot issue. The issue is discussed further along in this section.

  41. Since the legal profession has a monopoly to practice law as well as its other advantages, we might give the other professions a monopoly also. Thus CPAs would enforce their monopoly through UPB (unauthorized practice of bookkeeping) laws, driving bookkeepers out of business under the argument CPAs are more honest, competent and self regulated than bookkeepers are.

  42. Indeed the legal profession's response to ever increasing public criticism and ever new lows in public esteem has only inspired the Bar to new heights of form over substance; a recent Florida Bar president proclaiming the 55,000 members of the Florida Bar to be Florida's "moral aristocracy", the Bar mounting expensive advertising campaigns for image building and renewing efforts to drive paralegals and others offering more affordable legal services out of business under the pretext such practitioners are inherently more unethical or incompetent than lawyers are or aren't responsible for what they do "like lawyers are".

  43. Such a legal system is not in a position to add to meangful public debate on the myriad of issues that so desparately need addressing. Indeed, according to the British publication, the Economist (paragraph39) , it is the lack of meaningful public debate on crime in America that is a major contributor to a warped ineffective way of dealing with it.

  44. For, in the final analysis we need a legal profession that functions as if the legal system belonged to the people of Florida with the legal profession's role to manage it in the public's best interest; rather than the legal profession we have which, hiding behind state power, elaborate ritual, and endless self serving testimonials to their great dedication to principle, views the legal system as their own private fiefdom for optimizing their power and incomes.

  45. The Rx is to design a system based on substance -- the Nation's basic moral and religious values, psychology, sociology, economics etc. -- wherein:

    1. Judges, supported by lawyers, have the education in substance sufficient to address the problems of our complex multicultural society in the manner our humanity demands -- as father figures, clergy, moral leaders, etc., rather than being the legislatively micro managed automatons they now are.

    2. Procedures are reduced to the simplest possible unobtrusive essentials allowing substance to be elevated to full preeminence in the legal process.

    3. Cases are decided on substance in the best interests of the litigants and society.

    4. All crime is treated pragmatically as a behavioral problem in the best interests of the defendant and society. That is, crime is treated in much the same way as a doctor treats a disease; routing criminal defendants through treatment to remove the proscribed behavior keeping them in jail at $40/day to taxpayers only when they are (1), dangerous to society, (2), it is not economically feasible to attempt to correct their behavior and they are dangerous to society or (3), in the rare instance when jail is the best modality for correcting the unwanted behavior. Such a route is vastly less expensive and more effective in removing the unwanted behavior without adding more unwanted behavior than the conventional trial and conviction route now employed which is massively expensive to taxpayers giving employment to vast numbers of legal professionals -- prosecutors, public defenders, private attorneys, investigators, judges, etc.

    5. In so much as is operationally possible, there are no victimless crimes (behavioral problems) in the (John Stuart) Millian sense. i.e. a behavioral problem that has no victim is not a behavioral problem. (This alone will save the taxpayers masses of money). This proposition is complex and difficult to implement; but Mill is a good point of reference for a legal system in a democracy.

    6. Judges should have responsibility commensurate with their authority. In the criminal justice area this means they should remain on the cases of the defendants they originally receive and their job performance should be measured in sociologically meaningful terms such as the number of their defendants that are out of jail, with their families, employed and cured of their behavioral problems rather than the number of cases tried, the number of convictions, or the number of defendants put in jail; as this mindless system designed to avoid responsibility tends to function now.

    7. All state and local law should be available to everyone at nominal or no cost from a plain language user friendly computer database, updated on a periodic basis with new statutory and case law, employing established artificial intelligence techniques if necessary, making it the final authority on all legal matters so that reference to anything else is unnecessary; thus helping to realize the goal of equal access to all, and making the legal process an even playing field for all.

  46. All the evidence suggests that waiting for the 55,000 lawyers of Florida to pursue the possibilities for a better legal system with the necessary open mind and spirit of free enquiry is hopeless; for they are tied into an antiquated ideology that preserves the status quo, looks inward and to the past to meet the future and not least of all, makes money for lawyers.

  47. The task can only be done as a practical matter at a university where the diverse resources and knowledge are available. Indeed it has always been a task for the scholars of the day; and certainly no less so now. And now scholars have vast new technological and intellectual resources that past scholars couldn't even dream of. Please don't wait for the final epitaph on our society stating: "they had the knowledge and resources but failed to employ them."

  48. Show the people of Florida that you can design a wonderful new legal system where everyone, rich and poor has access, where everyone comes on equal terms, where decisions are relevant and made in the best interests of society and the litigants, a legal system that addresses the root causes of crime rather than stacking people up endlessly in prisons. The knowledge base to design such a system may be scattered about a little in various disciplines, but it is clearly there. Show that you can design a legal system that the citizens of Florida will love and the legislature can't refuse.


  49. I spent ten months in jail on the bomb threat charge. During this time I had the opportunity to talk with many prisoners as I was shifted around from one 16 or 32 man cell block to another. During the latter part of this time, I came to the conclusion that all of the major problems of the criminal justice system were unnecessary and they related back to a lack of a scientific perspective or scientific knowledge base in the legal profession.

  50. Following my release on the bomb threat charge in February of 1995, the following five arrests on civil disobedience charges, 15 psychological evaluations in jail, three Baker Acts and one independent psychological evaluation provided an excellent opportunity to compare and evaluate the methodology and perspectives of the legal v. the psychology professions; entirely reinforcing my views.

  51. When I came to the University of Florida seeking a consensus of what a new legal system would look like, the first question on my mind was whether law itself could qualify, at the end of the 20th century, as a science. To make a long story short, after talking to a number of very helpful faculty in the philosophy and other departments, the consensus seemed to be the issue was up for grabs. There were no overwhelming arguments from the perspectives of either philosophy or science itself refuting the idea.

  52. However, law faculty almost overwhelmingly refuted the idea and moreover when I would ask law students what the relationship between law and science was, they would more often than not say there wasn't any. This perspective is reflected in Florida Bar literature wherein lawyers such as Janet Reno , delving into the many problems of the legal profession, most of which have science written all over them, fail to refer to the possibility of finding solutions from the sciences at all.

  53. As another example, a Temple University study has indicated that the majority of citizens of Florida have no access to the legal system when they have legal problems. This problem is of course marketing 101 in the business school; a problem in market penetration, the marketing of a service -- which businesses do all the time and have been doing for at least the last 100 years. Yet the account of a Bar meeting almost two years after the publication of the Temple study about this most critical problem shows the legal profession is doing little if anything about it.

  54. And while they play around with it, endless problems are created for over ten million poor and middle class people of Florida, 70 percent of whom have no access to the courts when they have legal problems.

  55. If you want to have the last word on interpreting statutes, you go to the science of linguistics. If you want to do the best job of questioning witnesses, you use the science of psychology. If you want to simplify practice and procedure making it "user friendly", you employ principles of psychology. If you want a good user friendly encyclopedic reference on law, you go to the computer sciences. And so on. Indeed, anything you tell me that lawyers do, I'll lay odds that we can find principles out of some science to do it better--yet how is it that law students find no relationship between law and science?

  56. My view is that anything the legal profession does, can be done as well or better through the methods or knowledge base of one or more of the sciences; and on some critical issues they can do it far better.

  57. Indeed one might propose taking the present legal system apart, piece by piece, and reassembling it, with the best scientific methodology in place.. Should one do so, I think the end product would look far different from what we have today.

  58. Rather than do this, I think the path of least resistance, is simply to construct a legal system from scratch employing the best scientific methodology, referring to the present system for reference as needs be.

  59. There is also a last philosophical point that I think needs to be made. In our predominantly western culture it is generally accepted at the end of the 20th century that, within the generally accepted scope of its competence, science is the de facto (and shortest) route to knowledge. From this premise, each of the social sciences has grown, filling its unique niche in society. Thus, aside from any other considerations, one has no choice but to consult science within the scope of its competence. Thus, in the minimum, if you want to argue that all aspects of law aren't amenable to scientific treatment, the aspects of the legal system that are amenable to scientific treatment are in violation of this philosophical point. It doesn't mean however that if you don't like what you get from one organization or group dealing with a subject you are interested in, you shouldn't go to another or even to another related discipline that might address it as well; for it is and should remain a competitive market for goods, services and ideas.


  60. The problems with the present system are summed up in the distinction between static versus dynamic systems. Just about all social structure is in the nature of a dynamic feedback system, in which all parts including the legal system affect other parts and vice versa in a process of continual change wherein institutions, cultural values, etc., rise and fall in prominence over time.

  61. However the legal system comes out of a past feudal order that was for the most part a relatively static less changing and much simpler social order. Unlike the much younger social sciences which were born into a world of change and complexity, the legal system never evolved from its rigid static structure of the past into a discipline with the ability to change or pragmatically reinvent itself to meet changing demands or conditions as the sciences have.

  62. Raw state power (court orders), substantive law and the adversarial trial are still the basic tenants of the religion although all are in great trouble at the end of the twentieth century. The refusal to change is the result of the profession's monopoly and state power guaranteeing it the business of settling disputes, competent or not. Thus protected, the legal profession simply doesn't have to change and often its ineffective ways are more profitable for legal practitioners.


  63. What is needed then is a legal system that is (1) fully integrated psychologically, sociologically and economically into all surrounding social structure that it must affect and that must affect it and (2) has the built in capacity to change on a continuing dynamic basis as society changes; allowing it to remain fully integrated as required in (1).

  64. This can be done by:

    1. Drawing a psychological, sociological and economic profile of all entities--the legal system, criminal justice system, litigants, government, etc.-- relating to any legal matter sufficient to resolve the matter in the best possible way respecting established main stream psychological, sociological and economic principles.

      Comment: Law was formed at a time when society was static, far less complex, and none of these disciplines existed, at least in the form they exist today. These and other sciences owe their existence to the increasing complexity of society, both explaining and facilitating it; and contemporary society, in turn, owes its existence to them; for without them contemporary society would disintegrate. As a simple example, without economic principles the business cycle would be entirely unmanageable and capitalism as we know it would be unworkable, as the lesson from the great depression of the thirties clearly indicates.

      One of the great problems of today is of course crime and the drug culture; only the discipline to solve the problem is shifted more to psychology, sociology, education etc., rather than economics. But the present legal system is not sufficiently psychologically, sociologically or economically integrated into the relevant social structure as it relates to the parties in litigation or the interests of society and thus more often than not its orders are irrelevant and counterproductive in resolving either the individual's or society's problems. (Problems of the drug culture are addressed in more detail further along.)

    2. When statutes are generated by the legislature, the legislature should be required to issue with each statute a broad based description in psychological, sociological and economic terms, just what the statute is expected to achieve, sufficiently well defined to allow the implementation of each statute to be monitored to see that it achieves it. The relative success or failure of the statute, in broad based psychological, sociological and economic terms should be fed back to the legislature and public for modification of the statute if indicated. All statutes should thus be considered experimental in nature, subject to continual modification, rather than permanent and static as they tend to be viewed now.

      Comment: This provision is of course basic to achieving the necessary dynamic feedback structure, allowing substantive law to be continually fine tuned to the requirements of society at any given time and when society changes, to change with it.

      For example, we can look at the drug culture and jails. With the criminal statutes that we now have, the drug culture is becoming more and more dependent upon jails to perpetuate its life style and existence and as welfare is reduced, this process will accelerate. Characteristically, when a drug culture person has become physically ill from drugs, lack of food, sleep, etc., he will steal something such as a TV set to buy more drugs with little concern for being arrested and increasingly his intention, consciously or unconsciously, is to get arrested. He will spend the requisite time in jail after which he returns to the same life style until arrested again. In my two years off and on in the Lee County jail, I could see that jail time was becoming increasingly socially acceptable in the drug culture over even this short span of time.

      Clearly, drawing a psychological, sociological and economic profile of the drug culture person, his culture, and the mainstream culture one would like to shift him into, on a timely and continuing basis, is required if one wishes to have any hope of getting them out of the drug culture, a difficult proposition in the best of circumstances.

    3. The legal profession must have authority and responsibility for seeing to it that the public and legislature are properly informed about how well statutes are functioning. This implies vastly improved channels of communication through the entire involved social structure; from the public that requests the statute, the legislature that enacts it, the legal profession that implements it, the various professions in the social sciences involved in implementing it and the target population of the statute such as people getting a divorce or the drug culture.

      Comment: As discussed previously, if you ask a lawyer why something about the legal system doesn't work, he will invariably tell you its somebody else's fault--the public, legislature, etc., and in large part he is correct. However the reason he is correct is that his profession is obsessed with avoiding responsibility; in this case avoiding taking on both the statutory authority and responsibility necessary to facilitate this function so necessary to realizing a functional dynamic feedback structure.

      Clearly the legislature and public must have a clear and precise idea of what is going on in the population that is affected by a statute in order to make intelligent decisions on how to improve it. This is one of the most serious failings of the present system. Too many lawyers who know better just jump on the bandwagon saying "lock em up". For instance, in the previous example about the drug culture, the general public has little idea of the situation I have described and if they do, they have less of an idea of what to do about it.

      Thus the situation is just perpetuated on and on with a confused public and legislature stacking people up in jails and prisons without the necessary psychological, sociological and economic diagnostic work being done to know what to do about it; and without sufficiently accurate communications to the legislature and public even if the solutions were known.

      The legal profession must accept this function as a matter of default, there being no other profession, as far as I can see, in a position to do it.

    4. The operational philosophy of the legal system must change from the present age old moralism to contemporary pragmatism. What I mean by age old moralism is described in the saying "if you do the crime you do the time" or, as so aptly put by the 19th century barrister and librettist, Gilbert, "let the punishment fit the crime". In the civil courts, such as in divorce court, it means digging up all the dirt so that "justice" may be done. It embodies the view that behavior that crosses the line is a priori immoral and moreover must be exposed as a necessary ingredient to obtaining justice.

      At the other end of the spectrum is the 20th century view that all behavior is the product of either environmental or genetic influences and therefore in its purest form has no moral component. Behavior that crosses the line is purely a behavioral problem to be removed in the cheapest and most effective means possible from much the same perspective as that of a doctor treating a disease. Since there is no moral component the derivative concept of "justice" has no meaning either and therefore doesn't enter into it either; thus obviating the necessity for the very expensive trial process conventionally employed to obtain justice. This frees up these funds to go directly into the necessary behavioral modification to prevent the line from being crossed in the future.

      Comment: As an example of how it would operate in the criminal justice system, shortly after a defendant is arrested he would go before a clinical psychologist who would view the deviate behavior, say a DUI, as the symptom of an underlying problem to be diagnosed and treated much the same as a doctor views a presenting headache as the symptom of an underlying disease to be diagnosed and treated.

      In previous centuries criminal defendants were put in jail no matter what the offense and doctor's patients were given leeches no matter what the presenting complaint; in both cases the knowledge not being available to diagnose the cause of the deviate behavior or the presenting complaint. Thus the psychologist would recommend a modality of treatment (alcohol treatment program, etc.) out of a number of modalities he might have available and offer it to the defendant. If the defendant chose to take it he would sign a waiver of his right to trial. As a practical matter almost all defendants would take what was offered to them thus vastly reducing trial dockets, jail populations and taxpayer expense.

      If of course the defendant were deemed sufficiently dangerous to society or that jail time was otherwise the most effective modality of treatment, he would of course get jail time. Note that jail time is virtually the only modality of treatment in moralism (as I am using the term) whereas it is only one of the modalities of pragmatism (as I am using the term) thus moralism is a small subset of pragmatism and moving from moralism to pragmatism takes advantage of the much broader knowledge available to doctors and psychologists in the 20th century not available in previous centuries.

      I think this provides an ideological framework for moving away from the very expensive trial and often unjust plea bargain procedure which are more often than not very counterproductive not to mention a great waste of taxpayer funds. Take for example the "crack head" that cycles in and out of jail regularly from various crimes seeking money to get drugs. Stealing a $400 TV set will get him in jail for three months before he is offered a plea bargain in Lee County. 90 days at $40/day is $3,600. Add to that the expenses to the taxpayer for the prosecution, the judge, the defense and investigations you might be up to $5,000. However when you finally have the conviction or guilty plea, the paper is entirely worthless because his problem isn't that he stole the TV set, the problem which of course everybody knows, is that he is a drug addict, which, even after the $5,000 is spent, hasn't even been addressed yet.

      Take the example of the middle class working person who gets into jail on drug charges, DUI charges or maybe domestic violence. If it is a third degree felony which would be quite common, in Lee County he will stay in jail for three months before being offered a plea bargain or trial. During this time, there is no income, he has lost his job, the wife and kids go on welfare. Jail more often than not seriously strains domestic relationships and there is nothing constructive to do in jail except to watch a blaring TV set 15 to 18 hours a day with the worlds stupidest crime programs, talk shows with teenagers explaining all their bizarre sexual relationships (which the inmate will decide he must try when he gets out of jail) and occasionally bugs bunny.

      Thus society now has a whole new set of problems often vastly more serious than it had to start with. The defendant eventually comes out of jail or prison more anti-social and crime prone than when he went in, he may be experimenting heavily with drugs, the taxpayers are paying to support his family and very possibly him, his children have a much less stable home environment, etc. I don't mean to imply this happens in all cases but it certainly happens in a significant number of them.

      All this is the result of the blind procedures practiced by the present legal system without regard to their psychological, sociological or economic consequences.

    5. The Federal Reserve banking system: model for a court system? There is an analogy in the problems of the present legal system and the problems of the economy in The Great Depression of the 30s. At that time the Federal Reserve banking system was set up to address the serious instability of the business cycle--boom and bust. The way the Federal Reserve system works, and all industrialized countries have similar central banks, is to analize vast quantities of economic data on a continuing basis from which decisions are made about the control of interest rates and the money supply which in turn affects the data that the Federal Reserve collects which in turn affects the decisions about the money supply and interest rates, which in turn affects the data that is collected, ad infinitum. Without this very complex dynamic feedback control system, at which the Federal Reserve Bank is at the heart, the business cycle would be very likely to go into either uncontrolled recession or the opposite, inflation. This is of course very conventional economic theory.

      In the thirties, the business cycle was a very serious problem, as we have very serious problems with crime and the drug culture now. I do not see why the courts could not operate something like the Federal Reserve. Thus the courts would collect masses of social statistics which they would analize to make decisions about crime and drug problems before it which would in turn affect the criminal and drug culture populations which would in turn affect the crime and drug culture population statistics which the courts would then collect which would in turn affect the decisions of the courts, ad infinitum.

      The Federal Reserve has the same kind of problem the court has in dealing with, for instance, the drug culture. Its decisions must consider a multitude of social and economic phenomena and objectives --- stable economic growth, inflation, recession, interest rates, the money supply, foreign exchange rates for the dollar, investment, prices, foreign trade, and on and on. For instance if business is borrowing so much that it is creating undesirable inflation, the Federal Reserve may up interest rates to impede businesses from "crossing the line" (i.e., exhibiting undesirable behavior).

      The court must consider a multitude of factors for the drug culture --- welfare costs, rate of recidivism, rate of different kinds of child crime, the rate of different kinds of adult crimes, costs of incarceration, costs of processing criminal defendants, and so on. For instance, if there is a rise in cocaine arrests, the court may increase the sentence for cocaine arrests to impede people from "crossing the line" (i.e. exhibiting undesirable behavior).

      In both cases the court or the federal reserve is attempting to control social behavior. It should be noted as well, that in both cases it is by no means assured that the method employed will achieve the desired results. The history of the Federal Reserve is riddled with examples where it did not achieve the results sought, as are the courts in dealing with crime.

      There is however a massive difference in methodology as it stands now; and the fact is that the Federal Reserve's methodology is vastly superior in diagnosing and responding to problems because:

      a, The Federal Reserve collects data on all areas of its responsibility on a continuing dynamic basis, and analizes it on such a basis; whereas the courts have no such capability.

      b, The "orders" issued by the Federal Reserve are based on an analysis of the data relative to the best contemporary social (economic) theory; whereas the courts issue orders based on statutes and precedent.

      c. The Federal Reserve, for the most part, controls society through incentives and disincentives, saving the taxpayers a lot of legal and jail costs as well as not creating a lot of anti-social home owners and corporate executives. Thus if the Federal Reserve issued a law that no one could borrow money over a certain rate during expansion of the economy, we would be having endless "interest rate busts", locking endless numbers of home owners and corporate executives up for borrowing money at illegal rates, creating havoc in society; as we do now now with drug busts. Without question, the sciences would experiment with how to employ incentives and disincentives through welfare payments, food stamps, driving privilege, etc., before resorting to all the expense and problems of jail as a control mechanism.

  65. Thus we see the distinction between the static operation of the courts and the dynamic operation of a modern scientific institution such as the Federal Reserve. If the Federal Reserve attempted to operate on precedent rather than an analysis of current conditions, or operate on state power rather than incentives-disincentives, it would be a total disaster; as are the courts.

  66. It should be noted of course that in actuality, the Federal Reserve operates from statutes as do the courts; the distinction being that its statutes give it a much wider latitude and they define its operations as a dynamic feedback structure whereas they don't for the courts.

  67. I might address a few concerns. One shouldn't think that court orders for the same crime would be changing daily according to every nuance in incoming data. Stability and constancy are vital ingredients to any legal system and would be one of the parameters that the social scientists operating the courts would consider.

  68. Clearly this is in violation of the equal justice clause, as is the criteria above on pragmatism. This clause is of course to protect the defendant. However, my experience in jail is that most defendants don't consider that they have received equal justice anyway. For instance, as I understand it, a poor farmer who gets a DUI for driving his pick-up one block to his house on a near deserted country road gets the same sentence as a rich man driving his car 100 miles along a heavily traveled state road. Thus while an analysis according to present law finds this situation meets the equal justice criteria, under scrutiny of a psychological, sociological and economic profile, these two situations look quite different; and I would question whether the equal justice provision could even be implemented in most law under such scrutiny. This is of course another argument in favor of treating crime as a behavioral problem which obviates the necessity of considering the problems of justice, equal justice etc.

  69. Should the courts operate as I have described, one would have to decide whether the public and legislature should be included in the feedback loop; that is that the results of the data analysis would be given to the media and the public and the legislature would fine tune the process, the courts only being a passive procedural entity as they are now, doing whatever the legislature tells them with little latitude. In my view, the public and legislature should give the courts sufficient latitude, defining only broader social objectives, for the courts to implement as they see fit in much the same way that the Federal Reserve operates.

  70. Clearly, such a court operation would function almost entirely as a science, as does the Federal Reserve. It would no longer be form over substance and procedures would be reduced to the simplest possible form to make way for substance --- decision making based on applying psychological, sociological and economic principles to the best available data.

  71. To implement such a legal system, I would think education would start at the undergraduate level with courses in the relevant social sciences and the graduate level would have the conventional masters and PHD programs. Lawyers would be in all respects scientists and would think of themselves as such which would open up the problems of the world to scientific examination and remedy as never before, through all he sciences whether through the court system or otherwise; for all the sciences would benefit and expand greatly, having much better data and access to problem areas.

  72. No longer would law students tell me there was no relationship between law and science. Social scientists would no longer consider the legal system obstructionist to addressing the problems of society as they do now. Jails across the state would be running numerous experiments to see how best to reduce recidivism. Prisoners would be answering numerous questionnaires. (in my 18 months in the Lee County Jail I don't remember filling out a single such questionnaire) Social scientists and educators would be conducting experiments across the state to learn how to deal with every aspect of crime, poverty and welfare. And rather than building 76,000 new prison beds as planned I would feel sure that the prisons would lose population rather than gaining population.

  73. We would have a plain language user friendly legal encyclopedic database on disk or the internet which would be the final authority and which could be updated as the law changed on a periodic basis. Thus everyone, rich and poor, lawyer or lay person, would have equal access and the same source for law instead of as it is now, where only the rich have reasonable access.

  74. Also, it is worth mentioning that my perspective doesn't envision delving into masses of substantive law at the outset but rather constructing a primarily statutory framework in which the process of generating, implementing and monitoring the effectiveness of laws would convert the legal system into a properly integrated functional dynamic feedback structure which in turn would improve all law as a matter of course over time.


  75. In the latter half of the 19th century, biology went through a transformation from a predominantly classification science to an analytic science seeking to describe relationships between the various species. Substantive law has basically remained a classification system as it was in the middle ages. Thus is it possible it could be converted into a better functioning analytic structure under the scrutiny of contemporary psychology and sociology. To put it another way, what would a legal system look like if it were designed from scratch as a branch of contemporary psychology and sociology?

  76. Can a code of laws be treated fully or partially as an axiomatic structure? Can one set up a code of laws either analytically or empirically so that it could be tested for consistency or completeness whenever the addition of a new law is contemplated?

  77. How well do genetic codes satisfy consistency and completeness and is there anything in genetic theory helpful for the construction of a legal code?

  78. Note: Consistency and completeness are basic properties of axiomatic structures. If I remember it correctly, if the structure is complete then every question one poses about the structure has an answer. If it is consistent, every question posed has only one answer i.e. doesn't have two or more contradictory answers. Thus if a legal code had such properties, there would be a law on any question posed without contradiction.

This is a page in the Web site entitled Legal Reform Through Transforming the Discipline of Law into a Science.