STATIC V DYNAMIC SYSTEMS
THE STRUCTURE OF A NEW SYSTEM
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.)
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.
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.
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.
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.
A FEW THEORETICAL QUESTIONS