A New Justinian

28Jul07

Legislation, legitimacy, and legibility are fundamentally interrelated concepts. Legislate and legitimate are both derived from the latin legis or law. Legibility is derived from legere (to read) or legein (to declare). While I’m certainly no legal historian or evolutionary linguist, obviously these roots share a common ancestor that can likely be traced back to the Code of Hammurabi or its predecessors which both influenced the Abrahamic and Greco-Roman legal systems. The fundamental property of law is that its legitimacy is derived from its legibility; citizens could no more plead ignorance of the law than a ruler modify it on his daily whim.

Yet whether by arrogant power or the passage of years, the law has a way of evolving from an initial concrete statement of rules into a grotesque leviathan of obfuscating refutations and contradictions of objective common-sense. So the law, like any ecology, grows and contracts: Hammurabi’s single tablet became 12 in Rome, Justinian revised the expansive body of Roman law in his Corpus Juris Civilis in the 6th century, the Magna Carta was meant to check an abusive 13th-century monarchy, and our own 18th-century Constitution was an 18th-century correction of the injustices sanctioned by the aforementioned. But what of the state of modern American law? While the Constitution is obviously the highest law of the land, the citizen must also navigate an various acts of legislation modifying disparate portions of the indigestably large United States Code, to say nothing of the state and local laws.

Before we ask “Who makes sure this is all consistent?” it may be appropriate to remind ourselves that as we stand here in the 21st century at the summit of human achievement with a bounty of tools for storing, communicating, and organizing information, the law remains very much two-dimensional. But to answer the initial question, we allegedly elect learned citizens to deliberative bodies to ensure a more perfect Union and so forth. Does it work? No. Why? Fairly obvious and well-documented reasons:

  1. Term limits. There are none. Representatives are pre-selected based upon party loyalty, fundraising ability, and some unquantifiable charismatic “electability” characteristic. Once in office, they have to begin fundraising for the next election in 2n years. Once in Washington, representatives have to navigate entrenched committee assignments and chairmanships.
  2. Congressional ghost writers. Because the representative is off fund-raising for the next election cycle, congressional staffers and lobbyists are generally the ones who do the actual writing/coding of the legislation that appears before the body. As a result, representatives rarely read (2006 PATRIOT reauthorization and subsequent attorney dismissal scandal?) the enormous omnibus legislation that appears before the body, much less discussing the legal intricacies.
  3. F.A.M.E. Fun Acronyms Make Elections Legislators seem to enjoy either (a) imagining quasi-apropos acronyms for their sponsored legislation if they haven’t made a name for themselves or (b) if they have a “name,” splattering it all over it (McCain-Feingold, Sarbanes-Oxley, etc.). As a result, opposing the bill must “necessarily” imply some political vendetta against either “PATRIOT”s or the sponsoring representative/senator.
  4. Illegible legislation. In turn, these unelected staffers and lobbyists are lawyers, whose collective love of teleological debates predisposes them to attempting to codify every possible subgenus of exemptions. As a result of lawyers writing the law, only other lawyers can understand it.

My next post will be on what can be done to solve these problems.

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