Between Deplorables

I was wandering around a massive expo quite recently,  when I chanced upon a seminar on the future of law in a world run by blockchain. It was by far the least populous of the events, so I slipped in for a breather from the frenzy elsewhere. On the panel, a lanky engineer was haranguing a lawyer. His thesis was as crude as it is common. Blockchain, and the whole complex of emerging technologies would wipe out what he called “the monstrous inefficiency of the legal system” forever. The learned professor of the law on the other side of the panel hung his head and openly begged pardon of the engineers. “You engineers must really forgive us lawyers”, he whimpered, we just love inefficiency in all that we do”.

The call for efficiency in law is not new. As in other fields, it goes back to the scientific and industrial revolutions, and the truly misguided attempt to replicate the success of the methodologies of hard science in other domains. It was in World War 2 that this effort reached the apex of its stupidity, and the nadir of its criminality. For technocracy, that twisted progeny of scientism and positive law, was to achieve the full banality of its evil in those terrible years. A relatively recent book by Edwin Black shows the intimate links between IBM, or at least its German subsidiaries, and the Nazi government. No surprise. When did large organisations baulk at a lucrative deal with a sanguinary tyrant? But it was this intimate link between IBM and the Nazis that made the Holocaust possible. Deutsche Hollerith Maschinen Gesellschaft, a subsidiary of IBM from 1922, made the tabulator (a data miner) and the sorter (data processor) that the Nazis used to carry out the population surveys by which they were able to identify and round up so many millions of people so… efficiently. This is the point. Atrocious violations of human rights on such scale are impossible without efficiency, either of the machine, or of human organisation.

There are obvious reasons why the engineer venerates efficiency. More efficient machines do more for lower cost. This very efficiency, which is the cause of the great deflation of computation power in terms of price, may be the invisible factor keeping our tremendously inefficient, inflation-based financial system from implosion. But this does not make efficiency a moral, legal, or yet a political value, but is in fact the very antithesis of these values. To find out why, we need to take the road to Rome. Again.

The origins of the Roman Republic are shrouded in myth, but a convenient demarcation point is 509 B.C., when the Romans threw their royal family out of the city. Then started a process of constitutional development that lies at the foot of all our institutions. The foundation of this constitution was the firm belief of the Romans that concentrated power is tyranny, and that tyranny is the great possible evil. To diminish this risk as much as possible, the Roman political system was specifically designed to ensure that no positive action was possible except with consensus that was well-nigh universal. Moreover, its parts were set up to disrupt this consensus as much as possible. It was therefore a system specifically hard-coded for inefficiency. The default setting of the system was inaction, and any attempt at action had to run a course of such gut-busting inefficiency that even bringing it up for discussion was a minor miracle.

The  Roman Republic was a democracy with the major branches of power ruthlessly divided. Law sprung from the people in assembly. This assembly also elected the executive and judiciary. Power was held for a single year only. The office of the Prime Minister was held by two individuals, the Consuls, for just one year, with no possibility of running for the office again in the following year. Each consul had an unlimited veto over his partner, making it trivial to deadlock any consular initiative. Later, the veto would be acquired by other officials at all levels, producing a gauntlet of vetos that could, and did, paralyse political power with effortless ease. The Senate was a body of ex-members of the executive and the judiciary, and its role was to advise current officials and refer requests for legislative action to the popular assemblies.

Despite the democratic virtues of Republican inefficiency, it brought its own danger, the risk of instability. To avert this danger, the Romans developed a system of law separate from and above any single branch, institution and office of the state, and operating consistently with its own logic.  Law was made by the people in assembly, administered by a very limited executive, and adjudicated by an elected office with its own cadre of specialists. The law was codified, disputes were adjudicated in court according to statute and the internal logic of the system. Legal proceedings became processes of forensic investigation, systematized interpretation, due process, and logical discovery. It was intended to provide a level playing field in which every person was equal before the impersonal machinery of the law, and the merits of the case were determined by data, and the logic of the system, not by whim and caprice.  Even the vaunted democracies of the Greeks were lacking in comparison, for Greek lawsuits were determined by what was virtually trial by combat, but by oratory instead of the sword.

The Roman legal system is difficult to appreciate except by contrast with other systems. Where law is Rome, it is protracted, expensive, long-winded, inefficient even, but demonstrably fair within reasonable parameters of tolerance. Where law is not Rome, it is but the caprice of the monarch, or the mob, and legal proceedings but the liturgy through which this capricious power expresses itself. And the mark of this capricious power is efficiency – quick execution in all its senses. Efficient politics and efficient law are the orb and sceptre of tyrants.

Emerging tech and innovative technology, including blockchain, brings huge promise, including efficiency. But what sanity is there in rushing to judgement? Human interaction, on the political level, on the institutional level, on the personal level is marked by tremendous complexity that is irreducible beyond a certain point. The quick execution of statute as determined by a smart application might reduce pecuniary costs, and speed up the settlement of dispute, but it robs the interested parties of their right to a full investigation of the merits of their case in the eyes of a legal structure whose proliferation of parts, and ponderous inefficiency, elaborate proceedings, and tremendously pedantic priesthood is intended to turn its wheels so slowly that its chances of crushing the innocent and strengthening the powerful are reduced to the minimum possible.

In 2018 Vyacheslav Polonski published an article on the World Economic Forum on the problems ensuing from predictive analysis showing how defendants are being sentenced to longer prison terms because opaque algorithms predicted that they had statistically significant chances of recidivism. So the sentence was determined not by the crimes you have committed but on an algorithm’s determination of your chances of carrying out a future crime. And this despite the legal principle of nulla poena sine culpa “no penalty with the crime”. This is appalling.

Judge Noel L. Hillman expresses deep misgivings about all this but there are other considerations.  Human behaviour is irreducibly complex beyond a certain point, especially as environments and circumstances change. It is therefore impossible for the legislator and adjudicator to act pre-emptively. Consequently putting the legislative and legal processes into the hands of emerging technologies to increase efficiency will lead to swift decisions taken automatically on the basis of historic data, and not on established law and proven guilt.This is an act of utter evil and tyranny, and a violation of another vital principle of Roman law –  Nullum crimen sine lege “no crime without a law”, specifically no crime without  a previous law, a written law, a well-defined law, and a precise law.

Ultimately it comes down to costs. The engineer is right to seek to lower the costs of his products. But the point of our Roman-based system of law is an equitable outcome for all men. If you seek efficiency to cut costs in legislation and arbitration, you might save coin, but you will pay the far higher price of injustice, tyranny and blood.

There is a sense in which I do not blame the engineer.  For him, inefficiency raises costs, and hinders his work. But it is still deplorable that he has so little understanding of his fundamental methodologies, quantification and falsification, that he seeks to apply the values of his trade to the irreducible complexities of human behaviour, especially in politics and law. But the lawyer who is embarrassed by accusations of inefficiency is more deplorable still. For that lawyer no longer understands the root, purpose and values of his profession, and has become more concerned with counting cost than with the fundamental principle of the law – which is human equity. Efficiency is no value in this domain. Leave machines out of politics and law. Let the practice of politics and law remain always the domain of mortal man.

Joseph Debono is a Blockchain/Emtech consultant for Zeta, a Financial and Corporate Service Provider based in Malta and the UK, and has been active in this space since 2016. He is also an academic researcher in Emtech, focusing on native fintech solutions and business innovations. He has contributed numerous articles, papers, translations to various fields of the Humanities and has co-edited two books. His latest publication, co-edited with fintech pioneer Patrick L. Young is “DLT Malta: Thoughts from the Blockchain Island” (ISBN: 8362627026). In a past life, he was a Historian and Classicist, passions for which continuously inform and inspire his life and mind.