A Machine Made of People

At its formalist ideal, the law is a simple, straightforward machine, taking in and processing facts and reasoning and coughing out results. The issue with this machine is that it tries to fit a fractal peg into a round hole. It is fundamentally unconcerned with justice; its only concern is processing the facts to determine the right legal outcome. The results can be fairly horrific. If the law says that pickpockets shall hang, then pickpockets shall hang, period, and it makes no nevermind that this sometimes entails stringing up starving children.

At its realist ideal (or maybe "ideal,") the law is understood to be no machine at all, but a vague set of guidelines by which agreements about how such-and-such a legal issue should be resolved are reached. This approach sees the fractal peg and tries to match the hole to it. The issue with this approach is that, here, there is no machine: just people coming up with answers-- and those answers often differ wildly based on both reasonable (subtle differences in the facts underlying the cases) and unreasonable (whether the judge had eaten lunch yet) factors.

What we actually have in practice lies between the formalist "order" and the realist "chaos," landing with some of the merits of both, a degree of predictability on one hand, a degree of flexibility on the other. However, we also end up with some of the flaws: areas where the flexibility refuses to stretch to include a particular situation on one hand, areas where discretion swings maybe a bit too broadly on the other.

It's only debatably a machine at all, but I think it's best understood as a machine made of people: soft-edged gears whose inner rigidity is no harder than bone, a construct flawed, imprecise, unwieldy, prone to failing in all the ways humans fail, and yet also self-balancing, self-organizing, and self-correcting in the ways humans and their institutions can be.

It's messy, but maybe there's no better way for us to organize human affairs.