As for the future, our task is not to forecast it, but to enable it
Antoine de Saint-Exupéry
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Are real or perceived deviations of the rule of law one cause to the raise of right wing extremism?

the rule of law as perceived by the justiciable

The present is a note reflecting my thoughts after the "The rise of the extreme right and the future of liberal democracy in Europe" session of the Luxembourg Institute for European and International Studies (December 9th, 10th, 2011).

Summary

The rule of law and the law should be understood, or at least understandable, by a large majority of the population. A living rule of law is essential in coping with right wing extremism!

Why it matters

If all wishes could be fulfilled, it would not matter very much. Right wing ideas do typically result from the feeling that the “little man”, the voter, is being embezzled. And in difficult times, the fear of being left behind grows.

I observe the process of dictating, interpreting and stating law. And I admit being sometimes frustrated

The important thing from a political point of view is to have a rule of law which is deeply perceived by main-street as being understandable and as being fair !

Main-street is the key term! There is a natural tendency among jurists to have good explanations which are not understood by common people. And procedural aspects are particularly prone to this situation.

This calls for transparency!

There is no excuse not to know the law

The first and most important legal rule is certainly “There is no excuse not to know the law”. It's the french “Nul n'est censé ignorer la loi” and the german “Unkenntnis schützt vor Strafe nicht”.

How well does this rule comply with fairness?

Let's face it, to everybody, this rule is a burden. No one can say: I did not know it and just walk away with this excuse.

Is it fair?

Laws are written and everybody, with some seldom exceptions (High Tech export..), everybody can consult and read them, so yes, it is fair in this sense! You have the guarantee that no prosecutor will define a law just to catch you!

But really, is it so fair, can one know the law???

And my first answer would be: perhaps not. There are really many, many laws... The citizen should know that the State has given his best efforts to make the law understandable, to help him cope with his duties, and also to help him being able to make his own rights enforced!

The impact of IT awareness

Let's make a digression. I bring in here the point of view of main-street, especially from the young Technology minded youth. Stay assured, I will not bury you in mountains of technology; let me nevertheless remind that youth is much more at ease with IT than the elder generation, including often the decision makers.

An essential fact, which is known to nearly any computer user is that redundancy, the fact of storing an information multiple times is a recurring cause of errors, and potentially of fraud!

If everything is written only once, texts become smaller and it is easier to detect contradictions:

In small texts, contradictions and special pass-through permits are easier to spot

Why is the irrebutable presumption of everyone knowing the law important and how well does law perform in this regard?

The extreme right is mostly flourishing on the idea of the simple guy being left behind. So the answer to this question boils down to the question of the equality of arms and to the perception of it! If there is no excuse not to know the law, whatever your role in the society, society should be able to put all the laws relevant to you on a table.

Which of course brings up the question whether the table will break down under the weight of the books or how much steel is needed to prevent it from breaking... Dealing with the question of what everyone should know is a matter of credibility.

And this quantity of laws brings up also the question why, in comparable situations different laws come to application. This is the real food for right wing extremism!

Solutions

Deontology

Deontology, the rules for professions with particular high ethical standards, should be formulated in such a way that they never put general standards out of force, but on the opposite strengthen them. To give you a fanciful example, imagine a big truck running down the avenue de la Liberté, the main artery in Luxembourg at 110 km per hour and being stopped by police. Can you imagine the driver telling the policemen: “You know, I'm a professional driver, I know better..” Deontological rules sometimes de facto create or tolerate these situations

In this context, the oath is to be seen as an important commitment. No one is forced to take a professional oath! If someone takes an oath, this should be seen as an aggravating aspect in case of misbehavior.

IT routed methods to improve Structure

As mentioned before, IT has developed techniques to limit redundancy, including to limit the size of programs. Programs are made of instructions, they tell the computer what to do. So programs have many similarities with law and contracts.

It will come as a surprise for many, but IT tends to describe a program (and even parts of programs) on contractual terms (cf as an example the work of David Gries (Cornell University) - The science of programming).

And now some ideas developed in IT could very well be used in law too.

One essential point is structuring. This idea is by no way new to lawmakers. IT has put in the later more emphasis on this subject. Each subject is handled completely in one text, and ideally each part of the text handles only one subject. Good project mangers regularly chase for dead code, program parts which are not anymore of a particular use. And they develop or use special tools to analyse the programs and partially automate their chase! The objective is too keep the code understandable and, as one consequence thereof, small.

So the simple fact of for example defining similar offenses in several parts of the legislation is from a comprehension point of view a fault. Good IT practice avoids this! It will make you laugh, but it's true: Programmers call this kind of practice spaghetti code. The image is that if you pull one spaghetti, you will end up with the whole plate on your fork....

Structuring is not a neutral exercise.. Structuring will have the effect of exposing the many laws which introduce exceptions for various lobbies (like our hypothetical driver). This visibility, this transparence will positively influence the law making process.

To keep what we call legal peace, we should aim at having laws which are readable by non-jurists. This idea is by no way new. However, it has lost some vigor in practice.

Transparency

Transparency is an essential point for the political “Pirate Parties” and it will come as no surprise to all of us that IT persons are well represented in this political direction. The idea will sound strange to many jurists but law and IT both deal with defining general rules and applying them; there will and should be mutual influence in the future.

Conclusion

And I would end my presentation by expressing the wish that law-makers should care about abolishing laws, about simplifying them and less about creating new ones. If the average man and woman can, with reasonable efforts, understand why a given situation is handled in a given way, this will strengthen the believe in our core values.

To paraphrase Clémenceau: “Law is a thing too serious to be exclusively of the competence of the jurists”

Post-Scriptum:

I followed the brilliant ignaugural lesson of Professor Luc Heuschling concerning the general theory of constitutional law on march 7, 2012. I was surprised to discover that the general theory of law is a law analyzing methodology which structures the description of law in a method which is very similar to object oriented programming methods. The similarity is so strong that I have been surprised not find any comments about the subject. However, it is easier to change a program than the law ;)) , and programmers do restructure their programs while lawyers do analyse the law, describe it in an understandable way, without typically being able to modify the underlying law ...

Many practicing jurists seem to deny to the general theory of law any practical utility. If law is to be known by everybody, the computer literacy will certainly bring a growing interest to this legal methodology. The general theory of law should be used to restructure law in a way understandable to the citizen.