A modest proposal on law and procedure, with guest commentary by Dick The Butcher (HT: Bill Shakespeare)
This modest and unread blog has a Sunday tradition of political analysis through science fiction, and I have a few in the pipeline. I just read The Library at Mount Char (excellent), and I just started China Mieville's Perdido Street Station (wow!), but this morning, we indulge our mutual love of Shakespeare. And by "we," I mean the royal "we." In this case, Henry and me. After all, nobody reads this damned blog, so I can type whatever I wish to type. Or in this case, hand the blog over to a friend for a guest post, as I occasionally do. This morning's guest blogger needs no introduction. He is a follower of Jack Cade, known far and wide as Dick The Butcher. Dick, take it way.
Dick: The first thing we do, let's kill all the lawyers.
Um... O-kay. Thanks for sharing Dick. I suppose that sentence needed a comma, didn't it? Kind of an Eats, Shoots & Leaves situation there. Now you know where the comma went. Anywho, let's unpack some Willie. Excuse me while I whip this out...
Be brave, then; for your captain is brave, and vows
reformation. There shall be in England seven
halfpenny loaves sold for a penny: the three-hooped
pot; shall have ten hoops and I will make it felony
to drink small beer: all the realm shall be in
common; and in Cheapside shall my palfrey go to
grass: and when I am king, as king I will be,--
God save your majesty!
I thank you, good people: there shall be no money;
all shall eat and drink on my score; and I will
apparel them all in one livery, that they may agree
like brothers and worship me their lord.
The first thing we do, let's kill all the lawyers.
Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal
once to a thing, and I was never mine own man
since. How now! who's there?Enter some, bringing forward the Clerk of Chatham
The clerk of Chatham: he can write and read and
cast accompt.
O monstrous!
We took him setting of boys' copies.
Here's a villain!
Has a book in his pocket with red letters in't.
Nay, then, he is a conjurer.
Nay, he can make obligations, and write court-hand.
I am sorry for't: the man is a proper man, of mine
honour; unless I find him guilty, he shall not die.
Come hither, sirrah, I must examine thee: what is thy name?
Emmanuel.
They use to write it on the top of letters: 'twill
go hard with you.
Let me alone. Dost thou use to write thy name? or
hast thou a mark to thyself, like an honest
plain-dealing man?
Sir, I thank God, I have been so well brought up
that I can write my name.
He hath confessed: away with him! he's a villain
and a traitor.
Away with him, I say! hang him with his pen and
ink-horn about his neck.Exit one with the Clerk
Um, I'm confused. Are we selling seven halfpenny loaves for a penny, or getting rid of money? I mean, great, big tankards of beer are cool, but I'm a little unclear on the economics here, Jackie-boy. Oh, well. Not the point. May I assume that you read Henry VI Part 2 at some point in your life? Traitor! Away with you! Or, like, something. So let's unpack Jack Cade's philosophy, with that hot Dick interjection*. We can ignore Comrade Cade's proto-Marxist blather, and his goal of turning Merry, Olde England into an anarcho-syndicalist commune (cue the music from Monty Python & The Holy Grail). No, this is a post about courts, laws, lawyers 'n such. This cadre o' Cade-ians ain't so big on formal procedure, in case you didn't get the gist of this passage.
The actual story of Cade's Rebellion has some general populist themes to it, and like many throughout history, you can find sources of grievance that are legitimate, yet when a mob turns violent, good things are not often the end result, and the whole thing as a bloody mess in literal terms. This isn't about history, though. It's about Dick. Not even Jack, but Dick, because the legal philosophy at work here is so fundamentally anti-elitist that it becomes anti-procedural and anti-intellectual. Why don't you need lawyers? Because in this mindset, you don't need anything complicated to know the right outcome. Lawyers, laws, papers, parchment, beeswax to seal it... that's all just a complicated bunch o' bullshit cooked up by crooked people to get wrong outcomes when everybody really knows the right outcomes.
So just get rid of that. It's all simple, so reduce it to simplicity. That way, no corruption, no fuss, no muss.
Well, blood, but you take Dick's point. Someone does, anyway.
Is the law, legal procedure, all of that, just a bunch of crooked shit cooked up to get the wrong outcomes when the right outcomes are simple and known, such that we can get rid of the parchment and beeswax and clerks and all that fuckery, and just say, no bullshit, you're guilty, time to hang with your pen and ink horn around your neck? 'Cuz nobody hangs like Dick? (You didn't think I was going to let that one pass me by, did you?)
The problem, of course, is the determination of guilt. How do we know? That eternal question of epistemology becomes ever more important in the context of life and death, or even non-capital punishment. Procedure. Law is the process.
Yeah, fuck lawyers. Anyone with sense kind of dislikes lawyers, and legal process is often fuckery. But, and as they say, everything before the "but" is irrelevant. Technically, I just called Shakespeare "irrelevant."
My analogy for the law stands. What one wants is justice. The justice of King Solomon, or whoever. Someone wise and true and yaddafuckinyadda. Let that person rule in court, and it is no linguistic coincidence that we use the same word-- court of law, court of the king. Yet there ain't no such fuckin' person, because Solomon fucked himself all out, with all those wives and concubines.
And if we cannot have Solomon, what can we have? A Turing machine. A set of mechanical rules, written in excruciatingly technical detail, in an attempt to approximate the wisdom of King Whothefuckever, and produce an approximation of justice, through Von Neumann architecture rather than moral reasoning. When you see the law-- the process and machinery of the law-- give you an outcome that you think is morally wrong, that's the law failing the Turing test and demonstrating that it is a machine rather than Solomon. Maybe. Assuming you are right. But of course, that presumes you know, and we're back to epistemology. We're back to your Dick. If you think we can do without this stuff, then just get rid of the Turing machine of the law, and execute the person you know to be guilty with none of this fancy fuckery!
All we are doing with these technical rules-- the rules that make Dick want to kill all the lawyers-- is trying to approximate justice and wisdom through Von Neumann architecture.
Because the alternate is not Solomon. The alternative is Cade's Rebellion. You get that Dick isn't the good guy, right? Right? Yeah, fuck lawyers. Just don't kill them. And perhaps don't actually, literally fuck them. That might lead to more lawyers. Maybe just go Lysistrata on the legal system. The John Waters rule is: "if you go home with somebody, and they don't have books, don't fuck 'em." Let's add a corollary. If the books are law books, don't fuck 'em. Anyway, we say, "fuck," metaphorically, because lawyers suck, and the law is an unfortunate kludge in our Alan Turing-esque attempt to approximate that which never existed and never can exist because the alternative is bloody rebellion and chaos and anarchy. (In... the... UK. I hate punk.)
I don't know about you, but I don't want to fear for my life. That's kind of Thing #1. Job #1 for civilization is the Hobbesian Job. Solitary, poor, nasty, brutish and short? I'm kind of OK with solitary, hermit that I am, but the rest? No, thank you, and I get that you normals want to socialize, so let's create a thing called "civilization" where life is not solitary, poor, nasty, brutish and short. First thing we do is not killing lawyers. First thing we do is stop all the fucking killing. Dick, to repeat, is not the good guy. He's a dick, and a butcher. Dick = bad. Unless you're into dick. In that case, have at it. Just not with the killing.
How do we stop all the fucking killing? Let me rephrase. How do we stop the killing? The fucking may continue. The "fucking" in that sentence was an adverb, not a verb. Had I placed a comma between "fucking," and "killing," we'd be in different territory. Punctuation matters. How do we stop the killing? Well, we can't have an all-wise ruler. So instead, our best imitation is a set of mechanical rules and a Turing device called legal machinery to crank out verdicts that imitate whatever Solomon might do. That's it. That, or bloody anarchy. Or something in between. So let's strive for the best Von Neumann architecture that we fuckwits can write.
Now here's what that means. A verdict is not a moral ruling. It is the output from the Von Neumann architecture of a Turing machine called "the legal system," designed semi-intelligently, modified and re-modified over time in a messy and nauseatingly complex way to approximate, as best as possible, "justice," whateverthefuckingfuck that means.
It's code. Code is glitchy. Have you ever written code? I have. My coding sucks. My first code never works. Second? Nope. It takes me a bunch o' tries, and it is never elegant. I'm not a programmer, but I have to use some programs for various reasons, on occasion. I fucking hate it. Even professionals write code that doesn't work the first time. Then there's the compiling and debugging process, and yadda-yadda. It's a fucking mess. Always and in all contexts. The law is no different.
It's just code. We even call it that.
And that means the code will sometimes give you an outcome/output that you may not like. Even if the machinery worked. Even if the hardware is fine, no viruses are fucking things up... your code just gave you an outcome that you didn't want or expect. Because you tried to write perfect code and you failed. You suck, you human, you.
Anyone familiar with the tech sector will be familiar with my descriptions.
Now let's apply this to the Turing machine of the American legal system. We write some... code... in an attempt to approximate "justice." We have, in our heads, some general ideas in advance about how that... code... will produce just outcomes. Then comes some input. Crank, crank, crank. Some crank comes along, and does a thing, as cranks are wont to do. Our machine cranks along, mechanically, electronically, or otherwise. Beep, beep, beep... output. Ta-da!
Oops. Fuck.
Did our machine glitch? Nope. (Or at least, not necessarily.) Our code had a logical error in it. Why? We suck. We're humans, and we tried to write some code to approximate Solomon, and we can't fucking do that. We tried our best, but our machine failed its Turing test. Observers noticed the difference between our machine and Solomon. The distinction between the observed output and the output you thought you were supposed to get, that you thought that Solomon would have given you? That's the machine, failing the Turing test.
Or so you think.
So obviously, I'm inspired to write this about the Kyle Rittenhouse verdict, and reactions to it. The verdict was "not guilty." What does this mean? What happens, when you plug this case into the mechanical code of the legal machinery?
Bluntly, this verdict was easy to predict. Why? I paid modest attention to the case itself, but the legal arguments I read centered around the ambiguous applicability of self-defense law in Wisconsin. When there is ambiguity in the law, ambiguity is supposed to go to the defendant. That's the generalized rule. That's the code that gets plugged into the machinery. What went into those automatons** in the jury deliberation room was as follows: is there ambiguity? All the defense really needed to demonstrate was that it was at least ambiguous. Conviction requires clarity of the law. Otherwise, you could convict people when the law is unclear, and that would lead to bad outcomes in a lot of cases. So this was predictable. That's not to say moral. That's my point. Just predictable.
Bad code? Cross state lines, loaded for bear, put yourself in the middle of a riot: does this sound like "looking for trouble" to you? It probably would to Solomon. What does this mean for a thing called "self-defense?" If you go "looking for trouble," and it finds you, does self-defense remain a morally coherent response? That's a very different question from whether or not the machine glitched, yet the Rittenhouse acquittal creates some very perverse incentives. Yup, bad code. Otherwise, we're creating legal incentives for vigilantism.
But that doesn't mean the machine glitched. It means the code had a logical flaw.
Ambiguity goes to the defendant. That's the rule, and there was enough ambiguity for an acquittal, so the machine failed its Solomon/Turing test. That's a flaw in the code, not a problem in the machinery. Software, not hardware. This is why we never get to stop debugging the code. This, unfortunately, is why the law keeps getting more and more complex as we keep re-writing and trying to clarify the law, and in the process, making it more intricate and messier.
Unfortunately, that's also why we need those fucking [adjective] lawyers.
Because this is a glitch in the code, and the solution is to fix the code, which means making the code even messier, and that means increasing the complexity of the code, which adds to the difficulty of interacting with the legal code, which means Dick The Butcher is a fucking asshole, and the bad guy. Yeah, yeah, ha, ha, we hate lawyers.
But lemme guess. You're some fucking lefty, pissed off about this little vigilante? Well, statistically, that probably means I can "trigger" you by uttering the incantation, "mass incarceration." You think the people convicted, or even just investigated, could use some better legal representation? That would mean... lawyers.
That's the law. Code. Process.
The law is messy, and ugly, and it is very easy to look at an outcome, particularly in the context of a high-profile case, brought to media attention because of a racial storyline, and say, we don't need no stinking lawyers, we don't need no stinking courts, we know the right outcome.
And that's the thing. If you are complaining about the Rittenhouse verdict, that's because you are telling yourselves, and your friends and whoever else on social fucking media that you knew the "right" outcome, and knew it in advance. Not having ever studied the intricacies of self-defense law in the State of Wisconsin.
Funny, that. I kinda think those laws are relevant. Centrally relevant.
Why? Because you are looking at this as a question of moral judgement. But that's not what it is. It's a question of law and process.
The law is code. That's all it is. It is code written by stupid, ugly, sweating, stinking, fetid, farting, fucking [verb and adjective] humans. Intended to approximate justice and morality, but that's not what it is. It is code. Machinery, cranking through code as cranks get turned when some crank gets a gun and does what Rittenhouse did.
When you evaluate whether or not the outcome is the outcome you wanted, what are you saying? If you say that the outcome was wrong, what does that mean? Does that mean the code was applied improperly because the machine glitched? Maybe, but it could also be a logical flaw in the code. Or maybe you're just wrong. And the big thing going on right now is that people are evaluating the Rittenhouse verdict, not by looking at the structure of self-defense law, but by drawing ideological lines and evaluating the morality of Rittenhouse.
If that's what you are doing, you are totally missing the point.
Why does this matter so much? Lots of reasons, but suppose I'm right. Suppose that Rittenhouse is morally wrong, but he caught a break because of a logical flaw in the legal code. If I'm right, then the response is to fix the legal code like good, little programmers, debugging code.
The response is not to go all Dick The Butcher on this shit. Because if the machinery works, but someone fucked up when writing "code," then tearing down the machinery misses the point. I don't want to live in the bloody anarchy and chaos of Cade's Rebellion or worse.
This is not to say that the machinery always works, never glitches and has no biases. However, you cannot evaluate that by asking whether or not the outcome is what you want. You can't just say, the verdict is cleary wrong, so "the system" is wrong and corrupt to the core. That kind of assessment presumes that you need no system to determine the right outcome. If you assert that you need no system, you are... Dick The Butcher.
And if you criticize the right for rioting and the January 6 insurrection when the proper application of the law gave them an outcome they didn't like... you can't advocate tearing down the system when the courts give you an outcome you don't like, having worked properly. Fix the code? Sure. Tear it down? No.
Debug the code. Don't smash a computer just because you're a shit programmer and can't tell the difference between hardware and software. Some of us don't want to face Cade's Rebellion.
I am Henry VI, I am, Henry VI I am, I am...
And since I missed jazz on Friday, here's some jazz. Lafayette Gilchrist, "Coded Sources." This is from The Music According to Lafayette Gilchrist. I never watched Treme, so I didn't know about its use, but hey. Good taste.
*We're doing Shakespeare. I love Shakespeare, but I have this thing in my brain that won't let me take anything too seriously. If I'm doing Shakespeare, I have to undercut it somehow. Today, that means dick jokes. If you don't like my dick... jokes, if it's too much to swallow (OK, that one crossed the line), don't read. Then again, nobody does, so I'm doing dick jokes this morning. Seriously, though. This post has references to Aristophanes, John Von Neumann, 15th Century English history, and grammar geekery. If I feel like reverting to adolescence, I'm gonna.
**Yes, I know jurors are not automatons, and that they can have biases, and so forth. However, it is a fallacy to assert that any ruling with which you disagree must have resulted from jury bias. To do so is to presume that you have no biases, and you cannot simultaneously build your argument on the assumption that juries are biased, but that you are not. The legal system is built on the Von Neumann interpretation of jurors, which is how I am writing, and in the absence of compelling evidence to the contrary, we must treat that as the null hypothesis.
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