The legal system is the corner stone of any modern society, and one of its most basic promises is the delivrance of justice. It is something that we rely on. Why, then, are we seeing so many failures when it comes to this promise? Our legal systems are currently underfunded, unfair, and too complex for any normal citizen to understand.
As we look at any legal dispute, we so often want to judge it against the ideal of a ‘perfect society’. A society where we all agree on what is right and what is wrong. This society is a utopia, though. This ideal is not the basis of the society we are currently living in. Therefore, in his Ted Talk, Philip K. Howard presents to his audience four ways in which the legal system can be made simpler.
- We must judge law mainly by its effect on broader society, not individual disputes.
To do this, we must zoom out and look at the wider data. Mr Howard does this for his audience in his talk, he says: ‘the healthcare system has been transformed: a culture pervaded with defensiveness, universal distrust of the system of justice, universal practice of defensive medicine. It’s very hard to measure because there are mixed motives. Doctors can make more on ordering tests sometimes, and also they no longer even know what’s right or wrong.’ This overwhelming legal fear that many medical professionals hold can cause thousands of tragic mistakes in US hospitals. Furthermore, schools are also drowning in law. In the US, there are thousands of discreet rules and 60 steps to suspend a student from a school. Facts like this are, inevitably, causes of paralysis. The state of the legal system currently is a recipe for failure.
2. Trust in law in an essential condition of freedom.
Society is complicated enough without the added issue of legal fear. Law is an uncertainty that carries with it the power of the state though, so it becomes something much more powerful. It can actually change the way people are thinking, driving people from ‘the smart part of the brain’, and towards ‘the thin veneer of conscious logic’. In this way, medical professionals wind up ordering unneccessary tests for fear of legal action, and so in the US $200 billion of medical bills are racked up for almost no reason. When we cause professionals to begin doubting themselves, they make worse judgements. The question, therefore, is how do we restore that trust. Tweaking the law alone is not enough. What needs to happen is the establishment of a dry ground of freedom. This introduces the third proposition Mr Howard makes.
3. Law must set boundaries protecting and open field of freedom, not intercede in all disputes.
Law can set boundaries, which from one side are all the things that you cannot do or that you must do, but also define and protect freedom. We need to rebuild the boundaries that can impact that change, because what someone can sue an establishment over immediately impacts the society around. If a lawsuit is brought forward over a child being injured on a swing, no matter the outcome of the lawsuit, one can anticipate that swings will be removed, because people don’t want to run the risk of facing legal action.
4. To rebuild the boundaries of freedom, we must simplify the law and restore authority to judges and officials to apply the law.
The law has to be simple enough so that people can internalise it, so they can trust it. But how exactly can we do that? Perhaps the hardest change: restore the authority of judges and officials to interpret and apply the law. It needs to be rehumanised. To allow people to trust the law, to simplify it, we must have people who can apply the law, using their judgement, and in accordance with reasonable social norms.
These four things, if properly effected, could change justice systems for the future, making it fairer and easier for all to understand. Society needs to have faith in the legal system if it is to develop and thrive, allowing for everyone to be equal.
Philip K. Howard: Four ways to fix a broken legal system | TED Talk
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