Examining how living law seeks to survive

07-06-2020 07:22 PM By Sandbox Member

By Meditations of a Madman

Some view the law as a "living" thing, and I am inclined to agree. Indeed it does share a lot with other living things: it grows, changes, adapts, etc. The law also has at least one other trait in common most living things, the pursuit of survival.

The law's pursuit of survival is driven by forces outside of itself, i.e., social and economic forces within a society, but the bottom line remains the same, when a law is brought to life, it brings with it certain mechanisms geared towards its own survival.

I will not go into too much depth about the social and economic dynamics, but I will highlight a few things briefly to clarify what I mean: When a law is instantiated it creates a benefit rent for some folks which incentivizes them to protect it, thus creating a means to protect its survival. In addition, the existence of law creates a need for a means of adjudicating disputes about the law, which is to say a law creates the need for law to enforce the law. The complexity and bureaucracy create distance and places hurdles between people (the number one threat to law) and the law itself. There is another potential effect at play in this dynamic, a far more insidious one. Law makers have an incentive to make sure the laws are honored and remain standing. Imagine a law maker who makes laws which are repeatedly shot down quickly or are rapidly ever changing. In a democratic scenario they would be viewed as ineffective. In a more dictatorial scenario, such a pattern could undermine them in many ways. In an abstract, metaphorical sense, the law itself shares this same incentive. If a laws comes into existence and vanish just as quick, law itself as an institution becomes less potent. Finally, although I alluded to some other examples already, the law, once instantiated, co-ops elements of social and individual psychology in support of its survival. For example, law marshals morality, authority, dogma, fear and shame to protect itself.

But here is where we run into problems.

Laws are written so as to protect a certain state of reality. However, reality changes and the desired reality changes.

A living law aiming to survive will, in doing so, slow down our ability to utilize it to create the desired reality we want or adapt it to account for new states of reality. In pursuing its survival, law makes itself less useful.