Thursday, December 23, 2004

A Simplistic view of Law & Society

In these days when furious debates are being held in the realm of copyright law (besides some people making loads of money!), I thought I'll put some thoughts into what it is all about. But before thinking about copyright law, I thought of putting what I understand of 'law' to be. So, I started with the question -
"What is law?"

Rather than define it first, I tried to create some hypothetical situations and then try to come to a definition. So I started with it's uses.

So, then, when are laws required? Assuming there is one person in a clearing in a forest. Are laws required for him? Nope.

Now assuming that clearing becomes a village of ten people. Are laws required now? Let's also assume that the basic tenet of this village is to survive with everyone's prosperity in mind. If everyone knows everyone else and understand each other's responsibilites and roles and the overal tenet of the village, are laws required? I should think not. If one person in the group decides to dominate the others in the group, the rest of the group can gang up against this person and explain to him that either he goes by the basic tenet of the village or he will be executed! So in a case where intentional malice is involved we can say that a law is not required. How about the case when malice is unintentional? Say one of the villagers is felling a tree for firewood and for some reason this falls on someone else's hut! If the person's action is truly unintentional then he would try to make amends in whatever form possible to ensure the survival of his fellow villager.

Now, over time, this village becomes a town of ten thousand people. People don't know each other anymore beyond their immediate neighbours. Therefore a representative government is required to ensure that the basic tenet is again followed among everyone. So now the tenet is pasted in big, bold letters everywhere and a new group of people created to oversee that people follow this tenet. A law and law enforcers have appeared.

So, what is a law, then? As a one line definition, I came to-
"Law is the common sense of the collective"

There are a couple of points here which I think is important.
First. Common sense, as common sense should be, is applied according to the scenario and situation. As an example, we all know that stepping onto a busy road is dangerous and may even be considered illegal, but if there's a child stranded in the middle, we'd throw caution to the winds and try to help the kid out. So, common sense to a large extent holds true in most situations, but we should always be open to change it if circumstances demands it.

Second, besides the situation or cicumstance, 'time' is not considered AT ALL in this statement. This is very, very crucial. In essence, whenever a law is created, it is assumed to apply FOREVER! This obviously goes against the grain of common sense! Therefore, law can and should change according to both time and place.

At this point, I remembered a famous quotation by Jean Jacques Rousseau -
"Man is born free, but everywhere he is in chains."

Are laws the only constraints that apply to individuals in a society? That's a negative again. Culture and society place additional constraints on each individual. Similar to going through a formal process of changing laws, when it comes to culture, conflicts arise between generations, when old mores are questioned and new ones introduced. By and large, social and cultural constraints go a long way before law needs to step in. When time is taken into account, this also means that the older the culture the more constraints exist, and the more time it takes for that particular society to adapt to new circumstances. Conversely, a society with a relatively younger culture will need to have more laws to ensure it's society running smoothly.

Going back to the original question "What is law?", we can say that law is using your common sense in a way which will ensure the good of the society as a whole.

The situation changes subtlely when organisations form. Organisations, by virtue of their definition, is a group unto its own. Although, it is formed by individuals it can still be considered for all extents and purposes as an entity trying to survive in society. A sub-society in a society, if you will. In most cases, organisations have the same goals as societies, to survive by providing the best for it's members. Usually, organisations have their own sets of rules and standards. These are called policies. Most of the time, the company's policies are more explicit than cultural, social and legal norms. Additionally, these policies are usually more rigid than norms as these are what define what the company is!

Now, there is a type of organisation called a corporation. A corporation's goals are vastly differnet from that of a society, or even that of an organisation. A corporation's goals are to grow bigger constantly. In other words, survival is not the most important issue, growth is. And for that growth to continue, it becomes important for more and more people of the society to use the corporation's produce. In other words, the sole aim of the corporation is to reduce choice for society. The reduction of choice can seem dangerous but need not necessarily be so. Society also provides similar situations - driving on a particular side of the road is an example. If all roads could be made one-ways, it would no doubt save all the head-on collisions!

However, unlike in the case of society where the reduction of choice results in the good of all of society, a corporation tries to reduce choice in society for the good of the few who own the corporation. Even when a corporation is publicly traded, the people at the helm make far more than each of those individuals who own small pieces of it. This distinction is extremely important.

So what happens when all the members of the society are consumers for the corporation? The corporation cannot grow any further! This creates a dilemma! Because if the corporation cannot grow, it's basic tenet is threatened! Additionally, over time as circumstances change, the corporation has a tougher and tougher time in retaining it's identity as it's policies go slowly out of date! Whereas in a society, changes can happen only incrementally; in a corporation, changes can only be disruptive.

In an ideal scenario these two have to be balanced in a civilisation. That is because, although a society's aim is to improve the well being of it's members, the only way it can do this is by encouraging corporation as these are the entitities which are primarily involved in the creation and distribution of large scale goods and services. This is because although creation happens in an individual mind, to give that idea shape and form, an organisation is required which would divided the labour. To ensure that the organisation succeeds in it's endeavour, it has to become a corporation.

Society, by it's basic tenet, realises that a corporation taking it over would result in its dying as it will become unadaptable to new circumstances. Therefore, the only way that a society can prevent this is by having laws in limiting the corporation's prowess. Conversely, the only way a corporation can continue growing is by gaining control over society. And the only way it can do this is by gaining control over it's laws! Since laws are "common sense of the collective", it becomes imperative to change that common sense! In most cases, this is called 'marketing'! Please note, 'marketing' is in quotes! I distinguish this from ordinary word of mouth which I would think to be as true marketing as these are honest opinions of users, rather than fabrications, however honest, of a paid agency.

Getting back to law, it becomes imperative for a corporation to change the law to suit itself. There are two ways of doing this. Control the rulers or by brainwashing the society. Both of these inevitably are short term visions. Over a longer period of time, there are sufficient advances made both in the physical, mental and social realm for either of these choices to succeed forever.

However, when that happens, there is always a revolution. In thinking, in action.

Update: Was reading an article on Slashdot called Copyright Issues in the Mainstream, and came across this in the comments -
No one has any natural right to any possession. Fundamentally, my property is defined by what I can either take and hide, or take and defend by any force I have available.

Government, via "social contract", creates and protects property rights and acts as the sanctioned force used to enforce those rights. The question then becomes, "what defines property, what defines fairness, and what limits and enpowers those rights?"

And that's why there's any argument at all. All the players in the intellectual property game have different and sometimes opposed ideas of roles, rights, and responsibilities. Fairness begins to boil down to "fair to who?", with the answer becoming "whoever can influence government to protect their interest best".

Explicitly, copyright was used to create and protect possession of the intellectual expression of a creator's ideas to allow those creators to profit for a short time by creating artificial scarcity and temporary monopoly. (Ideas and their expressed artifacts, uncaged, tend to flow around and multiply without regard to their creators' wishes to make a buck by them.) This was explicitly intended as incentive to publish, to share with culture the product of a creator's mind. The consumer's "right" to that creator's creation were deliberately circumscribed during the copyright time period. After that, the creation escapes into public domain.

Now, however, the rights of creators (or more specifically, the rights of those media corporate entities who co-opt the creators and wield their rights by proxy) have placed their profit rights well beyond the reasonable scope of incentive and, as you say, into the realm of perpetual monopoly, at the expense of the society which was intended as the primary beneficiary.

Sad, truly sad.