Looking back at what I learned when attended law school – without heading for a degree, I must admit, I was just enjoying law and how it different from what I learned in other disciplines – I feel betrayed by what I learned. This is somewhat a recapture of what I learned and how I look at law today.
The Law School Foundation
When I started to study law, or more precisely German law, we were being ingrained a few notions that dominated the thought of all less apt first semesters. Those notions included:
- The total body of applicable law provides a joint union of sets of legal bodies that in its totally was a very small subset of the total set of all possibly regulated human interactions. It was goin somewhat like: All that shall be regulated is regulated, what shall not be regulated, is not regulated, what is not regulated shall not be regulated, etc. And where it is regulated? Well, you study law to find out. Can be anywhere from supra-national, to inter-governmental to national to local to case law. Studying this total architecture would help you understand law.
- How do you learn to apply law? You basically learn how to connect paragraphs in this total set of legal bodies in a permissible way to come up with sub-architectures composed of paragraphs that are appicable to a specific case. This architecture mostly being fixed and was called a “case framework”.
- Some of these subarchitectures were related [frameworks formed catalogues of related cases] and if a key assumption/notion in the philosophical underpinning on these changed or became debatable, they pressed through into the individual cases where arguments on “opinions” were the key hot spot where to place focus on during exams. Learning how to keep it simple and showing you studied a lot of opinions.
So basically, law was highly systematic, composed of a limited set of bodies, all containing limited sets of sentences which composed passages such as paragraphs that were somewhat atomic units which could be used when connected with each other to extract a silution pattern for working on a case. So in order to understand law, you needed to know the system of the legal body. And of course, historic development and motivation, intrinsic teleological meaning and grammer. That was part I.
After that, still for the inept, the next problem was a problem you also have in science, namely soberly keeping seperate internal and external validity of a model and to make a solid transition. [The internal model is a model of human created symbols or words or concepts that want to explain reality, the external model is reality or that part you want to look at and believe you are capable of isolating.] So you were forced to find way to map real world situations into the legal system. This was taught mainly in this way:
- Broadly define the nature of the case, and use a set of frameworks that exist for this “nature” of case. (Murder case)
- Use this framework to come up with a “relevancy” filter as part of the framework. This was the focus area of training: students were devoted to come up with their own “sketching mechanics” to boil down cases presented to map things into the world of law and then discussed them and revised them using supervision in teaching classes or they had to pay expensive tutors for it.
- Look at the narrative and total “evidence” = total set of information and boil it down to the things that are relevant under the framework (Apply Filter). So all legally irrelevant real world events evidenced and context information not relevant was killed from the analysis. [This was a sketch at work on a case]
- Check if all required parts of “facts” for the event are present. If some are missing, case closed.
- Then slowly start to fully understand and verify the likelihood of each identified realized real-world event given the total set of (possibly contradictive or inconclusive) information.So this was the work established by police work and courtrooms (witnesses, experts), and lawyers and ther activities (detectives, research). So qualifying information was part of later semesters, but still very basic. [This is taught after the first state exam.]
The next big topic was about process requirements. Topics included:
- Even if you had all information and it provided an absolutely solid case, if you had a processual error – filing one day to late, not kissing someones but – you were out.
- Understand how and when who was able to heal which kind of errors in either the process or in the evidence. And understand what kind of new evidence would impact the “likelihood” to a favourable way.
- Start to track academic discussions more closely and learn how to research court cases and use rhetorical figures in court cases to (a) learn about which divergent opinions hid in a case, (b) which opinions were mostly likely to be supported in court, (c) what kind of analogeous cases existed to build in analogy arguments. This somehow lead you to believe law was all about knowing the low and what is going on in the legal world.
- You somehow get trained and ingrained by the mindset that rhetorics and presentation as well as reputation of a lawyer and his connections in the ecosystems they work in were relevant indicators for a successful lawyer.
The next milestones: looking at it more maturely – Part I.
- At some point you understand that you can only select bad lawyers by finding one that doesn’t conform well on the knowledge past. If he can’t research, is not up to date, doesn’t know how to work in the legal system, forget the lawyer.
- You started to understand that the burden of proof and processual problems had a deeper meaning and were most likely least as important as qualifying “collected evidence” as relevant evidence for the case. And a good lawyer should be able to fully understand when a case is strong and can be won and when not.
This all makes a lawyer come closer to reality. But even if the lawyer manages to be very close to reality, it says nothing about what law is about.
Coming to the topic of this article: Looking at it more maturely – Part II.
You have to understand that there is no such thing as actual applicable law. The entire legal system including lawyers, the police and courtrooms and the entire academic discipline are a somewhat closed system that present a idealized Fiction of what it does: apply law in court.
This fiction is supported by all players in this entire market. The entire concept of a “system of the law” provides a foundation. The entire training method starting with case based teaching of law and going on into legal decisions published by smaller to supreme courts are basically producing rhetoric figures and are ingraining the idea of rhetorics into the entire domain. The rhetoric figures that the system produces and uses are never leaving the internal model domain and the entire system uses each opportunity to convey to the outside world that it is indeed connected to the external world.
Once you understand this, you easily understand that the crux of how law regules real life and people acting under legal regulation are affected by it is hidden in processual aspects and the burdon of proof. And the entire question on whether law is indeed fairly regulating each situation comes down to the one central question: how can someone use his real world influence to influence the conflicting party to never meet the burden of proof? If a particular part of the real world which is meant to be regulated can not be controlled by the legal and executive branch to an extend that the distribution of failure in providing the burden of proof is equally distributed among both types of party – the one doing harm and the one being inflicted harm upon – it is basically not regulating this domain of the real world in the fair nature that the entire internal world of the legal system claims it does. Some parts of law are even academically researched in joint efforts among economists and lawyers, but this form of “legal economics” only works on simplistic models where the problems are tractable by economic theory. It is found more heavy in industry regulation law and assessing fairness in the internal world of law.
This is simplest understood in employment law, because it is probably the most obvious. If an employee de facto is never in the position to enforce the events that shape his life as an employee to be materialized in form submissible to court without harming his own position, the law is working clearly against him.
Maybe it is even simpler to understand when you watch any of the popular TV shows that show how police officers use the lack of attention on legal and processual relevance of an action and its legally submissible form, the person experiencing actions performed by the police officer is not equally protected under law as the police officer.
Another popular example is the movie Facebook, where the co-founder that was fully diluted out of his ownership percentage of the company he helped create because he was not aware of the implications of the terms on which he invested. The latter case is also a bad example, because in this case it was a clear lack of due attention to the matters at hand when he entered the organization, which he would have not shown had he been a more experienced founder. But if a situation exists where both parties are fully aware of the legal meaning of their actions and one party is systematically excluded from his options to create the relevant legal evidence to protect him from being “screwed”, the legal system is not able to regulate what it was meant to regulate and the regulation is empty.