Legal Language Is the Wrong Language for Politics

Listen to how public affairs are discussed and notice how much of the vocabulary is borrowed from the courtroom. Was it a bribe? Is he guilty? Was the procedure followed? Can that be proven? These are the right questions inside a trial, where a specific person faces a specific charge and the outcome is prison or freedom. They are the wrong questions everywhere else, and we have let them take over everywhere else. I want to lay out why, point by point, because the damage is larger than it looks.

The Lines in the Law Are Not Out There

You may vote at eighteen. Nobody found that number in nature. It is not the answer to an optimisation problem either, because every member of society weighs the costs and benefits of moving it differently. Eighteen is a compromise, and a compromise is a fact about us, not about the world.

The same is true of the word "bribe." We pretend there is a sharp line between a bribe and doing your job, and we pretend it because we want people to trust the legal system, which needs sharp lines to function. The world does not have the line. The law drew it. People dislike hearing this, in exactly the way they dislike hearing that the world has no cosmic purpose, and for the same reason: they do not want to live in a world like that, so they tell themselves it is otherwise. The press and the politicians encourage them.

The cost is that people stop thinking about systemic problems, where the truth is statistical and murky, and think only about individuals, where a verdict is available. Most corruption is systemic. It comes from the shape of the system and its hierarchies, not from a few bad men, and a vocabulary built for judging individuals cannot see it.

The Press Has Adopted the Courtroom's Words

Journalists now spend their days asking whether this or that politician is guilty of a crime, in the precise legal senses of guilty and crime. Their editors and legal advisers insist on it, because the press is influential and influential speech attracts lawsuits.

But finding guilt is not what the press is for. The press is supposed to hold a discussion about what is right and wrong, whether or not the evidence would convict anyone. It is supposed to hold a statistical conversation about the world, not a legal one.

Here is the example that makes it concrete. If politicians, as a group, leave office much richer than they entered it, then politicians, as a group, are being bought. We may have no admissible evidence about any particular one of them. The statistics tell us there is a problem anyway, and a healthy press would say so. Instead, say "politicians are bribed" and you will be told you are making a legal accusation without proof, and threatened with libel.

This is a hijacking of language. The legal profession has claimed that every discussion of corruption must be judged by the legal meaning of the words. I do not care about the legal meaning. I want to talk about the problem, and the vocabulary I need has been confiscated. It is an effective method of control precisely because it looks like scruple.

The Public Has Followed

Once the press talks like a court, the public thinks like a jury. Was the senator's meeting with the lobbyist a bribe under the statute? That is the wrong question, but it is the one people ask, because we are built to look at faces and are bad at statistics, and so we reward the press for supplying individual cases.

You do not fix a systemic problem one case at a time. You fix it by talking about the distribution, and the distribution is exactly what we are not taught to read. Schools teach Euclidean geometry, where a proof settles a matter forever, and do not teach statistics, where nothing is settled and everything is a tendency. I have argued before that this is the wrong way around; the legal mood of public life is one of its consequences.

You Cannot Raise the Real Issue

Try saying that a corporation has too much influence over the legislature. The listener immediately hears an accusation of bribery against some legislator, and asks whether you can prove it. Since you cannot, you soften the claim, or drop it.

So the important issue, the structural one, goes undiscussed, because every attempt to raise it is heard as a charge against a person, and charges against persons carry legal risk. The chilling works on exactly the topics that matter most.

Crime Is Not Prevented by Law

Here is the point that people find most surprising. Laws do not prevent crime. Systems do. A crime is prevented when the arrangement of incentives makes it against the interest of the parties to commit it. A shop reduces theft by putting up cameras and moving the till, not by lobbying for a longer sentence. A tax system reduces evasion by withholding at source, not by prosecuting harder.

This is why we should care less about the law and more about design, and why we should free public conversation from its litigious tone. We need to be able to argue about what "bribe" or "rape" should mean, as questions of policy, without each argument being read as a verdict on someone. Problems that cannot be talked about are never solved.

The System Serves the Rich

The more elaborate the law becomes, the more you need to have studied it, to have been certified in it, to be able to afford someone who has. Complexity is a toll, and the toll is paid in a currency the rich have and the poor do not. The result is a get-out-of-jail card for anyone with resources. The financial system destroyed hundreds of billions of the public's money and almost nobody went to prison; rob one person of a few hundred and you will do years.

Legalese Is a Democratic Failure

Laws written in impenetrable language are not read by the public. So the public does not know what the law says, must hire experts to tell it, and gets different answers from different experts because the text is ambiguous. A law the governed cannot read is not a law they consented to in any meaningful sense.

The Homage to the Past

Finally, the legal system is semi-religious in its reverence for old texts. Why must a constitution be read according to the minds of its authors? Why is it so hard to change? In what other area of life would we defer to the opinions of men two centuries dead? We would not let them design our bridges or our medicine. We let them design our politics, and we call the deference a virtue.

We could write a better one. We should teach disrespect for the past in general, and the law is where it is most needed.

The Common Thread

Every one of these points is the same point. Courtroom language is built to decide the fate of one person under one rule, and public life is about the shape of systems. Borrowing the first vocabulary for the second job does not make politics more rigorous. It makes the important questions unaskable, and the people who benefit from that are the ones the questions are about.