Making law without lawyers: How the 49ers paved the way

It was the tragedy that so many had anticipated for so long: a self-driving Uber car killed a pedestrian in March, and as a result, the cutting-edge technology behind it was benched. Uber has since opted not to renew its permit for testing its self-driving vehicles in California.

Uber anticipates that the suspension of its self-driving initiative will be temporary—but how soon autonomous vehicles will be back on the roads will depend on how quickly we solve an even more fundamental problem: how will we build the legal and regulatory framework needed to convince the public that self-driving cars and trucks are reasonably safe?

Can our departments of motor vehicles and ordinary traffic laws keep up with the speed and complexity of the technology? Can we get the balance right between holding owner, manufacturer, software developer, traffic systems designer, passenger, pedestrian responsible?

These are the types of new legal challenges we are facing in today’s global, digitized economy, and the clumsy nature of current regulation is a clear sign that our legal system has not kept up with the pace of technological progress. It will never be the case that autonomous vehicles injure no-one. But if one accident pulls them off the road, where do we go next?

Resolving these questions is too important and too complex to be left to lawyers alone, who are often trapped by the perspectives of a closed profession and conventional solutions: new legislation, new rules, new arguments in complex litigation.

To address dilemmas such as the regulation of self-driving cars, artificial intelligence and other novel technology, we are likely to need wholly new approaches to regulation, such as third-party systems that are capable of identifying and even intervening when things are at risk of going wrong. These are regulatory systems that lawyers can’t be expected to invent on their own; they are as or more likely to come from technologists, economists, sociologists, engineers and entrepreneurs.

Reaching these new solutions is going to require that we abandon our presumptions about how regulation works, just as we are abandoning our presumptions about how cars work.  We must first go back and understand what, in essence, is law and what we as a society require from it.

People other than lawyers have in fact been figuring out new ways to solve new legal challenges for millennia. And one prime example occurred right here in California, 170 years ago, when on a rainy afternoon in late January 1848, a soaking wet James Wilson Marshall walked into John Sutter’s office at Sutter’s Fort near present-day Sacramento.

Marshall urged Sutter to lock the office door and took from his pocket a sodden rag in which were wrapped a few nuggets of yellow metal. Marshall had discovered gold in the streambed while constructing the sawmill.

This was not the first discovery of gold in California; Mexicans had discovered gold just north of Los Angeles several years earlier. But the Mexican discoverers had managed to keep it a secret.

Marshall’s secret was out when a storekeeper and church leader at Sutter’s Fort, Samuel Brannan ran down the streets of San Francisco in May 1848 waving a bottle of gold dust in the air and yelling, “Gold! Gold! Gold from the American River!”

Marshall’s discovery came at a time when California was without any formal legal system or institutions: no police, no legislature, no courts, no legal profession. The miners were on their own in working out who was entitled to extract gold from the rocks and rivers of California.

The miners had little difficulty in doing so. When few prospectors were in the area, most diggers were undisturbed in their efforts to extract gold from a hole they were working. But the infamous Gold Rush brought hordes of so-called 49ers to the state – causing the non-native population to jump from around 15,000 in 1848 to over 300,000 by 1854 – and the rush soon put pressure on simple norms.

Disputes erupted and miners began holding meetings at their camps to choose some rules. There was no formal way of deciding who would call a meeting or who was entitled to participate. If you were at the camp when a meeting happened, you got a vote; if you weren’t, you didn’t.

At these meetings, the miners decided how big a claim could be and how many a miner could possess, how a claim had to be marked, and whether and how long a miner could leave a claim unworked before losing his rights.

In what was a key feature that made these rules “law”, the miners’ rules also set out a way of deciding how disputes about the rules would be handled. The miners at Jackass Gulch, for example, specified in their code that “as soon as there is sufficiency of water for working a claim, five days absence from said claim, except in cases of sickness, accident or reasonable excuse, shall forfeit the property.”

But they didn’t leave it at that: they also declared that any disputes would be decided by a jury of five persons. In some camps a jury would be selected on the spot by the disputants, perhaps by flipping a coin to decide who would choose a juryman first from among the assembled miners.

There was no sheriff to enforce the rules; no militia to put out claim jumpers. But the rules worked remarkably well: the miners followed them, even though they changed from camp to camp and could be changed one day to the next.

The rules weren’t necessarily what everyone thought was fair, but they were the rules that everyone knew everyone else was playing by. So why did people comply? Because if they broke the rules, enough of the other miners in the camp would object and find some way to show the scofflaw that the rules were to be followed.

Engaging in the enterprise of law means more than simply labelling a particular set of rules “the law”, of course. But the miners’ labels reveal something important. They reveal that the miners understood that their rules had this special status.

The law’s special status comes from the fact that when we have governance by legal rules, the rules are in charge. What counts as “lawful” is determined by the impersonal dictates of an inanimate object, a set of rules, and not by the judgment or caprice of any particular person.

In setting up a system of rules and calling it law, people are communicating with each other that they are creating a system of rules that they intend none of them to personally control.

Since this will inevitably involve human beings making judgments about what rules are and what they mean, they need a set of rules to control those human decisions: rules for making and using rules. This is how everyone can tell whether a decision is a decision according to the law, and not just some person’s opinion. Once the miners had conducted their first meeting and adopted a first set of rules to govern claims, for example, the rules could only be changed by another meeting.

The deliberate structure of law includes a way of ending the argument, and everyone recognizes that this is the way arguments about law are ended in a particular legal system.

What is essential to the idea of law, then, is not “legislature” or “court” but rather the fact that we all know that everyone else knows that this is what we recognize as law.

That’s what we can change about how we do law. It’s unlikely we would ever want to do away with legislatures and state-run courts. We probably won’t even want to do away with lawyers. In fact, people with special expertise in the enterprise of making and using rules to govern conduct are even more valuable in the new economy.

But we might decide that legislatures, state-operated courts, and conventionally trained and licensed lawyers are not the only way that the enterprise of law can be conducted.

Some law could be made by private firms – competitive profit-making companies and non-profit organizations – and “legal” services provided by a while host of people in addition to conventionally licensed lawyers.

I think we could see in law the kind of transformation we have seen in most of the rest of the economy. Modern legal systems, like the modern mining industry, have moved on from the simple tools used in the nineteenth century. But there is a simple question to be dug out from beneath modern legal complexity: what rules work best to get what we want from economic activity?

When the world changes as dramatically as it has over the past three decades, not only the rules need to change: the way we invent rules has to change.

This article was adapted from Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy (OUP) by Gillian K. Hadfield and was originally published by LA Daily Journal on April 19, 2018.

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