Alan Siegel gave a lovely TED talk discussing the role of simplicity in legal agreements.  More specifically, he calls out the health care reform bill.  Why, when we have a 16 page Constitution with which we govern our country, do we need a 2100 page health care bill?

Well, we don’t.  We could have a 16 page health care bill, filled with generalities, and trust in courts or administrative agencies to fill in the blanks.  Just like with our Constitution.  We don’t have a 16 page Constitution, in practice.  We have a 16 hundred thousand page Constitution – and that number is probably conservative!  All of the decisions interpreting Constitutional provisions, the scholarship surrounding the Constitution, all of this goes into how our country is run, just with respect to the Constitution.  Ask a constitutional scholar – the crowning glory and the fatal flaw of the United States governing document is the same, that generality and flexibility.  Entire constitutional theories are generated primarily to provide better interpretative guidance, with less flexibility, out of those lovely generalities.

So, yes, we could write our health care bill that way.

Should we?  The complexity of the health care bill is partially an attempt to remove that kind of flexibility in order to retain the specificity the legislature intended.  Of course, some portion of it is a result of interest group negotiation, but that’s democracy.  In the end, the complexity of bills and legal language in general is not an attempt to avoid simplicity so much as an attempt to promote finality and clarity in a different way – not necessarily easy to understand initially, but with only one possible interpretation.

Whether that attempt works… is a topic for another time.

Somewhere deep inside we all believe that if we could just explain to someone else why we’re right, they’ll see the light and begin to believe as we do. When I run into a fundamentalist Christian (or, when they run into my godless Commie self) we both believe that the other person is thinking wrongly, that their conclusions are based on poor logic and if they’d just listen, they would see the light and begin having copious amounts of pre-marital sex (or tithing to some kind of horrifying Roberts/Falwell hybrid).

But they won’t. Listen as long as you want, they’ll never get around to buying your arguments. And thank (non-existent) God, I won’t get around to buying theirs either.

There’s a good reason for that. We’re not wired to think the way we think we are. We believe in our hearts that we are rational beings, that we derive our views via logic. But we don’t. A model proposed by Jonathan Haidt (an excellent explanation of which is contained in The Emotional Dog and Its Rational Tail – a title which summarizes the concept neatly) focuses on the idea that moral intuitions not only guide but in fact compose the basis of our cognitive judgments, which are post hoc rationalizations designed to match the intuitions our underlying moral frameworks give us. We think that we believe murder is wrong based on formal logic; in reality, our biology and neurology recoils from murdering others who we see as part-self. This is why othering processes are critical in all forms of violence – if you can see the other person as belonging to the same group as you, your neurological processes generate a profound biological basis for moral disgust at the action, which you will post-hoc rationalize to justify your decision not to commit the violent act.

In other words, all those judgments you make? It’s just your neurology generating rationalizations for the things you fundamentally believe. And trying to change someone’s fundamental beliefs? That’s hard. I won’t say impossible – everyone changes. But very, very hard.

The real problem requires that we go a little further into Haidt’s theory. When two people with contrary moral intuitions try to discuss something, their rationalization processes will examine the statements of the other person and reject them as counter to the fundamental moral logic they use to make this kind of judgment. It’s called the “bad faith problem” – we don’t see those arguing from alternate bases of judgment as incorrect, we see them as intentionally obtuse. They’re not just wrong, they’re willfully ignorant; they’re avoiding seeing the truth. You know. As we see it.

So let’s bring it back to the law. I am half of a lawyer (I have not yet figured out if I’m the law part or the yer; lately I suspect the latter more than the former), probably I should know something.

And here we relate back to a powerful theory of analysis of the law, critical legal studies, especially as developed by a fellow named Duncan Kennedy in a piece called The Critique of Rights. It’s a fairly complicated bit of theory and it uses lots of fancy words, but the core of the Critique is this – our Constitution does not define any specific outcomes when rights conflict with one another, and rights can always be construed to conflict. Once rights conflict, all of the trump cards that the term “right” holds in our minds – the notion of an insurpassable correctness – go out the window, because when it comes to a choice between freedom of speech and the separation of church and state, how do you decide which one is more correct? There’s no legal structure that allows you to assert the supremacy of one clause over another; as such, the choice of which right prevails is inherently political. Political, in this sense, meaning that it is a matter of policy, a choice made by a variety of metrics but one without any real notion of a “one true answer”. Pick your poison; they’re all equally valid.

So, if our cognitive judgments are fundamentally derived as post hoc rationalizations from intuitive moral structures, and our legal choices are inherently flexible and derived from our cognitive judgments, we’re left with normative legal arguments actually being conflicts between deep moral structures. The debate over whether abortion ought to be protected by law is a conflict between people who, deep down, see it as murder, and those who don’t. Any number of justifications exist to derive the legal or political position from that emotional intuition, but in the end, those arguments serve only to justify to ourselves; they’ll almost never convince someone of the opposite view from the one they hold.

Our normative debates are all too often pointless exercises. We’re yelling, not discussing, and we ought to treat it as such, or at least acknowledge that that is a strong component of what we do. Change will come slowly, generationally, as the new generation slowly shifts one way or another in the indoctrinations their moral structures receive.

I realize this is a somewhat pessimistic view. There are some rays of light – for one, these neural structures can change; people do experience conversions of thought that reflect a deeper internal change. It’s hard, and rarely will it occur when someone isn’t seeking some kind of change, but it is possible.

But in the end, it’s all just yelling. Relax and enjoy it.