New State and Legal Forms for the New Age9.8 New State and Legal Forms for the New Age
As previously observed, the modern state exists in a tensed condition, balanced between big-brother statist collectivism and little-brother individualist participatory democracy. While, on the one hand, new and increasingly complex and expensive techniques seem to require massive state involvement in administration and regulation, the ordinary citizen has greater knowledge and therefore broader power than at any time in history. The state is clearly at a crossroads. With its citizens' consent, the modern state could continue to grow in size and influence until it encompasses the entire economy and technically regulates every aspect of its citizen's lives. A side effect would be the resolution through the use of force of the ethical problems discussed in the last section. Such a prospect cannot be ruled out even in the relatively free West, despite its obvious failure in communist states.
Alternatively, the state could give up administrative power and regulatory authority, and turn decision making into a participatory democratic process. There could be great danger for the liberties and rights of minorities even on the latter path, however, for unless safeguards were built in, majority voting via computer tabulated voting could become just another kind of mob rule. Moreover, the state, though somewhat amorphous, might be equally powerful under participatory democracy as under more explicitly statist regimes. There is also the danger that liberty could become rugged individualism--taken to the point that the state fragments into an ungovernable chaos. Modern Lebanon, and Yugoslavia, if there can be said still to be such entities, became the archetypal example of fragmentation. In these situations, power eventually devolves to the strongest available tyrant, but not before thousands have died. Individual liberty and freedom depend more upon the general consensus that these things ought to be fostered and practised than they do on the specific form of democracy within which they are attempted. If a free people ceases to act free, they have already lost their freedom, and may not get it back. There is a delicate balance between the need to govern, and the need for freedom--too much of either one can destroy the other.
Similar observations are true of the law. If the majority will not obey a particular law, it cannot be maintained except through force, and not very well even then. At the very least, the general population must be convinced that a law is both fair and in its best interests, or the law will fail. It is even better if they are convinced that the law is right in the absolute sense--that it expresses a moral principle they all agree with. It has been the case that the judiciary, policing, and legislative functions have been separated in some democracies in order to improve these perceptions of the law and its enforcement. This separation has blurred in recent years; perhaps it will have to be sharpened once more to restore the old balance of power. It is also worth observing that, if, on the one hand, technology is creating new difficulties with laws and their enforcement, on the other it is providing new tools to these as well.
Legislative decision-making can benefit from the information age in much the same way as does the decision-making process in any other enterprise. However, the need to debate proposed new laws in the light of prevailing political dogmas, and the large number of people involved in these decisions, guarantee that political decision making is relatively slow. If new technologies do permit wider participatory debate, they will be neutral insofar as the speed of this process is concerned, for debates take time, even if conducted electronically. This may be a good thing, for it would help to ensure that instant information will not lead to instant and ill-considered decisions, so the quality of legislation may not deteriorate much. On the other hand, participatory democracy could result in laws that reflect majority opinion without regard to whether there is an overriding justice or principles of right and wrong. Although this trend now exists, there is no reason to believe that a legal system with a relative and arbitrary base can lead to anything other than tyranny--the rule of the strongest (even if collective) arbiter. If, therefore, technology is used to expand the participation in law making, new constitutional safeguards for minority rights may be necessary to prevent unfair laws from being passed simply because the majority desires them. Not every proposition that becomes popular ought to be made law, for as Hitler showed, it is possible to make scapegoating popular to the point of genocide. However welcome his ideas are to most at present, one must remember that they once were popular. What can be done once can surely be repeated, so active measures have to be taken to prevent tyranny by the majority.
In any event, the same considerations that were applied in the last chapter to suggest a move from hierarchical business management to flexible or professional/contract models can also be used to suggest a move to participatory democracy as a model for the state. Here is another version of the same chart.
The trend toward the top right of the chart, identified earlier, seems to favour participatory democracy in the information age, even though it need not be particularly flexible. It is worth noting that the radical egalitarian model appears to be off the line of stability, even though its placement along the bottom somewhere depends on whether one considers its theory or its practice as being the chief determinant of whether it emphasizes the individual or the collective.
If technology has broadened the scope of criminal activity, it has also added new means of enforcing laws. Police of the information age are obtaining database readouts on automobiles, victims and suspects via computer terminals in their cars. It is already possible to make identification of a criminal with genetic mapping from semen, skin, hair, blood, and fingernail samples, and the use of retinal patterns may also be feasible. At some point, an automatic blood sampler and analyzer could be built to instantly identify any human being by genotype--an ultimate identity card. Whether any such device will be used in the near future is another matter--it would be very likely under a totalitarian state, moderately likely in many European countries, and relatively less likely in Canada, the United States, New Zealand and Australia.
Another device whose reception has been mixed is the electronic locator and tracer. Fixed to the arm or leg of a criminal on supervision but not in an institution, it provides an ongoing readout of the subject's activities and a means of checking on parole violations. It has the potential to replace many prison sentences with house or community arrests, and to prevent or solve new crimes because the individual's whereabouts would always be known. Like any device with a beneficial potential, it has an equal capacity for harm--the same device could be fixed to every citizen and the state could then monitor and control all daily activities. However, despite downside potential, reduction of prison population will soon become so pressing a necessity that these devices will probably go into large scale use without much debate.
Applications of technology to the practice of law that have already begun are the use of videotaped testimony and teleconferenced trials. The former is used in cases where victims would be traumatized by having to relive the incident and be cross-examined, perhaps years after the crime. This includes rape and other assault cases, and situations involving child molestation and abuse, or others where testimony taken immediately after the incident is preferable to that made much later. Teleconferenced trials are useful when it is too expensive to transport a judge to a remote location, or the various parties are widely scattered. These ideas have yet to be well exploited but have the potential to effect considerable savings in the judicial system.
Yet another potential application for technology is the much maligned "lie detector" or polygraph. These devices, if ever made reliable, could be installed at airports and banks, whose customers could be required on entry to place a palm on the sensing plate. Those whose emotional state appeared abnormal, as indicated by sweat and pulse, could be further scanned for weapons before being allowed to continue. Indeed, devices now coming into use at airports to detect even parts per billion of plastic explosive molecules on a person's clothes or skin also have potential to be used in detecting chemicals given off when a person is emotionally distraught. These sniffing machines would not prevent all incidents, but would offer an additional level of screening. As in all such proposals, however, there would be a loss of liberty and privacy to gain security, but this is a common trade-off. It is only after some time that it is possible to determine if such trade-offs are satisfactory, by the time this is known, it may be too late to change course.
Law enforcement will make incremental new uses of technology as does the criminal element. Police work will never become perfect, because if it did the result would be a permanent police state. It seems most likely that insofar as both law and government are concerned, there will continue to be a big brother/little brother tension, and that there will continue to be both a state and a legal system that are in rough accordance with the prevailing moral/ethical consensus of the citizenry. So long as the absolute principles upon which democracy is based are upheld by its citizenry, it will survive, though its form may change somewhat.
It is worth noting however, that in an age when many individuals can command weapons of mass destruction and the loyalty of suiciders to deliver them, no nation is safe from attack, however democratic it may be.
As with state and economic institutions, law will also exhibit both collectivist and individualist tendencies. That is, more of its application will tend to be at the local and community level, where it can be tailored to suit local needs. At the same time, it may tend to become internationalized as nation and economies spill over their present frontiers and operate more and more on a continental and global basis. In this arena, law is likely to become more standardized and universal. This change would be complex and exceedingly difficult for four reasons. First, it is hard for present nations to concede a measure of sovereignty to new global authorities in order to begin writing universal laws. Second, actual agreement on what kinds of law ought to be internationalized and what their content should be would be very hard to achieve--especially since some countries are now returning to a religious base for law while others are moving away from one. Third, the entire effort must be handled with the greatest caution, for once it is agreed that a law is a manifestation of universal justice, it will be almost impossible to change it--there will be no external comparisons or cross-fertilizations possible with global laws. Fifth, there will always be people who vigorously oppose change, whether it is logical and necessary, or not. These considerations point to a long process of change; the economy may well be a global entity long before law is.
However, there are pressing concerns that can only be handled on an international basis, because they affect more than one nation. These include air and water pollution, biological, nuclear, and chemical experimentation, and control over the effect on the environment of industrial by-products such as pesticides and ozone-destroying refrigerants. They also include export and import of resources like water, which may be in abundance in one country while being very scarce in a neighbour. Many of these problems have to be solved together along with others, for if they are not, even a reduction in nuclear arms would find the world a less safe place, not a better one.
Some of the problems that will be faced are not confined to the globe, but relate to explorations off its surface. Thus far, control and operation of these adventures has rested in the hands of two nations--the United States and Russia (with Europe, Japan, China and Canada bit players). In the long run, what happens even in immediate Earth orbit, let alone in the solar system as a whole, affects all nations, and all will have to be part of the process of controlling it. Thus, at the same time as both law and government is becoming to some extent globalized, it will also have to have new forms developed to regulate space.
As soon as any number of people become resident off planet, there will arise a need for commercial, civil, and criminal law in space, as well as regulations governing behaviour of agencies of the various states. The only way that these undertakings could fail to become international would be for space to become the monopoly of a single nation and, while that possibility cannot be entirely ruled out, it may be unlikely, given the vast profits to be made, and the large volume in which to make them. Indeed, by such a consideration, it may be more likely that corporations will dominate space rather than governments.