Healthy Law (Part one)

“Law is order, and good law is good order; it is the bond that holds society together.”

Aristotle

Law is more than a collection of rules; it is the foundation of any complex society. Markets, contracts, property, innovation, and general peaceful coexistence all depend not merely on law, but on broad trust that those laws are knowable, applied consistently, and administered fairly.

When that trust erodes, voluntary compliance gives way to compulsion. People stop asking “What is lawful?” and start asking “What can I get away with?” The expectation of others breaking the law may even make people believe they need to do so as well.

Americans’ confidence in the U.S. judicial system and courts hit a record low of 35% in 2024, down 24 percentage points from 59% in 2020 (the steepest four-year decline Gallup has measured globally).

It is a crisis that stems from four interwoven issues:

The proliferation and incoherence of laws themselves.
The escalating costs of compliance and enforcement.
Selective application of laws that lead to charges of ‘lawfare’ or a ‘two-tier’ system.
The human fallibility of both judge and juries, vulnerable to bias, error, or outside pressure.

The system is unhealthy. Good order is declining, and with it the bonds that hold society together.

Do we have a legal system or a justice system?

One is a system of laws; the other is a system that reliably produces just outcomes. Ideally, they would be one and the same, yet history is littered with examples of tyrannical states imposing unjust law.

In a world of imperfect knowledge, claiming to reliably produce justice may seem presumptuous. ‘Legal system’, by contrast, is a more legally defensible term. In standard lawyer-speak (“legalese”):

“The legal system endeavours, without prejudice, to provide a framework which may, subject to limitations in information and discretion, produce an outcome a reasonable person might perceive as just.”

Because our knowledge of justice is imperfect, we rely on clearly defined laws to guide behaviour and resolve disputes. However, we can still recognise when strict adherence to those laws leads to injustice. The tension between written and natural law has been debated since antiquity.

“A city is better off with bad laws, so long as they remain fixed, than with good laws that are constantly being altered” (Cleon as cited by Thucydides)

“An unjust law is no law at all” (Lex iniusta non est lex”) St Augustine

The disagreement is not over whether justice is a worthy goal; it is over how to practically achieve it.

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“The more corrupt the state, the more numerous the laws”

(Corruptissima re publica plurimae leges) – Tacitus

Our legal system contains countless opaque, onerous and sometimes even oppressive laws. This condition grants enormous power either to the state or to those with the resources to “play the game.”

No one knows how many laws and regulations are on the books in the USA. They may number in the millions across all levels of government. Even just federal law spans tens of thousands of sections and hundreds of thousands of regulatory pages. This is in sharp contrast to the Ten Commandments, which fit on stone tablets, or Hammurabi’s Code inscribed on a single public stele.

Like a hoarder, we accumulate laws and regulations, but rarely, if ever, clean house. Are the laws still fit for purpose? Are they even being enforced or are they just hidden in a dark corner under the bed? It is, as of time of writing, still illegal in Alabama to wear a fake moustache in Church for comic effect.

Imagine inviting people to a game night that begins with hours of reading the rules before they can play (with penalties for mistakes and no clear guide to what rules still apply). Most people wouldn’t attend.

Each additional layer of regulation imposes compliance costs, legal risk, and delay, diverting vast resources toward navigating the law rather than creating value. Large institutions absorb this friction with legal departments; small businesses, innovators, and individuals cannot. The result is not only an estimated trillions spent on legal compliance and administration, but an even larger, unseen cost: projects never attempted, innovations never pursued, and opportunities quietly abandoned because the legal risk or complexity is too high.

While good laws are essential to ensure good order, bad laws can act as a brake on economic activity. They may cause the engine to stall and the economy to slide downhill. We do not have effective mechanisms to review existing laws and ensure they are:

Fit for purpose.
Reflect the sober will of society.
Simple to both understand and live by.

“Written laws, which were just like spiders’ webs; they would hold the weak and delicate who might be caught…but would be torn in pieces by the rich and powerful.”
Anacharsis, as quoted by Plutarch

The legal process can be so costly, time-consuming, and stressful that in practice justice can seem a luxury afforded only by the rich or powerful. Isonomia, the Greek principle of equality before the law, is often more aspiration than reality.

For defendants in US jury trials, a typical civil trial can cost tens or even hundreds of thousands of dollars. The state (taxpayers) spends over $10,000 per average felony trial, with complex cases potentially costing millions.

Consider the reality for ordinary people and small businesses. As a startup founder, I once faced a clear contract breach that cost my company everything I had invested. Legal advice was blunt: pursuing the case would require over $100,000 in fees and more than a year in court, with no certainty of recovery (as the defendant likely lacked sufficient assets to pay a judgment).

In legal disputes, the wealthiest party can act like a chip leader at a poker table: they can threaten endless litigation, forcing smaller players to fold out of fear, even when the law is clearly on their side. Justice becomes less about fairness and more about who can endure the cost.

“It is most admirable if laws properly enacted are as definite as possible…” – Aristotle.

An important principle as it helps build trust in the system, people know what is expected of them and can clearly recognise when they are broken.

Yet… “Extreme law, extreme injustice” (”Summum ius, summa iniuria”) – Cicero.

Reality is too complex for any law to account for all possible mitigating factors. There are countless circumstances that could make a strict application of the law appear unjust.

The intended counterbalance to harsh or inflexible laws in ancient Greece was ‘epieikeia’, discretion allowed within the system to temper strict legal interpretation with wisdom (phronesis) and compassion.

Yet when that discretion is left unchecked or unaccountable it can be abused, applying laws unevenly and unfairly. It could create a system of two-tier justice, varying by wealth, status, connections, identity, or ideology.

The result could be the worst of both worlds; a system that is both harsh and arbitrary. It could have the “gentleness” of Epieikeia for the powerful and the “strict letter of the law” for everyone else. A situation summed up by the Peruvian President General Óscar R. Benavides (1933–1939): “For my friends, everything; for my enemies, the law.”

Just as warfare is politics by other means, ‘lawfare’ is the use (or misuse) of the legal system to affect politics rather than justice. Selective enforcement of the multitude of laws is antithetical to anyone raised with the Common Law principles. If the law is perceived to ever be arbitrary, people can lose faith in the entire system.

Too much discretion is a recipe for corruption
Too little discretion can lead to unjust outcomes.

So while we appreciate the need for judicial discretion, we lack effective, transparent, merit-based accountability for it.

I will cast my vote in consonance with the laws … if there is no law, in consonance with my sense of what is most just, without favour or enmity. I will vote only on the matters raised in the charge, and I will listen impartially to accusers and defenders alike.”
The Heliastic Oath

Even when laws are clear, their enforcement depends on human judgment, and humans are fallible. Modern judges and juries, however well-intentioned, often cannot fully live up to the ideal outlined in the Heliastic oath.

People naturally categorize others into in-groups and out-groups, bringing unconscious biases into deliberation.

In addition they can face explicit or subtle pressures from media, political actors, or their own social circles, creating fear for their reputation and social standing.

John Grisham’s The Runaway Jury offers a clear illustration of how juries can be manipulated. In the novel’s high-stakes civil case, enormous resources are devoted to profiling, influencing, and pressuring jurors to absolve Big Tobacco, while a single charismatic juror demonstrates how the group can be steered from within. Though dramatized, the story captures how verdicts can be shaped by forces other than the evidence or the law.

In extreme cases, the safety of judges, jurors, and their families can be threatened. Historical mafia trials provide sobering real-world parallels to the intimidation depicted in films like The Godfather. John Gotti, the “Teflon Don,” earned multiple acquittals in the 1980s through proven jury tampering and intimidation. In his 1992 trial, an anonymous, fully sequestered jury was used precisely because of credible threats to juror safety from organized crime associates

In such circumstances, putting impartial justice above all else, as the oath demands, becomes exceedingly difficult, if not impossible.

Powerful institutions and vested interests sustain this status quo.

Legislatures face little pressure to prune obsolete or overly complex laws; each regulation often owes its existence to a lobby that still benefits from it.
The wealthy and connected are largely content with a system that grants them disproportionate advantage through costly litigation and selective discretion.
The legal profession itself prospers from complexity: more laws mean more billable hours.

Others have described these issues in far more depth and detail than I can here. As a tech-entrepreneur, I would like to proactively build the solution rather than adding another voice to the commentary.

The Solution – HealthyDebate.org.

Continued in Healthy Law Part 2…