Law is Free Software

-- By MattConroy - 6 April 2018

Larry Lessig says that Code is Law which means that software is regulation in cyberspace. What has become evident to me over the course of my time in law school is that the converse of the statement is also true, in that Law is Code. Learning how to lawyer is very similar to learning how to program. You have magic words and symbols which you can use to change things or express power. But law, at least in a democracy, is not just code, it is free software.

Four Freedoms

The four freedoms are as applicable to law as they are to software. Freedom 0 is the freedom to run the code as you wish for any purpose. In terms of a legal system, this means that a free person is allowed to do anything within the bounds of the law. Freedom 1 is the ability to study how the program works and change it if you wish. This freedom involves open courts administering published laws so that hidden power cannot arbitrarily administer injustice. It is the right to engage in democracy and have each and every citizen have a voice in how they are governed. Government by the People, and for the People. Freedoms 2 and 3 are the right to redistribute copies, help your neighbor, and publish modifications. In a legal and political world these are the rights to speak, to publish and to assemble. To imagine a better society and a better world, and to then tell your neighbor your dream and work together to make that vision a reality.

Free software is at its core the technological embodiment of many of the values that we here in the legal profession hold dear. Rule of law, democracy, freedom etc. These fundamental truths do not change just because a bunch of nerds invented ways to manipulate ones and zeros. If the nerds are allowed to change it using a regulatory scheme that only an elite cadre can understand via proprietary software, then it is the nerds that decide who in society is a one and who is a zero. This is not democracy. This is not even a republic. It is naked extralegal despotism. As lawyers we would not stand for this in law. We should not stand for it in software, and we need to educate the engineers to not stand for it either.

Pro Bono Publico

Now it is true that we live in a specialized society, and not everyone knows or really wants to learn how to program. Why should I care about using free software if I cannot read it? Free people have the right not to learn how to program, just as free people have the right not to become lawyers. In a free society, they do not need to become lawyers. They have a choice. But as legal professionals we have decided that we wield enormous power in society, and that we have built a complicated system that is only understood by us. We recognize that precisely because of this construction we must give back to those outside of our little community who do not have the privilege of understanding. That if the state wants to kill a man because he raped and murdered a woman, one of us is obligated to step up and defend him. That if a New York City slumlord like the President of the United States wants to rend apart the home of a poor family, destroying any possibility of stability and a better future for their children, one of us will stand up against them. It does not have to be this way. The profession has grown into deciding that it has to be this way. That some of us will (at least partially) forgo riches and power in order to ensure that there is justice, freedom and hope.

Engineers do not really have such a norm. One of the reasons why I chose to come to law school and not just work with computers is Gideon v. Wainwright. In fifth grade I wrote a page front and back about Gideon's determination to express his fundamental right to be treated fairly and openly by power. About his handwritten petition for cert on prison stationary. That Abe Fortas, one of the greatest lawyers of his generation, worked on behalf of a man on the margins of society simply because that is what lawyers do. As a kid in love with rockets and dreaming of working at NASA, I had no such role models. Wernher von Braun and Sergei Korolev had the stain of designing and building weapons of war. The other half of this dream was that I thought I would never achieve it, and the destination was in reality Lockheed Martin or Raytheon. But the choice I made was to look up to these men and try to forget the broader social consequences of their actions. What else was there to do? Being interested in aerospace necessitated admiring people intimately involved in the Cold War. It meant that the maximum likelihood outcome for my life was like them building weapons. So I began to tell myself lies like it is just math, or just engineering. Engineers always tell themselves these lies. Build it, and if it is cool or provides a nice salary proceed to bury your head in the sand.

Lawyers do not have to have this problem. We have Thurgood Marshall, Roberta Kaplan and Ralph Nader. We have a successful model where we wield social influence, have a high standard of living, make justice in society, and do it in a way that operates on 100% free software. The very nature of the legal profession's existence proves that free software can work and that free software matters. It is up to us to convince everyone else of that fact. But fortunately we are lawyers, and this is what we are trained to do.

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