Yes, the original article is (yet another) example of this current avant garde trend of characterizing everything as "code," but for once the underlying point has some merit: the entire institution of civil law is a structure, a system, designed to produce a desired result.
Many of my Poli-Sci classes in college were taught by erudite gentlemen who helped us ponder the beautiful and challenging intricacies of political theory. The best professor I ever had was not one of those men. He was a self-described "crazy bearded anarchist" who's class on "government budgeting" focused mainly on pragmatic advice for city managers (how to catch people embezzling, how to navigate city council politics and how to cover your ass from witch-hunts) He understood democracies and the laws that shape them from the bottom-up; the end result. The end result a political system needs are viable candidates - which they must produce from a pool of mere flawed humans, with all their foibles.
People are people - we lie and cheat all the time. The professor illustrated the point by asking us students if we ever lied - say, when we were talking to an attractive member of the opposite sex at the bar. Such things are endemic to human existence, so any system of people-selection hoping to produce a desired result must be made with the expectation that people will lie, cheat and game the system to the best of their ability.
Such a system will ideally make the skills required to game it successfully synonymous with the skills to lead governments in an effective manner.
This pragmatist approach flies in the face of the nigh-holy ethical apparatus people envision when they think of what government should
be; thus our perpetual disgust with politicians that will always fall short of Plato's gilded City On The Hill. The constant and ever-wearisome lamentations about The State Of Politics Today misses that the system works.
To use the United States as an example: Senators and Representatives spend a great deal of their time "pork-barreling," doing their best to get federal spending directed to their state (or passing laws that benefit private industries in their states.) To quote Hall's third law of politics: "Constituency drives out consistency (i.e., liberals defend military spending, and conservatives social spending in their own districts)." Politicians do this because they need votes to win elections, and hauling goodies to their home districts is a surefire way to win loyalty. The bitching about this awful low-minded thieving of Federal tax dollars continues nonstop, but nobody considers that the system is working as intended:
those politicians are indeed representing their constituents interests.
America is a unique example of a democratic republic created by people who had an opportunity to build a proper "system" from the ground-up, without having to accommodate any pre-existing legal structures. It's interesting then to note that Americans are a particularly litigious people; we don't detest a politician who lies so much as we detest one who breaks the rules.
A system where people can flagrantly ignore the rules is as useless as a screen door on a submarine, for the same reasons. People will game and cheat the system as much as possible, sure - but their very existence guarantees that everyone has to cheat equally,
starting from the same baseline. If nobody cared about the laws backlash against those who break them would render the system ineffectual. The strongly litigious nature of American culture is a massive reinforcement against that. The law is
the system, and the system is not designed to enforce morality or ethics, but equality.
The system is effectively synonymous
with equality, and equality is the core concept enshrined by democracy. Americans tend to respect a politicians office
inherently; it's been found many times that "President " consistently polls a few points higher than "" alone. This is also why people reacted so badly when Obama sassed the Supreme Court in a State of the Union address;
it wasn't viewed as a complaint directed at the justices, but as an attack on the institution itself,
(which is precisely why Obama prefaced his complaint with "With all due deference to separation of powers..") Roosevelt's "court packing" plan blew up in his face for precisely the same reason. These are tangible and highly-visible examples of government and politics as a system,
reinforced and defended by a culture that takes a keen interest in maintaining its functionality. Not
its morality or ethics, but its functionality.
Unfortunately, people almost always talk about morality
in the context of laws; trying to ban that which they see as immoral (such as rich people giving campaigns money.) Banning something outright just results in the rich people hiring lots of lawyers to find clever loopholes to continue doing the same thing - its worth great efforts to do so, because by the rules of the system
they need that money to play. Brian Boko is absolutely right to say "what we need are more people willing to look at the laws of this country based on their function." We need to view law as a functional tool
to make the desired behavior the most profitable course of action for someone looking to "win" the system. His point cannot be emphasized enough; public discourse about politics rarely if ever laments a lack of functionality
but rather a lack of morals.
How many times have you heard people lament the "good old days" when politicians were "civil" and cultured people who could sit down and work through their differences all proper-like? These people seem to forget a man was once https://en.wikipedia.org/wiki/Caning_of_Charles_Sumner
viciously caned to within an inch of his life in the middle of Congress. There has never
been an era where people - or politicians - were anywhere near as civil and cultured as we'd like, and presumably there's never been an era without people griping that things used to be so much better back in the day. These perceptions are demonstrably false, and obscure the real issue: by the metric of producing desired behavior,
so very much of our law (and especially campaign finance law) is highly nonfunctional.
If we're truly concerned with results,
then we need to start looking at how to achieve them. As a nation and a culture we must concern ourselves with finding what works
, rather than legal proscriptions of what we wished