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A Theory of Quantification See on esimene, kiiresti kirjutatud visand "kvantifitseerimise teooriast". Tuginedes Lotmani poolt välja pakutud semiootilise süsteemi analüüsimeetoditele, kavandan siin (väga üldistes joontes) skeemi teabe formaliseerimise protsesside uurimiseks õigusalal. Sõna "kvantifitseerimine" tähistab siin protsessi, kus info määratlemisele seatakse täpsemad nõuded. Kohtusüsteemis on paljud (kuid mitte kõik) infotöötlusprotsessid viidud väga täpselt määratletud tasemele. Näiteks on kohtule dokumentide esitamiseks väga täpsed tähtajad, karistused määratakse täpsete summade või ajaperioodidena. Samas on mitmed info liigid jäetud mitmesugustel põhjustel "uduseks", vähe määratletuks. Näiteks menetluse kestusele on tähtajad määratud ainult osaliselt. Kõik see on väga oluline ka IT süsteemide tegemisel õigussüsteemile.
A Theory of Quantification would be much needed, not only for lawyers but for people who envision and implement IT systems for the law. IT systems are usually easier to develop and more effective on processes that have high level of quantification. IT itself drives formalization (and quantification) of all fields that use computers. (This is often a very serious negative side effect of computerization. They promise to make your work more effective, but in effect, your work will not get more effective – it gets more regulated). AN OUTLINE OF A THEORY OF QUANTIFICATION A Theory of Quantification probably should look at the whole system of law, because processes of quantification can be interrelated. Such a theory should help establish and understand the levels of quantification in various parts of the system of law. The theory should also provide guidelines for identification and evaluation of drivers for quantification (and dequantification). It should help understand and influence (if possible) the complex processes of quantification and dequantification. Some branches of semiotics have been developing theories of this kind. (Unfortunately I do not know the semiotics of law, there is certainly such field). One school of semiotics (Yu.Lotman) would state that: a) Any semiotic system is heterogenous with respect to degree of its organization. Highy organized (formalized) layers co-exist with fluid, nebulous layers (in the system of law too, areas differ in their degree of elaboration). b) Semiotic systems also differ by their level of formalization (cultures differ in level of codification and formalization of their systems of law). c) Semiotic systems are dynamic. The system is in continuous development. (The changes can be quite slow, though). Some elements move toward higher formalization. Others 'losen' their degree of organization. Changes from one form of high organization to another are possible. [Introduction of visual material into trial process can be viewed as dequantification (discrete, textual information is partly converted to analogue, iconic visual information. But dequantification in this use should not suggest that visual information has lower level of organization than textual information.] SOME SPECIFICS OF QUANTIFICATION PROCESSES IN LAW Quantification processes in law seem to have certain specifics: a) Strong striving to quantification yet this is eventually countered with equally strong counterforces or constraints. Obviously, quantification is generally useful and even essential for justice. Therefore, systematic effort toward quantification is characteristic of systems of law. But there seem to be (hidden) forces that counteract quantification. b) Quantification with safequard mechanisms. Also, it is very interesting that system of law while striving high formalization and quantification, often have 'back doors' built into the system – that allow the operator of the system to stop the blind mechanism of formal reasoning. Usually, these 'back doors' are in form of general (and rather vague) rules that can be used to overrule more specific rules (in practice this can happen even in contrary to the meta-rule that states the priority of the more specific rule). DRIVERS FOR QUANTIFICATION (DEQUANTIFICATION) – Driver of technical rationality (T) – quantification can simplify administering of the law. This includes considerations for internal consistency of the whole system of law. For example, EU requires its member states to vastly expand their national laws, with the justification of 'harmonization' law in the EU (that allows greater efficiency in administration of law on super-national level). – Driver of economic utility (E) – quantification can change the balance of power between the participants and produce different economic outcomes for them. – Psychological (cognitive) driver (P) – this rationale is used when one claims that humans, by the inherent limitation of their psyche, cannot correctly articulate the matter in numbers, or cannot comprehend the numbers properly. Psychological justification can be used to support quantification as well. One can well argue that in many situations numbers are cognitively processed more efficiently than words. – Cultural drivers (C) – level of quantification can be substantially affected by the internal dynamics of the whole cultural system. Mechanism of any large scale cultural system can be only partly understood and can be only partly designed. (The system develops by its internal logic in part.) Accordingly, a culture may put high symbolic value into numbers; or a culture may regard words as a symbol of competence. These attitudes also differ for different areas of practice. – Rationale of justice (J) – Claim that quantification (or dequantification) is instrumental or even essential for achieving justice (equity). For example, we may imagine a legal system where the measure of punishment is left at the discretion of the judge - with a justification that only a human is able to weigh and fuse the unique circumstances of the case. Of course, the same rationale can be used to justifiy a highly standardized system where the judge has little freedom of choice. – Irrational reasons, or unknown reasons (I) – For example, in Middle Age, a peasant who fled to free town and lived there for one year and one day, became a free man. The term of one year and one day seems to have no other motivation than some poetic or mystic impulse (one year, a round number would have been technically easier to handle). SYSTEMATIC ANALYSIS OF QUANTIFICATION LEVELS AND QUANTIFICATION PROCESSES IN THE SYSTEM OF LAW With these preparations, a scheme can be sketched for a study of actual level of quantification in the system of law: element of the legal system – level of quantification (or direction of the (de-)quantification process – Rationale (justification) for the chosen level of quantification. I think that such an analysis would be quite interesting (but probably too academic for a practitioner). Being no professional in law, I can just touch a couple of elements: Legal age – It appears highly unjust that two persons with difference in age of only one day can fall into two different categories (minor or not minor) that handle their very similar violations very differently. Quantification: high. Rationale: technical rationality (T)? Terms of imprisonment – In some countries prison terms are given in full years or half-years. Other countries may have higher granularity (months, days). Some countries seem to have a 'fake' quantification here – the term announced with verdict and the actual term can differ significantly, because of relatively little quantified systems of pardon. I would say, that we can see a trend towards dequantification with respect to this element. I think that in practice, prison management not court can determine the final length of the term. Form of presentation – In some systems, Supreme Court does not hear parties in person but only studies submitted documents. Quantification: medium to high. Rationale: technical rationality (T)? Due dates (for submission of documents to court) – Most countries have strict rules that are followed, I suppose. Quantification: high; Rationale: technical rationality (T)? Verdict – From process-temporal point of view (the case as it proceeds from beginning to the end), quantification probably reaches the highest point in verdict. Probably all countries use the binary system (guilty/not quilty). But theoretically, 'partially quilty' is well possible. A formula '50% quilty x $100 penalty' is equivalent with 'quilty x $50 penalty'. Quantification - high. Rationale: justice (J)?
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