As Robert Cover said in his famous article "Nomos and Narrative," law is a world of definitions, which give everything and anything a meaning. The more you look at the law, the more you realize that Cover is right. A legal system is a collection of definitions - what is property, what is a binding contract, what is a citizen, what is illegal possession and so on. The law works through classifications - it creates terms and define them, then it collects together all the acts, things, and people that fall under these classifications. For example, in order to enforce a sign that prohibits the use of vehicles in the park, the law must define what is and what isn't a vehicle. Such a law would usually look like this:
"Sec 1: All vehicles are prohibited from entering the park.
Sec 2: A vehicle is a means of carrying or transporting something."
This law creates the classification 'vehicle', defines it, and then the system (usually the court which enforces the law) would apply that classification to specific objects that are involved in cases brought before it.
In certain cases and in certain legal systems, the statute might avoid a generally applicable definition of what a vehicle is, and in stead would give some examples for what it means. It could look like this:
"Sec 2: A vehicle - including cars, trucks, and motorcycles."
This is, of course, a different kind of definition. Rather than defining the term, the statute starts the process of classifying, with the intention that those who use the law (such as citizens, police officers, and courts) would inductively understand what other things can be defined as vehicles and continue the process of classification.
It's true that, even after reading the sign and the law that backs it, we might still find ourselves standing in the park, not knowing if what we are about to take onto its grounds is allowed or not. Does the sign prohibit riding bicycles in the park? And what about a monument for car accident victims, in the form of a wrecked car? Are those things vehicles? We might not know the answer to these questions, yet we know how to answer them: we must look at the thing at hand, determine whether it is part of the group of things the law is referring to, and classify it accordingly. (Now, there might be disagreement as to how to make that classification, and when such deliberation is even required. The sign in the park example was first used by H.L.A Hart and Lon Fuller in their famous debate in the 1958 Harvard Law Review, regarding the morality of law, and the way to understand it. Hart claimed that while we might not know if some things are vehicles or not, it is mostly clear to us what the law talks about when it refers to a vehicle. Fuller, on the other hand, claimed that any kind of classification requires interpretation, and that the term 'vehicle' means nothing until we look into the particular law's purpose in order to learn what it meant to say. Either way, though, we will end up with one group of things that are 'vehicles' and one group of things that are not.)
So, to sum it up, this is how the law works. It creates a classification (vehicles), and then tells us what to do or not to do with it (not let it in the park). Then anyone who uses the law (citizens, police officers, and courts) looks at the specific case that requires the application of the law and apply that classification to it (a car is a vehicle, therefore it is not allowed in the park. A bag isn't a vehicle, therefore it is allowed). This, of course, doesn't apply only to vehicles and parks. The law defines what is a 'narcotic drug' and by that divides all substances to things that are narcotic drugs and things that are not. It defines what 'rape' is, and by that divides all sexual acts to rape cases and consensual sex. The law defines rights in real property and by that classifies who is and who isn't a 'tresspassor'.
But should every human interaction be defined and classified in such a way? Should every thing in life be described as a part of a group of similar things? Could it be done at all? Think about it for a moment. Defining something by a specific term strips it - even if only for the purposes of that sentence - of everything else that thing is. It also strips us of any other classification that could be used to describe the range of things we are trying to classify. For example, saying that 'Ron is a male' strips Ron of everything else that he is: kind, student, short, brown-eyed, Dutch, vegetarian, etc. It also steals from us the distinction between different kinds of things that are all 'male' but are in reality very different from each other. If Ron is 25 years old, his male-ness is quite different from that of a year old infant who is also a male. If Ron is a homosexual it could be argued (as some do) that his male-ness is also different from that of a straight person who is also a male. But in the range of classifications that the classification 'male' is part of, these kinds of differences disappear, eventhough they are of the same metter. On this scale, one is either a 'male', 'female', or 'intersexual'. We simply do not offer any other classification, and those we offer are not enough.
There are ranges in which language has adopted a much more reasonable approach. When speaking of religions, for instance, people usually refer to themselves or others as 'Christian' (rather than 'a Christian') or 'Jewish' (rather than 'a Jew') . In the sentence 'Ron is Christian', the word 'Christian' serves as an adjective (yea yea, it might not be an adjective grammatically, but you get what I mean). It describes Ron rather than defines him. 'Ron is a Jew' sounds much more blunt that 'Ron is Jewish', that in turn leaves Ron room to be a lot of other things as well.
My point is that maybe it's time for the law to adopt a similar approach. Instead of categorizing things by defining them, perhaps the law should create a plain of categories, and then a plain of things - acts, objects, people. These plains would not mix - things won't be classified as part of categories. Rather, law would stretch a link between the thing and the category, and by that describe one attribute of that thing, leaving the thing itself undefined. Defining and classifying are attached to the object and might follow it to other contexts. So if we classify bikes as vehicles, we will have to deal with the question if they should be allowed on sidewalks (after all, other vehicles aren't) and if they should require a permit and age limit (after all, other vehicles do). And if bikes shouldn't be allowed on the side walk but shouldn't require a permit, what kind of a vehicle are they?! On the other hand, leaving aside definitions and asking just what things should be treated like when we stand at a park's gate seems a lot easier. Bikes are like vehicles in that they disturb people lying on the grass or striding in the paths. Therefore their use should be prohibited in the park. We don't know if bikes are vehicles, and we don't care. What we do know is that bikes have one vehicle-ish attribute to them, and that leaves them outside the park's premises.
This all becomes much more acute when we start talking about gender (cause really, bikes were only the introduction). If Ron was born in a man's body but identifies as a woman, is Ron a man or a woman? The law answers that with a clean cut - you are what your body is. The even less liberal answer is, of course, you are what you were born as. And that could lead to cruel and unusual results. Nonetheless, in certain instances gender cannot be disregarded altogether. By classifying Ron as either a man or a woman the law is unable to answer the complexity of the situation. However, by not asking that question, and asking instead 'how a person should be treated in a certain case', we can avoid the useless definition of what Ron is. For example, in legal issues related to sexual conducts a person should be treated according to the way he or she defines her or himself. That is, if one sees oneself as a male regardless of female genitalia, than one is not impersonating another when introducing himself as a male to potential sexual partners. (Unfortunately, courts tend to rule otherwise. See here in two pages and here in much more.) At the same time, when sentencing one to prison, it might be best to incarcerate all those who show a complex gender-identity with other women, rather than with other men, regardless of self-definition, in order to protect their safety. That doesn't mean they are women, it only means that in this case they should be treated the same way women do. On medical records, however, people should be registered according to their physical gender, in order to receive the appropriate treatment in case of emergency. This too doesn't mean they are what they are registered as in those records. Only that they would be treated as such if and when the need arises.
The world is too complex to be seen only through traditional legal eyes. Definitions and classifications change according to circumstances and in time, and the law must be responsive to these changes. If human existence is complex and diverse, the law should accommodate this diversity in order to reflect real life, rather than limit it into its self-created boxes.
And this is really interesting too.
"Sec 1: All vehicles are prohibited from entering the park.
Sec 2: A vehicle is a means of carrying or transporting something."
This law creates the classification 'vehicle', defines it, and then the system (usually the court which enforces the law) would apply that classification to specific objects that are involved in cases brought before it.
In certain cases and in certain legal systems, the statute might avoid a generally applicable definition of what a vehicle is, and in stead would give some examples for what it means. It could look like this:
"Sec 2: A vehicle - including cars, trucks, and motorcycles."
This is, of course, a different kind of definition. Rather than defining the term, the statute starts the process of classifying, with the intention that those who use the law (such as citizens, police officers, and courts) would inductively understand what other things can be defined as vehicles and continue the process of classification.
It's true that, even after reading the sign and the law that backs it, we might still find ourselves standing in the park, not knowing if what we are about to take onto its grounds is allowed or not. Does the sign prohibit riding bicycles in the park? And what about a monument for car accident victims, in the form of a wrecked car? Are those things vehicles? We might not know the answer to these questions, yet we know how to answer them: we must look at the thing at hand, determine whether it is part of the group of things the law is referring to, and classify it accordingly. (Now, there might be disagreement as to how to make that classification, and when such deliberation is even required. The sign in the park example was first used by H.L.A Hart and Lon Fuller in their famous debate in the 1958 Harvard Law Review, regarding the morality of law, and the way to understand it. Hart claimed that while we might not know if some things are vehicles or not, it is mostly clear to us what the law talks about when it refers to a vehicle. Fuller, on the other hand, claimed that any kind of classification requires interpretation, and that the term 'vehicle' means nothing until we look into the particular law's purpose in order to learn what it meant to say. Either way, though, we will end up with one group of things that are 'vehicles' and one group of things that are not.)
So, to sum it up, this is how the law works. It creates a classification (vehicles), and then tells us what to do or not to do with it (not let it in the park). Then anyone who uses the law (citizens, police officers, and courts) looks at the specific case that requires the application of the law and apply that classification to it (a car is a vehicle, therefore it is not allowed in the park. A bag isn't a vehicle, therefore it is allowed). This, of course, doesn't apply only to vehicles and parks. The law defines what is a 'narcotic drug' and by that divides all substances to things that are narcotic drugs and things that are not. It defines what 'rape' is, and by that divides all sexual acts to rape cases and consensual sex. The law defines rights in real property and by that classifies who is and who isn't a 'tresspassor'.
But should every human interaction be defined and classified in such a way? Should every thing in life be described as a part of a group of similar things? Could it be done at all? Think about it for a moment. Defining something by a specific term strips it - even if only for the purposes of that sentence - of everything else that thing is. It also strips us of any other classification that could be used to describe the range of things we are trying to classify. For example, saying that 'Ron is a male' strips Ron of everything else that he is: kind, student, short, brown-eyed, Dutch, vegetarian, etc. It also steals from us the distinction between different kinds of things that are all 'male' but are in reality very different from each other. If Ron is 25 years old, his male-ness is quite different from that of a year old infant who is also a male. If Ron is a homosexual it could be argued (as some do) that his male-ness is also different from that of a straight person who is also a male. But in the range of classifications that the classification 'male' is part of, these kinds of differences disappear, eventhough they are of the same metter. On this scale, one is either a 'male', 'female', or 'intersexual'. We simply do not offer any other classification, and those we offer are not enough.
There are ranges in which language has adopted a much more reasonable approach. When speaking of religions, for instance, people usually refer to themselves or others as 'Christian' (rather than 'a Christian') or 'Jewish' (rather than 'a Jew') . In the sentence 'Ron is Christian', the word 'Christian' serves as an adjective (yea yea, it might not be an adjective grammatically, but you get what I mean). It describes Ron rather than defines him. 'Ron is a Jew' sounds much more blunt that 'Ron is Jewish', that in turn leaves Ron room to be a lot of other things as well.
My point is that maybe it's time for the law to adopt a similar approach. Instead of categorizing things by defining them, perhaps the law should create a plain of categories, and then a plain of things - acts, objects, people. These plains would not mix - things won't be classified as part of categories. Rather, law would stretch a link between the thing and the category, and by that describe one attribute of that thing, leaving the thing itself undefined. Defining and classifying are attached to the object and might follow it to other contexts. So if we classify bikes as vehicles, we will have to deal with the question if they should be allowed on sidewalks (after all, other vehicles aren't) and if they should require a permit and age limit (after all, other vehicles do). And if bikes shouldn't be allowed on the side walk but shouldn't require a permit, what kind of a vehicle are they?! On the other hand, leaving aside definitions and asking just what things should be treated like when we stand at a park's gate seems a lot easier. Bikes are like vehicles in that they disturb people lying on the grass or striding in the paths. Therefore their use should be prohibited in the park. We don't know if bikes are vehicles, and we don't care. What we do know is that bikes have one vehicle-ish attribute to them, and that leaves them outside the park's premises.
This all becomes much more acute when we start talking about gender (cause really, bikes were only the introduction). If Ron was born in a man's body but identifies as a woman, is Ron a man or a woman? The law answers that with a clean cut - you are what your body is. The even less liberal answer is, of course, you are what you were born as. And that could lead to cruel and unusual results. Nonetheless, in certain instances gender cannot be disregarded altogether. By classifying Ron as either a man or a woman the law is unable to answer the complexity of the situation. However, by not asking that question, and asking instead 'how a person should be treated in a certain case', we can avoid the useless definition of what Ron is. For example, in legal issues related to sexual conducts a person should be treated according to the way he or she defines her or himself. That is, if one sees oneself as a male regardless of female genitalia, than one is not impersonating another when introducing himself as a male to potential sexual partners. (Unfortunately, courts tend to rule otherwise. See here in two pages and here in much more.) At the same time, when sentencing one to prison, it might be best to incarcerate all those who show a complex gender-identity with other women, rather than with other men, regardless of self-definition, in order to protect their safety. That doesn't mean they are women, it only means that in this case they should be treated the same way women do. On medical records, however, people should be registered according to their physical gender, in order to receive the appropriate treatment in case of emergency. This too doesn't mean they are what they are registered as in those records. Only that they would be treated as such if and when the need arises.
The world is too complex to be seen only through traditional legal eyes. Definitions and classifications change according to circumstances and in time, and the law must be responsive to these changes. If human existence is complex and diverse, the law should accommodate this diversity in order to reflect real life, rather than limit it into its self-created boxes.
And this is really interesting too.
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