Mladen Vukmir

Founder and Principal, VUKMIR & ASSOCIATES

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Will we come to think that the societies ruled by law have failed their capabilities by underachieving? Is law likely to become marginal?

As in the evolution theory for many organisms complexity has not always been a comparative advantage in the fight for survival, analogously, in the context of accelerated, networked and digitized social transactions the legal system can hardly survive in its complexity deriving from thousands of years of development and growth. The fact that today we see these complexities as fundamental elements of the legal system does not change the fact that law is just an attempt to regulate ethicality in the context of social relations.

See pp. 71-152

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    Sep 24 2012: Complexity is necessary in this context. A complex society calls for complex law. This is not to change the goal but to ensure the goal is reached or still considered.

    Take medicine for example. I am sure we can say that long life is preferred. Modern medicine would have never been created without complex rules to channel our energy.

    Without regulation energy is bleeding from humans in random directions.

    We can think of this like a plant with millions of branches.

    All branches may grow at the same time. However, when we focus on a branch (idea) that branch seems to grow at a rapid pace. A good example is technology.

    With the onset of war humans began creating weapons. Some of the most complex concepts related to weaponry were created thousands of years before an actual prototype was created.

    Humans are capable of doing many things. However, we do seem to be strictly limited by our ability to cooperate with other organisms; including other species.

    Even if law were to become less complex it would still be absolute. Therefore, it is not the complexity of law that defines the state of society....but the quality of law.
  • Sep 20 2012: See, in the US, we have these states that all have their own laws. The Constitution, in 1789, stated in the 9th and 10th Amendments, that the states can have their own laws, and that if laws aren't listed, it doesn't mean we can't make them. Well that just about covers everything. You can't use a spoon, you have to use a fork. In the state of Florida, there are these drug shacks, I call them. These roadside "clinics" where you can get prescribed pain killers simply by waiting on line and saying you have an injury and back pain. People drive from states a thousand miles away just to get them, and it's a huge addiction and illicit sales problem. Oxys, or whatever, can sell on the streets for ten dollar a pill, or more. It's terrible. Why doesn't the federal government simply stop it? The country is so vast, the federal government is so vast, it's just unmanageable. The pharmaceutical companies are unconscionable. Things like that make me think, well yes, law is already marginal. But it shouldn't be. Law is essential. It shouldn't be "an attempt to regulate ethicality in the context of social relations", it should be for every persons safety and well being.
  • Sep 6 2012: You cannot legislate morality.
    Laws don't solve problems.
    Solving the problem does.
    And it eliminates the reasons for making laws, that don't work.
  • Sep 4 2012: Two very good questions. These are my thoughts:

    It will take decades, possibly centuries for law to become marginal, but I think I understand the trend you are imagining.

    In the USA today consumer law is becoming moot because every transaction is governed by a contract that gives the corporation all rights and leaves the consumer defenseless. This makes sense in a fast paced world of global corporations. Courts are expensive, time consuming and inconsistent; standard contracts are more easily managed than 190 different versions of consumer law. The terms of these contracts are already becoming competitive.

    Much of the complexity in our current body of law is based on paradigms that are becoming obsolete. So there is much in the law that is hampering progress (underachievement).

    Another factor is the slow pace of legal change. The cultural pace of change is accelerating exponentially, and it is difficult to imagine our legislative processes keeping up. In Washington D.C. it is becoming impossible to get anything done.

    In my experience, people are very good at inventing work-arounds. When the law becomes an obstacle, people will find a way to deal with the situation without breaking the law, but without using the law either; making the law marginal. Even in the area of security and police powers, private security is already becoming more popular.

    I think we will always have criminal laws, and the basics of business law will stick around in the background. But much of the complexities of the law will eventually be repealed and will not be replaced. It is becoming increasingly obvious that our tax code, with its many subsidies, tax credits and loop holes, hurts business more than it helps. Even the companies that benefit from special treatment must understand that simplification and consistency over time would allow them to plan better and would have long term benefits.

    Conclusion: Yes and Yes; but it will take time and it will not be simple.
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      Sep 4 2012: Thanks Barry, I share so much with your views. Are you a lawyer by the way? There is so much insight in your post on how the lelgal systems became creaky today. I devote quite some space to discussing this in my artilcle, the first twenty pages. I especially like your summary of how law will get marginal. That is exactly what I've meant.
      I don't think law will ever go away and discuss the concepts of overlaying human creations in the article too, by the end of the text. TV did not kill the radio, and radio did not killl print and so is with the human social institutions we keep inventing. Especially criminal law, which is kind of eternal having in mind the human propensity to cheat and do other nasty things is here to stay, but its role in the societies will be redifined and the societies will not be "ruled by law" to the degree they are today. I mean, we should start thinking along the lines of what kind of a society is it if it cannot be ruled but anything more worthy then law? By saying that I mean that the positional kind of thinking especially sucks in the modern, fast and hot societies. Interest based thinking is much more isuited for that.
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    Sep 2 2012: Someone said, "If you think that education is expensive, then try ignorance".
    I say, "If you think laws are cumbersome; visit a lawless society."
  • Sep 2 2012: Law does presently serve to mitigate behavior; it always has. Law as applied by ruthless dictators is still law and such persons can achieve as long as people are willing to obey.

    Law serves as a deterrent for some; it's inconvenient for others. How many of us behave when we see a police car in our rear view mirror as we drive a vehicle?

    Law could become obsolete for persons who choose always to live right, to love his fellow man, and to serve without selfishness. Who needs law to tell us not to steal when one has no desire to steal? Law will be obsolete, as we know it's mitigating effects, but it will not be obsolete for the cosmos as applied to physics, motion, gravity, et al. Our behavior will not effect such powers beyond our control.

    Law for behavior, achievements, equality, unity etc will disappear when the higher reaches of man's desires achieve fairness, based upon the laws of love. Such laws we will discover; we create situations where law is not needed by choosing the better ways of life.

    Small communities in America can still be found in which people have no need to lock houses and cars. Bad behavior is not dominate in such places and therefore law is little needed.

    Conclusion: law has been needed, is now needed, but will slowly become less needed, that is if you believe promoting good behavior is desirable.

    Given the above, what have we underachieved?
  • Sep 23 2012: Law has an intent. Protect normal society in all it's variations.
    Law today is enforced as letter of law.
    As I see it,letter of law is what enables guilty people to succeed.
    The cry of circumstantial evidence is heard every time we get one of the thieves.Due to complexities in the law-put their by thieves-a conviction is unlikely.A recovery of peoples money would seem to be a good idea for law to follow,but it does not seem to.
    Class action suits are a lawyers best friend.A payout of 100 million is after legal fees 25 million.
    Laws only work when the governed demand equal treatment of all.
    • Oct 1 2012: While I agree that current laws offer too many loopholes for those that need them least, but I don't think there is any reasonable alternative to enofrcing law by the letter. While of course each law, and law in general, has an intent, trying to follow it by intent is a dangerous path. If laws were to be enforced by intent, then it must come down to an individual's judgement over what that exact intent is. Putting the power of the law up top interpretation of intent on a case by case basis would offer even more avenues for corruption than currently exists.
      Another important point is that all that stays constant is the letter of the law. What the intent is at the creation of the law can only be recorded by the wording of the law itself. As time passes, if intent was still given priority over the letter, then it could theoretically be twisted to fit the agenda of whoever was in charge of discerning intent. A great current example is the Constitution of the US, which sparks numerous debates over intent and meaning, and has been used to enforce or block movements that certainly had no relation to the original intent of the Framers. While I personally think this is important in a broad degree of intent like the Constitution, can one imagine what it would be like if all law was open to such debate and manipulation?

      While indeed the current law system is complicated and corrupt, I think the safest solution is fixing and adjusting the letter of the law to most closely acheive the intent, that the only way to acheive "equal treatment of all" is by holding people responsible to a just, unbiased code, and not to the perceived intents of whoever created the law, as judged by another person or people.
      • Oct 1 2012: So corruption is the problem.
        What to do when the corrupt make the laws..Ballots are now easily compromised.
        Try and,as a citizen & taxpayer,get a breakdown of expenses in a government contract.
        Try & protest where you can be seen and do not step out of the "Free Speech Area" or you will be arrested.
        Did you get a bailout.Lousy management allows failure to run the markets.Now that is gone except for a select few...
        Clean Air & Clean Water Acts have been gutted.
        Water is now a 'commodity be bought,sold & owned..
        The list is endless of those making laws"taking care"of us,the taxpayers.
        I see hope all over the world demanding freedom yet I see no real progress,just regress..
        I usually am more upbeat but as of late & the carnival of clowns worldwide now,I just sigh & hang my head.
        What about my great grandchildren..That thought pops up often.
        What about yours ?
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    Sep 20 2012: Harmonising with the EU acquis communautaira (meaning the body of law of the European Union) is a tall order and a big effort for a small country. However, my questions are more general then local and would probably be more pretinent to even more developed countries with a stronger rule of law than Croatia.
  • Sep 20 2012: Just thought I'd add:
    Modern civilization is not civilized, so the rule of law hasn't been an integral part of helping create modern civilization because we aren't civilized. Period

    To say it has, is to say, "let's keep all the reasons to force people into uncivilized, criminal behavior for mere survival, around a while longer.

    There is virtually no such thing as a criminal mind unless it exists in a society in which there are no reasons to be criminal. Then, you may find one or two.
  • Sep 20 2012: the problem starts wen i cant grow my own foods because a lobbyist for a GM foods company made up a law so now we can only buy there seeds.
    • Sep 20 2012: Oh yeah, and Monsanto goes to India, where there are three hundred million vegetarians, an ancient culture that knew about vegetables way before the US even came into being, and tells them they can't use their seeds. And the Indian government allowed it. No shortage of stupid laws.
  • Sep 20 2012: laws start because of something. Bob was walking his cow down old mill rd. and Joe on his horse come running up and startled Betsey. so now there is a law you cant go around dead mans hill wide open on your horse any more.
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    Sep 19 2012: Wow, Folks, I am impressed and grateful for your postings, so many smart observations. I will revert to some particular comments over the next days, but wish to note here one thing. It is great that so many of you wanted to voice your opinion on a relatively intricate topic that is not part of everyday public discourse. I find this absolutely encouraging. The lawyers, who one would imagine, would have this ropic closer to their hearts and minds actually do not show much interest in discussing it. It is therefore great to see you all pronouncing your views. Thanks.
  • Sep 19 2012: As a US citizen, I live in a land with so many complex laws that the books they're written in fill warehouses. Which laws do I think are important, which do I think superfluous? Texting or talking on cell phones while driving is dangerous and illegal. Handguns often aren't illegal. Marijuana laws are often ignored by police because so many people are involved with sale and consumption that there just isn't enough jail space, and police, rightfully so I believe, concentrate more on cocaine and heroine, which are more harmful. Certainly there has to be law. It being "marginal" equates anarchy, which is romantic sounding but not desirable to me. Certainly the poor, who often can't afford LAWyers, are more at the mercy of most laws. Safety is essential, as in say driving on the right side of the road and stopping at red lights and not starting bonfires in your yard. Environmental laws, of course. Dumping sewage into streams. But industrial farming has polluted more water than individuals have, and that's perfectly legal. For an American, I tend to be more socialist thinking than most, as in for instance required military service for all at a certain age. I think there's way too much garbage on television. In Australia, for instance, that's regulated. Law is a massive beast, there are more contexts of it than we could count. I don't see how it can ever become marginal. Law needs to be more sensible, and conducive to mass safety and contentment. I'm against the death penalty, and for abortion. That's a bit of a paradox. The free speech write Nat Hentoff is a rare individual who is pro life and anti death penalty. That's more consistent. Then you have places like Singapore, where there are harsh penalties for littering. There are places in this world where you can leave your wallet on the seat of your open car because the penalties for stealing are so harsh it's not likely anyone will do it.
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    Sep 19 2012: Law is increasingly favoring the non human giants (military-industrial complexes, corporations, etc) who will more and more work against our collective human good.

    Parallel resilient world currencies might help. Open and growing access to free speech may help. Alternate economies and lifestyles might help: gifting economy, social equity, global perspective, Permaculture, global grid, Cradle 2 Cradle, etc.

  • Sep 19 2012: Not quite sure what you mean by "underachieving". The Rule of Law is what makes modern civilisation possible; without it we would have to spend all our time in coping with "enemies", real or imagined. Historically, the main achievements of societies which did not have a rule of law have been enormous conquests, like the Mongol
    Empire . What can they do that's constructive?.. That being said, the formation of the Chinese Empire 2 thousand years ago was overall, a big help to the world. It shows the benefits that can come even from a violent conquest, once the wars are over. It sheds some light on our present situation , since the setup then was quite analogous to the modern world. The Chinese call it the "Warring States Period", of some hundreds of years of warfare, "Balances of Power", Alliances, etc, all the humbuggery of modern international affairs.Finally put to rest by the conquest of all the States by one. After some internal upheavels, Normalcy was considered to be a unified empire. It had unforeseen benefits. So our choice now is: continue to drift into a final war, or form some world government by choice, as the US was formed. Dangerous to be sure, but the alternatives are worse.
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    Sep 17 2012: so maybe too much isn't all right,but nither is none .we should have some .and also wemust control the know everything has its two sides.what we should do is to get it better!
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    Sep 16 2012: It could be that the acceleration and convergence of things will make law seemingly implicit. Removing criminal behavior from our psychology may become easier once we are able to create a truly global infrastructure capable sustaining the fundamental needs of humanity.

    Once we can feed, house and sustain our entire population, we may again become uninhibited enough and advanced enough to spend our time thinking, playing and laughing, while software writes itself to create robots that do the heavy lifting.

    If we are all enabled with the access to the sum of our global knowledge human intellect will surpass any one man. If a man should kill, the entire planet shall know it. And the entire planet will smite thee in righteous anger (with its giant "Do Not Like" button). Or perhaps, he may fester a bit, as it has been said that what doesn't kill you makes you stronger.
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    Sep 16 2012: there is a old saying in china .Nothing can be accomplished without norms or standards yes is very important in our life and work!suppose if we each do what we like it will be a mess!so we need laws,if we do business we should obey business rules.if we go to school we should obey the school rules .only by this can we create a better world.
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      Sep 16 2012: That's all fine, but what if the rules and the system of their administration and enforcement become so cumbersome and inconsistent that a society starts to feel it more of a burden than an advantege and only a small segment of society can actually participate and operate it?
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        Sep 20 2012: i don't learn about Croatia so much .are there so many rules that borther you a lot?
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    Sep 15 2012: People who think idealistically rather than realistically may believe the mythology that law is an attempt to regulate ethics but this is hardly a universal. It may come close in some European or Scandinavian countries but in most countries, law is a way to hijack the power of the state for an elite group with power over the government. The US is certainly not a country of law. Government is for sale to the highest bidder throughout the federal system and most state systems. Politicians and wealthy people never pay for their crimes. Corporate officials never pay. Ordinary people are the only ones impacted by law. Politicians invariably protect other politicians. The public accepts the lame excuses put forward by politicians about looking forward, not backward. Every bank robber and gangster would love to make the same argument and it would be just as logical. The horrible vicious criminals in the American financial system who have caused suffering beyond measure, will continue to be lauded as respectable citizens by politicians.

    I wonder what role law plays in today's Croatia, the country of the person who posed this question.
    • Sep 16 2012: "Politicians and wealthy people never pay for their crimes. Corporate officials never pay. Ordinary people are the only ones impacted by law. "
      Precisely. I think sometimes laws are meant for nothing. And in many countries it seems pretty obvious that laws are quite segregated from morality.

      Nonethelss, a law should exist. Its threatening impact is quite effective in a way that it at least plays a role in preventing crimes--doesn't work all the time, though. Even for politicians, they don't want to be regared as law breakers. Because the fact that a person broke the law surely has negative effects on his life. Maybe that's why people're afraid of being convicts or seeing them.

      Still it seems so unfair to ordinary people that wealthy people and politicians can easily deal with their crimes. And I guess that's where equality issues are raised. Without exception, every person should get the same penalty.

      Even for a country where there's a death penalty, laws seem to be ineffective when it comes to decreasing crime rate. Since legal actions aren't enough to keep the nation safe, people's awareness of morality and respecting humans' rights have to be followed.
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      Sep 16 2012: Thanks for mentionig it. In Croatia we have a series of trials for corruption and graft that would make me envy other countries should they have started similar legal actions. I personally strongly dislike corruption and am happy to see those who might have indulged in it being investigated and tried for it, such as our former prime minister and many of his cronies: and Also, if you ask me after the law is relegated to the secondary role in modern societies, criminal law will stay its most important segment.
  • Sep 15 2012: You just can't have large groups of people living, much less working, together without rules, so they're necessary to densily populated, technologically advanced societies, it's just that simple.
  • Sep 11 2012: You won't ever reach that point in evolution where everyone plays nice, until you get rid of the reasons for not playing nice.
    People don't play 'not nice' because of human nature. They play 'not nice' because they are trying to survive.

    Laws don't solve our human problems. They never have. They are irrelevant to our species.

    We cannot legislate morality and we never could. Threats prevent chaos, not laws. Threats of brute force prevents chaos. And brute force prevents chaos. Those who are going to break the laws, will do so. They will risk it and as we have seen, they risk both large and small, serious and trivial, sad and evil.

    They will lie about WMD's so that they can invade other countries and their network of associates can make billions on cleaning up the mess they create. They will steal trillions from the coffers of the citizens, and right out in the open.

    They will create their own form of chaos because that is the only way to control it and, to then control the masses.

    Laws, like prisons, failed with the first one created. They continue to do so and they are continually passed, sometimes without the knowledge and input of the masses and thus create more criminals, who previously, were not.

    Those who create and enforce them, are the ones who break them. To stop this cycle, we not only need to get rid of those who do this, we need to get rid of the reasons for breaking any kind of law. People then act and behave much differently, usually peacefully, when there are no reasons to commit what we call, a criminal act. It isn't in most cases.
    It is simply an act of survival.

    Yes, the rule of law failed and the sooner we recognize what has failed, is failing and will fail, and get rid of them, the sooner the world can truly find peace amongst all.
    Laws may regulate to some degree, ethicality in the context of social relations, but not for those who control them, enforce them and punish those who "break them".
  • Sep 11 2012: Easy question. Here is my answer. Law and order prevents chaos. Chaos is counter productive to any society. Not everyone plays nice. We haven't reached that point in the evolution of our species. That's why we need law and order.
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      Sep 11 2012: But what if technology steps in instead of law. ATMs (cash distribution machines) do not allow for much chaos, and as we migrate to the web ever more code, software that is, not legal codes, are regulating individual and social behavior. Larry Lessig wrote a lot about that. There is not much room to negotiate with a computer program and this seems to be becoming much stronger regulatory influence than legal system.
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    Sep 6 2012: Man created Law to justify his actions.Law justifys the action involved to hold someone or something accountable it should be the action according to law that should be in question no matter what country no matter what subject you are accountable in the law of your country and if not there is such thing as universal law. Is the Law god created marginal? How are we regulating that in the context of social relations?
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    Sep 6 2012: Probably I should have asked whether postion-based-thinking will become marginal.
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    Sep 4 2012: Thanks to all for your thoughts. Your remarks, both individually and as a group are really thoughtful and resourceful. Also, they are really helpfull to me in refining my thinking (See pp. 71-152 ). I will revert to many of your comments individually as I will catch some time.
  • Sep 4 2012: Question one rewritten:
    Will we come to think that ...

    societies ___ failed ____ by ...
    ruled by law
    their capabilities

    under achieving?
    The rest of the comment directs us to consider the issue
    of complexity. It specifically asks whether the current
    legal system will fail due to the accumulated complexity
    of the law. Finally we are asked whether the complexity
    makes any sense since its goal is to regulate social
    behavior. But regulate brings us back to regulation as
    a form of law.

    Using evolution as a starting point is interesting because
    evolution does not have a goal and therefore cannot fail to
    achieve a specific goal.

    Many of the answers refer to how the law has or has not
    affected society. Each case clearly sees the outcome as
    good or bad and answers the question accordingly.

    From an evolutionary point of view the law is one component
    of the fitness function. From a social point of view the law
    should inform individuals how different tradeoffs, and the
    expected results, are valued. From a personal point of view
    the law may be used or thwarted to achieve personal goals.

    "Will we come to think... ?" will be answered by people who
    have either succeeded because of the environment provided for
    them or failed because society did not provide what they needed.
    Most societies will have members in both groups.

    Should we rather ask:
    For each condition we want our society to meet, is creating
    and enforcing a law the way to get that result?

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    Sep 4 2012: Mladen Bukmir said: "...Is law likely to become marginal? is just an attempt to regulate ethically in the context of social relations."

    I think it has, for the most part, always been that way in order to define criminal actions, address inequality among citizens and settle disputes about property and wealth.

    While many laws are based on religious notions of right and wrong, modern laws deal with ethical questions, especially in the area of business activities, resource management and national defense.

    We need contracts to do business, but we will always have a base set of rules to govern how we socially evolve and interact. If money goes away there will be little left but social norms and restitution for mistakes and accidents.
  • Sep 3 2012: The problem with law is that it becomes corrupted to power and commercial interests and can transform a society because the state has a monopoly on violence. Right now america is becoming one of the most corrupt capitalist nations on planet earth. Looking at the copyright fiasco, SOPA and ACTA and corporations lobbying to keep pushing this authoritarian plan to deny freedom to own your entertianment and other products on the people at large and getting away with it is disgusting.

    Law is starting to fail to protect the public and public domain and capitalism has succesfully co-opted governments to cater to every whim of the corporate oligarchs.

    I watched as the videogame industry went from an imperfect but mostly honest business to something akin to the mafia taking away customer rights to own software and use it without permission of the nanny corporation. DRM and copyright law is backdoor authoritarianism and dictatorial rule. Copyright law is probably enemy #1 threat to freedom governments and corporations are using to hide their authoritarian agenda behind commercial interests most of the ignorant capitalist people of america will get behind because they are too ignorant and unsophisticated to defend themselves from the propaganda and the media sadly.

    Chris hedges on corporate power
  • Sep 3 2012: No.

    Law, for all its imperfections, defines an order by which communities, countries and humanity as a whole can interact. Knowledge of, concurrence with, and enforcement of this order is arbitrary and in constant transition around the world. Still, it, or the pursuit of it, has pushed the collective knowledge of the world forward through collaboration (like this one).
  • Sep 3 2012: I liked the Somalia comment. That hits the point exactly: however, our actions are constrained by more than just laws. Consider culture, familly, habits, traditions, etc. I think that I accidently lifted some of this from the UN charter.
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      Sep 4 2012: The main point about Somalia would be, in my view, that the social mess they went through could not have been resolved by legal solution from outside of the country. In other words, there was no such law that could be enforced from abroad to bring a solution to this internal disorder. Even if the sovereign principles would be redifined (as I guess might happen in the future), the solution could not be brough about by law itself. It takes more comprehensive kind of human effort and alignement of interests is much more potent tool to that result than the position based legal outcomes could be. The society itself needs to to regroup, redefine their resepresentative stakeholders interests as they are doing now, in order to tackle the problem. Again, this will not be done by using law, but the result will become a more legally regulated place. What I am talking about in my question is what come sfter that? I am interested where the societies that are already run by law going to get, not where the lawless will go. I am sure that the lawless will go "legal", but I propose that we must do better.
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    Sep 2 2012: Zdenek, Mark and Pat, thanks for very pertinent coments. I will get back to you individually in a couple of days as I've hit a busy patch. If you follow a link to my article you might find a context to my theses. Especially Zdenek, as the article primarily deals with copyrights.
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    Sep 2 2012: Feyisayo, I appreciate you comment very much, so succintly and elegantly put forward. I have never contemplated skipping the phase of achieving the lawful society. I only feel tha once this is achieved in modern conditions, we cannot wait too long before we move forward and beyond leglal system as a dominant force determng how a socity is run. When I feel we need to pity a society ruled by law I alway think only about the societies that have already achieved a rule of law. A Western African colleague once remarked that mediation is certainly a great thing, but it it a pity that it took Europeans so long to discover it. Having grown in a communist country I certainly like the idea of everyone being equal before the law, but at the same time I realize that inherent complexities of legal systems are not best suited to carry us forward in the fast moving societies we now live in.
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    Sep 2 2012: The rule of law is one of the 6 killer apps and an essential part of sucess for a country.

    Ethics is an individual thing and cannot be legislated.

    Law is necessary unless you want to be Somalia?
  • Sep 1 2012: This is an interesting topic. Do you suggest that laws will be replaced? What will replace them?

    I do agree current laws are too complex and sometimes unethical (e.g. patent and copyright laws in its current form).