Hacking The Law

On Hacking the Law

In my view, hacking is the means by which technique is transcended to art. The Internet Society defines the term thus:

hacker. A person who delights in having an intimate understanding of the internal workings of a system, computers and computer networks in particular. The term is often misused in a pejorative context, where "cracker" would be the correct term. See also: cracker.

See RFC1983. A hacker

enjoys exploring the details of . . . systems and how to stretch their capabilities [and is o]ne who enjoys the intellectual challenge of creatively overcoming or circumventing limitations.

See Eric Raymond's Jargon File. In his book, 1984 book, Hackers, Rolling Stone Technology Editor, Steven Levy attributed the origin of the term to members the Tech Model Railroad Club at MIT, which rejoiced in building complex and wonderful model railroad layouts by pushing the limits of simple and straightforward technologies, and ultimately merging them with (and into) the state of the art. Alas, the term has been largely co-opted over the years, and many harbor misconceptions when they hear the term today:

• Hacking is Beautiful, not Shoddy. The term "hack" is sometimes used pejoratively to refer to people who perform shoddy work. Not so with true hackers. Hacks, the result of true hacking, are often quite subtle and elegant -- quite the opposite of a "kludge." Like the chess grandmaster, the hacker finds a master play among myriad alternatives. The masterplay, once made, appears almost like an error at first glance. There is a genuine sense of "aha!" as one thinks deeper, and discovers that it is clearly and inevitably the winning move. It requires not only brilliant intuition, but solid and sound technical skill. The masterplay is not an accident, but the result of a comprehensive analysis and understanding of the system.
• Hacking is Not Evil . The term "hacker" has been largely co-opted to describe the conduct of individuals who engage in computer fraud and asuse, breaking into or compromising the security of computer systems not their own. Most technologists will understand the difference between "hacking" as defined in the RFC, and "cracking" as is the proper term for the latter, conduct. The two notions are wholly unrelated. Cracking is not necessarily hacking, but it can be. Crackers who routinely exploit existing programs and technology to break into a computer are not hacking -- such "script kiddies" are neither using nor pushing the state of the art, and are simply computer users performing evil and illegal acts. On the other hand, a few crackers, who have pushed the limits of a system to discover new ways to engage in computer fraud, may well be hacking in the strictest sense. Accordingly, there are good hackers and bad hackers, but all share a delight for having an intimate understanding of the internal workings of a system.

In short, Hacking is the art of studying a complex system and finding ways to make it do astonishing and new things, often but not always unintended by the creators of the system. Hacking, therefore, is wonderful and beautiful.

Hacking the law is no different from hacking a computer system. A law hacker delights in having an intimate understanding of the workings of the legal system, and enjoys exploring its details and enjoys the intellectual challenge of creatively overcoming and circumventing its limitations. Law hacking may be accomplished by lawyers, judges or even juries and legislatures. Few systems are as complex and deep as the rules governing the interactions of people in a society -- and the stakes at risk in the smooth and orderly operation of the system are tremendous. Accordingly, opportunities to hack the law abound and are of great importance.

I hope in the months to come to detail examples of law hacking, current and historical, and hopefully to use the notion to identify important patterns in jurisprudence and thereby improve the state of the art of the law. Posted by Werdna at April 26, 2004 06:28 PM