A Brief Systemic Analysis of Justice Systems

There is a serious crisis in our world that receives little attention. The justice system is failing worldwide. The World Justice Project estimates that about two-thirds of the global population cannot access justice and are dissatisfied with the justice system. In other words, over 5 billion people are not served by the justice system. Overall, when looking at trends across justice systems worldwide, the rule of law has weakened for more than 6 billion people. That is an enormous number that has been rising since 2016.

Lack of access to justice is just one issue faced by justice systems worldwide. These systems also struggle with failing to meet people’s needs, violating human rights, executive overreach, lengthy delays, and high costs. Even countries with a stronger record on human rights, like Canada, find their justice systems too slow, costly, unfair, and hard to navigate. In Canada, 47% of people consider the justice system unfair and 39% see it as inaccessible. Only 19% believe it is fair, and 24% find it accessible (Department of Justice Canada).

It is also important to note that the lack of justice doesn’t affect everyone equally. Poor and marginalized people are far more significantly impacted by a so-called “justice” system that is largely biased against them (Poor bear the brunt as global justice system fails 5.1 billion people – study). Even when we set aside the intentional marginalization of people through the law and its use as an instrument of power against various groups, the fact that money greatly influences the system remains a major problem that discriminates against the poor. While wealthy individuals can afford to spend a lot on lawyers and prolong their cases, poor people cannot afford extended legal representation. As a result, the system naturally favours the rich over the poor.

Finally, one of the major trends impacting justice systems worldwide is the rise of authoritarianism. Nation-states across the globe are becoming increasingly authoritarian, and as resources become more limited and the threat of climate change looms over the global supply of energy, food, and water, the problem is only expected to worsen. The shift towards authoritarianism has affected over 78% of nation-states, and the rule-of-law factor that has declined the most is fundamental rights, which have decreased in 77% of nation-states (World Justice Project).

Having said all that, I would argue that there is a fundamental problem with how human society structures its justice system. The fact that systemic failure is the norm indicates a fundamental error in the justice system’s design. Therefore, I contend that we need to examine the design of justice systems through a lens of complex systems and design science. A thorough analysis cannot be condensed into a few words, but a brief overview follows.

To begin, a complex systems analysis is necessarily multidisciplinary. The justice system influences and is influenced by many different societal systems, including but not limited to political, social, economic, and financial systems. Similarly, nation-states form a comprehensive, decentralised international legal order that must be considered as a whole. Nation-states influence each other, and more powerful ones can significantly impact the justice systems of less powerful states.

Furthermore, there is not a single justice system but rather a collection of many, with each nation-state typically having one main justice system made up of smaller jurisdictions that are coordinated with the central system at the national level. In addition to this internal structure, justice systems develop according to universal evolutionary principles that apply to all of them. For example, England exported its common law system globally. Since the fall of the British Empire and the end of colonization, different nation-states that adopted English legal systems have evolved in various ways. While the Canadian system has changed a lot, the Indian system has kept some of the old quirks inherited from English common law.

Considering the evolutionary nature of justice systems and the impact that different nation-states can have on one another, a global systems approach can also be valuable. Such an approach includes historical data and considers the systems-thinking principle of path dependence (World-Systems Analysis: An Introduction). However, merely accounting for historical data is not enough. We must delve deeper to uncover the fundamental principles that govern the functioning and development of justice systems. Only then can we learn how to steer their growth toward more effective outcomes.

Uncovering the fundamental principles that govern justice systems requires a more detailed analysis of their structure, how they operate logically, the needs of their information systems, and how relationships among agents and groups of agents impact them. All of these factors also interact with each other. For example, the network structure of the justice system affects the relationships between agents, and the logic of its operations influences the type and amount of information that must be processed.

Once the fundamental principles are considered, we can proceed to designing a new justice system that can operate effectively across the entire planet. The most crucial step in systems design is understanding the requirements the system must meet to achieve its intended function and to do so in a way that fulfills the qualitative expectations of its users (Understanding Design Requirements and Principles in System Design).

I would argue that the primary goal of the new justice system should be to prevent disputes before they happen. Consider the significant backlog of open cases in the justice system. One way to reduce this backlog is to stop disputes from occurring in the first place. Preventing new disputes will decrease the number of new cases, helping us catch up on existing ones and eventually clear the backlog. To achieve this, we need to foster a more diplomatic and collaborative society. Human society is far too confrontational and competitive in the 21st century. This competitive mindset naturally causes more conflicts and leads to greater manipulation of people and systems. Moreover, it encourages the spread of misinformation and disinformation to succeed and maximize profits at any cost, undermining our confidence in the truthfulness of all human systems.

Creating a more collaborative society will require improved social arrangements that foster community and cooperation rather than the pursuit of profits. This suggests a substantial reduction in our dependence on the corporate structure and a move towards cooperatives. This transition needs to happen both at the grassroots level of corporations and within governments, as nation-states are as competitive and flawed as private companies.

Authoritarianism should be seen not as a deviation but as a natural result of a system built around the claimed legitimate monopoly on violence. As nation-states face increasing constraints from material scarcity and financial investment, they tend to depend more on force, competing with each other for resources and investment from a shrinking pool of super-wealthy stakeholders. In essence, we should shift our focus from hard power to soft power.

Finally, at the more internal, ground-level of justice systems, we need to pay closer attention to procedural facts. Substantive law is important, but procedural law is equally important, if not more so. These two types of law must be analysed and understood in terms of first-order and second-order game theory. Substantive law provides the content of the legal system, the first order, while procedural law establishes the rules that create the structure for its functioning, the second order. Substantive law is vital, but it can only be effective if procedural law is sufficiently robust.

All agents within the justice system must adhere to the system for it to function properly. If enough agents bypass procedural laws, the entire system begins to malfunction and eventually collapses. One only need to look south of the Canadian border to see what happens when authoritarians infiltrate the political and justice systems of a society.

Ultimately, the core problem behind the crisis in our justice systems is the hyper-individualistic and competitive nature of our society, which leads to a disregard for justice principles and the pursuit of a truly just society.