To Benjamin Franklin’s two certainties – death and taxes – I want to add three more: change, complexity and conflicts.

Indeed, perpetually accelerating change; increasingly more confusion, choices and and variety of options in our affairs (which is what complexity truly means); and progressively more challenging and highly entangled conflicts.

So a crucial question is to understand how the legal system responds to change, complexity and conflicts.

As to change, it is quite clear. It does not easily adapt. Of all our institutions, the legal system is the most impervious and resistant to change. It is reactionary. That is the substance of one of its most fundamental doctrines, stare decisis. The assumed need for continuity and predictability trumps the obvious need to continuously adjust to stampeding changes in our lives, conditions and environment.

The fact that the wheels of the law grind very slowly and deliberately is considered to be one of its great virtues. Yet, the world "outside, there" is continuously and rapidly changing. This accounts for an olympian disconnect between the legal system and the realities of life.

As to complexity, the wheels of justice also grind exceedingly fine. The legal system does not know how to respond to complexity. It relies on reductionist processes that are calibrated to reduce everything to its simplest elements and components.

Reductionism demolishes the interconnections, interdependencies, intricacies and subtleties of the relationships between component parts and their interactions, which constitute the subject or system as a whole... as if it one could understand the significance of the Internet by reducing it to metal, wires, nuts and bolts.

Nevertheless, the most crucial problem is how the legal system responds to conflicts and what it teaches and expects us to do with the conflicts we experience in our lives. It’s the well established reflex, knee jerk reaction: If you experience an interpersonal conflict then, most likely, you are about to engage in a dispute which, eventually, will have to be resolved by some form of competitive process: Trial by Battle.

And trial by battle is the heart of the problem not only in the law, but especially in the law. Once we have adopted that stance, we have taken the first step headed in the wrong direction.

If the proverbial genie in a magic lamp were to materialize before me and grant me just one wish whereby to change the course of events in the world, I would ask that he change the way in which people respond to conflicts.

If we continue doing what we have always done – a fundamental tenet of the legal system – we will continue to get the same results that we have always got. And to continue doing what we have always done and expect different results is Albert Einstein's definition of insanity.

 
In fact, there is very little disagreement among people who are closely involved with the legal system and think about it: It is the worst system possible... except when compared to all the others.

We have become accustomed to deflect criticism of the legal system by hiding in the dogma that it is the best we can do.

I will put the matter as clearly as I am able to clarify and put it beyond any possible doubt: I am not proposing that we make changes to our legal system; I am proposing that we change the system by replacing it.