What can Leo Tolstoy tell us about humanity and the law?

5 mins

‘Happy families are all alike; every unhappy family is unhappy in its own way.’

– Anna Karenina, Leo Tolstoy

So begins Anna Karenina, one of the most famous novels from Russian literary heavyweight, Leo Tolstoy (1828–1910).

This is one of my favourite quotes, which so accurately summarises human complexity in conflict. It also recently got me thinking about how the law is a battleground where human interactions play out.

Tolstoy’s works are a collective tour de force of the human condition. He understood the predilections of humans — their innate fears, passions, interests, conflicts and interactions.

The fact that his work speaks to us 141 years on is a testament to his insight. It also reveals that human behaviour has changed very little despite our separation across time and place.

In essence, the fears and concerns of someone in a 21st century metropolitan city is not so different to someone in 18th century Russian high society. In terms of human development, Newton’s apple has not fallen far from its tree.

Humans are complex creatures

The practice of law reflects the complexity of human interactions. Equally, it attempts to mould those interactions. A legal case doesn’t only involve reading legislation or memorising legal cases. In fact, this is a very small part of legal practice. Lawyers with a deep understanding of human psychology will understand the levers for why humans behave in the ways they do. This is as important as knowing the technical law.

It is in litigation that you will never see happy families (or people) in court. Lawyers can be sure to see unhappy families (or people) accompanied with their permutation of unhappy facts.

Along with the complex web of facts, the process-driven legal system seeks to make sense of it all. Like a pasta machine, the legal system pushes every deformed piece of dough through a flattening roller. The tools for facilitating this process are procedural and evidentiary rules of court. Many of these rules, particularly on matters of evidence, developed over time in the common law — and were later codified in legislation.

If you are less keen on Russian literature and more interested in procedural rules applicable in Victoria, check out (for example) the:

Welcome the robot lawyer, or not

For the above reasons, designing tech solutions for dispute resolution is not a straightforward task. Unlike standard contract drafting, technologists have not yet cracked the code for dispute resolution.

Introducing automation for litigation matters requires a deep understanding of human psychology. It would involve coding for inter-human conflict, warts and all. The very nature of litigation is a journey through the human condition. The human guides on the sidelines are the lawyers, barristers and judges.

Even the most boring trusts law matter has a juicy core. Trusts law disputes often involve family members falling out with each other in the most absurd ways. Usually they develop an intractable dislike of each other over money. A robot lawyer is not currently capable (for now) of working through the emotion of human disputes, let alone resolve them.

Any good lawyer who takes on a case can apply the relevant law, but also account for human context and psychology. A lawyer is as much a psychologist as a technical expert at the lowest point of the human experience.

Like aged wine or cheese

Let’s also not discount the importance of lived experience. A lawyer once told me that their work got better year on year as they practised. I liken this to a good wine or cheese maturing over time. (Disclaimer: Some may go sour.)

Experience leads to a strong ‘gut feel’, an important aspect of legal practice. Even before a client begins to relay their story, experience will tell you about all the key pressure points to a case. It runs counter to the prevalent view of discounting expertise for Google knowledge. It seems that these days everyone can become an ‘expert’ in anything. You only have to check out YouTube or Wikipedia for the wealth of information available. It results in a kind of false confidence that you can take on the world with a smartphone in hand.

I must however admit that lawyers are not immune from the fallacy that ‘knowing more cases makes one a better lawyer’. Quality trumps quantity in almost every area of life, as it is in law. Instead of going for quantity over quality, it is far more critical to know the few important cases. This is where lived experience comes in handy.

Humanity x Technology

Despite the analytical power of the human brain, there are clear flaws. The human brain is susceptible to influence, prejudice and coercion. It can make illogical decisions, and often does.

For human lawyers, their involvement in any case can be fraught. A common criticism of lawyers in family disputes is that they get so caught up in defending their client that they lose perspective. I often hear people complaining that the lawyers, not the clients, want to pick a fight. This is where judges play a crucial role in providing important perspective.

Difficult as it may be, lawyers need to get better at playing devil’s advocate (though many people already think they are). A good lawyer has the ability to prosecute their own assumptions and thinking.

It is on this note that we should consider how technology can assist with better decision-making. Historically, many in the legal profession have a deep suspicion of technology. Many still prefer working with paper and arch folders. In some ways, you couldn’t blame them if they previously lost work when a laptop crashed.

The reality is that lawyers need to get beyond the passive use of technology. This vast tech wilderness, where tech can be combined to further legal analysis, remains unexplored and has enormous potential.

In the book ‘Principles’ by Ray Dalio, he talks about combating flawed decision-making in his investment company. (It is quite typical of the financial sector to latch on to technology much quicker than in the legal profession.)

There are three notable techniques used by Dalio.

First, he wrote down the framework of principles that he would live by, known as his ‘work’ and ‘life’ principles. We can conclude that few people have the grit to codify their own set of principles, let alone adhere to them.

Second, Dalio sought to create a culture of honesty and thoughtful disagreement in his company. The theory is that we make better decisions by weighing up different and competing perspectives. Sounds pretty reasonable so far.

Third, Dalio integrated computer modelling into human decision-making at his company. Combining these limited the downsides of flawed human thinking. At any one time, humans consider a limited set of variables — whereas machines can pore over huge datasets. All of this is subject to Dalio’s warning to be cautious about trusting artificial intelligence without having deep understanding. He states:

‘I worry about the dangers of AI in cases where users accept—or worse, act upon—the cause-effect relationships presumed in algorithms produced by machine learning without understanding them deeply…

Remember that computers have no common sense. For example, a computer could easily misconstrue the fact that people wake up in the morning and then eat breakfast to indicate that waking up makes people hungry…

A lot of people vest their blind faith in machine learning because they find it much easier than developing deep understanding.’

– Ray Dalio, ‘Principles’ (pp. 262-3)

There are so many conversations to be had in this area, particularly on:

  • how we can use technology to better practise law;
  • how to make law more accessible.

Many of these conversations are not happening yet, but should.

One day, robots may become capable of absorbing years or centuries of lived human experience. They may also become judges. They will certainly be capable of reciting Tolstoy. It is not yet our reality, but we should be open to the possibility that it might happen sooner than we expect. Before this happens, we should be having thoughtful conversations about it now.

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