The concept of “consent” has its own evolution. If you were transported to Russia in the 17th century and you would see the torture to which the suspects in crimes are subjected, then if you did not faint from contemplating this process, you would be extremely shocked that the confession torn out by the torture was taken as proof the guilt. In those centuries, the concept of “consent” was not surrounded by any conditions. As soon as a person says “I agree, I admit,” his guilt was considered proven, and the rest does not interest anyone.
Then people moved a step further, and the term “consent” lost any meaning without the sign “voluntary”. Only voluntary consent is consent, and no more. To ensure the voluntariness of the law spelled a huge number of different rules. The slightest violation of these rules automatically negates the significance of any “consent”, and even more so – is the basis for prosecution of those who committed the violation of the rules.
We see that everything has become more complicated. Now it is not enough to achieve “recognition”. Now it is necessary to describe in even more detailed way hundreds of aspects of the process during which the suspect is subjected to one or another investigative action, that is, now we already need “procedural law”.
Then people moved one step further! What is the use of that a person voluntarily agreed with something, if he has no idea – with what he agrees? Therefore, the term “voluntary consent” has lost any meaning without the additional sign “informed.” Only informed voluntary consent is henceforth an agreement, and no more. Informed consent is that given the information that is considered sufficient for decision-making and received by a person in a form accessible to him.
We see that everything has become much more complicated. Procedural law swells incredibly, in dozens and even hundreds of times, because now the law needs to regulate much more much more subtle aspects.
And here something amazing happens. The procedural law becomes, in fact, inaccessible to a single person! Just because it is gigantic. Laws, amendments, comments to them, bylaws, comments to them, an infinite variety of those or other aspects of judicial practice and so on. Hundreds of volumes, thousands. An infinitely branching tree of specializations. One person is now simply not in a position to cover with his mind the whole range of issues relating not even to jurisprudence as a whole, but even to his own specialization. The lawyer in himself ceased to be a subject of law, he is helpless just as much as a physicist who stands before the grand construction of the Large Hadron Collider – a team of hundreds of thousands of scientists are required. It turns out that the right has changed in its very essence. The right has ceased to be an instrument of individual use, and a crowd of lawyers is required to adequately understand each particular case, no matter how outwardly typical it may seem. And lawyers are people who should receive a salary for their work. So the law has become an even more obvious function of the amount of money than it was in previous epochs, but the main thing is that the law came out from under the power of man. The law has become a self-contained entity, one aspect or another of which can cover only significant collaborations of lawyers. Here we come to a very fine line when the evolution of legislation has reached the stage at which legislation is completely degenerated. The very complexity of the laws, which arose from the desire to make them more perfect, paradoxically turns them into principled lawlessness. I call this amazing effect “evolutionary degeneration”. Evolving and becoming more and more complicated at an accelerated pace, law degenerates and steadily turns into lawlessness.
But how do the courts function? Yes, this is exactly how they function – on the basis of relative lawlessness and guided by the qualified ignorance of all the parties involved. If we take any lawsuit, we see that the parties involved in it are working at the level of their competence. Do you understand? Not “the law”, but “the level of competence in the law” – this is what controls the process. Add to the losing side a dozen lawyers, and you are likely to get a victory instead of a defeat, and with an absolute probability (!) You will at least get a softer sentence – simply because a dozen professionals can find either loopholes in the laws or new ways of interpretation and feed material, etc.
Once the notion of “competitiveness of the process” expressed a great cultural conquest. It was no longer possible to simply put a person into prison or free from responsibility. But as a result of the inevitable process of complicating legislation, competition has become a monster that devoured the law.
There is no place for conspiracy constructions. I emphasize that this process is completely natural. Judicial practice is growing. The principles of humanity themselves are changing. And all this inevitably feeds the tree of law, which gives more and more uncountable branches, with which, in the end, it brakes and stifles the very possibility of the existence of some kind of refined genuine legitimacy.
Is there a way out of this situation? I think that there is, and it consists in the widespread use of computers. Computers have long taken over the management of processes that, because of their complexity, cannot be controlled by humans. Computers launch spacecraft, process the data obtained at accelerators, play chess at the level of the most ingenious people-chess players, etc. The main, rough work of the trial must be carried out by computers, because only a computer is capable of covering and sorting through innumerable amounts of relevant material. The final decision, of course, should remain with the people, but it is obvious that gradually more and more will be transferred to the discretion of the computer as computer enforcement technologies evolve. If twenty years ago it was only possible to laugh at the idea of a fully computer-controlled car, now such a car has already been created, it has already traveled millions of kilometers and, characteristically, did not cause a single traffic accident. The management of modern aircraft still includes the manual mode of take-off and landing, but this is only a tribute to tradition, only the fear of passing the psychological line. In fact, fully automatic control of the aircraft from the first to the last moment of the flight is the most reliable and safe. But these are also questions concerning the life and health of many people.
Of course, jurisprudence is different from controlling a machine or an accelerator, but only externally. In terms of algorithms, these are identical processes. Most of all, a “computer lawyer” will be similar to a hybrid of a “computer chess player” and a “computer pilot of an airplane” – the chess program of a “computer lawyer” will be related to the need to perform a brute force of a huge number of options with an assessment of their relevance. It is common with the “pilot” that there is not just “chess options”, but a living, objective and personal reality. Creating a working automatic car is infinitely more difficult than creating a program for laying a route, because there are real roads, real cars, friction, wear of materials, road markings and hundreds and thousands of other aspects of our physical reality. Similarly, the creation of a working automatic lawyer is infinitely more difficult to create a program for iterating laws and precedents. But this task is undoubtedly solvable. And it will undoubtedly be delivered and resolved.
Returning to the evolution of the concept of “consent”, we describe the next step. We have already seen that consent must be voluntary and informed. It would seem that these conditions are sufficient, but – no. By providing information, we must make sure that a person has the ability to understand, assimilate, and dispose of it. And this is the next stage in the evolution of “consent.” Consent must be not only voluntary and informed, but also informed.
And here we plunge into even more foggy jungles, which bring the above described difficulties of law-making and law enforcement to a completely new level of complexity. What entails, by the way, new opportunities for abuse of the right. If in the previous paragraphs I gave examples of abuse of the right, consisting in the dependence of justice on the availability of money, then pedoystery is a good example of abuse at a new level of complexity. If a ten-year-old child receives thousands of volumes of legal literature, will his consent be informed? Formally, yes, because he can, theoretically, read everything he wants. We can even try to somehow adapt the texts of the laws in order to make them accessible to the child’s perception, but we don’t have a single way to make sure for sure whether this three-year-old or ten-year-old child understood something or not. Has he managed to take the opportunity to become informed, or has failed due to the fact that he is simply not sufficiently developed. Under these conditions, the potential for abuse is enormous, which is what we have. As children at an increasingly younger age have the opportunity (apparently, passing certain tests) to become a subject of law, and not just an object of it, the problems associated with abuses on this basis will gradually soften.
We see similar abuses in relation to adults. Punitive psychiatry, deeply rooted in Russian soil, is such an example. A person is labeled as “mentally ill”, and that’s all – then he gets into a punitive conveyor, from which it is often impossible to get out without not getting irreversible destructive changes in the body and psyche.
Conscious (whatever is understood by this) informed voluntary consent is the pinnacle that has been reached in this area of sense-creation at the moment. Will there be more steps in the same direction in the future? I am sure that yes, there will be – as the very concept of “awareness” evolves in connection with the dynamics of the identification of the concept of “I”.