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For perhaps a millions years, humans did justice mainly via gossip: the rule was that when you saw a rule violated, you were to tell of it to others, talk together on what to do, and then do it.
Problem was, gossip has long been known to be unreliable. When you hear someone rely an accusation that another person did something terrible, there’s a social “rush to judgment” pressure to immediately agree, to show your disapproval of that terrible thing. Even though you haven’t heard all the relevant evidence, including what that accused person might say in their defense.
Forager bands fixed this vis group discussions. They’d all gather around a campfire, listen listen together to the accusations and any rebuttals, discuss it, and only decide together after everyone had their say. Alas, as social groups got larger this was no longer feasible. So near the dawn of civilization, we invented formal trials: we supported the judgment of a subset of us, who made sure to judge only after hearing all the evidence.
Today we still gossip on a great many topics where there are no formal trials, and on those topics we still suffer big problems with rushes to judgment. So we’d do well to try to find more excuses to make formal trial processes whose judgements we’d be tempted to support.
Note that this isn’t the same as just having some group recommend a judgement. We do that all the time via news editorial boards, expert commissions, interest groups endorsements, etc. The difference is that a formal trial is a public process, airing all relevant evidence, and its judges are not selected to already represent particular sides in familiar debates.
But how? We might declare a new kind of court housing a new kind of trial, but how can we get people to bother to participate as jurors, present evidence as advocates, and to see its ruling as “official” enough to feel pressured to support it?
Here’s my idea: nickname courts. Imagine that people are tempted to use a nickname for a certain person in a particular social context. Such as: the 2nd grade homeroom 3 of public school 117 wants to use the nickname “Stinky Stu” for young member Steward Williams. Perhaps on the basis of recent events wherein young Stu was said to be stinky.
Assume there’s no law against using such a nickname, but that students, parents, and teachers might feel there are relevant social norms against doing something so “rude”. Some of these authorities might even declare their own local rules regulating such nicknames. (Nicknames are going to exist no matter what rules; the best we can do is to better channel that instinct.) I propose that these authorities give substantial deference to a new kind of court, a nickname court.
Someone initiates the process by officially proposing a nickname for a person in a social context, and committing to argue in its favor. That person who is to be given this nickname is notified, and confirms that they will oppose this. Then a “random” jury drawn from this social context is impaneled, which in the example above would be members of this homeroom class. They come together, all present their arguments and evidence, and the jury decides. In the example above, these might all be 2nd grade members of this class, including Stu.
If the jury rules yes, then it becomes more acceptable for members of this community to use this nickname of Stinky Stu for this particular Stu. This ruling may or may not have any legal force, even within the official rules of the school. But people might feel more comfortable knowing that their actions had this “official” support.
If Stu later decided that things had changed enough, he might initiate a new case, arguing that the nickname should no longer apply. Others would be notified, and we’d see if anyone wanted to take the lead to oppose him, starting with whomever initiated that first case. If Stu wins, then it would no longer to be as acceptable to call him Stinky Stu, though it might be okay to call him, “Once-was Stinky Stu”.
This sort of approach could obviously be applied to social media. For example, someone might initiate a case to make it more okay to call Robert Random by the nickname “Racist Rob” on Twitter. As I’ve said before, many of us might prefer a formal process for such labels over the current internet mobs that greatly suffer from rushes to judgment.
I’d bet that kids could really get into nickname courts, and learn a lot about law in the process. And later in life they’d probably think more about how similar processes might apply to other topics. For example, I’d love to have Radical Reform Courts, which evaluate radical proposals for social reform. Today there’s way too much of a rush to judgement, wherein each person who hears of a proposal quickly imagines one potential problem, and then concludes that it can’t work. But I don’t yet know how to make anyone care enough about the ruling of such a court.