How do first principles guide institutional design in law?

Hello, this is an interesting question. I'll try to explain my understanding in plain language, hoping it helps you.

Let's not rush into something as grand as "law" yet. First, consider a simple scenario: you want to build a car.

You have two approaches:

1. Imitation Method: You see that cars on the market today all have four wheels, a steering wheel, and an engine. So, you build one just like that, perhaps making the exterior cooler or adding a sunroof. This is what most people do, and we call it "comparative thinking" or "analogical thinking".
2. First Principles Method: You completely disregard what current cars look like. You ask yourself the most fundamental question: "What is the essence of a car?" The answer is: to move people safely and efficiently from point A to point B.
   • Okay, based on this essence, what do you need?
   • "Movement" requires power. Does it have to be an internal combustion engine? Not necessarily; it could be an electric motor, or even compressed air.
   • "Safety" requires a body. Does it have to be a metal shell? Not necessarily; it could be lighter, stronger composite materials.
   • "Control" requires a steering wheel? Not necessarily; it could be a joystick, or even a brain-computer interface.

You see, by thinking from first principles, you might invent a Tesla, or even modes of transport we can't yet imagine. But with the imitation method, you'll most likely only build a slightly better Toyota or Volkswagen.

Alright, let's return to law. The institutional design of law is essentially "building a vehicle to manage society".

What are the first principles of law? They are not the legal provisions themselves, nor some ancient code. Rather, they are the most fundamental and core values we pursue. For example:

• Fairness and Justice: To ensure good people are not wronged, and bad people are punished.
• Social Order: To allow everyone to live and work peacefully, rather than in chaos.
• Protection of Rights: To ensure that everyone's fundamental rights (e.g., personal safety, property) are not arbitrarily infringed upon.
• Dispute Resolution: To provide a clear and credible method for resolving conflicts when they arise between people.

These are the "moving people from point A to point B" in the legal world. They are the objectives, the fundamental reasons for the existence of legal systems.

So, how do first principles guide institutional design?

It means that when we design a law, a court, or a procedure, we shouldn't just look at how the UK does it, or the US, or how it was done in ancient times (though references are important). Instead, we must return to these fundamental questions and scrutinize our design:

Let's take an example: the design of the criminal trial system.

• If using the imitation method: We'd observe, "Oh, other countries have juries, so we'll have one too; they have lawyers, so we'll establish lawyers; they have appeals, so we'll have those too." We'd copy a "shell" that looks very similar.

• If using the first principles method: We'd ask: What is the fundamental purpose of a criminal trial?

  • A core answer is: "To seek the truth, but absolutely avoid wrongly convicting an innocent person." (Better to let a thousand guilty go free than to wrongly execute one innocent).
  • Okay, to achieve this fundamental goal of "not wrongly convicting an innocent person," what kind of system do we need to design?
    • → Institutional Design 1: The Presumption of Innocence. Why should a person be "presumed" innocent? Because if it were the other way around, presuming guilt would force them to desperately prove their innocence, which is incredibly difficult and easily leads to wrongful convictions. Therefore, to uphold the first principle of "not wrongly convicting an innocent person," we must design the rule of "presumption of innocence," requiring prosecutors to present irrefutable evidence.
    • → Institutional Design 2: The Right to Remain Silent. Why can a suspect remain silent? Because under stress and pressure, people might say the wrong thing, or even be coerced into making false statements. To "not wrongly convict an innocent person," we give them a "shield," allowing them to remain silent and avoid self-incrimination.
    • → Institutional Design 3: The Right to Legal Counsel. An individual facing the powerful state machinery (police, prosecution) is extremely vulnerable. To achieve a balance of power, ensure fairness in trials, and prevent innocent people from being easily convicted, a professional role—the lawyer—must be designed to assist them.

You see, specific institutions like "presumption of innocence," "right to remain silent," and "right to legal counsel" didn't appear out of thin air. They are all "components" logically derived from the first principle of "avoiding wrongful conviction of innocent people".

Let's take another civil example, such as "Contract Law".

• What is its first principle? It is "to ensure the freedom, security, and predictability of transactions".
• From this principle, we would design:
  • Offer and Acceptance System: To ensure both parties clearly understand what they are doing, guaranteeing "freedom of transaction".
  • Breach of Contract Liability System: If one party fails to uphold their commitment, the other party can receive compensation. This ensures "transaction security and predictability," making others feel confident doing business with you.

To summarize:

In law, using first principles to guide institutional design is like an architect.

They aren't copying someone else's blueprints, but rather, after deeply considering "what is a house for?" (living, shelter from wind and rain, providing a sense of security), they then design the structure, materials, and layout of the house based on the foundation conditions, local climate, and residents' needs.

This method ensures that the legal system designed is not just an empty shell, but an effective tool that truly responds to societal needs, upholds core values, and stands the test of time. It forces us to think "why," not just "what" and "how." In essence, it's a way of seeing through appearances to the essence, a way of solving problems from their roots.