Law Is Elsewhere

Why we don’t, and shouldn’t, always take the law literally


A friend and I recently walked into a dark cave-like room full of young, cool men and women. Most seemed to have tattoos, piercings, and smartphones. We didn’t fit in, though it wasn’t at all uncomfortable. We were at the nightclub/bar to attend a Toronto lecture series called Trampoline Hall, a monthly lecture series with a twist: the speakers are not allowed to be experts on their chosen topic. In other words, they are just like you and me at the office water cooler, chatting about things they know nothing about. The talks are almost always funny, thoughtful, and interesting. One night, you might get an insight into Toronto’s PATH system, dads, and pregnancy idols. On another, the virtues of living a life in slo-mo, the Mega Bus to New York, and shopping malls.

Invariably, the talks provoke further reflection. On this night, one talk got me thinking about how law, nightclubs, lecture series, and life are all connected. Law exists all around us. The irony is that law is rarely required because it is everywhere. It’s like nighttime—we don’t tend to think about it too much but we’d miss it terribly if we didn’t have it.
Most people only consider the law when it comes at them directly, usually in the criminal realm: the TV news about the latest murder, or maybe a police officer standing behind a tree pointing a radar gun at us as we drive by. Valid instances, of course, but only the merest tip of a much larger law-berg. In reality, law comes at us every which way, though not always predictably or coherently (or in ways that a layperson may recognize).

In its grandest form, law is ubiquitous. If you were like me, as a child I used to send things to “Canada, North America, Northern Hemisphere, The World, Milky Way Galaxy, Universe.” It was a way of showing that, at some level, there were locations common to all of us.

The adult version of this, in law as opposed to geography, runs as follows: without the law as set out in the constitution, there wouldn’t be a Canada. Without a provincial legal power over municipalities, there might not be a Toronto. Without tax laws, it’s possible that no roads, public transport or other services would exist to enable us to get to Trampoline Hall. Without business and zoning laws, it would be almost impossible to imagine a coherent city where nightclubs participated in something like a Trampoline Hall. Without laws regulating industries, there probably wouldn’t be consistent and reliable sources of electricity, water, and sewage. So law’s meta-role is ever-present, yet hidden.

Law’s more prosaic roles are a little different. Any event like a lecture series relies on a ticket (the Trampoline Hall tickets are works of art in themselves; for this show, they were cupcakes). A ticket is the contract that exists between the patron and the promoter. To get into the event, you need to have one. Maybe it’s only law geeks who actually read the backs of tickets, but I recommend it. A sampling from other recent events I’ve attended: “Cameras, audio and video recording equipment, and wireless devices are prohibited from being used at this event. Artist, program and date subject to change without notice.” In my experience, certainly in the last decade or so, the use of wireless devices (smartphones) has become common—in concerts, they are used to take photos, to text friends, and even as electronic lighters. So why prohibit them on the ticket? It’s a legal escape hatch: if they don’t like you, for whatever reason, they can use evidence of a wireless device as an excuse to kick you out.

The second clause is even more troubling: The entire program doesn’t even have to take place. It’s only by the promoter’s good graces (and its desire for money) that they decide to give you the show you’ve come to see. Imagine this though: it’s conceivable you leave home thinking you are going to see Tony Bennett and you get Megadeath instead. This could well happen, and if it did you wouldn’t be able to sue the promoter.

Or take other more specific aspects of a lecture. Trampoline Hall consists of three separate talks. As is the case at most events, you can also purchase mementoes of the lectures (in the form of buttons) and refreshments, such as alcohol (“goods,” in legal terms). Consumer protection laws usually allow us to return goods that are defective. So if your drink or button was not “merchantable” (another legal term), you could ask for a replacement. In fact, the entire industry of consumer warranties is largely based on laws that require goods to be merchantable.

But what about services? Since the conceit of Trampoline Hall is that it is a lecture series given by non-experts, there is always the risk of failure. If one or more of the talks were substandard (leading to, say, daydreaming about the law in everyday society), what recourse would you have? Consumer protection law may not apply. That’s because defective goods are easier to assess than poor service. I can tell if a beer is stale but my dislike of Susan’s talk on traffic jams may be based on irrelevancies, like the unfortunate dress she’s wearing.

Obviously, a lecture series depends on communication. Many legal concepts are raised by the words spoken during the show. Take the host’s role at Trampoline Hall. A highly intelligent, absorbing performer, Misha Glouberman starts the program off with a description of how the show will proceed. “There will be three lecturers,” he notes, “with a break in-between each one. At the break, the bar will be open. It serves drinks. If you’ve never had one, I recommend them highly. In fact, have a thousand of them; liquor has never done anyone a lick of harm.”

It’s meant to be funny, and it is, but what if someone tried to follow his advice and drank far too much? Courts have held commercial establishments liable for this kind of thing under a doctrine called “social host liability.” This means that the bar must be cautious in allowing inebriated patrons to leave if it’s foreseeable that they may get in a car and drive away impaired. But what about the host of a show, not associated with the bar, who is clearly exaggerating for comic effect? He’s probably able to rely on the fact that the law leaves an independent host alone, but there isn’t a particularly good reason why. Maybe some day, exaggeration and parody will fall prey to the reach of tort law. I’m not saying this would be a good thing, but it could happen.

Perhaps the emcee has another defence, the notion of “freedom of expression.” It’s a constitutional right to be able to express oneself freely. The constitution is our supreme law, which means that it trumps ordinary laws such as those requiring hosts to be cautious. Since his statement is obviously intended as a joke, it’s possible his freedom of expression rights would carry the day. The law would treat his humour in context. “The law doesn’t deal in trifles,” is one of its maxims.

If we turn our focus away from the emcee to the speakers, another legal dilemma about speech arises: What if one of the non-expert lecturers littered their talk with some rude and possibly hateful words? Imagine a smattering of “motherfucker,” “cunt,” and “nigger.” Does freedom of speech mean this is allowed? Libel and slander laws do protect reputation, but they almost always require particularizing a victim. The possibility of group libel is still quite new in the law, so it’s uncertain whether such a claim would succeed. There are also criminal hate speech laws, which might come into play. These are carefully circumscribed, however, and generally applicable in only the most egregious of situations.

Although neither my friend nor I followed the emcee’s drinking directions during the break, we did notice that music was piped in over loudspeakers. These days, we hear music everywhere, which is yet another situation where one could turn to the law. There are many forms of copyright and other intellectual property protections that exist to protect the rights of artists; the distribution and enjoyment of music is, therefore, largely controlled by law.

So in a sense law is everywhere but in another it isn’t, because we don’t end up using it all that often. Seeking legal redress for either a stale beer or a poor lecture is not worth the time or the effort. Better to simply offer the beer to an enemy and send him to a bad lecture. What about speakers who can’t control their tongues? Better to just boo them off the stage. It’s too difficult to assess whether freedom of expression governs, or whether libel, human rights codes, or hate speech provisions are in play. And don’t fret about that piped-in music. While record companies treat their intellectual property seriously, they do so inconsistently and selectively. Big record companies rarely, if ever, worry about trivialities like bar bands doing covers or piped-in music in restaurants.

Most of us rarely think about the laws that weave and warp in a tangled web underneath the surface of millions of events like this every day. Laws exist for all of us to use and rely on. They are everywhere, it’s true, but really they are elsewhere. At events, at restaurants, in parks and streets, in the layouts of our cities, laws operate in the background. That’s where they stay, however. We rarely rely on law directly because it tends to be clumsy, cumbersome, heavy-handed, opaque, and abstruse. It is devoid of much that reflects our humanness.

By being elsewhere, law allows other forms of regulation to prevail wherever possible. Social norms are a useful term for them. Social norms are lithe, constantly shifting, negotiable. They are, to put it bluntly, more human than laws. They help us navigate the complexities of our existence in a way that laws do not. We could, and do, use them all the time.

As my friend and I were leaving Trampoline Hall that night, we shared another of those things called drinks. We decided not to take the host’s advice to have a thousand of them, but if we’d tried, my guess is that both the law and social norms would have come into play.

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