Contradictions in Roman law left incurable headaches for its judges(historytoday.com)
historytoday.com
Contradictions in Roman law left incurable headaches for its judges
https://www.historytoday.com/history-matters/how-get-away-murder
161 comments
Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them.
No need to go through a comitte or build consensus when there is only one person that needs to make a decision. On the other hand that often means the person making the decision doesn't need to consider the opinions of others when making decisions.
EDIT To clarify my comment I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. Whether they make good or bad decisions is much more dependent on the leader. It is a common pattern in the world the more constraints on a position the less autonomy an individual has the less impact they can have either for good or bad.
Probably is related to the fine line between idiocy and genius.
No need to go through a comitte or build consensus when there is only one person that needs to make a decision. On the other hand that often means the person making the decision doesn't need to consider the opinions of others when making decisions.
EDIT To clarify my comment I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. Whether they make good or bad decisions is much more dependent on the leader. It is a common pattern in the world the more constraints on a position the less autonomy an individual has the less impact they can have either for good or bad.
Probably is related to the fine line between idiocy and genius.
> Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them.
this is one of those things which many people believe but which isn't actually true. authoritarian dictatorships are very often total chaotic shitshows.
the old line about Mussolini making the trains run on time is a great example. Mussolini used propaganda to claim that he made the trains run on time, and he did drive a few improvements to high-profile train lines in Northern Italy that were used mostly by elites and tourists, but trains in Mussolini's Italy were not efficient, not well-maintained (and therefore not safe), and they didn't run on time.
https://www.snopes.com/fact-check/loco-motive/
https://www.bloomberg.com/news/articles/2016-11-15/stop-sayi...
there's even an academic term for it: "the myth of fascist efficiency." Hitler's regime was also pure chaos, and he was largely regarded as a clown for most of his political career. authoritarian dictatorships lack legitimacy, so they're run by people who don't care if they're perceived as legitimate or not, which basically means fanatics and grifters. fanatics are too disconnected from reality to be highly effective, and grifters have a vested interest in chaos, since it makes their grift harder to detect.
this is one of those things which many people believe but which isn't actually true. authoritarian dictatorships are very often total chaotic shitshows.
the old line about Mussolini making the trains run on time is a great example. Mussolini used propaganda to claim that he made the trains run on time, and he did drive a few improvements to high-profile train lines in Northern Italy that were used mostly by elites and tourists, but trains in Mussolini's Italy were not efficient, not well-maintained (and therefore not safe), and they didn't run on time.
https://www.snopes.com/fact-check/loco-motive/
https://www.bloomberg.com/news/articles/2016-11-15/stop-sayi...
there's even an academic term for it: "the myth of fascist efficiency." Hitler's regime was also pure chaos, and he was largely regarded as a clown for most of his political career. authoritarian dictatorships lack legitimacy, so they're run by people who don't care if they're perceived as legitimate or not, which basically means fanatics and grifters. fanatics are too disconnected from reality to be highly effective, and grifters have a vested interest in chaos, since it makes their grift harder to detect.
Have you considered that Mussolini didn't care about the trains which weren't high-profile trains for elites? The person you're responding to said dictators do what they want efficiently, but don't care about what others want. Was Mussolini even trying to genuinely improve the lower class trains?
Intuitively, a state with a dictator should be more chaotic than a democracy, because the decisiveness mentioned in the grandparent comment would result in a loss of coherence in policy, since all the interest groups in the government would not have been brought on board in time. At best, this would lead to miscommunication, at worst, revolt.
I'm not sure that decisiveness is a natural characteristic of dictatorship, though. Most dictators sit at the pinnacle of large networks of clients and rely implicitly on their network of relationships to maintain legitimacy. This would imply they would have to be more 'softly-softly' than an equivalent democracy, because they can't rely on all the systems democracies have to legitimize contentious decisions (elections, etc).
I'm not sure that decisiveness is a natural characteristic of dictatorship, though. Most dictators sit at the pinnacle of large networks of clients and rely implicitly on their network of relationships to maintain legitimacy. This would imply they would have to be more 'softly-softly' than an equivalent democracy, because they can't rely on all the systems democracies have to legitimize contentious decisions (elections, etc).
In Italy to this day the line about trains running on time is spoken with reference to lower class trains. So no matter what the fascist regime wanted to improve, the propaganda was about _all_ trains.
Mussolini would have said he cared about lower-class trains running on time whether or not he did.
dictators don't do what they want efficiently. nor do they do anything else efficiently.
if you were to read the links I posted in the comment you're replying to, you would discover that an expert who was there at the time reported that all of the trains were typically late during Mussolini's regime. this includes both the trains which were favored by elites, and the trains favored by the working class.
if you were to read the links I posted in the comment you're replying to, you would discover that an expert who was there at the time reported that all of the trains were typically late during Mussolini's regime. this includes both the trains which were favored by elites, and the trains favored by the working class.
You can still have a powerful enough state to enforce laws and not be a dictatorship.
The question is for how long. Many states have had a tendency to grow over time.
Nothing lasts forever, and not everything is a slippery slope. Historical context is also important.
For example, some people have this notion that the Roman Republic was somehow "good" and the empire was "bad" solely because the Senate had power in the Republic, and voting = good. But in actuality it was a pretty messed up system of government because only Romans (literally people in that city) got a vote while the rest of the Italian peninsula got no say. And yes they fought a war about this and the "good" side lost. Voting was heavily weighted towards the upper classes, too. The empire wasn't all bread and circuses, but it did scale better, which had some pros and cons too :). But for your average inhabitant of the Italian peninsula you had no more or less say in how either government ran.
For example, some people have this notion that the Roman Republic was somehow "good" and the empire was "bad" solely because the Senate had power in the Republic, and voting = good. But in actuality it was a pretty messed up system of government because only Romans (literally people in that city) got a vote while the rest of the Italian peninsula got no say. And yes they fought a war about this and the "good" side lost. Voting was heavily weighted towards the upper classes, too. The empire wasn't all bread and circuses, but it did scale better, which had some pros and cons too :). But for your average inhabitant of the Italian peninsula you had no more or less say in how either government ran.
Dictatorships can be quite a mess when it comes to enforcing laws unrelated to keeping power. These laws tend to turn onto soft of weapon to be used or not depending on whether you want harass someone or not.
This happened in both Nazi system and Communist system. Both were high corruption a lot of petty crime normalized society (and a lot of other petty crime severely punished depending who done it and what was done).
This happened in both Nazi system and Communist system. Both were high corruption a lot of petty crime normalized society (and a lot of other petty crime severely punished depending who done it and what was done).
I think there’s a reasonable argument that street-level drug possession crimes during the “War on Drugs” had similar properties/effects.
Perhaps - though notice that other systems have the same, or greater, simplicity - for example, when making a decision, choose randomly, or choose the option which sorts first alphabetically, or...
When you don't have the constraint of making good decisions, or popular decisions, you can make decisions very efficiently!
When you don't have the constraint of making good decisions, or popular decisions, you can make decisions very efficiently!
I am not so sure about that in the absolute.
In eg a 'chaotic' market system, you can just go and buy a yacht. Very quick, very efficient.
If you have an authoritarian dictatorship like eg Stalin's Soviet Union, good luck getting your yacht quickly.
Even the most authoritarian dictator can not make all decisions on their own. There will always be delegation.
In eg a 'chaotic' market system, you can just go and buy a yacht. Very quick, very efficient.
If you have an authoritarian dictatorship like eg Stalin's Soviet Union, good luck getting your yacht quickly.
Even the most authoritarian dictator can not make all decisions on their own. There will always be delegation.
My understanding of the mechanism for getting yachts quickly under Stalin is that if you gave someone a large pile of money, that was clearly bribery, Взятка. If you gave someone a large pile of money and a few bottles of vodka, then it was just a tip, merely Brassica oleracea.
https://news.ycombinator.com/item?id=24176587
https://news.ycombinator.com/item?id=24176587
A yacht was probably a bad example.
A better example might have been to get an extension to your factory or a new machine. Something clearly more of a reasonable business investment than a yacht.
If you got Stalin's attention, you might have been able to get it right away (or go to the Gulag right away..) But that's a very special case, and in general dictatorships don't lack for bureaucracy.
For a more benign version, look at getting anything done in the military or a very big and very top-down company where in theory the CEO reigns supreme.
A better example might have been to get an extension to your factory or a new machine. Something clearly more of a reasonable business investment than a yacht.
If you got Stalin's attention, you might have been able to get it right away (or go to the Gulag right away..) But that's a very special case, and in general dictatorships don't lack for bureaucracy.
For a more benign version, look at getting anything done in the military or a very big and very top-down company where in theory the CEO reigns supreme.
> I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision.
I think that one comes with asterisks too. The cultures in dictatorship are often pretty good at avoiding decisions at all cost. The price can be high for making decision someone in power does not like, better to do nothing or appear to have no opinions. Moreover, you don't want to appear to be making decisions, so that you don't look like threat for people who could be jealous and destroy you.
Communist system was largely characterized by passivity.
Even if the dictator himself can make decision at whim, the structures around him tend to insulate him from the rest of world. Oftentimes simply to protect this or that real world interest. Which means they end up not making decisions.
I think that one comes with asterisks too. The cultures in dictatorship are often pretty good at avoiding decisions at all cost. The price can be high for making decision someone in power does not like, better to do nothing or appear to have no opinions. Moreover, you don't want to appear to be making decisions, so that you don't look like threat for people who could be jealous and destroy you.
Communist system was largely characterized by passivity.
Even if the dictator himself can make decision at whim, the structures around him tend to insulate him from the rest of world. Oftentimes simply to protect this or that real world interest. Which means they end up not making decisions.
> But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime.
You would have to discount the entirety of Old Testament Judaic law, which goes back at least 5800 years, to make the claim that murder wasn’t a crime until the rise of the principate.
You would have to discount the entirety of Old Testament Judaic law, which goes back at least 5800 years, to make the claim that murder wasn’t a crime until the rise of the principate.
The oldest books of the Old Testament were written around 300-500 years BC... so many centuries after the events supposedly occurred. To say that those books are definitely indicative of what the law was 5,800 years ago seems like a bit of a stretch.
Edit: spelling.
Edit: spelling.
The OT was an oral tradition predating it's written recording...
I knew my grandfather, who in my eyes was a god, and I embellish everything about him. He died in 2010. Think how muddled, exaggerated, revised, and dressed-up stories get over centuries... especially when they are not written down.
Somewhat different cultures, I think. There are oral traditions where we can compare the written and oral records and see less deviation in the oral records over even long periods of time.
I acknowledge that requires examples and citations and at one point I knew where to pull them up offhand.
I acknowledge that requires examples and citations and at one point I knew where to pull them up offhand.
[deleted]
Murder is mentioned in the first clause of the Code of Hammurabi, in 1700 BC. So that gets us 3,700 years back.
But it, and the Bible, are irrelevant to Roman law, which is what's being discussed here.
But it, and the Bible, are irrelevant to Roman law, which is what's being discussed here.
I think the author is referring specifically to the situation under Roman law here.
It is very interesting to look at the intersection of state capacity and legal systems.
However, you don't need much government (nor state capacity) at all for legal systems to work. Some might even say the can work better without under some circumstances.
See http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsCo... for many historical examples like Jewish law or Romani law or England in the Eighteenth Century.
However, you don't need much government (nor state capacity) at all for legal systems to work. Some might even say the can work better without under some circumstances.
See http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsCo... for many historical examples like Jewish law or Romani law or England in the Eighteenth Century.
>What does the author want us to draw from this conclusion?
That their book expanding on the topic is worth reading.
That their book expanding on the topic is worth reading.
Nothing, he is stating a historical fact, that's all. I found it interesting, because we sometime tend to think we kind of know how roman society worked -- a lot of our own institutions in the west are modeled on roman equivalents: courts, marriage, civil assemblies and we do live in democracies with a strong oligarchy. This example shows how strangely different the ancient society was compared to our own.
Off topic, but Emma Southon probably goes by "she".
You seem to think the author is writing this paper with the goal of espousing a viewpoint or tying it back to current affairs. It's possible to write and read about history purely for the interest.
Laws are the source code of society; built up over dozens of generations by thousands of people who all had a different idea of what the finished product should look like and what algorithms to use.
In addition most of these people never communicated and there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out.
Beyond all of that bug fixes get pushed through without any real analysis and consideration for their consequences or to make the product better, but instead for the Project Manager to get a chance to show how great they are.
Feel free to add to the analogy.
In addition most of these people never communicated and there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out.
Beyond all of that bug fixes get pushed through without any real analysis and consideration for their consequences or to make the product better, but instead for the Project Manager to get a chance to show how great they are.
Feel free to add to the analogy.
If software ran like law, sometimes you'd get EPERM trying to run a program you have execute permission on, and to get it to work, you'd have to go to an IRC channel and beg the op for mercy. Other times, trying to run that program would result in "rm -rf ~" being executed instead. Apple would insist that it's your fault your home directory got deleted, and tbey'd refuse to fix your computer or sell you a new one.
> "Laws are the source code of society; built up over dozens of generations by thousands of people who all had a different idea of what the finished product should look like and what algorithms to use."
you just described technical debt
you just described technical debt
It’s just a poor analogy for the law. It’s what programmers turn to but it doesn’t work.
The law is a fundamentally human executable. Code is fundamentally computer executable.
The law is a fundamentally human executable. Code is fundamentally computer executable.
Is it wrong that my utopia includes a VCS where PRs are submitted by constituents and implemented by incumbents?
You will need a TCP-like self-stabilising algorithm to rate-limit code changes.
Pushing the hypothetical, what does TCP have to do with this?
I may be missing a joke.
I may be missing a joke.
It is designed to maximise the global packet flow while preserving reliability. A similar system for society would maximise the societal output while preserving conformity.
It's not a poor analogy. It works extremely well. In law there are as many interpreters as there are humans.
I keep wanting every new law being added to the books to require a "reason for this" section. When debugging and throwing out old laws it would be easier when the reasons for their addition are clearly stated. Also it would make the judges' decisions easier in certain cases.
How about laws having a clause describing how to measure how effective the law is at achieving the goal after a period of time, and automatic deactivation of the law if the intended effect isn't achieved? (unit tests)
In Australia at least, most laws do have various surrounding official documents like this and they are often referenced by courts (but do not have the force of law). 'Explanatory memoranda' is one example.
Those reasons are often known.
Though you can't always trust them. Even the titles of laws are often the opposite of what the law is accomplishing; and that's intended.
Though you can't always trust them. Even the titles of laws are often the opposite of what the law is accomplishing; and that's intended.
In the U.S., at least at the federal level, laws don’t have titles. Bills (legislation) have titles but those are not the laws; they merely direct the government how to change the laws. The law at the federal level is simply called the U.S. Code. It is divided into sections with very plain and obvious names.
> In the U.S., at least at the federal level, laws don’t have titles.
In Canada the legislation is often referred to via its bill number (for a given session/sitting of Parliament):
* https://en.wikipedia.org/wiki/Bills_C-1_and_S-1
But the laws are also organized into Acts, which are sometimes introduced whole-cloth, but more often are amended by bills:
* https://en.wikipedia.org/wiki/Food_and_Drugs_Act
* https://en.wikipedia.org/wiki/Telecommunications_Act_(Canada...
* https://en.wikipedia.org/wiki/Canada_Evidence_Act
* https://en.wikipedia.org/wiki/List_of_Acts_of_Parliament_of_...
This is fairly common in British-derived systems:
* https://en.wikipedia.org/wiki/Category:Statutory_law_by_legi...
In Canada the legislation is often referred to via its bill number (for a given session/sitting of Parliament):
* https://en.wikipedia.org/wiki/Bills_C-1_and_S-1
But the laws are also organized into Acts, which are sometimes introduced whole-cloth, but more often are amended by bills:
* https://en.wikipedia.org/wiki/Food_and_Drugs_Act
* https://en.wikipedia.org/wiki/Telecommunications_Act_(Canada...
* https://en.wikipedia.org/wiki/Canada_Evidence_Act
* https://en.wikipedia.org/wiki/List_of_Acts_of_Parliament_of_...
This is fairly common in British-derived systems:
* https://en.wikipedia.org/wiki/Category:Statutory_law_by_legi...
Sorry, what I said mostly applies to bills.
Though laws also sometimes come with justifications. Eg
> Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
In my book, "To promote the progress of science and useful arts" sounds like they wanted to explain what that piece of law was supposed to be good for. But whether handing out monopolies actually promotes progress of science and arts is very much a factual question open to factual enquiry.
And so is the question whether this wording really has anything to do with why the legislators come up with that clause.
It's perhaps more well-analysed for the second amendment to the American constitution.
See https://en.wikipedia.org/wiki/Second_Amendment_to_the_United...
The text itself provides some form of justification for reasons, but from history we know that there were different factions involved all with their own different reasons, and what's written in the law is a compromise. A compromise with rather idiosyncratic phrasing.
Though laws also sometimes come with justifications. Eg
> Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
In my book, "To promote the progress of science and useful arts" sounds like they wanted to explain what that piece of law was supposed to be good for. But whether handing out monopolies actually promotes progress of science and arts is very much a factual question open to factual enquiry.
And so is the question whether this wording really has anything to do with why the legislators come up with that clause.
It's perhaps more well-analysed for the second amendment to the American constitution.
See https://en.wikipedia.org/wiki/Second_Amendment_to_the_United...
The text itself provides some form of justification for reasons, but from history we know that there were different factions involved all with their own different reasons, and what's written in the law is a compromise. A compromise with rather idiosyncratic phrasing.
The intention of this clause is not explanatory, it is restrictive. Congress is only empowered to secure exclusive right to writings and discoveries for the purposes of promoting science and useful arts—no other purposes. In other words, this clause exists specifically to enable the type of inquiry you reference in your last sentence.
Without this clause there would essentially be no restriction on Congress’s ability to establish monopolies.
Without this clause there would essentially be no restriction on Congress’s ability to establish monopolies.
Yes, that's a reasonable interpretation.
Though it seems like in practice sufficient motivation is enough to wring extra powers out of the given text. See eg copyright for movies or audio recordings.
Or the monopoly of USPS. (It's a different clause that motivates it, but that clause doesn't prescribe that a government department is called for, nor that it has to be given a monopoly.)
Though it seems like in practice sufficient motivation is enough to wring extra powers out of the given text. See eg copyright for movies or audio recordings.
Or the monopoly of USPS. (It's a different clause that motivates it, but that clause doesn't prescribe that a government department is called for, nor that it has to be given a monopoly.)
Maybe I’m too cynical but I imagine such a section would just contain nonsense propaganda rather than any actual truth.
Laws often do come with "intent" statements, and where they do not courts have been known to refer to formal records of proceedings of legislatures.
The law is less like source code and more like bytecode with the legal system working as a constantly changing interpreter. Sure, the bytecode gets updated. However, in this case, the interpreter is more often updated than the bytecode.
Take, for example, the recent Title IX case in the US which ruled that someone being trans is protected under title IX. When the law was first written, that certainly wasn't the intention. Yet, the law was written in regards to sex. Something that we as a society have had an evolving view on.
AFAIK, most legal systems (at least based on the British legal system) operate in a very similar manner. Laws may be written, but ultimately the courts have to decide what they mean. New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Laws are pretty much never as black and white as you might consider. There's the text of the law, which matters, but theirs also the courts understanding of the law, which also matters. In fact, prior court rulings on a law often matter MORE than the actual text of the law.
Take, for example, the recent Title IX case in the US which ruled that someone being trans is protected under title IX. When the law was first written, that certainly wasn't the intention. Yet, the law was written in regards to sex. Something that we as a society have had an evolving view on.
AFAIK, most legal systems (at least based on the British legal system) operate in a very similar manner. Laws may be written, but ultimately the courts have to decide what they mean. New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Laws are pretty much never as black and white as you might consider. There's the text of the law, which matters, but theirs also the courts understanding of the law, which also matters. In fact, prior court rulings on a law often matter MORE than the actual text of the law.
>AFAIK, most legal systems (at least based on the British legal system)
Just a nit: Most legal systems are not based on the British system. Civil law is more widespread globally and it operates in a very different manner in respect of the role of the judiciary.
I'd agree with your post if you restricted it to commonwealth countries, though.
Just a nit: Most legal systems are not based on the British system. Civil law is more widespread globally and it operates in a very different manner in respect of the role of the judiciary.
I'd agree with your post if you restricted it to commonwealth countries, though.
While civil law operates in a different manner than common law systems, the premise of the GP post still holds: Laws are not black and white and courts/judges have to interpret how the law applies to the case at hand.
A similar process to the case that the GP laid out has been happening in Germany: Same-sex couples have sued under the non-discrimination clauses of the constitution for equal treatment when it comes to marriage, adoption rights, tax treatment etc. When the constitution was written, gay sex was explicitly outlawed, so it’s pretty clear that the authors of the constitution did not want to protect same-sex marriage. But societies opinion on what constitutes “normal” marriages has changed, and so have the courts decisions.
Sometimes these decisions then require a new law to be passed, unlike British Law systems where AFAIK, the high court decisions more or less become law.
I’d be surprised if that was fundamentally different in any other country.
A similar process to the case that the GP laid out has been happening in Germany: Same-sex couples have sued under the non-discrimination clauses of the constitution for equal treatment when it comes to marriage, adoption rights, tax treatment etc. When the constitution was written, gay sex was explicitly outlawed, so it’s pretty clear that the authors of the constitution did not want to protect same-sex marriage. But societies opinion on what constitutes “normal” marriages has changed, and so have the courts decisions.
Sometimes these decisions then require a new law to be passed, unlike British Law systems where AFAIK, the high court decisions more or less become law.
I’d be surprised if that was fundamentally different in any other country.
I’d say that laws are closer to source code than bytecode. Because, like source code you can read them, edit them without converting to any other representation.
Laws’ flexibility and interpretation comes from the ambigiuity of human languages and a need to adapt to circumstances.
The legal scholars recognized for a long time that you cannot predict and regulate every case, therefore laws generally set out principles you can fall back on, if you cannot find a specific regulation.
Therefore law is more like an ambigious declarative language with lots of undefined behaviour :). There are some agreed upon language standards and each lawyer/judge can interpret it.
As with source code, you include definitons, declarations, link documents. There are race conditions between legal texts. There is poorly written code and well written code.
For me the most obvious difference is that laws are computed and operated through people. As computers can’t interpret the sources, we have to. It is slow, error-prone but essentialy the same thing.
First step to improve this would be to publish all laws in a computer readable and parseable form. It saddens me that in my country amendments to laws are published in an official gazette as low-res formatted images.
Laws’ flexibility and interpretation comes from the ambigiuity of human languages and a need to adapt to circumstances.
The legal scholars recognized for a long time that you cannot predict and regulate every case, therefore laws generally set out principles you can fall back on, if you cannot find a specific regulation.
Therefore law is more like an ambigious declarative language with lots of undefined behaviour :). There are some agreed upon language standards and each lawyer/judge can interpret it.
As with source code, you include definitons, declarations, link documents. There are race conditions between legal texts. There is poorly written code and well written code.
For me the most obvious difference is that laws are computed and operated through people. As computers can’t interpret the sources, we have to. It is slow, error-prone but essentialy the same thing.
First step to improve this would be to publish all laws in a computer readable and parseable form. It saddens me that in my country amendments to laws are published in an official gazette as low-res formatted images.
It looks like the Council of DC is taking some steps in this direction, with XML representations of their statutes and codes available on GitHub:
https://github.com/DCCouncil/dc-law-xml
And they do accept[1] pull requests apparently!
[1] - https://arstechnica.com/tech-policy/2018/11/how-i-changed-th...
https://github.com/DCCouncil/dc-law-xml
And they do accept[1] pull requests apparently!
[1] - https://arstechnica.com/tech-policy/2018/11/how-i-changed-th...
This is incredible! Uploading all legislation to a repository and declaring it as the authoritative version is the way to go to enable progress.
In Turkey, judges and prosecutors have access to a digital law database, but citizens and lawyers don’t. However, laws continue to be published in an online gazette. Most amendments, decrees etc. are published as low-res images. You cannot search them. The government doesn’t even bother publishing the full amendment text. They only state sentences like: “The second word on the sixteenth paragraph of the law numbered X was amended as Y.”.
To find out about the amendment, you open the legislation, follow the instructions to get the latest version.
There are third party publishers who follow these changes and sell memberships where you can see the latest code. The layman has to wait until the government publishes the text (unofficialy) and cannot do comparisons.
It is a real mess. But the government here doesn’t want people to notice the changes, that’s why they bury these in small print. Public officials know the law, citizens have to work hard to get the latest text.
I had law professors in college, who checked the legislation with printed copies of the state newspaper against the published version, because they were sceptical of the government’s unofficial legislation site. They suspected that the government may have been altering these texts. The constitution only protects the integrity of the text published in the official state newspaper. But as most people don’t have any other source these become the authoritive one.
It’s really sickening. If there were a standardized format for all legislation (including the drafts), we could search easily, make comparisons easily etc.
In Turkey, judges and prosecutors have access to a digital law database, but citizens and lawyers don’t. However, laws continue to be published in an online gazette. Most amendments, decrees etc. are published as low-res images. You cannot search them. The government doesn’t even bother publishing the full amendment text. They only state sentences like: “The second word on the sixteenth paragraph of the law numbered X was amended as Y.”.
To find out about the amendment, you open the legislation, follow the instructions to get the latest version.
There are third party publishers who follow these changes and sell memberships where you can see the latest code. The layman has to wait until the government publishes the text (unofficialy) and cannot do comparisons.
It is a real mess. But the government here doesn’t want people to notice the changes, that’s why they bury these in small print. Public officials know the law, citizens have to work hard to get the latest text.
I had law professors in college, who checked the legislation with printed copies of the state newspaper against the published version, because they were sceptical of the government’s unofficial legislation site. They suspected that the government may have been altering these texts. The constitution only protects the integrity of the text published in the official state newspaper. But as most people don’t have any other source these become the authoritive one.
It’s really sickening. If there were a standardized format for all legislation (including the drafts), we could search easily, make comparisons easily etc.
Agreed, it could be much better worldwide.
I'm a layperson certainly, but my understanding is that a lot of legal systems were/are intended in principle to be structured so that they are open to the public (in terms of access) so that they gain credibility and support from the communities they serve, and so that injustices can be debated and corrected.
Regardless of what tech companies themselves aim to achieve, I think that software engineers on the ground tend to believe that making languages easier to understand, making codebases clearer and simpler, providing better tools to access and subscribe to changes and releases, and automatically spot problems (like the integrity issue you mention) are all beneficial.
I believe we'll see more of those types of practices and abilities filter their way into legal systems; it could be disruptive and it shouldn't be done too quickly so as to avoid Chesterton's Fence[1]-type issues, but the upsides are clear and the blockers may largely be related to inertia.
[1] - https://en.wikipedia.org/wiki/Wikipedia:Chesterton%27s_fence
I'm a layperson certainly, but my understanding is that a lot of legal systems were/are intended in principle to be structured so that they are open to the public (in terms of access) so that they gain credibility and support from the communities they serve, and so that injustices can be debated and corrected.
Regardless of what tech companies themselves aim to achieve, I think that software engineers on the ground tend to believe that making languages easier to understand, making codebases clearer and simpler, providing better tools to access and subscribe to changes and releases, and automatically spot problems (like the integrity issue you mention) are all beneficial.
I believe we'll see more of those types of practices and abilities filter their way into legal systems; it could be disruptive and it shouldn't be done too quickly so as to avoid Chesterton's Fence[1]-type issues, but the upsides are clear and the blockers may largely be related to inertia.
[1] - https://en.wikipedia.org/wiki/Wikipedia:Chesterton%27s_fence
I'll still argue for bytecode (or at very least an IR of some sort, maybe an AST?)
That's mainly due to the fact that the debate about the law and the text in a law can vary wildly. I'd call the inciting incident the "source" of a law and the written law an attempt by the compiler to capture the meaning of that source.
An example is the ACA, which in principle was "Let's make sure everyone has health insurance" and in practice ended up with a humongous bill with all sorts of interesting parts.
The human readable part of the law is usually the public debates around the law. The legalese that follows can be interpreted by some people but isn't generally written for the general public.
These compilers tend to emit a lot of garbage along side the the bytecode. For example, the postscript on the DMCA talking about boat hulls of all things.
That's mainly due to the fact that the debate about the law and the text in a law can vary wildly. I'd call the inciting incident the "source" of a law and the written law an attempt by the compiler to capture the meaning of that source.
An example is the ACA, which in principle was "Let's make sure everyone has health insurance" and in practice ended up with a humongous bill with all sorts of interesting parts.
The human readable part of the law is usually the public debates around the law. The legalese that follows can be interpreted by some people but isn't generally written for the general public.
These compilers tend to emit a lot of garbage along side the the bytecode. For example, the postscript on the DMCA talking about boat hulls of all things.
I’d agree that it could be classified as an IR. Law is definitely a domain specific subset of natural languages. Even more, each field of law can be regarded as another specific domain specific language. If you’re doing healthcare law, copyright law, criminal law etc. you need to familiarize yourself with the history, terms and mindset of that field.
That’s why lawyers also specialize and that’s why years of training are needed.
But my general opinion is, if something (a bill for example) looks much more complex than it should have been, someone engaged in lobbying to twist things in their favor. If law is left alone from personal interests, the resulting legislation are often more clear and understandable.
That’s why lawyers also specialize and that’s why years of training are needed.
But my general opinion is, if something (a bill for example) looks much more complex than it should have been, someone engaged in lobbying to twist things in their favor. If law is left alone from personal interests, the resulting legislation are often more clear and understandable.
>Laws are not black and white and courts/judges have to interpret how the law applies
Kinda but not really. Jurisprudence is not the primary source of law in civilian countries; generally civil codes are. Additionally, civilian jurisdictions often treat legal scholar analysis as equally or more persuasive than previous case-law.
So this portion:
>New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Isn't accurate. Courts are bound to apply the law, and most law presented in civil codes is far more rigid and mechanical than those found in common law jurisdictions. In the civilian tradition the proper avenue for reform isn't a judge writing a new rule in a ruling. It's a legal reform project at the legislative level, where legislators and legal scholars go over the code, eventually resulting in a new version.
Are there going to be controversial cases that end up getting emergency legislative attention? Sure, but they're the exception, not the rule.
That said, there are over 150 countries that operate broadly under the civil law tradition, so while what I'm saying is accurate about the tradition as a whole, there are many exceptions on a jurisdictional basis.
Kinda but not really. Jurisprudence is not the primary source of law in civilian countries; generally civil codes are. Additionally, civilian jurisdictions often treat legal scholar analysis as equally or more persuasive than previous case-law.
So this portion:
>New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Isn't accurate. Courts are bound to apply the law, and most law presented in civil codes is far more rigid and mechanical than those found in common law jurisdictions. In the civilian tradition the proper avenue for reform isn't a judge writing a new rule in a ruling. It's a legal reform project at the legislative level, where legislators and legal scholars go over the code, eventually resulting in a new version.
Are there going to be controversial cases that end up getting emergency legislative attention? Sure, but they're the exception, not the rule.
That said, there are over 150 countries that operate broadly under the civil law tradition, so while what I'm saying is accurate about the tradition as a whole, there are many exceptions on a jurisdictional basis.
Cicil law courts are bound to apply the law and certainly don't have the right to rewrite the law in most cases (the german constitutional court for example has the power to undo laws), but they still need to interpret the words of the law and the meaning of those words changes over time. For example the anti discrimination laws would as long as maybe 30 years ago never have encompassed discrimination for LGBTQ* people. The laws have not changes substantially, but the interpretation of those words has definitely changed and as such, rulings that were not possible then are standard now. Very often, rulings do have a law-like quality - even if strictly speaking, they are not laws. From the top of my head I can cite one example from the road laws in germany: There's a thing called "Bicylcle roads" and the legal scripture (Straßenverkehrsordnung) says that cars are required to maintain a "suitable speed." A single influential court decision pegged that to 30km/h about a decade or so ago - which has finally been fed back into the legal text this year.
So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.
So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.
Just a nitpick, but the constitutional court doesn't have the power to rewrite the law either. The only thing it can do is declare a certain law unconstitutional (because legally, the constitution always trumps individual laws) and then the ball is back in the court of the legislative branch which may repeal or amend the law.
The constitutional court can declare laws Or parts of laws as not applicable and can require laws to be made and in specific cases it’s decisions are equivalent to a law (mostly regarding disputes which law applies, state vs. federal law, where certain responsibilities lie and in cases where the constitutional court decides that a law violates the constitution and is immediately declared void.) §31 BVerGG would be the applicable paragraph. There a nice summary in English on the courts own page https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtig...
Edit: added reference to the court page.
Edit: added reference to the court page.
At least in my country the law that is ruled unconstitional loses it's power immediately, unless the constitutonal court itself grants some grace period. The thing is: constitutional court can't by itself decide which laws to start analysing next, there must be some formal complaint by either the President, group of members of parliament, or several other institutions, including IIRC any complaint signed by at least 100k citizens.
Further nit: there isn't a British system, it's English law (which includes the Welsh counties). Scottish/Irish law is different.
https://en.wikipedia.org/wiki/English_law
My understanding is it's more Norman than Angle, but there you go.
https://en.wikipedia.org/wiki/English_law
My understanding is it's more Norman than Angle, but there you go.
To nit a nit: Very broadly, there are five categories of legal systems. Common (as is in most of the US), Civil, Customary, Muslim, and Jewish. Every nation is a unique blend of them, of course.
The wiki article is actually a good dive into how people govern themselves, and the map is really cool too: https://en.wikipedia.org/wiki/List_of_national_legal_systems
The wiki article is actually a good dive into how people govern themselves, and the map is really cool too: https://en.wikipedia.org/wiki/List_of_national_legal_systems
TIL the ocean is under Jewish law
> Civil law is more widespread globally and it operates in a very different manner in respect of the role of the judiciary.
Anyone know of a good English-language explainer for us Common folks. (Preferably a long-form item (book?) that perhaps goes into the history a bit.)
From what I know, the court system ends up being different: I'd be interested to see a procedural television show based on that system (kind of like Law and Order).
Anyone know of a good English-language explainer for us Common folks. (Preferably a long-form item (book?) that perhaps goes into the history a bit.)
From what I know, the court system ends up being different: I'd be interested to see a procedural television show based on that system (kind of like Law and Order).
Tangentially, American shows have had so much influence globally that a lot of average people in civil law countries think that's how it works in their own countries as well, especially since normal people don't really experience criminal court proceedings in real life.
These viewer expectations also make domestic TV show producers also dramatize stories as if the country had the American system with dramatic speeches etc.
These viewer expectations also make domestic TV show producers also dramatize stories as if the country had the American system with dramatic speeches etc.
Open source interpreter, but only wealthy users can submit bug reports. "Bug or feature" is from their perspective.
Oh you can submit them, but they'll probably be closed WONTFIX.
Interpreter bug report = litigation. Expensive, time consuming, personally draining and uncertain. Only the wealthy can even begin. Worse, e.g. insurance companies strategically litigate to establish a line of precedent favourable to their long-term interests.
um, contingency fees change this (in some areas)
um, contingency fees change this (in some areas)
I'd say the trans protections are one in a long-running series of examples of US law being written in a clear-cut way that should have protected a given group from the start, but nonetheless 'obviously' didn't at the time because everyone knew what the lawmakers involved 'really' meant.
This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, and yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'.
This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, and yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'.
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery,
Heh. No. Not only was it, from the start, not “incompatible with slavery”, but it made direct accommodations for it and even explicitly protected the slave trade even against Constitutional amendments for a certain period.
From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
Art. I, Sec. 9, cl. 1: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”
Art. IV, Sec. 2: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Art V: “…no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;…”
> yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'
Every article in the Bill of Rights is a limitation on the federal government, none protects against the states or against private parties, nor does any contradict and thus overrule the direct and indirect protections of slavery (including of the property interests of owners of fugitive slaves) and the slave trade written in the plain text of the original Constitution. People sometimes now, after the 14th Amendment, casually make imprecise reference to the Bill of Rights limiting the states, but it is actually the 14th Amendments limitations on the states that courts have interpreted to apply limitations equivalent to many of those in the Bill of Rights against the States.
Heh. No. Not only was it, from the start, not “incompatible with slavery”, but it made direct accommodations for it and even explicitly protected the slave trade even against Constitutional amendments for a certain period.
From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
Art. I, Sec. 9, cl. 1: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”
Art. IV, Sec. 2: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Art V: “…no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;…”
> yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'
Every article in the Bill of Rights is a limitation on the federal government, none protects against the states or against private parties, nor does any contradict and thus overrule the direct and indirect protections of slavery (including of the property interests of owners of fugitive slaves) and the slave trade written in the plain text of the original Constitution. People sometimes now, after the 14th Amendment, casually make imprecise reference to the Bill of Rights limiting the states, but it is actually the 14th Amendments limitations on the states that courts have interpreted to apply limitations equivalent to many of those in the Bill of Rights against the States.
Even back to the founding of the US slavery was a huge legal and moral problem. It's pretty clear to a disinterested party that the entire system is monstrous and incompatible with the concept of a free society, but at the same time it's a huge industry with enormous political sway. Trying to form the US without slavery means losing half of the states you are trying to pull into the union.
My mom (Republican, lawyer) assured me (trans) that the Court would of course rule that Title VII protects queer and trans people from discrimination, as the plain meaning of the law forbids punishing employees for not conforming to gender stereotypes. She said that the conservative justices, being textualists, would agree.
I laughed it off and thought she was drinking the Kool-Aid, but damned if she didn't read the future. Kavanagh forsook textualism, but Gorsuch wrote for the majority, using exactly the language my mom argued.
I laughed it off and thought she was drinking the Kool-Aid, but damned if she didn't read the future. Kavanagh forsook textualism, but Gorsuch wrote for the majority, using exactly the language my mom argued.
The court has 5 conservatives and only 2 of them agreed.
Textualism is a very weak foundation for a question which is relevant primarily because the issues at hand were not understood well enough to be part of the language when the law was written.
Textualism is a very weak foundation for a question which is relevant primarily because the issues at hand were not understood well enough to be part of the language when the law was written.
Automatic rifles would like to have a word with you.
The constitution as originally written was explicitly in favor of state's being allowed to legalize slavery if they wished.
Tons of aspects, the 3/5 compromise, the electoral college, etc were very intentional pieces of the system to say 'oh don't worry, you as a state will have federal representation even if you don't consider a large portion of your population to really be full people'.
It very plainly allowed for slaves; no reading between the lines necessary.
Tons of aspects, the 3/5 compromise, the electoral college, etc were very intentional pieces of the system to say 'oh don't worry, you as a state will have federal representation even if you don't consider a large portion of your population to really be full people'.
It very plainly allowed for slaves; no reading between the lines necessary.
Wasn't the 3/5 compromise rather a way to curb the power of slave owners? The more slaves they had the more power the votes of the state had.
It was well named as a compromise. One of the possible alternatives was that slaves didn't count at all, not really being full people in the eyes of society. Then the slave owning states wouldn't have had nearly as much federal representation.
There are also some weird examples of things going in the other direction. The 13th Amendment forbids "involuntary servitude" anywhere within the jurisdiction of the United States. There was a Supreme Court case in the early 1900s concluding that this does not apply to conscription. To me, the draft is very clearly a form of involuntary servitude. To the court, the decision amounted to "well obviously the amendment isn't referring to that sort of involuntary servitude".
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery
I think you're thinking back even further than that, actually, to the Declaration of Independence; slavery is probably the topic the Constitution most does not follow that pattern about.
I think you're thinking back even further than that, actually, to the Declaration of Independence; slavery is probably the topic the Constitution most does not follow that pattern about.
The later part of your comment is about case law, but that’s just one way to do it. On the other hand, German law specifies huge amount of detail, leaving less for interpretation. I agree that all laws are just tools for the people, like the language in which they’re written, passed through all of human interpretation. However, there is a level of system design to legal systems, reflecting the different cultures and histories.
And this is the civic code smell that makes things like the treatment of the Bill of Rights such a disgrace. When the case law gets to the point that the statute it is based on can no longer be credibly described as being adhered to, there's a major problem. That goes for many other Amendments enshrining much less controversial rights than the Second which in my opinion is the most aggregious and flagrant semantic violation of all of them. If you can't even honor straightforward simple language to the point where you have an entire caste of humanity who specialize in navigating the morass created by taking carefully crafted and expressive language, and letting someone take whatever they want out of it without question or reconcilation at a later time.
It breeds contempt. Contempt breeds disaffection, disaffection leads to civil breakdown and unrest, unrest leads to... Well you get the picture.
It breeds contempt. Contempt breeds disaffection, disaffection leads to civil breakdown and unrest, unrest leads to... Well you get the picture.
I think that this is the real problem in law- it's based on precedent which is almost like a crutch for poor specification.
For any one case you need to go back to the start of law to find every relevant ruling (delta) to get the full scope of a judgement.
Of course this isn't feasible in the main, so lawyers work off convention, which is implicit knowledge.
How is the layperson supposed to understand the law then? It would be better if (in an ideal world) judges ruled on a case based only on the way the law is written, and then submitted amendments to the law based on a historical and current analysis.
In coding terms we're talking about a snapshot (the law itself) rather than every ruling prior to the current law (deltas).
For any one case you need to go back to the start of law to find every relevant ruling (delta) to get the full scope of a judgement.
Of course this isn't feasible in the main, so lawyers work off convention, which is implicit knowledge.
How is the layperson supposed to understand the law then? It would be better if (in an ideal world) judges ruled on a case based only on the way the law is written, and then submitted amendments to the law based on a historical and current analysis.
In coding terms we're talking about a snapshot (the law itself) rather than every ruling prior to the current law (deltas).
A lay person is not supposed to understand the law.
In Finland, at least, the government strives to keep the criminal code (”Rikoslaki”) simple enough for laypeople to grasp.
It is accepted as a general rule that other parts of the law do require domain expertise.
In Finland, at least, the government strives to keep the criminal code (”Rikoslaki”) simple enough for laypeople to grasp.
It is accepted as a general rule that other parts of the law do require domain expertise.
The question is why are they not supposed to? - if I wanted to fit a boiler in my house, I could use a domain expert or learn myself.
How would a layperson understand if they are breaking the law if they don't understand it (I'm referring to nuances rather than out-and-out obvious transgressions)?
Your second point alludes to this problem - the criminal code has to be kept simple to be understood, I'd suggest the same aspiration for the rest of law. Understandably some of it will get complex, but overly byzantine structures in general can serve to obscure shadier practices, even as simple as job preservation.
As with coding, a certain amount of convention is a useful timesaver, but if you have to spend years learning just a subset of the conventions, then a rewrite seems in order.
I'm not sure what the state of play is with codifying law in some sort of computer-readable DSL, but I suspect it would be more than just slightly useful to do so.
This leaves aside any issues of the general approaches of each countries' law, and what they should entail. I'm just suggesting a possible way to simplify law by being better able to refactor it using advanced tools.
How would a layperson understand if they are breaking the law if they don't understand it (I'm referring to nuances rather than out-and-out obvious transgressions)?
Your second point alludes to this problem - the criminal code has to be kept simple to be understood, I'd suggest the same aspiration for the rest of law. Understandably some of it will get complex, but overly byzantine structures in general can serve to obscure shadier practices, even as simple as job preservation.
As with coding, a certain amount of convention is a useful timesaver, but if you have to spend years learning just a subset of the conventions, then a rewrite seems in order.
I'm not sure what the state of play is with codifying law in some sort of computer-readable DSL, but I suspect it would be more than just slightly useful to do so.
This leaves aside any issues of the general approaches of each countries' law, and what they should entail. I'm just suggesting a possible way to simplify law by being better able to refactor it using advanced tools.
> it's based on precedent which is almost like a crutch for poor specification
It works for software. “Working software over comprehensive documentation ... Responding to change over following a plan ...” https://agilemanifesto.org/
It works for software. “Working software over comprehensive documentation ... Responding to change over following a plan ...” https://agilemanifesto.org/
> I think that this is the real problem in law- it's based on precedent which is almost like a crutch for poor specification.
Only in the British-sourced Common Law system. If you don't like it you could move to a jurisdiction that is Civil-based:
* https://en.wikipedia.org/wiki/Civil_law_(legal_system)
Only in the British-sourced Common Law system. If you don't like it you could move to a jurisdiction that is Civil-based:
* https://en.wikipedia.org/wiki/Civil_law_(legal_system)
Do you think civil law legislative is exactly unambiguous?
> The law is less like source code and more like bytecode with the legal system working as a constantly changing interpreter. Sure, the bytecode gets updated. However, in this case, the interpreter is more often updated than the bytecode.
You just identified the difference between Civil Law and Common Law, in a way that computer scientists can fully grasp it!
You just identified the difference between Civil Law and Common Law, in a way that computer scientists can fully grasp it!
> Laws are the source code of society
They really aren’t. Society doesn’t really have a source code. The concept is not useful to enlighten that phenomenon.
They really aren’t. Society doesn’t really have a source code. The concept is not useful to enlighten that phenomenon.
Laws are the tip of the iceberg. Many other things have a bigger impact on society, such as culture, religion, and family.
The source code analogy falls apart when you consider what would happen if two countries decided to swap laws.
The source code analogy falls apart when you consider what would happen if two countries decided to swap laws.
> In addition most of these people never communicated and there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out.
To me, this makes the law more apt to an analogy of genetics than of software. Laws are the genes of society. They're expressed differently under different circumstances, they're prone to degradation by way of malnutrition, and can create confusing and contradictory messaging pathways.. and when removed from the mechanism of apoptosis, it becomes indistinguishable from a cancer.
To me, this makes the law more apt to an analogy of genetics than of software. Laws are the genes of society. They're expressed differently under different circumstances, they're prone to degradation by way of malnutrition, and can create confusing and contradictory messaging pathways.. and when removed from the mechanism of apoptosis, it becomes indistinguishable from a cancer.
For less legacy cruft, try a code system.
https://en.wikipedia.org/wiki/Civil_code
https://en.wikipedia.org/wiki/Civil_code
Civil law has its own case law too, just in a different form. A fully-codified civil law where legislative and judiciary are one and the same might eliminate that kind of cruft, like the old Turkic two-power system. But that would not work in the current society.
Or a mandatory sunset clause on all laws, say 10 years.
You can not compile a society's laws and get a full description of how that society functions and what it will collectively do in any given situation. Much more goes into that than just legislation.
Test cases. Most of the court works on previous verdicts, which is analogous to test cases.
This is actually not true for the majority of the world's legal systems.
Previous verdicts are something that matters for a _Common_ Law legal system, which is only a small part of the world's legal systems. (See the pink countries in the world map referenced [0])
The majority of the world's countries follow a _Civil_ Law system, where verdicts are based on the court's judgement against the written law, civil law is a sort of descendent of the Roman law system.
[0] https://en.wikipedia.org/wiki/Common_law#/media/File:Map_of_...
Previous verdicts are something that matters for a _Common_ Law legal system, which is only a small part of the world's legal systems. (See the pink countries in the world map referenced [0])
The majority of the world's countries follow a _Civil_ Law system, where verdicts are based on the court's judgement against the written law, civil law is a sort of descendent of the Roman law system.
[0] https://en.wikipedia.org/wiki/Common_law#/media/File:Map_of_...
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And as any large software project eventually collapses on its own weight of complexity, so do societies when their tax and law codes become too complicated for citizens to comprehend and only clerks, priests and lawyers can be hired to help them navigate the code of the organization.
Complexity slowly kills organizations and whole civilizations. If there ever is a silver bullet, it would be aggressive pursuit of simplicity of systems.
Complexity slowly kills organizations and whole civilizations. If there ever is a silver bullet, it would be aggressive pursuit of simplicity of systems.
"Aggressive pursuit of simplicity of systems" is part of that whole Enlightenment slide Napoleon had in his pitch deck.
I think most of the parts of the former empire kept many of the simplifications, even if they weren't too fond of the aggressive pursuit part.
(The swedes kept yet more: they still have Bernadottes.)
Bonus track: https://www.youtube.com/watch?v=Sj_9CiNkkn4
I think most of the parts of the former empire kept many of the simplifications, even if they weren't too fond of the aggressive pursuit part.
(The swedes kept yet more: they still have Bernadottes.)
Bonus track: https://www.youtube.com/watch?v=Sj_9CiNkkn4
I'd argue that the complexity of the laws is a tree. It looks enormous, but it's about splitting the hairs finer and finer on edge cases. Simple laws are just laws that are less completely specified.
So the real complexity only grows at a log factor with the total size of the law.
So the real complexity only grows at a log factor with the total size of the law.
I think you might be right, but do we have any examples of this happening to a real legal system yet?
Civics, Morality, Humanity, Spirituality are the 'foundations' of society.
Laws are just a rough, codified implementation of those.
It's an odd misconception that we believe laws govern society, they're mostly just there around the edges.
If the 'laws against murder' were really the only thing keeping us from murdering, we'd have all been dead long ago.
Making something 'illegal' doesn't necessarily change civil society a whole lot. What 'changes' us are our beliefs and ultimately behaviours.
Laws are just a rough, codified implementation of those.
It's an odd misconception that we believe laws govern society, they're mostly just there around the edges.
If the 'laws against murder' were really the only thing keeping us from murdering, we'd have all been dead long ago.
Making something 'illegal' doesn't necessarily change civil society a whole lot. What 'changes' us are our beliefs and ultimately behaviours.
They are not the source code of society, they are the source code of the system. Big difference.
Without any laws, you would probably have a very equitable situation, based on 'treating others as you would like to treat others'. Its very simple. It is possible to conceive of a (better) society existing. How we could get to that from where we are now, where most people are incapable of managing themselves, and instead demand to be managed by system, is a different question.
If, on the other hand, you want to enforce your advantage over others, to make them do things that they do not want to do, you need a system.
Without any laws, you would probably have a very equitable situation, based on 'treating others as you would like to treat others'. Its very simple. It is possible to conceive of a (better) society existing. How we could get to that from where we are now, where most people are incapable of managing themselves, and instead demand to be managed by system, is a different question.
If, on the other hand, you want to enforce your advantage over others, to make them do things that they do not want to do, you need a system.
Pretty much the entirety of human history stands in contradiction to the idea that if we were each left alone to make up our own rules we would all just be nice to each other, even if you go back to Rousseau’s state of nature [1].
You say I need a system to enforce an advantage over you but, without it, all I need is force of arms.
1. https://en.m.wikipedia.org/wiki/Prehistoric_warfare
You say I need a system to enforce an advantage over you but, without it, all I need is force of arms.
1. https://en.m.wikipedia.org/wiki/Prehistoric_warfare
But then, history is written by the victors. The system would certainly write a history that appears supportive of its own necessity. History is an 'interpretive' act. It is does not accurately relay the truth.
You have absolutely no idea about what transpired in the past, except what you have been taught. And you were taught within the system. Perhaps you should watch 'The Village' :)
You have absolutely no idea about what transpired in the past, except what you have been taught. And you were taught within the system. Perhaps you should watch 'The Village' :)
Most of the human history was illiterate, hungry, supersticious, and suffering from tapeworms.
You can't project ancient barbarians onto modern people as any kind of proof.
There is a great book, called "better angels of our nature".
You can't project ancient barbarians onto modern people as any kind of proof.
There is a great book, called "better angels of our nature".
I meant: 'treat others as you would like to be treated yourself'!
> there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out.
Nonsense. Go and learn about things known as law commissions, and the work that they've been doing for a long time, now. The Law Commission of India, for example, has existed since the middle 19th century, and is currently in its 21st incarnation since 1955. Go and look at the several Statute Law (Repeals) Acts that have been enacted in the U.K. from the 1960s onwards. Law reform commissioners were appointed ad hoc for a century before formal standing commissions, moreover. In Australia and Canada, for instance, they were appointed by Letters Patent at least as far back as the 1870s. (One example: Adam Wilson QC, appointed in Ontario in October 1871.)
If you project software engineering onto how law works, you are going to get twaddle.
Nonsense. Go and learn about things known as law commissions, and the work that they've been doing for a long time, now. The Law Commission of India, for example, has existed since the middle 19th century, and is currently in its 21st incarnation since 1955. Go and look at the several Statute Law (Repeals) Acts that have been enacted in the U.K. from the 1960s onwards. Law reform commissioners were appointed ad hoc for a century before formal standing commissions, moreover. In Australia and Canada, for instance, they were appointed by Letters Patent at least as far back as the 1870s. (One example: Adam Wilson QC, appointed in Ontario in October 1871.)
If you project software engineering onto how law works, you are going to get twaddle.
Texas ‘borrowed’ a large chunk of its municipal water district code from New York - there are still references in the TX code stating that certain issues can only be resolved in Albany.
> After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision.
How delightfully unsatisfactory but a neat way to resolve it. If these things did get into history books, a consensus likely would have been reached in the collective minds by then.
How delightfully unsatisfactory but a neat way to resolve it. If these things did get into history books, a consensus likely would have been reached in the collective minds by then.
That technique still exists today. When justices reserve judgment you find there is no mechanism to require they pass judgement.
The long grass is sometimes useful.
The long grass is sometimes useful.
"After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision."
I'm not a lawyer, but I guess a committee (don't ask me who or how many) should evaluate the 'justifiability' of a crime:
Let's suppose:
- random kill, no reason at all, psycopathy: 20 years in jail
- justified kill: 5 to 20 years in jail
I remember the dad that killed the Karate's instructor of his son, who was raping him during 'classes'. The dad killed the guy. For many people, it was a kill and he should be in jail. However, put yourself in his shoes, wouldn't you do the same (or near the same)?
In this case, you couldn't say: "oh, that's ok, just go home, we'll sort things out", because a crime was committed.
Maybe, and I'm being extremely naïve here, maybe, that could act as a deterrent when people are thinking on committing unjustified violence against others.
Again, I don't know nothing, I'm no lawyer.
- random kill, no reason at all, psycopathy: 20 years in jail
- justified kill: 5 to 20 years in jail
I remember the dad that killed the Karate's instructor of his son, who was raping him during 'classes'. The dad killed the guy. For many people, it was a kill and he should be in jail. However, put yourself in his shoes, wouldn't you do the same (or near the same)?
In this case, you couldn't say: "oh, that's ok, just go home, we'll sort things out", because a crime was committed.
Maybe, and I'm being extremely naïve here, maybe, that could act as a deterrent when people are thinking on committing unjustified violence against others.
Again, I don't know nothing, I'm no lawyer.
> For many people, it was a kill and he should be in jail.
For who not? I get that you might get angry and do something regretful like beat them up, but the justice system is there for a reason. If you start killing whomever you feel justified to kill... You say "many", perhaps because you're in favor of capital punishment carried out by the assumed victim before any trial, but I sincerely hope that you're wrong or the countries we've been building for thousands of years are doomed.
For who not? I get that you might get angry and do something regretful like beat them up, but the justice system is there for a reason. If you start killing whomever you feel justified to kill... You say "many", perhaps because you're in favor of capital punishment carried out by the assumed victim before any trial, but I sincerely hope that you're wrong or the countries we've been building for thousands of years are doomed.
That's how it works in general unless there is a prescribed compulsory penalty.
Usually (or often) the job of the court/jury is not only to decide on guilty/innocent but, in case of a guilty verdict, to decide on the level of culpability and appropriate penalty (within what's prescribed in law).
Usually (or often) the job of the court/jury is not only to decide on guilty/innocent but, in case of a guilty verdict, to decide on the level of culpability and appropriate penalty (within what's prescribed in law).
This might well vary between countries, but passing sentence is typically the role of the judge or magistrate, and separate from determining guilt, which may be determined be a jury or lower court.
e.g. in the UK & other common law states once a defendant is found guilty a judge or magistrate will determine sentence and consider these factors, among others.
Depending on the severity of the crime, the sentencing may also be referred by a magistrate to a higher court able to impose a more severe penalty.
(see https://www.judiciary.uk/you-and-the-judiciary/sentencing/ for a good example)
e.g. in the UK & other common law states once a defendant is found guilty a judge or magistrate will determine sentence and consider these factors, among others.
Depending on the severity of the crime, the sentencing may also be referred by a magistrate to a higher court able to impose a more severe penalty.
(see https://www.judiciary.uk/you-and-the-judiciary/sentencing/ for a good example)
In NSW that example would fall under voluntary manslaughter (murder (s18 Crimes Act) plus a defence of extreme provocation s23) which carries up to 25 years of jail (like all manslaughters s24). In the state of Victoria this defence was removed entirely whilst NSW amended the section for the extreme provocation offence where one of the elements is that the conduct must be a serious indictable offence (i.e. an offence that carries 5 or more years). This amendment was largely because there had been instances of non-violent homosexual advances that had resulted in murder and the defence being applicable.
This reminds me of the eerie feeling of despair I get when thinking about Godel incompleteness. Any axiomatic, logical system will have true statements that cannot be proven. This implies that even a perfect system of laws would carry out injustice, whether they are false, or failed convictions.
That’s not what it means. It means there will be things not covered by law, which is probably fine. There is no need for law to be all covering. I posit that the set of things that is desireable for law coverage is finite.
Not quite, if a ‘truth’ is defined as some ‘justice’ then there could be an unprovable ‘justice’ that should be carried out, we just can’t reason our way there.
(again disagreements like this are usually because of a disagreement of terms)
(again disagreements like this are usually because of a disagreement of terms)
Sure, my claim is exactly that there are infinitely more propositions that are not about justice. My claim is that justice concerns a finite set of propositions that can be enumerated (as in, murdering someone involves propositions related to justice, making decision about whether to take a deep breath right now does not involve propositions related to justice).
I think it raises a really interesting question. Since our legal system is based on rationalism and the scientific process, and we know that an axiomatic, logical system cannot completely describe all truths within its domain, then how can we hope to provide a fair judicial process, or to make sure that our collection of laws actually disambiguates rules in concordance with their supposed ethical justifications?
Our laws are not so rigorous a system that we need to be worried about how to handle determining whether or not a computer program halts for the purpose of enforcing a law against writing programs that don't halt. Enforcement frequently differs based on whether laws are even remembered, and the last time the US federal government attempted just to count the number of laws they failed and gave up. Remember, the incompleteness theorem says that a consistent system can't prove its own consistency. Amidst the mess and imprecision of any legal system there's no chance that consistency is preserved anyway.
Yep, you are right that the way our laws are enforced is irrational and renders many of these concerns moot in practice.
But ethics is an ill defined social construct. It might also apply to a finite set of circumstances.
Going back to concrete laws, there vast swaths of human effort not covered by law. For example, there is no law either guaranteeing my right to or forbidding me from thinking certain thoughts. You can say that’s a gap in the legal system, but I think that’s outside our legal system. Similarly, you can (fairly trivially) construct other situations that are not covered (I don’t think there is a law about flipping pages when reading books). Goedel’s theorem says that you can never create an axiomatic system where every proposition can be rewritten as true or false, and therefore you can’t create laws that cover literally every situation in life, but vast majority of things do not need to be covered.
For example, a system that has as its only law “you must give XXX money to the taxman on April 15 in such a way that a jury of 12 of your peers selected at random believes this has occurred” will not suffer from any coverage issues (at most you need to define some terms). This is because it is a finite rule that covers a finite set of situations.
Going back to concrete laws, there vast swaths of human effort not covered by law. For example, there is no law either guaranteeing my right to or forbidding me from thinking certain thoughts. You can say that’s a gap in the legal system, but I think that’s outside our legal system. Similarly, you can (fairly trivially) construct other situations that are not covered (I don’t think there is a law about flipping pages when reading books). Goedel’s theorem says that you can never create an axiomatic system where every proposition can be rewritten as true or false, and therefore you can’t create laws that cover literally every situation in life, but vast majority of things do not need to be covered.
For example, a system that has as its only law “you must give XXX money to the taxman on April 15 in such a way that a jury of 12 of your peers selected at random believes this has occurred” will not suffer from any coverage issues (at most you need to define some terms). This is because it is a finite rule that covers a finite set of situations.
Well the technical qualification for that theorem is that Law has to be able to express Peano Arithmetic.
I'd love to discuss with others here something related.
I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks.
After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time.
And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences.
(Hence the connection to this OP's story + comments about law as source code.)
This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example:
If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do.
Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking.
https://www.youtube.com/watch?v=Ggz_gd--UO0
https://www.youtube.com/watch?v=TRS-jdgHok4
https://www.youtube.com/watch?v=fkChru9L3xA&t=4s (skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government)
https://www.youtube.com/watch?v=aXSGDXbc9ZA (very entertaining)
And besides all that, what a personality and entertaining figure, and powerhouse of knowledge. I wish I had appreciated more of this thinking earlier.
I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks.
After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time.
And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences.
(Hence the connection to this OP's story + comments about law as source code.)
This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example:
If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do.
Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking.
https://www.youtube.com/watch?v=Ggz_gd--UO0
https://www.youtube.com/watch?v=TRS-jdgHok4
https://www.youtube.com/watch?v=fkChru9L3xA&t=4s (skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government)
https://www.youtube.com/watch?v=aXSGDXbc9ZA (very entertaining)
And besides all that, what a personality and entertaining figure, and powerhouse of knowledge. I wish I had appreciated more of this thinking earlier.
When someone is an intelligent, disciplined person - as someone who becomes a Supreme Court Justice certainly is - you can assume their deeply held opinions are very carefully reasoned. Originalism / textualism for interpreting the Constitution is much more straightforward than letting judges make up new laws.
One of the beauties of having an unwritten constitution and instead an approach that vests the constitution in a Parliament, as we do here in the UK, is that nothing ever ossifies.
The constitution is a living breathing thing that evolves as the Parliament evolves. Of course that conversation has been particularly intense over the last few months as the UK removes itself from the EU. But it is working - if a little messy.
Which shows that an Anglo-Saxon oral constitution still works has it has done for a thousand years.
The constitution is a living breathing thing that evolves as the Parliament evolves. Of course that conversation has been particularly intense over the last few months as the UK removes itself from the EU. But it is working - if a little messy.
Which shows that an Anglo-Saxon oral constitution still works has it has done for a thousand years.
My theory on the Brexit trouble as a Canadian is that David Cameron screwed up this system by trying to emulate other systems: he made fixed elections dates and used a referendum.
Both broke parliamentary tradition. Normally, if a govt loses on a matter of confidence, there would be an election. Instead Teresa May’s zombie govt lost and lost and lost and still kept going.
Meanwhile the parliament was beholden to a referendum result, which has no precedent in British tradition.
Further, it was nonsensical to hold a referendum to do something you do not want to do. Normally the way referenda are used elsewhere is to test popular support for a policy the govt actually wants to do.
Both broke parliamentary tradition. Normally, if a govt loses on a matter of confidence, there would be an election. Instead Teresa May’s zombie govt lost and lost and lost and still kept going.
Meanwhile the parliament was beholden to a referendum result, which has no precedent in British tradition.
Further, it was nonsensical to hold a referendum to do something you do not want to do. Normally the way referenda are used elsewhere is to test popular support for a policy the govt actually wants to do.
Unfortunately as the current situation w.r.t the Good Friday and Withdrawal Agreements highlights, this is still limited by the respect of parties for the rule of law, domestic or otherwise. Our Attorney General & govt. should know better their acts suggest otherwise.
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What an excellent first video. I encourage everyone to watch it. Just 7 minutes: https://www.youtube.com/watch?v=Ggz_gd--UO0
I used to be a great admirer of the US constitutional arrangements (even though I'm not an US citizen and I've never been to the States), in fact I have a paperback edition of the "Federalist Papers" on the bookshelves that sit just behind me as I'm writing this comment, but lately I've come to see things in a very different manner.
More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with, and I've also come to realise that one of main reasons for its "PR success" during the last two centuries was the fact that the US as a country got to be economically (and then militarily) successful. It is a perfect example of "might makes right" (in this case economic might). As a (failed) counter-example the legal system of Haiti from the late 1790s-early 1800s was a lot more "illuministic" and "human friendly" but because Haiti failed economically (and then politically) as a state all that didn't matter in the end.
More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with, and I've also come to realise that one of main reasons for its "PR success" during the last two centuries was the fact that the US as a country got to be economically (and then militarily) successful. It is a perfect example of "might makes right" (in this case economic might). As a (failed) counter-example the legal system of Haiti from the late 1790s-early 1800s was a lot more "illuministic" and "human friendly" but because Haiti failed economically (and then politically) as a state all that didn't matter in the end.
Well, I sympathize with that sentiment, and it's a valid criticism that such a system tolerated an evil for so long.
However, slavery was a much greater evil than just one country or one actor, and it ran large parts of society and was accepted or overlooked by many people across many countries for a long period. How is a system to deal with something that many, many people are ok with at the time but some people recognize is not fair / immoral?
What should a government system be set up to do to check / repudiate that? Something that many people are willing (mistakenly) to accept as normal? And, did our system do the best that could have been done (and compared to others) to fix it? And what does that system mean for other, but different, problems that may come along?
No one said it was perfect, and certainly no system has handled every issue perfectly, far from it.
The question is what should you set up as the general system that can operate and handle problems with long-run good outcomes. If a society had rapidly course corrected and fixed that problem, what would it mean for future things it rapidly course corrected and also fixed? Maybe not in a way that was good?
I may dare ask, how did your country fare by that measure? Did it tolerate slavery, and for how long? Did it accept or deal in the profits of slavery or other exploitation, or overlook it? Does it do so now, for other issues?
We're just talking in political theory, right? Sitting on our ends of the internet, theorizing. Let's talk about it. What system is better?
However, slavery was a much greater evil than just one country or one actor, and it ran large parts of society and was accepted or overlooked by many people across many countries for a long period. How is a system to deal with something that many, many people are ok with at the time but some people recognize is not fair / immoral?
What should a government system be set up to do to check / repudiate that? Something that many people are willing (mistakenly) to accept as normal? And, did our system do the best that could have been done (and compared to others) to fix it? And what does that system mean for other, but different, problems that may come along?
No one said it was perfect, and certainly no system has handled every issue perfectly, far from it.
The question is what should you set up as the general system that can operate and handle problems with long-run good outcomes. If a society had rapidly course corrected and fixed that problem, what would it mean for future things it rapidly course corrected and also fixed? Maybe not in a way that was good?
I may dare ask, how did your country fare by that measure? Did it tolerate slavery, and for how long? Did it accept or deal in the profits of slavery or other exploitation, or overlook it? Does it do so now, for other issues?
We're just talking in political theory, right? Sitting on our ends of the internet, theorizing. Let's talk about it. What system is better?
> More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with
The alternative would have been forming the United States without the southern states, because they would never have agreed to join. Then the Americas would presumably have been too weak to win the War of 1812.
The alternative would have been forming the United States without the southern states, because they would never have agreed to join. Then the Americas would presumably have been too weak to win the War of 1812.
To be fair, the british had plenty of other things on their plate in 1812 (consider Tchaikovsky).
https://en.wikipedia.org/wiki/Treaty_of_Ghent#Background
https://en.wikipedia.org/wiki/Treaty_of_Ghent#Background
>More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with, and I've also come to realise that one of main reasons for its "PR success" during the last two centuries was the fact that the US as a country got to be economically (and then militarily) successful.
Constitutional modifications can be painfully slow for those on the receiving end of injustice, but I’m not sure what the alternative is or if it is better. Would a living constitutional philosophy or activist judiciary ended the practice earlier?
Constitutional modifications can be painfully slow for those on the receiving end of injustice, but I’m not sure what the alternative is or if it is better. Would a living constitutional philosophy or activist judiciary ended the practice earlier?
A horrible system with tens of thousands of years of inertia might be expected to take some time to stop.
It’s interesting to contemplate that there are more slaves today in the world than at any time. Why is that true?
https://www.nydailynews.com/news/world/slaves-time-human-his...
It’s interesting to contemplate that there are more slaves today in the world than at any time. Why is that true?
https://www.nydailynews.com/news/world/slaves-time-human-his...
As high-minded as that sounds, I do not elevate that narrow and arbitrary ideal above the lived experience of the people.
Say what you want about judicial activism, or whatever you want to call it, labels aren't important. I'd rather the risk of destabilization than perpetually reaffirming all the injustices and shortcomings we carry with us.
You may say the judiciary has no role in that process, but I say no other ideal is as important as human/animal lived experience. And judicial conservatism is antithetical to that ideal when the base is unfair, in whole or in part.
Obviously many rights should he conserved, but if I have to choose, I think conservatism beyond those key rights only serves the already priveleged, and limits what is possible (obviously, that's the whole point).
Say what you want about judicial activism, or whatever you want to call it, labels aren't important. I'd rather the risk of destabilization than perpetually reaffirming all the injustices and shortcomings we carry with us.
You may say the judiciary has no role in that process, but I say no other ideal is as important as human/animal lived experience. And judicial conservatism is antithetical to that ideal when the base is unfair, in whole or in part.
Obviously many rights should he conserved, but if I have to choose, I think conservatism beyond those key rights only serves the already priveleged, and limits what is possible (obviously, that's the whole point).
Well, I guess that's a difference in philosophy then. I find myself agreeing with him that sometimes, people can be quite wrong and bad, and that's in fact a greater danger than the benefit of people being right and good.
And protecting society from going down the wrong path -- which often leads it towards permanent irrecoverable damage -- is as important, if not more important, than enabling people be able to so quickly fix something that temporarily solves it, but sets up the society for greater disorder in the long run.
Perhaps judges could have fixed injustices faster. Or different styles of democracy could have. But they could also cause injustices faster too.
Take a different example. People are in some no small measure in approval today that abortion should be legal, when it involves (in some other people's opinion) the killing of human beings. (Just to avoid any controversy /s)
How would you handle that one? Is that to be given the same process as what you just proposed to cure that injustice?
You see the point about having a system that does well across many issues, not just one, right?
And protecting society from going down the wrong path -- which often leads it towards permanent irrecoverable damage -- is as important, if not more important, than enabling people be able to so quickly fix something that temporarily solves it, but sets up the society for greater disorder in the long run.
Perhaps judges could have fixed injustices faster. Or different styles of democracy could have. But they could also cause injustices faster too.
Take a different example. People are in some no small measure in approval today that abortion should be legal, when it involves (in some other people's opinion) the killing of human beings. (Just to avoid any controversy /s)
How would you handle that one? Is that to be given the same process as what you just proposed to cure that injustice?
You see the point about having a system that does well across many issues, not just one, right?
This absolutism is what causes more harm, because people fail to appreciate any progress when things haven’t gotten 100% of the way there.
The reason it causes harm, is because it discourages people from going after real incremental steps, because they see the mountain that is in front of them.
E.g. there are currently more slaves in the world than at any time in human history. With that mentality, we could have said, ‘oh, we can’t stop all the slavery in the world, so it’s not worth ending it here’
The reason it causes harm, is because it discourages people from going after real incremental steps, because they see the mountain that is in front of them.
E.g. there are currently more slaves in the world than at any time in human history. With that mentality, we could have said, ‘oh, we can’t stop all the slavery in the world, so it’s not worth ending it here’
> At least if you believe his talks.
That's a bigger ask than you might at first think. Scalia is noted for his concurrence in Raich (https://en.wikipedia.org/wiki/Gonzales_v._Raich) in favour of federal marijuana prohibition despite its apparent incompatibility with the interstate commerce clause.
> I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process.
That view can itself be radical. McCullough v Maryland (https://en.wikipedia.org/wiki/McCulloch_v._Maryland) was decided in 1819 -- well within living memory of the constitution's drafting -- and cemented an expansive understanding of federal powers that was arguably at odds with a strict textualist interpretation of the constitution. Adopting a strictly textualist argument today that would refute centuries of legal tradition is just as significant of a change as the constitutional amendments called for by Scalia-style arguments.
(As a practical matter, also look at the pressure points of change in the US system: it takes double supermajorities to enact a constitutional amendment, but only majority control over a sufficient period of time to appoint the Supreme Court. The latter is by far the path of least resistance.)
On the other hand, you can punt this problem even further back: the United States has no codified set of principles for statutory or (especially) constitutional interpretation.
> And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress
Note that they didn't do this. The constitutional order envisaged in the 1780s broke down with the US Civil War. If you treat the US as having a single continuous political and legal tradition (a reasonable point of view), then that tradition has both its successes and failures.
> Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
Politicization of the judiciary is unfortunately a historical default. Keeping the process apolitical requires a broad, cross-partisan consensus towards either a particular model of neutral judiciary or towards appointment processes (not seen in the US) that remove judicial selection from direct political interference.
Mind you, those of radical political ideologies will point out that an "apolitical" judiciary is still political -- just one that reinforces the status quo and all injustices that entails.
That's a bigger ask than you might at first think. Scalia is noted for his concurrence in Raich (https://en.wikipedia.org/wiki/Gonzales_v._Raich) in favour of federal marijuana prohibition despite its apparent incompatibility with the interstate commerce clause.
> I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process.
That view can itself be radical. McCullough v Maryland (https://en.wikipedia.org/wiki/McCulloch_v._Maryland) was decided in 1819 -- well within living memory of the constitution's drafting -- and cemented an expansive understanding of federal powers that was arguably at odds with a strict textualist interpretation of the constitution. Adopting a strictly textualist argument today that would refute centuries of legal tradition is just as significant of a change as the constitutional amendments called for by Scalia-style arguments.
(As a practical matter, also look at the pressure points of change in the US system: it takes double supermajorities to enact a constitutional amendment, but only majority control over a sufficient period of time to appoint the Supreme Court. The latter is by far the path of least resistance.)
On the other hand, you can punt this problem even further back: the United States has no codified set of principles for statutory or (especially) constitutional interpretation.
> And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress
Note that they didn't do this. The constitutional order envisaged in the 1780s broke down with the US Civil War. If you treat the US as having a single continuous political and legal tradition (a reasonable point of view), then that tradition has both its successes and failures.
> Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
Politicization of the judiciary is unfortunately a historical default. Keeping the process apolitical requires a broad, cross-partisan consensus towards either a particular model of neutral judiciary or towards appointment processes (not seen in the US) that remove judicial selection from direct political interference.
Mind you, those of radical political ideologies will point out that an "apolitical" judiciary is still political -- just one that reinforces the status quo and all injustices that entails.
I’m not American so I have no right to having a dog in this fight, but I’ll say this: on either side of a constitutional debate, there is an endless litany of making caricatures of sophisticated people & their (in this case, informed & binding) opinions. You don’t ascend to the highest bench in the land by being a dork.
Even Scalia talks about how hard is to amend the constitution. He wished that amendment process would have been easy. Right now, any amendment requires approval from 2/3 of both Congress and Senate, and ratification from 38 states. It is really hard to make any amendments in the current scenario for two reasons: 50 states (14 states in 1791) and politicians being defenders of the special interests.
If the amendment process were easy, judiciary wouldn't have become political.
If the amendment process were easy, judiciary wouldn't have become political.
I believe the prescribed punishment for parricide was not the bizarre menagerie suggested by the author but simply a cat, a cock, and the convicted. And the purpose of the animals Was no mystery: in their panic at confinement and then inundation they would flail about with their claws or spurs shredding the murderer and making the punishment more agonizing.
>Therefore, if he punished a woman who had acted, in the depths of her grief for her children, to justly avenge their murder, then he would be passing judgment on all such killings and suggesting that vengeance killings were criminal.
Roman law was the precursor to civil law, so I wouldn't think a Roman judge's rulings would create precedent like it would in common law systems.
Roman law was the precursor to civil law, so I wouldn't think a Roman judge's rulings would create precedent like it would in common law systems.
Roman Law is also the origin of the concept of the binding precedent: it is known as stare decisis (“remaining resolved”).
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For those interested in different legal systems and how they operate, I really enjoyed "Legal Systems Very Different from Ours" (https://amzn.to/35r1ooP)
Here's a draft version published online: http://www.daviddfriedman.com/Academic/Course_Pages/legal_sy...
Here's a draft version published online: http://www.daviddfriedman.com/Academic/Course_Pages/legal_sy...
>For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere.
This is absolutely beautiful.
This is absolutely beautiful.
But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime.
What does the author want us to draw from this conclusion?