Contradictions in Roman law left incurable headaches for its judges
historytoday.com
historytoday.com
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.
The law is a fundamentally human executable. Code is fundamentally computer executable.
I may be missing a joke.
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 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.
Without this clause there would essentially be no restriction on Congress’s ability to establish monopolies.
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.)
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...
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.
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'.
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.
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.
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.
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.
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.
It breeds contempt. Contempt breeds disaffection, disaffection leads to civil breakdown and unrest, unrest leads to... Well you get the picture.
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.
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.
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.
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...
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.
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
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 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.
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.
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.
Edit: added reference to the court page.
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).
These viewer expectations also make domestic TV show producers also dramatize stories as if the country had the American system with dramatic speeches etc.
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
https://en.wikipedia.org/wiki/English_law
My understanding is it's more Norman than Angle, but there you go.
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).
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.
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.
Only in the British-sourced Common Law system. If you don't like it you could move to a jurisdiction that is Civil-based:
It works for software. “Working software over comprehensive documentation ... Responding to change over following a plan ...” https://agilemanifesto.org/
You just identified the difference between Civil Law and Common Law, in a way that computer scientists can fully grasp it!
um, contingency fees change this (in some areas)
They really aren’t. Society doesn’t really have a source code. The concept is not useful to enlighten that phenomenon.
The source code analogy falls apart when you consider what would happen if two countries decided to swap laws.
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.
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_...
Complexity slowly kills organizations and whole civilizations. If there ever is a silver bullet, it would be aggressive pursuit of simplicity of systems.
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
So the real complexity only grows at a log factor with the total size of the law.
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.
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.
You say I need a system to enforce an advantage over you but, without it, all I need is force of arms.
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 can't project ancient barbarians onto modern people as any kind of proof.
There is a great book, called "better angels of our nature".
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.
you just described technical debt
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?
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.
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.
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).
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.
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.
When you don't have the constraint of making good decisions, or popular decisions, you can make decisions very efficiently!
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.
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).
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.
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.
That their book expanding on the topic is worth reading.
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.
Edit: spelling.
But it, and the Bible, are irrelevant to Roman law, which is what's being discussed here.
I acknowledge that requires examples and citations and at one point I knew where to pull them up offhand.
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.
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.
The long grass is sometimes useful.
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.
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.
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.
Yes, but it's a bit scary at the moment.
I'm scared shitless right now tho
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.
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.
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?
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.
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?
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...
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).
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?
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’
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.
If the amendment process were easy, judiciary wouldn't have become political.
- 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 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.
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)
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).
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.
(again disagreements like this are usually because of a disagreement of terms)
Here's a draft version published online: http://www.daviddfriedman.com/Academic/Course_Pages/legal_sy...
This is absolutely beautiful.