My personal "fun idea" is that laws should have two parts, an "intent" part and an "implementation" part and if a court decides at some future time that the law fails to accomplish the intent it should be struck down.
When the lawmakers and judicial interpreters are good at their jobs this works great. Good lawmakers draft good laws that are clear in their intent. Good courts make good decisions by applying reasonable interpretations of the law.
Bad lawmakers fail to make their intent clear. Bad lawyers take advantage of vague laws to argue for unreasonable intent. Bad judges let these bad arguments fly.
How does encapsulating the "intent" into its own section of the law fix the problem? Bad lawmakers will still write vague intent sections as well as poorly defined implementations. Bad lawyers will abuse the vague intent sections to argue for exceptions and novel interpretations of the implementation section. Bad judges will let this fly and warp the system further through bad precedent.
As with code, adding more words rarely makes it clearer. In fact it usually introduces more discrepancies.
Good lawyers and good judges allow bad laws to be taken advantage of. If the law says it, it should be allowed (for leniency to the accused) or the law should be invalidated due to a lack of strict construction.
A mom hears a loud noise coming from her kid's room and she goes up to find her kid is jumping on the bed and the mom comes in and says "Stop jumping on your bed!", so he does. Five minutes later, she hears the same noise, and comes in and the kid is jumping on the bed again, and tells the kid "I told you to stop jumping on your bed!" and the kid says "I'm not jumping, I'm hopping!" and starts to argue about the difference between jumping and hopping, and mom says "Just stop hopping on your bed!" and goes back to the living room.
Almost immediately, she hears it again, this time the kid is sitting, but bouncing up and down, declaring that he's not jumping or hopping, but bouncing. Again, the mom tells him to stop it.
A few minutes later, she hears jumping again, only this time, it's on HER bed. Finally, the mom says "Do not jump, hop, bounce, spring, leap, or otherwise propel yourself upwards from any bed, couch, chair, or any other furniture."
--
I disagree entirely with your opinion.
It is often that intent is crystal clear, but a lawyer is able to weasel their way into convincing a jury that there's a slight ambiguity in the law.
The problem of course, is that then lawmakers have to write incredibly verbose and difficult to understand legalese in order to ensure there are no loopholes. Of course, in the spelling out of the law, it's easy to accidentally create a loophole.
A rule that states "No jumping on the bed" is clear of intent. Mom shouldn't have to include many near-synonyms of "jumping" and specify that it means ALL beds.
This isn't true. Matters of law and how to interpret the law are determined by the judge and provided in the jury instructions.
"A rule that states "No jumping on the bed" is clear of intent. Mom shouldn't have to include many near-synonyms of "jumping" and specify that it means ALL beds."
This example isn't anything like what I'm talking about.
> The recitals are legally non-binding. However, the recitals can be relevant. Courts often use the recitals to interpret a particular – legally binding – provision of EU legislation, especially if multiple interpretations of a certain provision are possible.
From https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislat...
It is unfortunate that our representatives are as such, that they don't strive for clarity, but I understand. To me, the lack of clarity is an "invalid state" that has no place in the rulebook.
> if a court decides at some future time that the law fails to accomplish the intent it should be struck down.
This would be very welcome, but it should require repeated testings in fibonacci years, not merely once. This means at 1, 2, 3, 5, ... years after the law was passed or updated.
Seems to me that a vague law is simply an invalid law. The rule of law requires the clear knowledge of what exactly is illegal, if that isn't clear then its simply a prospective law that doesn't meet the basic requires to be law.
What is reasonable cause for police officer to search someone? Mind you: This single point alone has hundreds of interpretations around the world, across all cultures. Within a single country / culture, there could be many interpretations.
the legislature was responsible for establishing intent, and the executive was responsible for implementation, and the judiciary branch was responsible for resolving disputes.
but the supreme court ruled that the legislative intent has been too vague, and the executive has been too whimsical with implementation. so the legislature must be more specific, or leave it to the judiciary to establish details.
The intent / implementation discussion comes up when considering statutes like this:
In order to maintain our beautiful forests and meadows, the city of Little Island hereby declares these acts governing the pollution of water: ...<enumeration of acts>...
Now many years pass and all the forests are cut down and the meadows are gravel lots, buildings, &c. Is the statute no longer operative? Generally, the way laws are interpreted, the courts would say it is still operative. The alternative would make the interpretation of law quite inconsistent, because it means we are asking courts to judge many things that are not really matters of law.
The prevalence of extreme propaganda on this site is getting really tiresome.
It is an objective, inarguable fact that neither Chevron nor Loper had anything at all to do with the ability of Congress or state legislatures to distinguish between intent and implementation.
Everyone knows the New Deal administrative state existed. I'd really appreciate it if leftist extremists would stop trying to convince us it didn't.
You can read all 7,000 words, then you will better understand the "correct interpretation".
That's a common opinion between lawyers, the opposite opinion is that since the law was created by a large group of people, it can never have a clear intent. There are judges that assign to both of those.
Anyway, IMO there's fundamentally inhumane and evil consequence to the idea that laws don't have intent. Even if it's objectively true. The entire dichotomy is broken.
In a 'normal' European democracy judges and lawyers use these deliberations to argue what the intent of the legislative branch was, when it created the law. And to interpret it in that light.
I'd be surprised if there was no equivalent in the USA. I suppose therein lies the root of the Scalia doctrine though, which is too strictly 'originalist' for my taste. But in this instance I'd wager the rules of seizure were given a lot of legislative attention, similar as Habeas Corpus, because illegal seizure is an obvious tool of tyrants. It was often used by Roman Emperors and medieval Kings.
There are clear limits to how to interpret laws and most of the case law comes from which provision is applicable to a particular case. There's often no need to resort to "deliberations" part to interpret the law for a judge, just find the law that most precisely applies in a particular situation and there's no law that is in conflict.
Basically in a Civil Law system if the law states that you're not allowed to drive while drunk, that doesn't extend to being high. Unlike Common Law systems, where a judge could accept that drunk and stoned are close enough for both to be banned. (this is a hyperbolized example, not exactly how it would work)
A) In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be. I haven't checked but I recall the same is true for France and Germany.
B) The refere-legislatif (pre-judicical question) first appears in the Eastern Roman Civil Law (Byzantium) where Emperors use it to guide the interpretation of their law. But nothing about Civil Law systems presuposses it. EU Law does use it. But courts in the Netherlands don't. Instead, they are required to adjudicate as best they can. And if they screw up, a higher court can be used for appeal.
C) Appeals, these also exist in Common Law and many other legal systems. This doesn't require elaboration.
Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
The 'Public Order' Code is itself subject to strict Human Rights codes from various sources. Both international as well as EU Charter of Rights. Which translate into specialized courts and stricter rules of evidence and defense. Guild by proximity to a crime is an example of a scenario that this prevents. Whereas the Civil Law can (and sometimes does) assume causation based on balance of probabilities, due to proximity and lack of counter statements refuting said probabilities.
That's literally what I wrote. Why are you telling me that I'm wrong, when you're restating my point.
> Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
What does this even have to do with what I wrote?
In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins, the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments. The minimum temperature shall not be greater than -18C.
There are some gaps that a court needs to fill in order to apply this statute:
- The health department and the area of effect are not specified but these can be assumed to be the health department and area connected to whatever legislature passed the statute. If there is no health department that is the obvious one -- if, for example, it was passed by a city legislature and the city has no health department -- this could introduce some difficulty.
- The use of "minimum" and "shall not be greater" together in this statute are confused and confusing but since it pertains to freezers, the court can infer that freezers must be set to temperatures of -18C or below (-19C, &c).
However, sorting out the true intent presents insoluble problems that would lead to inconsistent interpretation of the law. Perhaps an establishment only has frozen fish. Does this law apply to them? Generally, the rule is that clear intent clauses -- "In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins..." -- are ignored in statutory interpretation. The operative part of the statute is that "...the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments." and that the temperature established by the health department must be -18C or below.
Why would any legislature pass a law delegating responsibility to a non-existent agency? How could this legislature pass a law with clearly contradictory stipulations regarding temperature? Then, finally, for what reason would intent clauses be written if they were then be entirely ignored?
In conclusion, I think that your hypothetical system of government has greater problems than any inherent difficulty in expressing legal intent that may exist.
Some countries have what are effectively brand new political and legal systems; but countries with comparatively long histories of stable governance generally have comparatively old laws that must be interpreted.
You ask three questions in the foregoing:
- Why would any legislature pass a law delegating responsibility to a non-existent agency?
If the city does not have a health department, it may be that the county does, or the state does, and they meant to delegate to them.
- How could this legislature pass a law with clearly contradictory stipulations regarding temperature?
The stipulations make use of a common, unfortunate misphrasing; that doesn't mean they are actually contradictory.
- Then, finally, for what reason would intent clauses be written if they were then be entirely ignored?
Intent clauses are generally considered non-binding, in legal systems all over the world. Another commenter has pointed out that this is the case not only in the Anglo-American system but also in the EU system: https://news.ycombinator.com/item?id=41284984
That doesn't mean intent clauses serve no purpose. It just means they don't serve the purpose of providing a specific, actionable rule.
Do we really?
UK law is full considerations like what would a ‘reasonable’ person do.
Also full of terms that are ambiguous - loitering for example.
They are bound by history, with all of the caveats that come from that system.
Most of liberal democracies use Civil Law system, where it's a lot more prescriptive in the laws themselves.