In short, that allows a lawyer to answer almost any question with "it depends," and start billing.
No, this is usually "lack of sufficient facts to answer question".
If a crime has 4 elements, and you've said you've committed 3 and maybe the 4th depending on how you look at it, the answer to the question "can i be convicted" is "it depends", because it depends on the argument about the 4th element.
If your followup is to claim that there should never be questions about whether you've achieved some element of a crime, it should be binary, that's simply impossible.
Crimes, for example, are often about intent and causation. Until science provides us with historical mind reading devices, and completely accurate point-in-time reconstruction of the world, we're going to have to rely on various theories and evidence (much like science relies on theories and evidence).
Even point-in-time reconstruction wouldn't solve all causation issues, because the issue is often a fairness one: Is it fair to hold the defendant liable for a crime X steps removed from his own action.
Law is complicated and filled with ambiguity because the world is complicated and filled with ambiguity.
Unlike lawyers, we can simply will some of that away. We can make an enum which smooshes together disparate phenomena, that feeds a dropdown list and require the customers to use it. We can ignore very rare corner cases and include a comments field. We can do a lot of things to simply make essential complexity go away while we bicker amongst ourselves about accidental complexity.
Law can't do that. Law must treat all cases, all combinations, as they arise. Every single day a configuration of people, motives and circumstances emerges that has never before emerged, could not have been foreseen and which may never occur again. The law must still apply.
Law is hard because the problem domain is everything humans do.
Let me know how many story points you think that scope is worth.
True, yet I'm convinced by obvious ambiguity that it's on purpose, to feed the legal industry. That conviction is bolstered by all the "work" Congress does on reviving sunset clauses on laws that had no good reason to sunset.
Law's complexity is not by design. Much of case law and legislation is about refactoring existing principles into something simpler.
The complexity of law is emergent from the problem domain. It doesn't require a conspiracy against the public to be that way. It merely requires the existence of a sufficiently large and diverse public.
Although it seems like there is also the accretion of "legalistic debt" (c.f. technical debt) when changes are made in response to (the perception of) urgent, high-profile problems.
It seems that, much like software, it's a lot easier to add clauses to, or make minor changes to existing laws than it is to write a new, much simpler version that would cover all the same ground, get it passed, and repeal the older version.
I'm also curious about what effect changes to a particular law have on precedent based on an interpretation of an older version.
> It seems that, much like software, it's a lot easier to add clauses to, or make minor changes to existing laws than it is to write a new, much simpler version that would cover all the same ground, get it passed, and repeal the older version.
Like software, it's easy to underestimate the complexity of the existing system and to overestimate the advantages of a single, sharp cutover.
The current system is not perfect, but it largely works by groping towards better solutions over time. Legal systems where the official concept of law is "we designed it ab initio with Pure Reason (tm)" tend to be just as riddled with contradiction and complexity. They just lie to themselves about it.
> I'm also curious about what effect changes to a particular law have on precedent based on an interpretation of an older version.
Most of the time it is very easy to make the connection. Either it's new legislation, in which case the legislature will amend the clauses that a court has interpreted differently from what they considered to be the intent. Or it's case law, for which every precedent is named and referenced. You can trace every legal principle back to its first expression.
Yes yes, and all crime is caused by the police, doctors make people sick, and weather forecasters hold people hostage to the elements.
'Less government' typically means spending less money on government employees, when you hear it from libertarians. Paper's cheap, word are free, and abusing the law is usually profitable on it's own.
Not having certain laws trivially prevent abuse of such laws - if there's no law prohibiting possession of certain plant, cops can not extort somebody in possession of such plant, can not hide such plant in somebody's vehicle in order to incriminate them, can not force one to perform illegal acts threatening that otherwise they'd be found guilty in possession of such plant, can not seize one's home, vehicle or money because they suspected him in possessing a prohibited plant. This made possible only by existence of the law that makes certain behavior a crime. If less behaviors are made a crime or deemed worthy of government intervention, less complex laws will be needed and less abuse of these laws will be possible - you can only abuse a law that gives you a power over somebody, but you can not abuse law that does not exist.
If you go to a restaurants where only thing that is preventing them from being rat-infested is government I suggest changing you patronage to a better place. Your home, I suppose, is not rat-infested, yet how often the government checks it? Somehow you manage to keep rats out of your home without the government, don't you? Why do you think everybody else can't do the same? Are they, unlike you, lack some important parts in their brains that allow them to function independently? I doubt it.
>>> At the same time it needs to be the good, useful type of intervention that protects citizens against the abuses of the marketplace.
Marketplace is by definition a voluntary interaction, and participants in voluntary interaction can claim abuse only in one case - when one of the parties were fraudulent and did not deliver their end of the bargain. In this case, indeed, the government needs to step in and enforce the deal - or provide some other satisfactory resolution. But that's not what current law code is doing, it is very far from it. It actually tries to mold the marketplace into the shape and form that politicians prefer, and that's where most of the abuses come from.
This is a very naive view. Pretty much everything is poisonous at high enough dosages, but there are plenty of poisonous chemicals that are not immediately harmful at low levels.
You can have a restaurant, a food manufacturer, a water utility etc. contaminate (intentionally or otherwise) their product with low doses of chemicals that over time will cause health issues or even fatalities.
The marketplace itself cannot regulate such abuses. Even if such contamination was punishable by law, the time lag would ensure that consumers would not realize the impact until long after, perhaps even after the statute of limitations has expired.
Just look at third-world countries to see how the lack of regulation works out. Or China.
> ... I suggest changing you patronage to a better place.
I don't know whether my restaurant has rats in the kitchen. How could I? The entire point of health inspections is to find out what the consumer cannot possibly find out themselves.
> Why do you think everybody else can't do the same?
Trendy, swanky restaurants are routinely shut down for doing very bad things behind the scenes. So clearly they can't.
Companies don't work for you; they work for themselves. If they have no incentive to be good, they usually won't be good; because, say, it's less expensive to be highly hygienic. You just have to look at the literature of consumer abuses to see how companies will continually, eternally act for their own good, at the detriment of consumers.
>>> I don't know whether my restaurant has rats in the kitchen. How could I?
Ever heard of reviews? Critics? Certifications? Yelp? Zagat? Michelin stars? It is fascinating that a grown adult obviously having access to the internet, in 2013, can sincerely claim he doesn't know how to figure out if a restaurant is any good. There's a huge industry built on doing just that. People are complaining they have to many apps on their phone to do that and get confused.
>>>> Trendy, swanky restaurants are routinely shut down for doing very bad things behind the scenes. So clearly they can't.
Successful, prominent politicians are regularly busted for infidelity. So, clearly, spousal fidelity needs government regulation.
> Ever heard of reviews?
You missed my point: Transparency. A restaurant may get rave reviews and still have a filthy, dangerous kitchen. It's what we, as consumers, don't have access to that matters.
> So, clearly, spousal fidelity needs government regulation.
This is a ridiculous non sequitur. I was arguing that companies obviously could not self-police, since they are doing bad things all the time even with state policing; how is your reply relevant?
Secondly, even then, all you can do is disseminate information. You can't enforce anything; you can only try to convince people to vote with their feet.
>>> Secondly, even then, all you can do is disseminate information. You can't enforce anything
You mean - you can't stop people from buying what they want even if you think it's bad for them, you can only give them information and let them decide for themselves if they're ok with it? Oh horror!!!
Of course, this means the government loses a way to enforce arbitrary restrictions that nobody of the consumers actually need but that promote some political or special interest agenda. Tell me please again, how is it a bad thing?
If you imagine the universe of human activity as a multi-dimensional space, you can think of laws as carving out subspaces with lines (that may be more or less fuzzy) and attaching significance to particular subspaces. If I ask: "my x coordinate is 5, where am I?" what do you answer?
...although there's been some interesting work from Dan Katz at UMich summarizing progress in this area http://computationallegalstudies.com/
I believe we'd see a lot simpler laws.
Certain laws are very cut-and-dry (speeding for instance) and perhaps laws could be proven on a functional basis.
You could even make it axiomatic from the constitution and declaration of independence.
Of course, you'd need to define the axiomatic meaning of things like 'the right of the people to keep and bear arms shall not be infringed' - which is hard to do even with such simple language.
And then after loading the axioms, you'd spend a lifetime going through errors in the existing laws.
Ha! No.
* do you want to give an exemption for speeding for, say, ambulances? So how do you define "ambulance"? Do you have to be registered to drive an ambulance? What defines the "duty of an ambulance" (or are they allowed to speed no matter what). What about a van carrying an organ to be donated?
* What if I have my sick child in the car and I'm rushing them to the hospital because it's faster than waiting for an ambulance? Is it right that I can be arrested and convicted for that? I think that would be a perversion of the spirit of any just law.
* What if I'm being chased by a maniac relative who wants to kill me? Can I speed then to drive away from them? Do I have to believe my life is in danger? How do you define that?
* Let's pretend I'm driving along and some other vehicle is about to move into my lane and crash into me because they are stupid and don't see me, and let's pretend that if I speed up a little bit (over the speed limit) and am able to get in front of them and avoid an accident. Should I be convictable for speeding even though I sped to prevent an accident?
Sure, these are all edge cases and there are loads of cases where it is clear cut, but you have to write a law that can handle the edge cases. Without accepting the vagueness of human life, you'll wind up with an unfair conviction that is horrible.
So, no exemptions for anyone, but then part of the cost of running an ambulance service is paying speeding fines regularly. Given the cost of ambulance services without that, the additional expense is lost in the noise, making it obviously a good choice to speed when useful (for ambulances).
Trying to figure out after the fact whether someone had a good reason to break the law (and therefore shouldn't be penalized) is one of the things that complicates legal systems enormously. Instead, we should write the law clearly and specify the penalties for breaking it directly, and let those who have the best information about the situation, the potential lawbreaker(s), choose whether it is worth breaking the law in a given instance.
Or let's put a man in jail because he break the law three times (even if all those cases would be exempted in current system).
You then have the problem of whether someone can be fired as an ambulance driver if they don't speed. Many countries employment law says that you can't fire someone if they refuse to break the law for the job. So what happens there?
I'm not suggesting that laws should be passed that work this way within a framework that assumes they don't. The solution to a mountain of bad code is not to add another layer that tries to make huge changes; it's to rearchitect. I also understand that this isn't going to happen in a large existing system like the US; I think it's a better way, but there's no easy, incremental path from here to there.
As for your hypothetical: In this system, since the vast majority of penalties would be monetary, or have monetary equivalents, and since the entire damage is (supposed to be) captured by the penalty, ambulance companies would come up with their own rules under which they would pay fines on behalf of their drivers, contractually. The market could then correct via abuse of those rules by the driver, or refusal of drivers to work for that ambulance company, depending on which way the rules erred.
Some one, or some body, would have to decide what the 'proper' interpretation of these laws would be, and craft the 'unit tests' such that they correspond to the status quo. Then that someone or some body would have to ensure that anyone who disagrees with that interpretation gets put down. What you're describing seems like a particularly technocratic form of fascism to me.
Is it okay to collect all XYZ data?
Is it okay to collect anonymous XYZ data?
Is it okay to collect XYZ data and hold it for X days?
Is it okay to store and index but not search a collection of XYZ data?
The law would end up saying something like -
The NSA is permitted to store and index anonymous data for a period of 10 days. Attempts to make anonymous data personal are forbidden. Data may only be accessed with a court issued warrant subject to the following conditions:...
The US Constitution is pretty straightforward, and people are still waging petty wars over individual words to wrest their idea of "intent" from the Founding Fathers. You're suggesting a formal procedure for legislation which might have some merit, but I don't think it would remove politics or human bias from the process.
Agreed that it's not a fully baked idea by any means, humans will always attempt to circumvent any system. With that in mind, you may say that rather than designing a better system, we stick to the safe that was first cracked 200 years ago.
Half the people whose valuables are in that safe find it perfectly adequate and would insist that any attempt to change the locks is just a blatant attempt to grab their money.
My point is, both sides have a say. If you get ten mathematicians in a room, they don't have to reach a compromise between ten different self-serving definitions of pi. The law is never going to be like that.
- What lower level of anonymity is acceptable? Is 1 in 30 acceptable?
- What about edge cases where it becomes much lower? Say only one person in a small county has an account to a web service because it is largely targeted at people elsewhere?
- What about academic improvements that keep decreasing anonymity by improving understanding of collected data? What time limit would NSA get to update its systems in case of such improvements? What happens if the speed of academic improvements is larger than the speed of updates in NSA systems? Is the system scrapped right away?
I agree that formal definitions seem lucrative. But these aren't simplified mathematical static models that we are talking about.
What meta-data is truly anonymous and what is not? Is the agency permitted to built a tool to de-anonymize data based on academic research, or is the data in some ways protected against these tools?
They may get to the end of this process and in this instance find that such a government tool, even based on anonymous data is uncontainable, and should not be implemented. If you just grant blanket power and rely upon a courts interpretation of your two paragraph scribble to straighten things out, the intent of the law can be completely lost.
We want law that prevents criminals from breaking into banks and stealing your cash, but what we got was a law able to be used to persecute young people to the point of suicide for accessing an "open" system belonging to an educational establishment.
The laws we have now cannot do what they claim to do without being impossibly broad or impossible to implement. As was was discussed elsewhere today, the joke of a "Do what I mean" button, is that nobody, in fact, knows what they mean, and this goes exponentially so for a congress of 500 or so people.
The way I look at it, making laws more and more complex and attempting to codify every possible instance is a bit like adding massive bloat to a software project for the sake of maximum backwards compatibility. Just as more lines of code introduce more bugs and increase the possible attack surface of an application, so more complex laws introduce more opportunities to manipulate and undermine those laws through legalistic means (while giving the people who have to interpret those laws on their face little leeway for context-specific interpretation.)
In Florida, to use an obvious example, the law as intended makes it legal in a certain context to kill an unarmed teenager without any ramifications, whereas firing a gun into the air can get you 40 years in prison. This is what the people of Florida wanted, and this is what their legislators gave them. America's prisons are stuffed with minor drug offenders for whom the sentencing laws were absolutely unambiguous. How complex is the tax code and how many ways are there to dance around it? Most of those holes are there on purpose.
Legislation is not the only source of law.
That said, more structured analysis is no bad thing. But it's not a panacea either. There's an existing analytical mechanism for legislation: depending on where you are, it's called "Parliament" or "Congress".
To participate, you must first be elected to that body. Or work for someone who does.
lulz, that will happen when programmers put out code that never has any bugs in it.
That's one reason that, in addition to being an interesting challenge domain for AI researchers, it's interesting to logicians, who aim to come up with logics and decision procedures that can capture what a decision procedure in law looks like (classical first-order logic and theorem-proving don't seem to model it well). The main short-term application is to reasoning-support systems that can suggest potentially winning arguments, point out obvious holes in draft arguments you were going to make, etc., sort of the legal analogue of medical diagnostic systems.
A classic paper from 1977: http://www.cs.rutgers.edu/~mccarty/research/hlr77.pdf
A more recent system aimed at interactive use: http://www.ai.rug.nl/~verheij/publications/pdf/ai2004.pdf
A book, albeit priced at the usual Springer price-point that assumes no non-library human will buy it: http://www.amazon.com/gp/product/3642064329/ref=as_li_ss_tl?...
Consider a law that says "you can't drive a vehicle without a license." Is a bicycle a vehicle? What if it has a motor and weighs a lot? A velomobile? What about a hovercar?
There might be 2,000 laws referencing "vehicle [definition #4,849, version 5]".
(Actually, I guess a sensible definition might be based on momentum: we'll call a tricycle a vehicle if you manage to get it going fast enough; the point is that you can hurt someone with it.)
So, I agree with your argument. It's all very situation dependent. For some reason I find it oddly comforting that human society and life in general can't be crammed into a small set of fixed rules. That would be kind of boring I think.
And that's simple? What's the requirements? Might as well just say "people should be good", and say that's simple law.
First problem: I don't think that can be done. I'd be a lot more convinced to consider arguments like this accompanied by completed samples in some real area of human endeavor of the "black and white laws" with accompanying "unit tests" (and, anyway, wouldn't we want automated user acceptance tests, not unit tests.)
Only if you model the domain with fuzzy logic. Otherwise you have a combinatorial explosion of specific definitions.
And guess what? That's already how the law works:
"Reasonable person similarly circumstanced".
"Beyond reasonable doubt".
"Balance of probabilities".
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I'll go with yes. Alas, interpretation then falls to the definition and grammar of every part of said law.
One quote that sticks in my mind is this one from P.J. O'Rourke in Parliament of Whores, concerning Ken Starr's written position on a flag-desecration law:
Congress had "acted narrowly." (That is, the law is very specific, and you
can't be arrested for having a smart look on your face near the flag or
anything like that—which is good because being specific is the essence of
lawmaking and the whole difference between having a congress and having a
mom.)
But this is the reason that we have the ability to have the law interpreted on a case-by-case basis, which is different from interpreting "laws", the specific as-written instances. Note that the Supreme court doesn't hear or decide on a law randomly, only when someone brings a specific case to them.
The law should be written as "it's a crime to kill someone" (although, that may be too specific, and a more appropriate wording may be "it's a crime to rob someone of their life and livelihood"), and it's up to the executive and judicial branches to decide (or aid in deciding in the case of the executive) what the punishment should be. This is the defendant's "day in court", as it were.
I think too many people do treat the law as absolute in wording, rather than absolute in spirit. A law that enforces something unjustly on the defendant is just as bad as a law that doesn't justly enforce the plaintiff's rights. Finding that appropriate middle ground is the basis for the grey area that is the interpretation of law.
IANAL.
Either of your examples would involve me still technically breaking the law if I kill someone while trying to save myself from being murdered by that person, even if I do eventually receive a lenient sentence.
Of course. It's hard to deny that you killed someone if you killed them in self-defense. And that's why there is value is having law be interpreted on a case-by-case basis. The judiciary could determine, because it was self-defense per your examples, that you didn't "technically break the law" because the law as worded is weak. This is the iterative nature of developing laws. If too many people were found to not be breaking the law as written after review, then the laws, and the wording thereof, should be updated to account for that by being more explicit and producing less grey area.
This can result in some bizarrely harsh sentences -- where a domestic violence victim firing a warning shot at her abuser gets 20 years in prison, or where someone who knowingly writes a bad check gets 25 years in prison.
Perhaps most importantly, this will serve to make the law shallower. Currently, many laws are passed with large parts in reference to other laws, definitions from 400 pages elsewhere in the text (themselves with referential connections to disparate locations), and providing a way to analyze the law programmatically will have inevitable analytical benefits that allow citizens to know exactly how the sausage is made, whose farm the animals are coming from, and how it's been spiced.
* The law is inconsistent and possess contradictory rules. From contradictory premises, sound arguments
* It gives concrete examples of legal cases and how completely opposite judgments could be rendered, both being based on correct use of laws and analysis.
* Laws are not applied impartially, are not neutral, apolitical nor objectively applicable by judges. People who believe they live under "a government of laws and not people" tend to view their nation's legal system as objective and impartial. Obey and subject themselves.
* There is a cognitive dissonance between the laws and the people who make them. People generally believe that the law are generally good and should be obeyed. People generally believe that politicians tend to be corrupt and influenced. The people who make the law cannot be trusted but yet the laws they write should be.
Even this isn't necessarily a good thing. Part of the value of a judge is having an empathetic element in the position of final arbiter. Decisions aren't always "GUILTY / NOT GUILTY"; they're often long-form essays discussing the merits of the case, the factors under consideration, the logic and reasoning behind the ultimate conclusion and so on.
Math is nice because it can be reduced to a symbolic language. We're not at the point where we can reduce human beings to symbols yet.
But your point still stands. The reasoning and specificity of cases are what define common law precedent.
Good luck starting your own country with a legal system that doesn't require interpretation, or heaven forbid, lawyers.
It depends...