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Comment by DanielStraight | Hacker News Reader

There are times I think the number of laws should be fixed... at say 1000. If congress wants to make a new law, they have to remove an old one.

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That's a good idea, though the constant should be lower. Human societies survived for thousands of years with on the order of 10 (very popular) to a few dozen criminal statutes.

Well, we do have a lot more to make laws about now. Internet privacy law was clearly not a concern for cavemen. If you make the law too general, you'll have the same problem.

There's a legal scholar (and I'm blanking on the source at the moment) that makes a very convincing point that a small handful of laws (against violence, fraud [1], etc.) covers 95-98% of all cases. The other 2-5% of cases are necessarily judgement calls. What's interesting is that the percentage of cases requiring judgement calls doesn't decrease as you go from N laws to 10,000N laws.

[1] To your point: it's true that we have more things we can make laws about, but I suspect that it isn't true that we should make laws about every specific thing. Fraud is fraud, murder is murder. It shouldn't matter whether you use the internet, a telephone, or pencil and paper to defraud someone, in the same way that we don't need a separate murder statute for each choice of murder weapon.

And the exact application of those few laws in nearly infinite situations would require first a caste of extremely powerful judges, and later an accumulation of precedents which would effectively become a massive and complex legal code in itself.

Some brilliant thinkers centuries ago developed an ingenious technology for constraining judges: juries.

Of course, juries work better when they are able to find on both the facts and the justice of the law. We've deviated from this at our peril.

Mens rea, criminal intent, has historically been the simplifying agent in law. That's why you don't see a terribly complicated set of case laws surrounding, say, murder. The problem with lots of current criminal statutes is that you can be guilty of violating them without any intent to harm.

You've disregarded the second, stronger portion of that argument. Constrained though they may be, the trail of precedents judges would generate in the "1000 laws" scenario would simply constitute a complex shadow law.

I believe I addressed that with the note about criminal intent.

Common law has tended to focus obsessively on mens rea. Statute law has tended to disregard it. The difference probably has something to do with having to make a judgement about a particular case with the humans that are going to be affected standing there in front of you, as compared to dreaming up a bunch of laws in the abstract, or coming up with laws to address a politically attractive but wildly uncommon situation.

I believe this argument is empirically strong. You can see for yourself that there are (at least) hundreds of years of case law about murder. And yet the law surrounding murder seems quite a bit more straightforward than the laws surrounding, say, exporting electronics. This is because criminal case law has been sharpened by a focus on criminal intent.

As recently as this year, SCOTUS has made rulings that set new legal precedent for murder (Google "Tonya Harden"). I don't even have to argue that it's specious to compare murder to environmental destruction or occupational safety to rebut that argument.

That would be the West Virginia Supreme Court, not SCOTUS.

http://www.huntingtonnews.net/state/090605-rutherford-statet...

And in any case, arguing around the edges of self-defense is a far cry from the sort of felony paperwork violations that got us into this discussion.

So perhaps the most clarifying question I could ask is: how many examples can you find of case law criminalizing paperwork mistakes with no criminal intent or intent to harm others, as compared to how many examples of that are there in statute law?

You're right, my bad. Hopefully my point stands intact, which is that even for a cut-and-dry crime like murder, court precedent defines a fairly complex shadow law --- self defense, intent to kill, competence, etc.

Like (I think) most reasonable people, I'm not in favor of criminalizing paperwork mistakes with no criminal intent.

And will your legal system include only such clear-cut cases as premeditated murder? What do you do when someone starts file-sharing your program? Apply a single, simple, almost certainly ambiguously worded law about theft? And let's pretend your law is perfectly worded so as to have a clear application in every single situation: do you deem file-sharing theft?

What about if, in self-defense, someone goes further than necessary? He's attacked and choked by someone bigger and stronger. He reasonably fears for his life. Through chance or skill, he gets the upper hand, and knocks his attacker out. Then, before caveman adrenaline has faded, he slams the guy's head into the pavement until he dies. Do you apply the single "thou shalt not kill" law?

I don't really want answers to these specific questions, but to the meta-question: how do you handle actions which are harmful to society, but which cannot be resolved by straightforward common-sense ethical reasoning?

I would refer back to my grand-parent post.

The hard, borderline cases that you mention are relatively rare. No matter how complicated your system of laws, these cases tend to require humans, either judges or juries, to make a careful decision.

If you have 10,000 laws rather than 10, you end up instead having to decide which of the many conflicting laws that could be applied should be applied to the situation. In marginal cases, human judgement is extremely difficult to replace.

Well, from this and another post, you seem to be concerned mainly with overlap between similar laws -- a natural result of a large and fragmented legal code. Why not prune it instead of scrapping it? Refactor instead of rewrite? Insert jwz quote.

What do you do when someone starts file-sharing your program? Apply a single, simple, almost certainly ambiguously worded law about theft?

One simple law about theft that can't neatly answer the question seems preferable to the current tens or hundreds of possibly applicable pedantically worded laws that can't neatly answer the question.

> an accumulation of precedents which would effectively become a massive and complex legal code in itself.

Common law? Worked out pretty well for the English for about 1000 years.

Less than 75 years ago, it was legal for parents to send their 10-year-old children to work in mills. But your point is taken; even with oppressive child labor, civilization managed to survive.

What people forget is that child labor on farms was just as oppressive and dangerous. Just like we see in the third world today, children work in factories because it is their best option (as compared to starvation or farm labor) rather than because of inadequate laws.

Technology, a capital infrastructure, and pervasive wealth solves this problem, not politicians.

False dichotomy. The FLSA allowed children to work on farms with their parents. That too should have been illegal, and correcting it complicates the law.

Once again we see free markets failing to cope with externalities and twisted incentives. Children don't want to work on farms, nor are they qualified to make such judgements, nor are their parents, in exactly the same way that parents can't consent to numerous other things for their children (for instance, a parent can't consent to marry off an 11 year old daughter).

Whether you're poor or not, having your children pad your income isn't a viable solution, nor is it efficient, and yet it is the short-term solution the free market demonstrably arrived at.

I take a false dichotomy charge seriously. I think you misunderstand me.

I'm certainly not defending the FLSA's farm exemption, which was clearly just a bow to a powerful special interest group [1].

Of course children don't want to work on farms or in factories. Does anyone want to work in a factory?

My point is simply that if you go to some random third-world country where children are working in factories, and you do nothing else than prevent them from working in factories, you very likely have not increased their quality of life. To your horror, you will see an increase in children scrounging for food in dumpsters. You will see them selling wares on the street. And you will see fewer families escaping a brutal life of farm labor to seek a better life in cities.

Your point about free markets also misses the mark. You could repeal all the child labor laws today in the US, and you would not find (a statistically significant number of) factories hiring children for the simple reason that with modern industrial techniques children wouldn't even be productive enough to justify their space on a factory floor. This is part of the reason why teenage unemployment is so high even though teens will work for minimum wage.

[1] Not to say that I think much harm comes from this today.

This argument is a slippery slope. If you take a third-world country and allow child factory labor, children demonstrably work in factories. Clearly, if you disallow factory labor but allow truancy and neglect, children demonstrably become garbage dump scavengers. At some point you need to have the political will to decisively address child welfare and education, rather than allocating rupiah to cronies and paramilitaries.

That the complete solution to this problem involves more than simply outlawing child labor doesn't mean that outlawing child labor is itself ineffective. There are child labor problems in economies that can otherwise provide for children --- even if you have a stable economy, you still need the rule of law.

Finally, it seems hollow to argue that, after 70+ years of regulation of child labor, repealing child labor laws would not change the facts of child labor on the ground in the US. While the economy certainly has more to do with the end of child labor than the law does, the law still plays a significant part. As a society, we've eliminated child labor and adapted to that circumstance. That is, at least in part, a victory of child labor prohibition.

To say that child labor is simply an artifact of outmoded manufacturing practices misses the fact that plenty of modern companies do engage in child labor, in jurisdictions that allow it.

At any rate, you can have the last word, because this conversation is devolving. I think the idea that society can get along just fine on 10, 100, or even 1000 laws is naive; child labor is a simple example, but I could come up with many more vivid examples as well --- for instance, the fact that marital rape has only been addressed within the last century or so.

That's an incredibly ridiculous argument. Because we might want to simplify our legal code to, say, not make it a 2-year-in-prison federal felony to misplace paperwork about orchids, with no criminal intent, we're in immanent danger of decriminalizing child labor?

Seriously?

I'm responding to an argument that we could do just as well with 100 laws as we can with tens of thousands. You're reading it as an argument that our current laws are good.

I can simultaneously believe that we have many unjust or incompetent laws on the books and not be a libertarian.

You can get away with one, really -- protection of private property, with one's own body defined as a property. However, it's probably easier to codify without an accompanying philosophical treatise if you write it as three to four laws, banning violence, theft, fraud, and possibly defamation.

Defamation is a combination of fraud and violence.

The problem with your scheme is the protection of the commons.

It might not work today, but if one day we create strong AI, we can create (a disinterested) one called "the Environment", and give it the property rights to everything not currently considered private.

You do realize, of course, that your goal of having only 10 laws would fall in the exact pitfall described by the original poster, which is how vague laws can be.

Once a law is broad and vague, it is subject to interpretation and may become subjective. Which is the original point of this article.

Sorry, no solution found yet :-)

Alternatively, Milton Friedman suggested that all laws should have an expiration date.

I'd rather see the endless mountains of right wing nonsense Milton Friedman wrote had that expiration date

I guess you should also define 'laws.' Some 'laws' do things like levy taxes or tariffs. Because they are 'laws' they make it a crime to avoid then, but by themselves they are not something that seeks to make criminals.

The law can be fair or the law can be simple.

Unfortunately, it can also be neither. It's easier to simplify than make it fair.

Your first point is well taken. Your second point isn't. A lot of things aren't easy, and we do them anyways because they're right.

It is easier to abide by simple, though unfair, law than complicated and arguably fair law.

That's a good sound bite, but I don't agree that a simple law must inherently be unfair. In particular, I think that a simple law is likely to achieve greater fairness in a specific area than a complex one, even if neither is perfectly fair for whatever definition of fair.

Congress will be OK with this I think, they'll just make each law span 1000s of pages.

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