8 ms·

Disregarding the letter of the law seems arbitrary and capricious.

klaustopher 3y ago
There's different ways to interpret laws for courts. One of them is called teleological interpretation where you follow the intent of the law. For this courts also look into the documentation the legislation provided when defining the law. This is usually not done by lower courts, but courts like the CJEU use those when the letter of the law is unclear to define this for the lower courts to follow.
- abigail95 3y ago
  This would be more valid if the law was passed with a message that says "please interpret this law according to this documentation teleologically"
internetter 3y ago
Is it? Developers used to determinism in software frequently don't understand that in all jurisdictions the law is ultimately interpreted by humans. I've been going through some legal processes myself, and my friend who is a lawyer reminded me more times than I care to admit that this is the case. In the US, SCOTUS's job is literally to interpret the spirit of the law in the event of ambiguity.
- AshamedCaptain 3y ago
  Developers are fully used to this ambiguity and "spirit of the law" when interpreting standards. Search for WeirdNIX (popularly known as Windows NT and other names too).
Hamuko 3y ago
The situation in the US seems to suggest that trying to finely analyze the exact sequence of words in a law or the consitution still leaves a whole lot of room for arbitrary decisions. Abortion was a constitutional right until it wasn't and the constitution was not changed between.
- anon373839 3y ago
  All language carries inherent ambiguity. However, developments in American constitutional law aren’t really about that. The Constitution is very general and it uses terms that lack an objective meaning (for example, “Due Process” - what counts as “process”? What process is “due”?) It can’t really be implemented without bringing in a pile of philosophy and policy making. At the same time, SCOTUS has been guilty of stretching its terms to include ideas that are clearly out of scope. (For example, the dubious invention of “substantive” due process - which all of the abortion stuff hinges on.)
  - jquery 3y ago
    Of all the examples you could've brought up and you thought a person's right to control their body is a stretch? Try "qualified immunity" if you want an example of justices reasoning with their bare ass showing.
    - anon373839 3y ago
      I was responding to the parent comment. Also, substantive due process was not invented for reproductive rights. It was invented in Dred Scott v. Sandford, to prevent “free” states from depriving slave owners of their “property”.
      - jquery 3y ago
        So, apparently what you're saying is controversial https://en.wikipedia.org/wiki/Substantive_due_process https://en.wikipedia.org/wiki/Substantive_due_process -- "The phrase substantive due process was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford.[11] Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852)"
justin66 3y ago
> Disregarding the letter of the law seems arbitrary and capricious. There's a distinction to be made between principles-based and rules-based regulation which I bet you're unfamiliar with.
rekoil 3y ago
But that's the thing, when your law is legally binding in 24 different languages it's really impractical if not entirely impossible to have a system based on letter-of-the-law interpretations...

There's different ways to interpret laws for courts. One of them is called teleological interpretation where you follow the intent of the law. For this courts also look into the documentation the legislation provided when defining the law. This is usually not done by lower courts, but courts like the CJEU use those when the letter of the law is unclear to define this for the lower courts to follow.

abigail95 3y ago
This would be more valid if the law was passed with a message that says "please interpret this law according to this documentation teleologically"

internetter 3y ago

Is it? Developers used to determinism in software frequently don't understand that in all jurisdictions the law is ultimately interpreted by humans. I've been going through some legal processes myself, and my friend who is a lawyer reminded me more times than I care to admit that this is the case. In the US, SCOTUS's job is literally to interpret the spirit of the law in the event of ambiguity.

AshamedCaptain 3y ago
Developers are fully used to this ambiguity and "spirit of the law" when interpreting standards. Search for WeirdNIX (popularly known as Windows NT and other names too).

Hamuko 3y ago

The situation in the US seems to suggest that trying to finely analyze the exact sequence of words in a law or the consitution still leaves a whole lot of room for arbitrary decisions. Abortion was a constitutional right until it wasn't and the constitution was not changed between.

anon373839 3y ago
All language carries inherent ambiguity. However, developments in American constitutional law aren’t really about that. The Constitution is very general and it uses terms that lack an objective meaning (for example, “Due Process” - what counts as “process”? What process is “due”?) It can’t really be implemented without bringing in a pile of philosophy and policy making. At the same time, SCOTUS has been guilty of stretching its terms to include ideas that are clearly out of scope. (For example, the dubious invention of “substantive” due process - which all of the abortion stuff hinges on.)
- jquery 3y ago
  Of all the examples you could've brought up and you thought a person's right to control their body is a stretch? Try "qualified immunity" if you want an example of justices reasoning with their bare ass showing.
  - anon373839 3y ago
    I was responding to the parent comment. Also, substantive due process was not invented for reproductive rights. It was invented in Dred Scott v. Sandford, to prevent “free” states from depriving slave owners of their “property”.
    - jquery 3y ago
      So, apparently what you're saying is controversial https://en.wikipedia.org/wiki/Substantive_due_process https://en.wikipedia.org/wiki/Substantive_due_process -- "The phrase substantive due process was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford.[11] Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852)"

justin66 3y ago

> Disregarding the letter of the law seems arbitrary and capricious. There's a distinction to be made between principles-based and rules-based regulation which I bet you're unfamiliar with.

rekoil 3y ago

But that's the thing, when your law is legally binding in 24 different languages it's really impractical if not entirely impossible to have a system based on letter-of-the-law interpretations...