Philosophy of Law

[Magius]

EnMarchant stated:

In the US and in France, my 2 countries, the law must be written and published. Every law is a public act and any citizen has an unrestricted, free, and easy access to the codes of law.

To me that's not good enough. It's beating around the push in truly being promulgation. People need to be taught the law. Although, I do think that if everyone was supplied with a copy of the countries legal statutes that there would be a huge increase in understanding of the law, without the need for it to be taught. Furthermore, I'm not sure how much you know about law, but any law can be made understood. So, make an idiots guide to the law. You don't have to use 'approbration' when you can just say warm approval. I think you get what I am saying. I am referring to your comment about the layers of lawyers needed in interpreting the law. I mean if the law really is that complex and ambiguous; that layers of lawyers are needed to understand it, can we truly call it law? Is it worth anything since the people it is made for cannot understand it?

EnMarchant stated:

For me the most immediate importance of any legal system are things like, Who makes the law, What are the authorities, What ideologies are controlling, and of course, is it a good law or not. Which gets me to the question about morals.

I concur that these are important, but I am mistified as to why they are of MOST IMMEDIATE IMPORTANCE...in defining law and it's purpose, should the primary concern be "is it doing what we intended it to do?". If a law is doing what it is suppose to, do I care who made it, which authorities, what ideologies, and whether it is good or bad? No, atleast not primarily but secondarily. Otherwise, you aren't interested in making law, you are interested in making a system for the law, which is a whole different conversation.

EnMarchant stated:

we have representation so that all people's needs are represented in the making of laws. This is a very old concept.

Do we? In the scope of the court system you may be correct in affirming that this is so because both sides are represented by a lawyer, but what have we said? And what is the point? Can we say that all things are equal between the defendant and the crown? Certain procedures and laws tell me 'no'. Can we say the law represents the people in general of a society and their needs? Heck no, more like represents the interests of the few, the rest are made to conform to the way things are - and hence it seems that the law represents them. Remember, law and legislators care nothing for representation, all they care about is efficiency. Ie. We could stop a huge majority of car accidents by installing mass transit systems of buses, taxis, subways, and trains that will take anyone to anywhere they wanna go. But the amount of time that would be lost would result in a loss of economic growth because the whole society would be slowed down, this loss would result in a decreased stock market and efficiency would go out the window. So we set the speed limit at a speed that is most efficient, one that won't stop all accidents, but will keep people travelling at a good rate to function well for the society and keep the economy booming. You say that it's a very old concept, you are correct, but that's all it is. We might even call it a principle, but that doesn't make it true of law in general. As I have illustrated. But there are many more examples, there is a principle that no one should profit from their crime, yet it happens all the time in court. Another is that like cases should be treated alike, but it doesn't always happen that way. Often judges misinterpret what the previous precedent was truly saying and take what the judge had to say in the wrong way and hence treat the present case in an unlike manner to the previous. Furthermore, the judge is under his/her own discretion to comply with precedent or not.

EnMarchant stated:

We respect the law not because it is written but because it is an accurate representation of our needs. Where that representation fails we have courtrooms to adjust the inequities, congressional sessions to change ad laws, executive orders to push the limits of our system of government (Iraq), and the press. public opinion and voting to force any necessary changes.

I <u>completely</u> disagree with your notion that WE(who?) respect the law not because it is written but because it is an accurate representation of our needs. I guess first I should ask you whether you mean the society affected by the law as 'WE' and what exactly do you believe are the needs that are accurately represented by the law. Furthermore, in the last sentence you use the word force, as if it actually had some kind of coercive power, which I believe to be controversial, and what exactly do you consider NECESSARY changes - and please don't refer to things that were different but have now been changed. Refer to think that you believe are necessary to change but have not changed yet, and you may find that the list you provided for the unrepresentative cases of law are inadequate and elucidate the reason for so many laws that the public willfully disagrees with.


What's your take?

[EnMarchant]

You don't have to use 'approbration' when you can just say warm approval. I think you get what I am saying. I am referring to your comment about the layers of lawyers needed in interpreting the law. I mean if the law really is that complex and ambiguous; that layers of lawyers are needed to understand it, can we truly call it law? Is it worth anything since the people it is made for cannot understand it?

I disagree that the law needs to be made simple and easily understandable. I believe we can "call it law" even if it takes a lawyer to understand it. Keeping the law complex mirrors the nature of the thing being treated by the law. Reality is complex and the ordering of it in terms of the law needs to remain complex. Thus, I don't think complexity is a job-saving invention of lawyers.

Furthermore, even though we ought to avoid ambiguity, I disagree that there is no place for the ambiguous or the incomplete. This is where equity at the level of case-by-case analysis comes in handy. Or where experimentation in law is most noticeable. When the law is written infallibly, we get problems.

Both things (ambiguity and complexity) are necessarily a part of ordering an ambiguous and complex society. I'll explain with an example in property law. There are words like possession, borrowing, lending, owning, renting, leasing, etc... All of these words have common meanings. They also have legal meanings. The common and legal meanings often conflict. But more importantly, the common meanings would confuse the purposes of a systematic legal treatment of the property. Take "possession." In common meaning it is used interchangeably with ownership. In legal terms, it has the exact meaning of being a part of the full meaning of ownership.

We must make the language of the law very precise. To be most clear: This precision is what creates the possiiblity of justice. This precision is the dividing line between the common understanding and the perfection of our understanding of how to live together.

Is it good, then, that we must rely on lawyers to translate this complex justice into common knowldedge? The answer is the same as for doctors. It's the nature of the thing: Law = a complex set of rules ordering society; medicine = complex functioning of the body. Like we don't simplify medicine, we shouldn't seek to simplify the law. I know the analogy breaks down at some point. But a legal profession and an active press are the mediating points.

With all that being said, I am not against an "idiots guide to the law". But the Idiot's book is not the law. It is a translation. The law is a complex thing that can always be explained in simple terms. But the primary matter, the legal code itself, must remain consciously complex and precise, as well as sometimes ambiguous or incomplete.

concur that these are important, but I am mistified as to why they are of MOST IMMEDIATE IMPORTANCE...in defining law and it's purpose, should the primary concern be "is it doing what we intended it to do?".

You're right. I was confusing moral or philosphical immediacy with legal immediacy. The law's most immediate concern is whether it does the thing it was intended to do.

Can we say the law represents the people in general of a society and their needs? Heck no, more like represents the interests of the few, the rest are made to conform to the way things are - and hence it seems that the law represents them.

I agree somewhat. My idealized sense of the law relies on the history of the very successful and highly representative legal changes that have in fact taken place. But I agree that representation is sometimes only an ideal. I like your example of the cars versus public transportation. I imagine the car industrials and their chief stockholders would secede if their congress voted in a replacement of all cars for a national mass transit system. And as you state, it would be safer. The implication is that representation is not equal. If only 1 percent of the population owns stock in car companies, and yet they have the power to kill any legislation relating to the public safety of all 100 percent of the population, then this practically kills any illusion of representation. I agree that this is how things persist, but I don't believe for a moment that you are stating things as they really are. It is to be argued that the law moves slowly and it is probably the case that more than 50 percent of Americans would vote against a national mass transit system. In other words, even knowing that it is safer to go mass transit, the people would vote against it. This probably has something to do with people's notion of freedom of travel. The car being a most cherished symbol of freedom. Furthermore, it is a fact that the car industry is an integral economic factor - jobs as well as resources. Thus, representation is returning less illusory - no? The people are happy with the current state of affairs - both in terms of standard of liviong, in terms of freedom, and in terms of keeping things from too much change. If it were the case, however, that the people were unhappy with a road and car system and preferred mass transit, I would argue that under the constitutional system of representation things would most defintely change. But slowly. Consider Tort law. The car industry perrenially wants to do away with liablilty law. Meanwhile it is legislation and court-made law over the last 150 years in America that has slowly but definitively used liability law to help make cars more safe.

In other words, to avoid discontent, or revolution, or civil war, the invention of representation has a very old lineage. Goes back before Aristotle spoke of it: forms of it shows up in anthropological studies. It is old because at some point the crown will be defeated by its unhappy subjects.

4 Respect of the law. Don't have time right now. Next post.

[Magius]

EnMarchant stated:

I disagree that the law needs to be made simple and easily understandable.

If law isn't simple and is not easy to understand, than it must mean that mistakes are easily made in interpreting that law. If mistakes are easily made, and actually are made, than the fate of the people tried by a misinterpreted law are squandered and ruined. Even if the law is precise, as you argue later, what good is it if it cannot be understood? It would be like having a map that is very precise in it's making but very ambiguous in it's articulation of the location of gold, what good is it to a pirate? What good would it do for him to claim he has a very precise map, that is very difficult to understand, so difficult that he failed to find the gold?

You also argue later that law needs to be complex. I'm not sure how you meant that, do you mean that each law must be complex to cover all complexities of situations? Or do you mean law in general needs to be complex? I would agree with the latter. But law in its distinctive individual laws is not complex at all, atleast not after someone has broken the long words down for you and explained its complexity, making it complexity no more. But once again, I advert your attention to the fact that this complexity comes not from the structure of the law, nor it's application, but from the words that have been used to articulate the law. I would think that you believe that these words are used in order to help simplify things and abridge the written form of law as much as possible. To me the nature of the law is furtive in its undertaking, its history is a sham, used as a consternation for the people of the country who would be suppressed by those few who were said to be only ones with the ability for arcane knowledge. In ancient times, I believe, the law was written in such a way as to make sure that regular citizens would not understand it. For understanding is knowledge, and knowledge of the governments procedures is the one weakness of all governments that guard and manipulate this information from their citizens as much as possible. I am not satisfied, like most, with the belief that the majority of people can't be expected to understand the law because they are somehow stupid. If they are not stupid, then it is in everyones best interest to spend countless pages elucidating the law in order for everyone to understand, for how can someone be expected to not commit a crime that they knew not was a crime?

I believe we can "call it law" even if it takes a lawyer to understand it. Keeping the law complex mirrors the nature of the thing being treated by the law. Reality is complex and the ordering of it in terms of the law needs to remain complex.

Many would disagree with you. Its in our nature to simplify, group, categorize, and see patterns. If you had said that the nature of the law is complex, I would understand, but to say that KEEPING, as in we intentionally make the law complex is absurd. We live on the principle of making things simple. To the average Joe, the word UTILITARIANISM may never have crossed his path. It would be complex to him inthe context of a written word he had never seen. But tell him that it means the most happiness for the most people in any given situation. He will tell you a plethora of stories of how he has come in contact with such a concept. You broke it down for him and made it simple. Furthermore, it is one thing for law to be complex, but it is another for people to see it as complex. We are all involved with complexity. Complicated things that are difficult for us to understand, especially that being the case, is the reason why we should and do devise systems for teaching people how to come to understand complicated things much better and quicker.

Yet you say...

we shouldn't seek to simplify the law.

Sure we should, the whole point of law relies on the foundation of people understanding it. If you are right and I am wrong, then we should truly admit that law will work retroactively, law will be applied whether a person could know of it or not, and people all over the world will be convicted continually of crimes they knew not of. By the time they are sixty they will finally understand some of the most basic laws, since they were in jail for them, and then die. Only to have the process happen all over again. Then one day someone will finally say, "we have to make this thing called law more understandable, more involved on a positive not with the rest of society." Then I hope we will stop people from saying "we shouldn't seek to simplify the law."

You said it yourself later...

The law is a complex thing that can always be explained in simple terms

Now your talkin, that's exactly what I am talking about. Yes, it CAN always be explained in simple terms, that's my point, but guess what, it's rarely ever ACTUALLY explained in simple terms.

Is it good, then, that we must rely on lawyers to translate this complex justice into common knowldedge? The answer is the same as for doctors.

First off, justice is not complex in the minds of each person. Whether that is right or wrong is going off on a tangent, but all people have their own justice in their mind. That being said, for order to instill each society we need a common knowledge justice system that people understand. Otherwise, promulgation goes out the window. Since the point of promulgation isn't so that we can have an excuse against citizens when they say they didn't know of this or that law, and then we say "AHA! You could have gone to City Hall or here or there, and looked at this or that book and found that the law was there for you to read, all you had to do was go and look" NO, the point of promulgation is for people to be AWARE of the law. Obviously have some law books in a library or wherever else they keep them isn't working, so we have to do something else to make sure people are aware of the law, otherwise our system is malfunctioning from its very foundation.

We must make the language of the law very precise. To be most clear: This precision is what creates the possiiblity of justice. This precision is the dividing line between the common understanding and the perfection of our understanding of how to live together.

But the primary matter, the legal code itself, must remain consciously complex and precise, as well as sometimes ambiguous or incomplete.

I think there is an error in your correlation between complexity and precision. Are you of the belief that in order for something to be precise it must be complex? I agree that law is complex, but I won't agree that it is precise.

but I don't believe for a moment that you are stating things as they really are. It is to be argued that the law moves slowly and it is probably the case that more than 50 percent of Americans would vote against a national mass transit system. In other words, even knowing that it is safer to go mass transit, the people would vote against it.

Your assuming too much here. On what grounds do you base your postulation that 50percent of Americans would vote against a national mass transit system? When you say that it is to be argued that the law moves slowly, do you mean you disagree? I believe the majority of law moves very slowely, with a few exceptions, emphasis on <i>few</i>.

The people are happy with the current state of affairs - both in terms of standard of liviong, in terms of freedom, and in terms of keeping things from too much change. If it were the case, however, that the people were unhappy with a road and car system and preferred mass transit, I would argue that under the constitutional system of representation things would most defintely change.

What!?!
People are miserable, especially in the states. After Sept.11th and all the security checks that are being done, cops barging into peoples houses with legal warrants disturbing their lives and there isn't anything they can do about it. With the installation of camera's to prevent crime. With the untouchable CIA doing what it wants, when it wants to do it. The crime rates are so high, people are doing whatever they want. The amount of drugs that is being imported illegally into the states is unimagineable. Prior to Sept.11th Bush's ratings were falling big time, there are lots of problems in the states. There always were. The standard of living only looks good, but majority of people would never say they are happy with it. Democracy works on the principle of the few with all and the many with nothing (slight exageration). Furthermore, very little of the majorities voices are being heard. Moreover, this freedom and standard of living you speak of comes not from this beautiful justice, political, and economic system; but from exploitation of other world markets, their people, their laws, their stock markets. For every amenity you have, there is someone working for nearly nothing ensuring you have that amenity. Lastly, could you edify me of this constitutional system of representation that I have not yet heard of, I think I would come to understand your points better that way. Maybe that's what I am missing.

In other words, to avoid discontent, or revolution, or civil war, the invention of representation has a very old lineage. Goes back before Aristotle spoke of it: forms of it shows up in anthropological studies. It is old because at some point the crown will be defeated by its unhappy subjects.

I'm still ignorant of this word 'representation' in the context of which you use it. But I do understand you meaning in the above quote. I don't believe it, in the present that is. I don't believe that the people actually scare and keep intact what the government does. Shouldn't be a surprise that we are in the information revolution. Information can make you do whatever you want, is there something you want to do but no one else wants you to do it? Simple, you use information to learn about these people to help you deceive and control them and make them ask you to do what you wanted to do. That is what is happening with democracy, it's no different than communism except that in communism they told you the truth of how things will be, in democracy they tell you one thing, but they make you do whatever they want you to do anyway.

Furthermore, even though we ought to avoid ambiguity, I disagree that there is no place for the ambiguous or the incomplete. This is where equity at the level of case-by-case analysis comes in handy. Or where experimentation in law is most noticeable. When the law is written infallibly, we get problems.

You call experimentation, law? What would you say if you were the one they were experimenting on and your life was at stake? Furthermore, I am very confused how you can speak of law being complex and PRECISE and now say that law is FALLIBLE? I think maybe if you just explain to me what you mean by the words complex, fallible, and precise, this conversation can actually go somewhere. Lastly, I have never heard of anything that has been written infallibly. You say we get problems when we do, can you give me an example of something that was written infallibly and then gave us problems?

Both things (ambiguity and complexity) are necessarily a part of ordering an ambiguous and complex society.

But you said that law needs to be precise, you can't have precision and ambiguity, unless you mean something different than from what I understand of the words. Furthermore, why are they a necessary part of ordering a society?

What's your take?

[EnMarchant]

Your response was unnecessarily at odds with some commonplace notions regarding the law. If we are determine whether we agree or disagree we are going to need to narrow down a particular question to be answered. I want to let drop the guessing game about who controls the laws relating to cars and buses because it seems to me a rather complex question that needs statistics more than philosphy.

Here's a stab at a question: Can the law be written in simple ordinary everyday language? This question begs us to define "law", "written", "simple", and "ordinary everyday language".

My initial response: The law is that which is written and respeced as a legal code. But what is the law? What we know it to mean, or what a lawyer argues it to be, or what a judges states it to be? My entire point is that the law (all 10,000+ pages of it in NY alone) is a complex self-referential system of meaningful words and phrases that requires an immersion. It is a language, therefore, not unlike learning French or English. To know the law like a lawyer is to speak "legal". To know it in the context of citizen, therefore, requires a translation. Unless the citizen learn the language of the law and read its texts in the original version.

Thus, take a NY law:

Sec. 40. Bona fide purchasers. This article does not affector impair the title of a purchaser or incumbrancer for a valuable
consideration, unless it appear that such purchaser or
incumbrancer had previous notice of the fraudulent intent of his
immediate vendor, or of the fraud rendering void the title of
such vendor.

This is an example of 'complexity'. What is this law saying? Notice the words "appear" and "notice". These two words have quite a history in the law. Their legal meaning is meaningless outside the context of a legal analysis. In ordinary jargon, 'appear' means what? Appear to the eyes, to the intellect? 'Notice' - What is its ordinary sense? Reading something? Hearing something? In fact, "appear" and "notice" do not have these kinds of meaning in a legal context. 'Appear' is an objective possibility of appearance - that which could have appeared. And the same for notice. One could be completely unaware of something and yet in the eyes of the law be notified of it! The law turns the world updide down in its self referential system of meanings and complexities. And yet for a lawyer, this is rather mundane stuff. BTW, the need for objective tests in the law is a deeper question as to the ordering of society. Again, using the language analogy: The Objectivity assumption is a part of the grammar of the legal language.

Some comments on your response:
0. Justice and the law are different for purposes of my stated question. Do you agree? My question can be rephrased: Is it just to have a law that requires specialization to understand it? This points out the difference between law and justice.

1. As you notice I say the law should be precise. I think you would agree with this.

2. For me precise often leads to a kind of necessary complexity that requres a specialist. I am not too sure if you agree with this.

3. I said the law needs to leave some openings in its precision. This is where I used the words ambiguous, unclear, and incomplete. This is all too common in the law and it has an explanation: The lawmakers can not envision all situations, nor can they agree on all applications, thus their preferred method is to leave some areas open to interpretation. It is also where most of find the (equitable, pragmatic) balance in an otherwise impartial system.

4. By impartial I mean the strict interpretation of the words and phrases of the law. There is as we both know very little impartiality in the making of the law. But a judge and a lawyer are often unable to go past the obvious meaning of a very precise phrase in a law. If it says "No littering" it means something quite specific. Again this specifity still requires a lawyer - the word "littering" having a history of meaning.

5. Want to dispel one thought: I do not think people stupid. I just recognize a need for specialization. So I know that the average joe can be taught the meaning of the law, but he doesn't ever once need to see a legal code. Bonafide purchasers for joe can simply mean a person who buys something on good faith that the seller had the right to sell it. But the lawyer needs to be able to abstract from that ordinary usage in order to be able to generalize the situation. The issue of bonafide purchaser shows up in the stock market, in the corner drug store, in real estate, and in museums regarding the second world war stolen paintings. All of the joes in the world only need understand bonafide when they are faced with it in their very specific circumstances.

[Magius]

EnMarchant stated:

Regarding Law and Morals. One doesn't talk of morals in Law school.

I don't know what law school you went to, but everyone I have ever talked to that goes to law school is quite concerned and entailed in the topic of morality within law and how morality differs between nations, societies, companies, individual people, etc.

EnMarchant rudely stated:

I want to let drop the guessing game about who controls the laws relating to cars and buses because it seems to me a rather complex question that needs statistics more than philosphy.

Listen I don't know where you got this from but I don't appreciate being told that I am playing a guessing game about anything, especially when you couldn't be further from the truth. Secondly, I have no idea what the hell you are talking about, I said nothing about WHO controls the laws relating to cars and buses....I simply said that laws aim is for efficiency.

EnMarchant stated:

Can the law be written in simple ordinary everyday language? This question begs us to define "law", "written", "simple", and "ordinary everyday language".

My initial response: The law is that which is written and respeced as a legal code. But what is the law? What we know it to mean, or what a lawyer argues it to be, or what a judges states it to be? My entire point is that the law (all 10,000+ pages of it in NY alone) is a complex self-referential system of meaningful words and phrases that requires an immersion.

How many people of the US do you believe have respect for THE LAW <i>as a legal code</i>? And exactly what do you mean by that (that law is respected as a legal code)? I agree that the law is a complex system of meaningful words and phrases that requires an immersion, but I am saying it shouldn't be that way. Because it is that way is why people cannot govern their behaviour according to the law, which is suppose to be the whole point of law. This is what makes me mad about law, it doesn't try to prevent anything, the law doesn't try to tell you that murder is wrong, it is telling you "If you want to commit a crime GO AHEAD, but if you do, be ready to give up this that or the other". People don't know nor understand much of law, hence the law is ineffective to a large degree. Furthermore, there is no guarantee that the lawyer or the judge will interpret the law in the right way. I have been to too many court cases and read too many.. PREAMBLES - is what they are called isn't it? I'm not sure, you know where the Judge writes a report explicating his reasonings on why s/he came to the judgement they made - to know how easily the mistakes go about (I also use to work for a law firm).

EnMarchant asked:

0. Justice and the law are different for purposes of my stated question. Do you agree?

Yes.

Yes, the law should be precise. I don't agree that it need be, that it's complexity be such that it leaves it's citizens in such a state of ignorance as society is found to be in referring to law today.

I said the law needs to leave some openings in its precision. This is where I used the words ambiguous, unclear, and incomplete. This is all too common in the law and it has an explanation: The lawmakers can not envision all situations, nor can they agree on all applications, thus their preferred method is to leave some areas open to interpretation.

Fine but a citizen should have some sort of an idea of how the law will be applied or how it applies to their situation. There must be a degree of predictability in law for it to have respect or force on its members. Furthermore, I completely disagree that legislators PURPOSEFULLY leave some areas open to interpretation. Every law maker I have read about or spoken to has had as their chief impedus (if reality allowed) to fully explicate law. Legislators are always trying desperately to close as many gaps in the law as possible. Sure they cannot envision all situations, but there is some degree of foresight into the future. All situations are unique, as are all cases, no two cases are EXACTLY the same. That being said, how can law be effective if people cannot predict how law applies to their lives? What the hell is the point of law then?

What's your take?

[EnMarchant]

Lawyers and morals. Most lawyers are interested in morals. This is often why they go into the law. Lawyering is a highly complicated set of tasks. In it, there is no moral inquiry. If a lawyer thinks morally, it isn't because of this act of lawyering, but because the person is a moral thinker. My only point was that law school taught me how to be a lawyer and there was no mention of morals in my 4 years of law school education.

I'm sorry for saying "guessing". I was guessing. Apparently, you weren't. Because I am guessing, I'd like to drop that topic.

___________________________________________________________

How many people of the US do you believe have respect for THE LAW as a legal code?

Everybody who agrees with our representiative form of government has an implicit respect for their legal code. The legal code is the outcome of legislative compromises.

It is also a very specialized form of the use of our language. Often, common sense is how we discover a problem, and often how we discuss it. Though not always. In the legislature, common sense transforms into very specific language of conclusions. These conclusions (i.e. agreements and compromises) are even further clarified to avoid ambiguities. This is our legal code.

Even though the problem can be simple in principle. say Murder; in terms of making it illegal it gets complicated. There is causation. Very complicated. What exactly does it mean? There is intention, or mental culpability. Have you ever heard anybody talk about mental culpability? What amount, what kind, is it even relevant, and if there is no intent, is there still murder? These are not only moral questions. They are political questions that have answers in the compromises of our legislators. And they are ultimately answered in a legal code.

How does one draft a law that defines the matrix of possibilities of causation and intention, without ambiguity? With very very very specific wording. This is not the definition of common sense, It is the definition of a technical language. You seem to be saying what you want the law to be. I am telling you what it is and what I believe it must be. Instead of saying "That's not what I want." Tell me positively, Can the law be written in simple ordinary everyday language? And How?

I completely disagree that legislators PURPOSEFULLY leave some areas open to interpretation.

Politicians in favor of an insanity plea will want X and those opposing it will want Y. The resulting law is usually Z (not X or Y). And it is my experience that Z is purposely left ambiguous to get the law passed without either side looking like they lost. It is quite common, in fact, for a law to be written that requires a judge to think about the underlying policies of the law and intelligently apply them to the facts at hand.

This is what makes me mad about law, it doesn't try to prevent anything, the law doesn't try to tell you that murder is wrong, it is telling you "If you want to commit a crime GO AHEAD, but if you do, be ready to give up this that or the other". People don't know nor understand much of law, hence the law is ineffective to a large degree.

I am not too sure about your correlation. Do lawqbreakers break the law because the legal code is too complicated to understand? Most people who commit crimes do so in full awareness of it being wrong. But because of willfulness, circumstances, personality, etc, they break the law. They are not breaking the very specific wording of the legal code. They are breaking the underlying simplicity of a legal wrong.

What about tax laws? It's rather simple, isn't it? If you make any money, it may or may not be taxed. That's the underlying simplicity of the law. If you don't know yes or no, you go to an accountant. When somebody wants to hide income, it's not because the tax code is too complicated to understand, it's because the person doesn't want to pay taxes.

[Magius]

EnMarchant stated:

Lawyers and morals. Most lawyers are interested in morals. This is often why they go into the law. Lawyering is a highly complicated set of tasks. In it, there is no moral inquiry. If a lawyer thinks morally, it isn't because of this act of lawyering, but because the person is a moral thinker. My only point was that law school taught me how to be a lawyer and there was no mention of morals in my 4 years of law school education.

1. There is much moral inquiry in lawyering. Law is based on morals, however contrived.

2. Yes people are moral thinkers, as are lawyers, but law was made by people. Moreover, it was made on moral principles and a strong moral foundation.

3. Law school in teaching you lawyering, taught you morals. For many people base their morals according to the law. Furthermore, I find it hard to believe that in four years of law school there was no mention of morals. The two go hand in hand - even for those who see them separate (separation thesis) still KNOW or were TAUGHT about the moral history of law, and its moral present day application.

EnMarchant stated:

Everybody who agrees with our representiative form of government has an implicit respect for their legal code. The legal code is the outcome of legislative compromises.

That's a huge assumption and a wrong one at that. Politics and law are two distinct entities, to merge them in the way you have is erroneous. The legal code doesn't necessarily change with the coming of another politically representative party. Ie. If the liberal party is defeated one year and the conservatives take over, the people who continue to like conservatives wont respect the legal code anymore? (According to your logic that is what would happen.). I have never heard anyone around election time mention that the political body representing the country gives them a respect for the legal code. One may adore the party in power but continue to complain and sue the government for erroneous, immoral, or unjustified laws. One may continue to complain about the age limit set for impunity for minors but still respect the government.

I found your description of common sense and conclusions to be vague and ambiguous in describing law in general.

Throughout your post it appears to me that you have merged law with politics, maybe you do so intentionally, maybe unintentionally, either way I must ask: Do you believe them to be the same?

EnMarchant stated:

You seem to be saying what you want the law to be. I am telling you what it is and what I believe it must be.

Projection your honour!!! I am postulating what law proposes to be but isn't, you said it yourself above, you are telling me what you believe law must be, so it is you who is telling me what you want law to be. I am simply complaining about what legal theorists created the law to stand for, how it is suppose to protect us, how it is suppose to keep trade efficient, and how it is suppose to create a society in which we are to live happily and securily, and then I talk about how this doesn't happen and how the law is screwed up.

EnMarchant stated:

Tell me positively, Can the law be written in simple ordinary everyday language? And How?

I won't tell you positively, but I will tell you negatively. Law can be written in a simpler language. How? The same way YOU and I were taught the law. You weren't taught the law with huge words with complex and detailed meanings. No, you started off with simple words. A teacher broke down the meaning of the words and ideas for you. In the same way we could promulgate the law in a simple way for everyone to understand. Instead of dumb advertising posters about the new sale at McDonalds, they could make posters about law that applies to everyday people in their everyday lives.

EnMarchant stated:

It is quite common, in fact, for a law to be written that requires a judge to think about the underlying policies of the law and intelligently apply them to the facts at hand.

Yes, law is often made that needs a judge to think about it, which is what I am complaining about. If it makes a judge think, what do you think it does to a citizen? It should be noted that your use of the word 'intelligently' is idealistically used here. For there is no criteria that a judge must follow in order to base his/her judgement of a 'hard case' (HLA. Hart).

EnMarchant stated:

Do lawqbreakers break the law because the legal code is too complicated to understand? Most people who commit crimes do so in full awareness of it being wrong. But because of willfulness, circumstances, personality, etc, they break the law.

This is a naive notion many law majors hold, in my opinion. That law gets broken only because people intend to break the law(for their own gain). Even if you are right, it shows that law is missing a big aspect of its purpose. Speeding tickets for example are set at what they are set at in order to deter the speed limit breaker from doing it again. Furthermore, if you haven't noticed my posts are about the law in reference to those people who DONT break the law for the sake of breaking it. As far as I'm concerned, if even 5% of the population breaks the law unknowingly, it is too high. For you did say "MOST people who commit crimes...." so you agree that there are some who break it unwillingly. Bear with me on this idea and when we discuss it thoroughly, I will only be too happy to go on and debate the misapplications of law to people who break the law willfully and knowingly.

EnMarchant stated:

What about tax laws? It's rather simple, isn't it? If you make any money, it may or may not be taxed. That's the underlying simplicity of the law. If you don't know yes or no, you go to an accountant. When somebody wants to hide income, it's not because the tax code is too complicated to understand, it's because the person doesn't want to pay taxes.

What about tax laws!?! Almost every year I get a letter from the government that they made a mistake in calculating my taxes. So how is the tax code not complicated? I know many people that do their own taxes, they have courses on taxes, they keep up on the updates of laws changing in reference to taxes and they still fill out the tax forms wrong (even with computer software). Ofcourse! If someone wants TO HIDE INCOME, it is implicit in the statement that they don't want to pay taxes, we can go on forever doing circles of hiding the conclusions in our premises as you do and the debate will go on forever. Again, I am talking about the people who don't want to hide income. Lastly, I disagree that a government who taxes their citizens should leave it upto the citizens to calculate the taxes for themselves, nor should they go to an accountant and pay additional sums so the government doesn't have to do anything but write cheques. People working for the government are overpayed anyway (personal opinion).

What's your take?

[EnMarchant]

On the law and moral discussion, we probably have some different ideas about what constitute morals, and perhaps this would explain a further disagrement with the way morals and law interact. I think this would be an excellent new thread (LAW AND MORALITY) and when I get the chance I will start it. As for your 3rd statement, I just want to say that morality as it is discussed in philosophy, from Plato, Aristotle, Aquinas, Kant, Locke, Hegel, Mill, Moore, Rawls, et al, there was no mention of this or anything like it in law school. Policy is the subject of law. What is the underlying problem and what are the various interests. The law is a rather utilitarian process, so indirectly the cost benefit analysis and compromise were the morals I was taught. I took one elective that talked about the federalist papers. We never read the constitution other than indirectly in cases. Etc.. But again, this is all good for a new thread.

Throughout your post it appears to me that you have merged law with politics, maybe you do so intentionally, maybe unintentionally, either way I must ask: Do you believe them to be the same?

This is an interesting question. Yes and no. Yes, because most laws are a direct result of the compromises of the lawmaking bodies. This I believe as a statement of fact. I could be wrong, but I consider it based on experience. No, these very compromises reflect a more fundamental set of interests in the culture. Furtheremore, the courts often affect legal changes undemocratically. And lastly, most fundamentally, there is the natural evolution within a culture of mores, customs and principles that feed the problems as well as their legal solutions. In this sense, the law is affected by politics but that's not all the law is.

You seem to be saying what you want the law to be. I am telling you what it is and what I believe it must be.

Projection your honour!!!

I agree. But we are both doing the same thing. I am saying that the nature of the thing (that is, what I think the law should be concerned about, namely Justice, but economy as well, but also that it should make sense and be efficient, etc..) is complex and therefore the law itself is complex. I want the law to do all that I want it to acheive. We might disagree with the goals of the law, therefore.

I'm not finished. But I have to go. Anyway, the above wraps up my thoughts on the question of What is the law. The rest, about the language of the law, will be my next post.

[Magius]

EnMarchant stated:

I agree. But we are both doing the same thing. I am saying that the nature of the thing (that is, what I think the law should be concerned about, namely Justice, but economy as well, but also that it should make sense and be efficient, etc..) is complex and therefore the law itself is complex. I want the law to do all that I want it to acheive. We might disagree with the goals of the law, therefore.

Listen EnMarchant, it gets really annoying when someone needs to be told everything twice or more. We are not doing the same thing, you admit you are telling me what you want the law to be, and you postulate (whether correctly or incorrectly is yet to be determined) what the law is. I on the other hand am talking about what law <i><b>proposes</b></i> to be and contrasting that with how the law actually affects people and how it is used. There is a distinct difference between your postulations and mine. I emphasize this because I think it key for us to understand the difference and be able to understand each other better and lead our discussion in a more productive direciton.

What's your take?

[EnMarchant]

I'm not too sure why my analysis and thoughts are always annoying you or being rude or some other pejoritive term that you throw into your writing. I just thought we were discussing things.

Quite to the contrary to anything I might have implied in my last post, I feel that I am accurately describing the law as it is. I am only agreeing with its complexity. I am justifying its current state of complexity. I am therefore not only interested in the ideal.

It is my underlying belief that JUSTICE IS COMPLEX: It is in this sense that I justify law's complexity: for me, what the law proposes to do is complex.

This ideas of justice as well as this current state of the law you apparently don't agree with. If I am wrong about what you believe, respect that I have a reason for why I believe this. (For example, you said: "First off, justice is not complex in the minds of each person."). Because you believe that justice is "not complex", you propose that the law can be written in simple language. IF YOU ARE NOT DOING THIS THEN IT IS YOU WHO ARE NOT CLEAR IN WHAT YOU ARE DOING.

By the way the law is not complex by design but by the evolution of the complex stuff that it seeks to do. In this I refer to common law as well as expansion and changing needs of society, just to mention a few rather complex systems in a society.

Please respect my analysis with direct understanding and challenge.

In rereading some of your earlier posts, you mentioned Fuller and Hart. I will do some thinking and research on their writings before I respond to this question in the Law and Morality thread. But know that my writer of choice would be Dworkin.

[Magius]

Alright, while you're thinking and researching Fuller and Hart, I will further elaborate on my critique of Dworkin and his views, specifically, on <i>Paternalism</i>. If that's okay with you.

Source of information: <i>Classic Readings and Canadian Cases in the Philosophy of Law</i>. Edited by Susan Dimock. 2002. Pearson Education Canada Inc: Toronto.

One of the most dubious ones is, Dworking considers laws making suicide a criminal offense to be paternalistic. Please notice that it isn't <i>attempted</i> suicide that is illegal, it's actually committing suicide. In fact, in Canada Dworkin got his way, suicide is illegal. Other than fear, I don't see how a law against suicide is any sort of paternalism. For those who don't know what paternalism is (obviously not you EnMarchant - but for those who take a keen interest in these posts), Dworkin defines it as: "The interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced."
So, if someone is suicidal and they know that suicide is illegal, I can't help but imagine that they would not tell anyone about it (for they fear the legal systems reprisal) which would make them feel even more alone then they were before and go to kill themselves in a quiet corner away from everyone. As for the fear factor in deterring people from committing suicide, I think it is ludicrous. God forbid, but if I was suicidal I can't imagine myself fearing many things, especially not what the legal system will do to me should they somehow stop my suicide, for I can't be charged for attempting suicide, only for committing it. But even if I could be charged, I don't see people being affected by the legality of the action. Furthermore, once I'm dead, what do they do? I guess the only pragmatic side to this erroneous notion would be if someone actually slit their wrists or jumped off a bridge or what have you and didn't die but were saved, I guess the jduge would just glossed over the fact that it was attempted and not committed suicide.

Another ludicrous notion, which by the way, was well discussed in the <b>Gay right, or gay wrongs</b> thread. Dworkin believed that laws regulating certain kinds of sexual conduct, e.g. homosexuality among consenting adults in private as paternalistic. I think any lay man can see the assumption here, that homosexuality is a threat to any person outside of the bedroom. I'll leave my critique for you to read in the other thread, I'm confident I covered it well enough there.

This one is kinda funny. Dworkin believes that laws regulating the maximum rates of interest for loans are paternalistic. - For those who don't get it - who makes the laws? Government. Who sets the tax rates? Government. Why would a government make a law restricting its own ability to do something? So we can feel safe, but should it ever come down to them really wanting to raise tax rates they simply alter the law to the tax rate they wish to set. So they appear restricted, but aren't.

I will continue later, it's getting late here, gotta work in the morning...

What's your take?