Comment by devsda
15 hours ago
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
> The legal question is posed: Who is liable under Roman law?
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
> My question is why does anybody have to be liable at all?
This question mistakes what civil law is doing. A more accurate framing would be, “why does anybody have to bear the loss?”. But of course, somebody must. So the task of civil law here is to determine who. Certain policy choices will align better or worse with a sense of fairness, better or worse with incentives that could reduce future losses, etc.
That's such a strange interpretation that disagrees with my intuition.
If the Yankees hit a practice ball out of their stadium and into my house, causing bodily harm to a loved one, I wouldn't be satisfied with any of the reasoning in your comment.
More generally, people are allowed to take on risk as per their own appetite, but legal liability allows risk-hungry individuals to be incentive-aligned with everyone else.
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> nobody seemed to act in any way negligently
The whole point is that there's a legal system that allows a plaintiff to make an argument that there was negligence at play, and OP outlined a logical list of examples of how it could be argued up to the government itself being negligent for zoning. It's the job of the legal system to remove the ambiguity of "seemed", particularly in the context of tort and compensation.
This example just happens to be less obvious than a construction company building a house or bridge that collapses and kills people, and most cases in front of a court are equally ambiguous.
Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Seems to be less of an issue in practice, as the level of detail is pretty clear unless you're operating at the "bleeding edge" of legal understanding, in which case I imagine you can afford to hire someone to figure out the details to you.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
It's not about "unique court cases". Surely you must have noticed that whenever someone asks online whether it's legal to do some apparently reasonable but tricky thing, the answer is almost always "ask a lawyer"? How many of those people can actually afford a lawyer?
Do you actually think it's ok for freedom to only exist for people who can afford lawyers?
One of the awesome things about the American Constitution is that it's not really written in complicated language. Of course this hasn't made things straightforward or easy.
maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
As the complexity of the world increases this may naturally happen
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A corollary to your second paragraph is that you can concentrate power if you keep the masses from understanding it fully or able to practice it competently. This is why passing the bar exam is so difficult. What if most criminals were as adept at fighting their charges as they are at physically fighting? (Meaning: won a healthy percentage of the time). The system is designed to crush people and concentrate wealth and power in the hands of a few.
In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
Ideal and reality are rarely in alignment, and reality is what we need to be concerned with.
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Not quite that simple. Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
There are other means to gaining power, of course.
> If enough people stop believing in the law, it really threatens those in power.
I think this is why the thing judges hate the most is people admitting when the law gives them an unfair advantage.
A rule that unjustly benefits someone is fine as long as they don't break kayfabe. Big Brother loves you, that's why you can't install apps on your phone, it's to protect you from harm. The incidental monopolization, censorship and surveillance are all totally unintentional and not really even happening. Oceania has always been at war with Eurasia.
Whereas, declare that you're shamelessly exploiting a loophole? Orange jumpsuit.
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> Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
Not quite that simple.
If enough people stop believing in the law, the society breaks apart, and you have people shooting each other in the streets trying to loot supermarkets and extend their lives for a week or two, before inevitably dying of starvation.
This is serious stuff. Society and civilization are purely abstract, intersubjective constructs. They exist only as long as enough people believe in them -- but then, it's still not that simple. Actually, they exist if enough people believe that enough other people believe in them.
Money, laws, employment, contracts, corporations, even marriages - are mutually recursive beliefs achieving stability as independent abstractions. But they're not independent - they're vulnerable to breaking if large group of people suddenly start to doubt in them.