Comment by OldSchool
13 years ago
Caveat for for many of us overly rational thinkers: the powers that be deliberately are allowed to 'interpret' this code nondeterministically by many different means including its 'spirit,' admissibility of relevant information, manipulation of venue and participants, apparently even extrajudicial proceedings lately.
In short, that allows a lawyer to answer almost any question with "it depends," and start billing.
"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.
Right. It should be noted that appellate practice, which is really where the big debates about legal interpretation happen, the "what does this comma mean" work, is not exactly a cash cow for the industry. It's a brand-building practice, but outside boutiques it's not what pays the rent. What pays the rent is factual disputes, where its pretty clear what the law is, but there is disagreement about who did what with what intent and how much did it cost.
With respect, only someone who hasn't studied law could say this.
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.
> Law is complicated and filled with ambiguity because the world is complicated and filled with ambiguity.
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.
Again, I must insist that folk can only take this view because they have not studied law.
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.
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True, yet I'm convinced by obvious ambiguity that it's on purpose, to feed the legal industry.
Yes yes, and all crime is caused by the police, doctors make people sick, and weather forecasters hold people hostage to the elements.
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That's one of the reasons I am a libertarian. Less government means less complex law means less bugs and abuses of the law. If your government tries to say what you can or can not eat, for example, you need complex law to figure out what is cheese and how big the holes in it must be. If you can eat whatever you like and the government couldn't care less, you do not need any of that. So tell me - do we really need a law specifying which size holes in the cheese must be?
Why would 'less government' be less complex law or less abuse of it?
'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.
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Surely the thing to advocate is less gratuitous regulation and more efficiency. Because no regulation at all is disastrous — without it we would still be living with lead paint, arsenic in our food, rat-filled restaurant kitchens and so on. Libertarianism espouses minimal state intervention, but it's clear that we actually do need a lot of intervention. At the same time it needs to be the good, useful type of intervention that protects citizens against the abuses of the marketplace.
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There's a difference between legislation/regulation and case law. Hayek is particularly good to read on the distinction.
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Also, if something use case comes up that your software didn't handle, you can write new code to handle it and rerun the old data. You cannot do that with law, you can't write new law and use it to punish past action.
So law is a machine learning problem?
Judicata think so.
Interpretation isn't an unguided, irrational process. When your lawyer answers "it depends" its because you've placed him at one point in what's really a decision tree and asked him: "where does it end?" It's like asking a programmer whether a particular token in a C++ program is a type name or an identifier. It depends.
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?
For the answer, see my future law review paper "A complete multi dimensional polytope model of US law"
I'm not writing one of those either :-)
...although there's been some interesting work from Dan Katz at UMich summarizing progress in this area http://computationallegalstudies.com/
You make this sound like a bad thing. Would you really prefer "black and white" laws that leave zero room for flexibility or interpretation in light of a given situation?
This preference isn't even black and white.
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:
The point here is that specificity is good so that J. Random Citizen can easily know if they are breaking the law or not.
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.
> 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")
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.
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Yes, we should have black and white laws, and unit tests for them. So someone could write a unit test for "Will this allow the NSA to create a secret court that is outside the rule of law?" or "Does accessing a university computer that has an open access policy allow for a sentence of 130 years?"
I believe we'd see a lot simpler laws.
Depends how you define "simpler." There would be a LOT of incredibly specific definitions, since there would be no room for interpretation by a judge.
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.)
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There's a sub-area of AI, since about the 1970s, that does try to do that, but it's very much at the research level. Modeling even simple "common sense" things is notoriously hard for computers (commonsense reasoning seems to require a large amount of implicit background information), so it's not clear that easy to unit-test coincides well with a human notion of simplicity and predictability.
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?...
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> Yes, we should have black and white laws, and unit tests for them.
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.)
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The problem with this is, human beings don't blindly interpret and process laws as code. Human beings can honestly differ in their interpretation of a law, and the accepted interpretation can change over time.
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.
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I think that's impossible with the current English language, and the fact that human beings disagree about lots of things.
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No, you'd see more complex laws because law makers would just write around the unit tests rather than address the fundamental issue. Ergo, accessing a university computer would be fine (because that's in the test) but accessing a library computer would not .
> I believe we'd see a lot simpler laws.
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".
I'd love to see this for a subset of laws. You could start with the law surrounding permits, for example.
To bring this into context, legislatures have actually been trying to reduce flexibility in several areas of the law recently, most notably in sentencing guidelines.
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.
When that black and white law is:
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.
Worth noting that definition and grammar are also contextual. Define "speech". Does that include visual images in video games? Grammatically no. Clearly not contemplated by the founders. But absolutely a fundamental part of free speech given the current times.
What constitutes "establishment" of religion? Does this mean congress can make no law about what a teacher teaches (this will abridge their free speech, at least in a temporal sense)?
I suspect he's simply warning against mistaking the formal spec (US code) for enforcement.
Just as you shoulding mistake the formal spec (requirements document) for an explanation of how software works.
I've never been able to decide whether or not we should rigorously enforce Title 4 Chapter 1. On one hand, such enforcement would be ridiculously overbearing. On the other hand, such enforcement would be ridiculously overbearing.
It doesn't matter as much as you say. The fact is, at the very least we can now know better where the fenceposts are, and this will have the undeniable effect of creating a more educated citizenry. A secondary effect is that motivated people can now create tools that reveal ways in which legislators are positioned in relation to those fence posts, and why their interpretations (such as they may be rationalized in accordance with your observation regarding law enforcement) are positioned where they are.
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.
There is this wonderful article by John Hasnas, "The Myth of the rule of law". It brings a number of very interesting ideas:
* 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.
At least for me, accustomed to logic, determinism and mathematical models for laws of nature, this was actually a surprise. Instinctively I still find it distasteful, though I can't say I have anything better to offer other than the unrealistic ideal that all judges would be guaranteed to be truly impartial. I have never directly benefited nor been harmed by the nature of this 'code' either, unless you count getting out of traffic tickets by switching on a learned persona that has people skills.
> the unrealistic ideal that all judges would be guaranteed to be truly impartial.
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.
You can be empathetic to someone without being partial to them.
But your point still stands. The reasoning and specificity of cases are what define common law precedent.
http://en.wikipedia.org/wiki/G%C3%B6del's_incompleteness_the...
Italian law defines itself as being complete at any given time. This is why I do not follow Italian law, because it's impossible to follow ipso facto. Is this formally consistent?
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No, judges (who mainly interpret words in laws and partially juries), are not allowed to just make things up all the time, which is what you're implying.
I can't believe that comments like this get upvoted by the same people who decry the practice of viewing programmers as monkeys or typists.
Good luck starting your own country with a legal system that doesn't require interpretation, or heaven forbid, lawyers.
HN's InclinedPlane put this sad reality of the legal system into perspective wonderfully: http://news.ycombinator.com/item?id=4753117
If I used a LinkedList in my code instead of an Array will it speed things up?
It depends...
The US legal system is case law. of course, that makes interpretation even more non-deterministic, as you depend on your $10,000/hr legal team to dig up favorable ruleings
What you've described is a trait of human beings, not politicians and lawyers.