Comment by lobotryas
13 years ago
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?
13 years ago
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.
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.
Of course. It's hard to deny that you killed someone if you killed them in self-defense. And that's why there is value is having law be interpreted on a case-by-case basis. The judiciary could determine, because it was self-defense per your examples, that you didn't "technically break the law" because the law as worded is weak. This is the iterative nature of developing laws. If too many people were found to not be breaking the law as written after review, then the laws, and the wording thereof, should be updated to account for that by being more explicit and producing less grey area.
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.)
.. it depends. What if the point in the given situation is to avoid traffic congestion? You normally don't want (a small) buggy drive down a high speed highway. In that case it the point would be: "should match the traffic flow requirements".
So, I agree with your argument. It's all very situation dependent. For some reason I find it oddly comforting that human society and life in general can't be crammed into a small set of fixed rules. That would be kind of boring I think.
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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?...
Classical logic doesn't work in a legal context. You need at least to use fuzzy logic to model the domain.
> 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.)
Thinking about it, it probably can be done.. just not in a free society (which I think is all about doing what you want as long as you don't hurt others in the process). You probably can create black and white laws in a despotic rule. "The Ruler has all right, you have none. He decides." There, drafted an entire legislature with very black and white rules..
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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.
Not really, as part of making the law - congress needs to go through all possible interpretations and rule out the ones not in the spirit of the law one by one. Then the law is defined by its tests.
Is it okay to collect all XYZ data?
Is it okay to collect anonymous XYZ data?
Is it okay to collect XYZ data and hold it for X days?
Is it okay to store and index but not search a collection of XYZ data?
The law would end up saying something like -
The NSA is permitted to store and index anonymous data for a period of 10 days. Attempts to make anonymous data personal are forbidden. Data may only be accessed with a court issued warrant subject to the following conditions:...
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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.
A nice example of the problem with natural language is Treason Act 1351[1] (this is still current law in the UK!), written in Anglo-Norman. This is problematic, as our understanding of the language is incomplete. Notably, in this case, there is no agreed upon meaning of "pvablement" — it means either "provably" or "probably": a rather major difference come a court of law!
[1]: http://www.legislation.gov.uk/aep/Edw3Stat5/25/2
you wouldn't write in English, you'd write it in Lisp.
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That's my point.
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.