Enforcing the law...

[Freakshow]

This thread is being started in response to a conversation we had going in the thread about Southwest kicking a person out because of her shirt.

My degree is in Law Enforcement. Many of the instructors were retired or active-duty law enforcement personnel. Including some high-ranking officers of local police departments.

One of the professors worked at a local police department that covered an area that had a very high violent crime rate. Lots of gang activity, and lots of drug trafficking. The deparment had one Chief, with 3 Majors below him. This professor was one of those 3 Majors, and is now the Chief. He did not need to teach a couple classes at night because of the money. He did it only because he wanted to positively influence the next generation of law enforcement officers. He is highly intelligent, well educated, vastly experienced, and dedicated. I don't respect people easily, but I certainly respected him.

The point of all that build up is to make sure that it is clear that this individual is very serious about the field of law enforcement. He has dedicated his entire adult life to it.

Which is why I was shocked (at the time) to hear him say the following in class one night: "I don't want to live in a society that enforces every infraction of every law, to the letter of the law."

That was a pretty shocking thing to hear from someone that is such a serious, hardcore law-and-order person. But after more thought, I understood what he meant and came to agree with it.

There are two ways to look at this:
1: He is right. We need human thought and common sense involved in every aspect of enforcing the law.
2: He is wrong. If a law should not always be enforced to the letter of the law, then the law itself is flawed, and needs to be changed.

I am with option #1. There are a couple of reasons for that. One is that we can sometimes fight a larger problem by overlooking a smaller problem. Such as granting immunity to one person who has commited crimes, in order to get at other people that have committed much more serious crimes. It might not be the ideal, perfect solution. But we don't live in an ideal, perfect world. We must do the best we realistically can. Another reason that I think he is right is that it would be nearly impossible to create a system of laws that could function properly and practically in a society in which all laws were always enforced fully, in all situations.

So...now the discussion starts. Thoughts? :)

[Melendwyr]

One is that we can sometimes fight a larger problem by overlooking a smaller problem. Such as granting immunity to one person who has commited crimes, in order to get at other people that have committed much more serious crimes. It might not be the ideal, perfect solution. But we don't live in an ideal, perfect world. We must do the best we realistically can. An interesting and well-put topic.

My objection: what is the "best we realistically can [do]"? I don't ask this rhetorically. What is it, actually? Any accurate description of the best that's possible would be the foundation for a proper system of laws that would create that condition. Any failure to enforce those laws fully would by definition involve doing less than the best possible, and preferring that the laws not be fully and completely enforced would be equivalent to preferring a worse society to a better one, which is just silly.

If there's some principle that would lead us to not enforce a particular law, then that principle should be described in another, overriding law.

[CBL4]

I would choose 1.5, the law should be enforced to the spirit of the with only rare exceptions. Giving justice people some discretion makes sense but it should be limited. If the discretion is too much, it leads to acts of legal extortion and favortism.

For example, if you are under 21 in Nevada, possession of any marijuana is a felony with a sentence of 1 to 4 years. The reality is that virtually no one gets a 4 years sentence but it can always be use as a threat to extort some behavior such as a confession or ratting someone else.

Another example, a woman accused a man of some sort of assault. The man was arrested and charged with a crime that had a 1 year jail term. At his arraignment, he pled inocent. He was immediately charged with additional crimes that had a 9 year sentence because the DA used his "discretion" to legally extort a confession. It is legal to extort a confession with the threat of additional jail time but it is illegal to extort a confession with with the threat of a beating.

As to buying snitches with reduced prison terms, this is the worst law in our current legal system. It legal to buy testimony with a reduced testimony but it is illegal to buy testimony with money.

I do not understand why prison time is legal tender (or threat) where other things are not.

CBL

[Manny]

I agree with CBL4. On the one hand, I agree that simple human judgement is a valuable part of law enforcement. On the other hand, an unenforced law is a recipe for future uneven enforcement. What if it turns out that cops are selectively enforcing a street vendor law against people who sell politically objectionable art (as happened during the Guiliani administration) or speeding laws against black and hispanic people as a lever to get access to their cars to search for other infractions (as was the policy of the New Jersey State Police for many years)? It's hard to track -- who writes reports on infractions not written?

So whilst I agree with you, I also warn that it's extremely difficult to have a system like that (which is the one we have in pretty much all western countries). Difficult enough that sometimes seems something of a miracle that democratic societies can exist at all. Constant vigilance is necessary.

[a_unique_person]

If you have ever tried to write a computer program, you soon realise the limits of pure logic. While a computer system is possible to eventually tame, using just logic, after a tortuous process of testing and debugging, the idea that every law can be written in unambiguous, flawless logic is absurd. It isn't ever going to happen.

When I did sociology, one of the points raised was that, given we are stuck with a legal system that does depend on humans interpreting the law, what are the implications of that. The claim was that kids from a 'good' neighbourhood caught doing something bad are given a warning and sent on their way, while kids from a 'bad' one are given a much harder time.

[Melendwyr]

If you have ever tried to write a computer program, you soon realise the limits of pure logic. I disagree. Writing code quickly leads one to realize just how bad humans are at handling explicit logic.

Our reliance on "understood", implicit reasoning makes us vulnerable to all kinds of shoddy thought.

[Atlas]

Manny mentioned speed laws. Where I'm from rush hour is exactly that and speeds can be well above the limit with cops driving with the flow. The only ones stopped are drivers recklessly weaving from lane to lane speeding from opening to opening.

I think laws that everybody dismisses for moments like rush hour aid the smooth functioning of society. I think it's the cops jobs to make sure we're doing it safely.

AUP mentions good neighborhood and bad neighborhood selective enforcement. There is also a related selective enforcement which I've heard of but don't understand.

That is, people up for crimes that result in fines - If you don't have the money you may be charged with a lesser crime but if you do have the wherewithal to pay you'll have to pay the fine. This though is possibly handled as often by a judge as an arresting officer.

Similarly, if a first timer is picked up and charged for a crime and a more experienced criminal is brought in for the same activity, the more experienced guy is given an opportunity to plead to a lesser crime and the same opportunity is not offered to the first timer.

I realize that many first timers are merely scolded by judges and let off - I think that's good for most people. A brush with the law is sobering. But when serial criminals can plead to lesser crimes and a first timer cannot, I don't get it.

I don't know how often this happens. It happened to a buddy on a drug related charge. His lawyer could not plead my buddy down, as he had successfully done in many other similar cases. He was facing some serious time. The lawyer was good and got him into some programs that resulted in a pretty lenient sentence - basically probation.

It was a good decision and sentence. He's got a good job and has had no run ins with the law for the last 7 years. So I agree with option 1. Good sense in enforcement and sentencing helps society function better.

[a_unique_person]

AUP mentions good neighborhood and bad neighborhood selective enforcement. There is also a related selective enforcement which I've heard of but don't understand.

That is, people up for crimes that result in fines - If you don't have the money you may be charged with a lesser crime but if you do have the wherewithal to pay you'll have to pay the fine. This though is possibly handled as often by a judge as an arresting officer.


I think the problem is that a lot of people who are fined cannot afford the fine, and go to prison. Reducing the fine means one less person being brutalised for a crime that a wealthier person would have not been sent to jail for.

[AmateurScientist]

Good topic, Freakshow.

In my opinion, 1 and 2 are not necessarily mutually exclusive. I agree with 1 in that judgment and discretion are essential to the dispensing of justice and equity, given the nearly infinite variety in the sets of facts that can arise in actual enforcement. Robots or computers cannot weigh aggravating and mitigating factors and reach equitable results. 2 might sometimes be true, and there are certainly criminal laws that shouldn't be in force.

There is another aspect to law enforcement, whether it is in a criminal or civil arena. That is the spirit of the law. Sometimes the letter and the spirit are not one and the same, given a set of factual circumstances. We often see appellate decisions in which the court examines the legislative intent to determine the purpose behind the law. If the legislature did not intend to address the issue present in a given case, perhaps the law should not be applied to it. Sometimes laws are strictly construed by their own terms or by the rules of statutory construction, and sometimes they are liberally construed to do substantial justice. Sometimes all doubts are resolved in favor of one party against the other.

Human judgment is an essential part of justice. Without it, robots or computers could administer it, and that will never be the case, nor should it be. We need judges, and we need police officers and prosecutors to continue to exercise their own judgment when appropriate.

The short answer to your question is "It depends."

AS

[BPSCG]

If you have ever tried to write a computer program, you soon realise the limits of pure logic. While a computer system is possible to eventually tame, using just logic, after a tortuous process of testing and debugging, the idea that every law can be written in unambiguous, flawless logic is absurd. It isn't ever going to happen.a_u_p, there may be hope for you yet. :)

Last time I saw a "perfect" program, it did nothing but spit out the words, "Hello, World!" It did it perfectly, but it was of (ahem) limited utility.

I use another program every day now, as do millions of other people. It's called Microsoft Windows XP. Anyone care to argue that XP is perfect, unflawed?


(...crickets...)


I didn't think so. Well, that Windows XP has a relatively simple task - to keep my computer, which probably has the intelligence, if not physical complexity, of a bacterium, running smoothly. It does it pretty well, though not perfectly.

Anyone care to argue that a human society is less complex than a laptop computer?


(...crickets...)


I didn't think so. Well, if we can't write perfect operating system programs for our computers, who in his right mind thinks that we can write perfect operating systems for our societies?

So, yeah, you have to have a certain amount of human judgement in applying the laws, because the laws are not and can not be perfect. Sometimes that human judgement will fail, and if the failure is catastrophic enough, will lead to changes in the laws. But that doesn't mean every law must be re-written and tweaked until it's perfect, because then the only laws we'll have will be the equivalent of "Hello, World!"

I routinely jaywalk on my way to work. Should I be arrested? Or should teams of legislators, lawyers, judges, and citizen groups convene to re-write the anti-jaywalking statutes?

[Melendwyr]

I very much doubt that you could manage a computer's function in realtime, BPSCG.

More to the point, this statement: So, yeah, you have to have a certain amount of human judgement in applying the laws, because the laws are not and can not be perfect. is wrong.

What would constitute perfection? Whatever you describe can be made into law. If you can't describe what it would mean for your computer to work perfectly, or even narrow it down a little, you have no grounds to say that any random system doesn't accomplish that task.

I also think it's interesting that AmateurScientist is bringing the question of artificial intelligence into this debate.

[BPSCG]

I very much doubt that you could manage a computer's function in realtime, BPSCG.I have no doubt. :D

(...that I could not, lest the point be misunderstood).

But has the computer chip yet been developed that could manage, in real time, the functions of life, even on the microscopic scale? I don't believe so, though if someone can show mewhere I'm wrong, I'll be happy to retract (my bacterium comment was based on an interview with a computer scientist I read about five years ago).

So are you arguing that XP is a perfect operating system? Or are you arguing that my laptop is more complex than society?

If XP is not a perfect operating system, why doesn't Microsoft make it perfect?

If you can't describe what it would mean for your computer to work perfectly, or even narrow it down a little, you have no grounds to say that any random system doesn't accomplish that task.Ah, but the object isn't for the computer (analogue: society) to work perfectly; the object is for the operating system (analogue: laws governing society's behavior) to work perfectly.

Humanity has been trying to get the code for society's perfect operating system for about 4000 years now, since the Code of Hammurabi. What's the holdup?

[Melendwyr]

But has the computer chip yet been developed that could manage, in real time, the functions of life, even on the microscopic scale? Nanotech devices can manage that. They're called bacteria.

So are you arguing that XP is a perfect operating system? Or are you arguing that my laptop is more complex than society? Neither, which is obvious.

Humanity has been trying to get the code for society's perfect operating system for about 4000 years now, since the Code of Hammurabi. What's the holdup? Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones. The ones that recognize this truth have their hands full trying to handle the ones that don't.

[BPSCG]

Nanotech devices can manage that. They're called bacteria.First time I've hjeard of bacteria referred to as "nanotech devices". Or has life been created in the laboratory and I somehow missed the announcement?
Neither, which is obvious.So if we can't develop a perfect operating system to control the behavior of a machine that is simpler in construction than human society, why should we be so arrogant as to believe we can develop the perfect operating system to control human behavior?
Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones. Might that be because the benefit would be negligible in relation to the cost, which would be damnable?

Go ahead. Write that perfect anti-jaywalking statute. Get back to me when you're done. Then we can get to work on that rule about what words are allowed on your t-shirt while you're on a plane.

[toddjh]

My answer to the question is this:

What kind of law enforcement officer would you rather run into, one who obsesses over every little infraction, or one who uses good human judgement in deciding which to pursue?

As a real-world example, I'm thinking of the Attorney General's recent obsession with porn. Now, it's possible that the prosecutors might succeed in making some obscenity charges stick. Does that mean it's a worthwhile use of law enforcement manpower?

As long as police and court manpower is limited, enforcing the letter of the law every time is not even an option. Some crimes must be overlooked regardless. I know this isn't exactly what the OP was talking about, but it's related. I think the solution for both problems is the same: sane law enforcement policies that put the emphasis on those infractions which are either dangerous to others or committed with malicious intent.

A famous quote attributed to Einstein changed my views on a lot of things when I read it the first time: "He who joyfully marches to music rank and file has already earned my contempt. He has been given a large brain by mistake, since for him the spinal cord would surely suffice." He was talking about the military, but I don't see why it shouldn't apply to police, prosecutors, and judges as well.

Jeremy

[Jocko]

I very much doubt that you could manage a computer's function in realtime, BPSCG.



True. But your computer cannot program itself. I'll take constant improvement over instant but limited perrfection any day.

You might as well tell me that I can't haul a trailer with my hands. Also true, but completely meaningless if I have the keys to a truck in my pocket.

[Jocko]

Nanotech devices can manage that. They're called bacteria.

Wow, you've determined that life=life. I'm beginning to think I'm talking to a computer here.

BTW, bacteria are far from perfect. Not only are they mortal, they are also prone to mutate in unpredictable ways that may or may not be beneficial.

Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones. The ones that recognize this truth have their hands full trying to handle the ones that don't.

No, we'd just rather spend the night packing instead of memorizing 3,000 pages of problematic apparel in preparation for a flight. Let the computers compute, let the living live. Your insistence on the grand field unificatin theory of sociology is puzzling to say the least.

[CBL4]

There is a dilemna here:
1) Discretion should be used.*
2) If discretion is used, it will be misused.

Limiting discretion hogties the the best law enforment towards mediocrity. Limiting discretion hogties the the worst law enforment towards mediocrity.

Since I lack confidence in our judicial system, I would prefer limiting its discretion. If you have confidence in our judicial employees, you should prefer discretion.

* - In reality it would be impossible to write laws which do not require discretion.

CBL

Edited because I forgot the "im" on impossible.

[Melendwyr]

There is a dilemna here:
1) Discretion should be used.*
2) If discretion is used, it will be misused.

Limiting discretion hogties the the best law enforment towards mediocrity. Limiting discretion hogties the the worst law enforment towards mediocrity.

Since I lack confidence in our judicial system, I would prefer limiting its discretion. If you have confidence in our judicial employees, you should prefer discretion.

* - In reality it would be possible to write laws which do not require discretion.

CBL I... well, damn. That is an excellent point. That is a very, very excellent point.

I'll have to think on that a while.

[Melendwyr]

True. But your computer cannot program itself. Actually, they can.

Bacteria are just organic machines, Jocko. It's clear that you're going to keep shifting goalposts (what exactly is "perfection" when it comes to living things?), so I'm just gonna put you on a little list of mine.

[Jon_in_london]

When I did sociology, one of the points raised was that, given we are stuck with a legal system that does depend on humans interpreting the law, what are the implications of that. The claim was that kids from a 'good' neighbourhood caught doing something bad are given a warning and sent on their way, while kids from a 'bad' one are given a much harder time.

I think its quite important that police actions should always bear in mind "is this in the public interest?" For example, pepper spray is viewed as a self-defence mechanism by women in many contries. In the UK pepper spray is considered an Offensive Weapon- possesion of which is a criminal offence in this country. Is it therefore right if an Italian girl brings over her pepper spray, gets arrested, charged and sent to prison? Even though there was no malicious intent?

As to the kids in the good neighbourhood vs. the bad- Kids in a good neighbourhood are unlikely to have had previous dealings with the police and are unlikely to have a history of offending. OTH, kids from a bad heighbourhood are more likely to have record of offending which may warrant harsher sentences.

[Jocko]

Actually, they can.

Not like you're trying to pretend they can.

Bacteria are just organic machines, Jocko. It's clear that you're going to keep shifting goalposts (what exactly is "perfection" when it comes to living things?), so I'm just gonna put you on a little list of mine.

Since I wasn't already on your list, that proves it's open to abuse and you should abandon it at once.

[CBL4]

Originally posted by Melendwyr
I... well, damn. That is an excellent point. That is a very, very excellent point.Thank you. Sometimes my hands and brain work together properly.

I should note this mediocrity idea was stolen from software development. Companies put tedious procedures in place in order to improve software. The procedures stifle the most creative and produce mediocre, but generally workable, software. If I remember correctly, Tom DeMarco describe it best in his book "Peopleware."

CBL

[Melendwyr]

Upon reflection, I think your suggestion explains a great deal about how people react to this issue. Individuals who have a high regard for their own ability to act "appropriately" are likely to resent any external constraints on reaching conclusions, even if those constraints actually describe their methods.

If people respect authority highly, they'll favor loose rules that leave a great deal of power in authority's hands. If people don't respect authority highly, they'll want to restrict that power. And people will come to conclusions based on their emotional preferences, not on the merits of any particular rule system.

[Freakshow]

Sorry to "post and run", folks. There's been some good discussion here so far, but I've had to leave it for now. Work's been crazy, and I've had to get some things done before the week is up. I'll be back on this thread over the weekend. :)

[BPSCG]

Upon reflection, I think your suggestion explains a great deal about how people react to this issue. Individuals who have a high regard for their own ability to act "appropriately" are likely to resent any external constraints on reaching conclusions, even if those constraints actually describe their methods.

If people respect authority highly, they'll favor loose rules that leave a great deal of power in authority's hands. If people don't respect authority highly, they'll want to restrict that power. And people will come to conclusions based on their emotional preferences, not on the merits of any particular rule system.Okay, what about those people who have high faith in their own judgement, but who still tend to respect authority? I fall in that category.

[Cleopatra]

Amateur Scientist brought in the discussion a very serious matter when it comes to law enforcment that is called the spirit of the law. I have a slight disagreement though.

I believe that both the "letter" and the spirit of the law are taken into consideration when law is enforced and I am ceratin that fair and experienced judges can see even the most refined shades of a color and not just the color.

Somebody,Atlas I think mentioned the distinction between the first timers and the "serial criminals". There are cases in which it's crystal clear that the first timer will become a serial criminal and in those cases the judges are real severe and go by the letter of the law and frankly I agree with this attitude.

When I was reading that thread in the community forum about the deslike ( to put it politely) towards lawyers, I was thinking that people really haven't realized how easy it is to find themselves in serious legal troubles. Common citizens can find themselves involved in serious crimes just by luck. A serious car accident for example. In those cases they would ask for a good lawyer ( and they would feel sorry for all the lawyer jokes they have told) and a judge that can read between the lines and is able to judge by the spirit of law without violating its letter.

It's not as easy as it appears. You have to admit that in the majority of cases the sense of justice is subjective ( and this is the role that laws have to play in a society, it's a concesus about what is just or better, it's the final word on what is just) and depends largely on the experiences of all the implicated parts in a trial.Also, the subjectivity is proven by the fact that the sense of justice evolves, changes in time and in geographical latitude.

So, yes it depends and we must wish to have judges that are able to judge by the spirit and by the letter of the law.

Think it the other way. Two parts expect from the same person to act differently. The victim asks for the law enforcement by the letter and the victimizer appeals to the spirit of law. A good judge is able to do both by avoiding pseudo-dilemmas that are presented by both parts.

Interesting discussion but when people are involved there are not definite answers.

[BPSCG]

Thank you. Sometimes my hands and brain work together properly.

I should note this mediocrity idea was stolen from software development. Companies put tedious procedures in place in order to improve software. The procedures stifle the most creative and produce mediocre, but generally workable, software. If I remember correctly, Tom DeMarco describe it best in his book "Peopleware."That idea, implemented as law or regulations, results in what's known as "zero-drugs/weapons tolerance policies", "three strikes and you're out" policies, and "mandatory sentencing rules."

None of these leave any room for judgement or interpretation, resulting in the ludicrous spectacle of junior high school girls being suspended or even expelled for giving a couple of Motrin tablets to a classmate having menstrual cramps.

[Melendwyr]

None of these leave any room for judgement or interpretation, resulting in the ludicrous spectacle of junior high school girls being suspended or even expelled for giving a couple of Motrin tablets to a classmate having menstrual cramps. If the law is changed so that an exception is made for aspirin, there's still no room for interpretation, but the ludicrous spectacle is eliminated.

Repeat for every case you feel should be made an exception of, moving to general principles instead of specific examples, and you've got an absolute law that leads to consequences you approve of.

Your argument is rejected.

[BPSCG]

Repeat for every case you feel should be made an exception of, moving to general principles instead of specific examples, and you've got an absolute law that leads to consequences you approve of.
Yeah, well I asked you to do just that when I asked you to write a simple anti-jaywalking statute that would be perfectly just and require no judgement calls (why do we have judges and juries, if not to make judgement calls?).

Haven't heard back from you on that yet. You almost done with it?

[BPSCG]

Your argument is rejected.Y'know, that last sentence sounded a little odd - not just the use of the passive voice, but the stiff, formal phrasing.

Then I imagined Arnold Schwarzenegger saying it in his classic "Terminator" voice, and suddenly, a whole bunch of things snapped into crystal-clear focus.

[Jocko]

Okay, what about those people who have high faith in their own judgement, but who still tend to respect authority? I fall in that category.

I thought you WERE authority.

[luchog]

There are two ways to look at this:
1: He is right. We need human thought and common sense involved in every aspect of enforcing the law.
2: He is wrong. If a law should not always be enforced to the letter of the law, then the law itself is flawed, and needs to be changed.
I don't think that this is necesssarily a true dichotomy.

Laws are the product of human interaction, and even the best laws are as flawed as the humans that created them. No law can be perfect, and there will always be notable exceptions and exceptional conditions; so for every law "on the books" human judgement and discretion is an important component in enforcement. But again, since humans are not perfect, that judgement and discretion is not going to be perfect. There will be abuses of the system. That is unavoidable. The trick is to design and implement a system that limits abuse while minimizing the damage to innocent individuals and to society as a whole. A good example of that is an old libertarian dillema: should someone who, upon witnessing the commission of a violent crime, enters another person's private property illegally in order to stop that crime, be prosecuted for trespassing?

Along with that, there are definitely bad laws being enforced. Most of them are based on the institutionalization of personal prejudices (some backed with bad science as their justification, some not). The Jim Crow laws are a good example; as is Prohibition in both its historical and modern forms. There are arguably many others. Others are based on misguided attempts to solve social problems by legislating symptoms of the problem. One example, Seattle's attempt to "clean up" the streets of homeless and vagrants by passing an ordinance prohibiting anyone from sitting on the sidewalk. Another is an older Vagrancy ordinance requiring everyone in the city to carry some form of legal ID, and a minimum of $20 in currency on their person. Both of these are bad laws. They do not thing to alleviate the problem, and are seemingly intended for selective enforcement and abuse.

One of the most notorious is a recent ordinance making any establishment responsible not only for the actions of patrons on the premises, but also responsible for the actions of patrons on the sidewalk outside, to a distance of one city block. These bars and clubs have no control over the actions of people outside; and it's never enforced for the upscale sports and yuppie bars, despite the incidents of violence nearby. The enforcement of this law has been extremely selective; and not done anything to resolve the issues that it was ostensibly created to control (gang and similar violence associated with hip-hop clubs). Some would say that it's an area that requires human judgement, but it's a law that was created to be selectively enforced, and is a bad law; despite the judgement of those involved in enforcing it.

[Freakshow]

I agree with CBL4. On the one hand, I agree that simple human judgement is a valuable part of law enforcement. On the other hand, an unenforced law is a recipe for future uneven enforcement. What if it turns out that cops are selectively enforcing a street vendor law against people who sell politically objectionable art (as happened during the Guiliani administration) or speeding laws against black and hispanic people as a lever to get access to their cars to search for other infractions (as was the policy of the New Jersey State Police for many years)? It's hard to track -- who writes reports on infractions not written?

So whilst I agree with you, I also warn that it's extremely difficult to have a system like that (which is the one we have in pretty much all western countries). Difficult enough that sometimes seems something of a miracle that democratic societies can exist at all. Constant vigilance is necessary.
Totally agreed. There is a fine line between using judgement, and abusing the ability to use judgement. I can't think of a better way to address this than the one you stated: constant vigilance.

[Freakshow]

If the law is changed so that an exception is made for aspirin, there's still no room for interpretation, but the ludicrous spectacle is eliminated.

Repeat for every case you feel should be made an exception of, moving to general principles instead of specific examples, and you've got an absolute law that leads to consequences you approve of.

Your argument is rejected.
The problem with this iterative approach is that it doesn't help the people who have already been punished. Its too late for them.

And how long would you expect such a process to continue? Until things are perfect? They are never going to be perfect.

I'm not arguing against constant improvement. I think that's a good thing. I am arguing against constant improvement being the only method by which the situation are addressed. The improvements are reactive in nature. Sometimes a more proactive approach is needed.

[Freakshow]

Amateur Scientist brought in the discussion a very serious matter when it comes to law enforcment that is called the spirit of the law. I have a slight disagreement though.

I believe that both the "letter" and the spirit of the law are taken into consideration when law is enforced and I am ceratin that fair and experienced judges can see even the most refined shades of a color and not just the color.

Somebody,Atlas I think mentioned the distinction between the first timers and the "serial criminals". There are cases in which it's crystal clear that the first timer will become a serial criminal and in those cases the judges are real severe and go by the letter of the law and frankly I agree with this attitude.

When I was reading that thread in the community forum about the deslike ( to put it politely) towards lawyers, I was thinking that people really haven't realized how easy it is to find themselves in serious legal troubles. Common citizens can find themselves involved in serious crimes just by luck. A serious car accident for example. In those cases they would ask for a good lawyer ( and they would feel sorry for all the lawyer jokes they have told) and a judge that can read between the lines and is able to judge by the spirit of law without violating its letter.

It's not as easy as it appears. You have to admit that in the majority of cases the sense of justice is subjective ( and this is the role that laws have to play in a society, it's a concesus about what is just or better, it's the final word on what is just) and depends largely on the experiences of all the implicated parts in a trial.Also, the subjectivity is proven by the fact that the sense of justice evolves, changes in time and in geographical latitude.

So, yes it depends and we must wish to have judges that are able to judge by the spirit and by the letter of the law.

Think it the other way. Two parts expect from the same person to act differently. The victim asks for the law enforcement by the letter and the victimizer appeals to the spirit of law. A good judge is able to do both by avoiding pseudo-dilemmas that are presented by both parts.

Interesting discussion but when people are involved there are not definite answers.
Cleopatra, you reminded me of something else from my days studying law enforcement, when I was going my internship. One of the cases that came through...I don't remember the details of. But the basics of it was this: Some young man had done something wrong earlier in life, and was given just a legal slap-on-the-wrist. Later, he did something much more wrong, and was now on trial for it. He was sentanced to 10 years. This judge would like to give the defendant a chance to say something before he announced the sentance. Sort of like a "last chance" to address the public and be heard before going away to jail. He would always say "Stand up Mr/Mrs [name]...Do you have anything to say to this court, before I announce your sentance?" He also in this case asked the prosecutor if he had anything to say. The prosecutor said something interesting...

"Yes, your honor. I'd like to say that I think the system failed this young man. I believe that if years ago, he could have had reasonable punishment for what he did before, he may have learned his lesson. And he might not have been in front of us again, for a much more serious crime."

Your post made me think of that.

[Atlas]

The prosecutor said something interesting...

"Yes, your honor. I'd like to say that I think the system failed this young man. I believe that if years ago, he could have had reasonable punishment for what he did before, he may have learned his lesson. And he might not have been in front of us again, for a much more serious crime."

Your post made me think of that.That's a great line by a prosecutor. Sham concern and an implied insult of the judge who showed leniency and decided to give the first timer a second chance.

"Sadly, the system failed this man years ago when, for some unrelated circumstance on a lesser crime, we didn't beat the hell out of him. Please don't fail to punish this man severely this time or we're sure to see him again sometime several years hence, your honor."

[Melendwyr]

The problem with this iterative approach is that it doesn't help the people who have already been punished. Its too late for them. We don't have to put any of the laws in effect until we're satisfied that what we have accurately describes the "spirit of the law".

[Freakshow]

That's a great line by a prosecutor. Sham concern and an implied insult of the judge who showed leniency and decided to give the first timer a second chance.

"Sadly, the system failed this man years ago when, for some unrelated circumstance on a lesser crime, we didn't beat the hell out of him. Please don't fail to punish this man severely this time or we're sure to see him again sometime several years hence, your honor." Years later, that prosecutor wound up losing his job, due to some "legal issues". I don't recall if he wound up having to go to jail or not. But his career is over. What goes around comes around, I guess. :p

[Freakshow]

We don't have to put any of the laws in effect until we're satisfied that what we have accurately describes the "spirit of the law".
And...you see no problem with this? We should have everything be legal until we are satisfied that we have a perfect legal system in place?

[Atlas]

We don't have to put any of the laws in effect until we're satisfied that what we have accurately describes the "spirit of the law".Some 40 years ago our 6th grade class went on a field trip to the state capital. I remember sitting on the steps of the legislature listening to a tour guide tell us about how laws are made. At the end of her spiel she told us of some dumb laws that other states enacted. The one I remember was something that Wisconsin or Iowa had passed for railroad safety.

If two trains meet on the track - neither train shall move until the other is completely off the track.

Even a sixth grader can recognize some bad laws. Lawmakers are not always as diligent in the real world as they are in the perfect world you describe.

[Melendwyr]

Perhaps it's best that I not explain what I think should be done with most politicians...

[epepke]

There are two ways to look at this:
1: He is right. We need human thought and common sense involved in every aspect of enforcing the law.
2: He is wrong. If a law should not always be enforced to the letter of the law, then the law itself is flawed, and needs to be changed.

I am with option #1. There are a couple of reasons for that. One is that we can sometimes fight a larger problem by overlooking a smaller problem. Such as granting immunity to one person who has commited crimes, in order to get at other people that have committed much more serious crimes. It might not be the ideal, perfect solution. But we don't live in an ideal, perfect world. We must do the best we realistically can. Another reason that I think he is right is that it would be nearly impossible to create a system of laws that could function properly and practically in a society in which all laws were always enforced fully, in all situations.

So...now the discussion starts. Thoughts? :)

The question is whether he is "right" from 1) a law enforcement perspective or 2) from a societal perspective.

You seem to be answering question 1.

To that extent, I have to agree.

The ideal situation for a law enforcement officer is one that best supports the belief that everyone is guilty. Ultimately, this is to make everything illegal, punishable by any punishment, including public flogging and the death penalty. This leaves the decision to prosecute entirely up to the discretion of the law enforcement office and the District Attorney.

There's a Constitution with annoying checks and balances that puts actual determination of guilt and sentencing in the hands of the judiciary, widely viewed as existing only for the purpose of getting the "perp" off on a "technicality." However, by making the maximum penalty as severe as possible, it increases the probability of a severe average sentence. Mandatory sentencing laws are also helpful. The best modern example of an approximation of the ideal would probably be Singapore.

It does not surprise me at all that a hardcore law enforcement officer should advocate this as strongly as possible.

From a societal, "civilian" or "little people" perspective, there are only two defenses to an accusation: being not guilty of the crime, or a jury judgement that the law is wrong or misapplied.

The latter has been minimized. Only a few states require jury notification. Prosecutors have effectively unlimited power to dismiss potential jurors if they are aware of the right to judge the law.

This only leaves the former, of being not guilty. This can be avoided by having more and more laws, which seems to be happening.

[CapelDodger]

First time I've heard of bacteria referred to as "nanotech devices".It's a nice point, though, isn't it? They haven't been "developed", they've just happened, but they're way ahead of anything we've designed intelligently on the nano-scale.

[CapelDodger]

As to the kids in the good neighbourhood vs. the bad- Kids in a good neighbourhood are unlikely to have had previous dealings with the police and are unlikely to have a history of offending. OTH, kids from a bad heighbourhood are more likely to have record of offending which may warrant harsher sentences.Here we have the problem of discretion. Numerous studies in the UK have shown that, when matched for their actual criminal record, boys from "good" neighbourhoods are more likely to be cautioned than boys from "bad" neighbourhoods, rather than be charged and enter the legal system. That's a self-reinforcing process.

I'm a great believer in discretion, and hate prescriptive systems, such as religions or ideologies. Policemen should have the option of the "Clip around the ear", which says I'm watching you, sonny. But that requires cohesive societies, which are sorely lacking these days.

[AmateurScientist]

So, yes it depends and we must wish to have judges that are able to judge by the spirit and by the letter of the law.

Think it the other way. Two parts expect from the same person to act differently. The victim asks for the law enforcement by the letter and the victimizer appeals to the spirit of law. A good judge is able to do both by avoiding pseudo-dilemmas that are presented by both parts.

Interesting discussion but when people are involved there are not definite answers.

Hi Cleo. Long time no speak. It's good to see you in this thread. I regret that we have not engaged in any good discussions in a long time.

I like your point about the relative importance of the spirit vs. the letter of the law depending upon which end of the barrel of the metaphorical gun one happens to be. I agree wholeheartedly.

Also, I think your comments raise an excellent point about judges being able to avoid pseudo-dilemmas presented by the adversaries in a legal controversy. Justice does often require the arbiter of a conflict to carve a path which follows both the spirit and the letter of the law, while avoiding leaning too far one way or the other. It seems to me that in most cases, whether they are civil or criminal, when a judge resolves the controversy, or even when the parties themselves reach a negotiated settlement, Solomon's ghost appears and actually splits the baby in two. It is relatively uncommon for one party to be completely vindicated or to get precisely what he or she is seeking from the courts. Instead, usually both sides walk away with something less than what they were seeking, and all the actors involved experience a sense of anti-climax or denouement. Quite often, the prevailing feeling is one of relief from the tension of the conflict, rather than one of victory or defeat.

When experiencing that prevailing feeling, I understand what one of my math professors told me at university. "Law is too nebulous for a mathematician." I think you will understand. Personally, I prefer the more binary win or loss, but I recognize that in many instances it is better for the litigants to reap the benefits of the mini-max principle from game theory. It is thus that they resolve their conflict by compromise--they avoid a possible big loss, but they also sacrifice a possible big gain.

AS

[epepke]

Here we have the problem of discretion. Numerous studies in the UK have shown that, when matched for their actual criminal record, boys from "good" neighbourhoods are more likely to be cautioned than boys from "bad" neighbourhoods, rather than be charged and enter the legal system. That's a self-reinforcing process.

I bet that skin color is involved, too.

I'm a great believer in discretion, and hate prescriptive systems, such as religions or ideologies. Policemen should have the option of the "Clip around the ear", which says I'm watching you, sonny. But that requires cohesive societies, which are sorely lacking these days.

Specifically, this requires the presumption that the police are the ones in the best position to do this. Frankly, in the US, I'd rather see discretion applied by judges. I'm not sure about the UK, but I do remember Jean Charles de Menezes, and I don't think that the police have quite the stalwart reputation that they had in the early 60s.

[Roadtoad]

I'll add my kudos to a great topic, Freakshow.

Let me offer another perspective: In the Commercial Drivers Handbook, it says the national speed limit is 55 for all trucks, but, that it's subject to road conditions at the time you're on the road. In other words, if it's raining, 55 is going to be too damned fast for a lot of roads.

Today, I made runs up to Cisco Grove, about 25 miles west of Truckee, CA. From Kingvale to Truckee, chains were required because we had our first snowfall. (And the first one to stick, too.) Much of this trip I made running at 45, even though unladen, my rig would do 55 easily. It wasn't safe to go much faster. I was late for the loadout, but I got there.

If I had been moving faster, considering the number of CHP officers in the area today, there's a damned good chance that I would have been ticketed. I was well within the legal limit, but conditions were against me.

The whole issue comes down to individual judgement, whether we like it or not.

[epepke]

Let me offer another perspective: In the Commercial Drivers Handbook, it says the national speed limit is 55 for all trucks, but, that it's subject to road conditions at the time you're on the road. In other words, if it's raining, 55 is going to be too damned fast for a lot of roads.

I don't think that I've ever seen a semi going 55 in the past ten years. They go 70 or sometimes 80.

[Boo]

Freak,

Great topic!

I don't have the educational background or training that many here have, when it comes to discussing this topic. All I can add is observational experience after 20 years of working on ambulances. I have spent a great deal of time on scene with law enforcement officers; from the occaisional federal type to state police, county sheriff deputies, urban street and small town cops.

My experiences have shown that the system we have in place allows for the range presented as either or choices. In using discretion some will be 'letter of the law' enforcers and others won't put down the donut unless they absolutely have too. Many fall into the mid-range, using their professional judgement as the situation demands.

It is that professional judgement that we must rely on. Just as we rely on the professional judgement of physicians. Yes, some abuses will occur and hopefully those individuals are weeded out. Mistakes will be made. Law enforcement, like medicine, is field where the book only serves as a guide. There is no text to cover every possible scenario. The best we can hope for is that those we rely on to enforce the law are well trained and mentored.

The other option being "Arrest them all and let the Judge sort them out" which would serve, in my opinion, to only overburden an already overburdened judicial system.


Boo

[Melendwyr]

The best we can hope for is that those we rely on to enforce the law are well trained and mentored. Well trained in what? Mentored how? Despite the generally unscientific nature of much of modern medicine, there are still standards by which physicians' actions can be evaluated and judged. That's the whole point of malpractice. If we say that the correct response in any medical situation is completely up to the judgement of the presiding physicians, then we lose the ability to distinguish between proper and improper treatment.

Precisely the same argument holds in law enforcement. Whether you want to admit it or not, people do apply standards to evaluate the actions of law enforcement officers. Those standards can either be private, usually unspoken, and unevenly applied, or they can be explicit, public, and universal.

[CBL4]

Judges, police and disctrict attorneys need to apply discretion. There are two major problems with this:
1) Many (not most) are incompentent to provide discretion.
2) They are much more likely to be rewarded by voters for being too harsh rather than too lenient.

There is no public employee in the justice system who gets rewarded when a man (innocent or not) gets found not guilty or given a light sentence. The gives the police, DAs and judges the incentive to use their discretion harshly.

CBL

[CapelDodger]

I bet that skin color is involved, too.
That'll often be the case, sadly. Another common short-cut is which school (if any) you attend.

Specifically, this requires the presumption that the police are the ones in the best position to do this. Frankly, in the US, I'd rather see discretion applied by judges. I'm not sure about the UK, but I do remember Jean Charles de Menezes, and I don't think that the police have quite the stalwart reputation that they had in the early 60s.
(That last point is a bit of a myth, the Filth were always, well, the Filth. :) ) I'm thinking about very minor misdemeanours, anti-social behaviour and such. If the police know their neighbourhood and its people they can make some judgements about who's born to trouble and who isn't. Unfortunately, policing isn't often like that these days. I think discretion at all levels is necessary. There's a danger in it, but there's a danger in life. What I really fear is a tick-box system; tick the boxes then read off the required action. Computerised law. It's going to be proposed some time, if it hasn't been already.

[CapelDodger]

The best we can hope for is that those we rely on to enforce the law are well trained and mentored.They also have to be monitored, and people with your professional experience can have an input to that. If you have concerns about an officer or a precinct or whatever, you should be able to feed it into the system.

[Melendwyr]

I recently thought of a better way to express my position. Tell me what you think.

If you were going to enter into a binding contract, would you accept a contract that was vague, imprecise, and open for the other party to change its content at will? Probably not. When drafting contracts, people usually go to great expense to have lawyers check and recheck their language, removing uncertainties and eliminating loopholes.

Why is a social contract any different? Laws define our rights and obligations as citizens of a society, as well as society's rights and obligations towards us. What possible benefit could there be from not making that contract as clear and specific as possible?

[AmateurScientist]

I recently thought of a better way to express my position. Tell me what you think.

If you were going to enter into a binding contract, would you accept a contract that was vague, imprecise, and open for the other party to change its content at will? Probably not. When drafting contracts, people usually go to great expense to have lawyers check and recheck their language, removing uncertainties and eliminating loopholes.

Why is a social contract any different? Laws define our rights and obligations as citizens of a society, as well as society's rights and obligations towards us. What possible benefit could there be from not making that contract as clear and specific as possible?

That's a very good point about clarity in written contracts. Even the best drafted contracts result in legal disputes, however. Contracts aren't always strictly construed, either. There are lots of rules governing how disputes over their intended meaning are resolved. For instance, there is a doctrine in contract law called "substantial compliance," which essentially means that sometimes the spirit of the agreement is honored and a failure to strictly perform by one party is excused. The remaining terms of the contract are upheld and enforced, nonetheless.

The same is true for the social contract, and the explicit written codes our legislatures put down for us. It is impossible to anticipate every situation that can arise between and among individual actors, and it is folly to try. We simply have to keep room in our relations for situations that don't fit well into our little pigeon holes, and also for those in which they do, but placing them there would not serve anyone's best interests.

All of that is to say that judgment and discretion are vital to the smooth, orderly functioning of a just society.

AS

[Melendwyr]

For instance, there is a doctrine in contract law called "substantial compliance," which essentially means that sometimes the spirit of the agreement is honored and a failure to strictly perform by one party is excused. Who decides what the "spirit of the law" is, and when one party can be excused from their contractual obligations?

[AmateurScientist]

Who decides what the "spirit of the law" is, and when one party can be excused from their contractual obligations?

Well, that's not quite what I said. I said the spirit of the agreement (contract). Among other things, the formation of a contract requires a "meeting of the minds." This means that both parties understand and intend to enter into the agreement and to be bound by the same material terms at its formation. Another thing required for the contract to be enforceable is consideration -- something each party agrees to perform (or gives up to the other) in order to be bound by the contract. The contractual obligations created by the agreement can be simple, or they can be many and complicated.

When I mentioned substantial compliance, I meant that if one of the parties substantially performs its part of the bargain, but has strictly speaking not performed exactly as described in the written agreement, under the right circumstances a court may still require performance by the other party to the agreement.

Thus, strict performance (or compliance) may be excused sometimes when substantial performance has been accomplished. This is not the same as declaring that one party or the other is excused from performing at all. It means that it has essentially done what it promised to do, and what the other party expected it to do at the time of the contract's formation.

Anyway, it was meant as an example. Contract law has many equitable principles upon which it draws. It's not always a matter of looking strictly to the four corners of the document itself. That's my point.

AS

ETA: Oh, and who decides? If the parties cannot decide, then a court decides for them if one or both of them sue, or an arbitrator or panel of arbitrators if they have agreed in the contract (very common these days in business agreements) to waive their right to a trial by jury and resolve their contractual disputes by arbitration.

[Cleopatra]

Cleopatra, you reminded me of something else from my days studying law enforcement, when I was going my internship. One of the cases that came through...I don't remember the details of. But the basics of it was this: Some young man had done something wrong earlier in life, and was given just a legal slap-on-the-wrist. Later, he did something much more wrong, and was now on trial for it. He was sentanced to 10 years. This judge would like to give the defendant a chance to say something before he announced the sentance. Sort of like a "last chance" to address the public and be heard before going away to jail. He would always say "Stand up Mr/Mrs [name]...Do you have anything to say to this court, before I announce your sentance?" He also in this case asked the prosecutor if he had anything to say. The prosecutor said something interesting...

"Yes, your honor. I'd like to say that I think the system failed this young man. I believe that if years ago, he could have had reasonable punishment for what he did before, he may have learned his lesson. And he might not have been in front of us again, for a much more serious crime."

Your post made me think of that.


Although what you mention, is an aspect of the issue this is not what I meant. I didn't make that clear what I meant on purpose, because I wasn't sure I wanted to get into that discussion but since you mentioned it...

Apart from the spirit versus the letter of the law, there is another "duality" in the concept of law enforcement. The penalty must punish the offender and in the same time to satisfy ( moraly speaking) the victim. This is an aspect of the law enforcement that we avoid to discuss although we know very well that it's there!

So, when I said that some times judges exhaust their severity on people they can foresee their career as criminals, I meant that they do it primary because they believe that in such cases, a second chance equates to a lost chance and second they see it a good opportunity to fully satisfy the victim and the general public, however corrupted it might be demands and cries for the moral satisfaction of the victim!

You see, it's difficult to make the victims understand that even the criminals have rights because a victim even of a minor offense tends to feel that the ultimum injustice has been performed against him/her and she/he demands the head of the offender on a plate regarless the severity of the offense that is trialed.

If you ask me what has impressed me most during the years I practice law, I would answer that human cruelty and hypocricy towards those who break the law never seize to put me in awe and the cruelty and the hypocricy of the juries has many times driven me over the borders of misanthropy.

[Cleopatra]

Hi Cleo. Long time no speak. It's good to see you in this thread. I regret that we have not engaged in any good discussions in a long time.

Yes indeed Amateur Scientist. I wish we could meet in the court room once,although I am quite a performer in the court room( because this is what court rooms deserve) I am sure I would have much to learn.

Also, I think your comments raise an excellent point about judges being able to avoid pseudo-dilemmas presented by the adversaries in a legal controversy. Justice does often require the arbiter of a conflict to carve a path which follows both the spirit and the letter of the law, while avoiding leaning too far one way or the other. It seems to me that in most cases, whether they are civil or criminal, when a judge resolves the controversy, or even when the parties themselves reach a negotiated settlement, Solomon's ghost appears and actually splits the baby in two. It is relatively uncommon for one party to be completely vindicated or to get precisely what he or she is seeking from the courts. Instead, usually both sides walk away with something less than what they were seeking, and all the actors involved experience a sense of anti-climax or denouement. Quite often, the prevailing feeling is one of relief from the tension of the conflict, rather than one of victory or defeat.

Indeed. This adds to the comment I made above. Although judges never admit it and although they try to keep the balance, they do have in mind that if the facts prove the accused guilty they must not just punish him by applying any penalty;the feeling of the general public regarding justice ( as the Greek Criminal Code describes it!) must be satisfied.

You put it beautifully. The court room is the scene of a theatre, the more serious the crime that is trialed is, the more theatrical the whole atmosphere becomes. In reality, people know that they judge something that is above them.

Also, since we speak in theatrical terms, let us not forget that in the plays where "pride" and "justice" win in triumph, the scene is covered by dead bodies in a very shakespearean and ancient greek fashion.

When experiencing that prevailing feeling, I understand what one of my math professors told me at university. "Law is too nebulous for a mathematician." I think you will understand. Personally, I prefer the more binary win or loss, but I recognize that in many instances it is better for the litigants to reap the benefits of the mini-max principle from game theory. It is thus that they resolve their conflict by compromise--they avoid a possible big loss, but they also sacrifice a possible big gain.

AS

Ha! Last week, in one of the introductory lesson of Geometry, the professor recognized who I am and what I do in " real" life and with my permission he used my presence to refer to the excellence of the Mathematics versus the nebulus Law( these were his exact words). :)

The good thing about being a pacifict that has been born in Middle East is that when others( tarot readers included) perceive number "Two" as a "conflicting duality", you look to spot the points that those two "ones" meet.

Those who see Law as nebulus overlook its origin and use. Maths help us understand and interpret the world and even more, to approach with our brains a world that seems to exist but we cannot perceive with our senses.

Law is not interested in describing or explaining the world. Law constitutes the final answer to questions that arise in the relationships between human beings, between human beings and other creatures and between human beings and the environment. We are allowed to discuss whether murder is an acceptable practice for example but we know very well that at least for this very moment, there is a definite answer to this question if we try to commit one.

When Mathematicians arrive to the point to invent a mathematical equation that gives a definite and final answer to questions like : Who was right? Creon or Antigone? The goat that eats the neighbour's plants that fall over the fence or the neighbour who doesn't take good care of his plans and let them fall over the fence, then I will be ready to discuss about the nebullus nature of Law.

Maths might have come with an answer regarding the number of quasars but the question of the goat and the plant over the fence is still pending.And which are the odds in everyday life? To...interact with.... a quasar or to have a neighbour with a hungry goat? :)

[Melendwyr]

Law is not interested in describing or explaining the world. Law constitutes the final answer to questions that arise in the relationships between human beings, between human beings and other creatures and between human beings and the environment. No. The whole problem is that Law is not the final answer. Law does not determine the answers, but leaves the answer to be determined by the unspecified judgement of individuals.

[Cleopatra]

No. The whole problem is that Law is not the final answer. Law does not determine the answers, but leaves the answer to be determined by the unspecified judgement of individuals.

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial. The question we try to answer is whether the accused has committed the crime that he is accused of or not.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape.

Huge difference.

[Gwyn ap Nudd]

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial. The question we try to answer is whether the accused has committed the crime that he is accused of or not.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape.

Huge difference.

That is basically true as far as the main trial is concerned, except that it ignores the fact that all appeals argue the law and not the facts. (In other words, an appeal is either "But the law is wrong," or "But the law should not apply in this case." (Not to mention all the discretion involved before and during the main trial: law enforcement officials, prosecutors, judges, juries....)

Still, the thrust of your argument, that the law codifies, however imperfectly, the rules of society, and that any discretion is usually (though not always)a relatively minor matter of details is a good point.

------

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system. Not even in pure abstractions such as mathematics and logic. We can, however, get "close enough for government work."

From Does Gödel Matter?
(http://slate.msn.com/id/2114561)One way to understand Gödel's theorem (in combination with his 1929 "completeness theorem") is that no system of logical axioms can produce all truths about numbers because no system of logical axioms can pin down exactly what numbers are. My fourth-grade teacher used to ask the class to define a peanut butter sandwich, with comic results. Whatever definition you propose (say, "two slices of bread with peanut butter in between"), there are still lots of non-peanut-butter-sandwiches that fall within its scope (say, two pieces of bread laid side by side with a stripe of peanut butter spread on the table between them). Mathematics, post-Gödel, is very similar: There are many different things we could mean by the word "number," all of which will be perfectly compatible with our axioms. Now Gödel's undecidable statement P doesn't seem so paradoxical. Under some interpretations of the word "number," it is true; under others, it is false.

.......

How can this be, when Gödel cuts the very definition of "number" out from under us? Well, don't forget that just as there are some statements that are true under any definition of "peanut butter sandwich"—for instance, "peanut butter sandwiches contain peanut butter"—there are some statements that are true under any definition of "number"—for instance, "2 + 2 = 4." It turns out that, at least so far, interesting statements about number theory are much more likely to resemble "2 + 2 = 4" than Gödel's vexing "P." Gödel's theorem, for most working mathematicians, is like a sign warning us away from logical terrain we'd never visit anyway.

[69dodge]

When Mathematicians arrive to the point to invent a mathematical equation that gives a definite and final answer to questions like : Who was right? Creon or Antigone? The goat that eats the neighbour's plants that fall over the fence or the neighbour who doesn't take good care of his plans and let them fall over the fence, then I will be ready to discuss about the nebullus nature of Law.But, of course, the real answer is that there is no real answer.

So I have never understood, when lawyers argue about questions of law, what exactly it is that they consider themselves to be arguing about. There is no real answer, for example, to the question of whether such-and-such a precedent does or does not apply in the current case. So what sorts of legal arguments are considered convincing in this situation? And, more important, why?

How can a lawyer argue that their interpretation of the law is correct, and that their opponent's is incorrect, when everyone knows that there is no real notion of correctness to begin with?

I am reminded of the reaction of the well-known computer scientist E.W. Dijkstra about his trip to Harvard Law School (http://www.cs.utexas.edu/users/EWD/transcriptions/EWD12xx/EWD1205.html), where he was invited to speak:

[...] there was a lively discussion going on. For me the exposure was a cultural shock, instructive, but also rather disorienting. [...] the most disorienting thing was that I found myself suddenly submerged in a verbal tradition that was totally foreign to me! They were on the average very verbose -some even repetitive- , they had a tendency to "reason" by analogy and more than once I felt that speakers cared more about the potential influence of their words than about what they actually said.

[Melendwyr]

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial. What constitutes those crimes? You need clear and specific definitions for that.

What punishments are appropriate? You need clear and specific definitions for that.

That elements of the legal process, arguments, objections, etc., are correct, and which are wrong? You know the rest.

If these things are decided by ad hoc, inexplicit principles, then it's a arbitrary, inconsistent, and unjust system - a tyranny. We might as well have society controlled by roving bands of executioners.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape. If the description of the Law isn't sufficiently clear that debate is necessary, given the known facts of the case, then you're deciding whether a crime has been committed, not determining.

[Melendwyr]

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system.

You don't understand what you're talking about. "Perfect" is not a meaningful concept in mathematics or logic.

Gödel's Theorems demonstrate that a sufficiently complex system (one that's capable of representing arithmetic) cannot be both consistent and complete. Additionally, no consistent system can contain proof of its own consistency.

It is not clear that a meaningfully-working legal system is actually sufficiently powerful for Gödel's Theorems to apply. Nor is it clear that such a legal system cannot be made consistent.

Your abuse of this extremely important mathematical concept is as disgusting as when woos attempt to invalidly reference it to justify belief in souls and the like.

[Cleopatra]

That is basically true as far as the main trial is concerned, except that it ignores the fact that all appeals argue the law and not the facts. (In other words, an appeal is either "But the law is wrong," or "But the law should not apply in this case." (Not to mention all the discretion involved before and during the main trial: law enforcement officials, prosecutors, judges, juries....)

Hmmmmm..... no :) Not the appeals I am aware of. Generally speaking, in court rooms you don't utter phrases like " but the law is wrong,Your Honor and I am here to correct the Law for you ". One can appeal on various issues,from the procedure to the severity of the penalty that has been applied. The ultimate goal of the defense is to succeed the lowest possible penalty. So, I believe that bringing the appeals in the discussion is not such a good argument.

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system. Not even in pure abstractions such as mathematics and logic. We can, however, get "close enough for government work."

I believe that "perfection" is a non-issue for the Law. The Law has nothing to do with perfection or imperfection since it's well tied with society via the elected government.

Perfection is a nebulus concept for the legal systems. ;)

[Cleopatra]

But, of course, the real answer is that there is no real answer.

I wouldn't word it like that.Since we are talking about law enforcement answers that are given in court rooms are pretty real since they have real effect on the lives of real people. Antigone died and the court decides that the goat isn't sophisticated enough to show some understanding to the gardening skill of the neighbour.

So I have never understood, when lawyers argue about questions of law, what exactly it is that they consider themselves to be arguing about. There is no real answer, for example, to the question of whether such-and-such a precedent does or does not apply in the current case.

Who told you that there is no " real answer"? The real answer is the verdict of the court of Law and as I posted above its implications are so real that in many times they are life changing. Lawyers argue somebody did what he is accused of under which circumstances. It's a difficult task because the striking majority of cases are not that self-evident.
So what sorts of legal arguments are considered convincing in this situation? And, more important, why?

Good question. I will give you a sincere answer. Convicing legal arguments are the arguments that will allow the judge to form a legitimate verdict,in the frame both of the letter and the spirit of law and that in the same time satisfies the sentiment of the general public regarding Justice.And the verdict will be the "real answer" to the unique question that is posed each time. Please note that each case is different in its details and this is another reason why we have so many " real answers". Well, we have to answer to so many different questions!

How can a lawyer argue that their interpretation of the law is correct, and that their opponent's is incorrect, when everyone knows that there is no real notion of correctness to begin with? Well, excuse me my saying so but who is this " everyone"that holds this universal knowledge? :) In a case, each of the implicated sides, offers his perspective on the facts. I repeat that the majority of cases are not that evident. Think of a case of rape. We have a victim that feels raped and wishes to demonstrate that has been raped and we have the other side who wishes to demonstrate that the victim might feel raped but it wasn't raped indeed. In this question, there is a definite answer and it's the court that will give it.

I am reminded of the reaction of the well-known computer scientist E.W. Dijkstra about his trip to Harvard Law School (http://www.cs.utexas.edu/users/EWD/transcriptions/EWD12xx/EWD1205.html), where he was invited to speak:

Yeah ok I admit it. Scientists can be some performers too and they aim to win the impression of the audience when they find themselves in a friendly enviroment. ;)

[Cleopatra]

What constitutes those crimes? You need clear and specific definitions for that.

I find this post surprizing. Legal systems of have clear and specific definitions. Have you noticed how big legal books and codes are? :)

What punishments are appropriate? You need clear and specific definitions for that.

See above.

That elements of the legal process, arguments, objections, etc., are correct, and which are wrong? You know the rest. The right and fallacious in each case is trialed each time and for each case. I don't know the rest.

If these things are decided by ad hoc, inexplicit principles, then it's a arbitrary, inconsistent, and unjust system - a tyranny. We might as well have society controlled by roving bands of executioners. And if you argument stands, can you explain to me why don't we have such societies?

If the description of the Law isn't sufficiently clear that debate is necessary, given the known facts of the case, then you're deciding whether a crime has been committed, not determining.

You are bringing an owl to Athens. However fascinating and interesting bird an owl might be we have plenty of those in Athens.

[Melendwyr]

I find this post surprizing. Legal systems of have clear and specific definitions. Have you noticed how big legal books and codes are? :) If they did, laws would not require "interpretation".

And if you argument stands, can you explain to me why don't we have such societies? It's too much work for them to roam. It's easier to bring the populace to them, instead.

[69dodge]

Who told you that there is no " real answer"? The real answer is the verdict of the court of Law and as I posted above its implications are so real that in many times they are life changing.Yes, after the court reaches a verdict, that verdict is for all practical purposes the real answer. And, certainly, the practical purposes might be very important. But that's not what I meant. I was thinking about the situation before a verdict is reached, when the lawyers try to convince the court to reach one verdict or another. What sort of argument can they use? They can't say something like "the verdict I'd prefer is the correct one, and here's why" if the definition of "correct verdict" is "whatever the court decides", because the court hasn't decided anything yet.

[jj]

Well, you're ignoring, I think, the fact that laws are written in an imperfect language, and one with imperfect definitions, both of which can not be crafted to be "perfect" in any real sense.

So even what a law means can be argued in many cases, and has been, I dare say.

What's more, the shifts in language over time render things like the meaning of "well regulated militia" controversial over time, no matter what was meant in the beginning.

[Melendwyr]

The only way a language can be necessarily imperfect is if it is unable to accurately describe a thing being spoken of.

If it's not possible to actually put into words the intentions behind a law, then laws cannot be meaningfully communicated, and the entire purpose of a legal system is negated.

[Cleopatra]

If they did, laws would not require "interpretation". This is a common misconception. When we say that somebody "interpreted this law" we mean that he interpreted how a specific case is addressed by a specific law and why. I used to have a professor at the University who kept telling us not to try to interpret the Law because if the legislator wished to address an issue that you don't see written, he would have included it "himself".

It's too much work for them to roam. It's easier to bring the populace to them, instead.
I don't understand that and I believe that it's time for me to admit that I haven't understood where you wish to get at in this discussion.

[Cleopatra]

Yes, after the court reaches a verdict, that verdict is for all practical purposes the real answer. And, certainly, the practical purposes might be very important. But that's not what I meant. I am quite aware of that. :) I just wished to show you what reality means in the legal world. I was thinking about the situation before a verdict is reached, when the lawyers try to convince the court to reach one verdict or another. What sort of argument can they use? They can't say something like "the verdict I'd prefer is the correct one, and here's why" if the definition of "correct verdict" is "whatever the court decides", because the court hasn't decided anything yet.A trial is not about legal arguments only. In a trial we examine first the facts,then the evidence that is available and we argue what the evidence that we have collected shows, we discuss the intent of the accused, we discuss the motive ,we examine witnesses etc. The goal is to prove whether the accused has committed the crime he is accused of or not. I believe that it's not on anybody's interest to start arguing about the Law in a trial,anyway.

[Cleopatra]

Well, you're ignoring, I think, the fact that laws are written in an imperfect language, and one with imperfect definitions, both of which can not be crafted to be "perfect" in any real sense.

So even what a law means can be argued in many cases, and has been, I dare say. I believe that the Law isn't interested in being perfect for the reason I mentioned in a previous post;it's well tied with the government of the people. As for your second comment in reality we don't argue about what the Law means but whether a specific Law addresses our case or not. The only occassions I see Laws being discussed as to what they mean( in Greece of course) is in cases of Public and Labour Law for the reasons you mention below...

What's more, the shifts in language over time render things like the meaning of "well regulated militia" controversial over time, no matter what was meant in the beginning.This is an excellent point but what does it demonstrate? I believe that your example shows ( and this is why I connected it with my reference to Public and Labour Law) the influence of current politics on the law enforcement and why not admit it? The influence of the organized trusts and interests of a society and generally speaking, of the forces that try to surpass the system in order to lobby for their interests.

Ahhhh! Politics and Law Enforcement! That's a fascinating topic as well.

[Melendwyr]

This is a common misconception. When we say that somebody "interpreted this law" we mean that he interpreted how a specific case is addressed by a specific law and why. I used to have a professor at the University who kept telling us not to try to interpret the Law because if the legislator wished to address an issue that you don't see written, he would have included it "himself". If identical cases, with identical evidence and identical arguments, can produce two different verdicts, then the law is being interpreted in the most obvious sense.

When there are laws which are inherently ill-defined and vague (such as the "driving too fast for conditions" brought up earlier), interpretation of what the laws mean is essential to be able to reach any kind of conclusion. It's pointless to, for example, make "cruel and unusual punishment" illegal unless there's a defnition of "cruel and unusual" that can be referenced.