True. A partial solution is for the government to incorporate legal education into compulsory education (remember this is a second best for libertarianism so I'm throwing libertarian ideas to the wind here) in order to ensure people can understand more law. Another partial solution is to make it illegal to work in certain areas unless you can pass tests on law related to that area. A third partial solution would be to cut down on unnecessary laws.So far, so good. The problem being that the law has to be clear in all possible cases, which makes it impractical to simplify to the biblical "no killing" for example. Society has also grown more complex but trimming unnecessary legislation is good. Keep in mind not everyone will agree with you on what laws are unnecessary.
The metaphorical Crowning Jewel would be a law something along the following lines, ideally in the Constitution.
A person may not be punished for an action or compelled to pay civil penalties for an action if they could not be reasonably aware of said penalties.
I don't know how to best clarify it and make it work- the idea is an outline, not a completed law. But something along these lines should do it. Naturally, I would substitute for "reasonable" some complicated code of procedures for when a person was or was not considered capable of understanding a law.
I have already pointed out that I am ignoring intentions here. I am also, of course, ignoring tradition- just because something is traditional (and common law is that, I'm not disputing) doesn't mean it is good.And from a promising beginning, to crash and burn. The courts interpret the law, to see where it fits and where it does not, and when two laws contradict each other, to decide which is more important. This is a common law thing, a tradition predating our nation by a very long time and expanded on by our nation's founders. The Framers gave every branch of government the tools to cripple the others, so none could dominate and nothing could be done without either consensus or compromise. Judges are constrained by a number of rules, formalized and not, and are subject to dismissal (except the Supremes) should they fail to do their jobs, or abuse their power. The flipside is they can;t be given the boot for doing their damn jobs.
Frankly, if I had sufficient power that I could actually win, I would consider a nation's adoption of common law a sufficient just cause to invade and conquer it. My reasons are pretty much already stated- just because it's a judge's job to do something doesn't mean it is right.
Finally, of course, judges have an oath to uphold the law which they are breaking on a regular basis. Were I a judge (somehow), I would absolutely refuse to make any ruling that, as far as I could tell, would involve me MAKING law instead of simply making clear existing law.
This is how the law works in theory- if this were how it really worked I would have less of a problem. However, in practice this is not true- such as when negligence was retroactively established in Donoghue v.s Stevenson or the American case (which I can't remember, but I wanted to use cases from several jurisdictions to make a point) in which it was retroactively ruled that the federal government could put restrictions on firearm ownership and thus that federal firearm laws applied.A precedent is not law, it is merely a precedent. Some other judge found this interpretation to have merit, so it warrants examination and consideration. No more, no less. It certainly does not apply retroactively to previous crimes. You should worry about what is illegal now, because the law at the time of the act is what's applied. If something wasn't illegal when you did it, you;re good. If something was illegal when you did, but is ok now, you're boned. This to is enshrined in the US Constitution.
One thing I agree that I share with Kant is the conviction that there are moral duties that exist regardless of the consequences- such as the quasi-duty of a law-imposer not to impose laws on people that they cannot understand.I'm sorry, I'm just having so much trouble taking you seriously when you claim we should have a perfect, immutable and simple law. The world changes, people change. We struggle today with some problems the Framers knew well, and many they couldn't have possibly imagined, while so many issues that seemed world-consuming at the time are long settled and forgotten. The Framers knew they didn't have a perfect law that would always work, that's why they included a process for changing it.
The only laws I advocate as immutable are Constitutional laws- changes of law which are not retroactive and which give people ample to adjust to the change of law do not violate the rights of the people to understand them.
Logically, there is no reason why "it's in the job description" should imply "it is morally acceptable behaviour." There are plenty of means to make the law work, as I have mentioned.Again, if you're a judge, interpreting law is what you do. That is your job. I really appreciate the idea that the law should be simple enough for a layman, but I don't see how it's practical with a society as large and complex as ours. I completely reject the idea that there is no middle ground whatsoever between an informed citizenry and a judiciary that works. Perhaps a better education could communicate at least the broad strokes to everyone without getting into the nuance of exceptions, clauses and case law. Oh wait, we already do that.
No it isn't- to teach somebody and to protect them are two different things, as common sense would show. As a matter of modern cultural convention I agree that said public education is SEEN as a birthright- but why should it be?Education is absolutely, crucially, a matter for protection. A free and appropriate public education is nothing less than the birthright of each and every citizen, and something they pay for through taxes.
Any hypothetical mixture of intentionalist and literalism would be me creating an arbitrary meta-code of law to judge law. I would thus be imposing my own opinions of how law should be judged on the actual law. If writing a Constitution, I would say something like:And we all know there are only two valid and irreconcilable views on law?
This Constitution is to be interpreted literally, except in the event of literal ambiguity. In the event of literal ambiguity, the interpretation closest to original intent is to be followed.
But not being the writer, I have no right to do this.
Maybe you're right on proper intentionalist interpretation- as I said, I'm not sure. You do make a good case.Context matters. We'd just fought a bloody Civil War, the most destructive conflict in our history and it wasn't going to happen ever again. There's a clause of the 14th banning any public official or military officer who betrayed his oaths through rebellion from ever again serving a position of public trust.
I agree that they are not equal under the law, just as children are not equal under the law. But the clause in question discusses the equal PROTECTION of the law.A very different question. But the NAACP and Brown's argument was that Separate cannot be Equal. If a black man cannot share a sidewalk with a white man, nor a lavatory, a waiting room or a school he is not equal even if his bathroom was as good as any. Because one man can go where he chooses, act as he likes within the bounds of law and reason, and the other cannot.
Terralthra:
1- Equally PROTECTED, not equally SERVED. There is a difference.
2- So you're saying it's impossible to care about laws and not care about people? Even if your straw man were true, isn't that at odds with reality?
Loomer:
I already knew about the legal fiction that the Common Law merely reveals the law as it is. That is, however, just that- a legal fiction. Given that in reality judges are making up law, then in reality it follows that the injustice exists.
