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Just as some misguided programmers see computer code as poetry, many misguided lawyers see the law as an edifice, manifest and strong. So the idea here is to create a sculpture of a piece of legislation that, like that legislation, has its murky and flexible areas chipped away and defined until what
is left is a series of sharp edges, each deliniating the line between clear definitional points.
So, that's the idea. Now for the implementation.
Imagine a legal test. "Body X will be Y if conditions A and B are satisfied." So far, so algebraic. But it is in the nature of legislation that, however taut the drafting, circumstances will arise that do not correspond with the test as given. Therefore, there are refinements given in the jurisprudence. "A will exist where a, b, c are satisfied." And so on, for each of the prongs of the original test. Each piece of legislation will be made up of many such legal tests and, consequently, each piece of legislation will be subject to case law clarification.
So, create a large, possibly massive, frame structure, a skeleton representing the prongs and tests of the legislative act in question. The skeleton should be covered in a connective surface, akin to, but not infringing the intellectual property of, Lego. Affix to the connective surface a coating of probably non-block shaped blocks akin to, but not infringing the intellectual property of, Lego. These blocks, perhaps attached in such a way as to create a recognisable form (a white elephant?), will collectively represent the grey areas that cloak the legislation when enacted. Groups of blocks will be detached from the frame, one at a time, over a period of time, each removed block representing a case law decision on a point of law. Upon each removed block is written a synopsis of the case in question. The block is then affixed to the ground or floor, text up. Repeat this process, perhaps in real time, perhaps in time-lapse retrospect, until such time as the legislation is repealed and one lucky local schoolchild gets to steam roller the whole thing, which by now should look very little like the original, unmolested work.
(Apologies for any lack of clarity in the idea text).
How do porcupines make love?
http://paulding.net/porcupine.html
Step one: frottage.
Step two: golden showers.
Step three: doggystyle. [calum, Feb 01 2006]
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Just put up a huge statue of a donkey - "The Law is an Ass." |
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I just lost a bet with myself. First comment, rather than the expected second. |
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Interesting, but it takes as an axiom that a legislative act has a valid and useful core, to which have been accreted clauses and appertances that cloud, obsure, or deflect that original intent. |
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While this may be true in many (arguably most) cases. In other situations the reverse is true, and without significant embellishment, the intent of the original act will quickly be subverted. |
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Two quick examples of this situation are the Second Amendment to the US Constitution, and the Equal Rights Amendment. |
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The second amendment to the US constitution is quite simple in language: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This can with some validity be interpeted three ways:
1) People should have access to any weapon that they desire, so long as they use those weapons only in a legal fashion.
2) Militias should be created and allowed to retain those weapons nessecary to their functioning as Militias.
3) People should have access to those weapons that are appropriate to Sporting, Hunting, and Self Defense.
Personally I think the third one is the greatest stretch of the language, but that has been the interpetation that has been used for many decades. |
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The Equal Rights Amendment is similarly simple. "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." |
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Again, very simple, but equality of rights could be interpeted as meaning that sex could not be considered in any way in legislation. This would make any legislation making provision for pregancy illegal. Also any legislation concerning homosexual marriage. (Please note that I personally do not make these interpetations, but I have heard them put forward.) |
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Anyway, my point is that additions to legislation are not always there to obscure or redirect the intent of the legislation, often it is to make that intend more durable. |
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Ah, my text is clearly not so clear. The sculpture starts off as one thing and the extent is chipped away, smoothed, clarified by case law. Acts of reduction producing certainty, rather than acts of addition producing obfustication. |
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Further, it is not the flexibility of interpretation that is at issue here - without the flexibility there would be no need for recourse to the courts and the sculpture would stand, unchanged like those of Churchill, Scott and Georges various before it. What is at issue is the mutability of the limits of the legislation, plotted against time, the quasi-organic evolution of an Act Parliamentary, refined further and further to suit its environment until it is swept away by changing circumstances, like the dinosaurs. |
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On the topic of subversion, Galbinus, your point is noted. Part of the problem with a written constitution is that is, at least partially, instantly ossifying. Circumstances may change about it - as is the case with the need for a Militia - but the Constitution is very difficult to change wholesale or sensibly. If changes are allowed to accrue, to be heaped haphazardly on one another, then you can have a complete functional reversal of the legislative measure in question. The alternative, a negative constitution, such as exists in the UK ("Do what you like, so long as it is not against the law") is freer to move as it does not permeate the consciousness of the citizenry and both deck-sweeping wholesale & creeping gradual changes are possible, without interpretational anomalies arriving. Whether, with the introduction of the European Convetnion of Human Rights in UK's statute books, this will remain the case is another matter entirely. |
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(Co-incidentally, can you, Galbinus (or anyone else, if you haven't been scared away by my lengthy ramblings) tell me if the US Supreme Court takes a purposive approach to interpretation or not? I genuinely can't tell). |
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I always liked the irony in that case law tends to make an Act so precise and technical that it becomes unintelligable to the average person. |
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I would perhaps suggest the opposite to this. To have the original connective surface representing the Act and add the blocks rather than take them away. This would signify the idea of building on the initial Act rather than detracting from it. And more importantly that it would allow for more than one layer to be added to signify the clarifications of earlier clarifications. Also, it would seem to make it easier to return to the status quo if an earlier decision is reversed. |
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What would you do if the legislation in question remained in place until all the blocks were removed? Would that not signify a perfect Act? |
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[Galbinus], the most obvious flaw I can find in your second example is the idea that the Equal Rights Amendment would prohibit legislation with regard to pregnancy. There is no necessity to specify females as those pregnant. To make a provision for pregnant people need not regard gender and would only exclude men in its implementation, not in its concept. |
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(I had initially written this in an imprecise way, and thought it prudent to delete and start again. This may have messed with the time-line of the annotations a little) |
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[calum] I am no lawyer. Much less a constitutional law specialist. If I understand your question though, I believe that yes, SCOTUS does try to take into account the framer's purpose in writing legislation, where that can be determined. |
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[hidden truths] Please understand that I was not making an argument that I personally would use. Just one that would be put forward. And what you have described is a sophistry. Since only females become pregnant, any legislation that specifies pregnancy is de facto applying only to females. Just as legislation stating that only persons with an albedo above a certain level are accorded in a certain fashion would rightly be seen as racially motivated. |
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[Galbinus], thank you. And a belated welcome to you. |
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[hidden], I think that you have detected an attitude toward the legislation that I did not intend. What I meant to write was that the initial sculpture, bedecked in not-Lego, represents the initial *potential* sphere of legal influence at the commencement of the Act, the Courts' interpretative chippings paring back the Act until its function matches its pragmatic purpose. |
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[boysparks], your first paragraph is partly what I am driving at. But I like the idea of multiple statues, "The Ideal" vs "The Effect", side-by-side outside the Old Bailey, or in Parliament Sq. |
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[UnaBubba], that's sounds like the familiar Song of the Losing Party, to me. That's not to say that there's no truth in it, though. |
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I understood the idea (I think, correct me if not), but it could equally be said that judges build on an Act and give it more complexity as much as they refine its use. I've had this quote kicking around for a while, I think it's fairly relevant in this context: |
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"the spaces between the rules because, really, that's all rules create. Granted one has, for the two-dimensional line between the two things divided, some certainty but immediately on either side, one has no more certainty than there was before the rule. Instead, there is uncertainty, argument, doubt and the concomitant cavalcade of (in this case amateur) lawyers. |
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On realising that rules --> uncertainty --> lawyers, the individual can ...attack the uncertainty, which is a symptom of rules, by attempting to create more rules. This, obviously, leads to nothing more than narrower, and more complex spaces between rules, which leads to a greater number of areas of uncertainty and, ultimately, to more lawyers." |
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I was considering the idea of looking it as case law creating new intricacies rather than depletement of its potential usage. |
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Hey, I recognise that quote! Interesting that I can hold two opposite conceptions of the law in my head simultaneously and not notice that they are in conflict. |
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[Incidentally, [hidden], if you still have the quote in full, would you email it to me, please? I never took a copy. Cheers.] |
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[UnaBubba], yeah, it's inherently political because man is a political animal, so we're agreed, though we seem to differ on the extent to which politics has an effect on the decision-making. Your example is certainty political: appointments to the US Supreme Court are made by one man, to suit his agenda and the appointees do not, either by rule or practice, have to have any judicial experience whatsoever. But simultaneously, your example relates to the selection of judges, not to the extent to which politics creeps into the manner in which their decisions are made. On the basis of my less lengthy period of study, I still hold that, for the most part, UK judges like, perhaps even fetishise, the political neutering they undergo when they get their long, dusty wigs on. |
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For those outwith the legal profession, UK judges are entirely interchangeable: stick a wig and a red gown on a crumplefaced posh old man or mannish woman and you could convince just about any member of the public that they're face to face with Lord Monboddo of Little Fuckhampton. For this reason, the political power games played by judges are circumscribed by the small area in which they can be played. This arena has been reduced even further by the development of the European Court of Justice and, by and large, the UK judges have adapted admirably. They play against themselves and against the executive and it is rare for these games to leak into and affect the impact of their judgements on the lives of the parties. There are, of course, exceptions (viz, the striking down of the Home Office sentence increases for the boys that killed toddler James Bulger) but these are, y'know, exceptions. |
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Obviously, though, I can't speak to the situation in Australia. How are the justiciary portrayed/viewed in Oz? As you describe? |
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Over time, won't the sculpture simply evolve into two large stone tablets with ten basic laws etched in? |
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There's rather a lot of text here. Can we have it in some sort of three-dimensional form, for those of us who think visually? |
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I thought about trying to illustrate such a thing as this but realized I haven't a clue as to what form it might take. The only image that came to mind was of porcupines having an orgy. |
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