h a l f b a k e r yInexact change.
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laws are rewritten into a more summary form, so that they are clearly understood by the majority of citizens. the courts (& juries) will then concentrate upon whether the accused followed the spirit of the law & any punishment is linked to how much the guilty party broke the law/took the piss.
the
idea is that legislative body can concentrate upon the spirit of laws, rather than worry about the absolute loopholes & fine, fine, fine print.
i.e. someone just about speeding, would receive a much minor punishment than someone breaking it by 50%. equally, company executives would not be able to hide behind loopholes if they utterely take the piss in terms of the spirit of the law.
the goal is to make law more understandable for all, for punishment to fit the degree of crime and to make fine print boundaries less clear to those who want to be on the bleeding edge of legality.
a law commission report
http://www.lawcom.gov.uk/333.htm
Many sentencing statutes have been so heavily amended that their meaning is hard to discover. [mymus, Oct 05 2004, last modified Oct 17 2004]
short tort, to provoke thought...
http://www.ucl.ac.u...des_25sept1952.html
Whether this was a typical course of events affording sufficient prima-facie evidence required, in the first place, a formulation of the results of experience and then its application to the present situation..... [mymus, Oct 05 2004, last modified Oct 17 2004]
[link]
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Aaah but the public is already _presumed_ to know the law so that "I didn't know it was an offence" is not a valid defence to a criminal charge. |
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There's a number of reasons that legislation is drafted as it is. Firstly, the overriding principle of legal certainty - without clear, precise instructions as to what is and is not illegal/unlawful, people could not be presumed to know the law. Without legal certainty, the Rule of Law cannot work. |
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Secondly, and relatedly, the Courts exist to interpret, not make, the law. If the definitions of crimes are inchoate then in convicting or acqutting, the courts will necessarily be performing the legislative function (which, as they are not elected - at least in the UK - is wholly undemocratic). |
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Thirdly, if the law is easy to understand, there wouldn't be any need for lawyers. Can you imagine a world without lawyers? |
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your first point "principle of legal certainty" hummmm i think that for the "biggies" it is fairly clear "thou shall not kill", "thou shall not steal sweeties from woolworth's" etc. i just feel that a lot of laws may well be clear after several years of legal training, but are fairly unitelligible to the rest of us. |
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2nd point, i agree. i'm not saying that the courts would define the laws, just that they would have wider, but clearer powers of interpretation. instead of having to decide the legality around minute areas of detail, they would follow the spirit of the law. this would also allow the legislative body to concentrate upon what they are trying to achieve, rather than the absolute detail of scripting it to fit all other laws. |
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3rdly, unfortunately this would not remove the need for lawyers. just remove the ones that make a fat pile of cash from finding sneaky ways of "breaking" the law. |
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I'm not being combatative (at least, I hope I'm not), but could you provide examples of laws that are fairly unintelligible? |
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Also, the courts already look to the Spirit of the Law in interpreting, that's one of the main principles of judicial interpretation. For example, in the UK the courts can look at Hansard (published transcripts of proceedings in Houses of Parliament) to determine what the intention of the legislature was in passing the law in issue. |
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i've included a link, which is to a report by the law commission where they have attempted to tidy an area of law as "Many sentencing statutes have been so heavily amended that their meaning is hard to discover." |
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i'm not a legal expert by any stretch (in fact the basis of my posting is that few ordinary citizens are), but i believe that the courts look to precedence of legal cases before hansard. ie, lets look how detail has "bent" the law in previous cases. rather than firstly considering what that particular law was created for. i could very easily be wrong... i also think that the sentance should reflect the amount of "taking the piss". |
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& this feels like a conversation, rather than combat, to me ! :-) |
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Amending the legal code is and should be hard. Just what commission are you going to appoint to enact this sweeping revision of the nation's legal code? Law evolves slowly over time in the courts and in the legislature; a large-scale "clean-up" of the sort you mention is likely to have unanticipated disastrous side effects. |
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Besides, have you actually encountered a problem arising from the lack of clarity in a law? I'm not sure there's a big problem here except to people who would like to tidy the world up. |
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Your example actually doesn't seem all that unclear to me. |
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this idea isn't just about clarity, its also about proportional punishment. have you never seen a news report where a corporation has been found "not guilty" due to a technicality, while it appears that they operated in direct opposite to the spirit of the law? |
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In the UK, Acts of Parliament contain a passage explaining the purpose and 'spirit' of the law that is to be enacted, so this is essentially baked. |
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//"bent"// I think the courts prefer the term "interpreted" <g>. |
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The main positive point of this idea is that the proverbial "man on the Clapham Omnibus" would be better able to understand what is an is not illegal/unlawful. However, I think that the main negative point of this idea is that beyond these general notions of illegality/unlawfulness, he or she will not know anything more specific, even with the help of a lawyer. Consequently, there'd be a huge increase in the number of cases going to the highest courts in the land, deciding interpretative points. If precendent is done away with, the legal system may well collapse under the strain. |
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In sum: a laudable goal but a halfbaked solution. |
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btw, i have now moved from Clapham.... :-) |
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so the bus finally arrived then. |
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actually it was a large removal van in the end, driven happily off to the burbs (though we didnt sing show tunes as we went...). |
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I'm a high school debater, and I'll be in competition before I can check back here to see if anyone's responded. The topic is letter of the law v. spirit of the law, and I am clueless as to how to write a case, or even come up with a philosophy, which promotes letter over spirit.
Can the spirit be so covered up to be unintelligible, or due to legislative politics be next to nonexistent? |
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After extensive research, the best thing to do, since it's a Friday - is take some cheerleaders to the debate.
<Cheerleaders>We've got spirit, yes we do! We've got spirit how 'bout you?</Cheerleaders>
<Opposing debaters>We've got letters of laws, yes, we do...</Opposing debaters> |
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Surely the 'spirit of the law' comes from 'the law'... how could it exist otherwise... That sounds a bit Kant. We can see the spirit of the law by following judicial decisions, the sentencing and the direction of legislation. I always figured the spirit of the law was an excuse by police to abuse police powers. |
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