Law, clarity, and simplicity
Commenter “Skip” makes this interesting observation:
Nothing glazes my eyes over faster than reading law. Yet one like me would think a written law shouldn’t need to be determined, it should be cut and dry what it means. Seems that isn’t the case and hasn’t been for a long time.
I think I might have said something similar prior to going to law school. But if there’s one thing I learned there – really really learned – it was that it’s impossible to do as described. The phenomenon is not something recent, either. It’s something that’s an intrinsic and unavoidable part of law.
The reason this is true is connected to what Karl Popper pointed out about language itself:
Always remember that it is impossible to speak in such a way that you cannot be misunderstood: there will always be some who misunderstand you.
And that is true of all laws. One must try to write laws that are as clear and comprehensive as possible. But attempts to clarify all gray areas that can arise from a law will inevitably lead to laws that are incredibly lengthy and convoluted in their attempts to cover all bases, an attempt that always fails because life always serves up the unexpected and unforeseen. So these attempts at clarification often result in statutes that serve to make things murkier and more unwieldly.
That’s where courts come in. They are tasked with interpreting and applying laws. That’s how we get precedent and case law. And because it’s a matter of interpretation, we often get disagreements. The disagreements can be based on the definition of a word or phrase, the history of the people who passed the statute and what they said the law was about at the time, and the legal philosophy of the judges (which can be based on politics and how “elastic” they think a law should be).
It’s amazing that the legal system functions as well as it does, considering.
Years ago, it occurred to me that writing laws is a lot like writing software. You have to specify everything in excruciating detail, including all the exceptions and edge cases. It’s also necessary to strictly and precisely define every term you use. The tiniest mistake can crash your program, cause your Mars orbiter to crater into the surface (the Mars Climate Observer), or your X-Ray machine to deliver a deadly dose of radiation (see the Therac 25).
If you’re amazed the legal system function as well as it does, you should be even more amazed that software ever works.
There is also the problem of circumstances which change and weren’t in the experience of the drafters of the original law. This is the problem with the birth citizenship dispute. The situation we have today, in which women can jet into the US, give birth, and then depart with their little US citizen in arms, did not exist in the mid-nineteenth century.
Often times what the law is, is not written down anywhere in one place. It’s found in how laws modify each other, or in how regulatory authorities have enforced and interpreted the law as well as how judges have ruled on the law.
It’s not a bad thing for judges to interpret law. Blackstone’s first three chapters lay it out pretty well, why it is that it ought not to be any other way. He does not, of course, argue that these interpretations are or ought to be final and definitive no matter what may have popped into a judge’s head.
It’s amazing that the legal system functions as well as it does, considering.
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Did, not does. We have reached a point where many judges just don’t care about such matters. All that matters to them is that the right side wins.
Eventually every system decays. Ours has pretty much reached it’s end. Since I am conservative by nature, I hate saying that. But it’s true. Our system seems irredeemably rotten.
There is a great Beazley Discovering Python talk about his time as a software consultant on a patent case. About half way through he shows a picture of Bill Clinton with the quote “It depends on what the meaning of the word ‘is’ is,”, and comments that if you understand the quote, you understand what the lawyers in the case were doing: arguing about the meaning of words.
@Karl Popper: Always remember that it is impossible to speak in such a way that you cannot be misunderstood: there will always be some who misunderstand you.
Not to mention those who are politically motivated to misunderstand …
Which seems to be more the problem these days. Or the possibility to “Understand different” as Steve Jobs might have said.
A counter example, if I may. I read the Title III (Recordkeeping and Information Availability) and associated definitions, e.g., indian, of the Indian Child Welfare Act very carefully and patiently, and I found it pretty clear. That convinced me that, with care and patience and searching, laws can be understood. (Obviously, I am not a lawyer.)
https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg3069.pdf
https://www.bia.gov/bia/ois/dhs/icwa
“Always remember that it is impossible to speak in such a way that you cannot be misunderstood: there will always be some who misunderstand you.
Really? Pray tell, how do you ‘misunderstand’
“Thou shalt not steal”?
What is to be ‘misunderstood’ about “the right of the people to keep and bear Arms, shall not be infringed“
Those who ‘misunderstand’ what is clear to an 8 yr old do so intentionally. Most laws are drawn up to contain loopholes and ambiguity.
The problem in law making is an unwillingness by most politicians to say what they mean and mean what they say. And a public that punishes those that do. Post WWII Churchill is a prime example of what happens when a politician refuses to cater to a fickle public.
“Thou shalt not steal.”
It always comes down to practical cases. Who is the owner? Has he given permission? It is not hard to imagine cases…
Your friend is unconscious and you take his car to drive him to the emergency room. Have you stolen his car?
Your neighbor puts trash out on the street for pick up. Can you rummage through it looking for anything useful?
An old man on a walker asks you to pick up a small object for him from the ground. You discover it is a gold ring. Can you keep it?
Heard it said that the seeming repetition in US law comes from Britain and that’s because if the British language heritage. It’s a mish mash, as one of my Brit friends said. Pictish followed by Celtic/Gaelic. Then Latin. Followed by Anglo-Saxon, vareious dialects. Then Danish. Then Norman French which was French salted with Norse, then more “correct” French,
And the ability to have nearly unintelligible dialects in various corners, even today, in corners of an island about one-fifth the size of Texas.
So constructions like “last will and testament” would seem unnecessarily repetitive to most of us but, maybe a couple of hundred years ago, care was taken to cover for differing linguistic traditions. And so forth. Interesting hypothesis.
Geoffrey Britain:
TomR is exactly right. Definitions are tricky.
And your 2nd Amendment quote leaves out the most argued-about phrase – something of which you’re almost certainly well aware: “[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.”
@Richard Aubrey:Pictish followed by Celtic/Gaelic. Then Latin. Followed by Anglo-Saxon, vareious dialects. Then Danish. Then Norman French which was French salted with Norse, then more “correct” French
Not just law. Today I was reading about the Wookey Hole Caves in England. The name is etymologically “Cave Cave Caves”. Similarly the Avon River is etymologically “River River”.
Neo,
It’s not confusing if it’s considered two statements. 1) a regulated militia 2) the right of the people to keep and bear arms.
Sennacherib:
That’s a mighty big “if.” The point is that the two statements appear linked.
niketas
That’s hilarious.
Sometime back, a friend brought a Brit crime movie. Not lords&detectives, A murder happened in an English country village (apparently one of the most deadly places on Earth) and the side plots began. Fortunately, we were interrupted after about twenty minutes. I’m not gong back to that without closed captions and a glossary. And this was normal people speaking normal–for them–English in a normal little town in the current era.
Sometime back, some bodies were found at the site of the Battle of Camden. About a dozen, one a Brit. A detachment from the latter’s regiment was on hand for the ceremonial interment. Interviewed one of them. Absolutely unintelligible.
As regards the 2A, when you call up the militia, it would be useful if they were already armed. Having to show up at the local armory first might be impractical, depending on who was doing what to whom and where.
As to “well-regulated”, couple of points. One of Biden’s DoD types said she didn’t want to recruit from “old military families”, since she didn’t want a “military caste”. A bunch of guys who can organize with a glance and a nod might be dangerous to whatever was supposed to follow Biden and Obama.
But any number of former military, however recruited and spread out would be the same.
And see the self-organizing after natural disasters; youtube carries a lot of it. “Harvey rescue”, is one although some footage may have been taken down. “Helene relief” or “rescue” ditto.
This may not be related, but it’s too good not to relate, Back about six years, I was reading, lord help me, the WaPo’s fashion column on the iconic picture of the three American guys getting the Big Deal French award after saving a couple of hundred lives on the Thalys train. Went over it with my granddaughter, who was twelve at the time. At the end, the author (Robin Givhan, I think) remarked that the guys had been dressed appropriately; Polos and Dockers are what young guys wear when they know they’re supposed to get dressed up but they don’t know what the fuss is.
Granddaughter shrugged; “We’re Americans. It’s what we do.”
And look at the old, say two hundred or more years back, militia laws. Any mention of hierarchy, formal drills…. Nope. Age fourteen to forty-three, show up with a blanket, three day’s rations and your rifle. That was Michigan, ca 1820.
So looking for legal precedent for “regulated” might be tricky.
The 93d Detachment of the General Militia reported for duty on 9-11 and took care of business. And most of them had never met. But, as my granddaughter said…..
Lots of laws include “woman” but there is at least one SC Justice unable, or unwilling, to define what a woman is.
Most 8 year olds can.
Neo,
Appear!
@ Richard Aubrey > “As regards the 2A, when you call up the militia, it would be useful if they were already armed. Having to show up at the local armory first might be impractical, depending on who was doing what to whom and where.”
Several stories from Israel during the Hamas attack on October 7, 2023, confirm your observation, IIRC.
IMO, This is also a rationale for Secretary Hegseth’s recent order that soldiers be allowed to carry personal arms on base, if legal in the relevant state. I suppose there are some necessary limits on carrying government-issue firearms outside of the field of battle, but if the woke-infected hierarchies aren’t cleaned out soon, we will continue to have domestic cases resembling battle fronts.
Especially if Iranian terrorists are among the illegals imported by Biden Inc (and that’s a rhetorical “if”).
Huxley and TomR together come very close to, if not actually landing on the issue about “the law.” Defining things is the key. If I am allowed to provide the definitions, I control the outcome. “Thou shalt not steal” sounds clear until some pettifogger “explains” that, since property is merely a construct of white patriarchy, should another appropriate it without permission, it is not “stealing” but rather “liberating” said property from someone who had no right to it in the first place. Marxism provides a perfect example, since it purports to eliminate entirely the concept of “private property,” so ipso facto, one can’t “steal” another’s property–unless one takes the property of “the state.” The problem is exacerbated by those who intentionally misconstrue words in order to advance their particular cause, whether political or personal. Confucius got it right centuries ago when the spoke about the rectification of language and the ill effect on society in general resulting from the misuse of words to mean something other than what is intended. The Bible speaks to this indirectly, as in Deuteronomy, where moving boundary markers is condemned as worthy of capital punishment. Although directly applicable to land boundaries, it applies by analogy to moving linguistic boundaries as well. When the boundaries are moved, the foundation upon which everything rests is destroyed and the entire edifice falls. Pretty sure that is where we are headed unless we pull up short by some miracle.
How about….
“ A. D. Mills in his Dictionary of English Place-Names interprets the name as “Ridge of the hill with a rocky peak”, giving its etymology as Old English torr, Celtic *penn, and Old English hoh, each of which mean ‘hill’.[2] Thus, the name Torpenhow Hill could be interpreted as ‘hill-hill-hill Hill’.”
The “keep” part which means in your possession and the “bear” part means carried on your person.
Anyone unfit to keep and bear arms is unfit to be running around loose. They can’t be trusted with cars, axes and rat poison either.
In my profession as an engineer, I used to occasionally have to write something called “operational safety standards.” These were mandatory standards that dictated how a given process had to be operated. I found that it was almost impossible to write standards so clearly that some doofus could not misinterpret them, unintentionally or not. I once had a lengthy argument as to whether a pipe constituted “equipment.” I eventually gave in, and added a sentence to the effect that “For the purposes of this standard, piping shall be considered equipment.” So, I have some feel for the care that must be taken with legal documents.
But, I also drafted several patent applications, and worked with lawyers to get them finalized and filed. That process ranged from okay, to infuriating. The good ones would take what I had written, put it into legalese, and get it filed. But we had one guy who thought he knew chemistry better than I did, and another one who could not seem to write a comprehensible sentence, complete with actual subject and verb agreement. He was supposed to be brilliant, but I wondered how he got through law school. My opinion of legal writing is mixed, at best.
By the way, your writing is excellent.
Mr Bill:
Thanks!