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Law is not rational | 355 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Law is not rational
Authored by: PJ on Tuesday, July 03 2012 @ 03:59 PM EDT
Ah, I see your point in the bigger sense. You
had the details wrong, but your bigger issue I
can also address.

One, you are right, the law isn't neat and
predictable like math. It's "squishy", as
Eben Moglen once described it.

Second, the precision of wording in the law,
and the variety, comes from human nature. By
that I mean, there is no way to have broad and
simple rules that apply fairly to everybody.

(I'll leave out of the discussion the obvious,
that lobbyists carve out special value for clients.)

But even without that, legislators have to consider
lots of different types of situations and actors,
and that's also why laws get revised. They pass a
law, and it has unintended consequences, and then
they revise it to fix it.

Over time, the end result is extraordinary detail, and
that is exactly why I always tell you not to go into
court without a lawyer and never to discuss a legal
situation yourself with somebody's else's lawyer. You
can't possibly know what you need to know to win.

Even lawyers hire specialist lawyers for different
types of problems, because there aren't any lawyers
who truly understand all the law. And that's why you,
as a non-lawyer, sometimes think there is no rationality,
when in fact it's rational but on a plane you are not
aware of or factoring in.

[ Reply to This | Parent | # ]

Law is not rational
Authored by: Anonymous on Wednesday, July 04 2012 @ 12:22 AM EDT
I'm not so sure the law is that different from computer science in this
respect.

Most common programming languages support local variables, that are defined only
within a particular scope. A program might declare a local variable 'String
foo' in one function, and declare a different local variable, 'int foo', in a
another function. When reading the code, each time you encounter a reference to
'foo', you have to figure out what the scope is, and what declaration is in
effect, to figure out what it means.

It shouldn't be surprising that the law works in a similar way. Like functions
in a program that declare local variables at the top, many statutes begin with a
series of definitions of words like 'tax' that declare what they mean for the
purposes of that particular section of the law. Just because the word means one
thing in one scope doesn't mean it has the same meaning in every scope.

I don't think there's anything irrational about that. True, it can be jarring
if you aren't familiar with the context (and the legal definition in scope for
that particular context), especially when the term in question is also a common
English word. But this is just as true in computer science: it's generally a
mistake to assume that all variables are global there too - or that a variable
named after a common English word doesn't have a specialized meaning in the
program.

Of course this is an analogy: you can't compile the law, and it isn't written in
a formal language like software is. But the conventions around naming do bear
some similarities.

[ Reply to This | Parent | # ]

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