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Maybe some laws just don't have penalties? Having laws with no penalties is rather common. https://politics.stackexchange.com/questions/26724/what-is-the-purpo

Maybe some laws just don't have penalties? Having laws with no penalties is rather common. https://politics.stackexchange.com/questions/26724/what-is-the-purpose-of-issuing-laws-regulations-without-penalty https://politics.stackexchange.com/questions/26724/what-is-t...

warent 6y ago
Wow, this is an outstanding post and could probably be an HN submission in its own right. Thank you for sharing.
- deleted 6y ago
  [deleted]
- willvarfar 6y ago
  People reading these comments agreed ;) https://news.ycombinator.com/item?id=24357314 https://news.ycombinator.com/item?id=24357314
wahern 6y ago
There's an old maxim in the Common Law that "every right has a remedy". But it's just a maxim, and rights are often recognized long before any remedy. One of the most recent (relative to the long term) and conspicuous attempts by American courts to try to judicially craft a remedy was the creation of the so-called Bivens Action, which permits citizens to sue Federal officials for civil rights violations in the absence of any statute. See https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions and https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... But over the past 40 years conservative justices have not only cabined but nearly extinguished Bivens claims, arguing that it abrogates the principle of sovereign immunity and subverts the legislative process. Ironically (or not so ironically), the same justices over the same timespan have judicially created defenses to S.1983 civil rights suits, protecting state officials in contravention of clear constitutional and statutory text. Both sides promote a background principle of law in contravention of nominal legal texts; "every right has a remedy" and individual justice in the case of the liberal faction, sovereign immunity in the case of the conservatives.
hinkley 6y ago
When I was young and dreamed of being a rock star^W^W entrepreneur I used to pay more attention to contract law. It seems like everywhere from roommate, landlord, business, or partnership contracts, we seem to write down rules but not consequences or penalties. Oh you were supposed to pay rent or this invoice, but I can't make you do it? What's the point of contracts? The time I owned property with someone, I at least had the foresight to add two clauses. Right of first refusal (obvious), and another clause that if either party were behind on payments the other party could trigger arbitration, and one of those outcomes could be to force a sale (then looping back to rule #1). But the 'punishment' in this case is that one party loses their ownership, and the other party either has to cough up a ton of cash or lose it too. In this case I had decidedly more liquid assets so I had an idea how that might play out if things went south. But I'm sure there are a ton of things not covered, and really weren't suggested by the lawyers. Whatever penalties exist for the lawyer leaving a huge surface area for litigation, those are pretty opaque for the rest of us and I think they like it that way. Capital L Law just seems like a giant conflict of interests straight out of the gate.
- shalmanese 6y ago
  The mark of a civil society is laws without punishments. Low trust societies have to build in enforcement mechanisms for everything because if you don't, someone will cheat you for the slightest advantage and life inside them is punishingly inefficient. High trust societies rely on people to do the right thing out of a sense of civic pride, decency, group cohesion or some other regulating force. Look at sports for example, the rules are written out in excruciating detail that account for the most unlikely of edge cases. What are the consequences of not following them? Well, outside of professional leagues, really nothing except people won't want to play with you. Why go to so much effort with the rules? Because the rules are what makes playing soccer different from playing rugby. They're what make the game the game.
  - badrabbit 6y ago
    A rule that can't be enforced is not a rule but a suggestion. If people follow it is because they agree with it. Anyone can follow a rule when it is convenient, punishment exists to make sure people follow the rule when it is inconvenient. Without punishment, it is not "rule of law" it is "guidline of law"
badrabbit 6y ago
You're absoutley right, but as the answer in your link points out, those laws are still enforced by some other means in most cases. My point was, obeying the most important laws of the land should not be left to the good will of government employees, if laws are to have penalties, is it not reasonable for the most important law to have the highest penalties?
deleted 6y ago
[deleted]

warent 6y ago

Wow, this is an outstanding post and could probably be an HN submission in its own right. Thank you for sharing.

deleted 6y ago
[deleted]
willvarfar 6y ago
People reading these comments agreed ;) https://news.ycombinator.com/item?id=24357314 https://news.ycombinator.com/item?id=24357314

wahern 6y ago

There's an old maxim in the Common Law that "every right has a remedy". But it's just a maxim, and rights are often recognized long before any remedy. One of the most recent (relative to the long term) and conspicuous attempts by American courts to try to judicially craft a remedy was the creation of the so-called Bivens Action, which permits citizens to sue Federal officials for civil rights violations in the absence of any statute. See https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions and https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... But over the past 40 years conservative justices have not only cabined but nearly extinguished Bivens claims, arguing that it abrogates the principle of sovereign immunity and subverts the legislative process. Ironically (or not so ironically), the same justices over the same timespan have judicially created defenses to S.1983 civil rights suits, protecting state officials in contravention of clear constitutional and statutory text. Both sides promote a background principle of law in contravention of nominal legal texts; "every right has a remedy" and individual justice in the case of the liberal faction, sovereign immunity in the case of the conservatives.

hinkley 6y ago

When I was young and dreamed of being a rock star^W^W entrepreneur I used to pay more attention to contract law. It seems like everywhere from roommate, landlord, business, or partnership contracts, we seem to write down rules but not consequences or penalties. Oh you were supposed to pay rent or this invoice, but I can't make you do it? What's the point of contracts? The time I owned property with someone, I at least had the foresight to add two clauses. Right of first refusal (obvious), and another clause that if either party were behind on payments the other party could trigger arbitration, and one of those outcomes could be to force a sale (then looping back to rule #1). But the 'punishment' in this case is that one party loses their ownership, and the other party either has to cough up a ton of cash or lose it too. In this case I had decidedly more liquid assets so I had an idea how that might play out if things went south. But I'm sure there are a ton of things not covered, and really weren't suggested by the lawyers. Whatever penalties exist for the lawyer leaving a huge surface area for litigation, those are pretty opaque for the rest of us and I think they like it that way. Capital L Law just seems like a giant conflict of interests straight out of the gate.

shalmanese 6y ago
The mark of a civil society is laws without punishments. Low trust societies have to build in enforcement mechanisms for everything because if you don't, someone will cheat you for the slightest advantage and life inside them is punishingly inefficient. High trust societies rely on people to do the right thing out of a sense of civic pride, decency, group cohesion or some other regulating force. Look at sports for example, the rules are written out in excruciating detail that account for the most unlikely of edge cases. What are the consequences of not following them? Well, outside of professional leagues, really nothing except people won't want to play with you. Why go to so much effort with the rules? Because the rules are what makes playing soccer different from playing rugby. They're what make the game the game.
- badrabbit 6y ago
  A rule that can't be enforced is not a rule but a suggestion. If people follow it is because they agree with it. Anyone can follow a rule when it is convenient, punishment exists to make sure people follow the rule when it is inconvenient. Without punishment, it is not "rule of law" it is "guidline of law"

badrabbit 6y ago

You're absoutley right, but as the answer in your link points out, those laws are still enforced by some other means in most cases. My point was, obeying the most important laws of the land should not be left to the good will of government employees, if laws are to have penalties, is it not reasonable for the most important law to have the highest penalties?

deleted 6y ago

[deleted]