5 ms·

A scarey thing about cultural movements is how they take the law with them. A system of law is only as just as its layers judges and juries.

by nbardy 5y ago

pxc 5y ago
This is actually a good thing. Laws that are unresponsive to unwritten cultural norms (and their changes over time) are extremely inflexible, and the position that they should be so inflexible is a radically conservative one. Responsiveness to cultural norms is in part a function of courts having to maintain some minimum level of perceived legitimacy with the public.
- _-david-_ 5y ago
  If laws can just change without a new law modifing it then you will never know if you are following the law.
  - pyuser583 5y ago
    Or if people in power are following the law.
  - pxc 5y ago
    You can't ever just read the law and know what it means, because law, unlike a formal system, is written in natural language (a semantically open system) and interacts with the real world, so it requires non-trivial interpretation. To make the law more predictable, a notion of 'precedent' is used to help make future interpretations adhere to past ones, lending some continuity to all this. But this means that an interpretation of a law in a new context can partially determine what that law means without modifying the text of the law. Abandoning the notion of precedent might avoid that, but it just makes the law unpredictable in other ways.
    - _-david-_ 5y ago
      I guess if that is what you mean than I would generally agree with you. The way I interpreted your post was that you were saying a law should just be changed by the whims of the populace without a proper process in place.
      - pxc 5y ago
        In our case, the whims of the populace are mediated by judges, whose consideration for popular feeling is often limited to something like 'will there be uncontrollable riots if I rule a certain way', and balanced against their ideological views (about how to interpret law) and the content of the law. But I think that element of consideration of popular feeling or shifting cultural norms is important. It's what lets judges do things like pass over laws banning women from wearing pants as a form of crossdressing instead of requiring, or to reinterpret language about equality as extending to wider groups of people than originally intended.
- djbebs 5y ago
  On the contrary it is a terrible awful thing, and a fantastic indicator of a poorly designed law. Laws should not impose morality.
  - simonh 5y ago
    All laws are about morality (except for those in science and maths). We often pretend they are different, or draw a distinction between behaviour constrained by laws and that constrained by personal morals, however the question of what laws to create and how they should be formulated are moral questions.
    - pxc 5y ago
      Some laws are about settling convention where the specific content of the convention has no normative component, e.g., which side of the road cars drive on
      - simonh 5y ago
        Some of the specific content of the law is arbitrary yes, but the fact we have a law about which side people should drive on at all is motivated by a moral imperative. Although actually neither the right or left hand side rules are arbitrary. They were each intended to better serve a moral objective. https://www.historic-uk.com/CultureUK/Why-do-the-British-drive-on-the-left/ https://www.historic-uk.com/CultureUK/Why-do-the-British-dri...
        pxc 5y ago
        They do serve a normative aim, i.e., 'we should have drivable two-way roads', yes. I'm not sure we need to reduce all norms to 'morality'. But if we think of morality in a really broad way, like 'humans (or other sapient creatures) seeking to satisfy preferences or impose additional structure on nature or society for their own purposes in a universalizable/principled (i.e., fair) way', then definitely: laws should always be motivated in some way by morality. That's different from the claim (which I'm not saying you've made) that this relationship means that laws should always simply 'encode' moral norms in some direct sense, which imo is a common (and mistaken) simplification. But yeah I think we're on the same page.

A scarey thing about cultural movements is how they take the law with them. A system of law is only as just as its layers judges and juries.

by nbardy 5y ago

A scarey thing about cultural movements is how they take the law with them. A system of law is only as just as its layers judges and juries.

pxc 5y ago

This is actually a good thing. Laws that are unresponsive to unwritten cultural norms (and their changes over time) are extremely inflexible, and the position that they should be so inflexible is a radically conservative one. Responsiveness to cultural norms is in part a function of courts having to maintain some minimum level of perceived legitimacy with the public.

_-david-_ 5y ago
If laws can just change without a new law modifing it then you will never know if you are following the law.
- pyuser583 5y ago
  Or if people in power are following the law.
- pxc 5y ago
  You can't ever just read the law and know what it means, because law, unlike a formal system, is written in natural language (a semantically open system) and interacts with the real world, so it requires non-trivial interpretation. To make the law more predictable, a notion of 'precedent' is used to help make future interpretations adhere to past ones, lending some continuity to all this. But this means that an interpretation of a law in a new context can partially determine what that law means without modifying the text of the law. Abandoning the notion of precedent might avoid that, but it just makes the law unpredictable in other ways.
  - _-david-_ 5y ago
    I guess if that is what you mean than I would generally agree with you. The way I interpreted your post was that you were saying a law should just be changed by the whims of the populace without a proper process in place.
    - pxc 5y ago
      In our case, the whims of the populace are mediated by judges, whose consideration for popular feeling is often limited to something like 'will there be uncontrollable riots if I rule a certain way', and balanced against their ideological views (about how to interpret law) and the content of the law. But I think that element of consideration of popular feeling or shifting cultural norms is important. It's what lets judges do things like pass over laws banning women from wearing pants as a form of crossdressing instead of requiring, or to reinterpret language about equality as extending to wider groups of people than originally intended.
djbebs 5y ago
On the contrary it is a terrible awful thing, and a fantastic indicator of a poorly designed law. Laws should not impose morality.
- simonh 5y ago
  All laws are about morality (except for those in science and maths). We often pretend they are different, or draw a distinction between behaviour constrained by laws and that constrained by personal morals, however the question of what laws to create and how they should be formulated are moral questions.
  - pxc 5y ago
    Some laws are about settling convention where the specific content of the convention has no normative component, e.g., which side of the road cars drive on
    - simonh 5y ago
      Some of the specific content of the law is arbitrary yes, but the fact we have a law about which side people should drive on at all is motivated by a moral imperative. Although actually neither the right or left hand side rules are arbitrary. They were each intended to better serve a moral objective. https://www.historic-uk.com/CultureUK/Why-do-the-British-drive-on-the-left/ https://www.historic-uk.com/CultureUK/Why-do-the-British-dri...
      - pxc 5y ago
        They do serve a normative aim, i.e., 'we should have drivable two-way roads', yes. I'm not sure we need to reduce all norms to 'morality'. But if we think of morality in a really broad way, like 'humans (or other sapient creatures) seeking to satisfy preferences or impose additional structure on nature or society for their own purposes in a universalizable/principled (i.e., fair) way', then definitely: laws should always be motivated in some way by morality. That's different from the claim (which I'm not saying you've made) that this relationship means that laws should always simply 'encode' moral norms in some direct sense, which imo is a common (and mistaken) simplification. But yeah I think we're on the same page.