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You're doing the exact thing I and drzaiusapelord are complaining about. No, what you're describing is not 'one of the most basic expectations of the legal syst

by roel_v 15y ago

You're doing the exact thing I and drzaiusapelord are complaining about. No, what you're describing is not 'one of the most basic expectations of the legal system'. How would it be possible to capture social rules that have evolved over centuries and are supposed to cover an almost infinite set of circumstances and boundary conditions, and on which huge economics interests and grave personal consequences depend, in a couple of paragraphs of legislation? How would the case law fit into that? How could that work in a society where understanding the cooking instruction on a bake-it-yourself cake set are too difficult for a sizable part of society to understand? Law is not an algorithm that you can apply to a set of perfectly quantified variables. Nerds like to think it is, or at least that it should be, but that's just not how society (and by extension, law) works. (I've been a nerd my whole life, professional programmer for 15 years and I did a law degree next to my job. I spend thousands of hours over the last 9 years studying law, and I still don't know shit, or at least not enough to write opinion pieces on it without supervision of someone more experienced. At least I've gotten to a point now where I recognize that I don't, and where I recognize bullshit when I see it).

SilasX 15y ago
Really? Every society has always had every non-specialist in violation of some law despite their efforts to learn what was illegal? And this is an unavoidable aspect of reality?
- roel_v 15y ago
  Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not using nerd as an insult, just as a general description of a too strictly logical frame of mind) The point is not that everybody is always in some form of violation, the point is in uncertainty. There are always cases where to facts don't clearly map to the rules as they are written down, or where the facts are unclear or open for interpretation. In those cases, even specialists can't say if something is 'illegal', for a broad definition of the word 'illegal'. Despite the huge amount of legislation and case law we have nowadays, still not everything is covered; in the past, there was much more uncertainty than there is today, because much less was codified. And to answer your question, yes, uncertainty at the margins is an unavoidable aspect of reality. This is also what bugs me about the commentary on the Megaupload case: people claiming that Dropbox might be next, because they too allow for sending data and don't have a way to search what's available. The fact of the matter is that it's about intent - the Megaupload people encouraged copyright infringement while hiding behind a thin layer of compliance veneer, whereas Dropbox doesn't, their main use truely is 'personal document storage'. Everybody who visited the Dropbox and Megaupload websites a few weeks ago could see so. Now the nerd reaction to the legal aspect is 'oh but there is no law that indicates the exact boundary between the two, so the Megaupload bust is illegal'. Back on planet reality however, softer interpretations of 'intent' and 'reasonable' etc. decide what crosses the line and what doesn't. Could Megaupload know in advance exactly how far they could go? No. Is that proof that our legal system doesn't work? No. If anything, it shows that people can get away with much, and that only egregious abuses wrt copyright infringement are prosecuted.
  - SilasX 15y ago
    Yes, there was a false dichotomy, but it was on your side; I was just objecting to it. Me: People should be able to tell with confidence (not perfect 100% confidence) whether they're breaking the law, yet today, nobody can have anything close to this. You: That's an impossible ideal, the law performs about as well as it can be expected to. Me: It's unreasonable to expect better? So everywhere people have been that uncertain of having violated the law? You: False dichotomy! You prove I was right all along! Me: Um ...?
    - roel_v 15y ago
      To quote from your post: "Every society has always had every non-specialist in violation of some law" (emp mine) The false dichotomy is in the absolutist phrasing of the question. Because obviously, the answer is 'no, not every society, always and every non-specialist'. The more nuanced answer is 'yes, at the margins in every legal system there is some sort of uncertainty'. You claim "yet today, nobody can have anything close to this." which is nonsense. When I shoot somebody in the face because they took my parking spot yesterday, I can be as close to 100% sure as possible that I am guilty of 1st degree murder. But for cases where either the law or the facts can be explained in several ways, or where there is simply so much factors to consider or things to know about to have a reasonable idea of what a 'just' outcome is, there is some uncertainty, which cannot be avoided. Your original claim was "One of the most basic expectations of the legal system is that a citizen should be able to know, with confidence, whether they're breaking the law based on a reasonable search of available resources on the matter, without having to contact a specialist (lawyer)." Which of course depends on your definition of 'reasonable search', but which for an 'average' definition of 'reasonable' (i.e., of you ask 100 people, the average of those), is not true. For example there are many tax related matter that are highly specialized, and for which it is completely reasonable to expect people to use professional services to make sure they get it right. Or, as another example, legal procedure - there are so many rules and customs that it's perfectly reasonable to not expect an average citizen to be able to figure it out, and require a licensed lawyer be used to perform certain tasks in legal proceedings. Etc.
      - 15y ago
adavies42 15y ago
Yes, of course it's still a basic expectation: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat. Granted, it's been somewhat weakened nowadays, but the default is still that we're held responsible for compliance whether we know the law or not.

by roel_v 15y ago

SilasX 15y ago

Really? Every society has always had every non-specialist in violation of some law despite their efforts to learn what was illegal? And this is an unavoidable aspect of reality?

roel_v 15y ago
Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not using nerd as an insult, just as a general description of a too strictly logical frame of mind) The point is not that everybody is always in some form of violation, the point is in uncertainty. There are always cases where to facts don't clearly map to the rules as they are written down, or where the facts are unclear or open for interpretation. In those cases, even specialists can't say if something is 'illegal', for a broad definition of the word 'illegal'. Despite the huge amount of legislation and case law we have nowadays, still not everything is covered; in the past, there was much more uncertainty than there is today, because much less was codified. And to answer your question, yes, uncertainty at the margins is an unavoidable aspect of reality. This is also what bugs me about the commentary on the Megaupload case: people claiming that Dropbox might be next, because they too allow for sending data and don't have a way to search what's available. The fact of the matter is that it's about intent - the Megaupload people encouraged copyright infringement while hiding behind a thin layer of compliance veneer, whereas Dropbox doesn't, their main use truely is 'personal document storage'. Everybody who visited the Dropbox and Megaupload websites a few weeks ago could see so. Now the nerd reaction to the legal aspect is 'oh but there is no law that indicates the exact boundary between the two, so the Megaupload bust is illegal'. Back on planet reality however, softer interpretations of 'intent' and 'reasonable' etc. decide what crosses the line and what doesn't. Could Megaupload know in advance exactly how far they could go? No. Is that proof that our legal system doesn't work? No. If anything, it shows that people can get away with much, and that only egregious abuses wrt copyright infringement are prosecuted.
- SilasX 15y ago
  Yes, there was a false dichotomy, but it was on your side; I was just objecting to it. Me: People should be able to tell with confidence (not perfect 100% confidence) whether they're breaking the law, yet today, nobody can have anything close to this. You: That's an impossible ideal, the law performs about as well as it can be expected to. Me: It's unreasonable to expect better? So everywhere people have been that uncertain of having violated the law? You: False dichotomy! You prove I was right all along! Me: Um ...?
  - roel_v 15y ago
    To quote from your post: "Every society has always had every non-specialist in violation of some law" (emp mine) The false dichotomy is in the absolutist phrasing of the question. Because obviously, the answer is 'no, not every society, always and every non-specialist'. The more nuanced answer is 'yes, at the margins in every legal system there is some sort of uncertainty'. You claim "yet today, nobody can have anything close to this." which is nonsense. When I shoot somebody in the face because they took my parking spot yesterday, I can be as close to 100% sure as possible that I am guilty of 1st degree murder. But for cases where either the law or the facts can be explained in several ways, or where there is simply so much factors to consider or things to know about to have a reasonable idea of what a 'just' outcome is, there is some uncertainty, which cannot be avoided. Your original claim was "One of the most basic expectations of the legal system is that a citizen should be able to know, with confidence, whether they're breaking the law based on a reasonable search of available resources on the matter, without having to contact a specialist (lawyer)." Which of course depends on your definition of 'reasonable search', but which for an 'average' definition of 'reasonable' (i.e., of you ask 100 people, the average of those), is not true. For example there are many tax related matter that are highly specialized, and for which it is completely reasonable to expect people to use professional services to make sure they get it right. Or, as another example, legal procedure - there are so many rules and customs that it's perfectly reasonable to not expect an average citizen to be able to figure it out, and require a licensed lawyer be used to perform certain tasks in legal proceedings. Etc.
    - 15y ago

adavies42 15y ago

Yes, of course it's still a basic expectation: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat. Granted, it's been somewhat weakened nowadays, but the default is still that we're held responsible for compliance whether we know the law or not.