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You just described the “rule of law” and this is the basis for how modern governments are formed and function A constitution is written and codifies the proces

You just described the “rule of law” and this is the basis for how modern governments are formed and function A constitution is written and codifies the process for making ratifying and enforcing laws. That then is the common standard for some subset of behaviors as defined by the constitution which defines who it does and does not apply to. Different constitutions outline different processes but the structure of the “Rule of Law” is the same. This is in contrast to other structures like pure monarchies (unlike constitutional monarchies) which have a “divine” process for defining the structure of the governed land. What you seem to want is for civil law to be subordinated in favor of common law, but that simply kicks the can and doesn’t actuall solve the problem. What’s actually happening right now is that society at large is questioning the foundational assumptions of society. To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently.

zaphar 3y ago
I think what he actually described is why the rule of law is not a replacement for a good ethical framework that is shared culturally. I didn't read his post as advocating for no laws or replacing the legal framework. I read it as advocating for rebuilding a shared ethical framework for the culture.
keiferski 3y ago
That's an interesting thought, but I would say instead that I'm in favor of culture being the "first line of defense" and not the law. In other words, I can leave my door unlocked because I am a part of a culture where that sort of thing doesn't happen. Not because there is a law written down somewhere. This has functionally been my experience in a number of spaces, including private workspaces (i.e., you don't expect your co-workers to steal your stuff), Japan, Poland, and a few other countries, and many others. If that's a definition of "common law" then sure, but it seems like a different thing to me.
- AndrewKemendo 3y ago
  The reason the rule of law exists at the scale it does is precisely because what you describe, has not shown to create functional long term societies that are resilient to exogenous threats. The rule of law is literally humanity’s best attempt so far to explicitly codify human desires into a common set of descriptions. This is why the UN exists and the LON before it etc…
  - keiferski 3y ago
    > has not shown to create functional long term societies that are resilient to exogenous threats. I don't think I agree with this. If anything, it seems more like the reverse: societies have been less-and-less willing to enforce assimilation and a certain set of society-wide cultural behaviors, and therefore they "fall back" to the rule of law as described by you.
    - GenerocUsername 3y ago
      As a melting pot, the US takes in a lot of folks from countries that are not doing very well... so in a way, if we keep importing folks from cultures that failed without trying to integrate them to our culture, and instead celebrate their original culture, eventually our amalgam culture will fail just like theirs did. Its why we have signs that say to "sit, not stand on toilets". You dont think we would need to write it down, but if you import hundreds of thousands of toilet standers, "the norm" goes out the window.
      - kerowak 3y ago
        If American culture "fails," I'm gonna blame xenophobes like you who are incapable of adjusting to a dynamic world, not the "toilet standers."
        mydogcanpurr 3y ago
        Your terms are acceptable.
lainga 3y ago
And now we come to the unfortunate fact that there is no equivalent in English for the distinction between Recht and Gesetz, or droit and loi, both being subsumed under the term law. The former is an immanent thing, a "shared search after justice". The latter is temporal, it is written down and itemised in Strafgesetzbuche and Codes Civiles, and is very appealing to HNers because we can read "common standard for some subset of behavior" and think "I can put this into a computer". But that Law is not The Law. And The Law is not even Society. It's something we yearn for or desire, and our confidence in society varies with our confidence that our neighbours are also yearning for it with us. The rule of law is a feeling, man.
- dghlsakjg 3y ago
  Isn't this explained in the phrase "the spirit of the law" vs. "the letter of the law", or is there more to the concept.
  - lainga 3y ago
    I think "spirit of the law" can be interpreted as how the (written) law was trying to get at The Law. But even that spirit is not The Law. Here's an example - modern Germany defines itself as a Rechtsstaat. On the face of it this is a "State of the rule of law". But this fails to capture what distinguishes it from a hypothetical Gesetzstaat, so Wikipedia also tries on "state of justice and integrity" and "constitutional state" to get the distinction across. And the absence of Recht - a Nichtrechtsstaat - is one "based on the arbitrary use of power". The historical context is that of trying to define what in a state should set it apart from both the 3rd Reich and the DDR. https://en.wikipedia.org/wiki/Rechtsstaat https://en.wikipedia.org/wiki/Rechtsstaat
  - araes 3y ago
    I suspect many Germans have varying personal interpretations (not being German). However, StackOverflow has a question/answer [1] where the most general answer is "right or freedom as in Recht auf freie Meinungsäußerung being 'freedom of speech'". Otherwise, tends to represent "the encompassing scope of all laws" vs "the interactions of a single law." The "the spirit of the law" tends to be more like: "what did we believe the law was supposed to do vs what does it actually result in if you're a rules lawyer." Games have a lot of that with little oversight, legal laws tend to get publicly challenged. We made a rule where all the miniatures have to stand in squares, except now all anybody does is abuse the facing and distance rules. [1] https://german.stackexchange.com/questions/30384/what-s-the-difference-between-the-three-rechtlich-rechtm%C3%A4%C3%9Fig-and-gesetzlic https://german.stackexchange.com/questions/30384/what-s-the-...
dec0dedab0de 3y ago
‘Rule of law’ is the concept that no one is above the law, as opposed to having a specific ruler that can do as they please. It doesn’t really have anything to do with the comment you’re replying to, which would be the same idea if it were decreed by an untouchable supreme leader.
pdonis 3y ago
> You just described the “rule of law” What the article is describing is not the rule of law. The rule of law would be: make theft a crime, and enforce that. Not: criminalize the use of security research tools to show which vehicles are more susceptible to theft. > What you seem to want is for civil law to be subordinated in favor of common law I think what the GP poster wants is to have the law limited to criminalizing things that are actual crimes, like theft, not things that are inconvenient to the rich and powerful.
- AndrewKemendo 3y ago
  Please list all of the “actual crimes”
  - patmorgan23 3y ago
    I don't remember the terms but there's a category of crimes that are "crimes because that's what the written law says"(i.e. driving without a license) and "crimes that morally abhorrent and actual harm to someone"(i.e. murder, theft) "Actual crimes" would be category 2. Building or owning a flipper zero would be in category 1. (As would laws that ban things like owning/carrying lockpicks without being a licensed locksmith)
    - iraqmtpizza 3y ago
      malum prohibitum, malum in se
mindslight 3y ago
I'd say OP actually talked about two different things. The abstract description in the first paragraph is the rule of law (which I agree happened a long time ago, and is a good thing for a democratic society), but the concrete gripe in the later paragraphs is a different thing. Rather, it's something like the difference between laws applying to individuals who may violate normative behavior ("it's illegal to steal"), or whether laws (in this context aka "regulations") apply continuously to above board businesses, with the goal of a priori preventing individual violations of normative behavior ("it's illegal to make a car that can be easily stolen").
joe_the_user 3y ago
I have to object that the rule of law isn't about the extent of laws and enforcement but rather about making whatever enforce exists systematic, fair and so-forth. The concept of rule of law never implied the replacement of custom with bureaucracy - although that often happens. It implied the replacement of the venal authority of kings and nobles with codified principles. Especially, as the parent points out, customary honesty isn't based on any enforcement system.
- deleted 3y ago
  [deleted]
giantg2 3y ago
"What you seem to want is for civil law to be subordinated in favor of common law," I must have missed that. I do not see them making that point. "To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently." I don't know that I would call this a perfect example. This is extremely narrow and doesn't dive into many aspects of the relationship. I'd say it's more focused on individuals giving up freedoms on the notion that those freedoms don't benefit them personally, but could pose some harm to them if others are allowed to exercise them, without realizing that the same thoughts can be used against them in the future. More a tyranny of the majority than role of government discussion, even if somewhat related.
deleted 3y ago
[deleted]
ajkjk 3y ago
I... don't think what they described is "rule of law" in any way.
foobarian 3y ago
The problem with rule of law is that it's like a very sloppy program that relies heavily on global variables. Whether it's the constitution or any of the million codes they all have implicit assumptions or vague language that requires a certain cultural or ethical baseline to interpret properly. Just the 2nd amendment is already a plenty popular example.
- enonimal 3y ago
  law: prompt engineering before it was cool
emilfihlman 3y ago
This has literally nothing to do with rule of law. Rule of law simply means that the laws of the land are respected and enforced (no matter what law it is). Ie codified rules are followed. This has nothing to do with how the rules are written or what they are.

zaphar 3y ago

I think what he actually described is why the rule of law is not a replacement for a good ethical framework that is shared culturally. I didn't read his post as advocating for no laws or replacing the legal framework. I read it as advocating for rebuilding a shared ethical framework for the culture.

keiferski 3y ago

That's an interesting thought, but I would say instead that I'm in favor of culture being the "first line of defense" and not the law. In other words, I can leave my door unlocked because I am a part of a culture where that sort of thing doesn't happen. Not because there is a law written down somewhere. This has functionally been my experience in a number of spaces, including private workspaces (i.e., you don't expect your co-workers to steal your stuff), Japan, Poland, and a few other countries, and many others. If that's a definition of "common law" then sure, but it seems like a different thing to me.

AndrewKemendo 3y ago
The reason the rule of law exists at the scale it does is precisely because what you describe, has not shown to create functional long term societies that are resilient to exogenous threats. The rule of law is literally humanity’s best attempt so far to explicitly codify human desires into a common set of descriptions. This is why the UN exists and the LON before it etc…
- keiferski 3y ago
  > has not shown to create functional long term societies that are resilient to exogenous threats. I don't think I agree with this. If anything, it seems more like the reverse: societies have been less-and-less willing to enforce assimilation and a certain set of society-wide cultural behaviors, and therefore they "fall back" to the rule of law as described by you.
  - GenerocUsername 3y ago
    As a melting pot, the US takes in a lot of folks from countries that are not doing very well... so in a way, if we keep importing folks from cultures that failed without trying to integrate them to our culture, and instead celebrate their original culture, eventually our amalgam culture will fail just like theirs did. Its why we have signs that say to "sit, not stand on toilets". You dont think we would need to write it down, but if you import hundreds of thousands of toilet standers, "the norm" goes out the window.
    - kerowak 3y ago
      If American culture "fails," I'm gonna blame xenophobes like you who are incapable of adjusting to a dynamic world, not the "toilet standers."
      - mydogcanpurr 3y ago
        Your terms are acceptable.

lainga 3y ago

And now we come to the unfortunate fact that there is no equivalent in English for the distinction between Recht and Gesetz, or droit and loi, both being subsumed under the term law. The former is an immanent thing, a "shared search after justice". The latter is temporal, it is written down and itemised in Strafgesetzbuche and Codes Civiles, and is very appealing to HNers because we can read "common standard for some subset of behavior" and think "I can put this into a computer". But that Law is not The Law. And The Law is not even Society. It's something we yearn for or desire, and our confidence in society varies with our confidence that our neighbours are also yearning for it with us. The rule of law is a feeling, man.

dghlsakjg 3y ago
Isn't this explained in the phrase "the spirit of the law" vs. "the letter of the law", or is there more to the concept.
- lainga 3y ago
  I think "spirit of the law" can be interpreted as how the (written) law was trying to get at The Law. But even that spirit is not The Law. Here's an example - modern Germany defines itself as a Rechtsstaat. On the face of it this is a "State of the rule of law". But this fails to capture what distinguishes it from a hypothetical Gesetzstaat, so Wikipedia also tries on "state of justice and integrity" and "constitutional state" to get the distinction across. And the absence of Recht - a Nichtrechtsstaat - is one "based on the arbitrary use of power". The historical context is that of trying to define what in a state should set it apart from both the 3rd Reich and the DDR. https://en.wikipedia.org/wiki/Rechtsstaat https://en.wikipedia.org/wiki/Rechtsstaat
- araes 3y ago
  I suspect many Germans have varying personal interpretations (not being German). However, StackOverflow has a question/answer [1] where the most general answer is "right or freedom as in Recht auf freie Meinungsäußerung being 'freedom of speech'". Otherwise, tends to represent "the encompassing scope of all laws" vs "the interactions of a single law." The "the spirit of the law" tends to be more like: "what did we believe the law was supposed to do vs what does it actually result in if you're a rules lawyer." Games have a lot of that with little oversight, legal laws tend to get publicly challenged. We made a rule where all the miniatures have to stand in squares, except now all anybody does is abuse the facing and distance rules. [1] https://german.stackexchange.com/questions/30384/what-s-the-difference-between-the-three-rechtlich-rechtm%C3%A4%C3%9Fig-and-gesetzlic https://german.stackexchange.com/questions/30384/what-s-the-...

dec0dedab0de 3y ago

‘Rule of law’ is the concept that no one is above the law, as opposed to having a specific ruler that can do as they please. It doesn’t really have anything to do with the comment you’re replying to, which would be the same idea if it were decreed by an untouchable supreme leader.

pdonis 3y ago

> You just described the “rule of law” What the article is describing is not the rule of law. The rule of law would be: make theft a crime, and enforce that. Not: criminalize the use of security research tools to show which vehicles are more susceptible to theft. > What you seem to want is for civil law to be subordinated in favor of common law I think what the GP poster wants is to have the law limited to criminalizing things that are actual crimes, like theft, not things that are inconvenient to the rich and powerful.

AndrewKemendo 3y ago
Please list all of the “actual crimes”
- patmorgan23 3y ago
  I don't remember the terms but there's a category of crimes that are "crimes because that's what the written law says"(i.e. driving without a license) and "crimes that morally abhorrent and actual harm to someone"(i.e. murder, theft) "Actual crimes" would be category 2. Building or owning a flipper zero would be in category 1. (As would laws that ban things like owning/carrying lockpicks without being a licensed locksmith)
  - iraqmtpizza 3y ago
    malum prohibitum, malum in se

mindslight 3y ago

I'd say OP actually talked about two different things. The abstract description in the first paragraph is the rule of law (which I agree happened a long time ago, and is a good thing for a democratic society), but the concrete gripe in the later paragraphs is a different thing. Rather, it's something like the difference between laws applying to individuals who may violate normative behavior ("it's illegal to steal"), or whether laws (in this context aka "regulations") apply continuously to above board businesses, with the goal of a priori preventing individual violations of normative behavior ("it's illegal to make a car that can be easily stolen").

joe_the_user 3y ago

I have to object that the rule of law isn't about the extent of laws and enforcement but rather about making whatever enforce exists systematic, fair and so-forth. The concept of rule of law never implied the replacement of custom with bureaucracy - although that often happens. It implied the replacement of the venal authority of kings and nobles with codified principles. Especially, as the parent points out, customary honesty isn't based on any enforcement system.

deleted 3y ago
[deleted]

giantg2 3y ago

"What you seem to want is for civil law to be subordinated in favor of common law," I must have missed that. I do not see them making that point. "To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently." I don't know that I would call this a perfect example. This is extremely narrow and doesn't dive into many aspects of the relationship. I'd say it's more focused on individuals giving up freedoms on the notion that those freedoms don't benefit them personally, but could pose some harm to them if others are allowed to exercise them, without realizing that the same thoughts can be used against them in the future. More a tyranny of the majority than role of government discussion, even if somewhat related.

deleted 3y ago

[deleted]

ajkjk 3y ago

I... don't think what they described is "rule of law" in any way.

foobarian 3y ago

The problem with rule of law is that it's like a very sloppy program that relies heavily on global variables. Whether it's the constitution or any of the million codes they all have implicit assumptions or vague language that requires a certain cultural or ethical baseline to interpret properly. Just the 2nd amendment is already a plenty popular example.

enonimal 3y ago
law: prompt engineering before it was cool

emilfihlman 3y ago

This has literally nothing to do with rule of law. Rule of law simply means that the laws of the land are respected and enforced (no matter what law it is). Ie codified rules are followed. This has nothing to do with how the rules are written or what they are.