4 ms·

Is spirit of the law ever a concern in the USA? I’m asking because it is in the EU and every US company seem to struggle with the concept if I am to judge by ho

Is spirit of the law ever a concern in the USA? I’m asking because it is in the EU and every US company seem to struggle with the concept if I am to judge by how they engage GDPR, DMA and similar regulations in the EU.

nabla9 2y ago
Spirit of the law is more important in the US. In common law systems (US, UK), there is greater emphasis on the spirit or intent behind the law. Judges have more flexibility to interpret laws and use general principles. Civil law systems place more importance on the letter of the law. The spirit behind the law is secondary. The written legal codes are more important. EU law is mixture of both, but most continental European countries have civil law system (Ireland does not, Nordic countries have mix of civil and common law)
- vlovich123 2y ago
  Since the 1980s letter of the law has seen a remarkable upswing in power. I wouldn’t say spirit of the law applies anymore to SCOTUS rulings & I suspect federal appointments followed similar biases so it’s up & down the federal court. Not sure about state judges. Do you agree?
  - deleted 2y ago
    [deleted]
vlovich123 2y ago
The US Constitution has largely been interpreted in a “spirit of the law” manner since the founding. Originalism has taken significant durable gains in terms of SCOTUS appointments since the 1980s; prior to that originalists had a good chance of changing their POV once appointed. I suspect similar viewpoints are reflected in the judge appointments as well. Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. Spirit of the law isn’t perfect itself obviously because it is legitimate to point out that it becomes hard to know what the law actually is, especially since governments have gotten into legislating a lot of regulatory nuance and it’s hard to distinguish malicious compliance from good faith effort. It’s also corruptible from overzealous prosecution looking to make a name for itself by taking on unpopular entities that aren’t actually doing anything wrong.
- AnthonyMouse 2y ago
  > Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. This is precisely the opposite. "Spirit of the law" makes the rules squishy and indeterminate, providing opportunities for fancy lawyers to bend the result to their own interests. "Letter of the law" often leads to harsh results when the law is drafted poorly, because if they wrote something dumb then you get something dumb instead of a judge rewriting the law to make people happy. But the people they're making happy are usually the powerful, so pick your poison.
  - vlovich123 2y ago
    No law can ever be written to capture every possible application of the underlying spirit. Thus your ability to escape the spirit is directly correlated with how many lawyers you can hire to find loopholes in the text (or just flat out lie). It’s also important to remember that societies naturally undergo shifts over time. It’s impossible to continuously update a codified set of laws when the underlying moirés of the time have shifted; you’ll just be constantly arguing over the updates to add. Any law written perfectly today becomes imperfect simply through the passage of time. That’s why the Bible and any prescriptive religious text feels so outdated on many recommendations - it’s a snapshot in time of the values of a culture but those values change. There was even a fantastic sci-fi short story on this exact point of cultural shift [1] that’s worth a read. [1] https://qntm.org/mmacevedo https://qntm.org/mmacevedo
    - AnthonyMouse 2y ago
      > No law can ever be written to capture every possible application of the underlying spirit. Thus your ability to escape the spirit is directly correlated with how many lawyers you can hire to find loopholes in the text (or just flat out lie). The assumption here is that the rules would be complicated and provide lots of opportunities for gamesmanship. Now suppose the rule is "no company shall have more than 30% market share in any market, any that does shall be broken into no fewer than twelve independent pieces." No loopholes, if you exceed 30% market share you get broken up. And if they find a loophole then you amend the law and take it out. > It’s impossible to continuously update a codified set of laws when the underlying moirés of the time have shifted; you’ll just be constantly arguing over the updates to add. That's just politics. Somehow you need a process to decide what the law should be. The output of that process is the new law. If the output sucks then get a new process. But whether people can agree on what the law should be is a separate issue than whether we should even know what the law as enacted is supposed to mean. > That’s why the Bible and any prescriptive religious text feels so outdated on many recommendations - it’s a snapshot in time of the values of a culture but those values change. That's fine, nobody is saying that you can't change the law if a case comes out in a bad way. But it should be the legislature rather than the courts to do it, and the new understanding shouldn't be applied to past behavior ex post facto.

nabla9 2y ago

Spirit of the law is more important in the US. In common law systems (US, UK), there is greater emphasis on the spirit or intent behind the law. Judges have more flexibility to interpret laws and use general principles. Civil law systems place more importance on the letter of the law. The spirit behind the law is secondary. The written legal codes are more important. EU law is mixture of both, but most continental European countries have civil law system (Ireland does not, Nordic countries have mix of civil and common law)

vlovich123 2y ago
Since the 1980s letter of the law has seen a remarkable upswing in power. I wouldn’t say spirit of the law applies anymore to SCOTUS rulings & I suspect federal appointments followed similar biases so it’s up & down the federal court. Not sure about state judges. Do you agree?
- deleted 2y ago
  [deleted]

vlovich123 2y ago

The US Constitution has largely been interpreted in a “spirit of the law” manner since the founding. Originalism has taken significant durable gains in terms of SCOTUS appointments since the 1980s; prior to that originalists had a good chance of changing their POV once appointed. I suspect similar viewpoints are reflected in the judge appointments as well. Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. Spirit of the law isn’t perfect itself obviously because it is legitimate to point out that it becomes hard to know what the law actually is, especially since governments have gotten into legislating a lot of regulatory nuance and it’s hard to distinguish malicious compliance from good faith effort. It’s also corruptible from overzealous prosecution looking to make a name for itself by taking on unpopular entities that aren’t actually doing anything wrong.

AnthonyMouse 2y ago
> Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. This is precisely the opposite. "Spirit of the law" makes the rules squishy and indeterminate, providing opportunities for fancy lawyers to bend the result to their own interests. "Letter of the law" often leads to harsh results when the law is drafted poorly, because if they wrote something dumb then you get something dumb instead of a judge rewriting the law to make people happy. But the people they're making happy are usually the powerful, so pick your poison.
- vlovich123 2y ago
  No law can ever be written to capture every possible application of the underlying spirit. Thus your ability to escape the spirit is directly correlated with how many lawyers you can hire to find loopholes in the text (or just flat out lie). It’s also important to remember that societies naturally undergo shifts over time. It’s impossible to continuously update a codified set of laws when the underlying moirés of the time have shifted; you’ll just be constantly arguing over the updates to add. Any law written perfectly today becomes imperfect simply through the passage of time. That’s why the Bible and any prescriptive religious text feels so outdated on many recommendations - it’s a snapshot in time of the values of a culture but those values change. There was even a fantastic sci-fi short story on this exact point of cultural shift [1] that’s worth a read. [1] https://qntm.org/mmacevedo https://qntm.org/mmacevedo
  - AnthonyMouse 2y ago
    > No law can ever be written to capture every possible application of the underlying spirit. Thus your ability to escape the spirit is directly correlated with how many lawyers you can hire to find loopholes in the text (or just flat out lie). The assumption here is that the rules would be complicated and provide lots of opportunities for gamesmanship. Now suppose the rule is "no company shall have more than 30% market share in any market, any that does shall be broken into no fewer than twelve independent pieces." No loopholes, if you exceed 30% market share you get broken up. And if they find a loophole then you amend the law and take it out. > It’s impossible to continuously update a codified set of laws when the underlying moirés of the time have shifted; you’ll just be constantly arguing over the updates to add. That's just politics. Somehow you need a process to decide what the law should be. The output of that process is the new law. If the output sucks then get a new process. But whether people can agree on what the law should be is a separate issue than whether we should even know what the law as enacted is supposed to mean. > That’s why the Bible and any prescriptive religious text feels so outdated on many recommendations - it’s a snapshot in time of the values of a culture but those values change. That's fine, nobody is saying that you can't change the law if a case comes out in a bad way. But it should be the legislature rather than the courts to do it, and the new understanding shouldn't be applied to past behavior ex post facto.