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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

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.
    - ickelbawd 2y ago
      Please clearly define the meaning of “you” in your simple law. Literally me? Okay, I don’t own 50% of the market—my company does. Oh you mean my company? Okay, my company doesn’t own 50% of the market—each of my companies only control 25%. Oh you mean me and my companies? Okay, well I only own one company and my wife owns the other one. Oh you mean… I think you get the point… Now move on to all the other words you used: what defines a “market”? What does “broken” mean here? What does “independent” mean here? I’m sure it’s quite clear to you—that you know it when you see it. I’m also quite sure others have different interpretations. I agree with the spirit of your comment otherwise, but simple laws rapidly become complex laws because people are complicated and language is flawed.
- bee_rider 2y ago
  Seems like either system is exploitable by the rich.
  - AnthonyMouse 2y ago
    The difference is this: If you use the letter of the law, an ordinary person has the same chance to find a loophole as the rich. Which will tend to cause them to get closed, because the rich have more money but ordinary people are more numerous, and the ability for ordinary people to exploit them would pressure the government to fix them. Sometimes this would make the law more complicated, because the situation has intrinsic complexity and you have to enumerate the edge cases. Sometimes it would make the law simpler, because the existing complexity is extraneous and only an opportunity for gamesmanship. But either way it creates an evolutionary pressure for improvement.

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.
  - ickelbawd 2y ago
    Please clearly define the meaning of “you” in your simple law. Literally me? Okay, I don’t own 50% of the market—my company does. Oh you mean my company? Okay, my company doesn’t own 50% of the market—each of my companies only control 25%. Oh you mean me and my companies? Okay, well I only own one company and my wife owns the other one. Oh you mean… I think you get the point… Now move on to all the other words you used: what defines a “market”? What does “broken” mean here? What does “independent” mean here? I’m sure it’s quite clear to you—that you know it when you see it. I’m also quite sure others have different interpretations. I agree with the spirit of your comment otherwise, but simple laws rapidly become complex laws because people are complicated and language is flawed.
bee_rider 2y ago
Seems like either system is exploitable by the rich.
- AnthonyMouse 2y ago
  The difference is this: If you use the letter of the law, an ordinary person has the same chance to find a loophole as the rich. Which will tend to cause them to get closed, because the rich have more money but ordinary people are more numerous, and the ability for ordinary people to exploit them would pressure the government to fix them. Sometimes this would make the law more complicated, because the situation has intrinsic complexity and you have to enumerate the edge cases. Sometimes it would make the law simpler, because the existing complexity is extraneous and only an opportunity for gamesmanship. But either way it creates an evolutionary pressure for improvement.