5 ms·

Sometimes vagueness is a necessary lubricant to get enough agreement on something, but I take your point. My personal "fun idea" is that laws should have two p

Sometimes vagueness is a necessary lubricant to get enough agreement on something, but I take your point. My personal "fun idea" is that laws should have two parts, an "intent" part and an "implementation" part and if a court decides at some future time that the law fails to accomplish the intent it should be struck down.

OutOfHere 2y ago
> a necessary lubricant to get enough agreement It is unfortunate that our representatives are as such, that they don't strive for clarity, but I understand. To me, the lack of clarity is an "invalid state" that has no place in the rulebook. > if a court decides at some future time that the law fails to accomplish the intent it should be struck down. This would be very welcome, but it should require repeated testings in fibonacci years, not merely once. This means at 1, 2, 3, 5, ... years after the law was passed or updated.
- nathan_compton 2y ago
  Old laws are among the most likely to have deviated from their intended functionality. In my imaginary system, though, someone would have to raise the case to the courts, so it wouldn't be just happening all the time.
marcosdumay 2y ago
> laws should have two parts, an "intent" part and an "implementation" That's a common opinion between lawyers, the opposite opinion is that since the law was created by a large group of people, it can never have a clear intent. There are judges that assign to both of those. Anyway, IMO there's fundamentally inhumane and evil consequence to the idea that laws don't have intent. Even if it's objectively true. The entire dichotomy is broken.
- deleted 2y ago
  [deleted]
- BartjeD 2y ago
  Normally during the legislative process a record is kept about deliberations leading up to the proposals for texts, and amendments etc.. In a 'normal' European democracy judges and lawyers use these deliberations to argue what the intent of the legislative branch was, when it created the law. And to interpret it in that light. I'd be surprised if there was no equivalent in the USA. I suppose therein lies the root of the Scalia doctrine though, which is too strictly 'originalist' for my taste. But in this instance I'd wager the rules of seizure were given a lot of legislative attention, similar as Habeas Corpus, because illegal seizure is an obvious tool of tyrants. It was often used by Roman Emperors and medieval Kings.
  - JAlexoid 2y ago
    Civil Law systems will prioritize being clear and precise in the language of the laws. Where a law allows interpretation, it will likely literally state that. There are clear limits to how to interpret laws and most of the case law comes from which provision is applicable to a particular case. There's often no need to resort to "deliberations" part to interpret the law for a judge, just find the law that most precisely applies in a particular situation and there's no law that is in conflict. Basically in a Civil Law system if the law states that you're not allowed to drive while drunk, that doesn't extend to being high. Unlike Common Law systems, where a judge could accept that drunk and stoned are close enough for both to be banned. (this is a hyperbolized example, not exactly how it would work)
    - marcosdumay 2y ago
      Even in a Civil Law system, there still exist fundamental principles (like the one from the GP that would disallow US-style property seizing), badly written, and conflicting laws that judges have plenty of space to interpret.
      - JAlexoid 2y ago
        There's a major difference you missed - in a Civil Law system the judge has significantly less leeway to interpret the laws and commonly will refer to a superior (up to the constitutional court level) court to get clarification.
c22 2y ago
Laws already attempt to encode intent through technical word choices, scoped definitions, and careful construction. Judges and lawyers attempt to discern the intent by careful reading and logical deconstruction. When the lawmakers and judicial interpreters are good at their jobs this works great. Good lawmakers draft good laws that are clear in their intent. Good courts make good decisions by applying reasonable interpretations of the law. Bad lawmakers fail to make their intent clear. Bad lawyers take advantage of vague laws to argue for unreasonable intent. Bad judges let these bad arguments fly. How does encapsulating the "intent" into its own section of the law fix the problem? Bad lawmakers will still write vague intent sections as well as poorly defined implementations. Bad lawyers will abuse the vague intent sections to argue for exceptions and novel interpretations of the implementation section. Bad judges will let this fly and warp the system further through bad precedent.
- jfengel 2y ago
  You kinda do get a separate intent section. It begins with a string of "whereas". As with code, adding more words rarely makes it clearer. In fact it usually introduces more discrepancies.
  - jowea 2y ago
    Interestingly some places give legal effect to those preambles it seems https://en.wikipedia.org/wiki/Preamble#Legal_effect https://en.wikipedia.org/wiki/Preamble#Legal_effect
- vkou 2y ago
  I'll point out that bad judging can always move the goalposts of what 'well-written intent' is.
- giantg2 2y ago
  "Bad lawmakers fail to make their intent clear. Bad lawyers take advantage of vague laws to argue for unreasonable intent. Bad judges let these bad arguments fly." Good lawyers and good judges allow bad laws to be taken advantage of. If the law says it, it should be allowed (for leniency to the accused) or the law should be invalidated due to a lack of strict construction.
ruined 2y ago
this intent/implementation duality was codified by the chevron precedent that was just overturned by the supreme court. the legislature was responsible for establishing intent, and the executive was responsible for implementation, and the judiciary branch was responsible for resolving disputes. but the supreme court ruled that the legislative intent has been too vague, and the executive has been too whimsical with implementation. so the legislature must be more specific, or leave it to the judiciary to establish details.
- torstenvl 2y ago
  That is false. Please don't spread misinformation. Chevron had nothing to do with how legislatures write laws. The prevalence of extreme propaganda on this site is getting really tiresome. It is an objective, inarguable fact that neither Chevron nor Loper had anything at all to do with the ability of Congress or state legislatures to distinguish between intent and implementation.
  - ruined 2y ago
    can you provide a correct interpretation of the ruling?
    - nickff 2y ago
      Not parent, but Chevron was about deference to agencies, not about whether courts should adhere to legislative intent. The original Chevron ruling was written by a well-known originalist, who usually didn't abide by legislative intent.
      - ruined 2y ago
        sure, but agency interpretation is only possible within the vagaries of the legislation. that's 100% synonymous with intention/implementation.
      - immibis 2y ago
        i.o.w. it was about whether Congress just has to write the intent, or whether it has to write the full implementation too.
seabass-labrax 2y ago
That is how European Union directives and regulations are written, as it happens. The 'recitals' outline the general aims of the legislation, acting as a sort of preamble. > The recitals are legally non-binding. However, the recitals can be relevant. Courts often use the recitals to interpret a particular – legally binding – provision of EU legislation, especially if multiple interpretations of a certain provision are possible. From https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislation.html https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislat...
- solidsnack9000 2y ago
  The recitals are non-binding, but nathan_compton's proposal is that the intent portion would be binding.
jdasdf 2y ago
>Sometimes vagueness is a necessary lubricant to get enough agreement on something, but I take your point. Seems to me that a vague law is simply an invalid law. The rule of law requires the clear knowledge of what exactly is illegal, if that isn't clear then its simply a prospective law that doesn't meet the basic requires to be law.
- TeMPOraL 2y ago
  There is no such thing as a law that isn't vague to a degree, because laws are expressed in words and concepts, and those are vague by their nature. Laws can, of course, be vague to a lesser or greater degree. We definitely don't want poetry-level vague laws, but we also don't want to (or can't) have laws expressed in code or as mathematical proofs, because this level of clarity is just computationally intractable wrt. anything relating to real world and real people. At this point, the practical optimum seems to be laws that mostly obvious in vast majority of scenarios, and leaving it to judges to opine on corner cases on an individual basis.
- throwaway2037 2y ago
  This is classic HN. "Apply API-style thinking to the Real World." What is reasonable cause for police officer to search someone? Mind you: This single point alone has hundreds of interpretations around the world, across all cultures. Within a single country / culture, there could be many interpretations.
solidsnack9000 2y ago
It is much more difficult to establish standards of intent interpretation than it is to establish standards of statutory interpretation. One could imagine a law written as follows: In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins, the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments. The minimum temperature shall not be greater than -18C. There are some gaps that a court needs to fill in order to apply this statute: - The health department and the area of effect are not specified but these can be assumed to be the health department and area connected to whatever legislature passed the statute. If there is no health department that is the obvious one -- if, for example, it was passed by a city legislature and the city has no health department -- this could introduce some difficulty. - The use of "minimum" and "shall not be greater" together in this statute are confused and confusing but since it pertains to freezers, the court can infer that freezers must be set to temperatures of -18C or below (-19C, &c). However, sorting out the true intent presents insoluble problems that would lead to inconsistent interpretation of the law. Perhaps an establishment only has frozen fish. Does this law apply to them? Generally, the rule is that clear intent clauses -- "In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins..." -- are ignored in statutory interpretation. The operative part of the statute is that "...the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments." and that the temperature established by the health department must be -18C or below.
- seabass-labrax 2y ago
  No standard ways of interpretation will make up for a poorly-written statute - and, with all due respect, that's what your hypothetical example is. In liberal democracies, we expect our representatives to pass only laws that have low ambiguity, and sometimes require third-party review to ensure this. Why would any legislature pass a law delegating responsibility to a non-existent agency? How could this legislature pass a law with clearly contradictory stipulations regarding temperature? Then, finally, for what reason would intent clauses be written if they were then be entirely ignored? In conclusion, I think that your hypothetical system of government has greater problems than any inherent difficulty in expressing legal intent that may exist.
collingreen 2y ago
I love this and think about the same. Similarly, in a work setting, I used to decree that any subsequent decrees (eg: tooling, commit/lint rules, languages) must come with the intent, the desired results, and the expected costs. This made it much less political to suggest changes to our process while simultaneously eliminating some of the low effort "let's use <framework-of-the-week>" statements. I also want to believe it made it so ideas could come from anyone, not just people with titles or social capital, although I don't have any hard proof of that.

OutOfHere 2y ago

> a necessary lubricant to get enough agreement It is unfortunate that our representatives are as such, that they don't strive for clarity, but I understand. To me, the lack of clarity is an "invalid state" that has no place in the rulebook. > if a court decides at some future time that the law fails to accomplish the intent it should be struck down. This would be very welcome, but it should require repeated testings in fibonacci years, not merely once. This means at 1, 2, 3, 5, ... years after the law was passed or updated.

nathan_compton 2y ago
Old laws are among the most likely to have deviated from their intended functionality. In my imaginary system, though, someone would have to raise the case to the courts, so it wouldn't be just happening all the time.

marcosdumay 2y ago

> laws should have two parts, an "intent" part and an "implementation" That's a common opinion between lawyers, the opposite opinion is that since the law was created by a large group of people, it can never have a clear intent. There are judges that assign to both of those. Anyway, IMO there's fundamentally inhumane and evil consequence to the idea that laws don't have intent. Even if it's objectively true. The entire dichotomy is broken.

deleted 2y ago
[deleted]
BartjeD 2y ago
Normally during the legislative process a record is kept about deliberations leading up to the proposals for texts, and amendments etc.. In a 'normal' European democracy judges and lawyers use these deliberations to argue what the intent of the legislative branch was, when it created the law. And to interpret it in that light. I'd be surprised if there was no equivalent in the USA. I suppose therein lies the root of the Scalia doctrine though, which is too strictly 'originalist' for my taste. But in this instance I'd wager the rules of seizure were given a lot of legislative attention, similar as Habeas Corpus, because illegal seizure is an obvious tool of tyrants. It was often used by Roman Emperors and medieval Kings.
- JAlexoid 2y ago
  Civil Law systems will prioritize being clear and precise in the language of the laws. Where a law allows interpretation, it will likely literally state that. There are clear limits to how to interpret laws and most of the case law comes from which provision is applicable to a particular case. There's often no need to resort to "deliberations" part to interpret the law for a judge, just find the law that most precisely applies in a particular situation and there's no law that is in conflict. Basically in a Civil Law system if the law states that you're not allowed to drive while drunk, that doesn't extend to being high. Unlike Common Law systems, where a judge could accept that drunk and stoned are close enough for both to be banned. (this is a hyperbolized example, not exactly how it would work)
  - marcosdumay 2y ago
    Even in a Civil Law system, there still exist fundamental principles (like the one from the GP that would disallow US-style property seizing), badly written, and conflicting laws that judges have plenty of space to interpret.
    - JAlexoid 2y ago
      There's a major difference you missed - in a Civil Law system the judge has significantly less leeway to interpret the laws and commonly will refer to a superior (up to the constitutional court level) court to get clarification.

c22 2y ago

Laws already attempt to encode intent through technical word choices, scoped definitions, and careful construction. Judges and lawyers attempt to discern the intent by careful reading and logical deconstruction. When the lawmakers and judicial interpreters are good at their jobs this works great. Good lawmakers draft good laws that are clear in their intent. Good courts make good decisions by applying reasonable interpretations of the law. Bad lawmakers fail to make their intent clear. Bad lawyers take advantage of vague laws to argue for unreasonable intent. Bad judges let these bad arguments fly. How does encapsulating the "intent" into its own section of the law fix the problem? Bad lawmakers will still write vague intent sections as well as poorly defined implementations. Bad lawyers will abuse the vague intent sections to argue for exceptions and novel interpretations of the implementation section. Bad judges will let this fly and warp the system further through bad precedent.

jfengel 2y ago
You kinda do get a separate intent section. It begins with a string of "whereas". As with code, adding more words rarely makes it clearer. In fact it usually introduces more discrepancies.
- jowea 2y ago
  Interestingly some places give legal effect to those preambles it seems https://en.wikipedia.org/wiki/Preamble#Legal_effect https://en.wikipedia.org/wiki/Preamble#Legal_effect
vkou 2y ago
I'll point out that bad judging can always move the goalposts of what 'well-written intent' is.
giantg2 2y ago
"Bad lawmakers fail to make their intent clear. Bad lawyers take advantage of vague laws to argue for unreasonable intent. Bad judges let these bad arguments fly." Good lawyers and good judges allow bad laws to be taken advantage of. If the law says it, it should be allowed (for leniency to the accused) or the law should be invalidated due to a lack of strict construction.

ruined 2y ago

this intent/implementation duality was codified by the chevron precedent that was just overturned by the supreme court. the legislature was responsible for establishing intent, and the executive was responsible for implementation, and the judiciary branch was responsible for resolving disputes. but the supreme court ruled that the legislative intent has been too vague, and the executive has been too whimsical with implementation. so the legislature must be more specific, or leave it to the judiciary to establish details.

torstenvl 2y ago
That is false. Please don't spread misinformation. Chevron had nothing to do with how legislatures write laws. The prevalence of extreme propaganda on this site is getting really tiresome. It is an objective, inarguable fact that neither Chevron nor Loper had anything at all to do with the ability of Congress or state legislatures to distinguish between intent and implementation.
- ruined 2y ago
  can you provide a correct interpretation of the ruling?
  - nickff 2y ago
    Not parent, but Chevron was about deference to agencies, not about whether courts should adhere to legislative intent. The original Chevron ruling was written by a well-known originalist, who usually didn't abide by legislative intent.
    - ruined 2y ago
      sure, but agency interpretation is only possible within the vagaries of the legislation. that's 100% synonymous with intention/implementation.
    - immibis 2y ago
      i.o.w. it was about whether Congress just has to write the intent, or whether it has to write the full implementation too.

seabass-labrax 2y ago

That is how European Union directives and regulations are written, as it happens. The 'recitals' outline the general aims of the legislation, acting as a sort of preamble. > The recitals are legally non-binding. However, the recitals can be relevant. Courts often use the recitals to interpret a particular – legally binding – provision of EU legislation, especially if multiple interpretations of a certain provision are possible. From https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislation.html https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislat...

solidsnack9000 2y ago
The recitals are non-binding, but nathan_compton's proposal is that the intent portion would be binding.

jdasdf 2y ago

>Sometimes vagueness is a necessary lubricant to get enough agreement on something, but I take your point. Seems to me that a vague law is simply an invalid law. The rule of law requires the clear knowledge of what exactly is illegal, if that isn't clear then its simply a prospective law that doesn't meet the basic requires to be law.

TeMPOraL 2y ago
There is no such thing as a law that isn't vague to a degree, because laws are expressed in words and concepts, and those are vague by their nature. Laws can, of course, be vague to a lesser or greater degree. We definitely don't want poetry-level vague laws, but we also don't want to (or can't) have laws expressed in code or as mathematical proofs, because this level of clarity is just computationally intractable wrt. anything relating to real world and real people. At this point, the practical optimum seems to be laws that mostly obvious in vast majority of scenarios, and leaving it to judges to opine on corner cases on an individual basis.
throwaway2037 2y ago
This is classic HN. "Apply API-style thinking to the Real World." What is reasonable cause for police officer to search someone? Mind you: This single point alone has hundreds of interpretations around the world, across all cultures. Within a single country / culture, there could be many interpretations.

solidsnack9000 2y ago

It is much more difficult to establish standards of intent interpretation than it is to establish standards of statutory interpretation. One could imagine a law written as follows: In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins, the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments. The minimum temperature shall not be greater than -18C. There are some gaps that a court needs to fill in order to apply this statute: - The health department and the area of effect are not specified but these can be assumed to be the health department and area connected to whatever legislature passed the statute. If there is no health department that is the obvious one -- if, for example, it was passed by a city legislature and the city has no health department -- this could introduce some difficulty. - The use of "minimum" and "shall not be greater" together in this statute are confused and confusing but since it pertains to freezers, the court can infer that freezers must be set to temperatures of -18C or below (-19C, &c). However, sorting out the true intent presents insoluble problems that would lead to inconsistent interpretation of the law. Perhaps an establishment only has frozen fish. Does this law apply to them? Generally, the rule is that clear intent clauses -- "In order to facilitate the safe enjoyment of ice cream, puff pastry and pizzas of diverse origins..." -- are ignored in statutory interpretation. The operative part of the statute is that "...the health department shall regulate the minimum temperature of freezers in grocery stores, restaurants and other establishments." and that the temperature established by the health department must be -18C or below.

seabass-labrax 2y ago
No standard ways of interpretation will make up for a poorly-written statute - and, with all due respect, that's what your hypothetical example is. In liberal democracies, we expect our representatives to pass only laws that have low ambiguity, and sometimes require third-party review to ensure this. Why would any legislature pass a law delegating responsibility to a non-existent agency? How could this legislature pass a law with clearly contradictory stipulations regarding temperature? Then, finally, for what reason would intent clauses be written if they were then be entirely ignored? In conclusion, I think that your hypothetical system of government has greater problems than any inherent difficulty in expressing legal intent that may exist.

collingreen 2y ago

I love this and think about the same. Similarly, in a work setting, I used to decree that any subsequent decrees (eg: tooling, commit/lint rules, languages) must come with the intent, the desired results, and the expected costs. This made it much less political to suggest changes to our process while simultaneously eliminating some of the low effort "let's use <framework-of-the-week>" statements. I also want to believe it made it so ideas could come from anyone, not just people with titles or social capital, although I don't have any hard proof of that.