5 ms·

In what places do courts ignore or modify law to deliver the result they prefer? (To be precise: where is that accepted practice, rather than aberrant behaviou

by dghf 1y ago

In what places do courts ignore or modify law to deliver the result they prefer? (To be precise: where is that accepted practice, rather than aberrant behaviour by some judges?)

maratc 1y ago
Usually the judges do not "ignore or modify" the law, but rather "interpret" it in a creative manner. You might use, as an example, the question of "does the US Constitution guarantee the women a right to abortion." Some judges decided that it does, later some other judges decided that it does not. Considering the opposing outcomes to the same question, it's clear some of these were wrong.
- userbinator 1y ago
  In the US, it's usually enforcement that's ignored.
  - AngryData 1y ago
    That is why everything is illegal 3x over. If they don't like you, you get farked. If they like you, they just ignore it.
- ljm 1y ago
  Letter of the law vs. spirit of the law. One could argue that 'a corporation has personhood' is a technical contrivance that tries to manipulate the letter of the law into achieving a particular outcome. Going with the spirit of the law instead, that argument would never hold water.
davidw 1y ago
The Supreme Court in the United States has been playing a looooot of "Calvinball" recently. They've never been completely immune from it, but it has gotten a lot more nakedly political.
- DoingIsLearning 1y ago
  Off topic but I am now old enough that more than once Calvinball references were lost with my co-workers. I was surprised (and then sad) at the realization that Bill Watterson is fading from the cultural ethos as I age.
  - sethammons 1y ago
    I've noticed similar. I quote lots of movies, usually one liners as appropriate. Between age and less uniform media exposure, my references more often than not fall flat. And I feel less connected.
    - TheOtherHobbes 1y ago
      If you talk to anyone under 30, there's a vague sense of 'the past' with a few landmark events - mostly Star Wars, Pokemon, Miyazaki. Beyond that it's all recent comics, superhero movies, video games, and anime, with a big subculture stanning book trends like romantasy. Most of what happened before 2000 doesn't seem to exist in cultural memory. It's not quite true that nothing that happened before 1950 exists at all. But you're not going to find many people who are interested in the art, music, literature, design, or architecture of earlier decades - never mind centuries. It's as a big a break as there was in the 60s. For that generation the 50s were still an influence, but anything earlier pretty much just disappeared.
      - card_zero 1y ago
        I guess the sense of a rubicon at the end of the 40s was due to WW2, but why at the year 2000? Because phones? Or big round number effect, perhaps? The year 2000 was built up in our minds as when the future was expected to begin. (Every new gadget produced around 1990 was the Something2000. CarVacuum2000, Ionizer2000, SuperShoehorn2000, etc.)
    - bmacho 1y ago
      > And I feel less connected. Watch whatever today's kids watch.
mschuster91 1y ago
That's common in both European courts (look at e.g. the history of homosexual marriages in the EU) and in the US ("Citizens United"). The core issue is that no Constitution, in fact no law or decree at all can account for all possibilities that real life offers, and so all the bodies of law are up for interpretation all the time.
- teamonkey 1y ago
  This is also the case in the UK. Where things are not crystal clear they are interpreted by judges and can become precedent (see the recent “definition of a woman” interpretation). The issue highlighted by, say, the Owens vs Owens example, is that the law as it stood was clear and not open to interpretation, though obviously unfair. The law needed to be changed, which required parliament.
wisty 1y ago
The US. There are vague rights in the constitution. It could be a disaster for the courts to interpret them too literally (Is literally any weapon OK in the 2nd? Does free speech include a mob boss ordering a hit?) and constitutions are really hard to amend, so heavy interpretation is a nessessary evil.
- wirrbel 1y ago
  That is an interesting example because the second amendment is I think a primary example of a law that is very creatively read by folks that consider themselves literalists. if the 2nd amendmend was literally interpreted it would be (quoting from memory) “in order to form a well-ordered militia the right to bear arms shall not be infringed” As in you cannot infringe the right to bear arms in a well ordered militia, but gun ownership might be regulated for example by the militia organization owning the arms. Nothing would speak against codifying in law what constitutes a well-ordered militia, etc.
  - Joker_vD 1y ago
    That's... how the 2nd amendment used to be treated, actually: state laws against conceit carry have lo-o-ong history, and they've been held to be perfectly constitutionally until recently. Oh, and "well-regulated" used to mean "well trained and supplied" back in those day. And the 2nd actually reads (if you fix its grammar since it's ungrammatical by the standards of the modern English language) "since the well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" — now notice that it's a conditional rule, and its premise in "since..." is no longer true, militias are not necessary for the security of a country; and so the conclusion should lose its power. And arguably it's what the Founders intended: if they meant it as an absolute rule, they would've omitted the first part of it and would have simply stated that "the right of the people to keep and bear arms shall not be infringed", period.
    - milesrout 1y ago
      [dead]
eadmund 1y ago
> In what places do courts ignore or modify law to deliver the result they prefer? The United States. E.g. ‘the switch in time that saved nine,’ Wickard v. Filburn, Obergefell v. Hodges, Gonzales v. Raich and so forth.

by dghf 1y ago

In what places do courts ignore or modify law to deliver the result they prefer? (To be precise: where is that accepted practice, rather than aberrant behaviour by some judges?)

maratc 1y ago

Usually the judges do not "ignore or modify" the law, but rather "interpret" it in a creative manner. You might use, as an example, the question of "does the US Constitution guarantee the women a right to abortion." Some judges decided that it does, later some other judges decided that it does not. Considering the opposing outcomes to the same question, it's clear some of these were wrong.

userbinator 1y ago
In the US, it's usually enforcement that's ignored.
- AngryData 1y ago
  That is why everything is illegal 3x over. If they don't like you, you get farked. If they like you, they just ignore it.
ljm 1y ago
Letter of the law vs. spirit of the law. One could argue that 'a corporation has personhood' is a technical contrivance that tries to manipulate the letter of the law into achieving a particular outcome. Going with the spirit of the law instead, that argument would never hold water.

davidw 1y ago

The Supreme Court in the United States has been playing a looooot of "Calvinball" recently. They've never been completely immune from it, but it has gotten a lot more nakedly political.

DoingIsLearning 1y ago
Off topic but I am now old enough that more than once Calvinball references were lost with my co-workers. I was surprised (and then sad) at the realization that Bill Watterson is fading from the cultural ethos as I age.
- sethammons 1y ago
  I've noticed similar. I quote lots of movies, usually one liners as appropriate. Between age and less uniform media exposure, my references more often than not fall flat. And I feel less connected.
  - TheOtherHobbes 1y ago
    If you talk to anyone under 30, there's a vague sense of 'the past' with a few landmark events - mostly Star Wars, Pokemon, Miyazaki. Beyond that it's all recent comics, superhero movies, video games, and anime, with a big subculture stanning book trends like romantasy. Most of what happened before 2000 doesn't seem to exist in cultural memory. It's not quite true that nothing that happened before 1950 exists at all. But you're not going to find many people who are interested in the art, music, literature, design, or architecture of earlier decades - never mind centuries. It's as a big a break as there was in the 60s. For that generation the 50s were still an influence, but anything earlier pretty much just disappeared.
    - card_zero 1y ago
      I guess the sense of a rubicon at the end of the 40s was due to WW2, but why at the year 2000? Because phones? Or big round number effect, perhaps? The year 2000 was built up in our minds as when the future was expected to begin. (Every new gadget produced around 1990 was the Something2000. CarVacuum2000, Ionizer2000, SuperShoehorn2000, etc.)
  - bmacho 1y ago
    > And I feel less connected. Watch whatever today's kids watch.

mschuster91 1y ago

That's common in both European courts (look at e.g. the history of homosexual marriages in the EU) and in the US ("Citizens United"). The core issue is that no Constitution, in fact no law or decree at all can account for all possibilities that real life offers, and so all the bodies of law are up for interpretation all the time.

teamonkey 1y ago
This is also the case in the UK. Where things are not crystal clear they are interpreted by judges and can become precedent (see the recent “definition of a woman” interpretation). The issue highlighted by, say, the Owens vs Owens example, is that the law as it stood was clear and not open to interpretation, though obviously unfair. The law needed to be changed, which required parliament.

wisty 1y ago

The US. There are vague rights in the constitution. It could be a disaster for the courts to interpret them too literally (Is literally any weapon OK in the 2nd? Does free speech include a mob boss ordering a hit?) and constitutions are really hard to amend, so heavy interpretation is a nessessary evil.

wirrbel 1y ago
That is an interesting example because the second amendment is I think a primary example of a law that is very creatively read by folks that consider themselves literalists. if the 2nd amendmend was literally interpreted it would be (quoting from memory) “in order to form a well-ordered militia the right to bear arms shall not be infringed” As in you cannot infringe the right to bear arms in a well ordered militia, but gun ownership might be regulated for example by the militia organization owning the arms. Nothing would speak against codifying in law what constitutes a well-ordered militia, etc.
- Joker_vD 1y ago
  That's... how the 2nd amendment used to be treated, actually: state laws against conceit carry have lo-o-ong history, and they've been held to be perfectly constitutionally until recently. Oh, and "well-regulated" used to mean "well trained and supplied" back in those day. And the 2nd actually reads (if you fix its grammar since it's ungrammatical by the standards of the modern English language) "since the well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" — now notice that it's a conditional rule, and its premise in "since..." is no longer true, militias are not necessary for the security of a country; and so the conclusion should lose its power. And arguably it's what the Founders intended: if they meant it as an absolute rule, they would've omitted the first part of it and would have simply stated that "the right of the people to keep and bear arms shall not be infringed", period.
  - milesrout 1y ago
    [dead]

eadmund 1y ago

> In what places do courts ignore or modify law to deliver the result they prefer? The United States. E.g. ‘the switch in time that saved nine,’ Wickard v. Filburn, Obergefell v. Hodges, Gonzales v. Raich and so forth.