4 ms·

I wonder what the difference in legal traditions is between the US and the Old World. The latter have a lot of "Yes, you're technically in trouble under the gui

by arjie 4mo ago

I wonder what the difference in legal traditions is between the US and the Old World. The latter have a lot of "Yes, you're technically in trouble under the guidelines the enforcement authority rules using but they're going to make an exception for you, for now" and the former have a lot of "Yes, the spirit was to block this kind of thing but the letter of the law is that you do get away with it". What informed this kind of difference? Is there one? The US approach seems very much like the way Orthodox Jews follow the halakha by making workarounds around it.

joe_mamba 4mo ago
Probably because the US was founded by the immigrants who fled because they hated the way the system worked in their original countries, and designed a system that's diametral opposed to that, for better and for worse.
- arjie 4mo ago
  Right, that's what I'd lean to as well. But was the reason they left the legal tradition? In this telling of the story, they were fully aware of the legal tradition being the reason for their unhappiness. But is it true? I know the original immigrants/colonists were looking for a specific kind of religious freedom they couldn't have, but you must be speaking of the later waves (which are the majority of people). I remember ages ago reading this paper (PDF warning): https://annesofiebeckknudsen.com/wp-content/uploads/2024/02/thosewhostayed.pdf https://annesofiebeckknudsen.com/wp-content/uploads/2024/02/... It made the case that (simplifying) individualists left for the US while collectivists stayed. And because of the massive scale of the migration relative to the populations, this meant that the two regions were permanently altered. Cool, eh? But I don't know if the thesis has been supported by alternative tests. Essentially, it's what I feel is true, but I've felt many things are true and been wrong many times!
  - BigTTYGothGF 4mo ago
    > original immigrants/colonists were looking for a specific kind of religious freedom they couldn't have The ones who landed at Plymouth Rock were, sort of, but I'm not sure how representative they were of the time.
  - Joker_vD 4mo ago
    The original immigrants/colonists were Puritans and their approach to the governing and liberties, well, it can be arguably called proto-totalitarian. Remember, those were the same kind of people that managed, of all things, to push the Parliament to prohibit celebrations of Christmas and Easter during the English Interregnum, despite massive popular backlash. The Puritans in the American colonies had roughly the same attitude: Christmas observance was outlawed in Boston in 1659, with a fine of five shillings. The ban by the Puritans was revoked in 1681 by an English appointed governor, Edmund Andros; however, it was not until the mid-19th century that celebrating Christmas became fashionable in the Boston region. Before the Declaration of Independence in 1776, it was not widely celebrated in the American Colonies. There is much written about the Puritans in the North America; their ideas, sadly, influenced the American political thinking and culture a lot.
- seszett 4mo ago
  > immigrants who fled because they hated the way the system worked in their original countries I'm not convinced, as the people who designed the US system had extensive exchanges with the ones who ended up designing the modern French one, which became the basis for most of the rest of Europe (bar the UK). The US and continental European systems were both designed in concert and in opposition to how the old European monarchies worked.
  - joe_mamba 4mo ago
    >The US and continental European systems were both designed in concert and in opposition to how the old European monarchies worked. Don't know the exact details about the US, but if you look at how the some EU countries and the EU is run today, it really isn't that much different than European monarchies of old in practice, even if on paper it's different. Like, you have nobles from the ancient von der Leyen German noble family appointed to leadership positions by falling upwards via no direct election by the people, enforcing unpopular laws like chat control, that were rejected 3 times, by calling an emergency election during summer time when opposition was on vacation. And if you vocally criticize the nobility online too much, they'll ban your content on social media for some BS reason at best, or send police to your house with court orders to intimidate you at worst. This isn't in opposition to monarchies, we just replaced monarchies with another form of power structure that has the same goal: keep the peasants quiet, obedient and paying taxes. There's a reason history keeps repeating itself: A fish coming from water will only know water.
- BigTTYGothGF 4mo ago
  > because they hated the way the system worked in their original countries 48/56 of the signers of the Declaration of Independence were born in the 13 colonies, and I think for a lot of them what they hated about the way the system worked is that they weren't fully part of it. ("No taxation without representation")
zarzavat 4mo ago
In the UK there is substantial use of secondary legislation. This is where Parliament authorises someone else to make laws on its behalf in some context. These powers delegated by Parliament are usually mundane but can be extreme and there's no limit to what powers Parliament can delegate. Since politicians are lazy they tend to use secondary legislation all the time. This encourages a culture of legislative sloppiness. While the UK courts have given themselves the power to perform judicial review, there is no constitutional basis for this review and so the courts are reluctant to step on Parliament's toes because if they go too far they risk Parliament deciding that it doesn't like the courts' interference and removing their authority. This isn't a hypothetical and the courts have at times resorted to some crazy mental gymnastics to evade Parliament's attempts to prevent judicial review. The US has a similar concept that enables federal agencies to make regulations on Congress's behalf but it's much more limited in scope due to the separation of powers and more solid position of the US Supreme Court.
- arjie 4mo ago
  I believe the analogous concept is Chevron deference here in the US. It must be a relatively easy optimization to make to reduce legislative load considering it arises so often. Interesting. One funny thing in California that is relevant is lane splitting. It is legal but guidelines are decided on by the CHP (state police). In practice, this means they have discretion to pull you over. I must imagine this is like the creation of Shadow IT in organizations. In the past, when you made it hard to get a server or whatever, you’d end up with your org building their software somewhere else where IT can’t see it. This must be the legal innovation that matches that: if law is hard to pass, shove a bunch of things off into Shadow Legislative which can then change rules on a whim. It’s essentially a mechanism to re-enable rapid decision making in a sclerotic system. So perhaps the US using it less than the Old World is simply an artifact of age (though extant nations vary, the legal traditions of the Old World seem to have endured) and in time we will see it dominate the US as well.
  - vikramkr 4mo ago
    Cheveron deference is no longer active unfortunately
AnthonyMouse 4mo ago
> The latter have a lot of "Yes, you're technically in trouble under the guidelines the enforcement authority rules using but they're going to make an exception for you, for now" and the former have a lot of "Yes, the spirit was to block this kind of thing but the letter of the law is that you do get away with it". The latter system is what happens if you actually have rule of law. The law says X is illegal, you did not do X, therefore you cannot be prosecuted. Meanwhile anyone caught doing X is prosecuted or it's a scandal that they're seen getting away with it. The former is autocracy in a trench coat. Whether you're in violation of the law is irrelevant because the laws are so numerous and ambiguous that everyone is always in violation of the law and the only thing that matters is if the prosecutors want to charge you. Sadly the US is moving more towards the "traditional" system rather than the other way around.
- leonidasrup 4mo ago
  The US was moving in the wrong direction for a long time. Three Felonies a Day " Silverglate’s book first explains how law should work, and then demonstrates how federal law really works as he weaves through dozens of cases showing clear prosecutorial abuse. An ugly, recurrent feature is that prosecutors often manipulate the media. " https://fee.org/articles/three-felonies-a-day-how-the-feds-target-the-innocent/ https://fee.org/articles/three-felonies-a-day-how-the-feds-t...
- arjie 4mo ago
  Yes, I tend to agree. Understanding what forces brought it to be may help preserve it and bring it to more places. The US is moving in various ways, true, but certainly I think the diminishing of Chevron deference is a move towards clearer law. Agency actors have always acted in a capricious way but they’re now far more susceptible to capture than in prior eras (or at least it’s much more visible) so reducing their power offers more transparency.
- stackghost 4mo ago
  >Whether you're in violation of the law is irrelevant because the laws are so numerous and ambiguous that everyone is always in violation of the law and the only thing that matters is if the prosecutors want to charge you. This situation currently describes the USA.
cineticdaffodil 4mo ago
First hacker culture there ever was. Hacking the words of god, to make life easier. Makes you pre-disposed to excell in science, that kind of thinking and learning..
Loughla 4mo ago
One is following the law and the other isn't. If the letter of the law doesn't enforce the spirit of the law, it was poorly written or it's out of date and needs to be amended. In theory, the US system allows for those updates. In reality it's a little less clear. Currently we're absolutely moving to the fealty to the crown system and it's not great. Any system that makes specific carve outs for anyone to not follow the letter of the law is not about enforcing the law, it's about maintaining control using arbitrary enforcement and chronyism (not sure of that spelling). The system of workarounds for religious customs has always fascinated me. I will follow the letter of the law, because I have to. If I don't agree with the laws, I can move. If I was in a faith tradition and finding workarounds for the intent of the law, I would choose a different faith. To me it's very binary; either you are or you aren't [Religion]. Using technicalities on your deity just feels like a suckers game to make your current and any possible afterlife worse. Like God is just going to say, "oh man you really got one over on me." Makes zero sense.
- gcanyon 4mo ago
  > If the letter of the law doesn't enforce the spirit of the law, it was poorly written or it's out of date and needs to be amended. I think if you rewrite that to, “If the letter of the law is demonstrably out of sync with the public sense of the spirit of the law, then it should be amended,” I’m with you. But I think that’s not what you meant? If you meant “the letter of the law should define prescribed and proscribed behavior exactly,” then I think that’s impossible. There will always be exceptions, and no set of rules can be exhaustive. The system should allow for humans to recognize that fact.
  - arjie 4mo ago
    Here is a fun exploration of that concept: https://novehiclesinthepark.com/ https://novehiclesinthepark.com/
    - Dylan16807 4mo ago
      That's mostly an exploration of how laws need to define terms. It's also an exploration of how people will ignore instructions to answer based on letter or spirit alone. (I bet asking separately about both for each scenario is the only way to get clean data.)

by arjie 4mo ago

joe_mamba 4mo ago

Probably because the US was founded by the immigrants who fled because they hated the way the system worked in their original countries, and designed a system that's diametral opposed to that, for better and for worse.

arjie 4mo ago
Right, that's what I'd lean to as well. But was the reason they left the legal tradition? In this telling of the story, they were fully aware of the legal tradition being the reason for their unhappiness. But is it true? I know the original immigrants/colonists were looking for a specific kind of religious freedom they couldn't have, but you must be speaking of the later waves (which are the majority of people). I remember ages ago reading this paper (PDF warning): https://annesofiebeckknudsen.com/wp-content/uploads/2024/02/thosewhostayed.pdf https://annesofiebeckknudsen.com/wp-content/uploads/2024/02/... It made the case that (simplifying) individualists left for the US while collectivists stayed. And because of the massive scale of the migration relative to the populations, this meant that the two regions were permanently altered. Cool, eh? But I don't know if the thesis has been supported by alternative tests. Essentially, it's what I feel is true, but I've felt many things are true and been wrong many times!
- BigTTYGothGF 4mo ago
  > original immigrants/colonists were looking for a specific kind of religious freedom they couldn't have The ones who landed at Plymouth Rock were, sort of, but I'm not sure how representative they were of the time.
- Joker_vD 4mo ago
  The original immigrants/colonists were Puritans and their approach to the governing and liberties, well, it can be arguably called proto-totalitarian. Remember, those were the same kind of people that managed, of all things, to push the Parliament to prohibit celebrations of Christmas and Easter during the English Interregnum, despite massive popular backlash. The Puritans in the American colonies had roughly the same attitude: Christmas observance was outlawed in Boston in 1659, with a fine of five shillings. The ban by the Puritans was revoked in 1681 by an English appointed governor, Edmund Andros; however, it was not until the mid-19th century that celebrating Christmas became fashionable in the Boston region. Before the Declaration of Independence in 1776, it was not widely celebrated in the American Colonies. There is much written about the Puritans in the North America; their ideas, sadly, influenced the American political thinking and culture a lot.
seszett 4mo ago
> immigrants who fled because they hated the way the system worked in their original countries I'm not convinced, as the people who designed the US system had extensive exchanges with the ones who ended up designing the modern French one, which became the basis for most of the rest of Europe (bar the UK). The US and continental European systems were both designed in concert and in opposition to how the old European monarchies worked.
- joe_mamba 4mo ago
  >The US and continental European systems were both designed in concert and in opposition to how the old European monarchies worked. Don't know the exact details about the US, but if you look at how the some EU countries and the EU is run today, it really isn't that much different than European monarchies of old in practice, even if on paper it's different. Like, you have nobles from the ancient von der Leyen German noble family appointed to leadership positions by falling upwards via no direct election by the people, enforcing unpopular laws like chat control, that were rejected 3 times, by calling an emergency election during summer time when opposition was on vacation. And if you vocally criticize the nobility online too much, they'll ban your content on social media for some BS reason at best, or send police to your house with court orders to intimidate you at worst. This isn't in opposition to monarchies, we just replaced monarchies with another form of power structure that has the same goal: keep the peasants quiet, obedient and paying taxes. There's a reason history keeps repeating itself: A fish coming from water will only know water.
BigTTYGothGF 4mo ago
> because they hated the way the system worked in their original countries 48/56 of the signers of the Declaration of Independence were born in the 13 colonies, and I think for a lot of them what they hated about the way the system worked is that they weren't fully part of it. ("No taxation without representation")

zarzavat 4mo ago

In the UK there is substantial use of secondary legislation. This is where Parliament authorises someone else to make laws on its behalf in some context. These powers delegated by Parliament are usually mundane but can be extreme and there's no limit to what powers Parliament can delegate. Since politicians are lazy they tend to use secondary legislation all the time. This encourages a culture of legislative sloppiness. While the UK courts have given themselves the power to perform judicial review, there is no constitutional basis for this review and so the courts are reluctant to step on Parliament's toes because if they go too far they risk Parliament deciding that it doesn't like the courts' interference and removing their authority. This isn't a hypothetical and the courts have at times resorted to some crazy mental gymnastics to evade Parliament's attempts to prevent judicial review. The US has a similar concept that enables federal agencies to make regulations on Congress's behalf but it's much more limited in scope due to the separation of powers and more solid position of the US Supreme Court.

arjie 4mo ago
I believe the analogous concept is Chevron deference here in the US. It must be a relatively easy optimization to make to reduce legislative load considering it arises so often. Interesting. One funny thing in California that is relevant is lane splitting. It is legal but guidelines are decided on by the CHP (state police). In practice, this means they have discretion to pull you over. I must imagine this is like the creation of Shadow IT in organizations. In the past, when you made it hard to get a server or whatever, you’d end up with your org building their software somewhere else where IT can’t see it. This must be the legal innovation that matches that: if law is hard to pass, shove a bunch of things off into Shadow Legislative which can then change rules on a whim. It’s essentially a mechanism to re-enable rapid decision making in a sclerotic system. So perhaps the US using it less than the Old World is simply an artifact of age (though extant nations vary, the legal traditions of the Old World seem to have endured) and in time we will see it dominate the US as well.
- vikramkr 4mo ago
  Cheveron deference is no longer active unfortunately

AnthonyMouse 4mo ago

> The latter have a lot of "Yes, you're technically in trouble under the guidelines the enforcement authority rules using but they're going to make an exception for you, for now" and the former have a lot of "Yes, the spirit was to block this kind of thing but the letter of the law is that you do get away with it". The latter system is what happens if you actually have rule of law. The law says X is illegal, you did not do X, therefore you cannot be prosecuted. Meanwhile anyone caught doing X is prosecuted or it's a scandal that they're seen getting away with it. The former is autocracy in a trench coat. Whether you're in violation of the law is irrelevant because the laws are so numerous and ambiguous that everyone is always in violation of the law and the only thing that matters is if the prosecutors want to charge you. Sadly the US is moving more towards the "traditional" system rather than the other way around.

leonidasrup 4mo ago
The US was moving in the wrong direction for a long time. Three Felonies a Day " Silverglate’s book first explains how law should work, and then demonstrates how federal law really works as he weaves through dozens of cases showing clear prosecutorial abuse. An ugly, recurrent feature is that prosecutors often manipulate the media. " https://fee.org/articles/three-felonies-a-day-how-the-feds-target-the-innocent/ https://fee.org/articles/three-felonies-a-day-how-the-feds-t...
arjie 4mo ago
Yes, I tend to agree. Understanding what forces brought it to be may help preserve it and bring it to more places. The US is moving in various ways, true, but certainly I think the diminishing of Chevron deference is a move towards clearer law. Agency actors have always acted in a capricious way but they’re now far more susceptible to capture than in prior eras (or at least it’s much more visible) so reducing their power offers more transparency.
stackghost 4mo ago
>Whether you're in violation of the law is irrelevant because the laws are so numerous and ambiguous that everyone is always in violation of the law and the only thing that matters is if the prosecutors want to charge you. This situation currently describes the USA.

cineticdaffodil 4mo ago

First hacker culture there ever was. Hacking the words of god, to make life easier. Makes you pre-disposed to excell in science, that kind of thinking and learning..

Loughla 4mo ago

One is following the law and the other isn't. If the letter of the law doesn't enforce the spirit of the law, it was poorly written or it's out of date and needs to be amended. In theory, the US system allows for those updates. In reality it's a little less clear. Currently we're absolutely moving to the fealty to the crown system and it's not great. Any system that makes specific carve outs for anyone to not follow the letter of the law is not about enforcing the law, it's about maintaining control using arbitrary enforcement and chronyism (not sure of that spelling). The system of workarounds for religious customs has always fascinated me. I will follow the letter of the law, because I have to. If I don't agree with the laws, I can move. If I was in a faith tradition and finding workarounds for the intent of the law, I would choose a different faith. To me it's very binary; either you are or you aren't [Religion]. Using technicalities on your deity just feels like a suckers game to make your current and any possible afterlife worse. Like God is just going to say, "oh man you really got one over on me." Makes zero sense.

gcanyon 4mo ago
> If the letter of the law doesn't enforce the spirit of the law, it was poorly written or it's out of date and needs to be amended. I think if you rewrite that to, “If the letter of the law is demonstrably out of sync with the public sense of the spirit of the law, then it should be amended,” I’m with you. But I think that’s not what you meant? If you meant “the letter of the law should define prescribed and proscribed behavior exactly,” then I think that’s impossible. There will always be exceptions, and no set of rules can be exhaustive. The system should allow for humans to recognize that fact.
- arjie 4mo ago
  Here is a fun exploration of that concept: https://novehiclesinthepark.com/ https://novehiclesinthepark.com/
  - Dylan16807 4mo ago
    That's mostly an exploration of how laws need to define terms. It's also an exploration of how people will ignore instructions to answer based on letter or spirit alone. (I bet asking separately about both for each scenario is the only way to get clean data.)