The law is less like source code and more like bytecode with the legal system working as a constantly changing interpreter. Sure, the bytecode gets updated. However, in this case, the interpreter is more often updated than the bytecode.
Take, for example, the recent Title IX case in the US which ruled that someone being trans is protected under title IX. When the law was first written, that certainly wasn't the intention. Yet, the law was written in regards to sex. Something that we as a society have had an evolving view on.
AFAIK, most legal systems (at least based on the British legal system) operate in a very similar manner. Laws may be written, but ultimately the courts have to decide what they mean. New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Laws are pretty much never as black and white as you might consider. There's the text of the law, which matters, but theirs also the courts understanding of the law, which also matters. In fact, prior court rulings on a law often matter MORE than the actual text of the law.
>AFAIK, most legal systems (at least based on the British legal system)
Just a nit: Most legal systems are not based on the British system. Civil law is more widespread globally and it operates in a very different manner in respect of the role of the judiciary.
I'd agree with your post if you restricted it to commonwealth countries, though.
While civil law operates in a different manner than common law systems, the premise of the GP post still holds: Laws are not black and white and courts/judges have to interpret how the law applies to the case at hand.
A similar process to the case that the GP laid out has been happening in Germany: Same-sex couples have sued under the non-discrimination clauses of the constitution for equal treatment when it comes to marriage, adoption rights, tax treatment etc. When the constitution was written, gay sex was explicitly outlawed, so it’s pretty clear that the authors of the constitution did not want to protect same-sex marriage. But societies opinion on what constitutes “normal” marriages has changed, and so have the courts decisions.
Sometimes these decisions then require a new law to be passed, unlike British Law systems where AFAIK, the high court decisions more or less become law.
I’d be surprised if that was fundamentally different in any other country.
>Laws are not black and white and courts/judges have to interpret how the law applies
Kinda but not really. Jurisprudence is not the primary source of law in civilian countries; generally civil codes are. Additionally, civilian jurisdictions often treat legal scholar analysis as equally or more persuasive than previous case-law.
So this portion:
>New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Isn't accurate. Courts are bound to apply the law, and most law presented in civil codes is far more rigid and mechanical than those found in common law jurisdictions. In the civilian tradition the proper avenue for reform isn't a judge writing a new rule in a ruling. It's a legal reform project at the legislative level, where legislators and legal scholars go over the code, eventually resulting in a new version.
Are there going to be controversial cases that end up getting emergency legislative attention? Sure, but they're the exception, not the rule.
That said, there are over 150 countries that operate broadly under the civil law tradition, so while what I'm saying is accurate about the tradition as a whole, there are many exceptions on a jurisdictional basis.
Cicil law courts are bound to apply the law and certainly don't have the right to rewrite the law in most cases (the german constitutional court for example has the power to undo laws), but they still need to interpret the words of the law and the meaning of those words changes over time. For example the anti discrimination laws would as long as maybe 30 years ago never have encompassed discrimination for LGBTQ* people. The laws have not changes substantially, but the interpretation of those words has definitely changed and as such, rulings that were not possible then are standard now. Very often, rulings do have a law-like quality - even if strictly speaking, they are not laws. From the top of my head I can cite one example from the road laws in germany: There's a thing called "Bicylcle roads" and the legal scripture (Straßenverkehrsordnung) says that cars are required to maintain a "suitable speed." A single influential court decision pegged that to 30km/h about a decade or so ago - which has finally been fed back into the legal text this year.
So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.
Just a nitpick, but the constitutional court doesn't have the power to rewrite the law either. The only thing it can do is declare a certain law unconstitutional (because legally, the constitution always trumps individual laws) and then the ball is back in the court of the legislative branch which may repeal or amend the law.
The constitutional court can declare laws Or parts of laws as not applicable and can require laws to be made and in specific cases it’s decisions are equivalent to a law (mostly regarding disputes which law applies, state vs. federal law, where certain responsibilities lie and in cases where the constitutional court decides that a law violates the constitution and is immediately declared void.) §31 BVerGG would be the applicable paragraph. There a nice summary in English on the courts own page https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtig...
At least in my country the law that is ruled unconstitional loses it's power immediately, unless the constitutonal court itself grants some grace period. The thing is: constitutional court can't by itself decide which laws to start analysing next, there must be some formal complaint by either the President, group of members of parliament, or several other institutions, including IIRC any complaint signed by at least 100k citizens.
I’d say that laws are closer to source code than bytecode. Because, like source code you can read them, edit them without converting to any other representation.
Laws’ flexibility and interpretation comes from the ambigiuity of human languages and a need to adapt to circumstances.
The legal scholars recognized for a long time that you cannot predict and regulate every case, therefore laws generally set out principles you can fall back on, if you cannot find a specific regulation.
Therefore law is more like an ambigious declarative language with lots of undefined behaviour :). There are some agreed upon language standards and each lawyer/judge can interpret it.
As with source code, you include definitons, declarations, link documents. There are race conditions between legal texts. There is poorly written code and well written code.
For me the most obvious difference is that laws are computed and operated through people. As computers can’t interpret the sources, we have to. It is slow, error-prone but essentialy the same thing.
First step to improve this would be to publish all laws in a computer readable and parseable form. It saddens me that in my country amendments to laws are published in an official gazette as low-res formatted images.
This is incredible! Uploading all legislation to a repository and declaring it as the authoritative version is the way to go to enable progress.
In Turkey, judges and prosecutors have access to a digital law database, but citizens and lawyers don’t. However, laws continue to be published in an online gazette. Most amendments, decrees etc. are published as low-res images. You cannot search them. The government doesn’t even bother publishing the full amendment text. They only state sentences like: “The second word on the sixteenth paragraph of the law numbered X was amended as Y.”.
To find out about the amendment, you open the legislation, follow the instructions to get the latest version.
There are third party publishers who follow these changes and sell memberships where you can see the latest code. The layman has to wait until the government publishes the text (unofficialy) and cannot do comparisons.
It is a real mess. But the government here doesn’t want people to notice the changes, that’s why they bury these in small print. Public officials know the law, citizens have to work hard to get the latest text.
I had law professors in college, who checked the legislation with printed copies of the state newspaper against the published version, because they were sceptical of the government’s unofficial legislation site. They suspected that the government may have been altering these texts. The constitution only protects the integrity of the text published in the official state newspaper. But as most people don’t have any other source these become the authoritive one.
It’s really sickening. If there were a standardized format for all legislation (including the drafts), we could search easily, make comparisons easily etc.
I'm a layperson certainly, but my understanding is that a lot of legal systems were/are intended in principle to be structured so that they are open to the public (in terms of access) so that they gain credibility and support from the communities they serve, and so that injustices can be debated and corrected.
Regardless of what tech companies themselves aim to achieve, I think that software engineers on the ground tend to believe that making languages easier to understand, making codebases clearer and simpler, providing better tools to access and subscribe to changes and releases, and automatically spot problems (like the integrity issue you mention) are all beneficial.
I believe we'll see more of those types of practices and abilities filter their way into legal systems; it could be disruptive and it shouldn't be done too quickly so as to avoid Chesterton's Fence[1]-type issues, but the upsides are clear and the blockers may largely be related to inertia.
I'll still argue for bytecode (or at very least an IR of some sort, maybe an AST?)
That's mainly due to the fact that the debate about the law and the text in a law can vary wildly. I'd call the inciting incident the "source" of a law and the written law an attempt by the compiler to capture the meaning of that source.
An example is the ACA, which in principle was "Let's make sure everyone has health insurance" and in practice ended up with a humongous bill with all sorts of interesting parts.
The human readable part of the law is usually the public debates around the law. The legalese that follows can be interpreted by some people but isn't generally written for the general public.
These compilers tend to emit a lot of garbage along side the the bytecode. For example, the postscript on the DMCA talking about boat hulls of all things.
I’d agree that it could be classified as an IR. Law is definitely a domain specific subset of natural languages. Even more, each field of law can be regarded as another specific domain specific language. If you’re doing healthcare law, copyright law, criminal law etc. you need to familiarize yourself with the history, terms and mindset of that field.
That’s why lawyers also specialize and that’s why years of training are needed.
But my general opinion is, if something (a bill for example) looks much more complex than it should have been, someone engaged in lobbying to twist things in their favor. If law is left alone from personal interests, the resulting legislation are often more clear and understandable.
To nit a nit: Very broadly, there are five categories of legal systems. Common (as is in most of the US), Civil, Customary, Muslim, and Jewish. Every nation is a unique blend of them, of course.
> Civil law is more widespread globally and it operates in a very different manner in respect of the role of the judiciary.
Anyone know of a good English-language explainer for us Common folks. (Preferably a long-form item (book?) that perhaps goes into the history a bit.)
From what I know, the court system ends up being different: I'd be interested to see a procedural television show based on that system (kind of like Law and Order).
Tangentially, American shows have had so much influence globally that a lot of average people in civil law countries think that's how it works in their own countries as well, especially since normal people don't really experience criminal court proceedings in real life.
These viewer expectations also make domestic TV show producers also dramatize stories as if the country had the American system with dramatic speeches etc.
I'd say the trans protections are one in a long-running series of examples of US law being written in a clear-cut way that should have protected a given group from the start, but nonetheless 'obviously' didn't at the time because everyone knew what the lawmakers involved 'really' meant.
This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, and yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'.
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery,
Heh. No. Not only was it, from the start, not “incompatible with slavery”, but it made direct accommodations for it and even explicitly protected the slave trade even against Constitutional amendments for a certain period.
From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
Art. I, Sec. 9, cl. 1: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”
Art. IV, Sec. 2: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Art V: “…no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;…”
> yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'
Every article in the Bill of Rights is a limitation on the federal government, none protects against the states or against private parties, nor does any contradict and thus overrule the direct and indirect protections of slavery (including of the property interests of owners of fugitive slaves) and the slave trade written in the plain text of the original Constitution. People sometimes now, after the 14th Amendment, casually make imprecise reference to the Bill of Rights limiting the states, but it is actually the 14th Amendments limitations on the states that courts have interpreted to apply limitations equivalent to many of those in the Bill of Rights against the States.
Even back to the founding of the US slavery was a huge legal and moral problem. It's pretty clear to a disinterested party that the entire system is monstrous and incompatible with the concept of a free society, but at the same time it's a huge industry with enormous political sway. Trying to form the US without slavery means losing half of the states you are trying to pull into the union.
My mom (Republican, lawyer) assured me (trans) that the Court would of course rule that Title VII protects queer and trans people from discrimination, as the plain meaning of the law forbids punishing employees for not conforming to gender stereotypes. She said that the conservative justices, being textualists, would agree.
I laughed it off and thought she was drinking the Kool-Aid, but damned if she didn't read the future. Kavanagh forsook textualism, but Gorsuch wrote for the majority, using exactly the language my mom argued.
The court has 5 conservatives and only 2 of them agreed.
Textualism is a very weak foundation for a question which is relevant primarily because the issues at hand were not understood well enough to be part of the language when the law was written.
The constitution as originally written was explicitly in favor of state's being allowed to legalize slavery if they wished.
Tons of aspects, the 3/5 compromise, the electoral college, etc were very intentional pieces of the system to say 'oh don't worry, you as a state will have federal representation even if you don't consider a large portion of your population to really be full people'.
It very plainly allowed for slaves; no reading between the lines necessary.
It was well named as a compromise. One of the possible alternatives was that slaves didn't count at all, not really being full people in the eyes of society. Then the slave owning states wouldn't have had nearly as much federal representation.
There are also some weird examples of things going in the other direction. The 13th Amendment forbids "involuntary servitude" anywhere within the jurisdiction of the United States. There was a Supreme Court case in the early 1900s concluding that this does not apply to conscription. To me, the draft is very clearly a form of involuntary servitude. To the court, the decision amounted to "well obviously the amendment isn't referring to that sort of involuntary servitude".
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery
I think you're thinking back even further than that, actually, to the Declaration of Independence; slavery is probably the topic the Constitution most does not follow that pattern about.
The later part of your comment is about case law, but that’s just one way to do it. On the other hand, German law specifies huge amount of detail, leaving less for interpretation. I agree that all laws are just tools for the people, like the language in which they’re written, passed through all of human interpretation. However, there is a level of system design to legal systems, reflecting the different cultures and histories.
And this is the civic code smell that makes things like the treatment of the Bill of Rights such a disgrace. When the case law gets to the point that the statute it is based on can no longer be credibly described as being adhered to, there's a major problem. That goes for many other Amendments enshrining much less controversial rights than the Second which in my opinion is the most aggregious and flagrant semantic violation of all of them. If you can't even honor straightforward simple language to the point where you have an entire caste of humanity who specialize in navigating the morass created by taking carefully crafted and expressive language, and letting someone take whatever they want out of it without question or reconcilation at a later time.
It breeds contempt. Contempt breeds disaffection, disaffection leads to civil breakdown and unrest, unrest leads to... Well you get the picture.
I think that this is the real problem in law- it's based on precedent which is almost like a crutch for poor specification.
For any one case you need to go back to the start of law to find every relevant ruling (delta) to get the full scope of a judgement.
Of course this isn't feasible in the main, so lawyers work off convention, which is implicit knowledge.
How is the layperson supposed to understand the law then?
It would be better if (in an ideal world) judges ruled on a case based only on the way the law is written, and then submitted amendments to the law based on a historical and current analysis.
In coding terms we're talking about a snapshot (the law itself) rather than every ruling prior to the current law (deltas).
The question is why are they not supposed to? - if I wanted to fit a boiler in my house, I could use a domain expert or learn myself.
How would a layperson understand if they are breaking the law if they don't understand it (I'm referring to nuances rather than out-and-out obvious transgressions)?
Your second point alludes to this problem - the criminal code has to be kept simple to be understood, I'd suggest the same aspiration for the rest of law. Understandably some of it will get complex, but overly byzantine structures in general can serve to obscure shadier practices, even as simple as job preservation.
As with coding, a certain amount of convention is a useful timesaver, but if you have to spend years learning just a subset of the conventions, then a rewrite seems in order.
I'm not sure what the state of play is with codifying law in some sort of computer-readable DSL, but I suspect it would be more than just slightly useful to do so.
This leaves aside any issues of the general approaches of each countries' law, and what they should entail. I'm just suggesting a possible way to simplify law by being better able to refactor it using advanced tools.
> it's based on precedent which is almost like a crutch for poor specification
It works for software. “Working software over comprehensive documentation ... Responding to change over following a plan ...” https://agilemanifesto.org/
> The law is less like source code and more like bytecode with the legal system working as a constantly changing interpreter. Sure, the bytecode gets updated. However, in this case, the interpreter is more often updated than the bytecode.
You just identified the difference between Civil Law and Common Law, in a way that computer scientists can fully grasp it!
Interpreter bug report = litigation. Expensive, time consuming, personally draining and uncertain. Only the wealthy can even begin. Worse, e.g. insurance companies strategically litigate to establish a line of precedent favourable to their long-term interests.
Take, for example, the recent Title IX case in the US which ruled that someone being trans is protected under title IX. When the law was first written, that certainly wasn't the intention. Yet, the law was written in regards to sex. Something that we as a society have had an evolving view on.
AFAIK, most legal systems (at least based on the British legal system) operate in a very similar manner. Laws may be written, but ultimately the courts have to decide what they mean. New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.
Laws are pretty much never as black and white as you might consider. There's the text of the law, which matters, but theirs also the courts understanding of the law, which also matters. In fact, prior court rulings on a law often matter MORE than the actual text of the law.