Enforcing the law...

[Melendwyr]

Law is not interested in describing or explaining the world. Law constitutes the final answer to questions that arise in the relationships between human beings, between human beings and other creatures and between human beings and the environment.

No. The whole problem is that Law is not the final answer. Law does not determine the answers, but leaves the answer to be determined by the unspecified judgement of individuals.

 

[Cleopatra]

No. The whole problem is that Law is not the final answer. Law does not determine the answers, but leaves the answer to be determined by the unspecified judgement of individuals.

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial. The question we try to answer is whether the accused has committed the crime that he is accused of or not.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape.

Huge difference.

 

[Gwyn ap Nudd]

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial. The question we try to answer is whether the accused has committed the crime that he is accused of or not.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape.

Huge difference.

That is basically true as far as the main trial is concerned, except that it ignores the fact that all appeals argue the law and not the facts. (In other words, an appeal is either "But the law is wrong," or "But the law should not apply in this case." (Not to mention all the discretion involved before and during the main trial: law enforcement officials, prosecutors, judges, juries....)

Still, the thrust of your argument, that the law codifies, however imperfectly, the rules of society, and that any discretion is usually (though not always)a relatively minor matter of details is a good point.

------

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system. Not even in pure abstractions such as mathematics and logic. We can, however, get "close enough for government work."

From Does Gödel Matter?

One way to understand Gödel's theorem (in combination with his 1929 "completeness theorem") is that no system of logical axioms can produce all truths about numbers because no system of logical axioms can pin down exactly what numbers are. My fourth-grade teacher used to ask the class to define a peanut butter sandwich, with comic results. Whatever definition you propose (say, "two slices of bread with peanut butter in between"), there are still lots of non-peanut-butter-sandwiches that fall within its scope (say, two pieces of bread laid side by side with a stripe of peanut butter spread on the table between them). Mathematics, post-Gödel, is very similar: There are many different things we could mean by the word "number," all of which will be perfectly compatible with our axioms. Now Gödel's undecidable statement P doesn't seem so paradoxical. Under some interpretations of the word "number," it is true; under others, it is false.

.......

How can this be, when Gödel cuts the very definition of "number" out from under us? Well, don't forget that just as there are some statements that are true under any definition of "peanut butter sandwich"—for instance, "peanut butter sandwiches contain peanut butter"—there are some statements that are true under any definition of "number"—for instance, "2 + 2 = 4." It turns out that, at least so far, interesting statements about number theory are much more likely to resemble "2 + 2 = 4" than Gödel's vexing "P." Gödel's theorem, for most working mathematicians, is like a sign warning us away from logical terrain we'd never visit anyway.

 

[69dodge]

When Mathematicians arrive to the point to invent a mathematical equation that gives a definite and final answer to questions like : Who was right? Creon or Antigone? The goat that eats the neighbour's plants that fall over the fence or the neighbour who doesn't take good care of his plans and let them fall over the fence, then I will be ready to discuss about the nebullus nature of Law.

But, of course, the real answer is that there is no real answer.

So I have never understood, when lawyers argue about questions of law, what exactly it is that they consider themselves to be arguing about. There is no real answer, for example, to the question of whether such-and-such a precedent does or does not apply in the current case. So what sorts of legal arguments are considered convincing in this situation? And, more important, why?

How can a lawyer argue that their interpretation of the law is correct, and that their opponent's is incorrect, when everyone knows that there is no real notion of correctness to begin with?

I am reminded of the reaction of the well-known computer scientist E.W. Dijkstra about his trip to Harvard Law School, where he was invited to speak:

[...] there was a lively discussion going on. For me the exposure was a cultural shock, instructive, but also rather disorienting. [...] the most disorienting thing was that I found myself suddenly submerged in a verbal tradition that was totally foreign to me! They were on the average very verbose -some even repetitive- , they had a tendency to "reason" by analogy and more than once I felt that speakers cared more about the potential influence of their words than about what they actually said.

 

[Melendwyr]

In a court of Law and during a trial we don't try to decide whether murder,rape,thefts,frauds etc are wrong or right. We have already decided that otherwise nobody would be brought to a trial.

What constitutes those crimes? You need clear and specific definitions for that.

What punishments are appropriate? You need clear and specific definitions for that.

That elements of the legal process, arguments, objections, etc., are correct, and which are wrong? You know the rest.

If these things are decided by ad hoc, inexplicit principles, then it's a arbitrary, inconsistent, and unjust system - a tyranny. We might as well have society controlled by roving bands of executioners.

If you are accused of rape, during your trial we won't start discussing if rape is right or not. We will examine if you have committed an action that Law describes as rape.

If the description of the Law isn't sufficiently clear that debate is necessary, given the known facts of the case, then you're deciding whether a crime has been committed, not determining.

 

[Melendwyr]

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system.

You don't understand what you're talking about. "Perfect" is not a meaningful concept in mathematics or logic.

Gödel's Theorems demonstrate that a sufficiently complex system (one that's capable of representing arithmetic) cannot be both consistent and complete. Additionally, no consistent system can contain proof of its own consistency.

It is not clear that a meaningfully-working legal system is actually sufficiently powerful for Gödel's Theorems to apply. Nor is it clear that such a legal system cannot be made consistent.

Your abuse of this extremely important mathematical concept is as disgusting as when woos attempt to invalidly reference it to justify belief in souls and the like.

 

[Cleopatra]

That is basically true as far as the main trial is concerned, except that it ignores the fact that all appeals argue the law and not the facts. (In other words, an appeal is either "But the law is wrong," or "But the law should not apply in this case." (Not to mention all the discretion involved before and during the main trial: law enforcement officials, prosecutors, judges, juries....)

Hmmmmm..... no Not the appeals I am aware of. Generally speaking, in court rooms you don't utter phrases like " but the law is wrong,Your Honor and I am here to correct the Law for you ". One can appeal on various issues,from the procedure to the severity of the penalty that has been applied. The ultimate goal of the defense is to succeed the lowest possible penalty. So, I believe that bringing the appeals in the discussion is not such a good argument.

There is one thing from your previous post that I feel I need to comment on that both you and Melendwyr seem to be unaware of, and which invalidates most of Melendwyr's arguments throughout the thread. Thanks to Gödel's Incompleteness Theorem, there is not, nor is it even theoretically possible for there to be, a perfect system. Not even in pure abstractions such as mathematics and logic. We can, however, get "close enough for government work."

I believe that "perfection" is a non-issue for the Law. The Law has nothing to do with perfection or imperfection since it's well tied with society via the elected government.

Perfection is a nebulus concept for the legal systems.

 

[Cleopatra]

But, of course, the real answer is that there is no real answer.

I wouldn't word it like that.Since we are talking about law enforcement answers that are given in court rooms are pretty real since they have real effect on the lives of real people. Antigone died and the court decides that the goat isn't sophisticated enough to show some understanding to the gardening skill of the neighbour.

So I have never understood, when lawyers argue about questions of law, what exactly it is that they consider themselves to be arguing about. There is no real answer, for example, to the question of whether such-and-such a precedent does or does not apply in the current case.

Who told you that there is no " real answer"? The real answer is the verdict of the court of Law and as I posted above its implications are so real that in many times they are life changing. Lawyers argue somebody did what he is accused of under which circumstances. It's a difficult task because the striking majority of cases are not that self-evident.

So what sorts of legal arguments are considered convincing in this situation? And, more important, why?

Good question. I will give you a sincere answer. Convicing legal arguments are the arguments that will allow the judge to form a legitimate verdict,in the frame both of the letter and the spirit of law and that in the same time satisfies the sentiment of the general public regarding Justice.And the verdict will be the "real answer" to the unique question that is posed each time. Please note that each case is different in its details and this is another reason why we have so many " real answers". Well, we have to answer to so many different questions!

How can a lawyer argue that their interpretation of the law is correct, and that their opponent's is incorrect, when everyone knows that there is no real notion of correctness to begin with?

Well, excuse me my saying so but who is this " everyone"that holds this universal knowledge? In a case, each of the implicated sides, offers his perspective on the facts. I repeat that the majority of cases are not that evident. Think of a case of rape. We have a victim that feels raped and wishes to demonstrate that has been raped and we have the other side who wishes to demonstrate that the victim might feel raped but it wasn't raped indeed. In this question, there is a definite answer and it's the court that will give it.

I am reminded of the reaction of the well-known computer scientist E.W. Dijkstra about his trip to Harvard Law School, where he was invited to speak:

Yeah ok I admit it. Scientists can be some performers too and they aim to win the impression of the audience when they find themselves in a friendly enviroment.

 

[Cleopatra]

What constitutes those crimes? You need clear and specific definitions for that.

I find this post surprizing. Legal systems of have clear and specific definitions. Have you noticed how big legal books and codes are?

What punishments are appropriate? You need clear and specific definitions for that.

See above.

That elements of the legal process, arguments, objections, etc., are correct, and which are wrong? You know the rest.

The right and fallacious in each case is trialed each time and for each case. I don't know the rest.

If these things are decided by ad hoc, inexplicit principles, then it's a arbitrary, inconsistent, and unjust system - a tyranny. We might as well have society controlled by roving bands of executioners.

And if you argument stands, can you explain to me why don't we have such societies?

If the description of the Law isn't sufficiently clear that debate is necessary, given the known facts of the case, then you're deciding whether a crime has been committed, not determining.

You are bringing an owl to Athens. However fascinating and interesting bird an owl might be we have plenty of those in Athens.

 

[Melendwyr]

I find this post surprizing. Legal systems of have clear and specific definitions. Have you noticed how big legal books and codes are?

If they did, laws would not require "interpretation".

And if you argument stands, can you explain to me why don't we have such societies?

It's too much work for them to roam. It's easier to bring the populace to them, instead.

 

[69dodge]

Who told you that there is no " real answer"? The real answer is the verdict of the court of Law and as I posted above its implications are so real that in many times they are life changing.

Yes, after the court reaches a verdict, that verdict is for all practical purposes the real answer. And, certainly, the practical purposes might be very important. But that's not what I meant. I was thinking about the situation before a verdict is reached, when the lawyers try to convince the court to reach one verdict or another. What sort of argument can they use? They can't say something like "the verdict I'd prefer is the correct one, and here's why" if the definition of "correct verdict" is "whatever the court decides", because the court hasn't decided anything yet.

 

[jj]

Well, you're ignoring, I think, the fact that laws are written in an imperfect language, and one with imperfect definitions, both of which can not be crafted to be "perfect" in any real sense.

So even what a law means can be argued in many cases, and has been, I dare say.

What's more, the shifts in language over time render things like the meaning of "well regulated militia" controversial over time, no matter what was meant in the beginning.

 

[Melendwyr]

The only way a language can be necessarily imperfect is if it is unable to accurately describe a thing being spoken of.

If it's not possible to actually put into words the intentions behind a law, then laws cannot be meaningfully communicated, and the entire purpose of a legal system is negated.

 

[Cleopatra]

If they did, laws would not require "interpretation".

This is a common misconception. When we say that somebody "interpreted this law" we mean that he interpreted how a specific case is addressed by a specific law and why. I used to have a professor at the University who kept telling us not to try to interpret the Law because if the legislator wished to address an issue that you don't see written, he would have included it "himself".

It's too much work for them to roam. It's easier to bring the populace to them, instead.

I don't understand that and I believe that it's time for me to admit that I haven't understood where you wish to get at in this discussion.

 

[Cleopatra]

Yes, after the court reaches a verdict, that verdict is for all practical purposes the real answer. And, certainly, the practical purposes might be very important. But that's not what I meant.

I am quite aware of that. I just wished to show you what reality means in the legal world.

I was thinking about the situation before a verdict is reached, when the lawyers try to convince the court to reach one verdict or another. What sort of argument can they use? They can't say something like "the verdict I'd prefer is the correct one, and here's why" if the definition of "correct verdict" is "whatever the court decides", because the court hasn't decided anything yet.

A trial is not about legal arguments only. In a trial we examine first the facts,then the evidence that is available and we argue what the evidence that we have collected shows, we discuss the intent of the accused, we discuss the motive ,we examine witnesses etc. The goal is to prove whether the accused has committed the crime he is accused of or not. I believe that it's not on anybody's interest to start arguing about the Law in a trial,anyway.

 

[Cleopatra]

Well, you're ignoring, I think, the fact that laws are written in an imperfect language, and one with imperfect definitions, both of which can not be crafted to be "perfect" in any real sense.

So even what a law means can be argued in many cases, and has been, I dare say.

I believe that the Law isn't interested in being perfect for the reason I mentioned in a previous post;it's well tied with the government of the people. As for your second comment in reality we don't argue about what the Law means but whether a specific Law addresses our case or not. The only occassions I see Laws being discussed as to what they mean( in Greece of course) is in cases of Public and Labour Law for the reasons you mention below...

What's more, the shifts in language over time render things like the meaning of "well regulated militia" controversial over time, no matter what was meant in the beginning.

This is an excellent point but what does it demonstrate? I believe that your example shows ( and this is why I connected it with my reference to Public and Labour Law) the influence of current politics on the law enforcement and why not admit it? The influence of the organized trusts and interests of a society and generally speaking, of the forces that try to surpass the system in order to lobby for their interests.

Ahhhh! Politics and Law Enforcement! That's a fascinating topic as well.

 

[Melendwyr]

This is a common misconception. When we say that somebody "interpreted this law" we mean that he interpreted how a specific case is addressed by a specific law and why. I used to have a professor at the University who kept telling us not to try to interpret the Law because if the legislator wished to address an issue that you don't see written, he would have included it "himself".

If identical cases, with identical evidence and identical arguments, can produce two different verdicts, then the law is being interpreted in the most obvious sense.

When there are laws which are inherently ill-defined and vague (such as the "driving too fast for conditions" brought up earlier), interpretation of what the laws mean is essential to be able to reach any kind of conclusion. It's pointless to, for example, make "cruel and unusual punishment" illegal unless there's a defnition of "cruel and unusual" that can be referenced.