Frankly I think our justice system should be less tolerant of "hacks" like this. They clearly violate the intent of the law, even if technically following it to the letter.
I prefer judges and lawyers interpret what the law says, not what they believe lawmakers meant to say. It is lawmakers responsibility to craft quality laws. Such hacks expose weaknesses in the laws as written.
In reality: are you a software engineer? Or do you know one? Surely you (or they) have experienced how difficult it is to write code that manages even a small number of inputs? Even 10 different yes/no inputs give you 1,024 possibilities.
Now imagine writing laws to precisely cover an effectively infinite number of possibilities, many of which don't exist at the time the law is written, and expecting the laws to cover these new situations and variables with absolute certainty and unambiguity. And unlike software, you can't just push a commit to prod to fix the problems as they pop up. It's a really long process, because democracy.
It's not happening, no more than you'd be able to handle a piece of software that took some infinite and random number and variety of inputs and did something useful with them.
We should, as you say, write "quality" laws to the best of our ability but there will always been a sizable human element to the interpretation of law.
An interpreter tries to understand what your code means. It doesn't try to guess at your intentions. (Pedantically, some do, but on a limited scale.) You should write quality code. You should try to anticipate edge cases. Your code will fail sometimes. You'll fix it.
Law has the advantage of much more advanced interpreters; but judges should still be interpreting the law, not guessing at the minds of the people who wrote the law. Lawmakers should be writing quality laws and fixing problems.
That isn’t isn’t remotely how passing laws in a democracy works. I can push a fix to prod in minutes (or in the worst case, days) and it rarely if ever affects peoples’ lives in the way that laws do.
In contrast, passing new laws and updating existing laws is (by design) an arduous process in a democracy. There are things that can and should be improved about the ways that we accomplish this, but it will never be (and really shouldn’t be) fast and easy.
Sometimes I just want to ignore HN entirely because of embarrassing comments like this. “Code works this way, so everything should work this way!”
You should also try to write quality laws. But when you fail, do you want the same sort of consequences as with code? How much time, effort, and money has been lost to hacks taking advantage of errors in code?
I would love an interpreter/compiler/processor that knew that I didn't intend to allow a security vulnerability so anyone could escalate their privileges. Sounds great, truly.
Unspecified behavior[1] is used in programming language standards for a very similar reason: to provide the freedom to interpret in the, uh, spirit of the code, rather than the letter, when it would be overall beneficial.
That is a source of bugs and a known failure of crypto that try to consider the code as authoritative. If interpreters could figure out the intended behaviour, there'd be fewer or no bugs.
Lawmakers shouldn't be focused on bugs in written law, they should be working on new law
Judges aren't the only interpreters of law. They're simply the authoritative ones (ultimately). The law needs to be relatively authoritative so that people can make decisions around it. The whole process is actually a lot messier than such statements and there are usually valid arguments and evidence, but in general we should err on the side of least harm: which means if a law is poorly written, people might get away with something lawmakers wanted to stop. This can, and has, happened, and lawmakers deal with it by updating the law or crafting new ones. (Of course, I also think there is a distinction between the 'intent' of a law and what lawmakers intended and I really only object to basing decisions on the latter.)
Why? Because if an interpreter screws up, we update its code (or ours); but if a person screws up, we throw them in prison or fine them potentially devastating amounts. A person ought to be reasonably secure in acting in accordance with the law.
> It is lawmakers responsibility to craft quality laws.
Judging by how hard it is for programmers to write bug-free instructions for literal computers, I'm not sure your expectation of flawless legislation is something realistic for mere mortals.
Companies with literally thousands of people with billions of dollars to invest have a hard time making their products bug-free no matter how many times they patch and rewrite, and we're talking about dealing with computers here. Exactly how many years of rewrites are you willing to spend on each piece of legislation to make it bug-free? Is it even remotely realistic? or will your solution grind legislation to a halt?
My statement that judges should interpret law and not lawmakers is not equivalent to this idea that law must be flawless and bug-free. Those are ideas you've brought to the table that I've already disclaimed. I said laws should be quality laws. What qualifies as quality in law isn't "100% bug-free, literal, unambiguous, single-definition words that don't require any interpretation at all." To the extent that a law is bad (as qualified by law, not by a computer code metaphor), no I don't think judges should go about the business of guessing how it should work. It ought to be punted back to lawmakers. (Otherwise why even separated the two: Just have lawmakers act as judges or vice versa.)
I realize you're disclaiming them, but I'm trying to say you what you're asking for has consequences that you can't just "disclaim" like that. Practically every law will have unintended loopholes that legislators couldn't think of or practically enumerate when writing the law. If you keep "punting it back to lawmakers" instead of letting judges handle the exceptions, you obviously further obstruct the legislature's ability to move onto new, more pressing issues. Maybe that's fine with you—or maybe it's even your goal, I can't possibly know—but your optimization on that axis has severe consequences that will quite obviously lead to undesirable outcomes on many other axes that others (if not you) actually care about. You can disclaim the implications and the consequences, but that doesn't mean they won't come along with your idea.
Maybe spending more time on getting current laws right would be better than moving on to new laws.
More laws = more ways people/organisations are burdened with things they need to know (and will be punished for whether or not they know). Having canonical interpretations of laws that aren't written in the laws just makes that even more fraught with peril.
Those consequences do not follow, because I am not asking for judges to interpret the law literally. If that's what you've read, we have a miscommunication here. There's an entire spectrum of interpretation from literal to "I personally know the guy who authored this law and I asked him what he meant."
The poster I originally responded to thinks we ought to be further right along this spectrum. I think we're either in a good place or if anything we ought to move a little further left. I don't think either extreme is desirable, and the left extreme is where we get those consequences you want to ascribe to me.
The justice system is already quite intolerant of such hacks. In the Ford case, they didn't even interpret the law differently. Instead, they determined—with evidence— that Ford was actually importing cargo vans and not passenger vans.
It is a judge's responsibility to literally judge whether a given application of the law is appropriate.
This encompasses every possible input including "what they believe lawmakers meant to say".
Edit: To get out in front of the obvious "Well what about when a judge just decides to do whatever they want??" response, I will say: That is why tradition, precedent, checks & balances, voting rights, and institutional trust all matter.
I'm having a little trouble interpreting (pun a happy happenstance!) your comment. Judging whether an application of a law is "appropriate" basically gives judges free rein to do whatever they want, although I can't think of a better description of what judges should do. (I suppose your use of "literally" is problematic in that, as used, it simply refers to your definition of a judge's responsibillity but is easily conflated with other posters' use of "literal" in the sense of the judge not doing any "interpretation" of the law.)
Gorsuch infamously ruled that the application of contract law (I guess, IANAL) was appropriate against a man who chose not to freeze to death by staying with his stranded work vehicle. I imagine a lot of other judges thought it was inappropriate and would have ruled in favor of the employee.
Taking into account what a judge thinks lawmakers meant to say also gives the judges a lot of wiggle room in their pronouncements.
Your list of 5 things that matter is commendable. However, the last 3 things have been torn to shreds over the past 4 decades -- and were never that strong historically, either in the U.S. or elsewhere. Tradition and precedent are easily side-stepped when convenient. And, of course, you have the infamous Supreme Court decision effectively placing Bush in the White House that explicitly said it was not to be used as a precedent.
And, of course, everything gets thrown out when corruption comes into play!
My use of "literally" is only intended to convey the literal meaning of the word.
And thank you for providing some excellent example of why tradition, precedent, checks & balances, voting rights, and institutional trust are important.
