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DAxelrod (4649)
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I'm interested in hard problems.
Recently, I've started thinking a lot about what CP6AN might look like.
Class::MOP and the Perl 6 Metamodel make me more excited than I'd like to admit.
Also expect occasional wordy technology-related rantings.
- Me on CPAN [cpan.org]
- Me on Perlmonks [perlmonks.org]
OT: Law is not Code
I've read several times now that computer geeks don't usually take the same approach to law as, say, lawyers. For example Eben Moglen characterized this as "the hacker belief that laws are form of code that are executed without errors or ambiguities." EDIT: Alias rightly points out that this is a strawman. I think a statement closer to what I'm getting at might be "the hacker belief that laws are a form of code that are intended to be executed without errors or ambiguities". End Edit
I'm starting to see why that might be the case.
Something that fascinates me is how the US Supreme Court has bootstrapped itself into its current role. (Basically, for those unfamiliar, a lot of what the US Supreme Court does is issue rulings on whether various laws are constitutional or not (unconstitutional laws are nullified), but the Constitution does not explicitly give the Court this power.)
It ocurred to me that the only reason the Court uses precendent in its decisions is precedent.
How's that for circular logic?
Yes, I am aware that if they completely decided to drop precedent, it would most likely cause other branches of the government and citizens to take actions that would undermine the court. That's beside the point here.
we all know it should have been something different from what everybody
else thinks it should have been.
--Larry Wall
Strawman argument.. (Score:1)
I think that's a false argument. The law is a form of code, it's just that it is executed via non-deterministic wetware processors and subject to the vaguaries of any other interpreted language
But seriously, I doubt any "hackers" think the law is "without errors or ambiguities". That doesn't mean it still doesn't act like code.
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You're right, that may be a bad example.
However, law is based neither on formal logic, nor reproducability, which is certainly different than most systems of rules I'm used to thinking about.
The thing is, it doesn't even try to be unambiguous. It's slippery by design. Which may make it optimized for the wetware that runs it.
seems like code to me (Score:2)
Users have different ideas about how it should work.
It is constantly becoming out of date as the environment around it changes.
There's also continual ongoing maintenance; second system syndrome (the all-singin, all-dancing replacement of a simple original law).
The agenda is controlled by the people with the money, which doesn't always correlate well with the people with the necessary knowledge or with an impartial viewpoint.
Oh, but it is code. (Score:1)
Except that it's run on an architecture far more complex than the puny Von Neumann architectures hackers typically code for.
Law is run by a couple of billions of non-deterministic processors, each capable of running a myriad of threads. Processors that never reboot.
No explicit authority? (Score:2)
with this [cornell.edu]:
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Quite easily. :)
It does not explicitly say anything about nullifying laws. It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.
Or maybe I'm reading it differently than you.
If you read that sentence it as saying "The judicial
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I don't think so.
It does not explicitly say anything about nullifying laws.
It's absolutely implicit.
It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.
I don't understand how this is interesting at all. If someone sues over whether a law is legal/Constitutional, that obviously falls under the Supreme Court's mandate. There is nothing excluding that (either explicitly or implicitly), and it is a "case arisi
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First of all, let me make clear that my argument is not that the Court overstepped their authority in declaring that they could decide the constitutionality of laws. (And whether or not they've overstepped their authority today is an entirely different question.)
How is anything implicit absolutely so? Are you asserting that it logically follows from that sentence?
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Yes, precisely.
Because we're talking about whether the Supreme Court has the power to nullify a law on the basis that that law is inconsistent with the constitution.
Right, but the conclusion is necessarily reached from the language. Whether it is explicitly stated is not relevant.
There is nothing excluding that, but there is nothing explicitly including that either.
Then it is therefore included. ALL CASE
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I tend to think that reaching conclusions is still a form of interpretation.
Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.
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Given the laws of integers and base 10 and addition, is it an "interpretation" that 2+2=4?
I think the language gives absolutely no room for any other interpretation.
Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.
Sure, though you are the one who brought up original intent.
I assert that because constitutionality determination is a previous decision o
Re:No explicit authority? Original Intent? (Score:1)
I was foolish to bring up original intent. It appears my source was nothing more than a textbook [amazon.com] which has a section that presents some arguments for and against Judicial Review. An argument in support says
and the argument against that point is
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Upon more research into the Council of Revision, I found this debate [teachingam...istory.org] but most of it seems to be about Executive plus Judicial review.
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Possibly. 2+2=4 is not axiomatic. However, keep in mind that English is a whole lot less precise. :)
And I assert that the Supreme Court is required to actually make that interpretation.
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I was going to say that the fact that reasonable people can disagree on this point means we need a body to interperet the language of the constution to settle the disagreement. A body like the Supreme Court.
Of course, then you could legitimately challenge the premise that I'm a reasonable person. (Which makes sense, if I go around making incorrect claims all the time, who's to say I'm reasonable?)
Then I'd have to point out people who disagreed with Marshall's decision in Marbury vs. Madison and you coul
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Speaking of Marbury v. Madison [wikipedia.org], Federalist 78 is also cited there, as an example of Hamilton laying out the concept of judicial review as being a part of the proposed Constitution, and also quotes John Yoo saying, "[N]o scholar to date has identif
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