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The Writing of Laws Is A Dumb Thing To do

joe1776

Well-Known Member
But I'm not talking about "writing laws". I'm suggesting that to ensure fairness and consistency, your experts (judges, in effect) will need to make themselves aware of the judgements given in other similar cases. To do this, they will want to review written reports of these cases.
I put your use of the word consistency in bold because fairness is desired but consistency is not a goal since the cases involved have a unique set of facts. Inconsistency is expected in judgments.

Did the killer claiming self-defense have just cause to fear for his life? Key questions like this will turn on a unique set of facts in evidence.

The only consistency wanted is that the right judgments are made as consistently as humanly possible.
 
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joe1776

Well-Known Member
The issue is that they can't be punished in a consistent and workable manner (fairness), and that people need clear, written instructions regarding what is permissible in many areas (clarity).
If that's what you wanted to know then your question was poorly framed and misunderstood as a result.

I have no idea why you think that legislators who are not working with the actual facts of a case can be fair but an expert panel judging the actual facts cannot. Can you explain?

Let's use sentencing as an example. Tell me why you think that laws that prescribe sentencing of various offenses would be more fair than case-by-case judgments by an expert panel.

By the way, in the USA, even judges are complaining about the unfairness of our sentencing laws.
 
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If that's what you wanted to know then your question was poorly framed and misunderstood as a result.

It's the same question I've been asking from the start.

So, re driving:

If he breaks a published, written "directive" he will be legally punished: that's just a law.

Current (basic overview):
Government experts set legally enforced rules which are written down and made publicly available

Minor transgressions: fine
Repeated transgressions: Licence suspended
Serious transgressions: Criminal charges

How does your system differ from this?

I have no idea why you think that legislators who are not working with the actual facts of a case can be fair but an expert panel judging the actual facts cannot. Can you explain?

Let's use sentencing as an example. Tell me why you think that laws that prescribe sentencing of various offenses would be more fair than case-by-case judgments by an expert panel.

By the way, in the USA, even judges are complaining about the unfairness of our sentencing laws.

None of this is remotely relevant to what I was saying.
 

Stevicus

Veteran Member
Staff member
Premium Member
You can't simply have a 'guess the rule' situation in this regard.

It would be nice if this was actually the case. I've worked for companies which would sometimes be faced with the prospect of lawsuits. When determining how much it would cost to defend the suit versus how much it would cost to settle out of court, one doesn't typically know in advance how the case will turn out if it does go to court.

That turns it into a guessing game and a crap shoot, largely depending on the personality and the mood of whichever judge is assigned. I've had attorneys tell me that "it depends on the judge," yet there's no way to know what a judge is thinking.

This makes me think that the law is not something that's written down and universally understood. It seems it comes down more to opinion and whimsy.
 

exchemist

Veteran Member
I put your use of the word consistency in bold because fairness is desired but consistency is not a goal since the cases involved have a unique set of facts. Inconsistency is expected in judgments.

Did the killer claiming self-defense have just cause to fear for his life? Key questions like this will turn on a unique set of facts in evidence.

The only consistency wanted is that the right judgments are made as consistently as humanly possible.
I must say I think this is quite impractical. Law has to have the consent of the society in whose name it is exercised. Without that it is oppression. How can society agree that the judgements of these panels are fair, if there is no consistency to them?

The ruling of these panels will inevitably be criticised from time to time, and contested. Presumably there will be an appeals process. What means would people have of demonstrating whether or not they were being fair, unless it is by reference to previous similar cases?
 

joe1776

Well-Known Member
I must say I think this is quite impractical. Law has to have the consent of the society in whose name it is exercised. Without that it is oppression. How can society agree that the judgements of these panels are fair, if there is no consistency to them?

The ruling of these panels will inevitably be criticised from time to time, and contested. Presumably there will be an appeals process. What means would people have of demonstrating whether or not they were being fair, unless it is by reference to previous similar cases?
You are equating fairness with consistency when the only consistency required is that the judgments be consistently correct. The conscience of an unbiased public would determine that in criminal cases.

In the USA, the public wisely doesn't trust our criminal justice system.

Human acts happen in an almost infinite variety. Criminal acts are not an exception. That's why making laws is a dumb thing to do. Using the act of killing as an example, the attempt is to write an absolute rule to cover every possible future case. It can't be done.

It's not possible. That's why the laws on murder are different in every jurisdiction. There will be cases that fall through the gaps no matter how massive the law.

An expert panel in 2019 can take the actual facts of case XYZ-2107 and render a fair judgment far more consistently than the legislature of some past era who had none of the facts.
 
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joe1776

Well-Known Member
...This makes me think that the law is not something that's written down and universally understood. It seems it comes down more to opinion and whimsy.
The only non-lawyer citizens who know the law well are career criminals. They know that in their states that if they get caught, they'll get a sentence of 5 to 10 years for a particular crime.

In civil cases, lawyers have no idea what amateur juries will award in damages if they decide for the plaintiff.
 

Stevicus

Veteran Member
Staff member
Premium Member
The only non-lawyer citizens who know the law well are career criminals. They know that in their states that if they get caught, they'll get a sentence of 5 to 10 years for a particular crime.

I would also contrast that with the number of criminal cases where an innocent person was ostensibly found guilty - even when the law should have been on their side.

Then there are those who have the money to hire a "dream team" of lawyers who can find ways of getting guilty people off the hook.

Is it really a matter of actual "law" or knowing the law - or is it more a matter of gaming the system? Or maybe it's just a matter of knowing the right people to bribe?

In civil cases, lawyers have no idea what amateur juries will award in damages if they decide for the plaintiff.

It seems that lawyers can't even predict what professional judges would do either. Whether it's damage awards or even with determining guilt or innocence.
 

Cooky

Veteran Member
All laws should include a statement of purpose, explaining what problems they're made to address and what effects they're crafted to achieve. This statement should trump the letter of the law.

Few laws are universally applicable to the effect they're written to achieve. There are usually circumstances where a strict application would be counter-productive.

That's a great point..!
 

joe1776

Well-Known Member
...It seems that lawyers can't even predict what professional judges would do either. Whether it's damage awards or even with determining guilt or innocence.
A lawyer told me that if you're guilty of a crime, you should opt for a trial by jury. If you're innocent, you should forego the jury and make your case to the judge alone.

I think he was probably right but the system is so screwed up that the accused can't take a chance on the system getting the right answer so we have innocent people pleading guilty for lighter sentences.

This result is ironic in a system that stupidly begins based on the Blackstone formulation in which the goal is to prevent the convictions of innocent people rather than making the correct decisions as often as humanly possible.
 

exchemist

Veteran Member
You are equating fairness with consistency when the only consistency required is that the judgments be consistently correct. The conscience of an unbiased public would determine that in criminal cases.

In the USA, the public wisely doesn't trust our criminal justice system.

Human acts happen in an almost infinite variety. Criminal acts are not an exception. That's why making laws is a dumb thing to do. Using the act of killing as an example, the attempt is to write an absolute rule to cover every possible future case. It can't be done.

It's not possible. That's why the laws on murder are different in every jurisdiction. There will be cases that fall through the gaps no matter how massive the law.

An expert panel in 2019 can take the actual facts of case XYZ-2107 and render a fair judgment far more consistently than the legislature of some past era who had none of the facts.
"Fair"? Says who, though?

That's the point. You seem to assume everyone in society will meekly agree with the decisions of your panels. They won't. Everyone has a slightly different point of view. And there will be miscarriages of justice from time to time, in this system as in any other. The reason for recording the rationale followed in each decision (you have yet to confirm whether or not you think this should be done) is to enable society to see for itself how decisions were reached and argue it out when there is disagreement.

You will end up with a system of case law, as surely as night follows day. I see no way to avoid it, nor do I think it would be a good idea to try.
 
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joe1776

Well-Known Member
"Fair"? Says who, though?

That's the point. You seem to assume everyone in society will meekly agree with the decisions of your panels. They won't. Everyone has a slightly different point of view. And there will be miscarriages of justice from time to time, in this system as in any other. The reason for recording the rationale followed in each decision (you have yet to confirm whether or not you think this should be done) is to enable society to see for itself how decisions were reached and argue it out when there is disagreement.

You will end up with a system of case law, as surely as night follows day. I see no way to avoid it, nor do I think it would be a god idea to try.

About the attitude of the general public: In the USA, I'm confident that the general public agrees with me that our justice system has never worked well and, in its current format, never will.

I will concede that most people, like you, don't realize that the writing of laws is part of the problem. If told we should abandon law-writing, I can imagine that they would be as dismayed as the citizens of China in 315 BC were when told that the earth was round.

But your argument that our citizens trust the current system is a false premise. They don't. So, your argument that the expert panel process would need to function more like the current failed justice system to be trusted, makes no sense.

In the beginning, the expert panel idea could be tested online with no official authority, with the panel members having discussion and debate just as we're doing here. If the majority votes of the panel members are as sound as I would expect them to be, the general public will be clamoring to give them official status.
 
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exchemist

Veteran Member
About the attitude of the general public: In the USA, I'm confident that the general public agrees with me that our justice system has never worked well and never will.

I will concede that most people, like you, don't realize that the writing of laws is part of the problem. If told we should abandon law-writing, I can imagine that they would be as dismayed as the citizens of China in 315 BC were when told that the earth was round.

But your argument that our citizens trust the current system is a false premise. They don't. So, your argument that the expert panel process would need to function more like the current failed justice system to be trusted, makes no sense.

In the beginning, the expert panel idea could be tried online with no official authority, with the panel members having discussion and debate just as we're doing here. If the majority votes of the panel members are as sound as I would expect them to be, the general public will be clamoring to give them official status.
You are not listening. I have said nothing about people trusting any existing system.

I am pointing out that your proposed system will not be perfect, people will want to challenge decisions and when they do, they will rely on records of past judgements to compare with the judgements they want to challenge.

You still assume everyone will be happy with all the judgments given by your new system. That is extremely naive.

And you still have not confirmed whether or not, in your system, there would be records kept of past judgements. Would there be? Or not?
 

joe1776

Well-Known Member
You are not listening. I have said nothing about people trusting any existing system.
You wrote that people wouldn't trust my system unless it provided case law like the existing system. That makes no sense if people don't trust the existing system therefore your false premise was implied.

I am pointing out that your proposed system will not be perfect, people will want to challenge decisions and when they do, they will rely on records of past judgements to compare with the judgements they want to challenge.
Except on matters of national security, I would expect the discussion and debate of the panels to be online, therefore transparent. Unlike case law, which usually involves legal interpretations, there's no law to discuss. But, past judgments would be available.

You still assume everyone will be happy with all the judgments given by your new system. That is extremely naive.
I don't assume that. I assume most people would be a helluvalot happier with a justice system that works.
 
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exchemist

Veteran Member
You wrote that people wouldn't trust my system unless it provided case law like the existing system. That makes no sense if people don't trust the existing system therefore your false premise was implied.

Except on matters of national security, I would expect the discussion and debate of the panels to be online, therefore transparent. Unlike case law, which usually involves legal interpretations, there's no law to discuss. But, past judgments would be available.

I don't assume that. I assume most people would be a helluvalot happier with a justice system that works.
Can you refer me to the post in which I said people trust the existing system? Because I do not think I have said that anywhere.

I think what I have been saying is that people will need to have records of previous similar judgements available if they are to have trust in the decisions of your panels. And that will mean that the panels will, if they are wise, refer to those previous judgements in coming to decisions. Which means that a system of case law will arise quite naturally.

(As it happens, I think the legal system we have in the UK is fairly well trusted by most of the population - the problems with it seem to be mainly its slowness, cost and perceived inefficiency). I cannot comment on levels of trust in other countries' systems.)
 
It would be nice if this was actually the case. I've worked for companies which would sometimes be faced with the prospect of lawsuits. When determining how much it would cost to defend the suit versus how much it would cost to settle out of court, one doesn't typically know in advance how the case will turn out if it does go to court.

That's true in any situation that isn't pre-judged.

It would be a lot harder if you had no written laws to help evaluate whether or not you had broken the law in the first place though.

The more subjectivity exists, the greater the uncertainty.

Is it really a matter of actual "law" or knowing the law - or is it more a matter of gaming the system?

Written legal codes, particularly regarding regulations, do often encourage gaming the system. Effective defence lawyers do often find technicalities or precedences that they can use in their favour.

There's certainly a very good case for simplifying many aspects of the legal system.
 

joe1776

Well-Known Member
Can you refer me to the post in which I said people trust the existing system? Because I do not think I have said that anywhere
You didn't say it but, by logical deduction, you implied it. I explained that in the first paragraph of the post you quoted. But let's resolve this another way:

If you agree that people don't trust the existing system, why do you think that they would need the equivalent of case law, as in the existing flawed system, in order to trust the decisions of expert panels?

(As it happens, I think the legal system we have in the UK is fairly well trusted by most of the population - the problems with it seem to be mainly its slowness, cost and perceived inefficiency). I cannot comment on levels of trust in other countries' systems.)
It seems obvious to me that the goal of any decision-making system should be to make the correct decisions as consistently as possible. Wouldn't you agree? I also think that the goal of a criminal justice system ought to be to protect innocent citizens from harm. Our system in the USA, which I understand is the same in the UK, sets different goals.

Ours is based on the Blackstone formulation which aims at not convicting the innocent. And while that sounds like a worthy goal, it results in a body of laws that make it difficult to convict the guilty as well -- which undermines the goal of protecting the public as well as the goal of consistently making the correct decisions.

The Blackstone formulation also results in these side effects:

1. A system that doesn't take the criminals off the streets creates vigilantes among its citizens.

2. Law enforcement people and prosecutors feel justified in cheating to get convictions of the people they think are guilty.

3. Amateur juries can be manipulated by sharp lawyers so they can't be trusted to make the right decision.

4. And because juries can't be trusted to make the right decisions, prosecutors can coerce innocent defendants to plead guilty to lesser charges by threatening far more severe charges.

So, ironically, a Blackstone system that begins with the goal of not convicting innocent people often ends with innocent people being coerced to plead guilty while the system undermines the goal of protecting the public.

The Guardian had this article about the UK system back in April.

The UK justice system is in meltdown. When will the government act? | Simon Jenkins
 
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Ours is based on the Blackstone formulation which aims at not convicting the innocent. And while that sounds like a worthy goal, it results in a body of laws that make it difficult to convict the guilty as well -- which undermines the goal of protecting the public as well as the goal of consistently making the correct decisions.

What are your opinions on the integrity of the US Supreme Court (not on the laws they judge)?

Do you believe they fundamentally aim at fair and impartial judgement, or do you believe they are somewhat partisan at times?
 
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