Two Kinds of Laws: Clear and Ambiguous

From David Daube, the renowned scholar of biblical and Roman law, who was a professor at Oxford and Berkeley among other places:

"As regards interpretation, the author of the Rhetoric to Alexander distinguishes between laws which are clear and laws which are ambiguous. I have never come across any of the former kind."

(The quote is from Daube's collected works, volume 4, page 186.)

Comments

[Reallynotbob]

This is a necessary feature of good laws. Laws must be understandable in what they require, but not crafted with technical precision. The legislative process is neither equipped to anticipate all variations of conduct nor fast enough to respond to creative, undesirable, workarounds by the governed.

The goal is justice among the governed and the governors. Justice is notoriously difficult to define ex ante for all circumstances. The application of laws to promote justice must also be adaptable. That's the proper function of judges, not merely to read but to interpret with the benefit of human understanding and shared cultural values.

[DaivdBehar]

Heck, no. Ambiguity is necessary to generate procedure and lawyer income. It is a form of fraud and rent seeking.

If you seek justice, it is not hard. Justice is utility.

[DaivdBehar]

Utility leads to addressing the person. A murderer may go home, if the victim was toxic, and we are all better off after his death. Give the convicted murderer a money reward. A shoplifter gets the death penalty if he is really a drug kingpin and serial killer of hundreds of people.

[DaivdBehar]

Thank Justice Kennedy for AIDS, and now, the monkeypox. Very painful. You have to swab every lesion and wait 2 days for the result.

[Reallynotbob]

Ah-- "was toxic" is a capital offense? Since you hate lawyers so much, perhaps we let Facebook users vote on other people's "toxicity"? Anyone found by the masses to be "toxic" may be executed for a satisfying bounty. What an elegant cure for civilization, Mr. Behar.

[DaivdBehar]

Bob. I support the rule of law. The lawyer profession is in utter failure of every self stated goal of every law subject. That self dealing, rent seeking, thievin' profession must be crushed to establish the rule of law, an essential utility service for civilization. The lawyer profession is just the Mafia. Eradicate its toxic hierarchy. If the public is oppressed, the lawyer is doubly oppressed, the street judge triply so. All sides would be liberated and thrive.

[DaivdBehar]

The legal system can determine guilt. Sentencing by the executive branch should address the person. They have that ability. Then hold it accountable for wrongful sentencing and for failure to protect the public. Use standards of professional due care, not strict liability. Sentencing satisfies the elements of strict liability, but government would be wiped out by the mistakes of these dunderheads. Let them buy insurance.

[Flight-ER-Doc]

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.”

Ayn Rand - Atlas Shrugged

[DaivdBehar]

Correct. If you have a job, you are committing 3 felonies a day.

https://www.amazon.com/exec/obidos/ASIN/B00505UZ4G/reasonmagazinea-20/

[Flight-ER-Doc]

A frightening book

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You are arguing for unlimited government control of everything and everybody, with a fig leaf of malleable laws to disguise rule by men.

[MatthewSlyfield]

The rule of law is a nice ideal on paper.

In practice, it turns out to be impossible.

It is impossible to write laws in any human language that are entirely devoid of ambiguity.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There are a ton of ideals in this world, in fact I'd wager just about everything. Is that reason to have no ideals?

More pretense; ooohh, ideals are impossible, let's write laws as ambiguously as possible so governments can do whatever they want while pretending to obey laws.

Why do you think dictators go to so much trouble to have rubber stamp legislators and show trials? Because they too want the fig leaf of rule by laws.

No, no, no.

[MatthewSlyfield]

"There are a ton of ideals in this world, in fact I'd wager just about everything. Is that reason to have no ideals?"

Nothing I said remotely implies that ideals generally are impossible, just this one particular ideal.

"let's write laws as ambiguously as possible"

I never said or implied that ambiguity should be deliberately maximized.

However, even if all reasonable effort is made to minimize ambiguity in the law, you still don't achieve "rule of law" as you defined it above.

[Reallynotbob]

Rule by (hu)men(s) is the object, is it not? The alternative tends to be violent and desperate. Just rule is not the same as autocracy.

[JimM47]

That's a great quote! Thanks for post it.

Whenever I see a court take a case to determine what a law says, and then respond by saying that the law is unambiguous, I think, "If you have to say that a law is unambiguous, it isn't." In normal life, a law is unambiguous if it requires no explanation. To a court, a law is "unambiguous" if the court provides no explanation.

Some textualists seem to think that enforcing a rule that we don't bring in outside knowledge when a statute is "unambiguous" will deny power to non-textualists judges who might try to interpret laws in bad faith. But it seems to me that a bad-faith judge gets as much or more power from a rule says that that simply calling a statute "unambiguous" is enough to impose your preferred reading, ipse dixit, with no real explanation.

[JimM47]

*posting

[WuzYoungOnceToo]

"If you have to say that a law is unambiguous, it isn't."

That sounds like bumper sticker "wisdom" to me. It's not like courts don't have to occasionally step in and correct some entity that has either misinterpreted (due to ignorance/stupidity) or intentionally ignored (due to malice) the clear and unambiguous language of a statute.

[Reallynotbob]

You both make reasonable points. I believe the ordinary example of "unambiguity" is when a party who has no good defense offers a tortured reading of the law. It might be more precise to say the court finds a law "not ambiguous enough to encompass the party's suggested reading."

[JimM47]

When a statute is unambiguous in the ordinary sense of that word, courts can, and do, respond by simply quoting the statute. A truly unambiguous statute speaks for itself.

When a statute isn't unambiguous in the ordinary sense of the word, a court will engage in statutory interpretation. It may cite the rule that statutes which are unambiguous, in the technical sense of the word, must be construed according to their plain meaning. It's even likely that this rule is correct and should apply.

But just because a statute isn't ambiguous enough to justify departing from its plain meaning, it doesn't mean that it isn't ambiguous enough to justify a court's failure to explain (1) why it isn't ambiguous enough, or (2) why that meaning is the plain meaning.

[WuzYoungOnceToo]

When a statute is unambiguous in the ordinary sense of that word, courts can, and do, respond by simply quoting the statute. A truly unambiguous statute speaks for itself.

They also can, and do respond by also explicitly pointing out the absence of ambiguity, for the very reasons that I already pointed out...and that you appear to be ignoring. Just because something is patently obvious doesn't mean that some people don't need that to be pointed out to them.

[JimM47]

I said "Whenever I see a court take a case to determine what a law says, and then respond by saying that the law is unambiguous, I think, "'If you have to say that a law is unambiguous, it isn't.'" (emphasis added).

You said "you appear to be ignoring" that "[j]ust because something is patently obvious doesn't mean that some people don't need that to be pointed out to them."

As a rule, courts with the power of discretionary review do not exercise that review in order to point out the patently obvious.

[David Nieporent]

To a court, a law is "unambiguous" if the court provides no explanation.

How exactly would one "explain" that a statute is unambiguous? One can easily explain that a statute is ambiguous: provide several plausible ways to interpret it. But how does one do the opposite?

[JimM47]

How exactly would one "explain" that a statute is unambiguous?

My contention is that a court should explain why the words of the statute mean what the court says they mean, even though someone made (and perhaps other members of the court are making) the argument that they mean something else.

Lets say party A offers a plausible argument that the statute means X, while party B offers a plausible argument that the statute means Y. The court says 'we pick X over Y because the statute is unambiguous.' My contention is that if the Court is able to do more than just say "unambiguous!" it should.

Can the court explain why construction X is consistent with common linguistic usage? Maybe it should do that. Can the court explain why construction X remedies the mischief sought to be addressed? Maybe it should do that. Can the court explain why construction X makes more sense in the context of the surrounding law, be it the common law, other statutes, or constitutional law? Maybe it should do that. Can the court explain why construction X is consistent with the understanding publicly expressed by the enactors? Maybe it should do that. Conversely, can the Court explain why construction Y fails these metrics in some way? Maybe it should do that.

I am not saying that any particular one of these things has to be done in any given case. But my very strong sense is that one or more of these types of considerations play into the actual reasons a judge determines that a statute unambiguously means one thing or the other. And if they do, then I think the judge should be transparent about the sources of his or her intuitions. Doing that helps the reader to feel that the court couldn't have just said "unambiguous!" and announced that the other reading of the statute was the correct one.

Instead, I see too many judges pretend that if you even mention any of these things, then you are opening the door to have the will of some judge trump the text of a law anytime any one of these factors doesn't perfectly support the plain meaning of the text.

[Ruqt]

Always clear, not only "when children present?"

[Bored Lawyer]

Neither are accurate, in my experience. Laws can be clear in one situation and not clear in another.

The 14th Amendment clearly was intended and means that blacks are to be given equal legal status as whites.

Not clear whether it relates to other differences.

[DaivdBehar]

That is clear, the word in the Fourteenth Amendment is, person. Are females not persons, by the dictionary definition? A person is a human individual. Are females either not human or not individual? The lawyer lied, and said the Amendment applied to blacks only. A lie.

[SRG]

Are corporations, as fictitious persons, "persons" within the meaning of the amendment?

[Reallynotbob]

What would make it more clear? Perhaps using a more encompassing word like "citizen" or "person"? You should suggest that!

[Leo Marvin]

Had Daube for two classes: Roman Law and Law of the Talmud. Did my writing requirement for him. Brilliant and a real character.

[Sarcastr0]

Language is good stuff.

Not perfectible when it comes to clear conveyance of ideas, though. Especially English.

But that doesn't stop lawyers and lawmakers from giving it a try!

[The Turtle Dove]

Almost every law made by the Congress is absolutely clear. What to do about the fact of its existence, well, that's another question.

Mr. D.