Acts of Terrorism megathread

[Syt]

That is not true, though. Many laws contain language that allows for leeway. Dunno about English language laws, but German laws have phrases like
- soll (should/shall)
- kann (can/may)
- regelmäßig (in general)
etc.

And it can be up to the person implementing the law (often a public admin person) to call which applies. The laws often give some ideas of what exceptions might be (e.g. "vor allem" or "insbesondere" = especially), plus there are guidelines from higher up, legal commentary, and, eventually, court decisions.

The advantage of such language is that it often requires less updating than a black/white law when views and general consensus change.

Obviously, much of the law is black and white, but there are significant fuzzy areas.

[Sheilbh]

He didn't say a black and white legal system. He said black and white LAWS. Vague arbitrary laws, where there actual meaning and legality of an action is not clear to the common people, would result in a simple and just legal system in your book?

No. The laws are black and white. It is their application where all the discretion and fuzziness comes from. If the laws were also vague and arbitrary then I think you would have a very unjust and complicated system indeed.

Okay - I'm not sure I agree I think laws are almost always a bit fuzzy. That isn't vague and arbitrary, it's because they are subject to interpretation by the courts and the meaning of words is not fixed and as Syt says include words that are not always entirely clear diktats. I think there's a huge difference between not black and white and vague and arbitrary - because to me a black and white legal system is arbitrary, it's got no justice in it. And ultimately people don't follow laws because they've read the laws - I don't think that's necessary or important for fairness, they are technical manuals really.

I'd also add that most of the work I do is basically derived from European law which is based on civil law systems and it is - to English eyes - incredibly vague (and to American eyes English legal is probably incredibly vague). This isn't criminal law, but it is almost all principles based so you set out general principles which it's then up to you to apply and there may be some clear requirements but a lot of it will be around taking measures that are "appropriate" or "proportionate" or "necessary" which are not clear words.

[Barrister]

He didn't say a black and white legal system. He said black and white LAWS. Vague arbitrary laws, where there actual meaning and legality of an action is not clear to the common people, would result in a simple and just legal system in your book?

No. The laws are black and white. It is their application where all the discretion and fuzziness comes from. If the laws were also vague and arbitrary then I think you would have a very unjust and complicated system indeed.

It's a very old debate in the legal world between having predictable results versus having a system that can take all the circumstances into account.

Let me give you just a couple of examples that come to mind.  Both are from Canadian law, because this is Languish and the Canadian lawyer cabal rules all.

If you get divorced and you have kids child support is incredibly black and white.  You look up how much money you make, cross-reference how many kids you have and bam that's how much child support you have to pay.  As a lawyer it makes settlement incredibly easy - no one can fight over child support because the chart rules all.  But it also can't take into account any special circumstances.  For example it doesn't take into account  that you might also be paying child support for different kids with a different partner.  It doesn't take into account whether your partner needs the money. **

Now in a totally different circumstance, the law of self-defence.  The law was re-written several years ago.  It now reads you can use force to defend yourself if the force used is "reasonable in the circumstances".  How can you tell if something is reasonable in the circumstances?  Well the law tells you 9 different things to consider (and specifies that is not an exhaustive list).  So now this law is incredibly flexible - you can consider all kinds of factors.  But as a trial lawyer that makes it incredibly unpredictable - I have no idea what any one judge will find to be reasonable or not.  Which leads to more litigation.


*** For any legal pedants out there - child support applies if you have the children 40% of the time or less.  If you go over 40% then there is off-setting child support.  There is also some discretion in ordering additional child support for exceptional expenses, but nothing that will get you under the table amount.

[DGuller]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

[Zanza]

That is not true, though. Many laws contain language that allows for leeway. Dunno about English language laws, but German laws have phrases like
- soll (should/shall)
- kann (can/may)
- regelmäßig (in general)
etc.

And it can be up to the person implementing the law (often a public admin person) to call which applies. The laws often give some ideas of what exceptions might be (e.g. "vor allem" or "insbesondere" = especially), plus there are guidelines from higher up, legal commentary, and, eventually, court decisions.

The advantage of such language is that it often requires less updating than a black/white law when views and general consensus change.

Obviously, much of the law is black and white, but there are significant fuzzy areas.

And of course there is the Verhältnismäßigkeitsprinzip. 

[Barrister]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

[DGuller]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

If it's important enough, the public will know.  The point is that there is an obvious decision there to be scrutinized.  It's hard to scrutinize how the cop decides which cars with a busted tail light he's going to pull over.

[crazy canuck]

I don't think that was Duque's point.  The But Brigade isn't suggesting free speech should be limited by the widely recognized limits imposed by law.  They are suggesting limits that you are, that one must be concerned about causing insult etc.

But f speech was never offensive we would not need a concept such as freedom of speech.  Simple put, freedom of speech exists to protect speech which is offensive.

In other words everyone is in the "but brigade". Everyone puts a line for what is acceptable somewhere. There is no stark division between those who have an absolute belief in free speech and those who oppose this. Rather we all have different nuanced ideas of exactly where the line is.

No, and I think I can see now where the disconnect is.  You think freedom of expression is the freedom to say anything.  It isn't.  Freedom of expression has its own internal constraints.  The But Brigade, and you apparently, would like to put even more constraints on so as to make free speech less offensive.

If it's important enough, the public will know.  The point is that there is an obvious decision there to be scrutinized.  It's hard to scrutinize how the cop decides which cars with a busted tail light he's going to pull over.

That would be a neat trick.  When you figure out why BB, for example, has decided not to prosecute a case, let me know your secret.

[grumbler]

There's a simple "But brigade" test for Ty r and his ilk:  "if someone believes that something is true, even if it isn't, should there be any moral or legal impediment to them saying it?"

If they say "no," they are not members.  They believe in free speech.

If they say, "no, but..." then they are members.

If they say "yes," then they are not members, but rather simple free speech deniers.

If someone does not believe something is true, or it is incitement to violence, it isn't protected by free speech rights at all, so the case does not apply.

[Valmy]

He didn't say a black and white legal system. He said black and white LAWS. Vague arbitrary laws, where there actual meaning and legality of an action is not clear to the common people, would result in a simple and just legal system in your book?

No. The laws are black and white. It is their application where all the discretion and fuzziness comes from. If the laws were also vague and arbitrary then I think you would have a very unjust and complicated system indeed.

It's a very old debate in the legal world between having predictable results versus having a system that can take all the circumstances into account.

Let me give you just a couple of examples that come to mind.  Both are from Canadian law, because this is Languish and the Canadian lawyer cabal rules all.

If you get divorced and you have kids child support is incredibly black and white.  You look up how much money you make, cross-reference how many kids you have and bam that's how much child support you have to pay.  As a lawyer it makes settlement incredibly easy - no one can fight over child support because the chart rules all.  But it also can't take into account any special circumstances.  For example it doesn't take into account  that you might also be paying child support for different kids with a different partner.  It doesn't take into account whether your partner needs the money. **

Now in a totally different circumstance, the law of self-defence.  The law was re-written several years ago.  It now reads you can use force to defend yourself if the force used is "reasonable in the circumstances".  How can you tell if something is reasonable in the circumstances?  Well the law tells you 9 different things to consider (and specifies that is not an exhaustive list).  So now this law is incredibly flexible - you can consider all kinds of factors.  But as a trial lawyer that makes it incredibly unpredictable - I have no idea what any one judge will find to be reasonable or not.  Which leads to more litigation.


*** For any legal pedants out there - child support applies if you have the children 40% of the time or less.  If you go over 40% then there is off-setting child support.  There is also some discretion in ordering additional child support for exceptional expenses, but nothing that will get you under the table amount.

I am well aware that there is a lot of haggling over the terms and meanings and definitions and what constitutes "Reasonable" and all that. That is exactly what I was referring to.

The law however clearly intends that self defense be legal. That is black and white. What exactly is reasonable in its application is where it gets gray.

But if the law itself was unclear as to whether self defense is legal and the law itself was not black and white well then it wouldn't even be gray. It would just be a big morass of baffling unclear non-transparent arbitrariness.

[viper37]

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

but there's a written trace of your explanations.  If a particular case comes to the attention of the opposition in the Commons, I guess the Minister could ask his department for explanations?  And if there are suspicisions of criminal corruption or of any kind of political pressure, than these documents can be used to investigate or do they have to remain confidential? 

Ex: Let's say the minister of justice is accused of calling a prosecutor to let a friend of the party go, could he reveal, in a justice committee, the reasons why this person/company was not prosecuted, and exonerate itself?

[crazy canuck]

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

but there's a written trace of your explanations.  If a particular case comes to the attention of the opposition in the Commons, I guess the Minister could ask his department for explanations?  And if there are suspicisions of criminal corruption or of any kind of political pressure, than these documents can be used to investigate or do they have to remain confidential? 

Ex: Let's say the minister of justice is accused of calling a prosecutor to let a friend of the party go, could he reveal, in a justice committee, the reasons why this person/company was not prosecuted, and exonerate itself?

I would hope the answer BB would give in this hypothetical is a refresher course on prosecutorial independence for the idiot who convened such a committee.

[The Brain]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

What's the mechanism for independent review of your discretion?

[crazy canuck]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

What's the mechanism for independent review of your discretion?

If you reread his post, you will see his answer.

[Josquius]

No, and I think I can see now where the disconnect is.  You think freedom of expression is the freedom to say anything.  It isn't.  Freedom of expression has its own internal constraints.  The But Brigade, and you apparently, would like to put even more constraints on so as to make free speech less offensive.

That sounds pretty selective to me- basically free speech is the right to say anything.... Except the things we have decided are absolutely unacceptable to say. And anyone who draws this line in the slightest bit stricter place to us is an opponent of free speech (but not us).

The only sensible way to look at it is that free speech is absolute. Yelling fire in a crowded theatre, screaming death to America, this is all free speech. Everybody but the most radical of libertarians/anarchists then draws a line (maybe a fuzzy one) somewhere for what is acceptable and what not.