Law: Understanding the difference between what the law is and what it should be

[Martinus]

Ok, so I decided to make this thread because frankly sometimes I feel like I'm running into a wall, especially with some American posters. I don't know if this is because they are particularly dense, or this is some aspect of American mentality I just can't seem to get around.

Anyway, the deal is.

When talking about law, you can be talking about what the law is (this is the so called argument de lege lata) or you could be talking about what the law should be (this is the so called argument de lege ferenda). Often, when I postulate something de lege ferenda I meet with a response that obviously I don't know what the law is because this is not what the law really is - this response is obviously quite orthogonal to the statement I am making, so it leaves me obviously quite puzzled and perplexed.

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

What gives?

[Valmy]

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

What gives?

They don't like you and are trolling you?

[Razgovory]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

[Martinus]

The recent example is the sex offender thread.

I said that I don't think people who have sex with a minor while they are themselves minors should be convicted for sexual offences. This is quite obviously a de lege ferenda statement, i.e. that I think that's how law should be constructed.

But to this I get offensive and insulting responses from Berkut and Strix, stating that obviously I'm a shitty lawyer because (I assume, since they do not go into detail why the think so) that's not how the law really is.

[Martinus]

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

What gives?

They don't like you and are trolling you?

Oh ok. 

[Valmy]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

Yeah that is not it.  Marty will say something like 'the law should say 'X' and it sucks that is says 'Y'"

and then somebody will respond like 'Are you sure you are a lawyer?  You suck!'

Which I don't get really...we can change laws from 'X' to 'Y' just fine in Common Law systems.

[Berkut]

The recent example is the sex offender thread.

I said that I don't think people who have sex with a minor while they are themselves minors should be convicted for sexual offences. This is quite obviously a de lege ferenda statement, i.e. that I think that's how law should be constructed.

But to this I get offensive and insulting responses from Berkut and Strix, stating that obviously I'm a shitty lawyer because (I assume, since they do not go into detail why the think so) that's not how the law really is.

Is it ferengi or latta law when you flat out lie about what people say in other threads?

[Berkut]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

Yeah that is not it.  Marty will say something like 'the law should say 'X' and it sucks that is says 'Y'"

Except in this case, that isn't at all what he said.

He said someone should not be convicted of something, even though it was illegal. Didn't say a word about changing any laws, or that the law should say X instead of Y.

[Martinus]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

Yeah that is not it.  Marty will say something like 'the law should say 'X' and it sucks that is says 'Y'"

Except in this case, that isn't at all what he said.

He said someone should not be convicted of something, even though it was illegal. Didn't say a word about changing any laws, or that the law should say X instead of Y.

No I didn't say this. Maybe my post was ambiguous, but my intention was to say that I don't think a situation like this should be illegal.

[ulmont]

When talking about law, you can be talking about what the law is (this is the so called argument de lege lata) or you could be talking about what the law should be (this is the so called argument de lege ferenda). Often, when I postulate something de lege ferenda I meet with a response that obviously I don't know what the law is because this is not what the law really is - this response is obviously quite orthogonal to the statement I am making, so it leaves me obviously quite puzzled and perplexed.

I find that one has to be extremely explicit as to when you are postulating something.

The ferenda / lata distinction *should* come up a lot in arguments about American Constitutional Law, but people have a regrettable tendency to argue as if their particular beliefs were the law.  Reading screeds on the Commerce Clause or the 10th Amendment may have poisoned this well.

[Berkut]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

Yeah that is not it.  Marty will say something like 'the law should say 'X' and it sucks that is says 'Y'"

Except in this case, that isn't at all what he said.

He said someone should not be convicted of something, even though it was illegal. Didn't say a word about changing any laws, or that the law should say X instead of Y.

No I didn't say this. Maybe my post was ambiguous, but my intention was to say that I don't think a situation like this should be illegal.

I know - to be honest, my post in that thread really was some mild trolling of you. I know what you meant.

I could just tell that Strix was getting to you, so I took the cheap shot. Mea Culpa. Sometimes you are just too easy to resist.

[C.C.R.]

The recent example is the sex offender thread.

I said that I don't think people who have sex with a minor while they are themselves minors should be convicted for sexual offences. This is quite obviously a de lege ferenda statement, i.e. that I think that's how law should be constructed.

But to this I get offensive and insulting responses from Berkut and Strix, stating that obviously I'm a shitty lawyer because (I assume, since they do not go into detail why the think so) that's not how the law really is.

Because your statement is a dead-end in terms of discussion -- you're just stating your opinion.  In my opinion, it should be legal for me to rip the arms off of my daughters' dates & beat the boys silly if I feel that They Cross The Line.  There is of course no direct counter to my opinion because, like, it's only my opinion, Man, so the only courses to take in furthering any kind of conversation along those lines would be:

1)  Try to sincerely change my opinion, which would be a waste of time because pretty much everybody here would understand that I'm at best exagerating & at worst trolling, or

2)  Point out that it is patently illegal for me to rip the arms off of my daughters' dates & beat the boys silly, and then put the onus on me to make a case as to why I think that the status quo should be changed to allow such behavior to be illegal

It's not so much that people don't understand that you're positing your opinion, it's just that they don't care & it's more fun to rip on you...

[Razgovory]

Maybe cause we Americans come from the Common Law tradition and you come from the Roman Law tradition?

Yeah that is not it.  Marty will say something like 'the law should say 'X' and it sucks that is says 'Y'"

and then somebody will respond like 'Are you sure you are a lawyer?  You suck!'

Which I don't get really...we can change laws from 'X' to 'Y' just fine in Common Law systems.

You sure?  His opening post reflects more Civil law thinking then Common Law.

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

In Common law countries it's more usual for the judges to modify the law by precedent rather then having the legislature do so.

[grumbler]

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

What gives?

You make lots of statements like "this would never happen in Poland" when it obviously would.  You then claim that you are referring to hypothetical laws that don't actually exist, and blaming others for responding to your statement according to the words you use, rather than what you later claim you meant.

What gives?

[ulmont]

You sure?  His opening post reflects more Civil law thinking then Common Law.

In Common law countries it's more usual for the judges to modify the law by precedent rather then having the legislature do so.

It is rare for judges to broadly "modify" the law in the US.  It is common for judges to read a law narrowly to avoid a constitutional problem, to strike a law down because of a constitutional problem, or to interpret an ambiguous provision, but "modifying" doesn't happen a lot, and legislatures pass laws all the time.