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

[Martinus]

I think Raz may be on to something, nonetheless. For example, many American posters think in terms of a "living law" theory, formulated by Dworkin who said that law is "what lawyers and judges do". Plea bargains, ordinary judges striking down laws as unconstitutional, a high level of discretion given to prosecutors whether to bring charges against someone - this all seems quite normal to Americans, but make me positively cringe as a European/continental lawyer.

[ulmont]

I think Raz may be on to something, nonetheless. For example, many American posters think in terms of a "living law" theory, formulated by Dworkin who said that law is "what lawyers and judges do".

Well, yes.  The whole point of advising a client regarding the law is to tell them what a judge/jury would likely do, after all.

Plea bargains, ordinary judges striking down laws as unconstitutional, a high level of discretion given to prosecutors whether to bring charges against someone - this all seems quite normal to Americans, but make me positively cringe as a European/continental lawyer.

You do know Poland has plea bargains?  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917922

And the ordinary judges are just the first step in the process of declaring a law unconstitutional, which often ends up at the US Supreme Court (which might as well be considered a Constitutional Tribunal).

I think you're exaggerating the differences.

[Barrister]

Because your statement is a dead-end in terms of discussion -- you're just stating your opinion. 

This is actually a very insightful post.

Now I've never said to Marty "are you sre you're a lawyer", because I know he is.  But I don't find debates about what the law should be to be all that interesting.  BY now I know what everyone's ideal policies and politics are, and there's no point in debating them.

But a lot of very interesting legal debates or legal issues do come up.  I like debating those.  But I find it utterly pointless for someone to then chime in and argue from first principles about how the government shouldn't be involved at all (to take just one example).

[ulmont]

But I don't find debates about what the law should be to be all that interesting.

[Berkut]

Funny, I am the opposite - I find debates on what the law should be vastly more interesting than arguing over the implications of what it actually is.

How can anyone say that the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by others?

Perhaps this is the very definition of the "conservative".

[ulmont]

How can anyone say that the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by others?

You just open your mouth and words come out.  It's easy; took me less than 10 seconds to say "the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by other."

More basically, though, as Barrister and CCR pointed out, the chances you're going to change someone else's mind on what the fundamental rules by which we organize our society should be are low, leaving you only the options of agreeing to disagree or fighting (the latter somewhat difficult to bring to a satisfactory conclusion via the Internet). 

Perhaps this is the very definition of the "conservative".

Considering Barrister was on the other side of this argument from you, I doubt it.

[Martinus]

I think Raz may be on to something, nonetheless. For example, many American posters think in terms of a "living law" theory, formulated by Dworkin who said that law is "what lawyers and judges do".

Well, yes.  The whole point of advising a client regarding the law is to tell them what a judge/jury would likely do, after all.

Plea bargains, ordinary judges striking down laws as unconstitutional, a high level of discretion given to prosecutors whether to bring charges against someone - this all seems quite normal to Americans, but make me positively cringe as a European/continental lawyer.

You do know Poland has plea bargains?  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917922

And the ordinary judges are just the first step in the process of declaring a law unconstitutional, which often ends up at the US Supreme Court (which might as well be considered a Constitutional Tribunal).

I think you're exaggerating the differences.

Plea bargains are very rare in Poland and there is very little discretion in them. They are also a fairly recent introduction to Polish legal system and many people oppose them as an offense against justice and fairness.

Also about the point of advising - this is another cultural thing. In fact, some continental lawyers, especially in Germany, see it as beneath their dignity to advise a client what a court is likely to do - their opinions are perfect academic dissertations on what the law SAYS based on fairly formal interpretation tools.

[Caliga]

Now I've never said to Marty "are you sre you're a lawyer", because I know he is. 

Yeah.  I really wish those ad homs would stop.  At the very least, they add NOTHING to any thread in which they are continually brought up and flung against him.

[Berkut]

Now I've never said to Marty "are you sre you're a lawyer", because I know he is. 

Yeah.  I really wish those ad homs would stop.  At the very least, they add NOTHING to any thread in which they are continually brought up and flung against him.

While this is certainly true, Marty is the very last (well, maybe second to last) person to complain about nasty personal comments directed at him in lie of actual arguments.

[grumbler]

Funny, I am the opposite - I find debates on what the law should be vastly more interesting than arguing over the implications of what it actually is.

How can anyone say that the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by others?

I agree.  Laws are much less interesting than the principals that those laws are supposed to embody. 

I suppose lawyers are more interested in the law than the theory of the law, because nobody pays them (unless they are professors) to address the theory of the law. 

[MadImmortalMan]

Funny, I am the opposite - I find debates on what the law should be vastly more interesting than arguing over the implications of what it actually is.

How can anyone say that the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by others?

Perhaps this is the very definition of the "conservative".

Beeb's job is to uphold the current law. His understanding of them and his training in what they are is the reason he's good at his job. What the law currently says is basically what he does with his life. So, yeah, it's not that surprising that it interests him more than what the law hypothetically should be. He's got an interest in the status quo. (I don't mean that pejoratively.)

[grumbler]

More basically, though, as Barrister and CCR pointed out, the chances you're going to change someone else's mind on what the fundamental rules by which we organize our society should be are low, leaving you only the options of agreeing to disagree or fighting (the latter somewhat difficult to bring to a satisfactory conclusion via the Internet). 

It is easier to convince someone what the law should say than what it does say. 

If success in convincing is your measure of achievement, though, you are probably in the wrong forum. 

[Barrister]

While this is certainly true, Marty is the very last (well, maybe second to last) person to complain about nasty personal comments directed at him in lie of actual arguments.

This is true.

[Caliga]

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.

Here is an example that I think is relatively 'clean' and worth bringing up.

I recall a thread about illegal immigration from like six months back where the US govt. was going to deport some Mexican kid who'd lived in the US for virtually his entire life.  I think Marti started the thread and basically stated it was horrifying.

You and I both responded that, while it was a horrible situation, the law is the law and until such time as the law is changed the kid needed to be deported.  I think I used the same thread to voice my objection to our immigration laws--which I personally think are much too restrictive.  I would be in favor of a virtually open border with Mexico.  But until such time as we have that law changed, the government is obligated to act on the law as written.

The problem with "what the law should be" lines of reasoning is that they lead to selective law enforcement, which basically leads to a breakdown of public order.  If the public decides that it now hates an existing law, that's great, and there's a clear process to follow in order to change it.

[Martinus]

Funny, I am the opposite - I find debates on what the law should be vastly more interesting than arguing over the implications of what it actually is.

How can anyone say that the fundamental rules by which we organize our society are uninteresting, or even less interesting, than the details about how we apply the laws put down by others?

Perhaps this is the very definition of the "conservative".

I guess I'm with Berkut on this one. I know what the law is, and I find a lot of it fairly stupid.

I guess I follow in the footsteps of other lawyers, such as Robespierre or Lenin, in my reformatory zeal.