> "forget the law, anything we think is unreasonable is illegal"
That's basically how all Anglo-Saxon (including the US) law, i.e. case law, looks like.
That's basically how all Anglo-Saxon (including the US) law, i.e. case law, looks like.
In the criminal context, we also have the rule of leniety, which holds that ambiguities in criminal laws are resolved in favor of the defendant.
It's unusual to encounter a situation where the law is clear but someone is punished based on vague case law interpretation of the law. I rarely see a situation where I think "the Court just botched interpreting this statute." Almost always, it's "Congress or the agency botched writing this statute or regulation." And in a civil system it's much harder for the courts to fix such problems.
We do have a problem with laws that are themselves unclear, but the Supreme Court has done some weed cleaning in that area. For example, Jeffrey Skilling got a reduced sentence because the Supreme Court found that the honest services fraud statute was unconstitutionally vague unless limited to strict "bribery and kickbacks" theory. In the area of fraud on the government, courts have held that defendants can only be punished for making incorrect statements to the government (for e.g. Medicaire claims) if the falsity of their statements is based on an unreasonable and not merely incorrect interpretation of the underlying regulations.
We also generally have a strong separation between civil suits and criminal suits. People lament that not enough people go to prison in the white collar world, but in my opinion it's a good thing we're not sending people to prison for misunderstanding Treasury or Fed regulations.
This is all nice in theory, but in practice, it's happened multiple times that the (Supreme Court's) interpretation of the same law has changed. Granted, this has happened over decades (or even generations), but this implies that (1) either the definition of what is "reasonable" has changed (I find this unlikely, or else the concept itself has little sense), or (2) there is more wiggle room when interpreting laws...
https://en.wikipedia.org/wiki/Schenck_v._United_States#Subse...
For the amount of love Hayek gets in these circles, I'm surprised there isn't more focus on Law, Legislation and Liberty
I mean that's basically the entire cause of the split in the Supreme Court between strict literalists and those who believe in a living constitution.
Obviously judges have to apply some degree of common sense because English is inherently vague, but the amount that they do it can still trigger political bun fights.
Take, for instance, the establishment in Heller of the right to bear arms as an individual right. Most conservatives believed that to be the case all along, and think it is clear from the wording. However liberal observers were more likely to notice that this interpretation had not appeared in 2 centuries of jurisprudence, and societies of professional historians had long reached the opposite conclusion about original intent.
For another, look at Citizens United which established that corporations had a right to free speech, and therefore could not be restricted from spending on political speech. Conservatives saw this as a straightforward issue of, "I have no actual freedom of speech if I cannot spend money to broadcast it." Liberals noted that this overturned several previous precedents, and the Constitution had never intended corporations to be considered people.
In these and other cases, conservatives don't recognize the creativity of interpretation because the result seems natural and right to them. Liberals do notice.
The same is true going the other way. But liberals do not object to noticing that they have been creative, so are less likely to fail to notice when they have been.