Comment by Xylakant | Hacker News Reader

Comment by Xylakant | Hacker News Reader

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While civil law operates in a different manner than common law systems, the premise of the GP post still holds: Laws are not black and white and courts/judges have to interpret how the law applies to the case at hand.

A similar process to the case that the GP laid out has been happening in Germany: Same-sex couples have sued under the non-discrimination clauses of the constitution for equal treatment when it comes to marriage, adoption rights, tax treatment etc. When the constitution was written, gay sex was explicitly outlawed, so it’s pretty clear that the authors of the constitution did not want to protect same-sex marriage. But societies opinion on what constitutes “normal” marriages has changed, and so have the courts decisions.

Sometimes these decisions then require a new law to be passed, unlike British Law systems where AFAIK, the high court decisions more or less become law.

I’d be surprised if that was fundamentally different in any other country.

>Laws are not black and white and courts/judges have to interpret how the law applies

Kinda but not really. Jurisprudence is not the primary source of law in civilian countries; generally civil codes are. Additionally, civilian jurisdictions often treat legal scholar analysis as equally or more persuasive than previous case-law.

So this portion:

>New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time.

Isn't accurate. Courts are bound to apply the law, and most law presented in civil codes is far more rigid and mechanical than those found in common law jurisdictions. In the civilian tradition the proper avenue for reform isn't a judge writing a new rule in a ruling. It's a legal reform project at the legislative level, where legislators and legal scholars go over the code, eventually resulting in a new version.

Are there going to be controversial cases that end up getting emergency legislative attention? Sure, but they're the exception, not the rule.

That said, there are over 150 countries that operate broadly under the civil law tradition, so while what I'm saying is accurate about the tradition as a whole, there are many exceptions on a jurisdictional basis.

Cicil law courts are bound to apply the law and certainly don't have the right to rewrite the law in most cases (the german constitutional court for example has the power to undo laws), but they still need to interpret the words of the law and the meaning of those words changes over time. For example the anti discrimination laws would as long as maybe 30 years ago never have encompassed discrimination for LGBTQ* people. The laws have not changes substantially, but the interpretation of those words has definitely changed and as such, rulings that were not possible then are standard now. Very often, rulings do have a law-like quality - even if strictly speaking, they are not laws. From the top of my head I can cite one example from the road laws in germany: There's a thing called "Bicylcle roads" and the legal scripture (Straßenverkehrsordnung) says that cars are required to maintain a "suitable speed." A single influential court decision pegged that to 30km/h about a decade or so ago - which has finally been fed back into the legal text this year.

So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.

Just a nitpick, but the constitutional court doesn't have the power to rewrite the law either. The only thing it can do is declare a certain law unconstitutional (because legally, the constitution always trumps individual laws) and then the ball is back in the court of the legislative branch which may repeal or amend the law.

The constitutional court can declare laws Or parts of laws as not applicable and can require laws to be made and in specific cases it’s decisions are equivalent to a law (mostly regarding disputes which law applies, state vs. federal law, where certain responsibilities lie and in cases where the constitutional court decides that a law violates the constitution and is immediately declared void.) §31 BVerGG would be the applicable paragraph. There a nice summary in English on the courts own page https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtig...

Edit: added reference to the court page.

At least in my country the law that is ruled unconstitional loses it's power immediately, unless the constitutonal court itself grants some grace period. The thing is: constitutional court can't by itself decide which laws to start analysing next, there must be some formal complaint by either the President, group of members of parliament, or several other institutions, including IIRC any complaint signed by at least 100k citizens.

I’d say that laws are closer to source code than bytecode. Because, like source code you can read them, edit them without converting to any other representation.

Laws’ flexibility and interpretation comes from the ambigiuity of human languages and a need to adapt to circumstances.

The legal scholars recognized for a long time that you cannot predict and regulate every case, therefore laws generally set out principles you can fall back on, if you cannot find a specific regulation.

Therefore law is more like an ambigious declarative language with lots of undefined behaviour :). There are some agreed upon language standards and each lawyer/judge can interpret it.

As with source code, you include definitons, declarations, link documents. There are race conditions between legal texts. There is poorly written code and well written code.

For me the most obvious difference is that laws are computed and operated through people. As computers can’t interpret the sources, we have to. It is slow, error-prone but essentialy the same thing.

First step to improve this would be to publish all laws in a computer readable and parseable form. It saddens me that in my country amendments to laws are published in an official gazette as low-res formatted images.

It looks like the Council of DC is taking some steps in this direction, with XML representations of their statutes and codes available on GitHub:

https://github.com/DCCouncil/dc-law-xml

And they do accept[1] pull requests apparently!

[1] - https://arstechnica.com/tech-policy/2018/11/how-i-changed-th...

This is incredible! Uploading all legislation to a repository and declaring it as the authoritative version is the way to go to enable progress.

In Turkey, judges and prosecutors have access to a digital law database, but citizens and lawyers don’t. However, laws continue to be published in an online gazette. Most amendments, decrees etc. are published as low-res images. You cannot search them. The government doesn’t even bother publishing the full amendment text. They only state sentences like: “The second word on the sixteenth paragraph of the law numbered X was amended as Y.”.

To find out about the amendment, you open the legislation, follow the instructions to get the latest version.

There are third party publishers who follow these changes and sell memberships where you can see the latest code. The layman has to wait until the government publishes the text (unofficialy) and cannot do comparisons.

It is a real mess. But the government here doesn’t want people to notice the changes, that’s why they bury these in small print. Public officials know the law, citizens have to work hard to get the latest text.

I had law professors in college, who checked the legislation with printed copies of the state newspaper against the published version, because they were sceptical of the government’s unofficial legislation site. They suspected that the government may have been altering these texts. The constitution only protects the integrity of the text published in the official state newspaper. But as most people don’t have any other source these become the authoritive one.

It’s really sickening. If there were a standardized format for all legislation (including the drafts), we could search easily, make comparisons easily etc.

Agreed, it could be much better worldwide.

I'm a layperson certainly, but my understanding is that a lot of legal systems were/are intended in principle to be structured so that they are open to the public (in terms of access) so that they gain credibility and support from the communities they serve, and so that injustices can be debated and corrected.

Regardless of what tech companies themselves aim to achieve, I think that software engineers on the ground tend to believe that making languages easier to understand, making codebases clearer and simpler, providing better tools to access and subscribe to changes and releases, and automatically spot problems (like the integrity issue you mention) are all beneficial.

I believe we'll see more of those types of practices and abilities filter their way into legal systems; it could be disruptive and it shouldn't be done too quickly so as to avoid Chesterton's Fence[1]-type issues, but the upsides are clear and the blockers may largely be related to inertia.

[1] - https://en.wikipedia.org/wiki/Wikipedia:Chesterton%27s_fence

I'll still argue for bytecode (or at very least an IR of some sort, maybe an AST?)

That's mainly due to the fact that the debate about the law and the text in a law can vary wildly. I'd call the inciting incident the "source" of a law and the written law an attempt by the compiler to capture the meaning of that source.

An example is the ACA, which in principle was "Let's make sure everyone has health insurance" and in practice ended up with a humongous bill with all sorts of interesting parts.

The human readable part of the law is usually the public debates around the law. The legalese that follows can be interpreted by some people but isn't generally written for the general public.

These compilers tend to emit a lot of garbage along side the the bytecode. For example, the postscript on the DMCA talking about boat hulls of all things.

I’d agree that it could be classified as an IR. Law is definitely a domain specific subset of natural languages. Even more, each field of law can be regarded as another specific domain specific language. If you’re doing healthcare law, copyright law, criminal law etc. you need to familiarize yourself with the history, terms and mindset of that field.

That’s why lawyers also specialize and that’s why years of training are needed.

But my general opinion is, if something (a bill for example) looks much more complex than it should have been, someone engaged in lobbying to twist things in their favor. If law is left alone from personal interests, the resulting legislation are often more clear and understandable.

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