Legal interpretation philosophies

[adumbrodeus]

Since a lot of these debates center around politics, here's an interesting topic of conversation, what is the proper way to interpret law?

There are a variety of different philosophies going around but here's a basic synopsis of the major ones.

Textualism: The idea that the text itself is paramount, the words on the page are the element that make up law, no matter what they are.

Original meaning: Textualism coupled with the idea that the document's words do not change over time with the language (ex. if the law was written in 1923, the word "throw" means whatever it meant in 1923 for the purposes of textualism).


Original Intent : The idea that intent of the author(s) of the law is what when writing the law is the standard by which to judge it's legal meaning. The text provides a window by which to judge what the intent is, but is not important in and of itself.


Living Document: The idea that the law is to be judged based in the manner most expedient to the current times.


Now, of these I find original meaning to be the best method of interpretation. First and foremost is why the text is the important component, equality before the law is a paramount principal in modern government. Under original intent and Living Document you suffer from a lack of equality, because in truth the law becomes what exists in the mind of the Judge as what he or she thinks is the intent or what he or she thinks is the most expedient course of action (if the writer(s) of the law is(are) dead in Original Intent), the reason this is unequal being that the citizen is expected to the know the law. If the text is not the law in terms of application, then the citizen cannot know the law, and is subject to arbitrary prosecution. If the original writer(s) of the law are still alive, then the writer(s) are in the same position as the judge would be in under Original Intent. No, if ignorance were an excuse for one to not be liable for violations of law, then yes, this would be fair, but unworkable since it would be impossible to ever know the law. But as it stands, if either is accepted, the citizen has no way of knowing the law.

In terms of why original meaning is important, there is a process by which law goes through to amend it. Changes in language do not go through this process, therefore are not legal changes to the document. As such, the document must hold under it's original meaning (but, by the same token an equivalent meaning in updated language is not legally a change).


What say you on this issue?

 

[Eight Sage]

In terms of why original meaning is important, there is a process by which law goes through to amend it. Changes in language do not go through this process, therefore are not legal changes to the document.

I thought the same. But that's for newer laws, what I'm trying to say is that something written on the year 1000 b.C. shouldn't be taken in actual times, it must be interpreted having in mind the context when it was created.
There are a lot of laws that are taken as the original meaning, others by "Original Intent". Take for example the gun law should we modify that law in order to understand it? or should we take the law as how we think it means?

Look at this:

Prohibited persons - Under the GCA, firearms possession by certain categories individuals is prohibited.
[...]
Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa.
[...]

That means that Aliens (as for UFO) can't have possession of firearms? (lol) or look at the "Right to bear arms"
which was mentioned in the US constitution a long time ago, is that valid for now where we don't have to think invaders are coming from ships?
As you say law in terms of its original meaning is important, but it can be modified to fit the actual situation (and it does sometimes).

Here's a joke-example about the "bear arms" law that fits so well here:

 

[adumbrodeus]

I thought the same. But that's for newer laws, what I'm trying to say is that something written on the year 1000 b.C. shouldn't be taken in actual times, it must be interpreted having in mind the context when it was created.

Which I agree with, however the context must be the linguistic context, not the "intent" context, because that is inherently unequal under the law.

There are a lot of laws that are taken as the original meaning, others by "Original Intent". Take for example the gun law should we modify that law in order to understand it? or should we take the law as how we think it means?

The latter being, as I pointed out, being a travesty of Justice, but it does occur. The fact that is does occur however, does not make it any more legal however.

The "modification" thought is theoretical however, wording that is precisely equivalent to phrases in past linguistics are rare. However, the point is that this would not be a modification legally speaking, the law already says exactly that, it merely used a different dialect.

What we should do, is as long as it stands on the books, interpret it based upon the words on the page.

Look at this:

Prohibited persons - Under the GCA, firearms possession by certain categories individuals is prohibited.
[...]
Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa.
[...]

There is something called due process of law which is valid for removal of certain rights, and illegal immigrants, having committed a criminal offense would be effectively ineligible because it is essentially a penalty upon revelation.

Legal aliens is hairy however, legally speaking, the law does not restrict itself to citizens.

That means that Aliens (as for UFO) can't have possession of firearms? (lol) or look at the "Right to bear arms"
which was mentioned in the US constitution a long time ago, is that valid for now where we don't have to think invaders are coming from ships?
As you say law in terms of its original meaning is important, but it can be modified to fit the actual situation (and it does sometimes).

Yes, it is just as valid a right as it was then. You could make the same argument for first amendment rights, yet I doubt anybody intends this, but the law has to be applied consistantly. Thus, trying to both disreguard the second amendment and respect the first is a case of double-think.

Not that you're not welcome to amend the Constitution, make the change legally however.

Here's a joke-example about the "bear arms" law that fits so well here:

Funny, but irrelevant, the meaning of the phrase is beared out by the linguistics of the day, and the tet itself. Were there confusion however, about what type of bear arms were intended, that's why we have the Supreme Court.




I'm sorry, but you have still failed to attack my core reasoning, that original intent is unequal under the law, falling afoul of the Constitution, the same issue as with living constitution, an

 

[AltF4]

Bear Arms, lol.

I don't think it's "double-think" to say that the second amendment is outdated, but the others aren't. Freedom of speech is still an essential right today and for the foreseeable future also. It's kind of like those stupid laws that are still in the books, but never get taken out. Like not being able to walk you dog in a dress on Wednesdays. Maybe at the time it made sense, but not anymore. (just to a lesser extreme)

In that respect, I think you have to keep original intent in mind at least a little. Maybe not for how to determine interpretations, but rather whether or not to keep the law entirely. I really don't want to turn this into a gun control thread, lol!

I'm not a political scientist (for the record, I consider politics to be an art, not a science. But that's what everybody else calls it...) so what interpretation is used in the US? Is there a standard?

 

[adumbrodeus]

Bear Arms, lol.

I don't think it's "double-think" to say that the second amendment is outdated, but the others aren't. Freedom of speech is still an essential right today and for the foreseeable future also. It's kind of like those stupid laws that are still in the books, but never get taken out. Like not being able to walk you dog in a dress on Wednesdays. Maybe at the time it made sense, but not anymore. (just to a lesser extreme)

It's not double-think to believe the amendment is outdated (as much as I disagree with that assertion) however, it is double-think to believe that we can ignore it on the legal level and still consider the first amendment inalienable.

By doing so, you adopt the position that inconvenient sections of the Constitution can be declared obsolete by basically anyone, and then ignored and I know a large number of people who think that about the first amendment. No, the only substantiative change in the Constitution must be by the prescribed process, it cannot be simply swept away by a declaration of "obsolete", but if you think that it is obsolete, try to organize an effort to amend the Constitution to effectively remove it.



As for your example, there is a major difference between a declaration of rights and a restriction, legally speaking. The ability to restrict certain actions under law is a government power that has prescribed limits, amongst those being equality of enforcement, in other words, a lack of preferential enforcement. If a government stops enforcing a law, and then suddenly starts again, there is no way to prove that this initial enforcement was not preferential, and thus the conviction will be struck down, which ultimately prevents them from enforcing it. Essentially, if the government lets a restriction on the peoples' actions lapse in enforcement, it has not exercised it's rights, and therefore our restrictions placed against it render that right void. (this works because the person is innocent until proven guilty, not the government)


A declaration of our rights is a whole different story, because whatever right we maintain as the people has no such restrictions on being required to use it. As such, we need not exercise it to retain it. Even if we did, speaking in reality, the amendments really only reiterate certain powers that we maintained as a citizenry already, in a legal sense we maintain all that was not ceded to the government in the Constitution itself. For that reason, if the second amendment is to be considered a lapsed right, there is no restriction upon the right to bear arms in the Constitution, so it defaults to the "we maintain the right" stance, essentially changing nothing.

Furthermore, the right to bear arms is not a lapsed law anyway, people utilize that right all the time. Obsoleteness does not remove a law from effect, it's a failure to enforce the law, and again, this only applies to the rights ceded to the government anyway, not the rights of the citizenry.




So, decide you can legally ignore the second amendment at your own peril, if you disagree remove it legally, because if you set the precedent that the protections of law can be ignored by a group of people simply declaring it obsolete, then essentially we can do that to any section or sections of the Constitution, making the entirety of the protections of law null and void.

In that respect, I think you have to keep original intent in mind at least a little. Maybe not for how to determine interpretations, but rather whether or not to keep the law entirely. I really don't want to turn this into a gun control thread, lol!

Well, the reason why it was important then is always a good thing to keep in mind, but that has no bearing on it's legal force.

As for the original intent, it had the side effect of allowing the repelling of invaders and such, but really, the primary purpose is right of revolution (Jefferson, the individual who suggested it in a letter to Madison, was very much a proponent of the citizenry checking the government, hence why the bill of rights was composed mainly of such). With an ever more intrusive government, I think that the base components of this right are more needed now then ever so the government remembers not to step on it's citizens. But yeah, that's for another debate, my point is, there are plenty of people who believe it is anything but obsolete.

I'm not a political scientist (for the record, I consider politics to be an art, not a science. But that's what everybody else calls it...) so what interpretation is used in the US? Is there a standard?

As for political science, no, it's really not an art, rhetoric is an art, political science is the study of how certain things effect other things. It's a social science mind you, but still it's about causality at it's core, and understanding how politics works at various levels. The EXERCISE of politics is an art (and even then, there are definitely scientific elements if you exercise it based on Political Science principals), but the study of HOW it is exercised is not, because it is a study of causality.

Why do you think that game theory is so useful in politics, why do you think that political scientists agonize over different theories of politics, attempting to see which best fits how things work? Why do you think they try to understand how political forces work in the long term? Why do you think they try to understand what different political systems do to countries? Because casualty is the core of politics, and art is not about causality, it's about expression.




As for the standard, generally textualism, but there are definite elements of these others theories floating around in various theories of law, and I find the ones which are unequal under the law very unsettling.

 

[AltF4]

Oh, no, no. I never meant to imply that we should abandon the 2nd amendment without the proper legal process. I was giving a justification for why I think the process should be undertaken. You're perfectly right in saying we can't just choose to ignore laws we deem outdated, for the reasons you said.



And I'm not convinced that having a gun wielding populace can have any effect on the government now anyway. Way back when, revolutions against an established government like ours were possible. But now I don't think it is. Look at Mexico. How better off would they be if they overthrew their government and the wealthy class. The vast majority of the wealth is held by a very small few there. But the people can't just go and riot nowadays. They'd get mowed down by automatic weapons.



And lastly, you might be right about political science, . Game theory is used a lot there.

 

[adumbrodeus]

Oh, no, no. I never meant to imply that we should abandon the 2nd amendment without the proper legal process. I was giving a justification for why I think the process should be undertaken. You're perfectly right in saying we can't just choose to ignore laws we deem outdated, for the reasons you said.

So we agree on that issue

And I'm not convinced that having a gun wielding populace can have any effect on the government now anyway. Way back when, revolutions against an established government like ours were possible. But now I don't think it is. Look at Mexico. How better off would they be if they overthrew their government and the wealthy class. The vast majority of the wealth is held by a very small few there. But the people can't just go and riot nowadays. They'd get mowed down by automatic weapons.

It's more of a "we have weapons so don't tread on us" type issue then actually intending revolution. Furthermore, don't discount political assassinations.



FYI: Old laws that were fell out of enforcement can be enforced again, however, beforehand the public must be told in unequivocal terms before it can occur.