I once read somewhere that people often object to new laws, treaties, or other similar codified rules because they think that of a law like a program that you feed to the computer and it gives out results: guilty or not guilty; correct or incorrect; legal or illegal. And if something is not defined properly in the law, such computer is going to give wrong results, hence the problem.
Many people also take the worry step further — if the law is ambiguous, government officials are going to enforce it in an unintended way, politicians will embrace the sweet taste of populism to support that, corporations will bankroll an army of expensive lawyers to push their version and at the end, judges will judge without specific domain knowledge available. Hence trouble.
Worries are not baseless — in many countries and with many laws we have seen laws abused, perverted, and used for completely different purposes as originally intended.
One of the most famous examples is patent law. Originally the law was intended to support small-time inventors, to protect her invention from being stolen by big corporations, with which they won’t be able to compete on resources and execution.
But now, big corporations are filling thousands of patent applications covering every possible angle of different types of devices, computing processes, user interface concepts, and even math formulas. Some of the most ridiculous fillings are rejected, but many more get approved — there are thousands of corporations filling in thousands of patents, yet there are only a few clerks to vet and approve.
And of course, the bigger the corporation, the bigger the legal resources that can be applied to enforce said patents. Often against new small competitors, who can not really afford to even research all the possible patents that are already in the system, not to mention doing defensive patenting of their idea in many jurisdictions, with many different versions and variations. After all, it is not required for anybody to produce a thing that is patented, only to patent it, so the fact that you have come up with the idea and created the product does not mean that it is not already patented in more or less vague form.
Of course, corporations sometimes battle each other, with large sets of various patents, seeking hundreds of millions in damages. And then receiving counter-suits with even more patents for even more obscure technologies and inventions. And then, after years in battle, they settle out of court for an undisclosed amount.
And with all this huge machinery spinning around, where is the original intention of protecting fragile inventors, keeping competition in the market, and enabling social lifts for the smart and skillful? Gone completely. And in many instances effect is completely opposite now.
This is of course not the only example, there are many more. Take all the censorship laws — they often start with the best intentions at the start. Often intended for “protecting children”, they end up being the basis of banning all sorts of vaguely sexual or violent things. After a couple of iterations, nobody anymore is speaking about children’s rights when discussing particular enforcement, but merely about whether it is sexual/violent/etc or not.
Same about anti-drug laws. I sincerely believe that those laws were passed with the best intentions. To save people from horrible addictions that force them to commit crimes, destroy their health, and degrade society in general. There is nothing to be said against such intention, I fully support it.
Unfortunately now most of the discussion is about what more to add to the list of banned substances, how to fight with drug dealers most effectively, and how to dole out punishment. Often it feels that if a new chemical compound is found that makes people happy, then it needs to be banned immediately. Regardless of positive or negative effects on health, society, or crime.
There are differences between Common and Continental law systems, that affect this problem, but not in the way that really fixes anything.
In Common Law, precedents and insight are used by the judges when judging on possibly wrongful law enforcement. Yet also precedents can be the weakness when older rulings can slowly be transferred to cases further and further away from the original intention of the law. And insight can become clouded by an enormous amount of technical details required to be understood to rule on many technology-related cases.
In Continental law, it is the parliaments and governments that have to codify all the possible details within the law itself. Precedents do not rule, and judges judge more technically on the cases. There is not always deep domain insight required, more often the deep study of technical details of law itself. And that, of course, lets different interpretations of said details arise, new entities can slip through the cracks of the law, and enforcers can sometimes pick and choose which details to apply.
Of course, in different countries, there are many different variations on how Law works. And if a country is stable and democratic, it does tend to make its system as good as possible — there are many checks and balances. There are constitutions. There are constitutional courts, that verify laws against the constitution. There is a possibility that laws are not made into effect, and are vetoed either by President or King. Laws can be amended. International treaties can have higher power than local laws. International courts can point out mistakes. Governments can choose how to enforce the rules. Parliament can question that. NGOs keep everyone on their toes. Journalists dig.
Yet there is no entity that could validate whether particular enforcement of the law is really according to the intention of the lawmaker.
The solution I propose is to have an extra paragraph, preamble, for each Law, that would clearly, in layman’s terms, state the intention behind the Law. This preamble would not be used directly for enforcement, it would be there only for validation.
And there would be a special, independent court for that. Court where you could appeal for the valid intention of any case when the government enforces a law, or when civil or criminal court judges on the case based on the law.
And if such enforcement is decided to be wrong according to intention, then it is dismissed and declared void. If civil or criminal court case intention appeal is lost by the government, then the civil or criminal court can not use that particular law for this case in further proceedings.
Such Court of Law Intent would act as a balance check on bureaucracy, populism, and special interests. It would act as a safety valve of common sense for the government.
