Of course, it is better if the spirit of the law could be applied. But you seem to be making the assumption that giving judges more discretion would result in the spirit of the law being applied. Very dubious. More discretion leads to more corruption and bias. In the limit of increasing discretion, you have lawmen who "are the law" and do whatever they want. That's little different from being ruled by a gang or warlord. Which does not usually turn out well for the people.
You didn't propose any mechanism *other* than discretion for enforcing the spirit of the law.
But such mechanisms are possible. For instance, we could have a law that says "you must do X. This law exists in order to achieve outcome Y." X is the letter of the law, the proximate effect it has, and Y is the spirit - the reason for the law. And we could legally codify that the law to do X has power only to the extent it helps cause outcome Y. Whether in a particular instance X helps cause Y (i.e. whether enforcing the letter of the law in this case also enforces the spirit) would then be a matter of legal fact to be established by the defense and prosecution, not the discretion of the judge.
this is a very interesting proposal- but I don't think it would work because I imagine in democratic legislative bodies groups agree to the same law for different spirits.
What would cause Y be for incarcerating murderers?
Y for incarcerating murderers would be something like: reduce the incidence of future murders via lowering the chance the imprisoned murderer would kill again (by a certain statistical amount) and deterring others from murdering (by a certain statistical amount).
So then if lawyers and statisticians could show that a certain term of imprisonment doesn't achieve either objective, they could argue that the law should not be applied, or the term of imprisonment should be different, or perhaps something should be different about trial publicity or prison safety.
Sure, everyone wants the spirit of the law -- so long as they agree. It's like having a benevolent dictator. It takes a knowledge of history to see how these things fail in the long run.
Not so long ago US judges sentenced black people to longer prison sentences for the same crime, because even though the law can't outright say that black people are more dangerous, everyone knows thats the spirit of the law, right?
Important and difficult question. At this moment I don't see viable alternatives to following the letter of the law. If the spirit of the law can be violated within the letter of the law, that means the letter doesn't reflect the spirit and must be improved.
Rather than trying to formulate every possible circumstance or complication, it might be better to have the punishment fit the crime. When a technical violation doesn’t really matter, the punishment can be a slap on the wrist. If the difference in consequences barely can be perceived, the precision of the law matters less. Then the only problem is acts that are technically not violations, but ought to be. Arguably, these can be viewed as torts.
Fairness and clarity sometimes come into conflict, and it is not always the case that we should favor fairness, or “the spirit of the law.” If exceptions are often made to the formal norms, how do we know what the informal norms actually are? If people do not have a good handle on what the formal norms are, how are they to obey them?
The problem with "spirit of the law" adjudications is that they are arbitrary and capricious. Different people in different contexts at different times can have widely different interpretations of what the "spirit" is. Often the only way to know what the outcome of a "spirit" adjudication will be is to have a conflict and wait to see the outcome of a specific adjudication. In some actual US courts, the verdicts of cases are essentially random.
Adjudicating a conflict is orders of magnitude less efficient than avoiding it not only because litigation is time consuming and expensive, but also because unpredictable risk prevents people from taking actions that could potentially result in conflict - even in cases where they would win the conflict.
Having highly predictable outcomes avoids conflict both in cases where people will choose to avoid doing things where they predict ahead of time that they would lose an adjudication in the future, and in cases where they have already taken an action that could cause a conflict but the party who would lose an adjudication can instead choose to make a coasean payment to the other party.
At the limit, if we had a perfectly deterministic "adjudication" machine, there should be no conflict since anyone could enter a set of facts and circumstances into the machine and know with certainty what the outcome *would* be.
Do why do we have such a non-deterministic legal system? The primary reason is because legislators have strong incentives to create non-deterministic laws since this allows them to claim they are taking a stand to one consultancy while not angering another. As you found, people also like non-deterministic laws because it less them hold conflicting beliefs.
Another argument is that it is not possible to create non-deterministic laws a priori because we can not possibly imagine all of the exceptions and edge-cases that might come up in the future. So instead, legislators leave ambiguity and discretion in the legal system.
I am unsympathetic to both of these excuses. Computer programmers regularly create deterministic programs that must work correctly for all future inputs. Anyone, anytime can run one of these programs and it will always generate the same output for the same inputs. Thoughtful programmers foresee difficult edge cases and try to have the program generate desirable outputs for these. The law could be similarly deterministic, but this would require thoughtful legislators.
Here is the outline for an old project to try to make law more deterministic that went nowhere for predictable reasons...
Here is a technical but extremely interesting recent paper where the authors created a programming language for law and then tried to express some actual legal codes using it, but found "bugs" that made the codes internally incoherent...
I don't think this is an issue with a simple binary -- spirit vs. letter. There is continuous variation as to how strictly you follow the literal text vs look to the animating idea.
I suspect you can get people to give very different answers depending on how you formulate the question.
For instance, ask people if they think Bob should be allowed to claim a tax credit for buying an EV passed to decrease CO2 emissions if he actually bought a gas vehicle because for some reason in his situation that actually reduced emissions (or vice versa).
I don't see how you could possibly do that. What does one variable even mean (is social welfare a variable? who gets to decide?) Besides, laws are passed as part of compromises between interest groups if you block that nothing gets passed.
Thanks for the thoughtful post Professor Hanson. I'm a current law student. I've found that the most egregious judicial decisions I've read are the ones where they try to apply the letter of the law too mechanically at the expense of their spirit or basic intuitions about justice. Some jurisdictional cases come to mind. In general, these decisions seem to create a lot of problems and box later judges into corners, such that they often have to be retroactively limited anyways.
Straying too far from spirit or common sense understanding of fairness in decisions is ultimately unsustainable in a democratic form of government.
When we used juries a lot more, they could more enforce their concepts of the spirit of the law. But juries have been greatly suppressed, and "democratic forms of government" can go for centuries defying the will of the majority.
Everyone wants the "spirit" of the law thinking, "of course, I am always going to be right, in 'spirit', so yeah, give me the benefit of the doubt" - not realizing there's another side to this point thinking EXACTLY the same thing. Which why we have a letter of law. Give me the letter all the time, because I don't trust the judge or the jury. At least I can read and trust myself.
There is research showing that people believe it is unfair to violate the spirit of the law, even if the letter of the law has not been violated. Thus the Suits and those serving the Billionaires are likely judged as morally problematic, if, as happens in those drams, they get rich and prestigious wielding the letter of the law. We are all familiar with examples such as the public getting angry that rich corporations are able pollute and despoil the environments without legal repercussions because their team of lawyers helped the company skirt the edge of the law.
HI Robin -- Thanks for this insightful analysis. These researchers show that children as young as age 4 are more lenient toward rule-breaking when the “spirit of the law” is unbroken; leniency further increases with age.
Of course, it is better if the spirit of the law could be applied. But you seem to be making the assumption that giving judges more discretion would result in the spirit of the law being applied. Very dubious. More discretion leads to more corruption and bias. In the limit of increasing discretion, you have lawmen who "are the law" and do whatever they want. That's little different from being ruled by a gang or warlord. Which does not usually turn out well for the people.
I am NOT assuming discretion would be used well.
You didn't propose any mechanism *other* than discretion for enforcing the spirit of the law.
But such mechanisms are possible. For instance, we could have a law that says "you must do X. This law exists in order to achieve outcome Y." X is the letter of the law, the proximate effect it has, and Y is the spirit - the reason for the law. And we could legally codify that the law to do X has power only to the extent it helps cause outcome Y. Whether in a particular instance X helps cause Y (i.e. whether enforcing the letter of the law in this case also enforces the spirit) would then be a matter of legal fact to be established by the defense and prosecution, not the discretion of the judge.
this is a very interesting proposal- but I don't think it would work because I imagine in democratic legislative bodies groups agree to the same law for different spirits.
What would cause Y be for incarcerating murderers?
Y for incarcerating murderers would be something like: reduce the incidence of future murders via lowering the chance the imprisoned murderer would kill again (by a certain statistical amount) and deterring others from murdering (by a certain statistical amount).
So then if lawyers and statisticians could show that a certain term of imprisonment doesn't achieve either objective, they could argue that the law should not be applied, or the term of imprisonment should be different, or perhaps something should be different about trial publicity or prison safety.
I think what people want to spite. hence the problem
Sure, everyone wants the spirit of the law -- so long as they agree. It's like having a benevolent dictator. It takes a knowledge of history to see how these things fail in the long run.
Not so long ago US judges sentenced black people to longer prison sentences for the same crime, because even though the law can't outright say that black people are more dangerous, everyone knows thats the spirit of the law, right?
Important and difficult question. At this moment I don't see viable alternatives to following the letter of the law. If the spirit of the law can be violated within the letter of the law, that means the letter doesn't reflect the spirit and must be improved.
Rather than trying to formulate every possible circumstance or complication, it might be better to have the punishment fit the crime. When a technical violation doesn’t really matter, the punishment can be a slap on the wrist. If the difference in consequences barely can be perceived, the precision of the law matters less. Then the only problem is acts that are technically not violations, but ought to be. Arguably, these can be viewed as torts.
Fairness and clarity sometimes come into conflict, and it is not always the case that we should favor fairness, or “the spirit of the law.” If exceptions are often made to the formal norms, how do we know what the informal norms actually are? If people do not have a good handle on what the formal norms are, how are they to obey them?
The problem with "spirit of the law" adjudications is that they are arbitrary and capricious. Different people in different contexts at different times can have widely different interpretations of what the "spirit" is. Often the only way to know what the outcome of a "spirit" adjudication will be is to have a conflict and wait to see the outcome of a specific adjudication. In some actual US courts, the verdicts of cases are essentially random.
Adjudicating a conflict is orders of magnitude less efficient than avoiding it not only because litigation is time consuming and expensive, but also because unpredictable risk prevents people from taking actions that could potentially result in conflict - even in cases where they would win the conflict.
Having highly predictable outcomes avoids conflict both in cases where people will choose to avoid doing things where they predict ahead of time that they would lose an adjudication in the future, and in cases where they have already taken an action that could cause a conflict but the party who would lose an adjudication can instead choose to make a coasean payment to the other party.
At the limit, if we had a perfectly deterministic "adjudication" machine, there should be no conflict since anyone could enter a set of facts and circumstances into the machine and know with certainty what the outcome *would* be.
Do why do we have such a non-deterministic legal system? The primary reason is because legislators have strong incentives to create non-deterministic laws since this allows them to claim they are taking a stand to one consultancy while not angering another. As you found, people also like non-deterministic laws because it less them hold conflicting beliefs.
Another argument is that it is not possible to create non-deterministic laws a priori because we can not possibly imagine all of the exceptions and edge-cases that might come up in the future. So instead, legislators leave ambiguity and discretion in the legal system.
I am unsympathetic to both of these excuses. Computer programmers regularly create deterministic programs that must work correctly for all future inputs. Anyone, anytime can run one of these programs and it will always generate the same output for the same inputs. Thoughtful programmers foresee difficult edge cases and try to have the program generate desirable outputs for these. The law could be similarly deterministic, but this would require thoughtful legislators.
Here is the outline for an old project to try to make law more deterministic that went nowhere for predictable reasons...
https://lawdact.com
Here is a technical but extremely interesting recent paper where the authors created a programming language for law and then tried to express some actual legal codes using it, but found "bugs" that made the codes internally incoherent...
https://arxiv.org/pdf/2103.03198
I don't think this is an issue with a simple binary -- spirit vs. letter. There is continuous variation as to how strictly you follow the literal text vs look to the animating idea.
I suspect you can get people to give very different answers depending on how you formulate the question.
For instance, ask people if they think Bob should be allowed to claim a tax credit for buying an EV passed to decrease CO2 emissions if he actually bought a gas vehicle because for some reason in his situation that actually reduced emissions (or vice versa).
I suspect they say no.
I don't see how you could possibly do that. What does one variable even mean (is social welfare a variable? who gets to decide?) Besides, laws are passed as part of compromises between interest groups if you block that nothing gets passed.
"Not finding much in the academic literature ..." Might look at Ronald Dworkin.
Nice handout here: http://rdoody.com/JudicialReview.pdf
I don't see the connection.
Thanks for the thoughtful post Professor Hanson. I'm a current law student. I've found that the most egregious judicial decisions I've read are the ones where they try to apply the letter of the law too mechanically at the expense of their spirit or basic intuitions about justice. Some jurisdictional cases come to mind. In general, these decisions seem to create a lot of problems and box later judges into corners, such that they often have to be retroactively limited anyways.
Straying too far from spirit or common sense understanding of fairness in decisions is ultimately unsustainable in a democratic form of government.
When we used juries a lot more, they could more enforce their concepts of the spirit of the law. But juries have been greatly suppressed, and "democratic forms of government" can go for centuries defying the will of the majority.
I agree. strict sentencing guidelines and limiting jury discretion has been bad from a justice standpoint. fair point on democracy.
Everyone wants the "spirit" of the law thinking, "of course, I am always going to be right, in 'spirit', so yeah, give me the benefit of the doubt" - not realizing there's another side to this point thinking EXACTLY the same thing. Which why we have a letter of law. Give me the letter all the time, because I don't trust the judge or the jury. At least I can read and trust myself.
There is research showing that people believe it is unfair to violate the spirit of the law, even if the letter of the law has not been violated. Thus the Suits and those serving the Billionaires are likely judged as morally problematic, if, as happens in those drams, they get rich and prestigious wielding the letter of the law. We are all familiar with examples such as the public getting angry that rich corporations are able pollute and despoil the environments without legal repercussions because their team of lawyers helped the company skirt the edge of the law.
HI Robin -- Thanks for this insightful analysis. These researchers show that children as young as age 4 are more lenient toward rule-breaking when the “spirit of the law” is unbroken; leniency further increases with age.
https://www.sciencedirect.com/science/article/pii/S0022096517304514
Yes, more evidence of wide support for using the spirt in rulings. But legal practice is quite different.
It seems to me that a combination would apply depending on the case.