We could make our only law and norm be just “do the right thing”. (Or, maybe, the most economically efficient thing.) Then when someone was accused of acting badly, the relevant judge or jury would consider if their actions were unusually bad, all things considered. But this seems a quite noisy, expensive, and corruptible system So we usually instead try to agree ahead of time on more specific local norms and laws, to give us each a better idea of what is expected of us, and to better hold our judges and juries accountable.
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.
Bingo. It's always bothered me how many people don't realize most sentences are just pure spite that not only serves no useful public policy goal, but generally is counterproductive to it both by unnecessary cost and increasing recidivism.
A drunk driver isn't going to kill anyone again most likely and if that's your concern he doesn't need twenty years in prison, he needs an interlock ignition lock for a couple years; you can fuel your spite with something more reasonable like a couple months jail with draconian second offense rules for the SAME, not any, offense. It's what the popular career criminal/ 3 strikes gets wrong, it's any crime, not identical crime and that's an impossible to meet goal.
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).
Right but that goes back to the underlying real problem that no one wants to talk about, poorly written laws or laws passed in bad faith with their publicly states goals. That law is trying to do two possibly mutually exclusive things, decrease CO2 AND increase EV manufacturer revenue. That fix isn't a "grey area", the fix is to limit laws to ONE specific variable, i.e. your example should be TWO distinct credits hence solving the "spirit" problem.
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.
Nothing getting passed is a benefit, not a flaw but regardless, you simply pass both credits in the same bill to get the compromise you need and just split the credit amounts in half and then you solve the grey area, i.e. people can get the appropriate credit while comply with letter and spirit. Though I will concede another fix would be for them to just be honest in their legislative intent hence allowing people to comply with the spirit as well.
The spirit problem is the fact they lie in their intent most of the time hence leads to issues where the stated spirit doesn't match the black letter nor the public impression of that spirit. For example, civil rights law was passed to help blacks, not Jews nor gays; had they just said that we wouldn't have had spirit problems that plague us today with these laws, i.e. my primary assertion here is the "spirit" law arises because lawmakers aren't truthful in their stated spirit / legislative intent statement hence leaving it for us mere mortals to discern and argue about.
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 strongly disagree on this one, well at least the first first where it's a jury usage failure, most of the worst of the discretionary failures come not in guilt determination but in sentencing and pre-trial ruling, which the jury has no say over.
An old practice which fell out of favor, but should be brought back, is the sentence should be determined prior to trial and that sentence should be communicated to both the jury (so it can factor into voting their conscience) and the accused (so it can factor into their plea). The egregiousness of the plea deal system is primarily a result of the trial penalty.
I speak from personal experience on that one having plead to a felony while being actually innocent not just if the stipulated crime but even if any potentially related but not brought ones. A 95% chance of ten years no parole vs. five year probation is big stick especially when you have minor children.
The problem isn't the strict sentencing guidelines but the fact we don't provide realistic guidelines specific to each crime, instead we lump everything into a half dozen or so classes with guidelines that say "between 0 and 15 years in prison or $100 fine" because murder and littering fall under the category. We need to get rid of concepts like felony / misdemeanor and just assign in law and time of passage the penalty unique to each crime and make it an extremely narrow range that fits the crime. Nobody should be going to prison, no matter how egregious, for five years over felony littering nor two years for the strict liability crime of simply going 81 mph.
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.
The problem is the letter is irrelevant, juries routinely ignore it as do judges hence that is where the fix has to lay. But hey maybe you can get lucky and win on appeal 48 years later as recently happened. It's an incentive problem and they all line up against the rule of law.
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.
Bingo. It's always bothered me how many people don't realize most sentences are just pure spite that not only serves no useful public policy goal, but generally is counterproductive to it both by unnecessary cost and increasing recidivism.
A drunk driver isn't going to kill anyone again most likely and if that's your concern he doesn't need twenty years in prison, he needs an interlock ignition lock for a couple years; you can fuel your spite with something more reasonable like a couple months jail with draconian second offense rules for the SAME, not any, offense. It's what the popular career criminal/ 3 strikes gets wrong, it's any crime, not identical crime and that's an impossible to meet goal.
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.
Right but that goes back to the underlying real problem that no one wants to talk about, poorly written laws or laws passed in bad faith with their publicly states goals. That law is trying to do two possibly mutually exclusive things, decrease CO2 AND increase EV manufacturer revenue. That fix isn't a "grey area", the fix is to limit laws to ONE specific variable, i.e. your example should be TWO distinct credits hence solving the "spirit" problem.
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.
Nothing getting passed is a benefit, not a flaw but regardless, you simply pass both credits in the same bill to get the compromise you need and just split the credit amounts in half and then you solve the grey area, i.e. people can get the appropriate credit while comply with letter and spirit. Though I will concede another fix would be for them to just be honest in their legislative intent hence allowing people to comply with the spirit as well.
The spirit problem is the fact they lie in their intent most of the time hence leads to issues where the stated spirit doesn't match the black letter nor the public impression of that spirit. For example, civil rights law was passed to help blacks, not Jews nor gays; had they just said that we wouldn't have had spirit problems that plague us today with these laws, i.e. my primary assertion here is the "spirit" law arises because lawmakers aren't truthful in their stated spirit / legislative intent statement hence leaving it for us mere mortals to discern and argue about.
"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 strongly disagree on this one, well at least the first first where it's a jury usage failure, most of the worst of the discretionary failures come not in guilt determination but in sentencing and pre-trial ruling, which the jury has no say over.
An old practice which fell out of favor, but should be brought back, is the sentence should be determined prior to trial and that sentence should be communicated to both the jury (so it can factor into voting their conscience) and the accused (so it can factor into their plea). The egregiousness of the plea deal system is primarily a result of the trial penalty.
I speak from personal experience on that one having plead to a felony while being actually innocent not just if the stipulated crime but even if any potentially related but not brought ones. A 95% chance of ten years no parole vs. five year probation is big stick especially when you have minor children.
I agree. strict sentencing guidelines and limiting jury discretion has been bad from a justice standpoint. fair point on democracy.
The problem isn't the strict sentencing guidelines but the fact we don't provide realistic guidelines specific to each crime, instead we lump everything into a half dozen or so classes with guidelines that say "between 0 and 15 years in prison or $100 fine" because murder and littering fall under the category. We need to get rid of concepts like felony / misdemeanor and just assign in law and time of passage the penalty unique to each crime and make it an extremely narrow range that fits the crime. Nobody should be going to prison, no matter how egregious, for five years over felony littering nor two years for the strict liability crime of simply going 81 mph.
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.
The problem is the letter is irrelevant, juries routinely ignore it as do judges hence that is where the fix has to lay. But hey maybe you can get lucky and win on appeal 48 years later as recently happened. It's an incentive problem and they all line up against the rule of law.
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.