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dghf a day ago

In what places do courts ignore or modify law to deliver the result they prefer?

(To be precise: where is that accepted practice, rather than aberrant behaviour by some judges?)

maratc a day ago | parent | next [-]

Usually the judges do not "ignore or modify" the law, but rather "interpret" it in a creative manner. You might use, as an example, the question of "does the US Constitution guarantee the women a right to abortion." Some judges decided that it does, later some other judges decided that it does not. Considering the opposing outcomes to the same question, it's clear some of these were wrong.

userbinator 17 hours ago | parent | next [-]

In the US, it's usually enforcement that's ignored.

AngryData 10 hours ago | parent [-]

That is why everything is illegal 3x over. If they don't like you, you get farked. If they like you, they just ignore it.

ljm 11 hours ago | parent | prev [-]

Letter of the law vs. spirit of the law.

One could argue that 'a corporation has personhood' is a technical contrivance that tries to manipulate the letter of the law into achieving a particular outcome. Going with the spirit of the law instead, that argument would never hold water.

wisty 14 hours ago | parent | prev | next [-]

The US.

There are vague rights in the constitution.

It could be a disaster for the courts to interpret them too literally (Is literally any weapon OK in the 2nd? Does free speech include a mob boss ordering a hit?) and constitutions are really hard to amend, so heavy interpretation is a nessessary evil.

wirrbel 9 hours ago | parent [-]

That is an interesting example because the second amendment is I think a primary example of a law that is very creatively read by folks that consider themselves literalists.

if the 2nd amendmend was literally interpreted it would be (quoting from memory) “in order to form a well-ordered militia the right to bear arms shall not be infringed”

As in you cannot infringe the right to bear arms in a well ordered militia, but gun ownership might be regulated for example by the militia organization owning the arms. Nothing would speak against codifying in law what constitutes a well-ordered militia, etc.

treis 6 hours ago | parent | next [-]

Your memory is a bit off. The text is:

>A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

It's the only amendment that comes with a justification so it's unusual but there's nothing in the text that limits the right to the listed justification.

bigstrat2003 5 hours ago | parent | prev | next [-]

> if the 2nd amendmend was literally interpreted it would be (quoting from memory) “in order to form a well-ordered militia the right to bear arms shall not be infringed”

I don't agree at all that this is a case of creative reading. The actual text of the amendment is "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Note that the text does not say "in order to" or anything like that, which is why interpretation of this amendment gets controversial. Was the intent that bearing arms is only a right insofar as people are part of a local militia? Was the intent that people must have the right to bear arms and the militia was simply cited as one example of why? It is genuinely unclear from the text, which means that no matter what we do we have to layer our own interpretation on top. That doesn't mean anyone is reading the law creatively, that's just the unfortunate facts of having to deal with an unclear text.

Joker_vD 9 hours ago | parent | prev [-]

That's... how the 2nd amendment used to be treated, actually: state laws against conceit carry have lo-o-ong history, and they've been held to be perfectly constitutionally until recently. Oh, and "well-regulated" used to mean "well trained and supplied" back in those day.

And the 2nd actually reads (if you fix its grammar since it's ungrammatical by the standards of the modern English language) "since the well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" — now notice that it's a conditional rule, and its premise in "since..." is no longer true, militias are not necessary for the security of a country; and so the conclusion should lose its power. And arguably it's what the Founders intended: if they meant it as an absolute rule, they would've omitted the first part of it and would have simply stated that "the right of the people to keep and bear arms shall not be infringed", period.

davidw 18 hours ago | parent | prev | next [-]

The Supreme Court in the United States has been playing a looooot of "Calvinball" recently. They've never been completely immune from it, but it has gotten a lot more nakedly political.

DoingIsLearning 14 hours ago | parent [-]

Off topic but I am now old enough that more than once Calvinball references were lost with my co-workers.

I was surprised (and then sad) at the realization that Bill Watterson is fading from the cultural ethos as I age.

bregma 12 hours ago | parent | next [-]

Gone are the days when everyone was spammed with Monty Python references. The Gen-Zs in my office haven't even heard of, let alone viewed, the Holy Grail so half the references our boss lays out are lost on them. At least it's not dead yet.

On the other hand, I had to ask them what a Kirby was. I'm still not sure but I know it's pink.

aaronbaugher 8 hours ago | parent | next [-]

That's sad. It's not like when I was watching Holy Grail in the late 80s it was in theaters, and the "effects" weren't good enough when it was made to become dated. We watched it and lots of other stuff on VHS because it was good, regardless of when it was made.

I suppose some of the jokes depend on cultural things that might not be taught as well anymore, like the Trojan Horse. But most of it is about human nature, so it seems like that should hold up.

alnwlsn 8 hours ago | parent | prev | next [-]

Interesting, at least 10 years ago, everyone in my school knew Monty Python. Maybe that's because it was on Youtube at the time. Not really the case anymore; some is still there but a lot has been removed - you're not going to find 'Holy Grail part 1/11' these days.

eadmund 10 hours ago | parent | prev [-]

> At least it's not dead yet.

It’s pining for the fjords!

sethammons 13 hours ago | parent | prev [-]

I've noticed similar. I quote lots of movies, usually one liners as appropriate. Between age and less uniform media exposure, my references more often than not fall flat. And I feel less connected.

TheOtherHobbes 12 hours ago | parent | next [-]

If you talk to anyone under 30, there's a vague sense of 'the past' with a few landmark events - mostly Star Wars, Pokemon, Miyazaki. Beyond that it's all recent comics, superhero movies, video games, and anime, with a big subculture stanning book trends like romantasy.

Most of what happened before 2000 doesn't seem to exist in cultural memory.

It's not quite true that nothing that happened before 1950 exists at all. But you're not going to find many people who are interested in the art, music, literature, design, or architecture of earlier decades - never mind centuries.

It's as a big a break as there was in the 60s. For that generation the 50s were still an influence, but anything earlier pretty much just disappeared.

card_zero 10 hours ago | parent [-]

I guess the sense of a rubicon at the end of the 40s was due to WW2, but why at the year 2000? Because phones? Or big round number effect, perhaps? The year 2000 was built up in our minds as when the future was expected to begin. (Every new gadget produced around 1990 was the Something2000. CarVacuum2000, Ionizer2000, SuperShoehorn2000, etc.)

bmacho 11 hours ago | parent | prev [-]

> And I feel less connected.

Watch whatever today's kids watch.

card_zero 11 hours ago | parent | next [-]

The "less uniform media exposure" phrase invokes the (paranoid?) fear that we might lose common cultural reference points. In short, today's kids watch whatever. Though I'm sure we'd just find a new social script to work around the inability to quote Python.

mionhe 7 hours ago | parent | prev [-]

I like to use the phrase "skibidi" wrong. My kids make the greatest faces.

eadmund 10 hours ago | parent | prev | next [-]

> In what places do courts ignore or modify law to deliver the result they prefer?

The United States. E.g. ‘the switch in time that saved nine,’ Wickard v. Filburn, Obergefell v. Hodges, Gonzales v. Raich and so forth.

mschuster91 15 hours ago | parent | prev [-]

That's common in both European courts (look at e.g. the history of homosexual marriages in the EU) and in the US ("Citizens United").

The core issue is that no Constitution, in fact no law or decree at all can account for all possibilities that real life offers, and so all the bodies of law are up for interpretation all the time.

teamonkey 13 hours ago | parent [-]

This is also the case in the UK. Where things are not crystal clear they are interpreted by judges and can become precedent (see the recent “definition of a woman” interpretation).

The issue highlighted by, say, the Owens vs Owens example, is that the law as it stood was clear and not open to interpretation, though obviously unfair. The law needed to be changed, which required parliament.