You just described the “rule of law” and this is the basis for how modern governments are formed and function
A constitution is written and codifies the process for making ratifying and enforcing laws. That then is the common standard for some subset of behaviors as defined by the constitution which defines who it does and does not apply to. Different constitutions outline different processes but the structure of the “Rule of Law” is the same.
This is in contrast to other structures like pure monarchies (unlike constitutional monarchies) which have a “divine” process for defining the structure of the governed land.
What you seem to want is for civil law to be subordinated in favor of common law, but that simply kicks the can and doesn’t actuall solve the problem.
What’s actually happening right now is that society at large is questioning the foundational assumptions of society. To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently.
That's an interesting thought, but I would say instead that I'm in favor of culture being the "first line of defense" and not the law. In other words, I can leave my door unlocked because I am a part of a culture where that sort of thing doesn't happen. Not because there is a law written down somewhere. This has functionally been my experience in a number of spaces, including private workspaces (i.e., you don't expect your co-workers to steal your stuff), Japan, Poland, and a few other countries, and many others.
If that's a definition of "common law" then sure, but it seems like a different thing to me.
The reason the rule of law exists at the scale it does is precisely because what you describe, has not shown to create functional long term societies that are resilient to exogenous threats.
The rule of law is literally humanity’s best attempt so far to explicitly codify human desires into a common set of descriptions.
This is why the UN exists and the LON before it etc…
> has not shown to create functional long term societies that are resilient to exogenous threats.
I don't think I agree with this. If anything, it seems more like the reverse: societies have been less-and-less willing to enforce assimilation and a certain set of society-wide cultural behaviors, and therefore they "fall back" to the rule of law as described by you.
As a melting pot, the US takes in a lot of folks from countries that are not doing very well... so in a way, if we keep importing folks from cultures that failed without trying to integrate them to our culture, and instead celebrate their original culture, eventually our amalgam culture will fail just like theirs did.
Its why we have signs that say to "sit, not stand on toilets". You dont think we would need to write it down, but if you import hundreds of thousands of toilet standers, "the norm" goes out the window.
The melting pot is a way of integrating people into our country. It has been criticized as being too homogenizing; and now I think (for the better) most people see it as a nice lumpy stew. We shouldn’t ask people to give up all their traditions or change completely to become American, it is a give and take communication process that we both benefit from.
WRT toilets, I think it has been shown that squatting actually reduces the strain when using the toilet; I think those signs reflect the fact that we are integrating new toilet information. They are part of the natural back-and-forth pushing process. Hopefully we’ll converge on a toilet that is lower to the ground but doesn’t have accessibility issues.
> WRT toilets, I think it has been shown that squatting actually reduces the strain when using the toilet; I think those signs reflect the fact that we are integrating new toilet information. They are part of the natural back-and-forth pushing process. Hopefully we’ll converge on a toilet that is lower to the ground but doesn’t have accessibility issues.
Squatting toilets are fine, maybe they are even better. But the signs are about people squatting with their feet on the toilet bowl on a sitting toilet. That is dangerous (the bowl can easily break from the pressure of your feet) and dirty (you are very likely to leave the area around dirty, and there are typically no ways to clean the outside of the bowl in typical western bathrooms).
What I wanted to highlight is that this confusion, people coming to the toilet with different assumptions and misusing it as a result, is part of the process of improving by integrating additional information. Sure, they are being misused, but the way they are being misused gives us a chance to reflect on how they could be better.
If we want to be obnoxiously neutral, haha, we could just say there’s a mismatch between the design and the user expectations. Maybe we could look at retrofitting some of these toilets with a retractable foot platform, or something along those lines, instead of a sign.
This comment is utterly inappropriate for HN - there's nothing xenophobic about the GP comment, you're just using that phrase incorrectly to emotionally manipulate other readers.
Erm, how exactly do you think we’re going to educate people on the “normal” way of using a toilet, if it’s not educational signs above toilets?
Do you imagine some kind of toilet license? Where people have to take toilet train and demonstrate their competence in front of an examiner?
Or perhaps at every border, non-citizens are given mandatory toilet training.
Or perhaps you’re gonna follow everyone into to the toilet and tell them how to use it correctly.
Your issue is with people not learning your native culture, but your evidence for people not learning is educational material that teaches people your culture. So it does rather seem your problem is that your specific culture isn’t the world wide norm.
Bad example. I believe squat toilets are actually better for you (less strain to use) so really there is a case to be made we (those who do not use them) should follow those who do.
you know that the melting pot analogy is meant to say that we integrate immigrant cultures into "our" culture by both changing the immigrant culture and the dominant culture. The contents of the pot as a whole are less changed than the individual components are.
I think you may be thinking of the Candaian conception of a cultural mosaic.
I don't think your evidence supports your argument at all. Pick any consistently governed region, even one with regime changes. Compared to the UN, which is unable to affect some of the worst genocides in recorded history. As well as the League of Nations, an institution notable for accomplishing nothing. Nothing is immune to external threats but institutions that avoid them by doing nothing on critical issues are not the most inspiring examples.
The rule of law is our best attempt at codifying Individual freedoms, outside and above the power of the state. Definitely a noble goal, but leads to the observations made by the parent comment.
Um, you do realize that the League of Nations was a failure? And that the UN, although at least it still exists (unlike the LON, which only lasted a decade or so), has not accomplished anything meaningful in terms of enforcing actual norms of behavior?
Heartily disagree. Having an avenue where nations can be shamed for their crimes against humanity as well as a central org that both announces common human rights and monitors for them is immensely useful on any normative ethics yardstick, whether utilitarian, essentialist, effective altruism, and so forth.
> Having an avenue where nations can be shamed for their crimes against humanity
Many nations have continued to commit crimes against humanity since the UN was founded, without any shaming at all. Some of them have had their leaders praised and given awards and invited to be keynote speakers at conferences at the same time that their crimes against humanity were in full swing (for example, Robert Mugabe). And two of the most egregious such nations, Russia and China, have permanent seats on the UN Security Council.
It is true that the UN has shamed some nations for crimes against humanity (the Milosevic regime in Serbia, for example). But that just makes the lack of shaming in so many other cases worse, especially when the cases that are ignored are at least as egregious as the cases that are shamed.
Dude. I was just listening to my taxi driver tell me about how the UN helped him escape from war at 14 and got him to this country (Norway) where he’s been able to have a decent life. I’m not sure you know what you’re talking about.
Hasn't humanity been having at least one war since ... forever? I think the norm is war and what isn't normal are bullets and bombs that do far more collateral damage than "normal."
Um, the state of the world today? Read the preamble of the UN charter and ask yourself how well the UN has actually done at moving the world in the direction of those things.
The fair point of comparison would be to contrast it with what the world would be like without it.
And neither I, nor you can make such a contrast fairly. It immediately goes hard into speculative-fiction territory, and such an exercise would educate us about our own biases, more than we'd learn about the UN.
I think what may be missing from the discussion at this point are
distinctions between law and equity and different kinds of judgement
in statutory versus common law.
The ideal in jurisprudence is that we _always_ have equity - the
ability to interpret the law and apply it in each specific cases.
The "opposite" is statutory law. Like you get a speeding ticket
regardless of any mitigating situation.
So you were rushing to the hospital in time for your pregnant wife to
give birth before your dying father breathes his last.... Cry me a
river. $200 fine! Next case.
Mechanical justice is cheap and rough. Statutory law fits perfectly
with our capitalist society, efficient, inflexible, uniform, quick and
cheap. Judges and juries are expensive.
Others mentioned the Chinese concept of Li (loi?) and the "spirit of
the law", which are casualties in a technocratic society.
> Statutory law fits perfectly with our capitalist society, efficient, inflexible, uniform, quick and cheap. Judges and juries are expensive.
This seems a bit of a false equivalence. Capitalist societies are the ones that are based on liberalism and think individuals are important - important enough to make companies and agreements between each other. They quite often are the ones that also think individuals are deserving of justice in and of themselves, not based on what group someone has put them in.
Are you not confusing democratic societies with capitalist ones?
I mean, there's some overlap, but if we're talking about clumsy
equivalences... :)
And to be honest I see ever less intersection between actual current
"late stage" capitalism and the "rule of Law". Those I know in the
legal profession complain we are in state of "lawfare", a state in
which most of the common principles of justice have broken down in
favour of "justice for the rich" (I realise many Americans take that
to be perfectly normal)
How about I use the expression "greed driven societies" instead?
> Are you not confusing democratic societies with capitalist ones?
Well, they both are rooted in the idea that individuals are important, which is a relatively new idea, all things considered.
> How about I use the expression "greed driven societies" instead?
You can do, except I think it's not helpful, as you're joining the ranks of the people who misuse the word "society" to mean "how I happen to think about the stuff I don't like in the world".
> I think it's not helpful, as you're joining the ranks of the people
who misuse the word "society" to mean "how I happen to think about
the stuff I don't like in the world".
Helpful to who?
I see it differently. I think it helps us all to aspire to clear
values. Karl Popper thought "there is no society". Lady Thatcher
thought we merely misused the word society, not as you say - to
universalise social facts - but to forget our "duty" (Thatcher's
words) to ourselves and our neighbours (my emph). Thatcher sincerely
saw business as a social good, as do I. Using the word society in that
way is avoidant. You seem to think that's what I am doing?
Social facts exist, at least in Durkheim's view as behaviours and
attitudes. They definitely include greed and selfishness as
psychologically measurable traits. You may not think much of sociology
and psychology, but to a lot of people they are solid sciences.
Moral judgements are also social facts. And for us Christians (as a
moral framework), greed is more than a neutral, observable fact. It is
an ugly weakness.
The hoarding of power and wealth by a tiny minority to assuage their
insecurity , while returning nowt but "disruption" to the world is
objectionable. Being parasitic upon the rest of the population
is a harm.
So I've no problem declaring, greed, vanity, megalomania as "stuff I
don't like in the world". Others may or may not agree with me. As an
individual, you may disagree. But as an individualist you must
concede my equal right to call out greed and selfishness as harmful to
the rest of us - even without a "Logical basis". Further, you must do
so without criticism.... unless you deny the existence of social
facts, or yourself find greed attractive and virtuous?
> I see it differently. I think it helps us all to aspire to clear values.
But which "us"? That's my point. You aren't talking to all of society (assuming "us" was all of society), so you using it like that doesn't even theoretically do this.
> Social facts exist, at least in Durkheim's view as behaviours and attitudes.
This isn't the same as "society". My point is that the definition of "society" changes dramatically based on where you live and what you consume. It's like a giant straw man.
> So I've no problem declaring, greed, vanity, megalomania as "stuff I don't like in the world". Others may or may not agree with me. As an individual, you may disagree. But as an individualist you must concede my equal right to call out greed and selfishness as harmful to the rest of us - even without a "Logical basis". Further, you must do so without criticism.... unless you deny the existence of social facts, or yourself find greed attractive and virtuous?
It's hard to make sense through the purple prose, but maybe I can pick something out. You're not calling out greed; you're calling an entire society greedy. That's the problem. All the rest of what you said here doesn't seem relevant.
I agree you said that. I disagree that it's true. If I go to my kid's football kickabout, run mostly by volunteer parents, or I attend a local street party, or go for a pub quiz night, or any of many societal endeavours, I don't see greed.
As of 2019, the US had 50 million immigrants[0] living there, either 1st or 2nd generation. Far more than any other country. Are those immigrants really all just idiots for moving there?
If you think the US is a wasteland, it sounds like you're American.
But you DO have a second line of defense even in your culture because that sort of thing DOES happen even in your culture only perhaps less often.
With respect to the Flipper Zero, I don't understand how culture solves this particular problem. I'm not sure I'd want to be in a culture that solved this particular problem a priori. I think I'd prefer to be in an imperfect Rule Of Law society that adapted albeit imperfectly to new problems as they appeared.
And now we come to the unfortunate fact that there is no equivalent in English for the distinction between Recht and Gesetz, or droit and loi, both being subsumed under the term law. The former is an immanent thing, a "shared search after justice". The latter is temporal, it is written down and itemised in Strafgesetzbuche and Codes Civiles, and is very appealing to HNers because we can read "common standard for some subset of behavior" and think "I can put this into a computer". But that Law is not The Law. And The Law is not even Society. It's something we yearn for or desire, and our confidence in society varies with our confidence that our neighbours are also yearning for it with us. The rule of law is a feeling, man.
English common law is largely not codified but the result of practices and precedent, and is still part of the legal system in most English-speaking countries, as opposed to continental-style civil codes that you mention which are more explicit. I do think that distinction exists in the English-speaking world.
I think "spirit of the law" can be interpreted as how the (written) law was trying to get at The Law. But even that spirit is not The Law. Here's an example - modern Germany defines itself as a Rechtsstaat. On the face of it this is a "State of the rule of law". But this fails to capture what distinguishes it from a hypothetical Gesetzstaat, so Wikipedia also tries on "state of justice and integrity" and "constitutional state" to get the distinction across. And the absence of Recht - a Nichtrechtsstaat - is one "based on the arbitrary use of power".
The historical context is that of trying to define what in a state should set it apart from both the 3rd Reich and the DDR.
I suspect many Germans have varying personal interpretations (not being German). However, StackOverflow has a question/answer [1] where the most general answer is "right or freedom as in Recht auf freie Meinungsäußerung being 'freedom of speech'".
Otherwise, tends to represent "the encompassing scope of all laws" vs "the interactions of a single law."
The "the spirit of the law" tends to be more like: "what did we believe the law was supposed to do vs what does it actually result in if you're a rules lawyer."
Games have a lot of that with little oversight, legal laws tend to get publicly challenged. We made a rule where all the miniatures have to stand in squares, except now all anybody does is abuse the facing and distance rules.
Perhaps what you are trying to express as "shared search after justice" could be thought of as a "Social Contract"; a non-codified agreement of how society (should) co-exists, in context of said Society.
I have to object that the rule of law isn't about the extent of laws and enforcement but rather about making whatever enforce exists systematic, fair and so-forth.
The concept of rule of law never implied the replacement of custom with bureaucracy - although that often happens. It implied the replacement of the venal authority of kings and nobles with codified principles. Especially, as the parent points out, customary honesty isn't based on any enforcement system.
I think what he actually described is why the rule of law is not a replacement for a good ethical framework that is shared culturally.
I didn't read his post as advocating for no laws or replacing the legal framework. I read it as advocating for rebuilding a shared ethical framework for the culture.
What the article is describing is not the rule of law.
The rule of law would be: make theft a crime, and enforce that. Not: criminalize the use of security research tools to show which vehicles are more susceptible to theft.
> What you seem to want is for civil law to be subordinated in favor of common law
I think what the GP poster wants is to have the law limited to criminalizing things that are actual crimes, like theft, not things that are inconvenient to the rich and powerful.
I don't remember the terms but there's a category of crimes that are "crimes because that's what the written law says"(i.e. driving without a license) and "crimes that morally abhorrent and actual harm to someone"(i.e. murder, theft)
"Actual crimes" would be category 2.
Building or owning a flipper zero would be in category 1. (As would laws that ban things like owning/carrying lockpicks without being a licensed locksmith)
The problem with rule of law is that it's like a very sloppy program that relies heavily on global variables. Whether it's the constitution or any of the million codes they all have implicit assumptions or vague language that requires a certain cultural or ethical baseline to interpret properly. Just the 2nd amendment is already a plenty popular example.
"What you seem to want is for civil law to be subordinated in favor of common law,"
I must have missed that. I do not see them making that point.
"To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently."
I don't know that I would call this a perfect example. This is extremely narrow and doesn't dive into many aspects of the relationship. I'd say it's more focused on individuals giving up freedoms on the notion that those freedoms don't benefit them personally, but could pose some harm to them if others are allowed to exercise them, without realizing that the same thoughts can be used against them in the future. More a tyranny of the majority than role of government discussion, even if somewhat related.
I'd say OP actually talked about two different things. The abstract description in the first paragraph is the rule of law (which I agree happened a long time ago, and is a good thing for a democratic society), but the concrete gripe in the later paragraphs is a different thing.
Rather, it's something like the difference between laws applying to individuals who may violate normative behavior ("it's illegal to steal"), or whether laws (in this context aka "regulations") apply continuously to above board businesses, with the goal of a priori preventing individual violations of normative behavior ("it's illegal to make a car that can be easily stolen").
‘Rule of law’ is the concept that no one is above the law, as opposed to having a specific ruler that can do as they please. It doesn’t really have anything to do with the comment you’re replying to, which would be the same idea if it were decreed by an untouchable supreme leader.
A constitution is written and codifies the process for making ratifying and enforcing laws. That then is the common standard for some subset of behaviors as defined by the constitution which defines who it does and does not apply to. Different constitutions outline different processes but the structure of the “Rule of Law” is the same.
This is in contrast to other structures like pure monarchies (unlike constitutional monarchies) which have a “divine” process for defining the structure of the governed land.
What you seem to want is for civil law to be subordinated in favor of common law, but that simply kicks the can and doesn’t actuall solve the problem.
What’s actually happening right now is that society at large is questioning the foundational assumptions of society. To Wit this is a perfect example of effectively questioning the foundational function of governance in the post World War II world while also not being aware of it apparently.