It has sometimes occurred to me that if the original intention of a law was clearly laid out as formally part of the law itself, it would be a great aid to later attempts at interpretation. But something about the informality of conveying intention seems to defy codification. In business, legal documents are often assumed to be only one aspect of an overall approach to communication. An architect may have an enormous set of drawings, dense with information, but without certain informal clarifications (whether by phone, email, etc.) to the recipient of these legal documents the same documents are if not useless, at least much more cumbersome to use and resistent to understanding.
Since I’ve not thought much about this, I assume there are probably very good reasons for not writing intention into law (or maybe intention actually is written into law?). Maybe one good reason has to do with flexibility of use? Anyway, I wonder what others have to say about this.
On a side note, I think the relationship between religious laws and their original intention or inspiration is also an interesting subject.
They are more flexible without the intent, so they can be applied to a variety of situations, oftentimes ones not foreseen by the framers. The Bill of Rights is a good example of this, where a lot of ambiguity is built in. Same deal with regulating interstate commerce and how that has become the strong arm the federal government uses. It is important to be able to adapt, and ambiguity allows for that. Otherwise why bother having a judicial branch?
I think it goes both ways, though I’m tending towards Faust’s view. What I’m specifically wondering here is whether the spirit of the law can be more formally conveyed in the law itself. Or if there is room for informal language within formal law. And if this would be fruitful.
Xunzian, if what you’re saying is true then to a degree it implies that the spirit of the law doesn’t even matter - all we need is a clever formal system, resulting from some human need for structure. For instance in religion it would imply that it doesn’t really matter what the religion is, as long as there is authority and structure to relate to. Without a sincere concern for the spirit of the law, that system of laws becomes ripe for manipulation by whatever power comes along and finds it handy. I know you’re probably not going as far as that, but I wonder if it’s about balance between letter and spirit, which I suspect we both agree on, I would think tipping the scales towards spirit is both more flexible and more stable. Afterall, if a law is enacted outlawing burning barrels and the point revolves around environmental issues, and then we find out the burning barrels have nothing to do with environmental issues, but the law is convenient in how it represses rural people so it’s kept on the books and enforced… (Sorry for the misleading example, but hopefully it conveys what I mean. I couldn’t think of a more correct example.)
By the way I’m thinking as I go along, in case I seem to be waffling.
That is the starting position I take to religion. Philosophy as well. First have a structure, then see how it works. Tweak as necessary.
Well, again, this is why a judicial branch is necessary. They decide what the law means. If the executive and judicial branches are rolled into one mega-branch, yeah, there is a problem there. But separation of powers exists for a reason.
