Spirit of the Law vs. Letter of the Law

[elfwitch]

Which side would you normally go on?

[elfwitch]

1. My thoughts...

I figure since laws are made by men (not just males but the universal "man"), and men have agendas, then laws must be treated as a guideline. If you dogmatically adhere to a laws words, then there are chances that those laws can be wrong or narrow.

The spirit of the law allows us to decide what the intent of the lawmaker was at the time the law was made and to decide if that intent applies to the current situation.

I see it as the difference between the people who see the Bible as allegory or the inspired word of God versus those who wish to interpret it literally.

[On the Road]

2. If the Spirit Doesn't Match the Letter,

the law should be changed.

[pdmike]

3. Three Strikes Law a Good Example

Excellent post! I live in California, where we have the Three Strikes law. The third strike does not have to be serious or violent. "Any felony" can put a person away for life in this state if they have two, prior, strike convictions.

I think that's a pretty good example right there. Some person with two strike priors can be convicted of petty theft with a prior theft conviction (a felony) and get life for stealing a candy bar. I had a case (I am a criminal defense attorney) where my client got life for stealing a six-pack of double-A batteries from a grocery store.

Hopefully, they are going to change California's three strikes law in the near future to require that the third strike also be serious or violent before a person can get life.

pdmike

[demon67]

6. I believe in the rule of law, not the rule of the "spirit of the law."

Three strikes law is a decent example. If a law is unjust in certain circumstances, then the law should be changed. (For example, it could require that the third felony be of a minimum level of seriousness.) That is why we have legislators, to make new laws and to change or revoke poor ones. Once you allow unelected judges to deviate from the law based upon their own sense of the what the law should be or what it "really was supposed to say," you undermine democratic rule. This might sound like a good thing when you have thoughtful judges reigning in the excesses of a conservative Congress. But it works justs as easily in reverse.

[gottaB]

4. form/meaning

For me it's like asking, Do you normally understand words or the meaning of words?

In my view there's no one simple way to assess the meaning of words, or laws, but being a jurist requires privileging one interpretation over others. The worst quality in a judge is dogmatic arrogance, because it suggests that their interpretations are not arrived at through hermeneutic investigation and reasoning. Frequently, the dogmatists claim to be true to the letter of the law, whereas in reality their allegiance is to an ideology.

[Guaranteed]

5. People have a good, general idea of what justice

and freedom are. The Bill of Rights and the rest of the Constitution are guidelines in upholding these principles. But any holes within those guidelines can certainly be filled in judicially where needed to protect Americans' rights to freedom and justice.

[meow2u3]

7. The spirit of the law

Human language is imprecise as the the meaning of the law, so the letter of the law not only falls short of what lawmakers mean, but also loopholes can be found which can be exploited by criminals seeking to get off on technicalities, and also the opposite is true of using only the letter of the law: oppressing law-abiding citizens by making crimes out every little undesirable action.