(I also turned this piece into a thread on my twitter)
Over the past while I’ve been doing kind of a dive into law (primarily but not exclusively by listening to the excellent podcast Divided Argument). In doing so I think I’ve gained something of a handle on some of the theoretical concerns of law. So let me write out my thoughts, in case someone is interested.
The ideal of law is the following:
A majority of legislators envision exactly what they want a law to do, what scenarios it should be applied in
They codify that vision precisely into law
People (the public, businesses, the government) largely do what the law says
In the few instances where that does not happen, the court enforces the law
The law is enforced consistently in a way consistent with (1) and (2)
If any of these bullets aren’t satisfied, that’s where you get clashing judicial philosophies:
What should you do with a scenario that the legislators did not envision, and thus is left ambiguous in the text? What should you do when the different people drafting the law had different visions?
What happens if what the legislators write clashes with what they intended to write?
What should you do if people just keep breaking the law despite robust legal enforcement?
What should you do if a law is on the books but is rarely or never prosecuted? Is it right to enforce that law?
What should you do if the prevailing legal interpretation until now is at odds with the law’s text or intent? When should you change things?
Not all of debates of legal philosophy come down to these questions, but I think many do and I think this is a useful, clear background perspective to have before approaching specific legal questions.