Friday, March 31, 2017

What is law? - Part 6

Previously: What is law? - Part 5.

To wrap up our high level coverage of the sources of law we need to add a few items to the “big 3” (Statutes/Acts, Regulations/Statutory Instruments and Case law) covered so far.

Many jurisdictions have a foundational written document called a constitution which essentially "bootstraps" a jurisdiction by setting out its core principles, how its government is to be organized, how law will be administered etc.

The core principles expressed in constitutions are, in many respects, the exact opposite of detailed rules/regulations. They tend to be deontic[1] in nature, that it, they express what ought to be true. They tend to be heavily open textured[2] meaning that they refer to concepts that are necessarily abstract/imprecise (e.g. concepts such as "fairness", "freedom" etc.).

Although they only make up a tiny tiny fraction of the corpus of law in terms of word count, they are immensely important, as essentially everything that follows on from the constitution in terms of Statutes/Acts, Regulations/Statutory Instruments and case law has to be compatible with the constitution. Like everything else, the constitution can be changed and thus all the usual "at time T" qualifiers apply to constitutionality.

Next up is international law such as international conventions/treaties which cover everything from aviation to cross-border criminal investigation to intellectual property to doping in sport.

Next up, at local community level residents of specific areas may have rules/ordinances/bye-laws which are essentially Acts that apply to a specific geographic area. There may be a compendium of these, often referred to as a "Municipal Code" in the case of cities.

I think that just about wraps up the sources of law. It would be possible to fill many blog posts with more variations on these (inter-state compacts, federations/unions, executive orders, private members bills etc.). It would also be possible to fill many blog posts with how these all overlap differently in different situations (e.g. what law applies when there are different jurisdictions involved in an inter-jurisdictional contract.).

I don't think it would be very helpful to do that however. Even scratching the surface as we have done here will hopefully serve to adequately illustrate they key point I would like to make with is this: the corpus of law applicable to any event E which occurred at time T is a textually complex, organizationally distributed, vast corpus of constantly changing material. Moreover, there is no central authority that manages it. It is not necessarily available as it was at time T - even if money is no object.

To wrap up, let us summarize the potential access issues we have seen related to accessing the corpus of law at time T.

  • Textual codification at time T might not be available (lack of codification, use of amendatory language in Acts. etc.)
  • Practical access at time T may not be available (e.g. it is not practical to gather the paper versions of all court reports for all the caselaw, even if theoretically freely available.)
  • Access rights at Time T may not be available (e.g. incorporated-by-reference rulebooks referenced in regulations)

All three access issues can apply up and down the scale of location specificity from municipal codes/bye-laws, regulations/statutory instruments, Acts/Statutes, case law, union/federation law to international law and, most recently, space law[3].

We are going to glide serenely over the top of these access issues as the solutions to them are not technical in nature. Next we turn to this key question:
Given a corpus of law at time T, how can we determine what it all means?


See you in Part 7.

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