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- Oliver Wendell Holmes discusses the purpose of incarceration in The Common Law [1], and I've found it to be insightful when thinking about what the purpose of prison is.
> It has been thought that the purpose of punishment is to reform the criminal; that it is to deter the criminal and others from committing similar crimes; and that it is retribution. Few would now maintain that the first of these purposes was the only one. If it were, every prisoner should be released as soon as it appears clear that he will never repeat his offence, and if he is incurable he should not be punished at all. Of course it would be hard to reconcile the punishment of death with this doctrine.
> The main struggle lies between the other two. On the one side is the notion that there is a mystic bond between wrong and punishment; on the other, that the infliction of pain is only a means to an end. Hegel, one of the great expounders of the former view, puts it, in his quasi mathematical form, that, wrong being the negation of right, punishment is the negation of that negation, or retribution. Thus the punishment must be equal, in the sense of proportionate to the crime, because its only function is to destroy it. Others, without this logical apparatus, are content to rely upon a felt necessity that suffering should follow wrong-doing.
It goes on from here in great depth. Recidivism as a metric of the effectiveness of prison is not misguided, per se, but is not sufficient. The deterrent effect of imprisonment is hard to measure; the punishment aspect is impossible to measure.
I agree, on a purely subjective basis, that we have tilted way too far in the direction of retribution and deterrence, to the point where we have maxed effectiveness as a deterrent, and have more than satisfied the "blood lust" of the victims of the crime (that is, reducing vigilantism and private retribution to a non-factor).
[1] http://www.gutenberg.org/files/2449/2449-h/2449-h.htm#link2H...
- Even a dog distinguishes between being stumbled over and being kicked. "Early Forms of Liability," Lecture I from The Common Law. (1909).
Oliver Wendell Holmes
- I think your point is basically that you want human law to be as clear, definite, unambiguous as scientific theories or mathematical proofs should be. I think this makes you an extremist legal formalist/textualist. Firstly, I think your reasoning is slightly fallacious: it seems you may be implicitly concluding that features that are useful for mathematics and science would be useful for law, too, just because of their effectiveness when applied to math or science.
While I agree that lawmakers are too often too sloppy, with many laws being unnecessarily ambiguous; I disagree with your supposed goal.
The first problem that comes to mind is that not even mathematics is done in formal languages, but I think much deeper issues are at hand here. It is that semantics are hard, even when the grammar is unambiguous.
I found a relevant quote from a 1881 book by a future SCOTUS justice (Holmes), The Common Law. This is the very beginning of the book: The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.
These Wikipedia pages might be interesting:
* https://en.wikipedia.org/wiki/The_Common_Law_(Holmes)
* https://en.wikipedia.org/wiki/Philosophy_of_law
* https://en.wikipedia.org/wiki/Jurisprudence
If you want to get more "practical", try thinking about the real problems that Jefferson & co. would have had trying to express the Constitution, Bill of rights, or even more mundane laws as you would like. It's not just that there was no Lojban or Ithkuil back then and math was less developed, even today the expertise required simply does not exist, and it is not clear if what you wish is even possible.
I want to say that, although I disagree with you, thinking about the questions you raised has been a rewarding experience for me and I wish you luck in finding somebody smarter and/or more knowledgeable in the philosophy of law than me that you could discuss this with. Although, you may need to adjust your attitude to be less sour if you want more discussion, it will be more pleasant for other people if you manage to do that (I know that's difficult). I have a hunch you may also find some answers in science/speculative fiction, but, sadly, I can not remember a relevant work right now. I would like it if you could tell me if you get some interesting conclusions down the road.
- In first reading legal opinions when I started law school, I was handicapped by subconsciously imagining law to be a knowable engineering discipline, with accepted rules that could be learned and predictably applied. That's true to a certain extent, but only in roughly the sense that Ptolemaic astronomy is also true to a certain extent.
One might say that the practice of law is more akin to weather forecasting than to engineering. As Oliver Wendell Holmes Jr. famously said, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." [0] The basis for prediction is, in essence, looking to the outcomes of past power struggles between people who wanted what they wanted and sought to enlist others — courts, legislators, executives, the populace — in their cause.
Equally famously, Holmes said: "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." [1]
[0] O.W. Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897), https://www.constitution.org/lrev/owh/path_law.htm
[1] O.W. Holmes, Jr., The Common Law, https://www.gutenberg.org/ebooks/2449
- "The life of the law has not been logic; it has been experience." -- Oliver Wendell Holmes, Jr., The Common Law (1881) page 1. In other words, the Anglo-American system of common law is a system that has developed by generalizing from particular cases as they come up, and not by thinking from the top down about what kind of rules would be ideal.
It's rich with deeper meaning that there are a number of comments here about the development of rules and laws as we comment on an article posted on Wikipedia. I am one of thousands of volunteer editors on Wikipedia (since May 2010) years after having been (1) an editor of a glossy monthly bilingual publication about a foreign country as an expatriate resident of that country, (2) an editor of a series of English-language trade magazines about manufactured products from that same country, and (3) a student-editor (usually the only kind of editor such a publication has) of a law review. I started editing Wikipedia as late as I did, years after Wikipedia was founded, because when I first heard about Wikipedia I thought its editorial policies are madness--and, sure enough, the articles that resulted from the original policy included a lot of cruft. As Wikipedia has continued in existence, it has not been able to continue an Ayn Rand anarchy of bullies but has gradually had to develop rules and procedures and (a little bit of) hierarchy and organization. Most of the articles on the topics I do the most of my professional research in are still LOUSY, and I have been interviewed twice by the Wikipedia Signpost in the last several months about what needs to be done to improve articles on Wikipedia for various WikiProjects. The article kindly submitted here illustrates the problem, with its incoherent presentation of facts and speculation from a mixture of good and poor sources.
I live among the largest Somali expatriate community in the world outside Somalia (Minneapolis and its suburbs--we can listen to Somali-language local radio here since the 1990s) and have a new client for my supplementary mathematics classes whose family is from Somalia. That country's internal conditions during my adult life have been HARSH, and I don't envy any Somali patriot's task in trying to build up a country with peace, stability, and justice for all Somali citizens. I do wish all Somalis well in adapted customary legal systems to the modern world.
- It's a basic principle of administrative law that administrative regulations can only be adopted with legislative authority, which in this case was granted by a statute Congress passed. It should be possible to look up the second step taken on this issue as an administrative regulation, which was a public notice and comment period. I have read the official notices and public comments for other administrative regulations on other topics, and generally regulators get plenty of commentary from the public (with "public" of course including interest groups, but also private citizens) whenever a new regulation is in the notice and commment period. "The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." Oliver Wendell Holmes, Jr. The Common Law (1881), p. 1.
