Re: Australian law was: Re: Skype access cancelled for Debian versions before 7
Well, now maybe I can find a place to sort of drag this thread back
almost on topic for the list.
On Mon, Aug 4, 2014 at 9:28 PM, Andrew McGlashan
<andrew.mcglashan@affinityvision.com.au> wrote:
> On 4/08/2014 9:04 PM, Lisi Reisz wrote:
>> On Monday 04 August 2014 09:44:31 Andrew McGlashan wrote:
>>> I wonder about Kirby myself. To me, it shouldn't be the court deciding
>>> a matter of fact via *their* opinion. If the law says "xa" and the
>>> opinion says "xb" ... then it is up to the parliament to correct the
>>> situation if it is faulty, not the courts to decide "xb" instead of the
>>> letter of the law that is "xa". I could never understand how the courts
>>> could get away with that. Judges should not be judge and jury as they
>>> often are, they should only rely on the facts, 100% facts of the law,
>>> not their opinion to make a judgement against the facts and Kirby seems
>>> to be a great offender of my view of what is required here.
>>
>> Australia uses English Law, i.e. Common Law. This paragraph is therefore, I'm
>> afraid, simply wrong. You are recognising Statute Law, and ignoring Common
>> Law. Common Law is at least as important, and goes back a lot further. It
>> *is* the courts that decide and not Parliament. Even with Statute Law, it is
>> the courts which decide what it means and how it is to be applied.
>>
>> One can argue that there is a lot wrong with English Law. I frequently do.
>> But it is, as a matter of fact, much as you or I or anyone else may dislike
>> it, the courts that decide the facts and not Parliament. A barrister can
>> give an opinion. A judge decides the facts (as they stand in law, which may
>> bear very little resemblance to the real world).
>>
>> "The common law system, as developed in the United Kingdom, forms the basis of
>> Australian jurisprudence."
>> http://www.dfat.gov.au/facts/legal_system.html
>
> Yes, I do understand what you are saying. If the law is open to
> interpretation, then chances are it hasn't been written properly.
It's funny, because I would say the exact opposite.
> It
> should be black and white ... that's why people get away with loopholes.
Laws and computer programs have some things in common. Some things not
so much in common.
One thing they have in common is bugs. It's impossible to write a
bug-free program. And it's impossible to write a law without the legal
equivalent of bugs.
One point of difference, in programs we group design bugs and
implementation bugs under the one umbrella of bugs. In laws, we have
the term loopholes, and we sometimes talk about bad law. But loopholes
are not necessarily bugs. And bad law can be bad by design or by
implementation, but calling law bad-by-design is so close to an
assertion of treason that we too often hesitate to do so.
It's a similar problem to discerning between a bug and a feature, but
we are supposed to be operating according to the law while we are
trying to analyze its correctness. And we know about programs that try
to analyze themselves for correctness, but we don't have any
alternative with the law. Unless someone or something is above the
law, and we know better than to try to make any human above the law.
At least we should.
> A judge should adjudicate according to the facts, not according to /his
> or her/ opinion of those facts and how they relate to the actual law.
> The judge's opinion should come in to sentencing, rather than guilt or
> innocence.
Perhaps the biggest difference between law and computer programs is
that programs have a fairly-well defined CPU and run-time environment
to run the program in.
Law, no. Each human is different, each human's context (life,
family/friends/neighbors/enemies, history, etc.) is different.
Sometimes so drastically different that no agreement can be found on
the meaning of fairly simple concepts like "sweet" or "bitter".
Or "guilt" and "innocence".
> If that is not true, then it's just another reason to call
> the law an ass.
Ever wonder why I call MSWindows a bad OS? (I know you probably don't
care why I do, but you should be wondering why you have whatever
opinion you have of Microsoft's or Apple's or whomever's software.
> And sure, if there are natural common law rights that are being trampled
> by the statute law, then perhaps then the statute is invalid and it
> should be referred back to parliament to fix the law to suit the facts
> and/or intention appropriately.
Or perhaps the traditions which common law represents have some failing in them.
Either way, I would prefer the law-making bodies spend more time
examining the appropriateness of existing law than making new law.
Kind of like I'd like Microsoft to quit making new OSses and fix the
ones they've already foisted on the world, but at least we almost have
a choice to avoid Microsoft.
(Start fixing them by putting a real OS underneath. Kind of like the
real way to fix the old Mac OS was something we already had, but Apple
didn't want to release A/UX at non-industrial prices. Kind of like the
way to fix sysvinit is not by replacing it by the monolithic kernel
wrapper systemd, but by figuring out what the heck sysvinit was
supposed to do, let it do just that, and add other reasonably limited
tools to handle what the init system doesn't.)
--
Joel Rees
Be careful where you see conspiracy.
Look first in your own heart.
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