If the laws created in the past with intelligent people, why lawyers find loopholes on it?


If the laws created in the past with intelligent people, why lawyers find loopholes on it?

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Because situations change over time and people ( aka lawyers ) can’t think of them all. It’s like coding and debugging

Lawyers are paid extremely well to argue against the laws to keep criminals away from the justice they deserve. That’s why we need Batman.

Because life isn’t black and white.

An example: Law, though must not kill another. Doing so is murder.

Seems simple, striaght forward, unproblematic, right? What about soldiers? What about in a country where execution is legal? Basically you end up having to rewrite simple laws to allow for so many exceptions and so many circumstances that things just fall between the cracks.

Because those laws don’t need to be intelligent, they need to be robust. And you don’t get that without years of testing them. The problem is that once we find a “bug” in the laws, lawmakers are reluctant to fix them sometimes. The real question is why do we leave obvious bugs in our laws?

1) technology changes not anticipated by the writers (eg you wouldn’t think to require people to wear seatbelts before the invention of a seatbelt, but normally a lot more complex). Laws are not updated very often, and a law may be being applied decades or even centuries after being drafted.

2) if you have two teams of equal size and intelligence, and one has to write a very expansive and long set of laws (think of maybe Obamacare or something on that scale), and the other team is just entirely focused on their small section of that (lets say a subsection effecting medical devices) and you can bet there’s a good chance they’ll find any tiny technicality you missed.

3) sometimes people drafting a law aren’t that good at it. These are proposed by elected representatives, a lot of whom are not particularly well trained in this. A sinister subset of this is that the loophole is put in specifically by people with an interest in it being there, either by lobbying or potentially by deceiving a gullible legislator.

Spirit of the Law vs the Letter of the Law

So common law is along the principal of you’ve done an injury to someone -> they can prove it -> you’re guilty. It’s far more about the intent of the law. The more specifics you write into law the more judges (and juries) are forced to look at the letter of the law. Now in this Information Age we focus almost exclusively on the letter of the law – meaning one misquote or something left out or vague language and all of a sudden the law is not enforceable anymore.

Perverse Incentives

No matter how well intentioned the law that you write is it normally gives rise to some form of opposite action or perverse incentive. For instance you want to reduce immigration so you introduce a law to make it much more difficult to apply for immigration. This gives rise to the perverse incentive that businesses will start employing more illegal immigrants for cheaper and simply pay the fines if they are ever caught.

Deliberate Loopholes

While some of us might be naïve enough to think that the politicians that write these laws are beyond reproach let’s be real and accept that politicians often have a hefty self interest in the laws that they write. In general new laws or new amendment starts out with good intentions but as the process goes on so the law is manipulated to often leave deliberate loopholes in place. The more honest politicians are normally worn down by time being a factor and the necessity to comprise (i.e. be political) to get the law passed.

The answer rather depends on the situation or code of the jurisdiction you are describing. Many situations aim to have comprehensive codes with no loopholes or opportunities for interpretation. Examples include countries where civil codes apply (much of the world including almost all of mainland Europe), and the laws of many sports. In such a system the two sides (or their lawyers) argue about what actually occurred, and once that is established the law can be applied unambiguously.

In common law jurisdictions in contrast laws are created by two processes: statute and precedent. This latter occurs when a court case exposes a “loophole” or ambiguity in existing law. The judge can decide that the ruling in the case creates a precedent, and so becomes law that other cases draw upon. The nice thing about this is that legislators don’t have to think so hard about all the edge cases and unintended consequences when writing statutes because there is a mechanism in place to iron those out as they arise. In other words, this is a feature not a bug. If the legislature don’t believe that a new precedent aligns with their intention when they wrote the statute they can amend it or pass a new statute that overrules the precedent and so renders it moot.

The disadvantage of such a system is that the amount of law just keeps increasing, so lawyers must maintain and regularly search through vast libraries of case law which makes court cases expensive.

I would point out that even in a common law system cases rarely hinge on lawyers finding loopholes. Generally it is the facts of the case, the quality of the evidence, or the applicability of specific laws that is up for debate.