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

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

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Anonymous 0 Comments

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.

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