Laws should be written to tell people what they can't do, not what they can do

MajesticDonkey · 26-02-2015 01:06PM #1

I'm not overly competent when it comes to how and sometimes why laws and statutes are written, but I've always believed that if we want proper freedom in society, why do we write laws that tell people what they are allowed to do, instead of having no law at all? In other words, why not just have laws that tell people what they cannot do?

Take for example to upcoming referendum on same-sex marriage (please note here that there is a good chance I may not know what I'm talking about). The plan, if I'm not mistaken, is to add a new section with the wording: "Marriage may be contracted in accordance with law by two persons without distinction as to their sex". Why not just remove the section, that outlines how marriage can be contracted, completely?

Opinions?

freelancerTax · 26-02-2015 01:09PM

probably because you would get weirdos trying to marry animals and objects

marriage should be between PEOPLE

MajesticDonkey · 26-02-2015 01:11PM

Interesting point, thanks

I suppose in a legal sense, a situation like people actually trying to marry objects would have to be covered?

What about in other situations?

johnnyskeleton · 26-02-2015 01:15PM

MajesticDonkey wrote: »

I'm not overly competent when it comes to how and sometimes why laws and statutes are written, but I've always believed that if we want proper freedom in society, why do we write laws that tell people what they are allowed to do, instead of having no law at all? In other words, why not just have laws that tell people what they cannot do?

Take for example to upcoming referendum on same-sex marriage (please note here that there is a good chance I may not know what I'm talking about). The plan, if I'm not mistaken, is to add a new section with the wording: "Marriage may be contracted in accordance with law by two persons without distinction as to their sex". Why not just remove the section, that outlines how marriage can be contracted, completely?

Opinions?

Well, generally that which is not prohibited is allowed. In relation to things like marriage etc, this is both a religious/cultural institution and a legally binding relationship/taxation status. You are free to enter into any religious or cultural institution you want, and as the law stands you can enter into a same-sex marraige or call your same sex partner your husband or wife. But the law does not recognise this as a lawful marraige and so you don't have the legal status of a married couple or the taxation benefits.

As to why the law will sometimes tell people what can be done instead of what cannot be done, these are two sides of the same coin. So one could say that when the constitution says that a man and woman couple can get married, what that means is that every couple which is not a man and a woman couple is prohibited from getting married. The difference is a matter of the language used rather than the substance of the law I suppose.

Ken. · 26-02-2015 01:19PM

Law book saying what you can do= couple hundred pages.
Law book saying what you can't do= chopping down every tree in the world to make the paper for it for one country alone.

conorh91 · 26-02-2015 08:25PM

We already have the appropriate mixture.

The general approach of the criminal law is proscriptive.

The laws that tend to be prescriptive are architectural, i.e. the law that designs constitutional and administrative infrastructure; and the laws that underpin commercial activity, and thereafter allow for political and commercial freedoms. This prescriptive 'architecture' creates the legal certainty and commercial freedoms which make Ireland a liberal and civilized state.

In terms of legal certainty and the criminal law, it hasn't even been catalogued properly, and even the codified law is inexcusably disorganized. For a small country like Ireland, which has only a fragmentary case law, this leaves us heavily reliant on the English courts.

In my opinion that is the most serious deficit in our legal system. In fact, given our size, it's questionable whether we should have a common law system at all, but that's for another debate.

How is this relevant to your OP? Because legal certainty is what really matters, and whether that certainty is framed in terms of negative or positive duties is not a problem right now.

MarkAnthony · 26-02-2015 09:34PM

OP you raise a point that has been discussed by jurisprudential scholars for generations. It's an excellent discussion point.

As for what people can do - think of contracts; is it not better to have a framework in place to aid business? Does that framework not need to be a mixture of both elements? Is it enough to just have 'alluring motives'?

Uno my Uno. · 27-02-2015 01:09PM

conorh91 wrote: »

We already have the appropriate mixture.

The general approach of the criminal law is proscriptive.

The laws that tend to be prescriptive are architectural, i.e. the law that designs constitutional and administrative infrastructure; and the laws that underpin commercial activity, and thereafter allow for political and commercial freedoms. This prescriptive 'architecture' creates the legal certainty and commercial freedoms which make Ireland a liberal and civilized state.

In terms of legal certainty and the criminal law, it hasn't even been catalogued properly, and even the codified law is inexcusably disorganized. For a small country like Ireland, which has only a fragmentary case law, this leaves us heavily reliant on the English courts.

In my opinion that is the most serious deficit in our legal system. In fact, given our size, it's questionable whether we should have a common law system at all, but that's for another debate.

How is this relevant to your OP? Because legal certainty is what really matters, and whether that certainty is framed in terms of negative or positive duties is not a problem right now.

I'm not disagreeing with your point exactly but it is worth remembering that upon till just less than a century ago Westminster Statutes and English Decisions were binding in Irish Courts. When that is considered it is reasonable and rational for us to continue with a common law system.

Victor · 28-02-2015 10:38AM

As we don't have a separate bill of rights, the Constitution has to set out certain things as permissible. Otherwise, the Oireachtas could do pretty much anything it liked.

The Constitution doesn't say a whole lot about marriage, it says more about divorce.

THE FAMILY
ARTICLE 41

...

3 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –

i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii there is no reasonable prospect of a reconciliation between the spouses,

iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv any further conditions prescribed by law are complied with.

3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

bryan_w · 07-03-2015 08:39AM

johnnyskeleton wrote: »

Well, generally that which is not prohibited is allowed. In relation to things like marriage etc, this is both a religious/cultural institution and a legally binding relationship/taxation status. You are free to enter into any religious or cultural institution you want, and as the law stands you can enter into a same-sex marraige or call your same sex partner your husband or wife. But the law does not recognise this as a lawful marraige and so you don't have the legal status of a married couple or the taxation benefits.

I understand your confusion but there are no same sex marriages in Ireland, for taxation purposes a civil partner is treated the exact same as a married partner. They receive the same benefits.

Laws should be written to tell people what they can't do, not what they can do

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