Spirit of the Law

More and more often in the various types of news outlets we can read about horrifying applications of the law, that seem too harsh, too disconnected from actual damage done, or completely unrelated to the actual idea behind the original law that has been enforced.

And I am not really talking about criminal law - more like patent, copyright or similar laws that have been created to give some benefit to society as a whole, by enforcing some rules on individuals or granting privileges to some.

Patent law is the most obvious example - originally patents were introduced, so inventor could have limited time monopoly on usage of his idea, so there would be some more incentive for people to invent things. Mind you - even without patents invention happen - patent law just made it more beneficial to do so, hence improving the rate of innovation.

Nowadays we have abstract concept of patent and no-one really cares much about original intention of the law, about why it was introduced in the first place. When you look at Apple suing Samsung about roudned corners, or some companies patenting concepts of math, and others mass patenting anything they can think off, but never actually producing anything based on the patented ideas - just keeping patents for intent of suing - where is the original spirit of the law in all this madness?

There are of course other examples, most similar being copyright - how exactly does society benefit from royalties being paid to authors relatives after he has been dead for decades? Creators have to be rewarded for their work, no doubt, but their grandchildren? How they can have 'rights' on old songs sung by their long deceased grandpa? How exactly does it help us as a society? You as a creator create something, you make money off of it, if you manage your accounts wisely, you end up leaving nice pile of gold to your kids as an inheritance. And that's should be it. No '77 years after authors death' type of nonsense.

Those are just most known examples, I am sure there are tons more laws that have been completely stripped of their dignity and with entire industries around them, that live and prosper on interpreting the law the way they like it.

There are two ways I think that could rise level of legal sanity.

First is - mandate that lawmakers always write down not only law itself, but also description on 'why' it has been introduced. Say, you as a lawmaker from last century, introduce bill to criminalize homosexuality, with true belief that it is disease that can be transmitted, or 'though' to others. If that reasoning is written down in a 'why' section of the law, then, after it has been scientifically disproved, it would lot harder to keep law alive as well. But if there is no 'why', politicians can simply keep law for granted and never change it, but just keep adjusting unwritten reasoning of why law exists.

Ban marihuana as something very unhealthy, and then when that is disproved, come up with new kind of reasoning on why it should stay banned. Or invent value added tax as 'temporary measure', and consider it a cornerstone of taxation half a century later. De facto, with no reasoning.

Add "why" to laws, that is first approach. Second one I offer is special court where one could appeal other courts decision on the basis that it is not according tot he spirit of the law. This is taking on the problem from very different angle than first suggestion, but still could be effective.

Currently, depending on the country, you usually can appeal to the higher courts either on the basis that verdict is wrong or on the basis that sentence is not adequate. And usually only highest courts, constitutional courts or supreme courts deal with sanity of laws themselves. And obviously it is rare that one gets to appeal there.

So, lets introduce lower level courts, that would try to deal with appeals based on spirit of the law. If you feel that first court has ruled correctly and according to the current law, albeit stupid one and not really meant for this, you do not appeal to higher order court that would try the case using the same approach - instead you appeal it to the court of spirit of the law. And there, judges try to figure out original intentions of the law and how do they compare with current case, how it was interpreted and how to interpret it better.

And after judgment by this court, case can be escalated to constitutional court, or some intermediate institutions, if participants do not agree with the result. If enough cases reach the top court, where they often have some kind of power over lawmakers as well, law can get changed. Maybe even with 'why' clause included.

Of course, such system would need to have some safeguards built in, so large corporations would not start to flood it with 'rounded corners' type of patent wars as well. Maybe if complaint would be considered stupid, court could put some penalties on complaintant as well. And as this court would be all about common sense, they probably could judge what is reasonable to complaint about and what not.

Now where to get people to staff such courts? Some sort of monastery of common sense?