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Tuesday, September 27, 2011

Law: Spirit, Letter and Intent (Part I)

1914 English Law (see Chapter 2)
(I happened upon this WSJ article today.  However, I had planned to write a discourse on "spirit" versus "intent" do to an interesting discussion with Mrs. Wolf the other day...)

When our country was founded in the 1700's one of the core legal principles in place was mens rea, or from Latin "guilty mind."

Our founders believed that we had to know what we were doing was wrong in order to commit a crime.

This is important because it ensures that the law, in order to be broken, must be "willfully" disobeyed.

If the law is not willfully disobeyed then no crime is committed.

From the earliest Biblical principles the "letter of the law" has been simple and clear: "Though shall not kill," and so on.  Concepts and laws that were easily understood by people of the time.

From the Biblical perspective things change in the New Testament where following the "spirit of the law" becomes necessary for salvation.

So what's the difference between the spirit and the letter?

Let's take "Though shall not kill" as a first example.  Pretty clear on its face.  If you are standing in the cattle pen and I walk in and strike you on the head with an ax and you die I killed you and I broke the "letter" of the law.  Now, what if you're standing in that same cattle pen and I, who am in the barn and cannot see you, release the bull who enters the pen, sees you, goes nuts and gores you to death?

If I knew you were there and had the intent to kill you?  I in fact did not kill you, the bull did.

I could argue the letter of the law as not broken - since "I" did not kill you.  But did I violate the spirit of the law?  I did if I knew you were in the cattle pen and I willfully released the bull in order to harm you.  In this case I violated the spirit of the law - I killed you but not directly.

On the other hand, had I not known you were there or had no intention of harming you then I did not break the law because the bull killed you through an unfortunate accident.

Before the last twenty or so years mens rea was used to distinguish between a crime and and accident.

When my children were small (thirty or so years ago) you could leave them in the car to enter a store or business for a couple of minutes, say to pick up a gallon of milk, to walk another child into a lesson, that sort of thing.  Typically you hand multiple kids with you and you could leave two or more at a time as long as you took the keys and made sure they were safe (windows down in summer, etc.)  Generally they were visible from where ever you were and "I've got kids in the car" was good enough to get you in and out quickly.

No one violated the law with this.  The children were not abandoned.  They were in my conveyance - a car - and therefore under my control - just as if they were upstairs in bed and I was outside on the back porch.

(About the only crimes in this regard were people who left kids in the car for hours with the windows up in the summer.)

Twenty years ago Mrs. Wolf sold a dog to a woman who had done something similar and was arrested.

The reasoning, I suppose, was that wacko's were everywhere and the children were not safe in the car alone (there were two) and, the dog woman had therefore willfully endangered her children.  Mind you the children were NOT harmed in anyway and probably more traumatized by the arrest than anything else.

I am certain the "letter of the law" had not changed in those ten years.

What had changed is that the mens rea was significantly reduced (from "willfully" down to "probably should have known better given the state of the world") and the "spirit of the laws" surrounding endangering children were expanded.  (Endangering children had a pretty high standard - children worked farms with bulls and other dangerous animals - and no one was arrested.  Mens rea required that you had a specific wish and willfully created a dangerous situation for your child - something that was extremely rare as mentioned above.)

Twenty years forward today and mens rea is basically equivalent to the sloppiest interpretation of the title of the law: "Endangering a child" now means that the child was place in a potential for danger where potential could mean anything that a prosecutor or cop or do-gooder might want to think up - and irrespective of any specific bad outcome.

The "spirit of the law" has become whatever the accuser might imagine it to be.

I myself observed this a few years ago with my dog.  Mugs goes most places with me except in the summer when its to hot to leave the windows down.  My truck has no air-conditioning (nor did my house at the time) so "windows down" was all there was as far as cooling.  (Mugs also works the farm with my by following the tractor - we work together with whistles and calls while I run dangerous equipment - dangerous for both of us.) Normally I would not take Mugs near the University (for the reason below) but in this case I was purchasing a bicycle and figured he could come along (it was a hot summer day).

I parked the truck in the shade at the side of the street, left the windows down as far as I could so he couldn't get out, and crossed the street to meet the guy with the bicycle.  I was in full view of the truck the whole time and gone for about 25 minutes.  Mugs sat proudly in the drivers seat so he could watch me.

During this time a woman pulled in behind my truck and was staring intently at Mugs.  She was there probably 10 or 15 minutes until I left with the bicycle.  My belief was that had I gone out of view for even a few minutes she would have promptly called the cops on me for "endangering an animal."

Did I break any laws?  No.  Mugs was in less danger than working the farm with me.  He was also cooler.

But apparently this woman, who knew nothing about Mugs, had decided I had placed him in danger.  Since I knew he was safe there was no mens rea nor did I break the spirit or letter of the law.  Yet I would certainly be in trouble had she called the cops.

(The woman's car windows were up meaning she must have had air conditioning in her car - perhaps that was my sin - having no air conditioning.)

In any case the point here is that Mugs was in no danger, under my control at all times (not running loose, not driving the truck and contained therein), and was not overheated any more that I would be had I sat in the truck with him (which I did until the guy with the bicycle showed up) and less hot than working the farm.

So now somehow I become a criminal because I do not fit what someone else's idea of intent or the law. 

The spirit of the law is also corrupted because any supposed danger is manufactured by an unrelated bystander.

Why do I say corrupted?

Because at the time the "endangering animals" laws were written endangering an animal was something far different than riding with Mugs into town.  Mugs spends virtually his entire life within about 15 feet of me - why would I want or allow him to be hurt?

But clearly this woman was suspicious of me and hence believed me guilty of or about to commit a horrendous crime of some sort.

And by reducing mens rea and expanding the "spririt" in loosest possible way do-gooders can bend the law away from its original intent.

She had expanded the "spirit" of the law to include whatever she thought it should include - which was me.

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