Sunday, December 27, 2009

My Constitution, Section 19

Section 19 - Certainty of law

The general theme is that justice requires that a man know what the law is in order for him to be held accountable for his actions in light of it. The basis is man as the Reasonable Person, and a presumption of a reasoned culture.

19(1) No individual shall be prosecuted for acts performed prior to being made illegal; nor shall any new law or alteration of law be applicable to legally binding agreements in existence at the time the new law or alteration came into force; though reasonable civil law remedies shall remain available.
Here, retroactive law is banned. It is grossly unjust for a man to be punished for an act that wasn’t against any law, for the law must be known prior to any action for it to be applicable to that action. It is also part of the principle of innocent until proven guilty, where if there is no law for a given act then it is impossible for him to be guilty of breaking that which does not exist.

If a ban on retroactive law did not exist then it would help open the door to the creation of any law as desired by politicians bent on persecution of political opponents and their supporters. Naturally there are other protections against injustice generally that are more directly germane to that end, but were they to fall by the wayside then to that extent this operates as one fall-back measure among another that the proponents of reason and justice can reach to regroup and mount their counterrevolution against the unjust.

The last phrase in the clause is there for when it would have been reasonable to see that an action should have been identified by the acting man as liable to cause undue physical harm to the person or property of another. In this case, while the man in question could not be prosecuted criminally he should definitely be liable for a civil suit and judgement of damages.

19(2) There shall be no law in which the Reasonable Person would hold that the meaning of one part contradicts the meaning of another part.
There is no excuse for the upholding of contradictions in law. The use of the Reasonable Person standard supplies the common framework required for proper consideration for consistency, both internally by means of logical analysis and externally by means of fidelity to the real world.

19(3) There shall be no operations of two or more laws of the same jurisdiction when the Reasonable Person would hold that the meaning of a part of one law contradicts the meaning of a part of another law, operation being denied of all contradictory laws but the first in time.
The same reason is repeated, this time applying to two different laws. Since they are in contradiction, it wouldn’t be proper to render all the law in question inoperative where instead the thing to do is to leave the original and oldest law as operative so that the courts do not become venues for engendering lawlessness on a topic that was judged by the legislature and executive as in need of legal address. If the legislature and executive now think that this original law is inadequate then what they should do is change that law, not simply make a new law that contradicts it. This is part and parcel of the concept of rule of law, both in regards to eschewing contradictions and of proper following of the procedures of justice.

There is a contrast to the previous clause, though. In the previous clause the whole law was shut down, whereas in this clause it is just offending operations of the younger laws. This is because in the first clause with the reference to a single law there is even less excuse for contradiction than when two or more laws are written by entities that may be separated by substantial amounts of time because the one law should be examined in detail in whole and in a single session of government. If internal contradictions are found within one law then that entire session and that law is brought into question, whereas it is more appropriate for two or more contradictory laws that the later laws be brought into question and leaving the previously-found-acceptable original law in place.

19(4) No law shall specify a meaning of a word or combination of words that contradicts the essence of what a Reasonable Person not possessing specialised training or a specialised dictionary would ordinarily take them to mean as at the time the law was first made.
There is no excuse for a law that the Reasonable Person could not understand. In this case, it is unjust to use a word in a radically different fashion to how the Reasonable Person would interpret it because that makes understanding of the law difficult. It may well be the case that the law uses a word in a better fashion than the prevailing language in the culture admits of, but it must be remembered that the government is the servant and not the master. It has no place being a cultural vanguard.

19(5) No law shall unreasonably specify a meaning for a word or combination of words essentially at variance to existing interpretations in the law of any Australian jurisdiction.
In a similar fashion to priority in contradictory laws being given to the original law, the first in time shall prevail for the meaning of a word or combination of words. The reason for making a State law have that kind of power over the content of another State law or a Federal law is that language and culture that relate to justice are national phenomena. There are plenty of aspects of culture that are local rather than national, but the requirements of justice in general are not of that nature. In fact, they are universal rather than national, but each nation is independent of each other and the people of each have the right to go their own ways. Within a nation, however, each agrees to help keep each other on the path of justice, and part of that is nationally consistent interpretations of legal meanings of words from the same one national language.

This does mean, incidentally, that when one government determines that a different meaning would be better suited for a given word or combination of words they will have to act in consultation with the original government that first put them into legal play. If everyone is acting reasonably then the laws of all states using that word or combination and the federal laws will move in lockstep together. Of course, the previous clause will still hold if the original meaning has been institutionalised enough to warrant being part of the understanding of the Reasonable Person. The end result is national consistency of legal interpretation while preventing governments from taking an active lead in trying to change how people think. Government must either lag culture or be current with it, not lead it.

19(6) All governments shall each formulate a dictionary-law for words or combinations of words common to a variety of laws and which words or combinations are either:
(i) not clear to a Reasonable Person lacking such specialised training or specialised dictionaries as are not commonly held by individuals of ordinary intelligence; or
(ii) have multiple meanings to this same Reasonable Person;
where specifications must result in a single clear meaning to that same Reasonable Person, which meanings shall apply to all subsequent laws of that jurisdiction, and which meanings once set in such a clear way shall neither be amended to a meaning essentially different to what the Reasonable Person would say they had before amendment nor additionally interpreted in contradiction to the essence of that meaning or prior operation of laws containing them.
The first part is simply that it is unjust to hold a man as obliged to obey a law he cannot reasonably be expected to understand. The dictionary will help provide that understanding. It also acts to prevent governments from using vagueness as a means to tyranny through non-objective law.

The second part is another locking in place of the principle of governments lagging or being current with culture and not leading it.

19(7) The meaning of a word or a combination of words that is not in a government’s dictionary-law, shall, for the purposes of interpreting a law containing them but not specified in the appropriate government’s dictionary, including this Constitution, shall not cease to have the same meaning as understood by the Reasonable Person at the time the law was first made law or when this Constitution was adopted, irrespective of later changes in how the Reasonable Person may interpret those words or combination of words; nor shall additional interpretation of meaning be in contradiction to the original meaning, nor shall additional interpretation be in contradiction to the prior operation of that law.
This helps prevent governments from falling back on vagueness that has accidentally or deliberately found its way into law by means of a lack of a dictionary entry. Again, it is a barrier to non-objective law and is a preventative against governments being cultural leaders.

It also, at root, ties all law back to the state of culture as at the time when the Constitution was first enacted, which ideally will be when the vast majority of people are or are close to being examples of the Reasonable Person. Thus the point about governments not being culture leaders is not conservatism as an end in itself but based in recognition of what kind of culture would be required for this Constitution to become law.


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