16 Mar 2009

On Legal Opinions

Filed under: People and society by Hari
Posted at 21:27 IST (last updated: 6 Jun 2009 @ 10:33 IST)
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Being a student of Law, I am finding it extremely annoying that a majority of online writers and communities consider themselves authorities on Law, especially the law concerned with copyrights and patents. I see this particularly in discussions on piracy/copyright and sometimes while discussing software licenses like the GNU/GPL.

Some basics:
  • A software license is NOT an enactment of Law. It is a contractual document whose legality and enforceability depends on its being consistent with the country's contractual laws.
  • Often different enactments of Law can give different answers to the same questions/disputes. Every country has a different system to resolve these confusions.
  • In some countries, legal systems are not absolute and in most cases even existing and enacted Laws may be subject to the country's Supreme Court's purview. In other countries, the elected representatives (the legislature) might have the final say in enactments of Law, rather than the courts.
  • The Criminal Laws of a country might often be very different from the other laws and be subjected to totally different standards of evidence/procedures etc.

Those who want to run should first learn to walk. Understanding the difference between common morality and a legal system is the basis of any sensible discussion on legalities. When you mix the two, what you get is a hodge-podge of incomprehensible and often contradictory opinions which form the basis of lengthy and often painfully inconclusive discussions culminating in flame wars and personal attacks.

If somebody wants to talk Law, the first thing to do is to put sentiment aside. In fact, most Laws are quite often complex and have dozens of clauses and sub-clauses which render general conclusions useless.

When you want to discuss the morality/nature of a particular enactment of Law or a legal system, it becomes a subset of Jurisprudence, which is really an ocean in itself and requires systematic study.

I am not saying this out of arrogance. Indeed, the more one steps into legal education, the more amazed I am at how much there is to learn and how little I know presently.

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9 comment(s)

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  1. Does making a negative remark against someone constitute criminal offense? (I guess the Kerala blogger was booked under criminal sections for speaking against Shivsene?

    Comment by Shrinidhi Hande (visitor) on 17 Mar 2009 @ 09:57 IST #
  2. I wanted to ask almost the exact same question Shrinidhi asked here.

    BTW, once you get settled into your job, can I become your external computer networks and forensics consultant? :)

    Comment by Sudipta Chatterjee (visitor) on 17 Mar 2009 @ 13:14 IST #
  3. Shrinidhi, the only answer to that question is "it depends on the circumstances."

    Once you're a lawyer, you learn these things.

    Sudipta, long time no see. :D Good to see your post here.

    Comment by Hari (blog owner) on 17 Mar 2009 @ 16:52 IST #
  4. hmm...In the above case was it criminal?

    In any of the semesters do they teach how to confuse people and make them say what you want them to say?

    And any comments on current lawyers-police conflict in TN?

    Comment by Shrinidhi Hande (visitor) on 18 Mar 2009 @ 12:13 IST #
  5. Shrinidhi, I have no idea about the case. I'll have to read it up.

    On the current lawyers' police conflict, I have nothing much to say as I am not really interested in politics and the whole case was a political affair...

    Comment by Hari (blog owner) on 18 Mar 2009 @ 13:40 IST #
  6. Yes you are right, I am also learning the legal things out there,it is like a sea of knowledge residing out there.

    Comment by Ruchi (visitor) on 18 Mar 2009 @ 15:13 IST #
  7. Ruchi, thanks for dropping by. It's good to know that there are others who are also interested in legalities like I am.

    Comment by Hari (blog owner) on 18 Mar 2009 @ 20:05 IST #
  8. I think what gets most people is the belief that the law is the same as ethics, and they don't understand, or get really upset at the fact that sometimes what is legal != what is ethical. And away we go on rants. http://harishankar.org/blog/images/smilies/rolleyes.gif

    Comment by titanium (visitor) on 21 Mar 2009 @ 04:08 IST #
  9. Thanks titanium. I agree entirely. Ethics is very closely related to the development of Law and Legal systems, but in many cases ethics is either irrelevant (e.g. purely administrative and procedural Laws) or contradictory to certain belief systems.

    I'm not arguing about the superiority of Law over Ethics, which is kind of silly anyway. I'm just saying that mixing the two when trying to argue on pure Law is an exercise in futility.

    Comment by Hari (blog owner) on 21 Mar 2009 @ 09:55 IST #

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