Saturday, May 29, 2021

Riots and textualism

I keep on wondering about how it is that legislators seem to be completely oblivious to obvious counterexamples. Take the definition of a riot in Texas law:

For the purpose of this section, “riot” means the assemblage of seven or more persons resulting in conduct which: (1) creates an immediate danger of damage to property or injury to persons; (2) substantially obstructs law enforcement or other governmental functions or services; or (3) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.

Note some curious things. First, there is no restriction in (1) to unauthorized damage to property. Thus, a team of seven demolishing an old building or a party of seven friends eating up a pizza constitute a riot, no matter how sedately they go about their business.

Second, neither is there a restriction to reasonably expected danger to property or persons. Thus, it counts as a riot when seven people walk on an unsound bridge, even when they do not know the bridge to be unsound. Fortunately, in this case, although the definition of a riot is satisfied, such participation in a riot is not an offense, since according to the what comes later, it’s only an offense when one “knowingly participates in a riot”.

There are counterexamples to (2) as well. Thus, consider a team of seven building inspectors who inform a local government office that the office walls are full of black mold. As a result, the office closes for a week while relocating to a temporary location. The conduct of the building inspectors substantially obstructed “governmental functions or services”.

Maybe governments should have bug trackers for laws, aimed solely at cases where the law’s wording does not match the intent.

Or maybe this is just an argument for originalism over textualism in legislative interpretation. One assumes that the Texas legislature did not wish to criminalize the consumption of a meal by seven or more people, even if the plain sense of the words classifies such consumption as a riot. (Though there is a potentially tricky interpretive question in the “knowingly participates in a riot”. Is it enough to know that one’s conduct satisfies conditions (1), (2) or (3), or does one have to know explicitly that it satisfies the definition of a “riot”. A typical group of seven people eating a meal do know that the food they eat is property that is being destroyed, but unless they are lawyers or law geeks, they don’t know that the law classifies such destruction as a riot. Perhaps the legislature wished to outlaw meals had by seven or more lawyers or law geeks?)


SMatthewStolte said...

When Socrates's companions offered poor definitions, they clearly did not intend to offer poor definitions, but knowing precisely what they intended might not have resolved the issue. Plausibly, Euthyphro intended to offer a coherent definition of piety such that (a) the behavior of the gods (as described by the poets) would count as pious and (b) piety would be an excellent thing. But this is impossible.

I’m afraid legislators might sometimes intend to accomplish impossible things when they are drafting bad legislation.

Alexander R Pruss said...

I hadn't thought of that, but it's plausible that it happens.

I am no philosopher of law, there is probably some sort of a principled method one could use in such a case. Let's say the lawmakers want to prohibit all impious behavior, and it is definitive of their concept of the impious that (a) nothing the Homeric/Hesiodic gods do is impious, and (b) all action that treats a god unjustly is impious. Then we can make use of the principle (explicit in Catholic canon law, but eminently reasonable) that restrictions are to be understood narrowly and permissions broadly to say that what is prohibited by the lawmakers is all actions that treat gods unjustly, unless these are actions that the H/H gods themselves do.

In cases like the riot law, it may well be that they intend to prohibit knowingly in engaging in any activities falling under (1)-(3) while intending not to prohibit anything that we might call "ordinary reasonable human activity". Applying the principle of erring on the side of permission, we get a messy rule that says that one must not knowingly perform any action that falls under (1)-(3) unless that action is an ordinary reasonable human activity.

Another possibility would be that the lawmakers erroneously think that all activity that falls under (1)-(3) is harmful to society, and their intention is to prohibit a certain species of harmful activity, namely that falling under (1)-(3). Applying the permissive principle, we get a rule that says that one must not knowingly perform actions falling under (1)-(3), when these actions are socially harmful (or maybe: when a reasonable person would know them to be socially harmful).

For another example, federal law, in certain contexts, gives as a sufficient account of stalking that one acts, more than once, in such a way as to make a person be afraid for their life. Taking this literally, if one goes on a wilderness trip with x, and on two occasions one warns x of something that is really endangering their life (there is a mother bear with cubs nearby, or they tied a knot incorrectly while climbing and are now relying on it), then one counts as stalking. I once asked a lawyer about this, and the lawyer said that in practice the courts only counted an *unreasonable* course of action as stalking. (The law as far as I could tell did not stipulate anything about whether the course of action was unreasonable. By the way, even adding "unreasonable" doesn't solve the problem. Suppose that I am leading a wilderness trip but I am unreasonably risk averse, and so I constantly tell people that they are in danger of their lives, when in fact the danger is vanishingly small. Such a wilderness guide should be fired for unreasonableness, but isn't a stalker. And I suspect the legislators didn't mean to define them as such.)