Letter and spirit of the law
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The letter of the law and the spirit of the law are two possible ways to regard rules or laws. To obey the letter of the law is to follow the literal reading of the words of the law, whereas following the spirit of the law is to follow the intention of why the law was enforced. Although it is usual to follow both the letter and the spirit, the two are commonly referenced when they are in opposition. "Law" originally referred to legislative statute,[citation needed] but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language.
Legal research
[edit]Violating the perceived intention of the law has been found to affect people's judgments of culpability above and beyond violations of the letter of the law such that (1) a person can violate the letter of the law (but not the spirit) and not incur culpability, (2) a person can violate the spirit of the law and incur culpability, even without violating the letter of the law, and (3) the greatest culpability is assigned when both the letter and the spirit of the law are violated.[1]
Shakespeare
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William Shakespeare wrote numerous plays dealing with the letter-versus-spirit antithesis, almost always coming down on the side of "spirit", often forcing villains (who always sided with the letter) to make concessions and remedy. In one of the best known examples, The Merchant of Venice, he introduces the quibble as a plot device to save both the spirit and the letter of the law. The moneylender Shylock has made an agreement with Antonio that if he cannot repay a loan, he will have a pound of flesh from him. When the debt is not repaid in time Portia at first pleads for mercy in a famous speech: "The quality of mercy is not strain'd, It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest: It blesseth him that gives and him that takes." (IV, i, 185). When Shylock refuses, she finally saves Antonio by pointing out that Shylock's agreement with him mentioned no blood, and therefore Shylock can have his pound of flesh only if he sheds no blood.
U.S. constitutional law
[edit]Interpretations of the U.S. Constitution have historically divided on the "letter versus spirit" debate. For example, at the founding, the Federalist Party argued for a looser interpretation of the Constitution, granting Congress broad powers in keeping with the spirit of the broader purpose of some of the Founding Fathers (notably including the Federalist founders' purposes). The Federalists would have represented the "spirit" aspect. In contrast, the Democratic-Republicans, who favored a limited federal government, argued for the strict interpretation of the Constitution, arguing that the federal government was granted only those powers enumerated in the Constitution, and nothing not explicitly stated; they represented the "letter" interpretation.
Modern constitutional interpretation divides on these lines. Living Constitution scholars advocate a spiritesque interpretative strategy, although one grounded in a spirit that reflects broad powers. Originalist or textualist scholars advocate a more letter-based approach, arguing that the Amendment process of the Constitution necessarily forecloses broader interpretations that can be accomplished by passing an amendment.
The Bible
[edit]The 1st century letter of Saint Paul to the Corinthians (specifically 2 Corinthians 3:6) refers to the spirit and letter of the law. Though it is not quoted directly, the principle is applied using the words "spirit" and "letter" in context with the legalistic view of the Hebrew Bible. This is the first recorded use of the phrase.[citation needed][2]
In the New Testament, Pharisees are seen as people who place the letter of the law above the spirit (Mark 2:3–28, 3:1–6). Thus, "Pharisee" has entered the language as a pejorative for one who does so; the Oxford English Dictionary defines 'Pharisee' with one of the meanings as "A person of the spirit or character commonly attributed to the Pharisees in the New Testament; a legalist or formalist". Pharisees are also depicted as being lawless or corrupt (Matthew 23:38); the Greek word used in the verse means lawlessness, and the corresponding Hebrew word means fraud or injustice. However, the Hebrew word "Perushim" from which "Pharisee" is derived, actually means "separatists", referencing their focus on spiritual needs versus worldly pleasures.
In the Gospels, Jesus is often shown as being critical of Pharisees. Not all Pharisees, nor all Jews of that time, were legalistic. Though modern language has used the word Pharisee in the pejorative to describe someone who is legalistic and rigid, it is not an accurate description of all Pharisees. The argument over the "Spirit of the Law" vs. the "Letter of the Law" was part of early Jewish dialogue as well.[3]
The Parable of the Good Samaritan (Luke 10:25–37) is one of the New Testament texts to address this theme. The passage concerns a dialogue between Jesus and an "expert in the law" or "lawyer". As described in verse 25 ("a certain lawyer stood up and tested Him saying, Teacher what must I do to inherit eternal life?," NKJV), the intent of the dialogue was to trap Jesus into making statements contrary to the law. Jesus responds by posing the question back to the lawyer, as already having knowledge of the law, ("What is written in the law?" verse 26) The lawyer quotes Deuteronomy 6:5 "You shall love the LORD your God with all your heart, with all your soul, with all your strength, and with all your mind and your neighbor as yourself.", NKJV) and Leviticus 19:18. The question "Who is my neighbor?", that follows in verse 29, is described as being asked with the goal of self-justification.
It is then that Jesus responds with the story of a man beaten by robbers who is ignored by a Priest and a Levite, but then rescued and compassionately cared for by a Samaritan. Priests and Levites were Israelites whose qualifications and duties were very meticulously set forth in Mosaic law, (Leviticus 10, and Numbers 5-8) while Samaritans were descended from Israelites who had intermarried with their Babylonian captives and established a sect with an alternative interpretation of the Law. In the story, both the Priest and Levite follow their prescribed regulations dutifully, yet do not help the injured traveler, even crossing to the other side of the road to avoid possible rule violations. The Samaritan, whose very existence is based on a refutation of Jewish law, (specifically those post-Pentateuchal biblical books that identify Mount Moriah as the proper place of worship specified in Deuteronomy 12; the Samaritans considered only the Pentateuch canon, and worshipped Yahweh in their temple on Mount Gerizim) goes above and beyond simply tending to the injured man. He takes him to an inn and gives money for the man's care, promises and then actually does return to inquire about the man, and pay any overage incurred. Jesus concludes by asking the lawyer which of the men was a "neighbor" to the beaten traveller, to which the reply was "the one who showed compassion".[4] Then Jesus says to him "go and do likewise".
According to Jeremiah, "the qualities of the new covenant expounded upon the old are: a) It will not be broken; b) Its law will be written in the heart, not merely on tablets of stone; c) The knowledge of God will deem it no longer necessary to put it into written words of instruction."[5] According to Luke (Luke 22:20), and Paul, in the first epistle to the Corinthians (1 Corinthians 11:25), this prophecy was fulfilled only through the work of Jesus Christ,[5] who said "This cup is the new covenant in my blood, which will be shed for you." Christ did not come to abolish the law but to fulfill it. His purpose was to encourage people to look beyond the "letter of the law" to the "spirit of the law"...the principles behind the commandments and the law's intention.
Gaming the system
[edit]Gaming the system can be defined as using the rules and procedures meant to protect a system to, instead, manipulate the system for a desired outcome.[6]
The first known documented use of the term "gaming the system" is in 1975.[7] According to James Rieley, a British advisor to CEOs and an author, structures in companies and organizations (both explicit and implicit policies and procedures, stated goals, and mental models) drive behaviors that are detrimental to long-term organizational success and stifle competition.[8] For some, error is the essence of gaming the system, in which a gap in protocol allows for errant practices that lead to unintended results.[9]
Although the term generally carries negative connotations, gaming the system can be used for benign purposes in the undermining and dismantling of corrupt or oppressive organisations.[10]
Modern usage
[edit]During the COVID-19 pandemic, Singaporean Prime Minister Lee Hsien Loong urged Singaporeans to comply not just with the letter of the Circuit Breaker rules but the spirit behind why these rules had to be implemented.[11]
See also
[edit]- Law
- Judicial activism § Debate
- Expounding of the Law
- Golden rule (law) • Literal rule • Mischief rule • Purposive approach
- Legal abuse
- Legal fiction
- Legal opportunism
- Legal technicality
- Original intent • Original meaning • Textualism
- Statutory interpretation § Meaning
- The Spirit of Law, the 1748 political theory treatise by Montesquieu
- United States v. Kirby
- Language
- Others
References
[edit]- ^ "How do the letter and spirit of the law affect culpability decisions?". OJRU, February 2022, Issue 1. Retrieved March 29, 2022.
- ^ Cohen, B (1954). "Note on Letter and Spirit in the New Testament". The Harvard Theological Review. 47 (3): 197–203. doi:10.1017/S0017816000026584. JSTOR 1508532. S2CID 161816662 – via JSTOR.
- ^ Babalonian Talmud Tractate Baba Metzia 115a, Sanhedrin 21a.
- ^ The Holy Bible, New King James Version, 1982 by Thomas Nelson, Inc.
- ^ a b "The New American Bible" Confraternity of Christian Doctrine, Nashville, Tennessee, 37202, 1976 (1970) p.949 (Jeremiah 31:31-34). Note: This bible has interpretations and references as footnotes.
- ^ Joseph Potvin. "The Great Due Date of 2008, slide 5" (PDF). Archived from the original (PDF) on June 26, 2016.(membership required)
- ^ 1975 Systems Engineering Conference Proceedings, Las Vegas, Nevada, November 19-21, 1975: Host Chapter, Central Arizona. American Institute of Industrial Engineers. 1975.
- ^ James Rieley (April 2001). Gaming the System: how to stop playing the organizational game and start playing the competitive game. Financial Times Prentice Hall. ISBN 978-0-273-65419-3.
- ^ Mark Nunes, Error: Glitch, Noise, and Jam in New Media Cultures (2010) p. 188
- ^ Ziewitz, Malte (2019). "Rethinking gaming: The ethical work of optimization in web search engines". Social Studies of Science. 49 (5): 2–3. doi:10.1177/0306312719865607. ISSN 0306-3127. PMID 31387459. S2CID 199467673.
- ^ "PMO | PM Lee Hsien Loong on the COVID-19 situation in Singapore on 10 April 2020". Prime Minister's Office Singapore. April 12, 2020. Retrieved September 16, 2023.
This is why I need each of you to take the circuit breaker very seriously. Stay at home; stop socialising in person with others, even with extended family members who do not live with you. Keep in touch with them but by other means, for example online, on the phone, writing emails or even letters. But do not make physical contact, because that is how the virus is spread. Please comply not just with the letter of the rules, but their spirit.