An interesting aspect of this, especially their blog post (https://malus.sh/blog.html ), is that it acknowledges a strain in our legal system I've been observing for decades, but don't think the legal system or people in general have dealt with, which is that generally costs matter.
A favorite example of mine is speed limits. There is a difference between "putting up a sign that says 55 mph and walking away", "putting up a sign that says 55 mph and occasionally enforcing it with expensive humans when they get around to it", and "putting up a sign that says 55 mph and rigidly enforcing it to the exact mph through a robot". Nominally, the law is "don't go faster than 55 mph". Realistically, those are three completely different policies in every way that matters.
We are all making a continual and ongoing grave error thinking that taking what were previously de jure policies that were de facto quite different in the real world, and thoughtlessly "upgrading" the de jure policies directly into de facto policies without realizing that that is in fact a huge change in policy. One that nobody voted for, one that no regulator even really thought about, one that we are just thoughtlessly putting into place because "well, the law is, 55 mph" without realizing that, no, in fact that never was the law before. That's what the law said, not what it was. In the past those could never really be the same thing. Now, more and more, they can.
This is a big change!
Cost of enforcement matters. The exact same nominal law that is very costly to enforce has completely different costs and benefits then that same law becoming all but free to rigidly enforce.
And without very many people consciously realizing it, we have centuries of laws that were written with the subconscious realization that enforcement is difficult and expensive, and that the discretion of that enforcement is part of the power of the government. Blindly translating those centuries of laws into rigid, free enforcement is a terrible idea for everyone.
Yet we still have almost no recognition that that is an issue. This could, perhaps surprisingly, be one of the first places we directly grapple with this in a legal case someday soon, that the legality of something may be at least partially influenced by the expense of the operation.
We should welcome more precise law enforcement. Imperfect enforcement is too easy for law enforcement officers to turn into selective enforcement. By choosing who to go after, law enforcement gets the unearned power to change the law however they want, enforcing unwritten rules of their choosing. Having law enforcement make the laws is bad.
The big caveat, though, is that when enforcement becomes more accurate, the rules and penalties need to change. As you point out, a rigidly enforced law is very different from one that is less rigorously enforced. You are right that there is very little recognition of this. The law is difficult to change by design, but it may soon have to change faster than it has in the past, and it's not clear how or if that can happen. Historically, it seems like the only way rapid governmental change happens is by violent revolution, and I would rather not live in a time of violent revolution...
The problem with precise law enforcement is that the legal system is incredibly complex. There's a tagline that âeverybody's a criminalâ; I don't know if that's necessarily true but I do definitely believe that a large number of âinnocentâ people are criminals (by the letter of the law) without their knowledge. Because we usually only bother to prosecute crimes if some obvious harm has been done this doesn't cause a lot of damage in practice (though it can be abused), but if you start enforcing the letter of every law precisely it suddenly becomes the obligation of every citizen to know every law â in a de facto way, rather than just the de jure way we currently have as a consequence of âignorance of the law is no excuseâ. So an increase of precision in law enforcement must be preceded by a drastic simplification of the law itself â not a bad thing by any means, but also not an easy (or, perhaps, possible) task.
The reason speed limits make such a great example for these arguments is because they're a preemptive law. Technically, nobody is directly harmed by speeding. We outlaw speeding on the belief that it statistically leads to and/or is correlated with other harms. Contrast this to a law against assault or theft: in those kinds of cases, the law makes the direct harm itself illegal.
Increasing the precision of enforcement makes a lot more sense for direct-harm laws. You won't find anyone seriously arguing that full 100% enforcement of murder laws is a bad idea. It's the preemptive laws, which were often lazily enforced, especially when no real harm resulted from the action, where this all gets complicated. Maybe this is the distinction to focus on.
hamdingers
today at 7:41 PM
This unwritten distinction exists only to allow targeted enforcement in service of harassment and oppression. There is no upside (even if getting away with speeding feels good). We should strive to enforce all laws 100% of the time as that is the only fair option.
If a law being enforced 100% of the time causes problems then rethink the law (i.e. raise the speed limit, or design the road slower).
gbalduzzi
today at 8:13 PM
> If a law being enforced 100% of the time causes problems then rethink the law (i.e. raise the speed limit, or design the road slower).
Isn't this the point of the whole conversation we are having here?
Laws on copyright were not created for current AI usage on open source project replication.
They need to change, because if they are perfectly enforced by the letter, they result in action that are clearly against the intend of the law itself.
The underlying problem is that the world changes too fast for the laws so be fair immediately
airstrike
today at 8:04 PM
A system that solves for absolute compliance in every individual case does not result in the emergence of a fairer society.
There are numerous cases, both in history and in fiction, that demonstrate as much.
RobRivera
today at 6:52 PM
Precise law enforcement would motivate political will to proactively law change to be more precise and appropriate, or tuned, to the public sentiment.
Imprecise law enforcement enables political office holders to arbitrarily leverage the law to arrest people they label as a political enemy, e.g. Aaron Swartz.
If everyone that ever shared publications outside the legal subscriber base was precisely arrested, charged, and punished, I dont think the punishment amd current legal terrain regarding the charges leveraged against him would have lasted.
But this is a feature, not a bug.
c-linkage
today at 6:57 PM
Code is Law is pretty much demonstrates that it is not possible to precisely define law.
https://www.fxleaders.com/news/2025/10/29/code-is-law-sparks...
Additionally, law is not logical. Law is about justice and justice is not logical.
"Law is about justice" is one of those things a good professor gets every 1L to raise their hands in agreement to before spending the next semester proving why that's 100% not the case.
miki123211
today at 7:18 PM
And this goes both ways.
Many governments around the world have entities to which you can write a letter, and those entities are frequently obligated to respond to that letter within a specific time frame. Those laws have been written with the understanding that most people don't know how to write letters, and those who do, will not write them unless absolutely necessary.
This allows the regulators to be slow and operate by shuffling around inefficient paper forms, instead of keeping things in an efficient ticket tracking system.
LLMs make it much, much easier to write letters, even if you don't speak the language and can only communicate at the level of a sixth-grader. Imagine what happens when the worst kind of "can I talk to your supervisor" Karen gets access to a sycophantic LLM, which tells her that she's "absolutely right, this is absolutely unacceptable behavior, I will help you write a letter to your regulator, who should help you out in this situation."
Dean Ball made this exact point on the Ezra Klein show a few days ago. I always thought laws would get more just with perfect enforcement -- the people passing mandatory sentencing laws for minor drug offenses would think twice if their own children, and not just minorities and unfavourable groups, were subject to the same consequences (instead of rehab or community service).
But if I've learned anything in 20 years of software eng, it's that migration plans matter. The perfect system is irrelevant if you can't figure out how to transition to it. AI is dangling a beautiful future in front of us, but the transition looks... Very challenging
> Dean Ball made this exact point on the Ezra Klein show a few days ago. I always thought laws would get more just with perfect enforcement -- the people passing mandatory sentencing laws for minor drug offenses would think twice if their own children, and not just minorities and unfavourable groups, were subject to the same consequences (instead of rehab or community service).
The problem with perfect enforcement is it requires the same kind of forethought as waterfall development. You rigidly design the specification (law) at the start, then persist with it without deviation from the original plan (at least for a long time). In your example, the lawmakers may still pass the law because they don't think of their kids as drug users, and are distracted by some outrage in some other area.
Hmm, the problem is that judges and even police officers are generally saner than voters.
Giving the former discretion was a way to sneakily contain the worst excesses of the latter.
Alas, self-interest isn't really something voters seem to really take into account.
Judges and police officers have their own massive "worst excesses".
They do, but letting mob rule decide criminal sanction is beyond fucked. See: Any discussion thread of literally any criminal being sentenced, receiving parole, or better yet, committing any crime after being released for serving a different one.
sensanaty
today at 5:03 PM
This is of course assuming that politicians aren't largely duplicitious and actually believe in a word they say. I grew up in Indonesia, and the number of politicians who were extremely anti-porn getting caught watching porn in parliament is frankly staggering, yet alone the ones who are pro death penalty for drugs caught as being part of massive drug smuggling rings.
throwaway2037
today at 5:17 PM
You raise an interesting point: One question that I think about developing countries: Most of them have higher perception of corruption compared to highly developed (OECD) nations. How do countries realistically reduce corruption? Korea went from an incredibly poor country in 1960 to a wealthy country in 2010. I am sure they dramatically reduced corruption over this time period... but how? Another example, in the 1960s/1970s, Hongkong dramatically increased the pay for civil servants (including police officers) to reduce corruption. (It worked, mostly.)
I live in a developing country. What I find is that the corruption is generally easier to navigate here that it was in the USA. The corruption in the USA is much more entrenched, in the form of regulatory capture. At the local level this can look like a local ordinance where âonly a contractor with xy and z (only one of which is needed for the job) can bid, favoring a specific contractor. Here you just figure out compliance with the person in charge.
miki123211
today at 7:25 PM
Corruption is eliminated by properly aligning incentives. Capitalism is also all about properly aligning incentives. Moving to a more capitalism-heavy system usually causes countries to get much richer.
Eastern Europe went through a similar transition. Before the iron curtain fell, the eastern bloc operated on favors more than it operated on money. This definitely isn't the case any more.
How many times have we seen politicians advocate for laws against something, then do a 180 when one of their kids does it? Even if you had that system, I don't think it would work the way you say. People are dumb and politicians are no exception.
> Cost of enforcement matters. The exact same nominal law that is very costly to enforce has completely different costs and benefits then that same law becoming all but free to rigidly enforce.
Hey, I really like this framing. This is a topic that I've thought about from a different perspective.
We have all kinds of 18th and 19th century legal precedents about search, subpoenas, plain sight, surveillance in public spaces, etc... that really took for granted that police effort was limited and that enforcement would be imperfect.
But they break down when you read all the license plates, or you can subpoena anyone's email, or... whatever.
Making the laws rigid and having perfect enforcement has a cost-- but just the baseline cost to privacy and the squashing of innocent transgression is a cost.
(A counterpoint: a lot of selective law enforcement came down to whether you were unpopular or unprivileged in some way... cheaper and automated enforcement may take some of these effects away and make things more fair. Discretion in enforcement can lead to both more and less just outcomes).
miki123211
today at 7:34 PM
This is my problem with Americans and their "but the constitution" arguments.
The U.S. constitution has been written in an age before phones, automatic and semi-automatic rifles (at least in common use), nuclear weapons, high-bandwidth communications networks that operate at lightning speed, mass media, unbreakable encryption and CCTV cameras.
The problem is that "all sides" agree that if the constitution was written today, surprise, surprise, it'd totally agree with them; the gun control people are sure that the 2nd wouldn't cover military weapons, the gun lovers are sure that it would mandate tanks for everyone.
But since having 300 million people have a detailed, nuanced discussion about anything is impossible, everyone works at the edges.
I think the fundamental issue is that a form of equality where everyone gets what was previously the worst outcome is... probably worse.
pocksuppet
today at 7:23 PM
Many times when politicians get to suffer the full effects of their laws, the laws quickly change for the better.
Pannoniae
today at 4:51 PM
Yup :P
As in their post:
"The future of software is not open. It is not closed. It is liberated, freed from the constraints of licenses written for a world in which reproduction required effort, maintained by a generation of developers who believed that sharing code was its own reward and have been comprehensively proven right about the sharing and wrong about the reward."
This applies to open-source but also very well to proprietary software too ;) Reversing your competitors' software has never been easier!
sweetjuly
today at 6:55 PM
This has also been a common theme in recent decades with respect to privacy.
In the US, the police do not generally need a warrant to tail you as you go around town, but it is phenomenally expensive and difficult to do so. Cellphone location records, despite largely providing the same information, do require warrants because it provides extremely cheap, scalable tracking of anyone. In other words, we allow the government to acquire certain information through difficult means in hopes that it forces them to be very selective about how they use it. When the costs changed, what was allowed also had to change.
I think of this in reverse. It's legal for the government to track mail - who sent a message, and who it's going to. They have access to the "outside of the envelope". But it's not legal for them to read the message inside.
And this same principle allows them to build massive friend/connection networks of everyone electronically. The government knows every single person you've communicated with and how often you communicate with them.
It was never designed for this originally.
I think this distinction also gets at some issue with things like privacy and facial recognition.
Thereâs the old approach of hanging a wanted poster and asking people to âcall us if you see this guyâ. Then thereâs the new approach matching faces in a comprehensive database and camera networks.
The later is just the perfect, efficient implementation of the former. But itâs⊠different somehow.
There was this scholarly article from Pamela Samuelson and Suzanne Scotchmer
https://yalelawjournal.org/pdf/200_ay258cck.pdf
which, as I recall it, suggested that the copyright law effectively considered that it was good that there was a way around copyright (with reverse engineering and clean-room implementation), and also good that the way around copyright required some investment in its own right, rather than being free, easy, and automatic.
I think Samuelson and Scotchmer thought that, as you say, costs matter, and that the legal system was recognizing this, but in a kind of indirect way, not overtly.
JackYoustra
today at 4:07 PM
The answer to this is just changing the law as enforcement becomes different, instead of leaning on the rule of a few people to determine what the appropriate level of enforcement is.
To do this, though, you're going to have to get rid of veto points! A bit hard in our disastrously constitutional system.
Seconded, thirded, fourthed. I spend a lot of time thinking about how laws, in practice, are not actually intended to be perfectly enforced, and not even in the usual selective-enforcement way, just in the pragmatic sense.
seethishat
today at 5:11 PM
The issue with strictly enforcing the speed limit on roads is that sometimes, people must speed. They must break the law. Wife giving birth, rushing a wounded person to the ER, speeding to avoid a collision, etc.
If we wanted to strictly enforce speed limits, we would put governors on engines. However, doing that would cause a lot of harm to normal people. That's why we don't do it.
Stop and think about what it means to be human. We use judgement and decide when we must break the laws. And that is OK and indeed... expected.
> sometimes, people must speed. They must break the law. Wife giving birth, rushing a wounded person to the ER, speeding to avoid a collision
I would argue that only the last one is a valid reason because it's the only one where it's clear that not speeding leads to direct worse consequences.
Speed limits don't exist just to annoy people. Speeding increases the risk of accident and especially the consequences of an accident.
I don't trust people to drive well in a stressful situation, so why would it be a good idea to let them increase the risk by speeding.
The worst part is that it's not even all that likely that the time saved by speeding ends up mattering.
tinier_subsets
today at 6:54 PM
The âwife giving birthâ exception for speeding is always so amusing to me.
In the U.S., the average distance from a hospital is 10 miles (in a rural area). Assuming 55 mph speed limits, that means most people are 11 minutes from a hospital. Realistically, âspeedingâ in this scenario probably means something like 80 mph, so you cut your travel time to 7.5 minutes.
In other words, you just significantly increased your chances of killing your about to be born kid, your wife, yourself, and innocent bystanders just to potentially arrive at a hospital 210 seconds sooner.
Edit: the rushing someone to an ER scenario is possibly more ridiculous, since you canât teleport yourself, and if the 3.5 minutes in the above scenario would make a difference, then driving someone to the ER is a significantly worse option than starting first aid while waiting for EMTs to arrive.
E(accident due to going faster) vs E(worse outcome due to waiting)
Your argument only makes sense if the only possible bad thing is a car accident -- to make my point clearer, would you take a 1% chance of losing 100$ to avoid a 50% chance of losing 10$?
Depends how much money you have, but it can be a perfectly rational decision.
No, that's not the reason why people speed. True emergencies are a rounding error.
The real reason is that speed limits are generally lower than the safe speed of traffic, and enforcement begins at about 10mph over the stated limits.
People know they can get away with it.
If limits were raised 15% and strictly enforced, it would probably be better for society. Getting a ticket for a valid emergency would be easy to have reversed.
arcticfox
today at 5:37 PM
The answer is not a governor but a speed camera, they have them all over in Brazil and they send you a ticket if you speed through them. Put an exception in the law for emergencies, provide an appeal process, and voila.
> We are all making a continual and ongoing grave error
> Blindly translating those centuries of laws into rigid, free enforcement is a terrible idea for everyone.
I understand your point that changing the enforcement changes how the law is "felt" even though on the paper the law has not changed. And I think it makes sense to review and potentially revise the laws when enforcement methods change. But in the specific case of the 55 mph limit, would the consequences really be grave and terrible if the enforcement was enforced by a robot, but the law remained the same?
diacritical
today at 5:21 PM
> would the consequences really be grave and terrible if the enforcement was enforced by a robot
The potential consequences of mass surveillance come to mind.
OK, but that would be a consequence of the specific enforcement method, not a consequence the law becoming de facto stricter due to stricter enforcement.
For one thing, the speed limit is intentionally set 5-10mph too low, specifically to make it easier to prove guilt when someone breaks the "real" speed limit.
Yeah, I'd have to go slower????
Anyway. I come from the UK where we've had camera based enforcement for aeons. This of course actually results in people speeding and braking down to the limit as they approach the camera (which is of course announced loudly by their sat nav). The driving quality is frankly worse because of this, not better, and it certainly doesn't reduce incidence of speeding.
Of course the inevitable car tracker (or average speed cameras) resolve this pretty well.
LeifCarrotson
today at 5:07 PM
Absolutely! We're not all making that error, I've been venting about it for years.
"Costs matter" is one way to say it, probably a lot easier to digest and more popular than the "Quantity has a quality all it's own" quote I've been using, which is generally attributed to Stalin which is a little bit of a problem.
But it's absolutely true! Flock ALPRs are equivalent to a police officer with binoculars and a post-it for a wanted vehicle's make, model, and license plate, except we can put hundreds of them on the major intersections throughout a city 24/7 for $20k instead of multiplying the police budget by 20x.
A warrant to gather gigabytes of data from an ISP or email provider is equivalent to a literal wiretap and tape recorder on a suspect's phone line, except the former costs pennies to implement and the later requires a human to actually move wires and then listen for the duration.
Speed cameras are another excellent example.
Technology that changes the cost of enforcement changes the character of the law. I don't think that no one realizes this. I think many in office, many implementing the changes, and many supporting or voting for those groups are acutely aware and greedy for the increased authoritarian control but blind to the human rights harms they're causing.
Not exactly the same but at least in Spain, the cost of constructing a new building subject to all the regulations makes them completely unafforfable for low salaries.
(There are other problems, I know, but the regulations are crazy).
popalchemist
today at 7:46 PM
If you had to put a name to this phenomenon, what would it be?
clickety_clack
today at 4:52 PM
De jure, there is no difference between de facto and de jure. De facto there is.
>https://malus.sh/blog.html
An interesting read, however I'd like to know how to stop websites from screwing around with my scrollbars. In this case it's hidden entirely. Why is this even a thing websites are allowed to do - to change and remove browser UI elements? It makes no sense even, because I have no idea where I am on the page, or how long it is, without scrolling to the bottom to check. God I miss 2005.