How to refer to laws

This node is currently in development. I found out that I want to do it REALLY good, so I have to do some more research. If you want to downvote it because of this, I suggest you visit it in a couple of days instead. And yes, this includes the spellchecking... ;)

Introduction
There's a very common misunderstanding among people that quoting a law accurately displays the usage of said law. This misunderstandning is more widely spread throughout Europe than the US for reasons following later in the node.

What is a law?
With a law, we are to understand the written legislation of a legitimate states law-giving institution such as a parliament. However, there are unwritten laws as well. These differ from the written laws because they are made from a multitude of different sources. Don't confuse these with verdicts, although verdicts can contribute to the unwritten laws. In some cases unwritten law can actually outweigh written law.

Where do you find laws?
The most common place is of course the country's law compilation. It usually contains the central laws and regulations given by the law giving institution of the country. However, some of the laws merely provide the framework for other regulations. A law can pass on authority to other government / state bodies. You can't expect the parliament to regulate water distribution for each county in the state or country. The logical thing to do is to outsource that to some other branch of government. The downside to this is that it creates a myriad of different regulations in a government. But this is the way it has to be.

When it comes to unwritten laws, the foundation is a bit more unclear. A source, although of very low priority, can be law literature. The literature can describe the habits of enforcing laws, and thus provide a source of unwritten laws.

How do you read a law?
Simply reading a law won't do. It's very rarely a law can be used in real life without any research or interpretation. All laws are basically subject to interpretation. E.g.: In the Norwegian constitution from 1814, §100 gives the people right to free speech. But if you read the paragraph you will be puzzled because it only says that free speech "should" be implemented. You have to be familiar with the language of 1814 to get the exact meaning. That in 1814 "should" meant "must".

Further on, every word in the law is subject to interpretation. What does "speech" mean? Does it include text? Does text include source code? Does "free" mean I can say untrue things about others?
This is where the court steps in. The object of the court is to interpret the meaning of the law, along with the guidelines of the law maker. In Europe, the law system relies more on the law text itself than the US which use court verdicts in a much wider degree. That's why Europeans tend to believe that the answer to the dispute is printed in the law book.

Also, the law text itself is usually very complicated. Remember, the law is there to cover a really, really, really, REALLY wide array of events. The preliminary work on a law is incredibly extensive to assure the function of a law in real life.

Referring to a law
At work I see a lot of people blurting out: "You can't do / say / mean that, because it says here so in this paragraph". And they go on to quote the paragraph. The most common mistake is that the freedom of speech gives you the right to be heard. Which is dead wrong of course. They don't consider the text of the law that says you are free to say and mean whatever you want, but it's not mandatory for a newspaper to publish it even if you send it to them. If this sounds wrong to you, think about how the reverse situation would be. So blindly referring to the law won't get you anywhere.

OK, you have looked at the law twice, and you found out that the law covers the dispute you want to argue, it's valid and you have checked that you are right. Then what?
First of all, look at the referring laws and references in the law to others. It might very well be that some other paragaph or law states that your law doesn't apply in this and that case. Usually, there's a main paragraph in the law and the following paragraphs are exceptions or additions to the main one.
Then look at what the courts thinks about the law. If you find a case that match with your dispute, you have struck gold. Referring to a verdict is always much better, since it by nature includes an example and a statement from the judge.

Then you have a very powerful argument against the other person. Be sure to include the source for credibility.

"They can't do that, can they?"

"Is that legal?"

That's got to be unconstitutional, right?

These seem like simple questions. Either it's legal/constitutional or it isn't. However, it's not quite that easy. Rather than the expected "Yes" or "No," most of these questions will have to be answered with "It depends."

One of the most important features of law is indeterminacy. No matter how clear a statute or constitutional provision may be, there is always a little ambiguity. And, if there's no built-in ambiguity, it isn't all that hard to create some. This is particularly true when dealing with judicial opinions. Everything is a matter of context.

Example:

Corrections Officer Rumsfeld ties inmate Kelly to a pole outside of the prison and keeps him there for 6 hours in 30°C heat without any water, "'Cause I think you're just an asshole."

There are two statutes, 42 U.S.C. § 1983 and 18 U.S.C. § 242, which respectively provide:

42 U.S.C. § 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

18 U.S.C. § 242 Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Has Officer Rumsfeld violated either of these statutes?

a. Step 1: What do the statutes say?

Before we can know whether Officer Rumsfeld violated § 1983 or § 242, we have to construe the language of the statutes in order to make the question more specific.

(i) § 1983

§ 1983 provides for civil liability for a "person" who

1. under color of any

statute,

ordinance,

regulation,

custom, or

usage

,

of any

State,

Territory,

or the District of Columbia

2. subjects / causes to be subjected

3. a citizen of the U.S. or another person within its jurisdiction to:

deprivation of any rights, privileges, or immunities secured by the Constitution and laws

This means that Officer Rumsfeld will be liable to inmate Kelly (1) if tying Kelly to the post in the sun for no good reason deprives Kelly of a right, privilege, or immunity "secured by the Constitution and laws" of the United States and (2) Officer Rumsfeld was acting "under color of" State law.

(ii) § 242

18 U.S.C. § 242 makes it a crime to

1. willfully (mens rea)
2. subject any person in any State, Territory, Commonwealth, Possession, or District

(a) to the deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States

or

(b) different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens

3. under color of State law

Thus, the § 242 question will be similar in most ways to the question sketched above for § 1983, with two major exceptions. First, there is an intent (or mens rea - criminal state of mind) requirement that is not present in § 1983; no matter what else is true of Officer Rumsfeld's actions, they must be in willful violation of Kelly's federal rights. Second, unlike § 1983, § 242 also criminalises race and nationality discrimination in meting out punishment (other discrimination was not prohibited because the statute was enacted just after the Civil War)

b. Step 2: What Exactly Does That Mean in This Case?

Now that we have broken down the statutes to figure out what they say, we still have to figure out whether any of the very general language ("any right, privilege, or immunity") prohibits anything that Officer Rumsfeld did to Kelly. Both § 1983 and § 242 interlock with a substantial body of law. First, we must identify what provisions of the Constitution Rumsfeld could have violated. In order to save space, I will spare the reader the process of going through the entire Bill of Rights to figure out what might have been violated. Suffice it to say that the analysis is basically the same. And so, we narrow the question further.

Since Kelly is a state prisoner, serving out a sentence imposed based on a conviction for a crime, his principal source of protection is the Eighth Amendment. The new, improved question now is:

Did Officer Rumsfeld, by tying inmate Kelly to a pole outside of the prison and keeping him there for 6 hours in 30°C heat without any water, "'Cause I think you're just an asshole," subject Kelly to "cruel and unusual punishment" in violation of the Eighth Amendment, while acting "under color of State law?"

We're closing in on it now. At this point, the § 1983 question hinges completely on the meaning of "cruel and unusual punishment." Having narrowed the field to this extent, we must fill in the outline we're left with. The Eighth Amendment prohibits " 'unnecessary and wanton' inflictions of pain [constituting cruel and unusual punishment forbidden by the Amendment] [including] those that are 'totally without penological justification.' " Rhodes v. Chapman, 452 U. S. 337, 346. An officer in a correctional institution acts unnecessarily, wantonly, and without penological justification if the officer acts with "deliberate indifference" to the inmates' health or safety, Hudson v. McMillian, 503 U. S. 1, 8. Deliberate indifference can be inferred from the fact that the risk of harm is obvious, Farmer v. Brennan, 511 U. S. 825.

Having set up the analytical framework we need in order to answer the § 1983 question, the next step is analyse the element peculiar to § 242 - "willfulness." The "willfulness" requirement of § 242 was glossed by the Supreme Court in Screws v. U.S.

[A]s we have seen, the word 'willfully' was added to make the section 'less severe'. We think the inference is permissible that its severity was to be lessened by making it applicable only where the requisite bad purpose was present, thus requiring specific intent not only where discrimination is claimed but in other situations as well. We repeat that the presence of a bad purpose or evil intent alone may not be sufficient. We do say that a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.

325 U.S. 91, 104. So, in order for Officer Rumsfeld to violate § 242, he would have to have the "specific intent" to violate Kelly's Eighth Amendment rights. This may seem somewhat hard to prove. Things would be much easier if Officer Rumsfeld had at some point said "Stick the Eighth Amendment up your ass," but, alas, he did not. However, a later case has made things easier. In U.S. v. Lanier, 520 U.S. 259, a judge was convicted of violating § 242 when he sexually assaulted several women who were parties to cases before his court. The Supreme Court upheld the conviction, holding that "[t]]he easiest cases don't even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.' " 520 U.S. at 259, slip op. at *26 (internal quotations omitted). As long as it's obvious that a corrections officer can't tie up a prisoner and leave him in the heat for several hours just because he doesn't like him, the "willfulness" requirement is satisfied.

Conclusion

As the examples above demonstrate, answering any of the questions we began with requires a multi-layered thought process. First, we have to find any statutes that might come into consideration. Second, we have to break down the language of the statute and figure out what each bit means. The third step is to look for judicial opinions that have dealt with similar cases: what was the result and how did they reach it? Finally, we take the framework we've built up by examining the statute(s) and applicable decisions, and see if it fits the facts.