Good example of a defective law

What is the charter equivalent of an unconstitutional law? It's the same standard as any defective dicta (which are "authoritative representations", words and deeds in an authoritative manner) -- is it understandable beyond a reasonable doubt? With laws especially, the meaning must be clear, and not open to multiple interpretations. Here is an example of such a defect.

The disagreement between Apple and Brussels centers on Article 5.4. In its English version, the article states that the gatekeeper — the term used by the Commission for the seven major tech companies subject to the DMA — "shall allow business users, free of charge, to communicate and promote offers, including under different conditions [...], and to conclude contracts with those end users."

This lengthy sentence creates ambiguity: what exactly does "free of charge" apply to? Apple claims it only applies to "communicate" and "promote," meaning the right to insert redirect links in an app. But not to "conclude contracts," meaning making purchases. Based on that, Apple argues it can still charge commissions on those external transactions.

The European Commission interprets it differently: contract conclusion must also be free of charge. It relies on the comma before the phrase "and to conclude contracts," turning the sentence into an "enumeration." "That 'free of charge' applies to all that is being enumerated after", it explains in its detailed decision sent to Apple as part of the €500 million fine, which was made public last week.

It might seem reasonable that the Commission's interpretation is what matters; it is their law, after all. But that's perverse — it's the people who are expected to obey laws who have to understand them. What good is a law which everyone understands differently from the author? Imagine a law written in Klingon or proto-Indo-European — no one would think it fair that everyone else has to learn that language.

The charter has a different tack. If people can't agree on what something means, it is, literally, not understandable. It is defective, and voided as if it had never been enacted. Just as a stolen credit card was theft from the moment it was stolen and the thief owes everything he bought with it, not just what he bought after the theft was discovered, so a defective law was defective from the beginning, and all convictions have to be undone.

The real question is who determines a law is defective. Just like crime, so with defects. A victim, which with laws is everybody, files a complaint about the alleged defect. Anyone who wants to defend it can. The government can't; it has no money and no employees. Besides, once enacted, a law belongs to the public, not the government. Legislators represent We The People and pass laws on their behalf, so that is who owns them.

It could devolve into a huge scrum of thousands of challengers and defenders yelling at each other, but that's just silly. If nothing else, the charter requires parties to resolve disputes, and yelling at each other doesn't do that. So these challengers and defenders have to talk to each other, and the only reasonable way to do that is for people with the same complaint and defense to choose a single representative. How? Doesn't matter. Anyone who decides to speak for himself but just repeats someone else's argument is wasting everybody's time. He is stalling, malingering, not working towards resolution as the charter requires, and everyone else sends him packing.

So everyone acts sensibly, and it comes down to a very few people on each side. One or two, maybe more if a law is so huge that people come up with hundreds of misunderstandings, but here, this dispute is about a single comma, so it's going to be one lawyer on each side.

Of course neither side is going to back down. The Commission has way too much face to lose, and they want that billions in revenue too. Apple hasn't got as much reputation at stake, or votes, but they want to keep their money just as much as the Commission wants to take it, possibly more.

One possibility is that these two argue and argue and nothing happens. Each sincerely believes in its interpretation, citing grammar books, comparing the English version to other languages, and neither can make a good case that the other is just stalling. And a year and a half later, the law expires. That might seem fatal, but it's not; the alleged violation took place in the context of the law while it was still active, and it hasn't been declared defective yet.

So scratch expiration as a solution. What the two will eventually do is call for a jury. I call these impromptu juries, called to settle very specific questions. Is the thief in this security video the suspect? Does this insurance policy cover a skydiver who died from drowning because a wind blew him off course into a swimming pool? The general idea is to gather 12 people, or maybe a few extra to allow for rejects for bias, put them in separate rooms, ask them the question, and give them time to answer the very narrow question. If the question is which fingerprint expert is correct, let them ask questions until they decide which one to trust.

When all are done, but before looking at the answers, the parties find out who the jurors are and reject those they think are biased or incompetent. This must be unanimous, like all other case decisions. Once they've weeded out the jurors they agree can't be relied on, the parties compare the answers. Notice the jury as a whole does not decide the answer, the dispute parties are still the responsible parties, it is still their dispute. Do all remaining jurors give the same answer? That's a pretty solid indication that the public won't have much truck with one of the parties refusing to accept that opinion. Do one or two jurors differ, and how much? Again, what will the public think? In effect, the public is the real jury that the dispute parties must convince. If the jurors are split 50-50 or 75-25, that's a pretty good indication that the law is indeed incomprehensible, not understandable, defective, and must be throw out; the Commission will have to start over, pass the law again, and clean up that comma or whatever else confused the jurors.

There's another aspect to this. If jurors are given an entire law to read and analyze and summarize, and they all more or less agree, that is pretty final. Anyone who comes along a year later and insists on some different interpretation will have a hard row to hoe. He can't just claim the opposite and call it defective because he says differently. A suspect who denies that the fingerprints, DNA, security video, and witnesses are all wrong doesn't create the conflict which makes the evidence confusing.

In this particular case, I don't think there'd be enough people on either side to give one interpretation the undeniable edge. I think they'd split, or too many would say they can see it either way, and the law would have to be voided. My interpretation when I first read it was that the quoted "[...]" leaves out too much to be sure, but ignoring that, the "free of charge" applies to the entire list, not just the first item in the list, and that Apple is just clutching at straws and quibbling like the best lawyers do. But I also think that including the verb's "to" in that last list item tends to separate it from the first "to", and it's too close a call, and I can easily see other people favoring Apple's interpretation. The fact of having multiple languages complicates this; you'd probably want different juries for each language, and what if, say, the English jury says one thing, and French and German juries say the opposite? Welp, not understandable again, defective, out it goes.

"shall allow business users, free of charge, to communicate and promote offers, including under different conditions [...], and to conclude contracts with those end users."

Compare:

shall allow you, free of charge, to communicate, promote offers, wash your windows, and to conclude contracts.

shall allow you, free of charge, to communicate, to promote offers, to wash your windows, and to conclude contracts.

That first one seems to separate the last item from the first three. The second one separates them all. But it's still not clear, and the article should have included the full clause instead of the ellipsis.

Apple wants this version:

shall allow you to, free of charge, communicate, to promote offers, to wash your windows, and to conclude contracts.

Or better yet, this version:

shall allow you to promote offers, to wash your windows, to conclude contracts, and, free of charge, to communicate.

The Commission wants this version:

shall allow you, free of charge, to communicate, to promote offers, to wash your windows, and to conclude contracts.

Or something like that.