Law
In "Morality", I tried to lay out a basic statement of morality -- not the most or best a person could do or act, but rather, the absolute minimum that every individual should follow: "Refrain from doing that which, if practiced by everybody in the community, would cause to happen to another individual that which you would not want to happen to you." In this discussion about law, I must modify this statement, because law is inherently different from morality.
Law exists to protect individuals by blocking or punishing the behavior of other individuals. It therefore must be underlaid with force, because the logical limit of preventing or punishing any action is force against the individual carrying it out. It is absolutely essential to bear in mind that a law is permission for the agent of that law to physically harm or even kill you. YOU. Just think: if you violate a law, the police will seek to detain you. If you resist, the police will respond with sufficient force to overcome your resistance. The logical limit of that is the death either of the police officers involved or of YOU. That means we must be protected from the law as well as by it. In a society of law, all individuals are equally bound by the law, so we must make sure that there are only so many laws as are absolutely necessary to protect us -- otherwise we may be inconvenienced, harmed, or even killed for the enforcement of something that does not protect us or anyone else from the same.
In understanding why law must be limited, there's another concept that is almost uniquely American: that individuals are not knowable. No one among us can read minds, or intentions, or look into another's soul (whatever that means), and there is no way to verify claims of such ability by any individual. In "premiere" I talked a little about knowledge of an idea as requiring disproof of all alternatives to that idea. It is possible, of course, to assign a reasonable probability to an individual's ability to read minds, but history and our own experience demonstrate that such abilities, even if they do exist, have never been shown as reliable. For practical purposes, we cannot know if an individual claiming awareness of another individual's thoughts is true, a misconception by the claimant, or an outright lie. We, and everybody else, can only come to trust or have confidence in an individual by observing or learning about that individual's actions. Given that individuals can act in ways that deceive us as to their true "nature" (whatever that means), we can never be sure that any individual we know won't become an axe murderer. The American understanding of this, evident in the Constitution and the Federalist Papers, is that we can not know that any individual will use power wisely or well. Although there are real differences in the morality, nature, intentions, what have you of various individuals, each person represents a black box we cannot penetrate. Therefore, a lot like the status of Schrodinger's Cat, the morality, wisdom, intelligence, and other qualities of an individual are not known unless and until we open the box. From this we must conclude that any person in power is capable of error or malice, and therefore any of us is vulnerable to an uneven application of the law because of such error or malice.
This bears repeating, because so many persons in our society just don't get it. Just because you never take drugs, or commit sodomy, or speed, doesn't mean that somebody can't claim that you have taken drugs, committed sodomy, or sped. Someone could be mistaken in sense and memory, or could just hate you so much that they'll lie about it. Can anyone reading this say that NOBODY hates him? As another example, what does it take to be a "suspected terrorist"? Just for the right person to suspect or claim to suspect that you are a terrorist. THAT'S IT! There are a lot of other reasons why George W. Bush is the worst and most dangerous president we've ever had, but his insistence on being able to violate YOUR rights on the say-so of just one individual is enough to make him a domestic enemy of the Constitution.
So whereas morality is based on what you think is right, law must be based on what is demonstrably, universally wrong. As with morality, just quoting some allegedly divine source is not sufficient to justify a law, because ANY ONE OF US COULD BE KILLED FOR BEING ACCUSED OF VIOLATING A LAW (I just can't repeat this enough): we must show that a law is required to protect an individual from harm. Let's break this down: just because an individual might feel as though he's been harmed doesn't mean he's been harmed: the harm must be objectively demonstrable; just because an individual can be demonstrably harmed doesn't mean we need a law: the law must be demonstrably effective in preventing that action. A law is only justified if it demonstrably protects real people from demonstrable harm.
Only the individual can be assumed to have rights. The necessity of this is self-evident: only an individual can act and be held accountable for action. Corporations, governments, groups do not act: agents of them act. The weather may act, the sun and moon and meteors may cause damage, but they cannot be held accountable. Only individuals therefore are sovereign: that is, they have both authority and culpability. God may act, but His actions are not demonstrably His: prove that the wind is not caused by an angry wind god in argument with an angry cloud god, or that invisible blue monkeys are not the ones moving us about like puppets. Therefore God, religion, culture, language, groups -- none of these have sovereignty, nor therefore do they either have rights or the need of protection of same. It is not clear to me how any individual can be moral without being sovereign, and I think the law must grant this sovereignty not only to protect individuals, but to facilititate their being moral. At any rate, it is this sovereignty that must be protected: sovereignty over person and property. Locke talked about inalienable rights as though we were somehow imbued with them, but we all know that we have no rights that those with power do not recognize. Rather, to be considered just and worthy of existence, the state must assume these rights. Because we have sovereignty, we must assume responsibility for and face the consequences of our own actions -- the state must not attempt to protect us from them, because it deprives us of liberty, even the liberty to screw up. Also because we have sovereignty, the state must not protect us from being persuaded to assent to an action. However, an individual must be prevented from using force or fraud to violate another's sovereignty. And because we're talking about real rights here, we must dispense with subjective measurement of those: no mental anguish, pain and suffering, sensibilities or decendy, or whatever. If there is harm to person, it must be demonstrable and quantifiable (medical costs to repair such harm are a good indicator); harm to property must be more substantial than "property value". At the same time, though, diminishing the utility of the property, through pollution, noise, or even bright, inescapable light is quantifiable: through concentration of particles, decibels of sound, or candela of light.
It is the state, as the creator and enforcer of law (through individuals so authorized), that has the responsibility of protecting the sovereignty of the individual. But because this responsibility is underlaid with the power to HARM OR KILL ANY ONE DEFIES IT, and because the individuals authorized to use this power are equally susceptible to error or malic, the responsibility, both in laws and enforcement of them, must be limited to the demonstrable protection of real individuals from demonstrable harm by other individuals.
Which brings us to the presumption of innocence. This is another necessary fiction: we are presumed to be potentially guilty the moment we are suspects, but the maintenance of an equal presumption of potential innocence is necessary to keep us from getting, well, beaten up or killed just because somebody thinks or claims we did something illegal. Thus we must prevent those in authority from doing to any accused individual anything we ourselves would not put up with to help solve a crime and demonstrate our innocence. The police protect us, so we must be willing to stop what we're doing and assist a police officer out of the reasonable expectation that such is necessary to protect us, protect somebody else, or find someone who has wronged somebody else. We also should be willing to take time out from work or whatever to go to the police station and answer questions or give testimony, again out of the reasonable expectation of that action's necessity. If we are falsely accused and arrested, we must be willing to be detained and imprisoned for the time required to prove our innocence, but this is predicated on a reasonable expectation that we will not suffer harm to ourselves or our property as a result, that our liberty shall not be constrained for an unreasonable time, and that we shall be compensated when we are exonerated. But this last expectation rests on the necessity of treating all those accused in the same way: no beatings, no confiscations, no killing. And, of course, because individuals in a jury are susceptible to error and malice, it remains possible that a convicted individual is innocent -- BECAUSE IT IS POSSIBLE THAT ANY ONE OF US CAN BE FALSELY ACCUSED, UNFAIRLY TRIED, AND WRONGFULLY CONVICTED. That means YOU! On this possibility rests my objection to the death penalty, and my support of the Libertarian party position that individuals who are exonerated must be compensated for any and all infringements of liberty and property.
Given all the things that can happen to YOU, it just doesn't make sense to authorize individuals in government to use their power unless somebody's going to be, is being, or has been, harmed. Prostitution? Drug use? Pornography? Individual sovereignty reigns: unless there's force or fraud involved, government should stay the hell out of them. Homosexuality? Ditto. The status of English? It's just a language, so it has no sovereignty to protect. God? I tell you what: not only does the government have no right to make a statement about God, one cannot presume fair treatment by a state or agent thereof who does. This post already quite long, so I'll just say this: anyone who thinks we are one nation "under God", that our laws are based on the Ten Commandments (one of three possible versions), and that our currency should proclaim a belief in God is STUPID, SUBHUMAN, and ANTI-AMERICAN. But I'm sure I'll talk about that in another post.
So all this is why law and government must be limited, and why I get so incensed at government actions or calls for government action that exceeds these limits. So now I guess I can start posting specific gripes. Allons-y!
Law exists to protect individuals by blocking or punishing the behavior of other individuals. It therefore must be underlaid with force, because the logical limit of preventing or punishing any action is force against the individual carrying it out. It is absolutely essential to bear in mind that a law is permission for the agent of that law to physically harm or even kill you. YOU. Just think: if you violate a law, the police will seek to detain you. If you resist, the police will respond with sufficient force to overcome your resistance. The logical limit of that is the death either of the police officers involved or of YOU. That means we must be protected from the law as well as by it. In a society of law, all individuals are equally bound by the law, so we must make sure that there are only so many laws as are absolutely necessary to protect us -- otherwise we may be inconvenienced, harmed, or even killed for the enforcement of something that does not protect us or anyone else from the same.
In understanding why law must be limited, there's another concept that is almost uniquely American: that individuals are not knowable. No one among us can read minds, or intentions, or look into another's soul (whatever that means), and there is no way to verify claims of such ability by any individual. In "premiere" I talked a little about knowledge of an idea as requiring disproof of all alternatives to that idea. It is possible, of course, to assign a reasonable probability to an individual's ability to read minds, but history and our own experience demonstrate that such abilities, even if they do exist, have never been shown as reliable. For practical purposes, we cannot know if an individual claiming awareness of another individual's thoughts is true, a misconception by the claimant, or an outright lie. We, and everybody else, can only come to trust or have confidence in an individual by observing or learning about that individual's actions. Given that individuals can act in ways that deceive us as to their true "nature" (whatever that means), we can never be sure that any individual we know won't become an axe murderer. The American understanding of this, evident in the Constitution and the Federalist Papers, is that we can not know that any individual will use power wisely or well. Although there are real differences in the morality, nature, intentions, what have you of various individuals, each person represents a black box we cannot penetrate. Therefore, a lot like the status of Schrodinger's Cat, the morality, wisdom, intelligence, and other qualities of an individual are not known unless and until we open the box. From this we must conclude that any person in power is capable of error or malice, and therefore any of us is vulnerable to an uneven application of the law because of such error or malice.
This bears repeating, because so many persons in our society just don't get it. Just because you never take drugs, or commit sodomy, or speed, doesn't mean that somebody can't claim that you have taken drugs, committed sodomy, or sped. Someone could be mistaken in sense and memory, or could just hate you so much that they'll lie about it. Can anyone reading this say that NOBODY hates him? As another example, what does it take to be a "suspected terrorist"? Just for the right person to suspect or claim to suspect that you are a terrorist. THAT'S IT! There are a lot of other reasons why George W. Bush is the worst and most dangerous president we've ever had, but his insistence on being able to violate YOUR rights on the say-so of just one individual is enough to make him a domestic enemy of the Constitution.
So whereas morality is based on what you think is right, law must be based on what is demonstrably, universally wrong. As with morality, just quoting some allegedly divine source is not sufficient to justify a law, because ANY ONE OF US COULD BE KILLED FOR BEING ACCUSED OF VIOLATING A LAW (I just can't repeat this enough): we must show that a law is required to protect an individual from harm. Let's break this down: just because an individual might feel as though he's been harmed doesn't mean he's been harmed: the harm must be objectively demonstrable; just because an individual can be demonstrably harmed doesn't mean we need a law: the law must be demonstrably effective in preventing that action. A law is only justified if it demonstrably protects real people from demonstrable harm.
Only the individual can be assumed to have rights. The necessity of this is self-evident: only an individual can act and be held accountable for action. Corporations, governments, groups do not act: agents of them act. The weather may act, the sun and moon and meteors may cause damage, but they cannot be held accountable. Only individuals therefore are sovereign: that is, they have both authority and culpability. God may act, but His actions are not demonstrably His: prove that the wind is not caused by an angry wind god in argument with an angry cloud god, or that invisible blue monkeys are not the ones moving us about like puppets. Therefore God, religion, culture, language, groups -- none of these have sovereignty, nor therefore do they either have rights or the need of protection of same. It is not clear to me how any individual can be moral without being sovereign, and I think the law must grant this sovereignty not only to protect individuals, but to facilititate their being moral. At any rate, it is this sovereignty that must be protected: sovereignty over person and property. Locke talked about inalienable rights as though we were somehow imbued with them, but we all know that we have no rights that those with power do not recognize. Rather, to be considered just and worthy of existence, the state must assume these rights. Because we have sovereignty, we must assume responsibility for and face the consequences of our own actions -- the state must not attempt to protect us from them, because it deprives us of liberty, even the liberty to screw up. Also because we have sovereignty, the state must not protect us from being persuaded to assent to an action. However, an individual must be prevented from using force or fraud to violate another's sovereignty. And because we're talking about real rights here, we must dispense with subjective measurement of those: no mental anguish, pain and suffering, sensibilities or decendy, or whatever. If there is harm to person, it must be demonstrable and quantifiable (medical costs to repair such harm are a good indicator); harm to property must be more substantial than "property value". At the same time, though, diminishing the utility of the property, through pollution, noise, or even bright, inescapable light is quantifiable: through concentration of particles, decibels of sound, or candela of light.
It is the state, as the creator and enforcer of law (through individuals so authorized), that has the responsibility of protecting the sovereignty of the individual. But because this responsibility is underlaid with the power to HARM OR KILL ANY ONE DEFIES IT, and because the individuals authorized to use this power are equally susceptible to error or malic, the responsibility, both in laws and enforcement of them, must be limited to the demonstrable protection of real individuals from demonstrable harm by other individuals.
Which brings us to the presumption of innocence. This is another necessary fiction: we are presumed to be potentially guilty the moment we are suspects, but the maintenance of an equal presumption of potential innocence is necessary to keep us from getting, well, beaten up or killed just because somebody thinks or claims we did something illegal. Thus we must prevent those in authority from doing to any accused individual anything we ourselves would not put up with to help solve a crime and demonstrate our innocence. The police protect us, so we must be willing to stop what we're doing and assist a police officer out of the reasonable expectation that such is necessary to protect us, protect somebody else, or find someone who has wronged somebody else. We also should be willing to take time out from work or whatever to go to the police station and answer questions or give testimony, again out of the reasonable expectation of that action's necessity. If we are falsely accused and arrested, we must be willing to be detained and imprisoned for the time required to prove our innocence, but this is predicated on a reasonable expectation that we will not suffer harm to ourselves or our property as a result, that our liberty shall not be constrained for an unreasonable time, and that we shall be compensated when we are exonerated. But this last expectation rests on the necessity of treating all those accused in the same way: no beatings, no confiscations, no killing. And, of course, because individuals in a jury are susceptible to error and malice, it remains possible that a convicted individual is innocent -- BECAUSE IT IS POSSIBLE THAT ANY ONE OF US CAN BE FALSELY ACCUSED, UNFAIRLY TRIED, AND WRONGFULLY CONVICTED. That means YOU! On this possibility rests my objection to the death penalty, and my support of the Libertarian party position that individuals who are exonerated must be compensated for any and all infringements of liberty and property.
Given all the things that can happen to YOU, it just doesn't make sense to authorize individuals in government to use their power unless somebody's going to be, is being, or has been, harmed. Prostitution? Drug use? Pornography? Individual sovereignty reigns: unless there's force or fraud involved, government should stay the hell out of them. Homosexuality? Ditto. The status of English? It's just a language, so it has no sovereignty to protect. God? I tell you what: not only does the government have no right to make a statement about God, one cannot presume fair treatment by a state or agent thereof who does. This post already quite long, so I'll just say this: anyone who thinks we are one nation "under God", that our laws are based on the Ten Commandments (one of three possible versions), and that our currency should proclaim a belief in God is STUPID, SUBHUMAN, and ANTI-AMERICAN. But I'm sure I'll talk about that in another post.
So all this is why law and government must be limited, and why I get so incensed at government actions or calls for government action that exceeds these limits. So now I guess I can start posting specific gripes. Allons-y!
posted by heavynettle at 12:35
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