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The Writing of Laws Is A Dumb Thing To do

Discussion in 'Philosophy' started by joe1776, Oct 10, 2019.

  1. joe1776

    joe1776 Well-Known Member

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    Using our laws on killing as an example, I will explain why law-writing is a dumb thing to do.

    Laws are official rules that people must obey. There are two kinds of rules general and absolute. General rules allow for exceptions. Absolute rules do not allow for exceptions. They always apply.

    If we wrote a law proclaiming that killing was always wrong, the law would be a simple matter to write and apply but it would be opposed to our conscience (moral intuition) in many cases such as those where the facts support clear cases of self-defense.

    In fact, absolute moral rules never apply because there are no human acts that are always wrong because any act can become morally justified when it is does the least harm in a moral dilemma.

    We could write general rules allowing for exceptions but they would be useless when needed to judge specific cases (which might be exceptions). A law that stated "Killing is wrong as a general rule" would be useless when needed to judge specific cases.

    So, basically, laws are attempts to write absolute rules by anticipating the facts in future cases. The problem with this is that human acts happen in an almost infinite variety and a slight variation might change the judgment. In the 50 states of the USA, there are 50 massive laws on murder and no two are alike. The very same killing might qualify as justifiable self-defense in some states but not in others.

    The writing of laws on murder is a foolish attempt to micro-manage judgments in future cases on a grand scale. Moreover, lawmakers must do it without having the actual facts of specific cases.

    Not only does the writing of laws sometimes conflict with good case-by-case judgment, it produces more dumb ideas like the loophole. Even if we know the act is morally wrong, it can't be punished unless it's specifically prohibited by the lawmakers. Does that make sense?

    An expert panel, one trained for the task, unhindered by laws, would be better able to investigate the facts and judge whether a killing was justifiable or not. The state might establish the authority of such panels with a simple statement like the following

    The primary task of our Criminal Justice Panels is to protect innocent citizens from serious harm caused by intentional, immoral acts while at the same time being fair in the treatment of the people accused of crimes. The panels will strive to make the correct decisions as consistently as humanly possible by getting the correct answers to both the questions of reason and the questions of conscience.

    If this statement seems too simplistic, consider that the current criminal justice system in the USA was founded on the Blackstone formulation and its goal to prevent the conviction of innocent people. It has resulted in a body of laws that make it difficult to convict the guilty and undermines the system's ability to protect the public. Moreover, it ends with many innocent people pleading guilty to lesser charges because they can't trust that the flawed system will make the right decision and find them innocent.

    The members of an expert panel, with its members trained to make specific kinds of decisions, unhindered by laws, will make better decisions.
     
  2. Amanaki

    Amanaki Living in the moment

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    Killing is always wrong. So it is good that most countries have understood this and have it as a written law. Killing is morally wrong too. I know people will disagree with me on this, and that is ok
     
  3. joe1776

    joe1776 Well-Known Member

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    We disagree but debating the point would be off-topic.
     
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  4. Augustus

    Augustus the Unreasonable

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    Laws aren't just about the prosecution, they also tell people what they can/can't do.

    Most laws aren't about killing and other basic moral principles but financial transactions, contracts, personal liabilities, etc. and they may involve people from different cultures with differing ethical norms.

    You can't simply have a 'guess the rule' situation in this regard.
     
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  5. joe1776

    joe1776 Well-Known Member

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    How did the lawmakers decide what is right and what is morally wrong if not by examining their conscience, the very same moral guide that we all have?

    My explanation used killing simply as an example to make my argument easily understood but ALL law-writing is massive micro-management because the same problems apply.

    Human acts happen in an infinite variety so whether the act is justified or not is best decided case by case and by an expert panel.

    For example, whether a doctor is at fault for negligence in the treatment of a patient would best be decided by an expert panel in binding arbitration and not in a civil court with a judge and an amateur jury constrained by the tort liability statutes which, in the USA, vary from state to state.
     
    #5 joe1776, Oct 10, 2019
    Last edited: Oct 10, 2019
  6. Nowhere Man

    Nowhere Man Bompu Zen Man with a little bit of Bushido.

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    We have so many laws now it exceeds the entire volume of the Encyclopedia Britannica , and there's so many that nobody knows exactly what the count is.

    I would bet we could all easily walk down the street and break several without even knowing.
     
  7. Nowhere Man

    Nowhere Man Bompu Zen Man with a little bit of Bushido.

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  8. joe1776

    joe1776 Well-Known Member

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    It's impossible for even criminal lawyers to be fully aware of the criminal laws in their own state. The average citizen certainly can't do it.
     
  9. Valjean

    Valjean Veteran Member
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    All laws should include a statement of purpose, explaining what problems they're made to address and what effects they're crafted to achieve. This statement should trump the letter of the law.

    Few laws are universally applicable to the effect they're written to achieve. There are usually circumstances where a strict application would be counter-productive.
     
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  10. exchemist

    exchemist Well-Known Member

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    In many legal systems there is both statute law (enacted by periodically elected representatives of the people) and common law (case law), which is developed by the courts. This hybrid system is designed to deal with some of the objections you raise to statute law, while also ensuring that the law of the land is anchored in democratic rule. The latter is necessary to give proper legitimacy to the rule of law. It provides a means for the people's representatives to direct the judges in areas where there is little common law to guide them or where the common law is felt to be inadequate.

    Your post reads to me as if you may not be taking sufficient account of the role of common law.
     
  11. oldbadger

    oldbadger Skanky Old Mongrel!

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    Go on then.......... let's see......
    :facepalm:

    Please give an example of your idea of a general law which allows for exceptions, where such exceptions are not included in the legislation.

    Clear cases?
    Please show a description of a clear case of legal killing.

    And what about accidental killing? You missed that out completely.

    Moral?
    We are talking about Criminal Law, presumably.

    We have Judges to make judgements about all cases, even after verdicts.

    Examples?

    Example of a morally wrong act not covered by legislation, please?

    Judges are the legal experts.
    Do you want a bunch of lay people making final decisions?

    They are called judges.
     
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  12. Valjean

    Valjean Veteran Member
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    There are lots of practical exceptions. Laws are supposed to be hierarchic, with county ordinances trumping city, state trumping county and federal trumping state. But there are several states here in the us where recreational marijuana is legal, even while it remains illegal under federal law.
    Legal just means non-prosecutable. There's a whole, massive, legal organization dedicated to "legal" killing -- the military. Police kill people with disturbing regularity here, but they aren't often prosecuted. Why would they even be issued deadly weapons if they were not sanctioned to use them?
    If a man breaks into your house and threatens you or your family with a gun, you may legally kill him, in most jurisdictions.
    Raising the price of a vial of insulin by 15% each year, regardless of the cost of production?
    Invading Iraq?
    Prosecuting whistleblowers?
    Guantanamo Bay prison?
    I want people making decisions hierarchically, with morality -- consequences -- being the overriding consideration. Judges are charged with applying the letter of the law, which is inconsistent, capricious, mercurial, often unrelated to right and wrong and often counter productive.
     
  13. PureX

    PureX Veteran Member

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    We hold certain principals to be absolute, but we do not live in an absolute universe. So we have to apply those principals to the events of reality based on mitigating relevance. It's really not that difficult to understand, or to do. However, it is impossible for us to know with certainty that when and how we have applied those principals, through the laws, that we have done so justly and accurately. But such are the limitations of the human condition, and we cannot function as a society without imposing laws to protect us from each other. So we do the best we can, and hope that this will suffice.
     
  14. joe1776

    joe1776 Well-Known Member

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    I don't think it matters whether we're talking about case law or statutes. The false premise in the argument for writing laws is the presumption that lawmakers from the past can guide present day judgments better than a contemporary panel of experts given all the facts in an actual case.

    The premise that lawmakers of today can write laws guiding judgments of future cases better than a future panel of experts who have the actual facts is also false.

    In the OP, I wrote a brief task guideline statement for criminal justice case. The idea is to give future expert panels only broad guidelines that will allow them to make judgments based on the actual facts they encounter.
     
  15. joe1776

    joe1776 Well-Known Member

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    Laws are not general rules. They are attempts to write absolute rules to cover every possible future case -- which is impossible to do.
    You can't imagine a clear case of a killing in self-defense on your own?
    Why is that an omission in my argument?
    Since the laws in the 50 US states are different, it's obvious that not all possible situations are covered in all 50 laws.

    Did you miss my reference to expert panels?
     
  16. Augustus

    Augustus the Unreasonable

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    Trial and error, precedent, centuries of human experience, etc.

    You chose the lowest hanging fruit possible, now try something more challenging and see if it still makes sense.

    Have you ever been involved in running a company? It's very important to understand exactly what the law is, not have some vague idea about what you guess someone else thinks about the law.

    You think our conscience implicitly tells us what is right/wrong regarding the minutiae of trading complex financial derivatives for example? Or on points of corporate law relating to legal obligations and liabilities?

    That people could successfully trade these on the global level between people of vastly different cultures making deals worth billions all based on an assumption that everyone implicitly understands what is legal and what is not?

    People aren't born with an implicit understanding of immigration law, corporate law, environmental protection law, consumer protection law, insider trading laws, international finance laws, election law, constitutional law, etc. You can't simply assume everyone understands these magically via their conscience.
     
  17. joe1776

    joe1776 Well-Known Member

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    Please explain how we learned the difference between a murder and a justified killing by any of those factors.

    I have experience running a business and in dealing with many lawyers. That's why I know what I'm talking about.

    His conscience will warn a trader not to screw with people. The immoral, smart trader will find loopholes in the law so as to make his acts legal if not morally right.

    If an innocent person is being harmed, it's immoral. One doesn't need an understanding of the law for that.

    If an innocent person is being harmed, it's immoral. One doesn't need an understanding of the law for that.
     
  18. joe1776

    joe1776 Well-Known Member

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    Agreed. What is the intent? Laws usually aren't clear.

    I would issue a brief statement of intent only and then let an expert panel make all the judgments thereafter case by case.
     
  19. Augustus

    Augustus the Unreasonable

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    Have a look how this has changed over time and across cultures. It's not some magical universal conscience that defines this, else responses wouldn't be so wonderfully diverse.


    Most laws don't have this child-like simplicity of an identifiable innocent person suffering an identifiable harm which is obviously wrong so we can just walk around guided by our conscience and have full confidence we know what is legal/illegal.

    What does your conscience say on these, and how much agreement do you think there is across all of the cultures of the world?

    Who should be allowed to live in your country?
    Who should be allowed to run businesses and own property in your country?
    Exactly what rights do workers have?
    How much should a corporation be allowed to donate to an election campaign?
    What rights should one have if they own a share in a company?
    If a company is publicly listed what obligations do they have?
    How do you avoid conflict of interest in financial auditing?
    How much should a bank hold in reserve to guarantee deposits?
    What is the highest blood alcohol limit at which you can legally drive?
     
  20. joe1776

    joe1776 Well-Known Member

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    Conscience is a remarkable faculty and it is universal (cross-cultural). It doesn't seem so, not because it's "wonderfully diverse" but because some cultures are more mature than others.For example, when half the world had abolished legal slavery but the other half had not, it was not that conscience was sending different messages. It was that the conscience-driven moral advance of abolition had not yet spread to all cultures.

    Human acts are either morally wrong or morally justified. It doesn't get simpler than that.

    The fact is that most fraud is legal because loopholes can be found in nearly every law to allow people to cheat others and not pay the price for their crimes. This stupidity is made possible because of the unjustified respect for laws.

    All the above are policy questions which can be handled by expert panels rather than courts and laws. For example, the expert panel on fair elections would make all policy decisions regarding elections. Writing laws would only induce lawyers to look for loopholes to legally cheat.
     
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