Traitorfish
The Tighnahulish Kid
I don't. Consistency isn't a worthwhile end in and of itself.
Sharia influence on English Vice
- Thread starter JollyRoger
- Start date
The UK still allows for live, in person distribution, right? Half the point of crossing the pond is to experience the culture.
If the law is manifestly inconsistent, it wears away at its claim to be legitimate - if there are two rules for two types of media with no good reason, it's obvious that at least one is a bad one, and therefore hard to see why you ought to follow them.
Traitorfish
The Tighnahulish Kid
The perception of the law as legitimate is not a worthwhile end in and of itself, either.
I think I have to disagree with you there. If we accept that the law should exist and that it should be as sensible and reasonable as possible, then inconsistencies have to be fixed, since they are perfect evidence that at some level it could be make more sensible and more reasonable. Otherwise it becomes just a series of arbitrary regulations that don't really offer any good reason to subscribe to them.
Borachio
Way past lunacy
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- Jan 31, 2012
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Yes. But Mr Fish has made a rather impenetrable statement, imo.
If your sole aim is to have the law perceived as being legitimate, then that's a poor excuse for a law, isn't it?
Shouldn't the need for a law be, more immediately, the perception of an injustice?
If your sole aim is to have the law perceived as being legitimate, then that's a poor excuse for a law, isn't it?
Shouldn't the need for a law be, more immediately, the perception of an injustice?
Traitorfish
The Tighnahulish Kid
That strikes me as profoundly illiberal. Surely, it's more important to have good laws than laws which are merely perceived to be good laws, and that to create more bad laws for the sake of the appearance of good laws is a fundamental perversion of the law-making process?
As Borachio says, the only acceptable reference point here is justice. The rest is smokes and mirrors.
True, but that's not quite what I was getting at - I was focusing on the fact that an unexplained inconsistency proves the existence of a bad (or at least sub-optimal) rule, so fixing it is in the interests of making laws which are actually good. Even good laws, though, still need to seem good - I don't think it would be an acceptable excuse to have an incomprehensible legal system that was largely seen as unjust if somebody claiming to 'know about these things' pronounced it to be just. To throw the ball back into your court, appealing to an abstract idea of 'justice' which trumps popular opinion is profoundly undemocratic.
Traitorfish
The Tighnahulish Kid
That's true, but it doesn't follow that removing the inconsistency is sufficient to make the law good. It may be that the law is bad whether it's applied consistently or inconsistently, and that consistent application will only disguise that fact. But that what's being proposed here, that the laws be made consistent because inconsistent laws look bad, and that this is a desirable outcome in and of itself: the goodness of the law itself isn't being acknowledged as a consideration.
That's a criticism of the institutions which claim the right to decide what is and is not "just", not with the concept of justice itself. Something is either just, or it isn't; institutions are the means by which we negotiate our way to a consensus about what is just, and those means may be more or less democratic, more or less inclusive, but they don't actually determine what is or is not just.
True, but it is at least necessary that a rule be consistent, even if it's not the one currently being enforced. In the absence of a better idea, the rules enforced consistently are better than the rules enforced patchily, because otherwise it rather makes a mockery of what we purport to be doing when we make laws. 'Thou shalt not steal (unless we don't bother chasing you)'?
If it's a bad rule, then it shouldn't be there in the first place. If it's a good rule, it should be consistent. Since it's there, I'm assuming that we treat it as a good thing, and if it's not, then a better rule should be made and enforced consistently.
All feels a bit quantum to me. It seems that you're asserting that there's some objective quality called 'justice' which we can only measure imperfectly but nevertheless remains fixed. In practical terms, what reason does that leave to believe that it even exists in terms which could notionally be measured exactly?
The Red Diamond level of discourse going on in this thread is disappointing.
Traitorfish
The Tighnahulish Kid
But again, the dignity of the laws is not an end in itself. Bad laws should be mocked, and a legal system that makes bad laws should be mocked. Constituted authority doesn't deserve our respect through simple virtue of being constituted: it deserves our respect insofar and only insofar as its laws are good and just. To argue for the consistent application of a law is therefore to argue that the law is itself good. And that's not really being put up for debate, here.
But "a better rule should be made" isn't on the table, in this instance. The question is only whether or not an existing law should be applied more broadly. The quality of the existing law isn't being put up for discussion.
I don't think it's necessary to obtain a perfect conception of justice to accept the principle of justice, and that its a desirable principle to pursue. We accept that we cannot achieve perfect rationality, but we none the less maintain that rationality is a Thing, and most of us accept that it is desirable. I think justice works similarly, that we're always ultimately groping in the dark, but it's better than simply wallowing in ignorance.
Boobies.
That's all well and good, but where do you go from there? I agree that bad laws shouldn't (necessarily) command respect, but a situation in which the laws are known to be bad and do not command respect needs to be fixed.
That was precisely my point, though - I was starting from the basis that The Powers That Be had decided that banning extreme pornography was a good rule, and saying that if they assume that it's a good rule then it makes sense to apply it widely. The 'weak form' of the argument, if you like, is that if the choice is only between bad laws applied patchily and bad laws applied uniformly, then the bad laws should be applied uniformly. The main reason for this is that I'm uncomfortable with the idea of someone having the right to choose how to enforce the law. There doesn't seem to be all that much of a gulf between 'one rule for video shops and another for iTunes' and 'one rule for Tesco and another for Waitrose'.
I think I agree that there is such a thing, but then I'm uncomfortable with how you'd go about giving that primacy in public decision-making. It would effectively boil down to 'the voters are wrong and I'm right', whoever 'I' actually am, and that's been said many times in history for particularly bad reasons. Even judges in modern times have passed verdicts which most of us believe to be profoundly unjust, and of course the traditional example of an 'arbiter of justice' would be a priest, and the less said about that the better. If we're going to say that 'justice' can trump democracy, we need to find someone to measure it, and I don't think such an entity exists.
Traitorfish
The Tighnahulish Kid
I don't believe it does. If laws are bad, we should hope that they are known to be bad and fail to command respect. The problem is not the perception of the laws as bad, which is accurate and reflects the vigilance of the population; it is that the laws themselves are bad. As I said, the perception of the laws as good is not a worthwhile end and of itself, and if the laws are bad, we should hope that they are not percieved as good.
I don't think it's true that a bad law should be applied uniformly. A bad law shouldn't be applied at all, and the less widely it is applied, the better. The disenfranchisement of blacks in the American South, to take an extreme example, would not have been improved by disenfranchising poor whites as well. To argue that a law should be applied widely is to argue that the law is good, so if a law cannot be shown to be good, the argument is baseless.
You say that as if the existing system of justice isn't deliberately constructed to be undemocratic. I mean, the proposal that justice is not simply refleciton of majority will is not some wild anarchist ideal, it's Liberalism 101. The problem you're hitting on is that "democratic" and "just" are not mutually exclusive, while "non democratic" is very often the same as "unjust", so it may be that a more democratic system would be more just (something I believe very strongly!)- but again, that's a criticism of the institutions which claim the exclusive right to decide justice, not of "justice" as an abstract concept.
Should we? If the laws against pornography fail to command respect, then the laws against theft suddenly have a lot less moral authority. 'Because the law says so' is no longer enough, and a lot of people won't see why they shouldn't steal a wallet from someone who needs it less than they do.
Disenfranchisement is a bit of a special case because I was arguing that applying the law will make its badness obvious and force it to be changed by proper democratic means, but I'll concede that one in the abstract.
I think there's a distinction between individual ethics and public policy. On an individual level, of course justice is undemocratic - I will carry on doing what I believe to be right even if everyone around me believes otherwise. I'm not sure the same applies in lawmaking, though. Obviously, to use the example you brought up, segregating blacks is wrong, and it seems like any jury which refused to find someone guilty for sitting on a whites-only bus would have been acting justly. However, I don't see how it's possible to separate that jury and the one down the road, which also believes that it's acting in the interests of justice, who refuses to find someone guilty for taking part in a lynching. I don't see how injecting 'justice' in the abstract as something which trumps democracy avoids the latter while facilitating the former.
Traitorfish
The Tighnahulish Kid
The law has no natural claim to our respect. Laws do not deserve respect. Our respect is earned through demonstrated justice. If people do not respect the law because it is just, but simply fear it because it is powerful, then they already regard the law as illegitimate, they simply lack the ability to challenge it. If the only thing that stopped a person from stealing a wallet was "because the law said so", the law is already empty of moral authority.
Applying the law might make its badness more evident insofar as it impacts upon more people more directly, but it's still a bad law, and we shouldn't hope for bad laws to be enforced. This sort of pyschological manipulation, essentially tricking people into realising that a law is unjust, hardly speaks to a free and open society, and also seems very strange coming from somebody making an appeal to "democracy".
Again, this is a criticism of the institutions which dispense justice, or "justice", not of "justice" as an abstract concept. It remains the case that the test of a good law is the justice of that law, you're simply asking how we go about that testing. Which, given that the broader sweep of your argument is a defence of undemocratic bodies enforcing laws without regard to their justice, seems rather besides the point.
Part of the reason we respect laws - or any advice - is the standing of the body issuing them. In theory, I try to eat lots of vegetables and avoid smoking because I believe that it's good advice, and the fact that the health service advises me to do so is a coincidence - I don't just do it because the health service says so. However, there is an element of trust involved: I trust the health service to know what it's talking about, so I try to follow its advice when it seems sensible. If Prince Charles told us all that we should eat two portions of cabbage per day, I probably wouldn't do that, because I don't trust him in the same way - although I do trust the health service that I should try to eat five portions of fruit and veg, which isn't really a more rationally obvious piece of advice. People need to see lawmakers as fundamentally like the health service, not fundamentally like Prince Charles, otherwise they're unlikely to follow even good laws unless they have to - and there, you're right, the state would just be falling back on force and intimidation.
Good point, but it is the job of the government either to make better laws or back the laws that it has - if it's determined that the laws are good ones, it has a duty to enforce them.
Quite the opposite, it's a defence of undemocratic bodies not being given a say in how laws should be enforced. I'd also say that if it's impossible to make a good test of justice, then we need to find another way to judge our laws.
Traitorfish
The Tighnahulish Kid
We should the health service because of demonstrated competence. We would not respect them if they were demonstrated to be incompetent, but consistently so. What you're proposing is that we should want the health service to be seen as competent whether or not it actually is, so that it may perpetuate itself as an authority, but why should we want an authority which cannot demonstrate its competence to perpetuate itself? Likewise the laws: laws should be respected if and insofar as they are just, and disrespected if and insofar as they are unjust. The law cannot make no claim to our respect through simple fact of being the law.
I don't believe it does. There can be no duty to enforce unjust laws, and I'd say there's an active duty to refuse to enforce bad laws. That the law is already on the books is there not sufficient to create a duty to enforce it. To take up the example of the pre-Civil Rights South, Southern lawmakers did not have a duty to enforce segregation simply because it was the law, and actively had a duty to refuse to enforce and indeed to obstruct the enforcement of segregation. Again, the law does cannot command respect or obedience simply because it is the law, but only because and insofar as it is just, and the law can claim no presumption of justice simply because it is the law.
Well, whether the British parliament is democratic or undemocratic (and even accepting that it's elected democratically, it's difficult to characterise the actual lawmaking process as "democratic"; "democratically accountable" is as generous as we could reasonably get), you're arguing here for the making and enforcing of laws without regard to the justice, arguing in fact that consistency is more important than justice, so observing that the justice of a law is difficult to determine is besides the point. Your argument is that any given law should be enforced even if it is self-evidently unjust, because on a law-by-law basis, consistency is more important than justice; if justice is obscure, that's convenient insofar as it allows you claim that it's not obviously unjust, but that's ultimately just rhetoric, and remains secondary to the actual logic of the argument.
I think there's an argument to be made that imperfect order is better than no order at all, but that's not what I'm going for. My point is that the law, by and large, is closer to the health service than Prince Charles, but that perception doesn't rest entirely on its actual performance. If people see one aspect of the law being unfair or illogical, they'll be inclined to believe that the rest of it is not worth trusting - that's just how confidence works.
I think that's contentious, to say the least. They would obviously have disagreed that the right thing to do was to refuse to enforce that law - in fact, they'd tell you that they were enforcing perfectly legitimate and just laws and that refusing to enforce them would be a dereliction of duty. What makes you confident that you're right, and so confident that you claim the right to dictate their duty to them? I can understand the idea that an elected representative has to use his own moral compass over his orders - that's why we elect human beings - but not that he has to use someone else's.
I think the law can command obedience because it is the law, at least in some sense. It's a bit like a working relationship, I think - you obey your boss in general terms because he has skills and experience that you respect, but in day-to-day terms you do what he says because he's in charge. Sometimes he might ask you to do something and you might not understand it, or you might think he's making a mistake, but you still do it. So too with the law. The fact that you think you can drive perfectly safely at 40 down that 30 road doesn't mean that you do.
Making, no, but certainly enforcing once the law is presumed just.
Not quite; my argument is that we're presuming that one horn of this law (either the rules previously applied to physical media or those previously applied to digital media) is reasonably just, and as such that whichever is the good one should be enforced consistently. If the government is going to say that the rule is just, then they should put their money where their mouth is and enforce it consistently; otherwise, they need to go back to the drawing board. Having refused to do the latter, the former follows.
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