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Morality vs. Law
There have been multiple threads here as of late where the issue of morality vs. law has come up, and it seems to me that people just don't get it.
If you are discussing something on the Internets, there is no point in talking about what the law currently is. Well, I mean you could discuss interpretations of law, such as the current cases before the supreme court, but that usually isn't the topic of conversation.
When you're discussing something like copyright, or privacy, or whatever, we don't want to hear from you what the law is. We know what the laws are, for the most part. We want to know what you think. What do you think is right, what do you think is wrong, and why? That is the material that an interesting discussion can be made from.
Now, it seems like some people have a hard time separating the idea of morality from legality. You ask them why something is wrong, and they say because it is illegal. Well, tell that to Gandi, MLK, or any of the other civilly disobedient folk throughout history. Laws are very often wrong and bad, and to say something is bad because it against the law is effectively a non-statement. It just demonstrates that you have a complete lack of ability to ethically evaluate a scenario.
Now, you could also make the argument that law actually should be morality. If you truly believe in the ideals of representative government, then you could argue that if something is the law, then it is something that our society has agreed upon. Thus, you would argue that whether you personally agree with it or not, conforming to the desires of the majority is the basis of morality in a society. The thing is, I don't see anyone trying to make that point.
Learn to discuss things properly. You know how we talk about the difference between your personal opinion of a work of art, and your critical evaluation of it? This is the same kind of thing. Learn the difference between legality and morality. Most of the time, we're looking for morality and ethics because that is the area in which there is actually an interesting and valuable discussion to be had.
If you are discussing something on the Internets, there is no point in talking about what the law currently is. Well, I mean you could discuss interpretations of law, such as the current cases before the supreme court, but that usually isn't the topic of conversation.
When you're discussing something like copyright, or privacy, or whatever, we don't want to hear from you what the law is. We know what the laws are, for the most part. We want to know what you think. What do you think is right, what do you think is wrong, and why? That is the material that an interesting discussion can be made from.
Now, it seems like some people have a hard time separating the idea of morality from legality. You ask them why something is wrong, and they say because it is illegal. Well, tell that to Gandi, MLK, or any of the other civilly disobedient folk throughout history. Laws are very often wrong and bad, and to say something is bad because it against the law is effectively a non-statement. It just demonstrates that you have a complete lack of ability to ethically evaluate a scenario.
Now, you could also make the argument that law actually should be morality. If you truly believe in the ideals of representative government, then you could argue that if something is the law, then it is something that our society has agreed upon. Thus, you would argue that whether you personally agree with it or not, conforming to the desires of the majority is the basis of morality in a society. The thing is, I don't see anyone trying to make that point.
Learn to discuss things properly. You know how we talk about the difference between your personal opinion of a work of art, and your critical evaluation of it? This is the same kind of thing. Learn the difference between legality and morality. Most of the time, we're looking for morality and ethics because that is the area in which there is actually an interesting and valuable discussion to be had.
Comments
Additionally, most people temper their morality with pragmatism. Sure, it's fun to stand up and say, "Damn the man! Save the Empire!" but sometimes, that doesn't always work out. So, we tend to think about things in a legal context, unless the law really doesn't represent our views of what ought to be.
...I have nothing else to add
Hence, we have to discuss:
-the specifics of extant law
-what we would like to see
-the degree of overlap between extant law and what we would like to see
-the ways in which we can remedy any gaps observed
You can't have a useful discussion about "what ought to be" without considering at least those three things.
Every week there's a new evil in society that everyone here knows how to fix. Couple weeks ago it was the public option, now no one cares about that anymore, it's copyright law. Everything in society would be great if we could just share our music freely.
I don't think anyone here necessarily claims to definitely know how to fix any given evil. We all argue in favor of our ideas as to how to fix said evils, but I don't interpret it as being in the context of "this will definitely work." More like, "I really really think this would be a good idea, and I would like to see it implemented."
Well, Pete has pwned you again. A discussion of law that requires a total disregard for the actual reality of what the law says is about as valuable as talking about faster-than-light space travel with a total disregard for the reality of Special Relativity. Such a discussion is fantasy and nothing more.
I suppose "Hey, wouldn't it be great if we could kill people we dislike?" would be a topic. I suppose further that if someone said, "Yeah, but that would be illegal.", the response would be "No one cares what the law is." Such a lack of care is abundantly immature and, in your case, I suspect a spot of sour grapes because you're pouting for being proven wrong. So, just as a chikd would do, you're hiding behind the "don't care" doctrine.
If you want to talk about fantasies and "should be", I'm sure there are a lot of places on the internet where you can discuss having My Little Pony/Strawberry Shortcake tea parties with a group of twelve year old girls (or, more likely, a group of FBI agents posing as twelve year old girls). You can yell them all that your misunderstanding of the law derives from the fact that you're just like Ghandi and MLK.
Laws of physics we can not change, but laws of government are just words on paper. They're completely changeable. It's the complacency and lack of will in people like you guys that prevents them from being changed more often.
I think you're unreasonably idealistic. In your perfect world, you would be allowed to spray a smoker in the face with a skunk, because it's just as bad as cigarette smoke. That's idiocy, plain and simple. Morality exists on a gradient, not as absolutes, and the laws should necessarily reflect that.
The thing is that those changes aren't always HUGE changes. They aren't all reported on the news, or controversial issues. If the news media reported on every single change that happened, they wouldn't have time to report on anything else. When you start talking about how frequently the law changes, maybe you should have some actual facts to back it up so you don't look like you are talking out of your ass.
EDIT: Really, though, you only interact with a small segment of laws at any given time. Most people don't use trademark law in their lives.
I think you are overly optimistic about how non-specific the law needs to be. The reason we have so much law is that we have a lot of specificity. It's important. You complain about how traffic laws are arbitrarily enforced; if our laws were all general, then EVERYTHING would be enforced arbitrarily because everyone would have a different standard of what fit into the law.
Everything you say pretty much digs you deeper into the "I don't know what I'm talking about" hole.
I'd also like to point out that Scott is very right about Morality being separate from Law. Even the law books say that what is morally right is not always enforced by the law, and what the law enforces is not always what is morally right. Obviously it may not be immoral to simply carry a gun, but it is illegal in many places. There is obviously gray area there, because most laws are rooted in some sort of moral code, but the two are not the same.
Also, pragmatism of changing the world aside, we're talking on the Internets here. Internets discussions about morality are far more interesting than discussions about law. That's what I'm trying to get at here. Simply stating what the law is kind of ends a discussion. Ok, that's what the law is. So... But discussing morality, especially when there is disagreement, that provides something where there is more potential for interesting discussion.
Your continued, petulant insistence that the reality of law doesn't matter, that no one cares about it, or that it chills debate is very similar to a whiny seventh grader crying that algebra won't help him in life because he can't foresee when he'll be called upon to use it or a bored ninth grader whining that she shouldn't have to learn about Vietnam because no one cares. That attitude is childish at best, anti-intellectual at worst, and, quite frankly, beneath you.
Also, while my understanding of what the eggshell plaintiff doctrine may not be accurate, the point I was trying to make still stands. While it is obvious that the extent of legal action taken should be relatively proportional to the amount of harm that is caused by someone's actions, a slight amount of harm (no matter how slight) still crosses a line. If the amount of harm caused by secondhand smoke is so slight as to not even register, then the amount of harm done by stealing one single cent is also so slight as to not register.
Thus, my argument was that secondhand smoke causes a tiny amount of bodily harm to others. And therefore it constitutes some form of what I would call assault. One person directly causing bodily harm to another person. And thus, regardless of the status of current law, it should not be permitted.
I think that to call something an assault, we should first establish a line of what is and isn't assault- something as slight as secondhand smoke and stealing one cent is well, not overly significant, and therefore shouldn't be classified as assault. Again, let me bring up air pollution; by what you have said, this is a form of assault, and while it can't be pointed to any single person, it can be pointed to by a group of peoples, a city, a town, and so on. And what is harm? Vaccinations just give you a tiny flu so your body will recognize it, which can be interpreted as an assault- not only are you injecting someone with a needle, but you're giving the person a flu or disease. Does that mean we should permit those who give vaccinations to do what they do? No. Of course I realize that vaccinations are different from secondhand smoke; both cause harm, but only one is beneficial is some way. So let me bring up a final point- marijuana. All legalization discussions aside, it is just like cigarettes- both are drugs, are smoked for recreation, and both give off secondhand smoke. Marijuana has medicinal properties, though. Should we punish someone who smokes marijuana for medicine, but damages someone nearby as result? But it still counts as assault by your definition?I don't think so.
Basically, your definition of assault is flawed. Agreed.
Also I'd like you to try and "joke punch" a stranger in the street and see how that works out for you.
Actually, as I said in that thread, what you were talking about is battery, but people often call it assault. Battery is an intentional tort. Read that again. It requires intent. If we go back to our Central Park example, how will A (non-smoker) prove that B (smoker) had any intent whatsoever for his smoke to touch A if A simply smelled smoke? There are other smokers around. If C's smoke was what A smelled, how is B liable for that? How can A prove that he smelled smoke at all? Maybe he smelled some other fume. Maybe he smelled smoke that had been wafting in the air from thirty minutes ago. Maybe he smelled smoke from a cigar that was left burning in the gutter. Even if A can show that it was B's smoke he smelled, how can he show that B intended for A to smell it? Furthermore, B more than likely has a consent defense available if A didn't expressly inform B that he didn't want to be touched by B's smoke.
Also, in order for a lawsuit to be successful, damages must be shown. Even if we assume that A can prove that he smelled smoke from B's cigarette and that B intended for A to smell it, what damages has A suffered? Show me how A can prove exactly how much of B's smoke touched him and then show me exactly how he can prove that B's particular smoke damaged him. I submit that any possible proof would involve techniques so sophisticated and expensive that you'd end up spending millions of dollars to prove your "one-cent damage" theory. Again, that's not serious debate. That's not morality. That's just silly hypothesizing. We could have just as valuable a debate talking about what it would be like if pigs could fly, or exactly how many angels can dance on the head of a pin.
Calling for such an overbroad application is not morality. It's not debate. It's simply silliness. I could say that I want battery to be broadened to the point that I could successfully sue you for battery for allowing light rays to reflect from your body and touch my retina, thus exposing me to the damage of seeing your ugly body. That's very similar to what you have done with your speculation. If someone now tells me, "You're doing it wrong. That's not how battery works.", they're not trying to chill debate. They're not missing my point. They're just pointing out how silly the hypothetical is.
Actually, if you were as sophisticated about this subject as you seem to wish to believe you are, you would have said that the non-smoker should be able to sue for negligence. The non-smoker's negligence action would make a lot more sense, but he'd still have to prove a duty of care and a breach of that duty. Then he'd still have to prove damages. That makes it a little better than the battery solution, but not much better. Please read what I wrote before on this topic. "Joke-punch"-ing a stranger is battery. Smoking is not. Saying it is battery is as much of a non-sequitur as hypothesizing that the periodic motion of an object attached to a pendulum depends upon its mass. If someone comes along and says, "You're doing it wrong. That period of that motion only depends on the length of the pendulum and the acceleration due to gravity.", they're not trying to chill debate. They're just pointing out the reality of how things work and the silliness of the hypothesis.