Legal intrusion
December 18th 2007 01:37
There's plenty of things we know we should and shouldn't do, and there's plenty of laws which, if enacted, could create a great deal of good, or avert a good deal of bad.
And yet -- so some argue -- it's inappropriate for the government to enter into particular areas.
This was formerly the attitude of the law (at least in operation, if not in letter) with respect to domestic violence -- it had no business intruding into the "private realm" and, in particular, into the domain of the family.
A man's home is his castle.
But should we create legally enforceable rights not to be lied to, or not to be cheated upon in a monogamous relationship, or not to be sworn at?
Should there be legal duties to avoid wasting food, to assist old people across the road, to wash your hands after defecating, or to keep your weight down so that you don't burden the health system?
Should Juan Mann be required to take out public insurance liability before giving free hugs?
Note, though, that even if you're inclined to accept a minimal-intrusion view:
-- Standards of what's "private" and what's "public" change over time; and ideas about when it's justifiable to enter into the private change over time.
The boundaries of the private have been pushed even further with MySpace, Facebook, and so forth -- will write about this one of these days.
-- Australian law (let alone Saudi Arabian law) has never entirely been hands-off about the private. For instance, one might consider consensual sex to be private and no one else's business, all things being equal, but there still are Australian statutes regulating this (though they might rarely be enforced).
Some would also claim that matters of suicide, and self-harm generally, are "private".
Why shouldn't the law enter into the private realm, or any other social realm? Why shouldn't it try to improve things?
Well, one argument (similar to laissez-faire market arguments) is that it can't improve things.
Such areas might be best left to sort out their own problems -- official interference would be ineffective or counterproductive or have unacceptable costs or side-effects. For instance, it's often claimed that "[l]egislating with respect to morality is... fraught with problems" (will say more about this in a future post).
However, this style of argument is not quite what's wanted. After all, I'm assuming that the laws are good laws (in terms of morality, or increasing collective good, or avoiding collective harm), but that they're still somehow inappropriate.
Another argument is that quality of life is somehow eroded by such legislation.
In a nutshell, either: (1) individual good outweighs collective good in certain circumstances; or (2) average good and standard of living is more important than total good in some circumstances.
Consider:
-- Arguments from violation of a right to self-determination. -- Perhaps, in general, there are moral limitations on the law's reach.
-- The freedom from domination argument (the "Kafka problem"), and related issues (for instance, psychological effects of enforcement).
-- Arguments from privacy.
-- A world before laws might be more liable to differential treatment and inequality, but a highly regulated world might be more liable to rigidity and blanket, exceptionless, insensitivity.
-- In a world before laws, you had to go to the trouble of conversing with people, making judgments about them, earning their care, trust, respect. In a highly regulated world, you're more protected, and you're spared the hassle of human engagement, but, because you're spared, you risk the opposite extreme of alienation and community fragmentation -- dealing with people only at legal arm's length.
(Of course, similar claims are often made about modern communication technologies, and about the habits of city living.)
-- Aldous Huxley has seemingly gone so far as to claim that, even if the law can improve things, unpleasant and dangerous things, and the risk of them, are part of what makes life worth living.
-- And think about what regulating sex would mean:
I should also mention that there's a variety of criticisms (going back at least to Marx, and in the 70s and 80s associated with the Critical Legal Studies movement) against rights and activist focus on them.
Such criticism can be hazy as to what the alternatives are; and their objections to regulating the private realm are more on the grounds of "bad laws" than "inappropriate" or "quality of life". At any rate, it's been suggested:
-- that "in a capitalist legal world where ability to defend one’s rights is reliant on ability to pay, those who effectively have rights are the wealthy. Liberal ideals generally operate as a screen hiding the true nature of oppression in society" -- Margaret Davies, Asking the law question, 1994 (she is summarising a CLS position rather than arguing for this point herself);
-- relatedly, that property rights allow the formation of huge disparities over time;
-- that rights are based on a false conception of people as atoms, unconnected -- but no man is an island, and it's hard for anything you do not to affect others;
-- and that rights create anti-social mentalities -- for instance, "[t]hose who are ascribed the right to do what they wish so long as they do not hurt others will perpetuate a culture of egoistical obsession" -- Leif Wenar, "Rights" (again mentioning a position rather than arguing for it himself).
Richard Delgado has responded to this idea with the thought that perhaps rights have a separating and alienating effect for some, but for minorities they can serve as a rallying point.
And yet -- so some argue -- it's inappropriate for the government to enter into particular areas.
This was formerly the attitude of the law (at least in operation, if not in letter) with respect to domestic violence -- it had no business intruding into the "private realm" and, in particular, into the domain of the family.
A man's home is his castle.
***
But should we create legally enforceable rights not to be lied to, or not to be cheated upon in a monogamous relationship, or not to be sworn at?
Should there be legal duties to avoid wasting food, to assist old people across the road, to wash your hands after defecating, or to keep your weight down so that you don't burden the health system?
Should Juan Mann be required to take out public insurance liability before giving free hugs?
***
Note, though, that even if you're inclined to accept a minimal-intrusion view:
-- Standards of what's "private" and what's "public" change over time; and ideas about when it's justifiable to enter into the private change over time.
The boundaries of the private have been pushed even further with MySpace, Facebook, and so forth -- will write about this one of these days.
-- Australian law (let alone Saudi Arabian law) has never entirely been hands-off about the private. For instance, one might consider consensual sex to be private and no one else's business, all things being equal, but there still are Australian statutes regulating this (though they might rarely be enforced).
Some would also claim that matters of suicide, and self-harm generally, are "private".
***
Why shouldn't the law enter into the private realm, or any other social realm? Why shouldn't it try to improve things?
Well, one argument (similar to laissez-faire market arguments) is that it can't improve things.
Such areas might be best left to sort out their own problems -- official interference would be ineffective or counterproductive or have unacceptable costs or side-effects. For instance, it's often claimed that "[l]egislating with respect to morality is... fraught with problems" (will say more about this in a future post).
However, this style of argument is not quite what's wanted. After all, I'm assuming that the laws are good laws (in terms of morality, or increasing collective good, or avoiding collective harm), but that they're still somehow inappropriate.
***
In a nutshell, either: (1) individual good outweighs collective good in certain circumstances; or (2) average good and standard of living is more important than total good in some circumstances.
Consider:
-- Arguments from violation of a right to self-determination. -- Perhaps, in general, there are moral limitations on the law's reach.
-- The freedom from domination argument (the "Kafka problem"), and related issues (for instance, psychological effects of enforcement).
-- Arguments from privacy.
-- A world before laws might be more liable to differential treatment and inequality, but a highly regulated world might be more liable to rigidity and blanket, exceptionless, insensitivity.
-- In a world before laws, you had to go to the trouble of conversing with people, making judgments about them, earning their care, trust, respect. In a highly regulated world, you're more protected, and you're spared the hassle of human engagement, but, because you're spared, you risk the opposite extreme of alienation and community fragmentation -- dealing with people only at legal arm's length.
(Of course, similar claims are often made about modern communication technologies, and about the habits of city living.)
-- Aldous Huxley has seemingly gone so far as to claim that, even if the law can improve things, unpleasant and dangerous things, and the risk of them, are part of what makes life worth living.
-- And think about what regulating sex would mean:
| In the early 1990s... the media discovered an unusual sexual conduct policy at Antioch College, a small liberal arts school in Ohio. The policy... mandated explicit verbal consent every step of the way in a sexual encounter...
Such policies... absurdly overregulate sexual relations... Forget spontaneity, passion, the thrill of discovery. Forget letting go... The worthy goal of rape prevention has been twisted into a utopian attempt to remake human sexuality -- in an image that is not particularly attractive. The little-known 1987 movie "Cherry 2000" portrayed a futuristic society in which every date was preceded by a sit-down with lawyers and a written contract about the specific activities to which both parties agreed... |
---- Cathy Young, "On campus, an absurd overregulation of sexual conduct", The Boston Globe, 22 May 2006)
***
I should also mention that there's a variety of criticisms (going back at least to Marx, and in the 70s and 80s associated with the Critical Legal Studies movement) against rights and activist focus on them.
Such criticism can be hazy as to what the alternatives are; and their objections to regulating the private realm are more on the grounds of "bad laws" than "inappropriate" or "quality of life". At any rate, it's been suggested:
-- that "in a capitalist legal world where ability to defend one’s rights is reliant on ability to pay, those who effectively have rights are the wealthy. Liberal ideals generally operate as a screen hiding the true nature of oppression in society" -- Margaret Davies, Asking the law question, 1994 (she is summarising a CLS position rather than arguing for this point herself);
-- relatedly, that property rights allow the formation of huge disparities over time;
-- that rights are based on a false conception of people as atoms, unconnected -- but no man is an island, and it's hard for anything you do not to affect others;
-- and that rights create anti-social mentalities -- for instance, "[t]hose who are ascribed the right to do what they wish so long as they do not hurt others will perpetuate a culture of egoistical obsession" -- Leif Wenar, "Rights" (again mentioning a position rather than arguing for it himself).
Richard Delgado has responded to this idea with the thought that perhaps rights have a separating and alienating effect for some, but for minorities they can serve as a rallying point.
| 102 |
| Vote |
Add To: 
subscribe to this blog
Comment by Damo
Difficult questions.
Comment by Miswanderlust
Killer Beats
Ramble On
Hipnotherapy
Mis