Laws and enforceability
December 12th 2007 18:05
Random thoughts.
Non-enforceable laws
* So Australian state governments basically have "plenary power": they can pass whatever laws they like on whatever subject they like -- and regardless of whether such things are enforced or enforceable.
In theory, they could levy a tax on Japanese tourists in Texas, or they could claim ownership of Pluto.
* More practical examples might include:
-- laws that simply express a belief. International treaties and bills of rights are sometimes too general or vague to mean anything -- "we believe in the dignity of man";
-- laws that for practical reasons can't entirely be enforced, like anti-drug laws;
-- laws that one chooses not to enforce -- as is the case, in many countries, with compulsory voting;
-- laws that are lightly enforced -- for instance, where there's a token penalty.
* Such laws are often still worth making -- perhaps because they have some effect, however small, or because, without any effect, it's still right to make them (eg the main arguments of the Australian republican movement perhaps appeal more to rightness than to practicality).
* Without going too much into the matter, the effects of non-enforced laws are sometimes due to the many connections between law and custom.
Part of the goal of legal reform is to bring laws closer in line with the community's moral beliefs -- but the fact is that it's a two-way street: government-made laws do change morality.
* Consider:
-- When you declare something a crime, are the emotional reactions that people have towards it so different from their reactions towards moral wrongs (like theft, fraud, or murder)?
-- When people declare "That's a crime!" (as in the context, say, of anti-piracy commercials), don't they usually mean that it's both morally and legally wrong?
-- Some interpretations of the Christian bible (not to mention Socrates) argue for a moral duty to obey secular authorities.
-- The recent anti-spanking law in New Zealand was argued to "send a message" against child abuse and to express and strengthen values that New Zealand stands for.
-- Presumably, anti-Semitic laws increased anti-Semitic attitudes.
-- Similar sending-a-message issues are raised in the context of legalising prostitution and drugs.
-- In the Phaedo, Socrates speaks of laws as parents, and perhaps there's psychological parallels one can speculatively draw. It might be suggested, for instance: that one sometimes views laws as "approving" and "disapproving" as if there's a sentience behind them; that the laws, or whatever is behind them, are sometimes "respected" in similar fashion as people are respected; and that one imitates and adopts the values of those whom one respects.
(Compare the way that Christian churches encourage you to personalize God and to view God as your "father" -- what does it mean to see something as a father? how does such a mentality arise? what psychological effects eventuate? what dispositions and attitudes are adopted? what expectations or beliefs are engendered?)
Enforceable laws
* There's plenty of ways to categorize laws. I shan't attempt to list all the possibilities, but there are laws that empower, laws that grant rights, laws to do with the recognition of this or that entity, laws about definition and interpretation, and laws about the manner and form of making law.
* Many laws, however, (perhaps most laws) are about what individuals (and corporations) may not do.
They can have the form not only of a limitation, but also of a threat or a coercive command.
* Part of what I'm suggesting by "command" is viewing laws as issuing from a person, and as involving an interpersonal relationship between yourself and someone else. Perhaps that other person is the government (cf Socrates and parents), or society, or God, or a Sartrean "Other".
Whereas in the case of a law of physics or probability, you don't view it as issuing from anyone.
* Part of what I'm suggesting by "threat" is that such laws may be experienced, and can have similar effects, to any other threat (although they're not "I'm going to hurt you" but "If you do x, I'm going to hurt you").
* Psychological effects: -- there are the effects of being punished and of being processed by the justice system; there are the effects of being coerced (what does it mean "to break a horse in"?); and there are the effects of being threatened -- including worry, caution, anger, fear, offence, and regarding the command as a brute exercise of power and therefore illegitimate.
* There are also effects, even more nebulous to talk about, to do with the labelling of acts, and becoming conspicuous. Once the laws specifically talk about this or that, and such laws are relevant to you, then you're seen by the system, it takes an interest in what you do. Among other things, your own relationship to yourself and self-perception are changed -- you might now become a "criminal" or a "risk" or a "victim of crime".
Consider the way that when Shirley Sheffield first attended school, she was quite surprised at being called "fat" -- here was an aspect of herself that she'd never considered, and never thought to describe or categorize. She became suddenly self-conscious, and was suddenly subject to the scope, the jurisdiction, of all sorts of beliefs, rules, mechanisms, and she experienced herself in relation to them.
***
Non-enforceable laws
* So Australian state governments basically have "plenary power": they can pass whatever laws they like on whatever subject they like -- and regardless of whether such things are enforced or enforceable.
In theory, they could levy a tax on Japanese tourists in Texas, or they could claim ownership of Pluto.
* More practical examples might include:
-- laws that simply express a belief. International treaties and bills of rights are sometimes too general or vague to mean anything -- "we believe in the dignity of man";
-- laws that for practical reasons can't entirely be enforced, like anti-drug laws;
-- laws that one chooses not to enforce -- as is the case, in many countries, with compulsory voting;
-- laws that are lightly enforced -- for instance, where there's a token penalty.
* Such laws are often still worth making -- perhaps because they have some effect, however small, or because, without any effect, it's still right to make them (eg the main arguments of the Australian republican movement perhaps appeal more to rightness than to practicality).
* Without going too much into the matter, the effects of non-enforced laws are sometimes due to the many connections between law and custom.
Part of the goal of legal reform is to bring laws closer in line with the community's moral beliefs -- but the fact is that it's a two-way street: government-made laws do change morality.
* Consider:
-- When you declare something a crime, are the emotional reactions that people have towards it so different from their reactions towards moral wrongs (like theft, fraud, or murder)?
-- When people declare "That's a crime!" (as in the context, say, of anti-piracy commercials), don't they usually mean that it's both morally and legally wrong?
-- Some interpretations of the Christian bible (not to mention Socrates) argue for a moral duty to obey secular authorities.
-- The recent anti-spanking law in New Zealand was argued to "send a message" against child abuse and to express and strengthen values that New Zealand stands for.
-- Presumably, anti-Semitic laws increased anti-Semitic attitudes.
-- Similar sending-a-message issues are raised in the context of legalising prostitution and drugs.
-- In the Phaedo, Socrates speaks of laws as parents, and perhaps there's psychological parallels one can speculatively draw. It might be suggested, for instance: that one sometimes views laws as "approving" and "disapproving" as if there's a sentience behind them; that the laws, or whatever is behind them, are sometimes "respected" in similar fashion as people are respected; and that one imitates and adopts the values of those whom one respects.
(Compare the way that Christian churches encourage you to personalize God and to view God as your "father" -- what does it mean to see something as a father? how does such a mentality arise? what psychological effects eventuate? what dispositions and attitudes are adopted? what expectations or beliefs are engendered?)
***
Enforceable laws
* There's plenty of ways to categorize laws. I shan't attempt to list all the possibilities, but there are laws that empower, laws that grant rights, laws to do with the recognition of this or that entity, laws about definition and interpretation, and laws about the manner and form of making law.
* Many laws, however, (perhaps most laws) are about what individuals (and corporations) may not do.
They can have the form not only of a limitation, but also of a threat or a coercive command.
* Part of what I'm suggesting by "command" is viewing laws as issuing from a person, and as involving an interpersonal relationship between yourself and someone else. Perhaps that other person is the government (cf Socrates and parents), or society, or God, or a Sartrean "Other".
Whereas in the case of a law of physics or probability, you don't view it as issuing from anyone.
* Part of what I'm suggesting by "threat" is that such laws may be experienced, and can have similar effects, to any other threat (although they're not "I'm going to hurt you" but "If you do x, I'm going to hurt you").
* Psychological effects: -- there are the effects of being punished and of being processed by the justice system; there are the effects of being coerced (what does it mean "to break a horse in"?); and there are the effects of being threatened -- including worry, caution, anger, fear, offence, and regarding the command as a brute exercise of power and therefore illegitimate.
* There are also effects, even more nebulous to talk about, to do with the labelling of acts, and becoming conspicuous. Once the laws specifically talk about this or that, and such laws are relevant to you, then you're seen by the system, it takes an interest in what you do. Among other things, your own relationship to yourself and self-perception are changed -- you might now become a "criminal" or a "risk" or a "victim of crime".
Consider the way that when Shirley Sheffield first attended school, she was quite surprised at being called "fat" -- here was an aspect of herself that she'd never considered, and never thought to describe or categorize. She became suddenly self-conscious, and was suddenly subject to the scope, the jurisdiction, of all sorts of beliefs, rules, mechanisms, and she experienced herself in relation to them.
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Comment by Damo
But he lost his head soon afterwards.
chop, chop.
If you go to Melbourne City you will motor cycles parked on the footpaths. I believe that this is the only city in Australia where it occurs.
It stemmed from a protest by motor cycle associations that were tired of being booked for not using parking meters. So they chose a day and put legally motor cycle on each parking meter. The city council agreed with their demands.
Laws also fall appart when they become unworkable despite being enforcible.