ka@spanky.UUCP (08/10/83)
[This is a reply to Laura's article utcsstat.842 in net.flame. My
apologies for the continued confusion concerning newsgroups.]
To begin with, let me comment that for you to say that you base all your
positions on the concept of freedom tells me next to nothing. Most moral
questions can be posed in terms of conflicting freedoms, so that the real
question is how you resolve these conflicts.
Let us take as an example somebody who feels like throwing a rock off the
Empire State building. If this person is prohibited from doing so, then
his freedom has certainly been curtailed. If this person is permitted to
do so, then there is a chance that the rock will curtail somebody else's
freedom by hitting them on the head and injuring of killing them.
Now as I understand your position, you "give no weight to 'possible
violations of rights' as a basis for law." In other words, you would ignore
the potential harm to people on the ground because this harm might never
actually occur. Therefore you would oppose prohibiting people from throwing
rocks off the Empire State building.
How can you deal with the real world, which is very often uncertain, if
you limit yourself to statements that are known to be true or false?
Medical studies are usually based upon statistical analysis, so you will
never get a definite statement on the effects of ambient smoke. The best
a statistician can do is to say, "It is highly probable that ambient smoke
is harmful."
------
OK, now let's discuss the difference between a legal system and a moral
system as I use the terms. A legal system includes a set of laws,
precedents, and judiciary to administer them. A moral system is a set
of rules for differentiating right and wrong. If you prefer not to include
the judges as part of the legal system and view a legal system simply as
a set of rules, fine. But you have to realize that the purpose of these
rules is to allow judges to render decisions and that these rules are only
concerned with that purpose. A moral system says that an action is wrong,
a legal system does not. I'm quite certain that if you look up the law
in Canada on stealing, you will find that it says nothing about whether
stealing is right or wrong. It directs judges to send people to steal to
jail and leaves it at that.
The relationship between moral and legal systems stems from the fact that,
just as a moral system can pass judgement on an act like stealing, it can
also pass judgement on a legal system. Therefore, it is possible to base
a legal system on a moral system. For example, if a moral system states
That stealing is seriously wrong and that people who perform acts which
are seriously wrong should be sent to jail, then we can direct our judicial
system to send people to jail. Real legal systems, however, are not based
upon a single moral system. A society in practice contains many different
moral systems but one legal system; therefore the legal system which actually
evolves attempts to be fairly consonant with a variety of moral systems.
You yourself oppose the notion that everything that is not illegal (a
legal concept) is morally OK (a moral concept). That notion is a tautology
if you believe that the legal system is a moral system; it is nonsense
if you recognize that "illegal" and "immoral" mean two different things.
If you value freedom then there is a very good reason for you to avoid
proposing laws written in the form of "thou shalt not" rather than "thou
shalt." A law of the former type typically decreases your freedom of
choice by eliminating one option. A law of the latter type eliminates
all but one option and therefore allows no individual choice whatsoever.
Therefore, while there may be exceptions, legal systems which rely heavily
on laws of the form "thou shalt" are not likely to provide a lot of freedom.
------
Now, on to your third reason.
Societal consensus is not sufficient justification for
laws.
I agree that the majority is not always right.
Now we get to the comparison of censorship and smoking. Much
censoring covers materials which people choose to watch or
read. I've already conceded that people have the right to
commit suicide by smoking cigarettes; so naturally I'm not
about to suggest that people should be protected from
pornography and the like. However, the situation is different
when people are forced to view pornography whether they like it
or not, or when they people are forced to take significant
steps to avoid viewing pornography. In that case my sympathies
are definitely with the censors.
If the Ontario censor board wanted to view films and provide a
description of how 'pornographic' the movies were, I would be all for
them. The problem is that they take off their 'book reviewer' hat and
get out the scissors and start demanding cuts. In effect they are
saying that anything obscene is wrong, and they get to define obscene.
I suspect that you missed my point. If, as is likely, the Ontario censor
board censors films which people may freely choose not to watch, then I
agree with you. If, on the other hand, it censors public billboards which
people cannot easily avoid viewing, there would seem to be little point
the censor board issuing 'book reviews' on the billboards.
The same thing hold for smoking. If you pass a law against smoking
because you do not like it you are still declaring it wrong. I do not
think that smoking is wrong because you and 5 million other people do
not like it. Wrongness is not measured by society's approval or
disapproval alone.
You have gotten yourself into a real tangle here.
1. If you pass a law against smoking you are declaring it wrong.
That is your interpretation of what I am saying. Maybe I'm just passing
a law without saying anything at all.
2. I do not think smoking is wrong.
3. [Therefore, you should not say that it is wrong.]
Now you are attacking my right to free speech, which is probably not your
intention. This appears to be another example of the confusion which
arises when you fail to distinguish between moral and legal systems.
Why don't you talk about the effects of law? Try starting out with, "It is
immoral to punish people for smoking."
-----
I seem to have skipped over the question of the proper role of
government.
I don't want my government boggled down with all the details of
settling personal disputes between individuals. Individuals come
into conflict far too many times for it to be feasible to make a
list of every eventuality. What we end up doing is deciding
on 'legal precedent'. If you ever wondered how all those
lawyers spend their time -- a lot of it is looking up precedents
for one thing or another. In effect, every court case becomes
part of the de facto law. You can change this by declaring some
past decision a 'mistrial' or perhaps 'unconstitutional', but
you can see why there is an incredible waste of energy in such
a legal system.
The purpose of relying on precedents is to avoid remaking the same
decision over and over again. To overturn a precedent, a judge
simply decides that a prior decision was wrong. A judge will always
adhere to the ruling of a higher court because otherwise the higher
court will overturn the judge's decision if it is being consistent.
Thus the whole purpose of precedents is to make the system more
efficient.
In the case of a law prohibiting public smoking, there would be
no need to look up lots of precedents after the first trial.
I don't think that such a law would overload the legal system.
Moreover, I do not want everybody to be curtailed by my personal
decisions. Assume that you smoke. I will not let you smoke in
my office or my apartment. On the other hand, if I want
something from your office I will either risk finding it smoky,
or I will ask you to bring it to me so that I do not need to
undergo the risk. This does not require a government.
You don't talk about public areas here. I guess you can handle them
by avoiding public places when they are filled with smoke. Well, it's
noble of you not to want to curtail other people with your personal
decision, but what about the person who smokes in a public place? Why
should your freedom to go to public places be curtailed by his personal
decision to smoke?
Laura's article ends by stressing again the difference between
defending one's rights with and without working through the
mechanism of the government; a distinction which seemed
irrelevant to me the first time and still does.
Do you see why it is not irrelevant to me?
Perhaps you are deifying governments rather than just considering them
another example of a humans organization. Any organization, not just a
government, may amass a great deal of power. Once that happens the
actions of that organization have the potential to be very harmful
(as well as very helpful). Never the less, there is nothing inherently
wrong with a very powerful organization accomplishing a goal unless there
is something wrong with the goal or the means used to achieve it.
------
The reason I am taking the time to argue with your article is not
primarily that I disapprove of smoking. The problem is that in
defending it you attack most of the moral underpinnings of the
environmental movement. I notice that in you original article you
mention, with what I hope is disapproval, that the lake near where
you are has been declared unsafe for swimming. Do you believe that
the government has fulfilled its obligations by informing citizens
of the situation so that they can make an informed decision as to
whether or not to swim? Do you believe that the fact that some
people may find not being able to swim objectionable is not sufficient
reason to pass a law prohibiting people from polluting the lake?
If not, there is yet hope for you.
Kenneth Almquist