Law: Understanding the difference between what the law is and what it should be

[dps]

@dps, Marty

Good question... What's the West? I agree with Marty, if a democratic country, member of EU and NATO, doesn't belong to the West we have different meanings for the word.

I agree, but acknowledging Lithuania as part of the West makes it harder to give Marty a hard time about Poland not being a Western country.  But I think that Marty himself has claimed on occasion that Polish democracy is a sham, so I guess that gives us our opening.

[grumbler]

But what if (disclaimer: I don't know that it does) the same penalties had accrued if they had simply bought the flag and "defiled" it in some fashion?

Would criminal penalties be remotely acceptable under this "Western consensus"? 

I don't think this kind of hypothetical is particularly useful.  If you are just asking about flag-burning, I would say that the general agreement is that it should not be criminalized.

I'm sure someone has mentioned euthanasia, but I'll repeat it--there are acts permitted in some countries that would be defined as premeditated murder in the United States.  In Denmark, sex is provided at taxpayer expense to the disabled (I think they're still doing this?, btw it is the greatest thing a state has ever done for its people) when the entire industry is illegal in almost every state of this Union.    Fuck, if I lived in North Carolina I would technically be violating the law by cohabitating out of wedlock.

Again, this is arguing that, because there are specific differences, there is not a general agreement.  The general agreement is that murder requires intent to kill unlawfully, or negligence in avoiding killing unlawfully.  If euthanasia is allowed in one's country, then under even the law in US states it isn't murder.  I would say that there is a general agreement in the West that acts which lead to, or allow, the death of a terminal patient under the kindest possible circumstances and with the permission of the patient or family should not be criminalized.  The specifics of what that allows may differ, but the general agreement pertains, I would say.

[Ideologue]

I'm not sure that we'll reach a consensus on this because we don't agree on what a consensus is.

However:

The general agreement is that murder requires intent to kill unlawfully, or negligence in avoiding killing unlawfully. 

Iirc, the elements of murder in the U.S. are ordinarily (perhaps universally):

1)intent to kill (mens rea)
2)the killing itself (actus reus)
3)a causal connection between the intent to kill and the death

However, as I believe you mean, affirmative defenses are available even when all three of those elements are satisfied--the most usual one being self-defense.

There is no consensus between European countries and the United States in recognizing euthanasia as an affirmative defense.  (I guess this is how euthanasia works in Europe--actually I do not know the procedural specifics.  If I am wrong to the extent that it invalidates my point, I will be happy to withdraw it.)

In South Carolina, defense of domicile is an affirmative defense to criminal homicide prosecution under our codification of the castle doctrine.  There is no consensus between even the United States as to whether this makes a killing "lawful" or "unlawful," and iirc most jurisdictions do not recognize an absolute castle doctrine.  Many people in the U.S. consider it a barbaric doctrine.  In Europe, I understand defense of domicile is even more circumscribed than in most or many United States jurisdictions.

Edit: Another defense in the U.S., which may or may not ever have been raised, but surely must exist by implication, would be that killing is lawful when carried out by an agent of the state after due process of law.  By contrast, in France, an execution would be murder!

There appears to me to be no or little consensus between us on when it is appropriate to take a human life.

That is a basic crime, perhaps the first crime--and I will admit there is generally a consensus that murder is the worst of all crimes--but there is no consensus, to my mind, on what it actually is.  If there's no real consensus on what murder is, I don't see why we should expect there to be a real consensus on anything else.

If we're taking the very basics of the criminal law--killing is bad, stealing is bad, etc.--I think there is a consensus on that.  But that is a human consensus.

On most issues, we are closer to our European cousins than to the rest of the world, and usually closer to our brethren states than to Europe, but where you see the undeniable underlying similarities, I see striking differences.  Maybe it's just a matter of perspective.

[Martinus]

Actually, this is pure speculation (and this possibly wouldn't be prosecuted for political reasons) but technically, since European countries do not recognize death penalty as a legitimate punishment, if an EU citizen was sentenced to death and executed, say, in the US, his executioner could be technically charged with murder/unlawful slaying in Europe.

[DGuller]

Actually, this is pure speculation (and this possibly wouldn't be prosecuted for political reasons) but technically, since European countries do not recognize death penalty as a legitimate punishment, if an EU citizen was sentenced to death and executed, say, in the US, his executioner could be technically charged with murder/unlawful slaying in Europe.

And then those arresting him could technically be charged with unlawful imprisonment, and likewise executed.  Let's just hope that none of those executors would be arrested as well, or we got a problem.

[Agelastus]

Actually, this is pure speculation (and this possibly wouldn't be prosecuted for political reasons) but technically, since European countries do not recognize death penalty as a legitimate punishment, if an EU citizen was sentenced to death and executed, say, in the US, his executioner could be technically charged with murder/unlawful slaying in Europe.

I would have thought the jurisdiction issue would render this situation impossible.

[Ideologue]

To the best of my (limited) knowledge of transnational law, nationality of the victim is an extremely weak prop for a jurisdictional argument, yes.  Territory of the offense is far more important, and the laws of the territory, including the laws regulating punishment, would apply unlimited by international law.  That said, if execution was considered a violation of customary int'l law, the state could be complained against in whatever the appropriate forum would be (ICJ?).