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

[Alatriste]

What M. said, Grumbler.

We don't agree, simple as that, and the differences between Western countries (and inside each of them) are deep and broad. To quote M. "Age of consent, drug use, prostitution, incest (to the extent it does not involve child abuse or coercion), gambling, abortion, euthanasia, hate speech and hate crimes are all criminal law issues that are differently approached in different parts of the West, and hotly debated throughout... In fact, these differences and disagreements make up a substantial part of our politics".

[DontSayBanana]

Ok, so I decided to make this thread because frankly sometimes I feel like I'm running into a wall, especially with some American posters. I don't know if this is because they are particularly dense, or this is some aspect of American mentality I just can't seem to get around.

Anyway, the deal is.

When talking about law, you can be talking about what the law is (this is the so called argument de lege lata) or you could be talking about what the law should be (this is the so called argument de lege ferenda). Often, when I postulate something de lege ferenda I meet with a response that obviously I don't know what the law is because this is not what the law really is - this response is obviously quite orthogonal to the statement I am making, so it leaves me obviously quite puzzled and perplexed.

I came to think of law as something that is constantly modified and changed via the legislature but it seems that some of our American posters are unable to understand this.

What gives?

Mostly trolling, I think.  Also, sometimes you give the "spirit of the law" argument without referencing the "letter of the law" information, so we wonder where you're coming from- it can be hard to follow at times.

[grumbler]

Well, obviously differences between the West and ROTW are even more pronounced. But that doesn't change the fact that the West is not in consensus about whether a lot of actions should be criminalized or not.

But that isn't the assertion, so the lack of consensus doesn't argue against the point.  A "general agreement... in what should be criminalized" does exist in my opinion.  If you look at the totality of the actions criminalized in the West, I would bet that 90+% of them are criminalized in 90+% of the countries making up the West.  How that cannot be called a broad agreement is beyond me. 

Incidentally, we were talking about criminal law, so not sure how exactly "Saudi laws on marriage" fit into it, unless marriage in Saudi Arabia is a crime.

So, to you, the only imaginable Saudi law regarding criminal acts concerning marriage are ones that criminalize marriage itself?  This evidence that your imagination is so limited may help explain why you cannot understand why your silly assertions provoke hilarity.

[grumbler]

What M. said, Grumbler.

We don't agree, simple as that, and the differences between Western countries (and inside each of them) are deep and broad. To quote M. "Age of consent, drug use, prostitution, incest (to the extent it does not involve child abuse or coercion), gambling, abortion, euthanasia, hate speech and hate crimes are all criminal law issues that are differently approached in different parts of the West, and hotly debated throughout... In fact, these differences and disagreements make up a substantial part of our politics".

None of those issues are issues that involve "what acts criminal law should hold as crimes."  I had thought this so obvious I never even responded to it, thinking no one would be fooled by this list. 

The West generally agrees that sex with children below the age of consent should be criminalized.

The West generally agrees that some forms of drug use should be criminalized.

The West generally agrees that some activities associated with prostitution should be criminalized, but that prostitution itself should not.

The West generally agrees that some forms of incest should be criminalized.

The West generally agrees that some forms of gambling should be criminalized.

The West generally agrees that some types of abortion should be criminalized.

The West generally agrees that some types of hate speech should be criminalized.

The West generally agrees that some types of hate crimes  should be criminalized.

Do you wish to dispute this?

The distinction isn't on what the laws should say/do, but how they are implemented (and they define the specific offense that most agree in principal should be criminalized) which is what dps was talking about.

[grumbler]

Also, our posts were in response to dps's claim that views on criminal law are pretty uniform in the West, unlike views on civil law.

Ah, well, then you all should make that clear.  My posts have nothing to do with civil law per se - in fact, I disagree - and since I brought up the argument, my point prevails! 

dps was not making the claim that the laws were "pretty uniform."  He was saying that there is a general consensus on what should be criminalized.

To me the opposite actually seems more true - after all, we do seem to have pretty similar views about the principles of the freedom of contracting, laws of inheritance, marriage, paternity, legal capacity, company law, compensation for harm etc., much more than we have about what should and should not be a crime, imo.

I would agree that the specifics of civil law are even more agreed-upon than the specifics of criminal law, but I am not as certain the principles are.  I would need to know a lot more about the different Euro civil law principles before I considered arguing this, though.

[Martinus]

The West generally agrees that sex with children below the age of consent should be criminalized.

Yes but then defines the age of consent between 13 (or 12 - CBA to check) and 21. Then it provides various exceptions - based on age difference, marriage, etc. Remember, I am not saying that there is no consensus whatsoever but there is a lot of room for disagreement.

The West generally agrees that some activities associated with prostitution should be criminalized, but that prostitution itself should not.

Again, not true. There are countries where prostitutes are criminalized, there are countries were prostitutes' clients are criminalized. There are countries (like Poland) where prostitution itself is legal, but being a pimp is not. Then there are countries where pretty much all activities associated with prostitution are permitted (of course I am excluding cases like coercion, but obviously you cannot treat them as "criminalizing activities associated with prostitution" any more than putting Polanski behind bars is "criminalization of some activities associated with filmmaking".

The West generally agrees that some forms of incest should be criminalized.

Incest is already legal in some European countries - I assume it will be legal in more in future. Again, if it is illegal in these countries it is because it constitutes another crime (e.g. child abuse), not because it is criminalization of some forms of incest.

The West generally agrees that some forms of gambling should be criminalized.

Not really - if something is criminalized, it is fraud.

The West generally agrees that some types of abortion should be criminalized.

Again, you have late term vs. early term. "Social reasons" abortion, rape abortion, mother's health abortion etc. In some countries it is extremely restrictive. In others it is extremely liberal.

The West generally agrees that some types of hate speech should be criminalized.

There is a huge difference between the US approach to free speech (with people like Westboro Baptist Church being allowed to picket funerals - this would be illegal in Europe) and criminalizing Holocaust denial even in the context of scientific research.

I noticed you omitted euthanasia.

[Strix]

Surely you recognise the difference when both participants in the sex act are below the age of consent, right? Are they both then guilty of statutory rape?

I only question your field of expertise when you come out with statements like this that make you sound like you have never read penal law.  I would expect a lawyer to understand the whole concept behind "statutory rape" and to understand that it is a clearly defined statute regarding who can consent, at what age, and the legal ramifications of age differences.  And if you were offering an argument de lege ferenda than I would expect a lawyer to phrase their argument/question in a better constructed and more coherent fashion.

Granted, if you're not a criminal lawyer than perhaps you lack the courtroom experience to argue as well as those who do it on a daily basis. If that is the case though than it doesn't excuse your apparent inability to understand how a clearly defined statute is applied considering that civil law deals with a lot of clearly defined statutes.

[BuddhaRhubarb]

I'd say what the real issue is, is, that no one on Languish has ever been wrong (in their own minds) ... I personally think this stems from the ineffectiveness of text communication. There is very little subtlety in text discussions. You can't get body language, and many posters are writing in their 2nd or 3rd languages.

I'm a much better conversationalist in real life, and that has a lot to do with being able to see, and sense who I'm talking to in real life. On the internet, I have only a person's writing style to go on.

Also often you are being trolled Marti, you should know by now that certain posters don't take you seriously, on purpose.

[PRC]

I had an old Batman comic where it showed Bruce Wayne in his college years debating with a professor about some case and Bruce Wayne says "But Dr... is that justice?" and the professor answers "No Mr. Wayne, that's the law." 

[The Brain]

I'd say what the real issue is, is, that no one on Languish has ever been wrong (in their own minds) ... I personally think this stems from the ineffectiveness of text communication. There is very little subtlety in text discussions. You can't get body language, and many posters are writing in their 2nd or 3rd languages.

I'm a much better conversationalist in real life, and that has a lot to do with being able to see, and sense who I'm talking to in real life. On the internet, I have only a person's writing style to go on.

Also often you are being trolled Marti, you should know by now that certain posters don't take you seriously, on purpose.

I never use body language. I agree that the fact that we're writing in a 2nd or 3rd rate language has a negative effect though.

[grumbler]

Yes but then defines the age of consent between 13 (or 12 - CBA to check) and 21. Then it provides various exceptions - based on age difference, marriage, etc. Remember, I am not saying that there is no consensus whatsoever but there is a lot of room for disagreement.

So you are conceding that dps is correct?

The West generally agrees that some activities associated with prostitution should be criminalized, but that prostitution itself should not.

Again, not true. There are countries where prostitutes are criminalized, there are countries were prostitutes' clients are criminalized. There are countries (like Poland) where prostitution itself is legal, but being a pimp is not. Then there are countries where pretty much all activities associated with prostitution are permitted (of course I am excluding cases like coercion, but obviously you cannot treat them as "criminalizing activities associated with prostitution" any more than putting Polanski behind bars is "criminalization of some activities associated with filmmaking".

In what western countries is prostitution itself both criminalized and the laws enforced? Norway, Sweden, Iceland, the US.  It is legal in Portugal, Spain, France, UK, Italy, Germany, Australia, New Zealand, Belgium, Germany, the Netherlands, Switzerland, Austria, Poland, the Czech Republic, Slovakia...

Are you sure you want to argue that this is not a "general agreement?"

The West generally agrees that some forms of incest should be criminalized.

Incest is already legal in some European countries - I assume it will be legal in more in future. Again, if it is illegal in these countries it is because it constitutes another crime (e.g. child abuse), not because it is criminalization of some forms of incest.

Being legal or illegal "in some countries" mere disproves absolute agreement, not general agreement.

Not really - if something is criminalized, it is fraud.

Not really.  Some forms of gambling are illegal in almost all Western countries.

Again, you have late term vs. early term. "Social reasons" abortion, rape abortion, mother's health abortion etc. In some countries it is extremely restrictive. In others it is extremely liberal.

Exactly - there is general agreement on the basics, with differences in the details, which is just what dps and I are arguing, and you are arguing against.  You cannot expect to use arguments that weaken your position to strengthen it!

There is a huge difference between the US approach to free speech (with people like Westboro Baptist Church being allowed to picket funerals - this would be illegal in Europe) and criminalizing Holocaust denial even in the context of scientific research.

agree that the general agreement on the principals doesn't include agreement on the details.  That is my point!

I noticed you omitted euthanasia.

Okay.  The West generally agrees that some types of euthanasia should be criminalized.

[grumbler]

I'd say what the real issue is, is, that no one on Languish has ever been wrong (in their own minds) ... I personally think this stems from the ineffectiveness of text communication. There is very little subtlety in text discussions. You can't get body language, and many posters are writing in their 2nd or 3rd languages. 

I thik that this is interesting, and telling, for two reasons:  (1) you project your inability to admit that you are wrong to all of Languish, and (2) you attribute to the group your own shortcomings in perceiving meaning.

I admitted I was wrong on an issue as recently as yesterday, and generally I have little trouble understanding coherent arguments.  Incoherent arguments would not be more coherent with body language, IMO.

I'm a much better conversationalist in real life, and that has a lot to do with being able to see, and sense who I'm talking to in real life. On the internet, I have only a person's writing style to go on.

I agree that this makes it harder to tell when someone is serious or not, but I don't think it has anything to do with recognizing and admitting when one is wrong.

Also often you are being trolled Marti, you should know by now that certain posters don't take you seriously, on purpose.

This is true, to the extent that my trolls of Marti are direct responses to his trolls of the board.  There are times when i am not trolling, though, because Marti says things so staggeringly emo or absurd that it really does make me question whether or not he is a lawyer (not having met him, like BB has, I don't know from direct knowledge).  I recognize that getting a law degree does not take exceptional amounts of emotional stability or intelligence, but surely it requires minimum amounts!

[The Minsky Moment]

In what western countries is prostitution itself both criminalized and the laws enforced? Norway, Sweden, Iceland, the US. 

Minor technical point - the United States does not criminalize prostitution, except indirectly through statutes like the Mann Act or RICO.  Most but not all of the 50 states do criminalize prostitution, and in some of those, enforcement can be spotty.

[Caliga]

Minor technical point - the United States does not criminalize prostitution, except indirectly through statutes like the Mann Act or RICO.  Most but not all of the 50 states do criminalize prostitution, and in some of those, enforcement can be spotty.

Prostitution is legal in Rhode Island, correct?  Everyone seems to know about Clark County, Nevada (IIRC prostitution is only legal in 1 or 2 Nevada counties) but nobody ever seems to mention Rhode Island.

[DontSayBanana]

Prostitution is legal in Rhode Island, correct?  Everyone seems to know about Clark County, Nevada (IIRC prostitution is only legal in 1 or 2 Nevada counties) but nobody ever seems to mention Rhode Island.

[insert wiki-accuracy disclaimer here]

Indoor prostitution. Brothels are illegal, but wiki claims police have been unsuccessful in shutting down "massage parlors" or "spas" operating as fronts. Streetwalking and hailing vehicles are illegal without noticeable loopholes. Also according to wiki, there's pending legislature; if they can agree on a combined bill, it'll go to the governor and indoor prostitution will once again be criminalized.

Either way, it's a far cry from Vegas' explicit permission and regulation of prostitution (I believe it's the city; counties and parishes have very, very limited ability to pass legislation, if at all).