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

[garbon]

Too much work to maintain and eventually it ends up overrun with weeds and forgotten?

Perhaps you are just jaded or being an ass, but it is rather clear that the garden you describe would not be full of wonder.

[dps]

Much easier to say, yes.  Much easier to *convince someone else*?  I think not.

I think I can easily convince you that the law ought to be fair, equitable etc etc etc.  What the law is in regarding to particular facts is realm of where disagreements occur.  Remember in the Common law, arguing about what the law is also coupled with what the law ought to be.  Good lawyers are always trying to move the law in favour of their clients in any given case.

Actually, I think that there is probably pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes, but some fairly significant differences of opinion as to appropriate punishments for various crimes. 

There's a lot less agreement on matters regarding civil law.

[crazy canuck]

Actually, I think that there is probably pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes, but some fairly significant differences of opinion as to appropriate punishments for various crimes. 

I agree.  But when you say there is disagreement over what an appropriate punishment ought to be you are talking about specific cases.  As a general matter I think that we can probably generally agree that sentencing in criminal cases should be left to the Court hearing the case within boundaries set by the criminal laws of that jurisdiction.

[dps]

Actually, I think that there is probably pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes, but some fairly significant differences of opinion as to appropriate punishments for various crimes. 

I agree.  But when you say there is disagreement over what an appropriate punishment ought to be you are talking about specific cases.  As a general matter I think that we can probably generally agree that sentencing in criminal cases should be left to the Court hearing the case within boundaries set by the criminal laws of that jurisdiction.

Well, actually I was thinking about debates over the death penalty, and things like a life sentence meaning "imprisoned for the rest of your life" vs. "out if 5-10 with good behavior".

[crazy canuck]

Well, actually I was thinking about debates over the death penalty, and things like a life sentence meaning "imprisoned for the rest of your life" vs. "out if 5-10 with good behavior".

Ok, but I think about those things as public policy issues that have very clear answers as to what the law is.

What I am talking about legal debate regarding what the law is.  In that context it is very hard to convince someone what the law is in any given case.  Indeed my whole career is build on that difficulty.

[Ideologue]

Much easier to say, yes.  Much easier to *convince someone else*?  I think not.

I think I can easily convince you that the law ought to be fair, equitable etc etc etc.  What the law is in regarding to particular facts is realm of where disagreements occur.  Remember in the Common law, arguing about what the law is also coupled with what the law ought to be.  Good lawyers are always trying to move the law in favour of their clients in any given case.

Actually, I think that there is probably pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes, but some fairly significant differences of opinion as to appropriate punishments for various crimes. 

There's a lot less agreement on matters regarding civil law.

It doesn't seem so; literally hundreds of millions of Westerners oppose draconian American-style drug laws.  I would say that tens of millions of Westerners disagree with the way some sexual conduct is treated--not just in its punishment but criminalization.  (And it is apparent the majority of us scoff at many traffic laws, whether we nominally agree with their terms or not. )

[Martinus]

Actually, I think that there is probably pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes, but some fairly significant differences of opinion as to appropriate punishments for various crimes. 

I disagree. 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. Even homosexual sex was criminalized not so long ago in some Western countries. I think a claim that we have reached some sort of a global consensus on crime in the Western world is pretty untrue. In fact, these differences and disagreements make up a substantial part of our politics.

[garbon]

Even homosexual sex was criminalized not so long ago in some Western countries

[Alatriste]

Garbon, smileys apart Martinus is quiet right on this one. There is no "pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes". Never has been in my memory, and probably never will be.

Just one hetero example: in one country law changes and prostitution becomes legal (Germany), a neighbor decides on the same field that clients commit the crime, not the prostitutes (Sweden), in others the opposite is true, in others both can be prosecuted...

[garbon]

And note that I didn't roll my eyes at his whole post.

[Martinus]

And note that I didn't roll my eyes at his whole post.

So from now on I should consider every situation in which you are not rolling your eyes to be your full endorsement?

[garbon]

So from now on I should consider every situation in which you are not rolling your eyes to be your full endorsement?

No. After all, I don't respond to most of your posts.

[grumbler]

Garbon, smileys apart Martinus is quiet right on this one. There is no "pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes". Never has been in my memory, and probably never will be.

Just one hetero example: in one country law changes and prostitution becomes legal (Germany), a neighbor decides on the same field that clients commit the crime, not the prostitutes (Sweden), in others the opposite is true, in others both can be prosecuted...

I am kinda curious as to why people would think an effective counter to the argument that there exists a "pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes" is the argument that it cannot be true because there is not complete agreement.  All of the arguments so far against dps's statement are, in fact, consistent with it.  There is broad agreement, with the exceptions getting so much attention precisely because they are the exceptions.  Euros get more upset about American laws on prostitution, for example, than Saudi laws on marriage, simply because they don't see the Saudi laws as a violation of "the consensus." 

[Martinus]

Garbon, smileys apart Martinus is quiet right on this one. There is no "pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes". Never has been in my memory, and probably never will be.

Just one hetero example: in one country law changes and prostitution becomes legal (Germany), a neighbor decides on the same field that clients commit the crime, not the prostitutes (Sweden), in others the opposite is true, in others both can be prosecuted...

I am kinda curious as to why people would think an effective counter to the argument that there exists a "pretty general broad agreement in Western societies as to what acts criminal law should hold as crimes" is the argument that it cannot be true because there is not complete agreement.  All of the arguments so far against dps's statement are, in fact, consistent with it.  There is broad agreement, with the exceptions getting so much attention precisely because they are the exceptions.  Euros get more upset about American laws on prostitution, for example, than Saudi laws on marriage, simply because they don't see the Saudi laws as a violation of "the consensus."

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.

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.

[Martinus]

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.

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.