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The NewsLog of Flemming Funch

Thursday, March 31, 2005day link 

 Black and White and the Law
picture There are some logical problems involved in some of the things that people would consider making into law. Some of the hot political issues that lawmakers are arguing about, which seem to have clear for or against sides, really don't.

Take abortion. Are you for or against the right for a woman to choose to have an abortion? Those two views are usually presented as being sort of equal. Like it is a cross road and one needs to choose if it is left or right.

But the right to choose is not the opposite of abortion being illegal. The opposite of abortion being forbidden would be abortion being enforced. I.e. you have to have it. And there are places where that might indeed be a law. I don't know if China still has such laws. But, actually, logically, that fits better as the alternative.

If one is free to choose, one is free to choose. Meaning the result might be an abortion or it might not be. Depends on the situation and what the people involved think is right and meaningful and safe. Taking away that choice and making the answer always be the same is not comparable. The structure of that option is totally different from the option of choice.

Whether guns are illegal or not would be a similar set of opposites that aren't really opposite. The opposites of guns being forbidden would be that you have to have a gun. There's no real opposite of free choice, as free choice is not a particular choice, but rather the freedom to choose it when the situation comes up.

So, we could at least better say that no-choice is the opposite of choice. It would be worthwhile to be extremely aware of that whenever one chooses a no-choice option.

The particular option that is being enforced is merely clouding the issue. The real situation is that choice in a certain arena is being forbidden.

That's always a dangerous thing. However smart you are, you will not be able to predict all possible situations that any possible individual might find themselves in. Trying to pretend that you know the answer in advance to all such possible situations is rather arrogant and presumptuous. And wrong. You don't. So if you make an absolute law and you somehow, regrettably, have the power to make it be enforced, you most certainly will make things be wrong for a whole bunch of people, in situations you didn't take into consideration, or that you didn't want to consider.

Politicians in many places will take laws as some kind of statement of intent. Making a point. Setting a standard. So they will actively be part of establishing an absolute law, without needing to take much responsibility for all the situations where it doesn't fit, and without taking the responsibility for the fact that other people, wielding a large amount of force, will enforce that law rather blindly.

So, a politician might think: "We need to protect the children" and will vote for some law that forbids nude pictures on the internet, or that forbids people under 18 from having sex or something. He's trying to make some kind of moral point, and he's trying to influence the world into being like a certain picture he has in his mind, of what is good and proper, and how things "should" be. It is just that it isn't how it is, for most people. And a law might not change that much. It might simply authorize a fairly unlimited amount of violence in trying to make the world fit the "should". And it came from somebody trying to solve some problem, trying to avoid some "wrong" in their mind, and frequently picking a solution that doesn't at all fit the problem. Because the sense of logic necessary for even understanding this is not one of the requirements for being a politician or a policeman.

Many politicians who stand for a certain issue, and who would vote for making it law, will, if cornered, admit that they would choose differently in their own lives. What would you do if it were your own 16 year old daughter who got pregnant and she wanted an abortion? George Bush Senior had the honesty to answer that he of course would support her in her choice. But what if he already had made it illegal, without thinking of the consequences?

Once something is a law, a big state apparatus is in place to enforce it. How absolutely they do that will depend on the area, on the traditions of that country or region. For example, in the U.S. the law is not typically something you can reason with. Oh, there are great loopholes in the system, so one might get away with all sorts of things, because nobody's watching, or nobody currently has an interest in enforcing the law. And there are all sorts of legal small print and procedures that might help you get away with things. But if you really are in the search light of the law, and the law has decided you're wrong, there's no particular limit to the amount of force that will be applied to make you comply.

The fictional example I'd usually give would be if you decided to park somewhere you're not supposed to, like in an intersection. There would be a gradient of increasingly severe interventions that would be applied to make you not do that. First somebody might ask you to move. They might give you a ticket. If you're still there, they'll send a tow truck. If somehow you've bolted the car to the street, and you insist on defending your right to be there, it will quickly escalate. Armed cops will arrive, and if you somehow manage to prevail, it will eventually be teargas, then snipers and tanks. And they will eventually kill you, if they fail to remove you. And somebody will be able to say that they felt threatened and you lifted your arm suspiciously or something. So the public wouldn't think much about the insanity of being killed for a parking violation. You'd be some crazy, dangerous person. Even if all you had done was to park and stay parked.

Now, that would be in the U.S. And probably in China or in Russia. In most EU countries it would never go that far. In France they'd start a dialogue with you about why you're doing it, and what point you're trying to make, as they have an innate respect for the right to publicly make a point, even if it is inconvenient. In Denmark they might just leave you alone, if no good non-violent solution could be found, and hope you'd get tired of being there. OK, I'm making it a little more stereotypical than it is.

The point is simply that to make a law that is of the kind that is absolute and that will be enforced with physical and economic force, and threat of violence or incarceration - you need to be very, very careful to actually think through the consequences of that.

Very few things are suited for being legislated that way. Actually, maybe there's nothing that's suited for being legislated in absolute terms. Where there's a need to some absoluteness is mainly in the regulation of the requirements for participating in certain activities. If you want to drive a train on this railroad, the wheels of your train need to be 1435mm apart. If you're sending in your tax return, it must be on A4 paper. But that's more like regulations than laws. You can go and make trains of any width you want in your back yard, and write letters on any paper size you want, without going to jail.

Big wide-reaching laws would have to have a lot of qualifiers to them to work. Doesn't work to say that if you kill somebody you go to jail for 20 years. Because it depends. Sometimes, very, very rarely the right choice might be to kill somebody. You know, self defense, when all other options have been exhausted. Of course the laws in most places have some leeway built in in that regard. But hot political issues often end up with the least leeway in the law. In California there's a three strikes law. You will go to jail for life, without any room for choice, even if your third strike was stealing a loaf of break because you were hungry.

Taking away choice is generally a bad idea. The existence of a choice doesn't mean all choices are equal. A society might need to have negative consequences for making bad choices. Simply having a law with an enforced fixed outcome is a bad way of doing it. Laws that provide guidelines for what one is trying to accomplish is a better idea. And some guidelines are more important than others. Health, safety and happiness might be more important than any specific rules for how one might get there or not. A lot of choices might need to be made, on things that aren't known in advance.

Legal systems typically always have some kind of room for maneuvering. The cop will have to make the choice on whether he arrests you or not. There are lawyers and court cases and juries who will make choices. There are loop holes. The system might not work great, but there is room for reason and luck.

Now, however, technology might make it possible to enforce policies or laws without any room for choice or for maneuvering around them. You know, the automatic radar and camera that catches you speeding and sends you a ticket in the mail. No room for explanation or for reasoning about whether it was safe or there was a good reason for what you were doing. Same principle with an assortment of Digital Rights Management schemes that various media publishers are trying to push through. Like a DVD that will self-destruct in 24 hours, or a song you can only play on one piece of equipment, or a TV show where you can't skip the commercials. Your choice of how you will use things is suddenly gone. And the frightful thing is that the media publishers legally might be considered to have the right to control how you use what you buy from them. Which makes life a lot more boring and complicated, as you no longer are free to make your own choice of what you do when and how. It is a trend that this kind of thinking spreads to other kinds of technologies. A printer that will refuse toner cartridges bought in another country. Or that will refuse to copy certain images. If you've bought a printer fairly recently, you might be surprised to know that it is programmed to not be able to copy US dollar bills. Now, you're legally not supposed to, so you would be the looser in any argument against it. But your choice of whether you do so or not is gone.

Our societies are traditionally designed to have lots of loopholes, or maybe they accidentally ended up that way. There are all sorts of laws and rules and control mechanisms in place, but there are so many holes in them that even if those laws and rules are unfair or crazy or oppressive, you can still live your life somewhat sensibly around them. But if suddenly those laws can be monitored and enforced consistently and maybe automatically, we'd be in a whole lot of trouble. Imagine if you would get a speeding ticket in the mail whenever you passed the speed limit, because a sensor in your car wirelessly informed the police department. Imagine you couldn't make a photocopy of anything that is copyrighted, because the photocopier just wouldn't work. Imagine the tax department automatically calculated your taxes based on having watched everything you'd done, every penny you've gained or spent. Imagine you'd instantly be charged when you do or say something that could be construed as sexist or racist or subversive. Imagine automatically being hauled off to jail for practicing sexual activities in your bedroom that you didn't know were illegal in the state you live in. Oral sex is punishable with prison terms of one to twenty years in several U.S. states.

The law in most places is an incomprehensible self-contradictory mess. As the world gets more complex, and as more pervasive monitoring and enforcement methods become available, that becomes all the more clear. So you might either see a more and more surreal police state, or somebody will have to go back and rethink law altogether. Based on the diversity of choice. Choices with consequences. And one size never fits all.
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