Properly speaking this may belong under the Beginning at the Beginning post, but considering the volital nature of these discussions, it won’t hurt to have it as its own post.
Now, I respond to Geoff’s posts in particular because I have to say that like the majority here I disagree with the majority of what he is espousing. Unlike the majority here, I imagine I agree with a substantial part of what he is saying.
The chief area I disagree with Geoff on (as I have told him before) is Libertarianism. For example: the illegitimacy of civil prohibitions on prostitution, homosexuality, assisted suicide, drugs, etc. Geoff is of the opinion that such prohibitions are “unenforceable”, impossible to have “unless you are knocking on bedroom doors”, and “should be legal”. These comments are derived from Geoff’s general precepts that “an unenforceable law is not a law at all”, that a “ ‘community’ does not have any new or special rights, or more rights than each and every individual in society has”, such evils “should be tolerated, for fear that more and greater evils would ensue”, and that “legislating against something…won’t work unless there are actual concrete [i.e. unconsenting] victims.” These are ultimately summed up in his belief that “you can only legislate against something if it is a violation of another person’s will or property”, and his position that such immorality can only be fixed through convincing someone that it is bad. As he describes it, “Otherwise it ultimately boils down to ‘Why shouldn’t I do this?’ ‘Because it’s illegal.’ ‘Oh. Well that’s not a very good reason. It’s penal law. Great.’”
To begin with, I believe that Geoff misevaluates the place custom has in what he describes. He writes:
In the past, it was not law that kept people from committing suicide, performing homosexual acts nor contracepting. The laws existed, yes, and were patently unenforceable. But such behavior was ultimately prevented by the overwhelming understanding by the individuals who comprise society that these actions were grossly immoral. One should also note that when the laws prohibiting these practices were finally lifted, these actions had been accepted, almost openly, for the decade preceding the repeal of the laws….
When it comes to pornography, #1 U.S. industry as it is, the only way to get people away from it is convincing them of why it is evil. We had laws against it before, and it was unenforceable then. The only reason it was not the biggest industry then was because people recognized why it was evil and abstained from it. Changing someone's mind has to come from convincing, not force. Otherwise, it ultimately boils down to "Why shouldn't I do this?" "Because it's illegal." "Oh. Well that's not a very good reason. It's a penal law. Great."Prostitution also violates "intrinsic human dignity." Both St. Augustine and St. Thomas said that prostitution should be tolerated, for fear that more and greater evils would ensue. I believe the unending "war on drugs" is similar. If not for the artificial shortage of these chemicals that drives prices up and makes illicit drug dealing lucrative, there would not be such widespread turf wars and violence, not only by dealers, but their users who rob and kill to get money to buy it.Prohibition is similar. They were passing a law ultimately intending to curtail the abuse of alcohol. A good end, yes? Alcohol abuse actually went up during prohibition. Sts. Augustine and Thomas were right: you need to allow certain evils in order to prevent greater evils. That is why God allows moral evils on earth: because it would be a greater evil to crush our free will.
Later on in the same string he writes
You could have a law against major distributors and pornography stores, but this stuff can be made by any Joe with a $600 camera and transmitted via the internet. You're not going to be able to achieve your ultimate end of getting rid of pornography. There will always be a demand, and the demand will be satisfied. The prices will go up, but it will be satisfied. We need to go after the root cause: why do people want this garbage? We need to convince them of the reasons they shouldn't. Get rid of all the demand, and you'll get rid of all the supply. Curtailing some supply does not eliminate demand.
Now consider the following: we agree that such things as prostitution, pornography, etc. ought not be practiced. Geoff admits that “such behavior was ultimately prevented by the overwhelming understanding by the individuals who comprise society that these actions were grossly immoral.” In other words, Geoff admits that, historically speaking, such evils have been minimized by the presence of a strong custom against it. He also says, “When the laws prohibiting these practices were finally lifted, these actions had been accepted, almost openly, for the decade preceding the repeal of the laws.” In other words, according to history, the laws have out-lived the customs. And yet he proposes to eliminate all laws prohibiting homosexuality and pornography (except maybe the distribution of pornography) even though many of our communities still retain an “overwhelming understanding…that these actions were grossly immoral.” Now remember, these prohibitions are not all ancient ones. Pornography could hardly pre-exist photography, and drugs did not enter America to a significant degree until after the Civil War, becoming most significant after the World Wars when they were used on the battlefield and such, causing a explosion of addictions. Apparently Geoff does not consider the possibility that such prohibitions, while they do not and cannot eradicate the evil, helped to establish and preserve the custom that does minimize the evil until other factors destroyed the custom. He sites Aquinas and Augustine—“ you need to allow certain evils in order to prevent greater evils”--but Aquinas and Augustine were speaking in a time when the “unenforceable” laws against prostitution were present and did help to keep prostitution a “dirty” crime on the outskirts of town. They did not speak against the laws, but the absolute enforcement of the laws. In their opinion, too strong of enforcement of these laws would drive the prostitution underground, allowing it to slip back into the city where it could threaten to undermine the established socio-moral order. Thus they tolerated it on the outskirts of the city where the evil was contained, where the effects of the evil lifestyle were more apparent, and where the prostitutes could be better ministered to by religious and lay people who understood that even prostitutes had souls to be saved.
In other words, basically argue that such laws are totally ineffective. They are like the Prohibition you even say. I remind you that United States still has the most stringent of laws on drinking in the world. Why? Because the movement that helped establish prohibition have created a “overwhelming understanding…that these actions were grossly immoral.” And they used the law to do it.
There is much more I could say regarding your position, but this post is long already. What I propose is this: I challenge you to start with human nature and the nature of the created and Uncreated order, and I want you to demonstrate that libertarianism is the best political philosophy. Or conversely, I will start with human nature and the nature of the created and Uncreated order and posit what I believe is the best political philosophy. Whoever does so should take it slowly and step by step so that he can easily respond to critiques. He would have to define such things as “freedom”, “authority”, “rights”, etc., and be able to defend his position with a proper argument.
If you would like to begin, go ahead. If you would like me to try, I will.
I await your response.
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9 comments:
Geoff said...
As for the fact that these prohibitions are not ancient ones? It's true. There were few prohibitions against the pornography that was rampant in Ancient Rome and Greece. It does predate photography.
You're right about the drugs, though. It is mainly a late-1800's phenomenon.
But laws against alcohol actually caused alcoholism to increase during the era. And they were unenforceable. Because the demand was there, not because alcohol abuse is not evil.
As for drugs, it is logical that drug-related crime increases when prices are artificially high, because the market is artificially hampered, stakes are high, and profits are lucrative.
As for drug usage itself, I don't know whether it would go up or down. I suspect that it would rise for a while, then find an equilibrium when people realized they couldn't live a life high on cocaine: their job would be affected, their relationships would be affected, and it would be unpleasant all around, which I believe is the primary reason people don't want to partake of them anyway: not any statute on paper, enforced or not.
As for the fact that alcohol laws are still more stringent in the U.S... does that mean that they have either been effective in preventing what they sought to prevent? We already know they were not. But it did create a huge market for fake ID's!
The U.S. also has one of the highest alcoholism rates in the entire world.
The fact that the laws are still stringent is not indicative of whether or not they are effective. They are only indicative that the culture as a whole does not want to partake in those activities anyway.
Whether or not laws were made, there was a general consensus, a change in culture, that led to laws being made concerning these actions. This general consensus lasts long enough. I should have added that, like Griswold vs. Connecticut, the law prohibiting contraception in Connecticut had not only been ignored, it had been almost completely unenforced by the authorities for the preceding decade. A law and the enforcement thereof only lasts as long as the people want it to. That is the bottom line.
People will always want to be protected from acts of violence, theft, and fraud. That is the most intrinsic aspect of our human nature: conservation and security. Only once you have security can you go on to higher goals, like Maslow says. Those higher truths and goals must be discovered on one's own,or with the help of an institution of convincing. You won't convince anyone that something is wrong merely by throwing them in prison: the homosexual didn't beat the tar out of me and take my car. Why do I have a right to throw him in prison? For violating God's rights? Do you have a human right, based on natural law, not to have someone else commit an immoral act that does not manifestly harm someone else?
I'm taking a risk by letting you go first. (Bodoh is always a tough act to follow.) But I'll let you go first with defining the terms, the end of man and the government (or lack thereof) ; ) most conducive to that end.
-Geoff
My point in bring up prohibition is to demonstrate that those laws you call "completely unenforceable" and therefor "not really laws" do have a real effect--at least culturally. You seem to argue that if the law "is unenforceable" (or only enforceable "by knocking on bedroom doors") then it should not be there. Your point is not proved because you do not consider the cultural effect that these laws have. For instance, homosexuality. No one can argue that homosexual propeganda has increased since the Supreme court struck down Texas' homosexuality law. The law was on the books. It was not enforced by knocking on doors. In this case, the only way the prosecution came about was because the police entered the building for another (I belive legitimate) reason to discover two men engaged in homosexual relations. Now, because the Supreme Court has declared tha homosexuality is a 'private' act, we are now facing difficulties in 'discriminating' against homosexuals if we don't do this or that as if their relation was the same as any other.
Andy, it's Catholic teaching that an unenforceable law is not, in fact, a law.
Some cops stumbling into such a situation, ala Mapp vs. Ohio, is hardly an effective enforcement. It's stumbling.
Laws have a cultural effect? You're mistaking the cause for the effect. The law exists because the culture was already at a point where it wanted to make the law. As soon as the culture is unsupportive, the law won't be enforced, either, whether through policing, or through the jury, who are the ultimate representation of "the people of the United States" in a court of law, and can not only interpret the circumstances of the case, but also the law itself.
You have not demonstrated that such laws are unenforceable. You argue that they are ineffectual to enforce (i.e. ‘they don’t achieve the effect desired by the one creating it’ verses ‘one cannot be punished for having broken them’). Furthermore, your rejection of the laws because they “can’t be enforce without knock on bedroom doors” doesn’t make them unenforceable, it makes their enforcement unlikable (as in ‘not liked’). Lastly Where in Catholic teaching or tradition do you find grounds that a ineffectual or unenforceable law is not law?
“Laws have a cultural effect? You're mistaking the cause for the effect. The law exists because the culture was already at a point where it wanted to make the law. As soon as the culture is unsupportive, the law won't be enforced, either, whether through policing, or through the jury, who are the ultimate representation of "the people of the United States" in a court of law, and can not only interpret the circumstances of the case, but also the law itself.”
Laws exist in the United States because governments created them. Laws do have cultural effects. Even you joked about the “market for fake i.d.s”. That is one effect. Whether or not the effects are good or bad is open for debate.
Andy: "You have not demonstrated that such laws are unenforceable. Furthermore, your rejection of the laws because they “can’t be enforce without knock on bedroom doors” doesn’t make them unenforceable, it makes their enforcement unlikable (as in ‘not liked’)"
Insofar as no one, even the government, has a right to perform random checks of houses, a grievous breach of privacy, which the Catholic Church acknowledges people have a right to, the laws are not merely unlikeable. One may not morally pursue the immoral means necessary to achieve the allegedly good end.
If you want to to argue that any government has a right to search any and every house, without probable cause of a particular crime, I'd be willing to engage you further on this point.
Andy: "Laws exist in the United States because governments created them."
Granted, laws exist in the United States because governments creat them. But these individuals are elected by the people.
But let's take a pure democracy, for an example: every law is enacted by a referendum vote. I assume everyone would agree that such a system can be a legitimate government. Say every person votes. Would not each person who votes, in this case, be considered "him who has care of the community?" Or would it just be the majority who has care of the community?
In such a case as a pure democracy, where the people make every law, is everyone morally bound by the law, even if they all changed their minds after the vote, and have not yet repealed the old law?
Is the mere fact that a statute exists something that morally binds people?
-Geoff
I agree with you that people have a “right” to privacy, one that is supported by the Chruch, Catholic tradition, and right reason. The only reason I brought it up is because you said, “How can you have laws against homosexual behavior unless you are knocking on bedroom doors? An unenforceable law is not a law at all.” There seems to be no apparent link in your argument between “knocking on bedroom doors” and “unenforceable”. Whether or not your premise is true (“unenforceable law is not a law at all”) it doesn’t make your conclusion (i.e. “you can’t have laws against homosexual behavior.”) true. Furthermore, even if breach of privacy is wrong, the so-called “exclusionary rule” is not morally obligatory. Even if officers entered a house improperly, that doesn’t mean that they (morally) can not prosecute (i.e. enforce a law) based on what they discover in the house. Thus, privacy do not make laws prohibiting homosexual behavior unenforceable, whether invasion of privacy is wrong or not, whether you like invasion of privacy or not.
Your challenge to me seems to open the way to morally enforceable laws against in-the-home acts of homosexuality. You said “If you want to argue that any government has a right to search any and every house, without probable cause of a particular crime, I'd be willing to engage you further on this point.” What if their search is with probable cause of a particular crime (as I believe it was in the fore-mentioned Supreme Court from Texas, Lawrence v. Texas.)
Regarding your hypothetical, I would need more details to consider the matter. However, the reason I said “exist in the United States because governments created them,” was in response to what may be my own misreading of your post:
Whether or not laws were made, there was a general consensus, a change in culture, that led to laws being made concerning these actions. This general consensus lasts long enough. . . . A law and the enforcement thereof only lasts as long as the people want it to. That is the bottom line.
On my former reading of this passage it seemed to imply that there was a necessary and continuous link between cultural consensus and law/the enforcement thereof thesis that tried to preclude my argument that laws can and do have cultural effects. On rereading the passage I am not sure what means.
Andy says: "There seems to be no apparent link in your argument between “knocking on bedroom doors” and “unenforceable”. Whether or not your premise is true (“unenforceable law is not a law at all”) it doesn’t make your conclusion (i.e. “you can’t have laws against homosexual behavior.”) true."
What is enforcement supposed to achieve, except a lessening of the proscribed behavior? If you impose the law on a couple people out of tens of thousands, you won't be able to achieve that end. You've just told people, "One in so many million people will drop dead while walking down the street." That doesn't frighten anyone from walking down the street on any given day. The law has about zero effect on the behavior it is intended to reduce. Therefore, the law is fruitless.
For my argument, it does not matter whether the enforcement of the law achieves anything. Once again I point this out merely to demonstrate that many of the laws that you have claimed were unenforceable "and therefore not laws" are enforceable.
However, the total prohibition of an act, even if it does not yield many prosecutions (i.e. it not readily enforced in the so-called "private sector"), it can keep the act from entering the public sector, and worse acts from recieving more approval.
We live in a world in which people try to draw straight with crooked lines. Contraception (which had enjoyed a long history in the "private sector") left the bedroom in the 1920s with a proclamation that fruitless sex was better love because you didn't need to worry about the burdens of more children. Not many would have supported a women's "right" to end a healthy pregnancy without the concent of her doctor, much less her husband. Abortions of this wort happened (especially among the prostitutes of large cities), but it was just one of those things that no one talked about. Few would have tolerated the argument that homosexuality was equivelant to heterosexuality and that it was just love. Now we have news aricles complaining that there are not enough television abortions: http://www.nytimes.com/2007/06/10/fashion/10Knockedup.html?ex=1183348800&en=1356136dd6c84abd&ei=5070 (and this ain't the only one.
Laws do have a cultural effect when they are enforced prudently by helping to create resistance to efforts to legitimize man's depravities.
I have more to say, but I will leave it here, as I have to get to bed.
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