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From: tim@unc.UUCP
Newsgroups: net.politics
Subject: Societal consensus as a basis for law
Message-ID: <5675@unc.UUCP>
Date: Sun, 7-Aug-83 00:21:51 EDT
Article-I.D.: unc.5675
Posted: Sun Aug  7 00:21:51 1983
Date-Received: Mon, 8-Aug-83 11:21:21 EDT
Lines: 97


    This is a carryover from a discussion on net.flame.  I hope that
the reaction here will be more reasonable.

    The discussion concerned anti-public-smoking laws and whether or
not they should be instituted.  My position is that they should only
be enacted if it is demonstrated beyond reasonable doubt that ambient
cigarette smoke is hazardous to normal, healthy people.  Many people
feel that this is not neccessary, that the fact of the obnoxiousness
of smoke to many people is sufficient basis for enacting laws against
emitting it in public.  To put it another way, I feel that the mere
fact that there is a societal consensus that a thing is unpleasant
should not be considered sufficient basis for enforcing a law against
that thing, and the others disagreed.

    I would like to keep public smoking entirely out of this
discussion.  The true issues here are independent of this particular
case.  Should societal consensus be considered a fit basis for
legislation?  When I say "a basis for legislation", I mean a reason
for enacting laws.

    Some of the articles on the other group, and some of my personal
mail, expressed the sentiment that there was no other basis possible.
In a sense, this is correct.  If a law goes against societal
consensus, it will not be enforceable.  However, this does not imply
anything beyond this:  No law should be made which goes against
societal consensus.  It does NOT mean this:  Any law which reflects
societal consensus is fitting.

    Societal consensus is a "basis" only in that it must be present.
The same goes for the use of force.  All laws rest on their ability to
be enforced by the use of force.  This does not mean that a law is
fitting just because it is enforceable; you can surely think of any
number of examples of this for yourself.  Neither is a law neccessarily
fitting just because societal consensus favors it.

    In addition, societal consensus is notoriously unfair.  If you
feel that societal consensus is a fit basis for legislation, then you
must support the pro-slavery laws of the southern states of the United
States in previous centuries.  There is no question that societal
consensus there was in favor of these laws.  In addition, you would
have to consider the legal persecution of Jews in Nazi Germany to be
fitting, since German societal consensus favored it.  It is clear that
there must be some deeper considerations behind any law, since
societal consensus has historically been responsible for many things
which we consider wrong.

    There are a number of possible alternative bases for legislation.
I feel that the only fit one is liberty.  When I say "liberty", I mean
the ability to do things, nothing more, nothing less.  I am not using
the concept of "rights" here at all.  All fitting laws can be derived
from the simple concept of liberty.  Murder is a restriction of
another's liberty in that a murder victim cannot do anything.
Pollution is a restriction of another's liberty since a sick or dead
person has many more obstacles to his or her liberty.  And so on.
This extremely simple concept is sufficient to derive all laws which I
would consider just.  (The only modification needed is that all
persons must be considered to be justified in restricting themselves
as much as they desire.  The reason this is needed is that any act of
yours is inherently a restriction of your own liberty to do anything
else.)  In practice, this means that it may be neccessary to
deliberately restrict an individual's liberty if it is probable that
this person will restrict the liberties of others.

    I see no reason for anything more than this when deciding on a
basis for legislation.  The principle of liberty is sufficient to
derive all fair laws.  This excludes "victimless crimes", which is
something of a contradiction in terms anyway.  A short digression on
these is warranted here.  Suppose that it is neccessary to the
continuation of civilization to have these laws against "victimless
crimes".  (This is not how I feel, of course.)  This means that
humanity is so corrupt that people must be protected from themselves.
If this is the case, then people are hardly up to the task of doing
the protecting.

    Perhaps there are two classes of people, those who require
protection against themselves, and those who do not and are therefore
fit to protect the rest.  How is this distinction to be made in
practice?  There is no way.  You cannot be sure that the distinction
is not made by the unfit, and therefore you cannot be sure that the
protectors are fit, and therefore you are back to exactly where we
started from, with the basic unfitness of a corrupt race to do this
sort of protection.  My conclusion is that even if laws against
"victimless crimes" are neccessary, there is no way that they can be
enacted or enforced properly, and therefore we must avoid them to
ensure that no undue restriction of liberty occurs.

    I have strayed somewhat, but my point remains clear.  Societal
consensus is no fit basis for legislation, due to its history of
atrocities.  Liberty is a fit basis for legislation, because it
excludes the atrocities which otherwise occur.

___________
Tim Maroney
duke!unc!tim (USENET)
tim.unc@udel-relay (ARPA)
The University of North Carolina at Chapel Hill