USS Clueless - On Law

Stardate 20021002.1304

(Captain's log): In the course of my discussion with Steve Leed on the issue of the nonexistence of any absolute standard of good or evil by which to evaluate different cultures, the subject of enforcement of law has come up. Steve wrote:

And Steven Den Beste could disagree with this tenet, and even work to impose his values on the other person, but, logically, I can't see how this is that different from someone of a particular religious faith trying to impose their belief system on someone else - and we've seen throughout history where that can lead. For instance, by Den Beste's logic a Christian has every right to purify a non-believer's soul by burning them at the stake. Den Beste no doubt would find the idea of burning heretics reprehensible, but if he can work to impose his moral view, why can't someone else work to impose their own? After all, these "axioms" of which Den Beste speaks are simply articles of a secular faith.

To which I responded:

If they try to do that here, we'll arrest them and try them for aggravated murder. We, as a society, have chosen a certain basic set of standards for behavior by our citizens and will use the power of the state to impose punishment on those who violate those standards. The standards derive power from our collective decision to select them and our willingness to expend society's resources to enforce them, thus they too do not require any reference to any kind of absolute standard. We do not need to prove that murder is morally wrong in order to make it illegal and to punish murderers. It is sufficient that we have collectively chosen to enact laws against it.

If some hypothetical extremist Christian atavism thinks that burning people purifies a soul, they have that right in my nation. They can think what they want. But as soon as they attempt to convert that to practice by actually burning someone, then they're violating our law and we'll send the police after them. But that's because what they've done is illegal, not because it was immoral. We don't punish on the basis of morality in this country.

First, I should note that I used the term "aggravated murder" incorrectly. What I meant was that it would be treated as a particularly brutal murder, which in many states is treated as grounds for particularly harsh punishment. A murderer whose victim suffered deeply before dying because the murderer deliberately tried to inflict such suffering is much more likely to get the death penalty, such as the vermin in Texas who dragged a man behind their pickup until he was dead. Two of the three are now on death row. But that turns out not to be what "aggravated murder" actually means as a term of legal art.

I feel extreme revulsion regarding the murder of James Byrd, Jr. I would equally feel extreme revulsion about a hypothetical murder by insane Christian hyper-zealots who actually burned someone at the stake. But that's not why murder is illegal.

Unfortunately, trying to talk about what law is really for is a thankless task. Opinions vary and the legal basis for it is different from nation to nation. All I can do is express my opinion about what I think the law in the US should attempt to accomplish, and state up front that it is my opinion, though I will try to provide at least an argument for why I do think what I do (which I'm certain some will not find persuasive).

I wrote at length about the basic concepts of law, especially in the US, in this posting. As a practical matter, ultimately law in the US is whatever the President, Congress and Courts say it is, and anything beyond that is philosophy not supported by any absolute proof or any specific reference.

Nonetheless, there was from the beginning in this nation a basic idea that the law should not be used to enforce morality or any kind of conformity; it was ill-defined, a bit vague, but you can see the outlines of it. The establishment clause in the First Amendment is probably the most clear example of that, because the primary purpose of the establishment clause was to make clear that law would not be used in the United States to enforce religious dicta. That was primarily a reaction to the existence of the Church of England and its power as it existed at the time in the UK. It was then and still remains the case now that it's possible to be formally tried for heresy in the UK, though I doubt there's actually been such a trial there in decades. (A lot of the limits on governmental power which we in the US have formally codified into our Constitution is dealt with in the UK as being things that "just aren't done".) But they're still worried about it, it's just that they've moved it within the church instead of using the general courts.

Nonetheless, it's the nature of democracy that as Jefferson said, people get the government they deserve, and for most of the 19th century you find a lot of laws which attempted to enforce patterns of behavior based on the assumption of immorality, with attempts to use the law to try to make people live a "good life". This basically amounted to some people passing laws to prevent other people from doing things they liked, "for their own good".

The ultimate manifestation of this in our legal history was Prohibition. It actually

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