I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
To be clear, if it were a matter of my right to life vs. other people's right to chew gum, the burden of proof would still rest on the legislators. You would probably set the limit of reasonable proof a lot lower, but the fundamental situation is unchanged. I cannot simply demand that people stop chewing gum "because I might die", without showing some causal connection.
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
No, the disagreement is on the methodology by which we argue for rights, in the context of conflicting claims to rights: if there is no conflict, there is no problem. Obviously, for any disputation of the state-designated choice of rights to occur at all, we cannot say that mere designation creates a human right.
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
No, the disagreement is on the methodology by which we argue for rights, in the context of conflicting claims to rights: if there is no conflict, there is no problem. Obviously, for any disputation of the state-designated choice of rights to occur at all, we cannot say that mere designation creates a human right.
What do you mean by 'the state-designated choice of rights'?
The state does not designate rights. The state creates laws and systems. Those are independent of my rights, are they not?
To be clear, if it were a matter of my right to life vs. other people's right to chew gum, the burden of proof would still rest on the legislators. You would probably set the limit of reasonable proof a lot lower, but the fundamental situation is unchanged. I cannot simply demand that people stop chewing gum "because I might die", without showing some causal connection.
Quite. Indeed, that is my point: you set no burden of proof and invoke a staid cost-benefit analysis. You demand no elevated standard of proof in either direction; even a terrible argument for preserving your life will prevail if the argument for chewing-gum is also terrible and slightly weaker.
To be clear, if it were a matter of my right to life vs. other people's right to chew gum, the burden of proof would still rest on the legislators. You would probably set the limit of reasonable proof a lot lower, but the fundamental situation is unchanged. I cannot simply demand that people stop chewing gum "because I might die", without showing some causal connection.
Quite. Indeed, that is my point: you set no burden of proof and invoke a staid cost-benefit analysis. You demand no elevated standard of proof in either direction; even a terrible argument for preserving your life will prevail if the argument for chewing-gum is also terrible and slightly weaker.
Not true. That post was not a complete statement in itself, it was made in the context of the argument I have already put forward at the bottom of the last page, and should be addressed in that context. By not doing so, you're addressing a statement I haven't actually made.
I think that what @Ronya 's example deftly illustrates is that it is an illusion to claim that we can choose the society with the "greatest degree of freedoms," because there are always trade offs. I think that most people would automatically say that the society with gum chewers is the freer society, when really, it is the society which has privledged the choice to chew gum over the choice to use a well functioning rail system. When I look at a society (like ours) which privileges the rights of gum chewers over the rights of train users, what I see is a society that has failed to prioritize the rights of law abiding citizens (those who use the train) ahead of rule breakers (those who place gum on the doors). It is my belief that a government must ensure that people who follow the rules are not disadvantaged by rule breakers, otherwise the incentive to follow the rules is weakened. We can't guarantee both that law abiding gum chewers may chew their gum and law abiding train riders will have the train available, and so in making the choice, I believe the government should always choose the group that is fully law abiding (train riders) over the mixed group (gum chewers).
Applying this to drugs and prohibition, it is my view that drugs ought to be prohibited, because that is the only way to resolve the tension (for example) between non-users driving without being at a higher risk of accident and users sometimes putting others at risk when driving under the influence. The responsible user loses out, but, since we cannot perfectly discern responsible and irresponsible users, the alternative is that all non-users lose out.
Except that prohibiting drugs has cultivated a sector of organized, well-equipped criminals. It simply creates more crime (and I don't mean that as a tautology) than it stops, and the crimes / criminals are much worse than the consumption of more drugs and the related damages.
I mean, to stretch Ronya's analogy until it breaks, suppose you banned all chewing gum from the train stations and found that the ban reduced the amount of gum found stuck on train doors every year, but it also created a culture of gum barons that fatally shoved about 12,300~ people in front of trains last year alone. And also began kidnapping children and women from the train platforms at ever-growing rates.
Would you then say that your law accomplished either:
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
No, the disagreement is on the methodology by which we argue for rights, in the context of conflicting claims to rights: if there is no conflict, there is no problem. Obviously, for any disputation of the state-designated choice of rights to occur at all, we cannot say that mere designation creates a human right.
What do you mean by 'the state-designated choice of rights'?
The state does not designate rights. The state creates laws and systems. Those are independent of my rights, are they not?
Ah... okay, word-choice ambiguity. Independent of the rather complicated argument over whether inalienable rights exist and if they are universal, I am using 'rights' there descriptively, in the way one might say that there is a right to trial by jury in the United States and no such right in Germany.
I reiterate that my point is methodological, rather than what the method resolves in. There has to be a conflict in claims to rights for this to be relevant at all.
To be clear, if it were a matter of my right to life vs. other people's right to chew gum, the burden of proof would still rest on the legislators. You would probably set the limit of reasonable proof a lot lower, but the fundamental situation is unchanged. I cannot simply demand that people stop chewing gum "because I might die", without showing some causal connection.
Quite. Indeed, that is my point: you set no burden of proof and invoke a staid cost-benefit analysis. You demand no elevated standard of proof in either direction; even a terrible argument for preserving your life will prevail if the argument for chewing-gum is also terrible and slightly weaker.
Not true. That post was not a complete statement in itself, it was made in the context of the argument I have already put forward at the bottom of the last page, and should be addressed in that context. By not doing so, you're addressing a statement I haven't actually made.
Let me clarify - my point is that you should set no burden of proof, etc. etc.
To be clear, if it were a matter of my right to life vs. other people's right to chew gum, the burden of proof would still rest on the legislators. You would probably set the limit of reasonable proof a lot lower, but the fundamental situation is unchanged. I cannot simply demand that people stop chewing gum "because I might die", without showing some causal connection.
Quite. Indeed, that is my point: you set no burden of proof and invoke a staid cost-benefit analysis. You demand no elevated standard of proof in either direction; even a terrible argument for preserving your life will prevail if the argument for chewing-gum is also terrible and slightly weaker.
Not true. That post was not a complete statement in itself, it was made in the context of the argument I have already put forward at the bottom of the last page, and should be addressed in that context. By not doing so, you're addressing a statement I haven't actually made.
Let me clarify - my point is that you should set no burden of proof, etc. etc.
I can't continue a meaningful discussion until you address this:
It is not known a priori that the removal or absence of that law is an infringement of rights...
.... but you've just acknowledged that the harm exists. And that is how you have defined rights: freedom from harm. Whether or not you can further identify the infringer is irrelevant to the acknowledgement of infringement.
I've acknowledged that "bad things exist", yes. When I said the harm exists, I did not mean to imply anything about cause or responsibility. Again, it is not known that the absence or removal of a given law will result in an infringement of rights. Not without evidence. It is known, without evidence of any kind, that the existence of a law is an infringement of people's rights.
I feel like we've drilled down to the crux of the issue, so I'm very interested in your responses.
It is the case that, a priori, a refusal to enforce the right to freedom from a given harm is tantamount to endorsing the harm. Otherwise you admit the possibility of non-state repression, yet again. If you want real examples, there are numerous existing societies with theoretical rights to freedom of religion, but no actual willingness by the state to restrain non-state militias from conducting their own religious persecution, simply because it would be terribly unpopular to do so.
A refusal to enforce freedom from harm is tantamount to endorsing the harm. It does not then follow, in the absence of evidence, that the absence of any given law causes harm and is therefore an infringement of rights, although it may be trivial to prove so.
I will point out, further, that you happen to already live in a world of outrageously draconian drug laws. That's your status quo! By your logic, wouldn't the burden of proof for the predicted consequences of repeal lie on the legislator proposing a repeal bill?
No, not at all. That you would suggest so shows you must not have followed/agreed with my logic. Which of the following do you take issue with:
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
My right to property can be exercised without just the state's intervention. I can enforce it myself, for example.
Regardless, it does sound as if you are saying that the state creates the rights. Or that you're confusing rights, the chance to exercise rights, and the state's acknowledgement of those rights. And that you're imagining all humans to be powerless without the state, which is not the case.
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
My right to property can be exercised without just the state's intervention. I can enforce it myself, for example.
Regardless, it does sound as if you are saying that the state creates the rights. Or that you're confusing rights, the chance to exercise rights, and the state's acknowledgement of those rights. And that you're imagining all humans to be powerless without the state, which is not the case.
I'm not sure where you disagree with me. Sure, you can exercise your right to property if you enforce it yourself. Hence why I specified "assaulted you successfully".
I do not say the state creates the right. I do not say that all humans are powerless without the state, only that they do not achieve the postulated ideal of non-infringed freedom under anarchy.
There seems to be a particular confusion here between a right and the ability to actually do something.
If I have a right, and you seem to believe that I do have rights of some sort, don't I still have that right even if I can't achieve that condition?
Or is it that you don't believe people have rights? If not, say so clearly and go from there.
I reiterate that the context of this argument is conflicting claims to rights.
Posh, honestly, you seem determined to read an argument over the universality and source of rights into the thread, but that isn't the disagreement here.
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
This is true as far as it goes, but you have stopped short of showing that it invalidates the premise. In the absence of other living beings, I have freedom to act however I wish. Once I come into contact with other people, we start infringing upon each other's rights. However, as I stated earlier, and you didn't dispute at the time:
In evidential matters, the burden of proof rests on the positive claimaint. I cannot prove that none of my actions are harmful to others, nor should I be expected to; it is the claimaint's responsibility to demonstrate harm or risk of harm. In other words, I am innocent until proven guilty.
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
In evidential matters, the burden of proof rests on the positive claimaint. I cannot prove that none of my actions are harmful to others, nor should I be expected to; it is the claimaint's responsibility to demonstrate harm or risk of harm. In other words, I am innocent until proven guilty.
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
Add a legal system, and suppose that we do not enshrine an explicit infringement of gum-chewing rights into law. The train is consistently vandalized, but the justice ministry decides that it cannot identify the vandals and the harm goes unprosecuted. Surely this establishes that the state has declined to prosecute the infringement of train-related rights? That, as a matter of unequivocal public record, there is no state action regarding these rights?
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
Rights are granted by the state. Without the state assuring those rights, them existing or not is completely moot
I'm afraid, @ronya, that your posts ring of point-scoring happiness, but I'm not sure what point you're making.
Could you say it in one sentence? Preferably without using hypotheticals?
Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
Rights are granted by the state. Without the state assuring those rights, them existing or not is completely moot
true as a descriptive statement, but it is often confused with a lazy argument for the status quo; I think that's what posh is objecting to
I agree with that, but I always take issue with the notion that rights somehow exist on their own. We have to struggle to gain new rights and defend existing rights, they aren't self sustaining entities that exist all on their own.
In evidential matters, the burden of proof rests on the positive claimaint. I cannot prove that none of my actions are harmful to others, nor should I be expected to; it is the claimaint's responsibility to demonstrate harm or risk of harm. In other words, I am innocent until proven guilty.
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
Add a legal system, and suppose that we do not enshrine an explicit infringement of gum-chewing rights into law. The train is consistently vandalized, but the justice ministry decides that it cannot identify the vandals and the harm goes unprosecuted. Surely this establishes that the state has declined to prosecute the infringement of train-related rights? That, as a matter of unequivocal public record, there is no state action regarding these rights?
Assuming you have already demonstrated that an infringement of rights has taken place, yes (otherwise no). If you could then demonstrate that it's the gum-chewers who are responsible for infringing your rights, and that by restricting their right to chew gum you can reduce the infringement of your own rights, then you would have a valid argument for prohibiting gum-chewing.
"Through observation, we have determined that the reason the trains are not functioning correctly is due to damage, and that the cause of the damage is chewed gum. By induction, the gum and therefore the damage is the consequence of gum-chewers. By deduction, restricting the rights of gum chewers to chew gum will likely reduce damage to the trains and therefore the infringement of our right to get to work on time."
Some steps might be skipped over if everyone is in agreement or if they are so obvious that they do not need to be explicitly stated, but they are still your responsibility. Without such an argument, either explicit or implicit, you would not be justified in legislating against gum-chewing.
Consider an alternate scenario: the gum-chewers are not responsible for the damage to the train. The damage is due to weather, and there is no evidence whatsoever implicating the gum-chewers. Is it just to legislate against gum-chewing on the basis that it causes damge to the trains? Is it the responsibility of the gum-chewers (or cat owners, or kite enthusiasts) to prove that they are not the source of the damage?
In evidential matters, the burden of proof rests on the positive claimaint. I cannot prove that none of my actions are harmful to others, nor should I be expected to; it is the claimaint's responsibility to demonstrate harm or risk of harm. In other words, I am innocent until proven guilty.
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
Add a legal system, and suppose that we do not enshrine an explicit infringement of gum-chewing rights into law. The train is consistently vandalized, but the justice ministry decides that it cannot identify the vandals and the harm goes unprosecuted. Surely this establishes that the state has declined to prosecute the infringement of train-related rights? That, as a matter of unequivocal public record, there is no state action regarding these rights?
Assuming you have already demonstrated that an infringement of rights has taken place, yes (otherwise no). If you could then demonstrate that it's the gum-chewers who are responsible for infringing your rights, and that by restricting their right to chew gum you can reduce the infringement of your own rights, then you would have a valid argument for prohibiting gum-chewing.
"Through observation, we have determined that the reason the trains are not functioning correctly is due to damage, and that the cause of the damage is chewed gum. By induction, the gum and therefore the damage is the consequence of gum-chewers. By deduction, restricting the rights of gum chewers to chew gum will likely reduce damage to the trains and therefore the infringement of our right to get to work on time."
Some of steps might be skipped over if everyone is in agreement or if they are so obvious that they do not need to be explicitly stated, but they are still your responsibility. But without such an argument, either explicit or implicit, you would not be justified in legislating against gum-chewing.
As per the thought experiment, the gum-chewers are not universally responsible for the infringement, as a note. Some gum-chewers are responsible, but not all of them are.
The demonstration that an infringement of rights has taken place requires proof. That proof is met by the prosecutorial record and law-enforcement paper-trail.
And thus, the ensuing step in which we weigh observations and argument is conducted with burdens already met on both sides. It is quite right that if the cost-benefit analysis, or other choice of rubric, provides an argument in one direction, then you would not be justified to legislate (or fail to legislate) in the other.
As per the thought experiment, the gum-chewers are not universally responsible for the infringement, as a note. Some gum-chewers are responsible, but not all of them are.
It doesn't matter. If the law is being proposed on utilitarian grounds, it's enough to demonstrate that a subset of gum chewers is responsible, or rather that the act of chewing gum leads to the infringement of rights.
The demonstration that an infringement of rights has taken place requires proof. That proof is met by the prosecutorial record and law-enforcement paper-trail.
And thus, the ensuing step in which we weigh observations and argument is conducted with burdens already met on both sides. It is quite right that if the cost-benefit analysis, or other choice of rubric, provides an argument in one direction, then you would not be justified to legislate (or fail to legislate) in the other.
You are glosssing over large parts of my argument. As I've already said, it is not enough to prove that an infringement of rights has taken place. You must establish A) that the rights of the train-riders are being infringed, that the gum-chewers are source of the infringement, C) that restricting the rights of the gum-chewers will restore the rights of the train-riders. You are assuming all of those things as a matter of course, but as I've said we do not have a priori knowledge of any of them - they must be established. The gum chewers, on the other hand, do not have to establish anything - it is sufficient to point to the existence of the law to demonstrate that their rights are being infringed, and that the removal of the law would restore those rights. Their argument has been made. In order for the train-riders to challenge it, it would once again be their responsibility to prove that the absence of the law would constitute an infringement of their rights. No matter what way you slice it, the burden of justification remains on the side of the lawmakers.
Lemarc on
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Clown ShoesGive me hay or give me death.Registered Userregular
The train is consistently vandalized, but the justice ministry decides that it cannot identify the vandals and the harm goes unprosecuted. Surely this establishes that the state has declined to prosecute the infringement of train-related rights?
The fact that they are unable to prosecute, doesn't show that they are unwilling.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I believe I can respond to @ronya and @lemarc with a single post. Neat.
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.)
So, accepting that the legislative process is fundamentally one of choices among multiple alternatives, and not of applying evidence to determine what the one correct outcome is, we come to the answer to the hat problem. One of the main roles of the legislature is to make choices among multiple viable positions, such as chewing gum or riding trains, and, as much as we may wish it, they are not beholden to cost benefit analysis or any other objectively determinable (ha) metric. There is nothing compelling them one way or the other (other than their own consciences? (Ha again)) and so they must just decide what is more important: the joy of chewing gum of the ability to anticipate your travel times, the freedom to enjoy drugs or the freedom to move great distances with cars.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I think that what @Ronya 's example deftly illustrates is that it is an illusion to claim that we can choose the society with the "greatest degree of freedoms," because there are always trade offs. I think that most people would automatically say that the society with gum chewers is the freer society, when really, it is the society which has privledged the choice to chew gum over the choice to use a well functioning rail system. When I look at a society (like ours) which privileges the rights of gum chewers over the rights of train users, what I see is a society that has failed to prioritize the rights of law abiding citizens (those who use the train) ahead of rule breakers (those who place gum on the doors). It is my belief that a government must ensure that people who follow the rules are not disadvantaged by rule breakers, otherwise the incentive to follow the rules is weakened. We can't guarantee both that law abiding gum chewers may chew their gum and law abiding train riders will have the train available, and so in making the choice, I believe the government should always choose the group that is fully law abiding (train riders) over the mixed group (gum chewers).
Applying this to drugs and prohibition, it is my view that drugs ought to be prohibited, because that is the only way to resolve the tension (for example) between non-users driving without being at a higher risk of accident and users sometimes putting others at risk when driving under the influence. The responsible user loses out, but, since we cannot perfectly discern responsible and irresponsible users, the alternative is that all non-users lose out.
Except that prohibiting drugs has cultivated a sector of organized, well-equipped criminals. It simply creates more crime (and I don't mean that as a tautology) than it stops, and the crimes / criminals are much worse than the consumption of more drugs and the related damages.
I mean, to stretch Ronya's analogy until it breaks, suppose you banned all chewing gum from the train stations and found that the ban reduced the amount of gum found stuck on train doors every year, but it also created a culture of gum barons that fatally shoved about 12,300~ people in front of trains last year alone. And also began kidnapping children and women from the train platforms at ever-growing rates.
Would you then say that your law accomplished either:
1) Your goal of greater societal efficiency
2) Your goal of decreased criminality
?
It does not follow that we must abandon the war on gum. We could instead step up other crime prevention efforts to compensate. Note that this will entail costs, and these costs may well be too great, but it isn't an incoherent position at all, especially if my goal is trains that run on time and the existence of legal gum is anathema to this.
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.
Nonsense. Speaking as if I must prove that it is justified to kill you in order to do so is plainly wrong, as it fails to accurately reflect that people in this world kill other people for all kinds of reasons. Perhaps I'm killing you as a favour to someone, and perhaps further down the line they will repay that favour leading to the greater good. Who knows? Not me, it's not my responsibility. Eat lead!
You're putting the cart of compromise and wheeling & dealing before the horse of ethical imperatives and benefit to society.
Lemarc on
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.
Nonsense. Speaking as if I must prove that it is justified to kill you in order to do so is plainly wrong, as it fails to accurately reflect that people in this world kill other people for all kinds of reasons. Perhaps I'm killing you as a favour to someone, and perhaps further down the line they will repay that favour leading to the greater good. Who knows? Not me, it's not my responsibility. Eat lead!
You're putting the cart of compromise and wheeling & dealing before the horse of ethical imperatives and benefit to society.
I fail to see how what you wrote refutes my post, as you have absolutely described how killing works accurately. The major point which your post misses is that if you kill me, the state will exercise its force to punish you, unless you have one of a narrow range of acceptable justifications, such as self defense. The legislature faces no such threat of force for its actions.
I think any discussion of the rule making process which is couched as if the rule makers were adjudicators is bound to fail to adequately capture what the legislative process is. It is not mere expediency I am describing. It is the reality that we choose representatives to make decisions, and we hope they will decide as we would like, but those are legitimate choices. In the adjudicative process, there are right and wrong answers, but this simply is not so for the legislature.
You are trying to frame this debate like there is a right and a wrong answer on the question of prohibition, and I believe that is a
misguided. This is a question about whose freedom should prevail (those who wish to use drugs or those who wish to be free of the effects of interacting with people using them) and reasonable people can disagree. The legislature does not need to pass any bar other than having a majority in favor of one position or the other in order to act.
As per the thought experiment, the gum-chewers are not universally responsible for the infringement, as a note. Some gum-chewers are responsible, but not all of them are.
It doesn't matter. If the law is being proposed on utilitarian grounds, it's enough to demonstrate that a subset of gum chewers is responsible, or rather that the act of chewing gum leads to the infringement of rights.
The demonstration that an infringement of rights has taken place requires proof. That proof is met by the prosecutorial record and law-enforcement paper-trail.
And thus, the ensuing step in which we weigh observations and argument is conducted with burdens already met on both sides. It is quite right that if the cost-benefit analysis, or other choice of rubric, provides an argument in one direction, then you would not be justified to legislate (or fail to legislate) in the other.
You are glosssing over large parts of my argument. As I've already said, it is not enough to prove that an infringement of rights has taken place. You must establish A) that the rights of the train-riders are being infringed, that the gum-chewers are source of the infringement, C) that restricting the rights of the gum-chewers will restore the rights of the train-riders. You are assuming all of those things as a matter of course, but as I've said we do not have a priori knowledge of any of them - they must be established. The gum chewers, on the other hand, do not have to establish anything - it is sufficient to point to the existence of the law to demonstrate that their rights are being infringed, and that the removal of the law would restore those rights. Their argument has been made. In order for the train-riders to challenge it, it would once again be their responsibility to prove that the absence of the law would constitute an infringement of their rights. No matter what way you slice it, the burden of justification remains on the side of the lawmakers.
That their rights are infringed requires burden-of-proof. Happily, despite the elevated standard, the prosecutorial record is sufficient to demonstrate the failure to enforce prevention of said harm. As we exhaustively hammered out earlier, at this stage there is no requirement for any identification of who caused this harm, or even whether there is anything the state can reasonably do to halt the agency inflicting this harm. It's entirely possible that it will turn out that nothing should or even can be done, and you should just shrug and accept it - actually-existing modern jurisprudence calls it force majeure and tells you that nothing can be done, and no human agency will bear fault.
That the legislation balances the conflicting claims optimally, on the other hand, is not subject to the elevated standard, since the evidentiary motivation is already given and any prescribed burdens cancel out. At this point we are no longer balancing between policies of infringement and non-infringement, but between policies of infringement and infringement. Again, acknowledging the inability to prosecute vandals is already a statement that there is going to be an infringement of someone's rights, even if the state chooses to legislate nothing.
Remember that this is not a court. There is no turn-taking of burdens of proof; regulation does not operate by demanding that one 'side' satisfy an evidentiary burden and then demand that the other side meet theirs, and we are not seeking to pass a binary statement of guilt (or fault). In (A) to (C) above, (A) is already given for both sides at an elevated but trivial standard, (B) is completely irrelevant, and (C) is assessed without any benefit of presumption on any side.
It's not even preponderance because of the sheer complexity of the universe of possible proposals. Take OSHA again - when governments legislate workplace safety, it is not the case that we say that we are conducting the case-by-case minimum degree of infringement to pursue this goal. That fine-tuning is left to civil or criminal liability. It is not the case that we assign fault, or (god forbid) moral culpability, for something which hasn't even happened yet. The government can prosecute you for failure to comply with prescribed standards, even if it has no evidence that you are not careful enough to eventually hurt someone.
ronya on
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Clown ShoesGive me hay or give me death.Registered Userregular
A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law.
Whilst it may be a legally valid law, I wouldn't call it good. The "stated goal" is the justification for passing the law and if those passing the law know that the justification is false, they are not performing their duty honestly. Isn't that ultimately why we have juries? If a law is legally valid but "unjust", your peers have a chance to prevent you being punished (ideally).
Clown Shoes on
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Clown ShoesGive me hay or give me death.Registered Userregular
It does not follow that we must abandon the war on gum.
True, but it would be a good time to re-examine the wisdom of declaring war on inanimate objects.
Flippant, I know, but I do think a major source of the problems surrounding the gum trade is that we treat it as a war. If every person chewing gum is helping the other side, the enemy has already infiltrated us at every level of society and their agents have been running America for the last 20 years.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law.
Whilst it may be a legally valid law, I wouldn't call it good. The "stated goal" is the justification for passing the law and if those passing the law know that the justification is false, they are not performing their duty honestly. Isn't that ultimately why we have juries? If a law is legally valid but "unjust", your peers have a chance to prevent you being punished (ideally).
I meant good as in proper.
That is not why we have juries. Juries serve as triers of fact, and determine which of the evidence presented was true and which was not. Jury nullification does not and must not occur often, lest we lose the predictability that is key to getting people to follow the law.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
It does not follow that we must abandon the war on gum.
True, but it would be a good time to re-examine the wisdom of declaring war on inanimate objects.
Flippant, I know, but I do think a major source of the problems surrounding the gum trade is that we treat it as a war. If every person chewing gum is helping the other side, the enemy has already infiltrated us at every level of society and their agents have been running America for the last 20 years.
We are not without our resources. The double mint twins have been double agents for years now.
+1
Clown ShoesGive me hay or give me death.Registered Userregular
Juries serve as triers of fact, and determine which of the evidence presented was true and which was not. Jury nullification does not and must not occur often, lest we lose the predictability that is key to getting people to follow the law.
That's not the sole purpose of juries, if it were, we would be tried by a jury of impartial observers rather than a jury of our peers. The reason jury nullification should not occur often is not because it affects predictability, but because it is a sign that the law is unjust.
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.
Nonsense. Speaking as if I must prove that it is justified to kill you in order to do so is plainly wrong, as it fails to accurately reflect that people in this world kill other people for all kinds of reasons. Perhaps I'm killing you as a favour to someone, and perhaps further down the line they will repay that favour leading to the greater good. Who knows? Not me, it's not my responsibility. Eat lead!
You're putting the cart of compromise and wheeling & dealing before the horse of ethical imperatives and benefit to society.
I fail to see how what you wrote refutes my post, as you have absolutely described how killing works accurately. The major point which your post misses is that if you kill me, the state will exercise its force to punish you, unless you have one of a narrow range of acceptable justifications, such as self defense. The legislature faces no such threat of force for its actions.
I think any discussion of the rule making process which is couched as if the rule makers were adjudicators is bound to fail to adequately capture what the legislative process is. It is not mere expediency I am describing. It is the reality that we choose representatives to make decisions, and we hope they will decide as we would like, but those are legitimate choices. In the adjudicative process, there are right and wrong answers, but this simply is not so for the legislature.
You are trying to frame this debate like there is a right and a wrong answer on the question of prohibition, and I believe that is a
misguided. This is a question about whose freedom should prevail (those who wish to use drugs or those who wish to be free of the effects of interacting with people using them) and reasonable people can disagree. The legislature does not need to pass any bar other than having a majority in favor of one position or the other in order to act.
Saying that sometimes laws are passed for reasons other than what is best for society is not the same thing as saying that laws should be passed for other than what's best for society. A law is not automatically desirable simply because it was passed by a legitimately elected legislator, nor are that legislator's choices exempt from judgement on the grounds of what is ethical and what is rational simply because we elected him. To pass a law that isn't ethical and rational in itself in order to achieve a greater good is acceptable, but that doesn't excuse the legislator's decisions from being ethical and rational, it merely introduces an additional factor beyond the law under question. If the majority of a group, legislative or otherwise, decides in favour of a given course of action based on unthinking prejudice or blind whim that does not make that decision a valid one - people have positions of power, especially, have a responsibility to make ethical and rational decisions. Basically, I think you're treating descriptive statements as arguments when they're not.
I just realised my last post might have come off as hostile, so I'm sorry if I gave that impression.
That their rights are infringed requires burden-of-proof. Happily, despite the elevated standard, the prosecutorial record is sufficient to demonstrate the failure to enforce prevention of said harm. As we exhaustively hammered out earlier, at this stage there is no requirement for any identification of who caused this harm, or even whether there is anything the state can reasonably do to halt the agency inflicting this harm. It's entirely possible that it will turn out that nothing should or even can be done, and you should just shrug and accept it - actually-existing modern jurisprudence calls it force majeure and tells you that nothing can be done, and no human agency will bear fault.
That the legislation balances the conflicting claims optimally, on the other hand, is not subject to the elevated standard, since the evidentiary motivation is already given and any prescribed burdens cancel out. At this point we are no longer balancing between policies of infringement and non-infringement, but between policies of infringement and infringement. Again, acknowledging the inability to prosecute vandals is already a statement that there is going to be an infringement of someone's rights, even if the state chooses to legislate nothing.
Remember that this is not a court. There is no turn-taking of burdens of proof; regulation does not operate by demanding that one 'side' satisfy an evidentiary burden and then demand that the other side meet theirs, and we are not seeking to pass a binary statement of guilt (or fault). In (A) to (C) above, (A) is already given for both sides at an elevated but trivial standard, (B) is completely irrelevant, and (C) is assessed without any benefit of presumption on any side.
It's not even preponderance because of the sheer complexity of the universe of possible proposals. Take OSHA again - when governments legislate workplace safety, it is not the case that we say that we are conducting the case-by-case minimum degree of infringement to pursue this goal. That fine-tuning is left to civil or criminal liability. It is not the case that we assign fault, or (god forbid) moral culpability, for something which hasn't even happened yet. The government can prosecute you for failure to comply with prescribed standards, even if it has no evidence that you are not careful enough to eventually hurt someone.
We're talking past each another. I put forward an argument which I don't feel you've adequately addressed. Now you're making statements that contradict my conclusions without actually addressing my argument (your 1st sentence 2nd paragraph in particular), and reiterating a number of points that I don't consider to be in dispute, or otherwise irrelevant to my case. I made an argument from, essentially, first principles, but you've leapfrogged ahead. I would like you to either disprove it - which your quoted post doesn't do, since it contradicts my conclusions without addressing why - or explicitly concede it but then show that it's inapplicable or irrelevant to the greater situation under discussion - which you also haven't shown, although you seem to have assumed it. Until you do one of those two things, I'm not willing to simply move on to different ground.
(It's also possible you've done these things and I've somehow failed to recognise it; if so, please make it clearer for me.)
The specific quote tree I feel you haven't addressed is this one:
1. It is known a priori that a law restricting people's freedoms is an infringement of rights.
2. It is not known a priori that the removal or absence of that law is an infringement of rights.
3. Therefore, burden of justification rests on the lawmaker.
You raised no objections to 1 thus far, so your issue appears to be with 2. While evidence or logical argument may be sufficient to establish that an infringement of rights accompanies the absence of any given law, it cannot be established in the absence of evidence that an infringement of rights accompanies the absence of any and all laws, while the contrary is not true. All laws are infringements of freedom. Not all absences of law are infringements of freedom. If you feel you can establish that the absence of any law is known a priori to be an infringement of rights, please do so.
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
This is true as far as it goes, but you have stopped short of showing that it invalidates the premise. In the absence of other living beings, I have freedom to act however I wish. Once I come into contact with other people, we start infringing upon each other's rights. However, as I stated earlier, and you didn't dispute at the time:
In evidential matters, the burden of proof rests on the positive claimaint. I cannot prove that none of my actions are harmful to others, nor should I be expected to; it is the claimaint's responsibility to demonstrate harm or risk of harm. In other words, I am innocent until proven guilty.
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
And in a effort to keep things from getting too stale and frustrating for both of us, here's a somewhat overwrought thought experiment about the same principles, which I'd be interested in hearing your answer to if you care to give it.
I and a small number of other people live on a desert island. One day, I call all the people of the island together. I explain that, every day for the last month, my grass hut has been destroyed, forcing me to rebuild. Addressing the assemblage, I make the following arguments.
1) I have a right to shelter. The destruction of my hut is an infringement of my rights. This much everyone on the island can agree on.
2) My hut is being destroyed, therefore my rights are being infringed. This, too, is obvious – there is the destroyed hut, after all.
3) If the other people of the island, as a group, are capable of ending the infringement of my rights and do not, that's tantamount to condoning it, therefore unethical. Once again, everyone is in agreement.
So far there's no dissent. Now I move on to what I think we should do about it. I skip the argument as to whose actions are causing the destruction of my hut, because as you say it is not strictly necessary except as a useful means of establishing my next point, which is as follows:
4) In order to prevent the infringement of my rights, we must restrict the rights of all blue-eyed islanders. Specifically, blue-eyed islanders should no longer be allowed to eat fish.
I decline to give any reasoning for this claim. I then sit down.
After some deliberation, a representative of all blue-eyed islanders stands up to speak. He makes the following arguments:
1) Blue-eyed islanders have the right to eat fish, if it does not cause harm to others. This is met with universal agreement.
2) If my claim is false, and the restriction of blue-eyed islanders from eating fish will not prevent my house from falling down, then this law is a violation of their rights, which is unethical.
3) I have failed to demonstrate that preventing blue-eyed islanders from eating fish will prevent my house from falling down.
He declines to argue further, and sits down.
You, as one of our duly-elected lawmakers, are then called upon to decide: shall we pass a law preventing blue eyed islanders from eating fish? The islanders do not have a formal legal system. You are called upon to make the decision based on your own intelligence, rationality, practicality, and sense of ethics. Whatever you decide will be considered a proper and valid law by everyone on the island. Do you:
A) Weigh the cost of the infringement of my right to shelter vs. the infringement of the islanders' right to eat fish, then make your decision on the basis of which option will cause least harm overall? Consider the arguments put forward in favour of each side on their merits, then make your decision based on which choice you believe will cause least harm according to your final view?
C) Consider the arguments put forward in favour of each side, decide the probability that each side is right vs. the severity of the consequences,then make your decision according to which option scores lowest for risk assessment?
D) Something else?
I'm sure that just as I feel you're ignoring my argument, you feel I'm ignoring yours. My problem is that I don't see how your argument disproves mine, so I don't know how I'm supposed to address it.
Let's scale way back. Stop me at the first point you disagree with.
I have a right to total freedom, to the extent that my freedom causes no harm to others.
This premise is silly for a few reasons.
1: "Right" talk is silly. We have to articulate the sense in which they are "had", their source, what grounds the claim, and their relationship to other perceived duties, obligations, and systems of rules, such as legality. Are "rights" something that come from God, and so we must articulate the metaphysical baggage of that ontological claim? Or are "rights" something that we, as a society, made up, and so they are revisable, subject to alteration by popular whim, or from some position of power?
2: No one has "total" freedom. You do not have gills, so cannot breathe underwater unaided by some apparatus. You can't fly unaided, or unharassed by the TSA. Moreover, you're a social creature whose existence relies upon a wealth of connections. You're not an atomistic Cartesian ego, completely untethered from any other being or world.
3: The "no harm to others" clause is problematic given the limitations persons put on the scope of "harm". Presumably, the money you spend on drugs goes to drug dealers, who spend it on non-humanitarian enterprises. Those enterprises may cause harm to others. But, of course, you're going to limit considerations of harm to "direct", whatever the fuck that means. So if you, personally, do not "directly" disenfranchise anyone then the act is permissible.
But we don't live in that world. Actions have consequences, and those consequences go beyond those artificially reductive scopes of "direct". Everything you do, every act in which you engage, affects other people. When you buy an orange, someone else cannot have that orange, and the money goes to pay salaries, maintain the store, etc.
We don't live in your hyper-reductive world of naive, sophomoric oversimplifications. So, if your desire is to talk about actual drug policy in the world in which we live, I'm not sure why you're constantly engaging with fictions that in no way relate to our lives here on the planet earth in 2013.
We don't have rights. There is no such thing as "total freedom". And everything you do hurts someone.
Start there, and articulate a coherent drug policy.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.
Nonsense. Speaking as if I must prove that it is justified to kill you in order to do so is plainly wrong, as it fails to accurately reflect that people in this world kill other people for all kinds of reasons. Perhaps I'm killing you as a favour to someone, and perhaps further down the line they will repay that favour leading to the greater good. Who knows? Not me, it's not my responsibility. Eat lead!
You're putting the cart of compromise and wheeling & dealing before the horse of ethical imperatives and benefit to society.
I fail to see how what you wrote refutes my post, as you have absolutely described how killing works accurately. The major point which your post misses is that if you kill me, the state will exercise its force to punish you, unless you have one of a narrow range of acceptable justifications, such as self defense. The legislature faces no such threat of force for its actions.
I think any discussion of the rule making process which is couched as if the rule makers were adjudicators is bound to fail to adequately capture what the legislative process is. It is not mere expediency I am describing. It is the reality that we choose representatives to make decisions, and we hope they will decide as we would like, but those are legitimate choices. In the adjudicative process, there are right and wrong answers, but this simply is not so for the legislature.
You are trying to frame this debate like there is a right and a wrong answer on the question of prohibition, and I believe that is a
misguided. This is a question about whose freedom should prevail (those who wish to use drugs or those who wish to be free of the effects of interacting with people using them) and reasonable people can disagree. The legislature does not need to pass any bar other than having a majority in favor of one position or the other in order to act.
Saying that sometimes laws are passed for reasons other than what is best for society is not the same thing as saying that laws should be passed for other than what's best for society. A law is not automatically desirable simply because it was passed by a legitimately elected legislator, nor are that legislator's choices exempt from judgement on the grounds of what is ethical and what is rational simply because we elected him. To pass a law that isn't ethical and rational in itself in order to achieve a greater good is acceptable, but that doesn't excuse the legislator's decisions from being ethical and rational, it merely introduces an additional factor beyond the law under question. If the majority of a group, legislative or otherwise, decides in favour of a given course of action based on unthinking prejudice or blind whim that does not make that decision a valid one - people have positions of power, especially, have a responsibility to make ethical and rational decisions. Basically, I think you're treating descriptive statements as arguments when they're not.
I just realised my last post might have come off as hostile, so I'm sorry if I gave that impression.
I fear you may have missed my point. I am not advocating that people make laws with no regard for ethics. I am just trying to pull this discussion away from a debate over whether prohibition is right or wrong along a single moral axis, and move to a more realistic recognition that this, like most topics, is complex and there are many competing and valid concerns. Even if we were to look at the aggregate harms and benefits of prohibition as a utilitarian would and conclude that more utils are created in a world without prohibition, that need not be dispositive in our determination of what the law ought to be.
Making laws involves making choices, often among competing interests. In this particular case, I would argue that it is reasonable to assign the value of the happiness created by drugs less weight than the harms they cause, such as the harm of driving under the influence. I think there are a number of reasons to take this position, chief of which is that things like cars provide both happiness and tremendous value to our society (by enabling the rapid transport of people and goods) while drugs only provide happiness, and so, given the choice of restricting cars or drugs as a means to prevent driving related deaths, I would always say that the productive choice should win out over the choice that provides bare pleasure. I also believe that, at base, people ought to be free from interference from other people, so that, for example, a persons right to sit in peace in their home should trump their neighbors right to listen to loud music. Similarly, I believe that a person going about their day in the ordinary way ought not to have to confront people who are artificially loud, obnoxious or otherwise rude because they have altered their state to be so (think drunks on the train at night who disrupt the entire train car).
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Hmm. Alright, try this: @LeMarc would like to designate a 'starting point' of what rights we may have, from which the state has a burden of proof to motivate legislation that deviates from these rights. I am emphasizing the arbitrary nature of the choice of rights. Whatever outcome that occurs is the state-designated choice, and we dispute it on those grounds alone; there is no a priori reason to assign the burden of proof in any given direction.
So you believe that we have no rights save those the state designates?
No, the disagreement is on the methodology by which we argue for rights, in the context of conflicting claims to rights: if there is no conflict, there is no problem. Obviously, for any disputation of the state-designated choice of rights to occur at all, we cannot say that mere designation creates a human right.
What do you mean by 'the state-designated choice of rights'?
The state does not designate rights. The state creates laws and systems. Those are independent of my rights, are they not?
Quite. Indeed, that is my point: you set no burden of proof and invoke a staid cost-benefit analysis. You demand no elevated standard of proof in either direction; even a terrible argument for preserving your life will prevail if the argument for chewing-gum is also terrible and slightly weaker.
Not true. That post was not a complete statement in itself, it was made in the context of the argument I have already put forward at the bottom of the last page, and should be addressed in that context. By not doing so, you're addressing a statement I haven't actually made.
Except that prohibiting drugs has cultivated a sector of organized, well-equipped criminals. It simply creates more crime (and I don't mean that as a tautology) than it stops, and the crimes / criminals are much worse than the consumption of more drugs and the related damages.
I mean, to stretch Ronya's analogy until it breaks, suppose you banned all chewing gum from the train stations and found that the ban reduced the amount of gum found stuck on train doors every year, but it also created a culture of gum barons that fatally shoved about 12,300~ people in front of trains last year alone. And also began kidnapping children and women from the train platforms at ever-growing rates.
Would you then say that your law accomplished either:
1) Your goal of greater societal efficiency
2) Your goal of decreased criminality
?
Ah... okay, word-choice ambiguity. Independent of the rather complicated argument over whether inalienable rights exist and if they are universal, I am using 'rights' there descriptively, in the way one might say that there is a right to trial by jury in the United States and no such right in Germany.
I reiterate that my point is methodological, rather than what the method resolves in. There has to be a conflict in claims to rights for this to be relevant at all.
Let me clarify - my point is that you should set no burden of proof, etc. etc.
I can't continue a meaningful discussion until you address this:
I agree with the 1-3 characterization of the dispute; as you say, I disagree with 2.
I disagree with your defence of 2. Negative freedoms require action to exist; you would not have the exercise of a right to property if the state cheerfully let anyone who assaulted you successfully to seize your property. You do not exercise the totality of freedom in absence of a formal state, for there would still be other people and your interactions with them would still be constrained by whatever coercion they can summon.
It is this initiation of the use of force which constrains your exercise of (negative) freedoms, not whether the armed men wear ski masks or police helmets. Whether they call themselves a "state" is merely labelling.
My right to property can be exercised without just the state's intervention. I can enforce it myself, for example.
Regardless, it does sound as if you are saying that the state creates the rights. Or that you're confusing rights, the chance to exercise rights, and the state's acknowledgement of those rights. And that you're imagining all humans to be powerless without the state, which is not the case.
If I have a right, and you seem to believe that I do have rights of some sort, don't I still have that right even if I can't achieve that condition?
Or is it that you don't believe people have rights? If not, say so clearly and go from there.
I'm not sure where you disagree with me. Sure, you can exercise your right to property if you enforce it yourself. Hence why I specified "assaulted you successfully".
I do not say the state creates the right. I do not say that all humans are powerless without the state, only that they do not achieve the postulated ideal of non-infringed freedom under anarchy.
I reiterate that the context of this argument is conflicting claims to rights.
Posh, honestly, you seem determined to read an argument over the universality and source of rights into the thread, but that isn't the disagreement here.
This is true as far as it goes, but you have stopped short of showing that it invalidates the premise. In the absence of other living beings, I have freedom to act however I wish. Once I come into contact with other people, we start infringing upon each other's rights. However, as I stated earlier, and you didn't dispute at the time:
In an anarchy, in order to establish that someone else is infringing on my rights, I must provide evidence of the fact. This is absent any legal system or potential punishment – it's simple logic. If I make a positive claim, I must provide sufficient demonstration of that claim in order for it to be considered valid. For someone else to establish that I am infringing on her rights, she must do the same.
Once we add a legal system, and enshrine an explicit infringement of my rights into law, it is no longer necessary for me to provide evidence that my rights are being infringed – it is already established, unequivocally. My counterpart is not so “lucky” - she has no such unassailable proof that I am infringing her rights, and must still establish so through argument.
You have not demonstrated that we have a priori knowledge that in all cases the absence of a law is an infringement of rights.
Add a legal system, and suppose that we do not enshrine an explicit infringement of gum-chewing rights into law. The train is consistently vandalized, but the justice ministry decides that it cannot identify the vandals and the harm goes unprosecuted. Surely this establishes that the state has declined to prosecute the infringement of train-related rights? That, as a matter of unequivocal public record, there is no state action regarding these rights?
Rights are granted by the state. Without the state assuring those rights, them existing or not is completely moot
true as a descriptive statement, but it is often confused with a lazy argument for the status quo; I think that's what posh is objecting to
Assuming you have already demonstrated that an infringement of rights has taken place, yes (otherwise no). If you could then demonstrate that it's the gum-chewers who are responsible for infringing your rights, and that by restricting their right to chew gum you can reduce the infringement of your own rights, then you would have a valid argument for prohibiting gum-chewing.
"Through observation, we have determined that the reason the trains are not functioning correctly is due to damage, and that the cause of the damage is chewed gum. By induction, the gum and therefore the damage is the consequence of gum-chewers. By deduction, restricting the rights of gum chewers to chew gum will likely reduce damage to the trains and therefore the infringement of our right to get to work on time."
Some steps might be skipped over if everyone is in agreement or if they are so obvious that they do not need to be explicitly stated, but they are still your responsibility. Without such an argument, either explicit or implicit, you would not be justified in legislating against gum-chewing.
As per the thought experiment, the gum-chewers are not universally responsible for the infringement, as a note. Some gum-chewers are responsible, but not all of them are.
The demonstration that an infringement of rights has taken place requires proof. That proof is met by the prosecutorial record and law-enforcement paper-trail.
And thus, the ensuing step in which we weigh observations and argument is conducted with burdens already met on both sides. It is quite right that if the cost-benefit analysis, or other choice of rubric, provides an argument in one direction, then you would not be justified to legislate (or fail to legislate) in the other.
You are glosssing over large parts of my argument. As I've already said, it is not enough to prove that an infringement of rights has taken place. You must establish A) that the rights of the train-riders are being infringed,
The fact that they are unable to prosecute, doesn't show that they are unwilling.
I think it is critically important that we draw a line between the evidentiary standards of an adjudicative body and how the legislature makes rules. Only the former involves burdens of proof or even arbiters of which facts are true. A legislature may choose to pass a law even knowing full well that it will not fully serve its stated goal, on the basis of disputed evidence and this would still be a good, valid law. Speaking as if you must prove your position in order to legislate it is plainly wrong, and fails to accurately reflect that the legislative process is fundamentally about designated persons making choices, for whatever reason (political economy, trading votes, wanting to make a gesture even if a problem cannot be solved, returning favors, curryin favor with donors, etc.)
So, accepting that the legislative process is fundamentally one of choices among multiple alternatives, and not of applying evidence to determine what the one correct outcome is, we come to the answer to the hat problem. One of the main roles of the legislature is to make choices among multiple viable positions, such as chewing gum or riding trains, and, as much as we may wish it, they are not beholden to cost benefit analysis or any other objectively determinable (ha) metric. There is nothing compelling them one way or the other (other than their own consciences? (Ha again)) and so they must just decide what is more important: the joy of chewing gum of the ability to anticipate your travel times, the freedom to enjoy drugs or the freedom to move great distances with cars.
It does not follow that we must abandon the war on gum. We could instead step up other crime prevention efforts to compensate. Note that this will entail costs, and these costs may well be too great, but it isn't an incoherent position at all, especially if my goal is trains that run on time and the existence of legal gum is anathema to this.
Nonsense. Speaking as if I must prove that it is justified to kill you in order to do so is plainly wrong, as it fails to accurately reflect that people in this world kill other people for all kinds of reasons. Perhaps I'm killing you as a favour to someone, and perhaps further down the line they will repay that favour leading to the greater good. Who knows? Not me, it's not my responsibility. Eat lead!
You're putting the cart of compromise and wheeling & dealing before the horse of ethical imperatives and benefit to society.
I fail to see how what you wrote refutes my post, as you have absolutely described how killing works accurately. The major point which your post misses is that if you kill me, the state will exercise its force to punish you, unless you have one of a narrow range of acceptable justifications, such as self defense. The legislature faces no such threat of force for its actions.
I think any discussion of the rule making process which is couched as if the rule makers were adjudicators is bound to fail to adequately capture what the legislative process is. It is not mere expediency I am describing. It is the reality that we choose representatives to make decisions, and we hope they will decide as we would like, but those are legitimate choices. In the adjudicative process, there are right and wrong answers, but this simply is not so for the legislature.
You are trying to frame this debate like there is a right and a wrong answer on the question of prohibition, and I believe that is a
misguided. This is a question about whose freedom should prevail (those who wish to use drugs or those who wish to be free of the effects of interacting with people using them) and reasonable people can disagree. The legislature does not need to pass any bar other than having a majority in favor of one position or the other in order to act.
That their rights are infringed requires burden-of-proof. Happily, despite the elevated standard, the prosecutorial record is sufficient to demonstrate the failure to enforce prevention of said harm. As we exhaustively hammered out earlier, at this stage there is no requirement for any identification of who caused this harm, or even whether there is anything the state can reasonably do to halt the agency inflicting this harm. It's entirely possible that it will turn out that nothing should or even can be done, and you should just shrug and accept it - actually-existing modern jurisprudence calls it force majeure and tells you that nothing can be done, and no human agency will bear fault.
That the legislation balances the conflicting claims optimally, on the other hand, is not subject to the elevated standard, since the evidentiary motivation is already given and any prescribed burdens cancel out. At this point we are no longer balancing between policies of infringement and non-infringement, but between policies of infringement and infringement. Again, acknowledging the inability to prosecute vandals is already a statement that there is going to be an infringement of someone's rights, even if the state chooses to legislate nothing.
Remember that this is not a court. There is no turn-taking of burdens of proof; regulation does not operate by demanding that one 'side' satisfy an evidentiary burden and then demand that the other side meet theirs, and we are not seeking to pass a binary statement of guilt (or fault). In (A) to (C) above, (A) is already given for both sides at an elevated but trivial standard, (B) is completely irrelevant, and (C) is assessed without any benefit of presumption on any side.
It's not even preponderance because of the sheer complexity of the universe of possible proposals. Take OSHA again - when governments legislate workplace safety, it is not the case that we say that we are conducting the case-by-case minimum degree of infringement to pursue this goal. That fine-tuning is left to civil or criminal liability. It is not the case that we assign fault, or (god forbid) moral culpability, for something which hasn't even happened yet. The government can prosecute you for failure to comply with prescribed standards, even if it has no evidence that you are not careful enough to eventually hurt someone.
True, but it would be a good time to re-examine the wisdom of declaring war on inanimate objects.
Flippant, I know, but I do think a major source of the problems surrounding the gum trade is that we treat it as a war. If every person chewing gum is helping the other side, the enemy has already infiltrated us at every level of society and their agents have been running America for the last 20 years.
I meant good as in proper.
That is not why we have juries. Juries serve as triers of fact, and determine which of the evidence presented was true and which was not. Jury nullification does not and must not occur often, lest we lose the predictability that is key to getting people to follow the law.
We are not without our resources. The double mint twins have been double agents for years now.
Fair enough.
That's not the sole purpose of juries, if it were, we would be tried by a jury of impartial observers rather than a jury of our peers. The reason jury nullification should not occur often is not because it affects predictability, but because it is a sign that the law is unjust.
Saying that sometimes laws are passed for reasons other than what is best for society is not the same thing as saying that laws should be passed for other than what's best for society. A law is not automatically desirable simply because it was passed by a legitimately elected legislator, nor are that legislator's choices exempt from judgement on the grounds of what is ethical and what is rational simply because we elected him. To pass a law that isn't ethical and rational in itself in order to achieve a greater good is acceptable, but that doesn't excuse the legislator's decisions from being ethical and rational, it merely introduces an additional factor beyond the law under question. If the majority of a group, legislative or otherwise, decides in favour of a given course of action based on unthinking prejudice or blind whim that does not make that decision a valid one - people have positions of power, especially, have a responsibility to make ethical and rational decisions. Basically, I think you're treating descriptive statements as arguments when they're not.
I just realised my last post might have come off as hostile, so I'm sorry if I gave that impression.
We're talking past each another. I put forward an argument which I don't feel you've adequately addressed. Now you're making statements that contradict my conclusions without actually addressing my argument (your 1st sentence 2nd paragraph in particular), and reiterating a number of points that I don't consider to be in dispute, or otherwise irrelevant to my case. I made an argument from, essentially, first principles, but you've leapfrogged ahead. I would like you to either disprove it - which your quoted post doesn't do, since it contradicts my conclusions without addressing why - or explicitly concede it but then show that it's inapplicable or irrelevant to the greater situation under discussion - which you also haven't shown, although you seem to have assumed it. Until you do one of those two things, I'm not willing to simply move on to different ground.
(It's also possible you've done these things and I've somehow failed to recognise it; if so, please make it clearer for me.)
The specific quote tree I feel you haven't addressed is this one:
And in a effort to keep things from getting too stale and frustrating for both of us, here's a somewhat overwrought thought experiment about the same principles, which I'd be interested in hearing your answer to if you care to give it.
1) I have a right to shelter. The destruction of my hut is an infringement of my rights. This much everyone on the island can agree on.
2) My hut is being destroyed, therefore my rights are being infringed. This, too, is obvious – there is the destroyed hut, after all.
3) If the other people of the island, as a group, are capable of ending the infringement of my rights and do not, that's tantamount to condoning it, therefore unethical. Once again, everyone is in agreement.
So far there's no dissent. Now I move on to what I think we should do about it. I skip the argument as to whose actions are causing the destruction of my hut, because as you say it is not strictly necessary except as a useful means of establishing my next point, which is as follows:
4) In order to prevent the infringement of my rights, we must restrict the rights of all blue-eyed islanders. Specifically, blue-eyed islanders should no longer be allowed to eat fish.
I decline to give any reasoning for this claim. I then sit down.
After some deliberation, a representative of all blue-eyed islanders stands up to speak. He makes the following arguments:
1) Blue-eyed islanders have the right to eat fish, if it does not cause harm to others. This is met with universal agreement.
2) If my claim is false, and the restriction of blue-eyed islanders from eating fish will not prevent my house from falling down, then this law is a violation of their rights, which is unethical.
3) I have failed to demonstrate that preventing blue-eyed islanders from eating fish will prevent my house from falling down.
He declines to argue further, and sits down.
You, as one of our duly-elected lawmakers, are then called upon to decide: shall we pass a law preventing blue eyed islanders from eating fish? The islanders do not have a formal legal system. You are called upon to make the decision based on your own intelligence, rationality, practicality, and sense of ethics. Whatever you decide will be considered a proper and valid law by everyone on the island. Do you:
A) Weigh the cost of the infringement of my right to shelter vs. the infringement of the islanders' right to eat fish, then make your decision on the basis of which option will cause least harm overall?
C) Consider the arguments put forward in favour of each side, decide the probability that each side is right vs. the severity of the consequences,then make your decision according to which option scores lowest for risk assessment?
D) Something else?
This premise is silly for a few reasons.
1: "Right" talk is silly. We have to articulate the sense in which they are "had", their source, what grounds the claim, and their relationship to other perceived duties, obligations, and systems of rules, such as legality. Are "rights" something that come from God, and so we must articulate the metaphysical baggage of that ontological claim? Or are "rights" something that we, as a society, made up, and so they are revisable, subject to alteration by popular whim, or from some position of power?
2: No one has "total" freedom. You do not have gills, so cannot breathe underwater unaided by some apparatus. You can't fly unaided, or unharassed by the TSA. Moreover, you're a social creature whose existence relies upon a wealth of connections. You're not an atomistic Cartesian ego, completely untethered from any other being or world.
3: The "no harm to others" clause is problematic given the limitations persons put on the scope of "harm". Presumably, the money you spend on drugs goes to drug dealers, who spend it on non-humanitarian enterprises. Those enterprises may cause harm to others. But, of course, you're going to limit considerations of harm to "direct", whatever the fuck that means. So if you, personally, do not "directly" disenfranchise anyone then the act is permissible.
But we don't live in that world. Actions have consequences, and those consequences go beyond those artificially reductive scopes of "direct". Everything you do, every act in which you engage, affects other people. When you buy an orange, someone else cannot have that orange, and the money goes to pay salaries, maintain the store, etc.
We don't live in your hyper-reductive world of naive, sophomoric oversimplifications. So, if your desire is to talk about actual drug policy in the world in which we live, I'm not sure why you're constantly engaging with fictions that in no way relate to our lives here on the planet earth in 2013.
We don't have rights. There is no such thing as "total freedom". And everything you do hurts someone.
Start there, and articulate a coherent drug policy.
I fear you may have missed my point. I am not advocating that people make laws with no regard for ethics. I am just trying to pull this discussion away from a debate over whether prohibition is right or wrong along a single moral axis, and move to a more realistic recognition that this, like most topics, is complex and there are many competing and valid concerns. Even if we were to look at the aggregate harms and benefits of prohibition as a utilitarian would and conclude that more utils are created in a world without prohibition, that need not be dispositive in our determination of what the law ought to be.
Making laws involves making choices, often among competing interests. In this particular case, I would argue that it is reasonable to assign the value of the happiness created by drugs less weight than the harms they cause, such as the harm of driving under the influence. I think there are a number of reasons to take this position, chief of which is that things like cars provide both happiness and tremendous value to our society (by enabling the rapid transport of people and goods) while drugs only provide happiness, and so, given the choice of restricting cars or drugs as a means to prevent driving related deaths, I would always say that the productive choice should win out over the choice that provides bare pleasure. I also believe that, at base, people ought to be free from interference from other people, so that, for example, a persons right to sit in peace in their home should trump their neighbors right to listen to loud music. Similarly, I believe that a person going about their day in the ordinary way ought not to have to confront people who are artificially loud, obnoxious or otherwise rude because they have altered their state to be so (think drunks on the train at night who disrupt the entire train car).