My Ideal Legal System, or lack thereof

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Azrael
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Re: My Ideal Legal System, or lack thereof

Postby Azrael » Thu Nov 05, 2009 3:24 am UTC

mastered wrote:You'd have to defend to the judges.
Not to whom. Against what? You charge me with a crime infringing on your free choice, if the judge finds me guilty, then what? What happens if I'm guilty?

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Re: My Ideal Legal System, or lack thereof

Postby mastered » Thu Nov 05, 2009 5:27 am UTC

nowfocus wrote:
mastered wrote:I think some people are misunderstanding, or perhaps just missing the point that any crime violates another's choice somehow. I dare you to give me an example otherwise; I've so far been able to apply it to any true crime I can find. Sometimes it may sound contrived, but it works, as opposed to calling something a crime first and figuring out (or making up a reason) why later.


The point isn't that you can't construe crimes as violating choice somehow, its that you can construe anything whatsoever to be a violation of someones choice. Your using hindsight.

If I brought rape to you as an example, you'd say it violates someones choice to not be raped. Problem solved right?

Except the assaliant can say "She is infringing on my choice to a rapist, and hence she is the criminal". Since there is no morality, no side is in the right, and you can give your currently undefined punishment onto the guilt party.

So I flip it back onto you: Every crime violates all parties choices some how. I dare you to give me an example otherwise.

I'm also curious as to how your system handles someone, or a gang of people, decide they will kill the judges...


The crime itself does not violate the criminal's choice; they chose to commit it. The accusation of it being a crime merely says that the criminal did something to another against their will.

Azrael wrote:Not to whom. Against what? You charge me with a crime infringing on your free choice, if the judge finds me guilty, then what? What happens if I'm guilty?


A punishment would be against the criminal's will. This presents a problem. How can one violate someone's choices in an "eye for an eye" way without becoming a criminal themselves, from someone's perspective? This is why the only solution would be, rather than punishment, prevention. We would somehow have to prevent people from infringing on another's rights. One option would be to have people apply to do things that could cause harm, but I don't have a definitive answer.
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Re: My Ideal Legal System, or lack thereof

Postby MiB24601 » Thu Nov 05, 2009 6:30 am UTC

Although I had responded to the original posting, mastered, I hadn't taken a look at much as the thread as a whole. While it seems like you started with a reasonable premise, one that had come up before in philosophical and legal theory, it seems like your running into a whole lot of problems with your execution of it. You might want to take a step back and read some more about the topic.

mastered wrote:The crime itself does not violate the criminal's choice; they chose to commit it. The accusation of it being a crime merely says that the criminal did something to another against their will.


What nowfocus is saying is that had the criminal not committed the crime he had wanted to commit, his ability to choose would have been infringed by his victim. As seen by the philosophy of the legal science movement, this wouldn't actually be a crime because between the two claims, the victim's claim is superior as the criminal's choice to hurt the victim actively affected another person versus the victim's choice to not be hurt which only passively affected other individuals (well, this is an extreme simplification but I'm trying to be brief). Under your model here, it seems like there is not superiority of claims and that's why the system falls apart.

Azrael wrote:Not to whom. Against what? You charge me with a crime infringing on your free choice, if the judge finds me guilty, then what? What happens if I'm guilty?

mastered wrote:A punishment would be against the criminal's will. This presents a problem. How can one violate someone's choices in an "eye for an eye" way without becoming a criminal themselves, from someone's perspective? This is why the only solution would be, rather than punishment, prevention. We would somehow have to prevent people from infringing on another's rights. One option would be to have people apply to do things that could cause harm, but I don't have a definitive answer.


There are there main theories of criminal punishment:
1) Utilitarianism - This says that the purpose behind criminal punishment is deterrence and rehabilitation. Applying utilitarianism under a model of law based on choice, how would punishment be allowed as it infringed on others choices? Because it results in less loss of choice as an end result.
2) Retributivism - This says that the purpose behind criminal punishment is because the criminal deserves it. Applying retributivism under a model of law based on choice, how would punishment be allowed as it infringed on others choices? Because the criminal took away the right of choice from the victim and now will have the same action happen to himself.
3) Denunciation (Expressive Theory) – This says that punishment is justified as a means of expressing society’s condemnation of a crime. Applying denunciation under a model of law based on choice, how would punishment be allowed as it infringed on others choices? Eh, it's a bit of utilitarianism and a bit of retributivism.

Anyway, mastered, it seems like you need to step back, go over the issues you've seen with your execution of the choice model and have another go at it to work out the kinks. Be sure to post the updated version, I can't wait to see it.
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Re: My Ideal Legal System, or lack thereof

Postby mister k » Thu Nov 05, 2009 9:44 am UTC

One maor issue I have with this system is you seem quite happy to decide what rights people should have. For someone who seems to want a mostly consentual system, deciding heavily in favour on contentious issues such as the right to shelter health care, or indeed, an abortion will certainly alienate many people. I tend to find the version of libetarianism you espouse rather repugnant, because things I consider to be more important rights than the right not to be taxed are lost. I think that in a decent society we all should have the right to be fed, sheltered, have education and health care. None of these things would be intrinsic rights in your system, and would merely depend on the individuals ability to pay for them. Doing this will create a class system, and class systems must be enforced by law, because they are inherently unstable things. Even if this system was workable, I have to admit I would find it terrifying, but it isn't, so....

I come back to the principle question. If we cannot charge people taxes, or indeed really have a government, how on earth would we pay and maintain the judges?
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Re: My Ideal Legal System, or lack thereof

Postby Chen » Thu Nov 05, 2009 3:08 pm UTC

mastered wrote:The crime itself does not violate the criminal's choice; they chose to commit it. The accusation of it being a crime merely says that the criminal did something to another against their will.


Wait though. If the rapist simply defends with "I chose to have sex with her. She then pushed me off and ran away, thus violating my choice. Arrest her!" When conflicts occur between people's choices (or rights), we have LAWS to determine which is in the right. That simply doesn't work if you make violation of the choice the crime.

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Re: My Ideal Legal System, or lack thereof

Postby Azrael » Thu Nov 05, 2009 4:08 pm UTC

mister k wrote:I come back to the principle question. If we cannot charge people taxes, or indeed really have a government, how on earth would we pay and maintain the judges?

...
mastered wrote:This is why the only solution would be, rather than punishment, prevention. We would somehow have to prevent people from infringing on another's rights.

There's no use for the judges at all. They can't do anything. Your question is still relevant when rephrased to "how do you pay for the prevention".

Anyway, I agree with the sentiment that this concept is completely flawed and needs to be redrawn.

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Re: My Ideal Legal System, or lack thereof

Postby mastered » Thu Nov 05, 2009 5:52 pm UTC

MiB24601 wrote:the criminal's choice to hurt the victim actively affected another person versus the victim's choice to not be hurt which only passively affected other individuals


This works. It's something like what I was thinking of, but I found it difficult to express the difference between "active" effects and "passive".
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Re: My Ideal Legal System, or lack thereof

Postby MiB24601 » Thu Nov 05, 2009 6:41 pm UTC

MiB24601 wrote:the criminal's choice to hurt the victim actively affected another person versus the victim's choice to not be hurt which only passively affected other individuals

mastered wrote:This works. It's something like what I was thinking of, but I found it difficult to express the difference between "active" effects and "passive".


Except that it doesn't matter if you don't have a system in place to punish violations, as you have stated that punishments itself are violations of your system of law as well. This is why your execution doesn't work.
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Re: My Ideal Legal System, or lack thereof

Postby mastered » Thu Nov 05, 2009 11:10 pm UTC

Punishments are unnecessary, not because people wouldn't break the law despite prevention measures, but because victims would instead be recompensed - if possible, the violation would be undone (stolen objects replaced, etc.) or they would get help to recover. That's one of the reasons murder is severe - it can't be compensated for.
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Re: My Ideal Legal System, or lack thereof

Postby Azrael » Thu Nov 05, 2009 11:31 pm UTC

Where's the compensation coming from?

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Re: My Ideal Legal System, or lack thereof

Postby BlackSails » Fri Nov 06, 2009 2:46 am UTC

mastered wrote:Punishments are unnecessary, not because people wouldn't break the law despite prevention measures, but because victims would instead be recompensed - if possible, the violation would be undone (stolen objects replaced, etc.) or they would get help to recover. That's one of the reasons murder is severe - it can't be compensated for.


So what do you do about murder then?

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Re: My Ideal Legal System, or lack thereof

Postby Zamfir » Fri Nov 06, 2009 6:47 am UTC

mastered wrote:Punishments are unnecessary, not because people wouldn't break the law despite prevention measures, but because victims would instead be recompensed - if possible, the violation would be undone (stolen objects replaced, etc.) or they would get help to recover. That's one of the reasons murder is severe - it can't be compensated for.

be careful that just compensation makes property crime (stealing etc) an extremely worthwhile gamble: if you get away with it, you win, if you get caught, you lose no more than you gained. In general your system seems to have problems with the concept of property. If two people claim to own a piece of land, how is your concept of free choice going to help decide who gets to build his house on it? "Active" and "passive" may sound nice, but only if you have already defined who owns the property. Defining who owns what in all kinds of situations is the majority of laws in most systems. What if I get invited to a place and then refuse to leave?

There are more problems with the passive/active difference, even if it helps in situation of one-sided violence. What do you do if someone resists your legal system and refuses to give compensation? In that case it's the legal system that actively violates their free choice. How about self-defense? Contract enforcement?

Of course, there are good reasons to allow active violation of choices in such situations. But by the time you have a system where people are free to do what they want as long they do not actively violate others, with a defined property system and exceptions to the active violence rule in case of law enforcement, you really not that far from the normal situation. The only thing missing is a government that enforces the law, and it's still very unclear how you plan to deal with that.

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Re: My Ideal Legal System, or lack thereof

Postby mastered » Wed Nov 11, 2009 7:26 pm UTC

BlackSails wrote:
mastered wrote:Punishments are unnecessary, not because people wouldn't break the law despite prevention measures, but because victims would instead be recompensed - if possible, the violation would be undone (stolen objects replaced, etc.) or they would get help to recover. That's one of the reasons murder is severe - it can't be compensated for.


So what do you do about murder then?


Help the people negatively affected by the victim's death.
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Re: My Ideal Legal System, or lack thereof

Postby BlackSails » Wed Nov 11, 2009 7:52 pm UTC

mastered wrote:Help the people negatively affected by the victim's death.


Sweet, so I can kill people without anything bad happening to me?

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Re: My Ideal Legal System, or lack thereof

Postby jakovasaur » Wed Nov 11, 2009 9:27 pm UTC

Mastered, I was willing to give you the benefit of the doubt as I read your first few attempts, given the fact that you managed to throw out a couple of legitimate philosophical concepts, but this is ridiculous. This system is not ideal by any justification, even one I would oppose, because it has no consistent principles, processes, or results. Give it up, man.

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Re: My Ideal Legal System, or lack thereof

Postby mastered » Thu Nov 12, 2009 4:00 am UTC

jakovasaur wrote:Mastered, I was willing to give you the benefit of the doubt as I read your first few attempts, given the fact that you managed to throw out a couple of legitimate philosophical concepts, but this is ridiculous. This system is not ideal by any justification, even one I would oppose, because it has no consistent principles, processes, or results. Give it up, man.


It is a principle, more than a system: the only crime is to intentionally infringe upon another's personal free choice in a way that affects them.
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Re: My Ideal Legal System, or lack thereof

Postby BlackSails » Thu Nov 12, 2009 4:47 am UTC

mastered wrote:It is a principle, more than a system: the only crime is to intentionally infringe upon another's personal free choice in a way that affects them.


The glaring flaw in that has been pointed out several times in this thread.

Its stupid.

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Re: My Ideal Legal System, or lack thereof

Postby Woegjiub » Thu Nov 12, 2009 12:02 pm UTC

mastered wrote:
jakovasaur wrote:Mastered, I was willing to give you the benefit of the doubt as I read your first few attempts, given the fact that you managed to throw out a couple of legitimate philosophical concepts, but this is ridiculous. This system is not ideal by any justification, even one I would oppose, because it has no consistent principles, processes, or results. Give it up, man.


It is a principle, more than a system: the only crime is to intentionally infringe upon another's personal free choice in a way that affects them.


If you do not enforce crime with punishment which makes the crime indesirable, you will have only anarchy, with everyone raping and killing each other for fun, and your principle will be ignored.
If you don't enforce the law, it may as well not exist.

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Re: My Ideal Legal System, or lack thereof

Postby AJR » Thu Nov 12, 2009 4:42 pm UTC

Woegjiub wrote:If you do not enforce crime with punishment which makes the crime indesirable, you will have only anarchy, with everyone raping and killing each other for fun, and your principle will be ignored.
If you don't enforce the law, it may as well not exist.

While I agree that without law enforcement, the law may as well not exist, the goal of sentencing does not need to be punishment, you can instead have a rehabilitative or restorative focus. Or you can go further, with concepts such as transformative justice, which takes a step back and tries to focus on causes of crime (such as poverty and social exclusion) and tries to prevent crime by dealing with those causes, rather than through the deterrent effects of punitive sentencing.

For the law to be effective, it cannot be "opt-in" and there must be some form of enforcement, but punishment is not the only basis for that enforcement.


Mastered: setting out the principles for an "ideal" legal system is all well and good, but you need more detail, in what you mean by both "free choice" and "infringe ... in a way that affects them".

On the question of "free choice", for the reasons just mentioned people cannot choose to not be bound by the law (however minimalist that law is), and there is the question of to what extent people can be bound by agreements that the decide to enter into (a completely free choice would allow you to ignore contracts you had previously agreed to.) And at what age are people deemed competent to make what choices?

And as for "infringe ... in a way that affects them", there is a need to decide what rights people have, and how to handle conflicts between those rights. While there are certain obvious rights (bodily integrity, for example), there are many that are less clear. Do people have a right to complete control over the products of their labour? If so, does this lead to a system of copyrights and patents? Can people own more land than they are able to productively use? Can people own land at all? Arguments about gun control are about the interplay of different rights.

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Re: My Ideal Legal System, or lack thereof

Postby Woegjiub » Thu Nov 12, 2009 11:07 pm UTC

AJR wrote:While I agree that without law enforcement, the law may as well not exist, the goal of sentencing does not need to be punishment, you can instead have a rehabilitative or restorative focus. Or you can go further, with concepts such as transformative justice, which takes a step back and tries to focus on causes of crime (such as poverty and social exclusion) and tries to prevent crime by dealing with those causes, rather than through the deterrent effects of punitive sentencing.

For the law to be effective, it cannot be "opt-in" and there must be some form of enforcement, but punishment is not the only basis for that enforcement.


Of course both of those options are superior - if applicable.
The main point of the fines and imprisonments is not to fine and imprison people, but to deter them from engaging in criminal activities in the first place.
One cannot have a purely rehabilitative/restorative system because it would be exploited, but you are right that a purely penative system is inhumane and unjust, especially when people are driven by their surroundings to commit crimes as they feel it is their only means of survival or lack the intellect to comprehend the negative repurcussions of their actions.


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