On 24 Feb, 03:15, Jenny6833A <
Jenny68...@aol.com> wrote:
> Jenny6833A (that's me, folks) wrote
>
> > The proper basis for laws should be "No _tangible_ harm, no foul." Where 'tangible' excludes 'being offended or embarrassed or ...."
>
> Waldo doesn't seem to agree.
Do you mean me? The examples you cite below came from my reply, not
Waldo's post as far as I can see As to whether I ultimately agree or
disagree, see the last para:
"I'm not saying for any of these points the claims are right - but I
say they are serious enough that they can't be just dismissed glibly
as "you falsify a vice into a crime".
So I'm saying that the statement of the rule needs refinement - and as
soon as you do this, you'll find it becomes much more difficult than
it may appear. I agree with all your examples of behaviour that should
NOT be criminalised - but to describe this abstractly (and laws need
to be reasonably abstract and general ) is tricky to say the least,
and the formulation as suggested I think does not capture it - it is
too wide in some cases and too narrow in others.
>
> By saying "tangible harm" I did not exclude reasonably predictable future harm of a tangible kind. I support safety regulations for nuclear reactors, laws requiring liability insurance, environmental regulations, payment of taxes, gun control, etc. In all these cases, the harm we seek to prevent (whether current or future) is highly probable and demonstrably real.
That's good to know, though I doubt that as originally formulated
these things would be covered - there can be potential harm which, IF
realised, will be tangible, but that does not make it tangible harm,
or so it seems to me. Not sure if the issue is that they are "highly
probable", or that this should be a criterion - rather, we combine
typically seriousness of risk and probability of it materialising -
hence safety regulation even in "low probability - high impact"
industries such as nuclear reactors.
>
> Your examples of BDSM movies and watersports in a restaurant don't seem to carry much weight. Yes, you may be offended outraged, or embarrassed by such stuff, but there are plenty of good reasons to prohibit them that don't rely on your (alleged) personal emotional trauma.
You think so? OK, maybe sanitation rules in the watersport example,
but they can use plastic blankets I suppose, and quite frankly, even
more common sex is not something I necessarily like to see practised
next table when I want to have a dinner.
Nor would I base it on my "personal emotional trauma" - but nobody
does, at least not in my experience. When people say that they want
behaviour X prohibited because they find it offensive, this is in my
experience always just shorthand for: I don't think it is good for a
society to be like this". Just have a look e.g. at the "arguments" the
homophobe lobby brings - this is not: I just feel offended by gay
marriage" but "I am concerned about the survival opf an institution
such as the family which plays an important role for social cohesion
and raising kids".
Now, you have a choice. You can say that this is nothing but "after
the fact" rationalisation of personal emotional reaction - fine, but
I'm pretty certain the same charge can be levelled against prohibition
of Snuff movies (where the killing is merely enacted, of course) or
the watersport example - it will be possible to make some tenuous link
to more general social harm, but that will be possible with all of
these claims.
Or you accept them, and then you need a better demarcation why they
should be in, and others not.
And what with my example of harm to the environment that does not
impact on humans? Just out of interest...
> I defined my term 'tangible harm' as excluding 'being offended' or 'being embarrassed' or ....
That is one of the problems I have with it. Privative definitions are
always problematic, and hence considered "bad practice" in most
treatise on methodology. If you define "mammal" as "not a fish", you
don't learn a lot about mammals - and you are in danger of creating a
false sense of consensus: we could all agree that a fish isn't a
mammal, and still some of us think that insects are mammals... Same
here, an easy agreement on the specific examples we don't think of as
harmful (being gay, Muslim, atheist etc) could hide that we do not
mean at all the same thing when we say that "tangible harm only"
behaviour should be criminalised.
>
> First, I'll stipulate that such emotional upset can be absolutely real. Crucially, emotional upset can also be convincingly faked. There's no way to tell the difference.
Increasingly there is, fmri for instance, but that 's by the by (and
I'm on record in my professional capacity against the use of fmri in
courts anyway :o))
>
> If you're familiar with the term 'brainwashing' you'll agree that humans can be conditioned to have strong, negative, emotional reactions to just about anything -- including, for example, the sight or smell of red roses.
>
> If such an emotional reaction is real, does that mean that I must not grow red roses in my front yard? Am I required to defer to someone else's social conditioning?
>
> If someone convincingly _fakes_ a strong, negative, emotional reaction to the sight or smell of red roses, does that mean that I must not grow red roses in my front yard? Am I required to defer to someone else's _>pretense_ of social conditioning?
A clear "no" to the second, but I'm not sure that we can get a good
general rule from it. There are lots of behaviours we make criminal
even if it can be difficult to prove if the harm occurred. Rape with
its notoriously low conviction rate is a good example. I for one was
quite happy that it was rightly extended to marital rape, even though
the proof of the lack of consent is even more tricky than in your
example a reaction to roses (which can be tested, after all, now, and
was not just a mental state I had in the past)
A qualified "no" to the first - but I don't think that it has to do
with the criteria under discussion. If you grow roses and someone with
an allergy suffers an allergic reaction from it, then that is for all
intends and purposes a "tangible harm", so by your definition shoudl
be covered. The issue here is simply that "being a tangible harm" is
always only a necessary (at best) , not a sufficient condition to make
behaviour illegal, and there are lots of reasons why we often permit
behaviour that causes harm. Consent is an obvious one, protection of
other good another (hence the right of the police to inflict harm on
people)
In the roses case, it is simply efficiency - and hence the recognition
that laws tend to cater for the majority (if almost everybody were
allergic to roses, they'd be most probably a prescribed plant) and the
ease with which you can avoid being subjected to that harm (which
brings us partly back to consent) : If I walk into a rose garden, I
give implicit consent to be exposed to roses. As long as I can easily
avoid it, that's my problem.
> Now, admittedly, aversion to red roses is rather uncommon. Let's try a few examples of the every day kind that cause emotional upset in some fine (or not so fine) Americans, Brits, etc: gays, gay marriage, atheism, atheists, Muslims, blacks, Hispanics, nudity, and so on.
>
> In none of those examples can an opponent demonstrate tangible harm of the sort that Jefferson had in mind when he said,
>
> "It does me no injury for my neighbor to say there are 20 gods, or no God. It neither picks my pocket nor breaks my leg."
>
> As far as Ol' Tom was concerned, injury meant financial harm or physical harm. He's talking tangible, demonstrable, unfakable harm. He's not talking about real or faked emotional upset.
>
> I'm an active nudist and nudist activist. I've been in half-a-dozen fights over the years in which some group of outraged (or seemingly outraged) assholes try to close down the local clothing-optional beach. They never NEVER allege any harm to themselves or others, now or in the future. They don't because they can't.
That's not my experience - there is typically "something" that looks
in a bad light like a "social glue" argument - and they are at least
of the type you may want to use yourself with snuff movies etc. In the
case of nudity, the argument I have heard (rarely, as in the
countries I know best, Germany and the UK, it is somewhere between
accepted and actively promoted) is the increased sexualisation of
society and with that increased violence against woman etc etc. NOT
that I say that these are convincing, mind, just that they have the
same form as arguments you may want to avail yourself of
>
> It's always "Nudity is immoral, therefore it must be stopped." "I'm outraged that such horrors are taking place, therefore those bare people must be arrested and jailed." "I am deeply offended by such goings on, >therefore it must be stopped." And there's always the staple. "It's the children!" is uttered incessantly and with great emotion but without any explanation of what "the children" have to do with the matter at hand.
What do you make of the "naked rambler", who has gained quite some
notoriety in my country?
http://en.wikipedia.org/wiki/Stephen_Gough
While I think the criminal law is entirely inappropriate to deal with
him, he is not restricting his activity to a secluded beach but in the
open.
If you think that his case is at least less obvious an example for
lawful behaviour, then the crucial point in your example has again
nothing to do with harm per se, but by the ease with which anyone
who objects can prevent the harm from coming his way if so desired
(that is, it is restricted to secluded spaces of like-minded people -
again a consent issue) .
Your quotes of Scalia and Kennedy go into that direction. Now,
speaking just for myself, I would rather not have naked people running
around in shopping malls, theatres, my lectures and other public
places, not due to "moral" concerns (I really could not care less) but
aesthetic ones. I full accept that this is as intangible as "moral
offence" and a result of cultural conditioning (think of the Ferengi
in Startrek where the norms for females are the other way round) but
it does contribute to my quality of live. So again the issue seems to
be not if it is harm or not, but one of "who can reasonably be
expected to take the "costs" - and that could be e.g. that if nudists
want to be naked in a designated area that I can avoid, the cost is
reasonably on me to avoid it, while the "cost" to find such an area
etc is reasonably on them (that is no nude persons in my lectures
e.g., unless explicitly instructed to do so for sound scientific
purposes)
No problem with that, but then again your original proposal would need
to incorporate this. The focus is away from the question of harm to
"what minimisation of harm strategy is the most sensible, giving
actual numbers of people and their preferences in a population".
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