my year 7 maths teacher got arrested for child porn

[enwiabe]

Yes, but I am arguing that the only emotional argument that is acceptable in a law-making exercise is liberty (by the Harm Principle), they are mutually bounded by definition.

Other emotions are unnecessary because they will enforce moral codes on others.

Liberty is not an emotion. Liberty is a principle - an ideal. An infraction upon liberty causes you to feel sympathy for the victim. This sympathy generates any number of responses ranging from anger to disgust, to further pity for the offender and their lowly actions. And thus, delineating the emotive words from an argument based upon an infringement of liberty voids the humane aspect of it that governs how we act. If we delineate humanity from our laws then why are we making them in the first place?

[Collin Li]

Liberty is not an emotion. Liberty is a principle - an ideal. An infraction upon liberty causes you to feel sympathy for the victim. This sympathy generates any number of responses ranging from anger to disgust, to further pity for the offender and their lowly actions. And thus, delineating the emotive words from an argument based upon an infringement of liberty voids the humane aspect of it that governs how we act. If we delineate humanity from our laws then why are we making them in the first place?

No, tolerance is what you are talking about. Liberty (defined by the Harm Principle) is an emotional argument. I edited my post to provide a bit of further justification for why it is the only acceptable emotional argument in law-making.

[Galelleo]

Then we agree on the final conclusion, but I do not agree with referring to emotions and morals for arguments like these. If you argue that emotions are valid in propelling an argument, then the comparison to homosexuals is legitimate: a 100 years ago there was emotional dissent against homosexuality.

The point is that emotional and moral arguments are inconsistent. We should be thinking about a logical legal system that maintains liberty, rather than thinking about what is "wrong" or "right," because no one has The Book that says all on that.

But isn't this where it all stems from? Our human compassion and morality? Without our emotions. Without our emotional attachment to the declaration of human rights that effectively forms the basis of our laws, then why are we arguing the point?

It is from these emotions that we feel sympathy for the abused child and that we feel disgust towards those in society who would take pleasure from such acts - and - moving on those emotions, we act. We make the laws that see them rehabilitated.

It is with our emotions that we form the basis of our logical arguments. The two go hand in hand, in this debate anyway. What causes you to see the wrong in child pornography? It is your compassion for your fellow man. It is the emotion that you feel in seeing the innocence stripped away against a child's will.

The emotional dissent towards homosexuals in centuries past was a xenophobic fear. It was more of a "we don't understand it and because of that it must be terribly wrong so let's quash it out now". In this day and age we understand the attraction between grown adults and children to be morally defunct and unconscionable. As a society, we have learnt that two consenting males/females can have those feelings for each other. But what chance does a child have? And we feel pity, and we feel anger, and it is our emotions that rule our decision to stamp out child pornography.

So, yes, emotions have their place in this argument. They're the very reason why we're having it in the first place.

one could argue that we arent driven out of compassion for these things, but out of fear. We support this because we dont want these things happening to our own children... in the same way that, for example: we support laws against murder because we dont want to be murdered

[costargh]

Coblin, their has to be a connection between law-making and emotions because it is what defines us as humans. We have emotions. We act with emotion. When we commit a crime it is usually in a state of emotion.

Consider the legal system as it is now. Consider the pressure groups that are fighting for changes in the law. They are acting with emotion because they feel strongly for their cause. Eg. Voluntary Euthanasia.

To say that law making should be solely based on logic is just not realistic. How can laws be made on logical grounds when they are broken on emotional grounds?

[Collin Li]

The only emotion I support in law-making is liberty because of what I said before:

"I guess you could argue that liberty is the highest moral. It is the only moral that makes sense to be applied in law, because it is the moral that allows everyone to choose morals for themselves (where there is no absolute moral code, this is the most humble and humane option)."

[costargh]

Yes but one of the aims of law is to reflect the views of the majority of people. Of course you can not make laws that reflect the morals of everyone but to reflect the morals of the majority ensures social cohesion.

Maybe I am misinterpreting your use of liberty because I'm not too familiar with the word but if you're suggesting that it is "the moral that allows everyone to choose morals for themselves" then how does law fit in with that? If everyone chooses their own morals then they can not be bounded by a governing set of laws because they do not reflect their own morals.

[Collin Li]

I'm sure that's how the legal system works now, but my point is: why should it work that way? Why should we let emotional arguments propel an argument, considering that we all have conflicting moral viewpoints?

Liberty allows cohesion between different moral belief systems because there is the inherent property that you cannot harm one another without consent. This means everyone is allowed to choose to believe what they believe in, and do what they like, given that they are not going to hurt someone else. I maintain that the only grounding for emotion (in law) comes from the principles of liberty, and these emotions come from the concern of freedom for everybody, the acknowledgement of moral conflict, and therefore liberty allows individuals to operate under their own moral codes, and consequently: emotion from any particular personal belief set is irrelevant, because liberty will simply embrace them all.

***

In simple words, I mean this:
Okay, you have a particular set of personal beliefs. So what? Doesn't matter, I don't give a fuck as long as you don't want to impose them on me. I'm going to follow my set of beliefs, as long as I'm not hurting anyone else.

[costargh]

I'm sure that's how the legal system works now, but my point is: why should it work that way? It should work in a way that follows the humane principles of liberty. It should avoid emotional arguments because they are based on personal moral beliefs.

Liberty allows cohesion between different moral belief systems because there is the inherent property that you cannot harm one another without consent. To this end, everyone is allowed to choose to believe what they believe in, and do what they like, given that they are not going to hurt someone else.

I continue to maintain that the only grounding for emotion comes from the principles of liberty, and these emotions come from the concern of freedom for everybody, the acknowledgement of moral conflict, and therefore liberty allows cohesion between separate moral codes so that emotion from any particular personal belief set is irrelevant, because liberty will embrace them all.

Isn't that a bit idealistic?
The reason why laws are set in place is because people need to know what is right and wrong.
I understand what you are saying but in practice it would be farrrrr too flawed.
Hmmm let me put it to you in a legal studies way (LOL @ anyone who does legal reading this)

The Separation of Powers

Legislative Power given to parliament to make laws
Executive Power given to government to administer the law
Judicial Power given to courts to enforce the law

...
Your proposal would be a 'Legislative Power' because it has to do with the actual creating of laws.

Where your proposal goes wrong is the next step which is the Executive Power. How would you administer the law? Surely if you told people they could do whatever they wanted as long as it did not harm others in any way... there would be utter confusion and mayhem. Therefore you would fail to administer the law properly.

[Collin Li]

No. The current legal system does the job quite nicely. We only need to get rid of social stigmas that are propelled (I like this word :lol:)  by personal emotions and morals, which undermine individual liberty.

Murder, rape, theft and all, will remain as crimes. I am asking for a removal of crimes that do not fit under this "harm principle" definition of liberty. Victimless crimes, such as possession and use of drugs should be decriminalised under the principles of liberty. They are not crimes until the user actually does something adverse on society.

[brendan]

The reason why laws are set in place is because people need to know what is right and wrong.

No that is not necessarily so. Right and wrong according to whom? What is right and wrong? If the law has any purpose(s) at all it must be to protect individual liberty and personal autonomy.

Consider, the tort of battery which is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault.

"Any touching of another?s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass." [1]
"Every person?s body is inviolate, and that any touching of another person, however slight may amount to a battery" [2]
"the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man?s person being scared, and no other having a right to meddle with it, in any the slightest manner." [3]

This idea that a person's body is inviolate is one of the fundamental pillars of individual liberty.

Where your proposal goes wrong is the next step which is the Executive Power. How would you administer the law? Surely if you told people they could do whatever they wanted as long as it did not harm others in any way... there would be utter confusion and mayhem. Therefore you would fail to administer the law properly.

The principles of individual liberty inform what the laws ought to be, and what they ought not to be.

Judicial Power given to courts to enforce the law

No, that is not correct. The job of enforcing the law, is one for law enforcement (police). The role of the judiciary is to decide cases according to the law.

"The duty of a court is not to make law, or debate the merits of particular laws, but to do justice according to law. The oath taken by a judge of the Supreme Court of New South Wales includes the words ?I will do right to all manner of people after the laws and usages of this State without fear or favour, affection or ill will.? Thus judges swear to apply the existing laws and usages, not to unsettle them by critical debates about them and speculations about their future, and certainly not to develop new laws and usages. It is legislatures which create new laws. Judges are appointed to administer the law, not elected to change it or undermine it."[4]

The purpose of the rule of law is to protect individual liberty -

"The rule of law prevents citizens being exposed to the uncontrolled decisions of others in conflict with them. Powerful citizens are not permitted to use self-help against other citizens so far as their arbitrary might permits. Officers of the State are not permitted to imprison or otherwise deal forcibly with citizens or their property merely because they think it is their duty to do so. Mobs are not able to loot or lynch their enemies at will. Indeed Saint Augustine thought that without a rule of law States themselves were nothing but organised robber bands. The rule of law operates as a bar to untrammelled discretionary power....
The rule of law preserves for citizens an area of liberty in which they can live their lives free from the raw and direct application of power. It creates a framework within which the creative aspects of human life can thrive. The rule of law dilutes power; it diffuses it; and yet it also makes it more efficient. The rule of law prevents police officers trespassing on and seizing private property or holding citizens without trial or other hearing; yet it permits and facilitates the procurement of evidence in a regular way with a view to the convincing demonstration of criminal guilt in due course" [5]

The rule of law curbs the power of government to prevent it from becoming absolute and arbitary. As Chief Justice Murray Gleeson said, 'The importance of the rule of law lies partly in the power it denies to people and to governments, and in the discipline to which it subjects all authority.'[6]

[1] In re F (Mental Patient Sterilisation) [1990] 2 AC 1 at 73 per Lord Goff of Chievely
[2] Collins v Wilcock [1984] 1 WLR 1172 at 1177-8 per Lord Goff (then Robert Goff LJ)
[3] Blackstone?s Commentaries, 17th ed, 1830, Vol 3, p 120
[4] Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" http://www.austlii.edu.au/nz/journals/OtaLRev/2004/2.html
[5] Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law"
[6] Murry Gleeson, "Courts and the Rule of Law" http://www.hcourt.gov.au/speeches/cj/cj_ruleoflaw.htm

[costargh]

The reason why laws are set in place is because people need to know what is right and wrong.

No that is not necessarily so. Right and wrong according to whom? What is right and wrong?

Sorry I should have been more clear. It is one of the reasons why laws are in place.
Right and wrong according to the majority views of the public.

Where your proposal goes wrong is the next step which is the Executive Power. How would you administer the law? Surely if you told people they could do whatever they wanted as long as it did not harm others in any way... there would be utter confusion and mayhem. Therefore you would fail to administer the law properly.

The principles of individual liberty inform what the laws ought to be, and what they ought not to be.

Still, one could argue that crimes that don't fit the 'harm principle' still in some way affect society. Eg. Drug possession can lead to more widespread use which leads to greater levels of crime. Woulnd't it be better to stop crime at the stage that is the catalyst such is the case with drugs?

Judicial Power given to courts to enforce the law

No, that is not correct. The job of enforcing the law, is one for law enforcement (police). The role of the judiciary is to decide cases according to the law.

Its part of the study design and text books in legal studies. Take it up with VCAA.  I've just learnt what they have taught me.

Taken from text book
" judicial power- the power given to courts and tribunals to enforce the law and settle disputes"


Police enforce the law through the executive power by monitoring society and bringing cases to court but the judicial arm (courts) enforce the law by applying it to specific cases.

[brendan]

Taken from text book
" judicial power- the power given to courts and tribunals to enforce the law and settle disputes"

while that was from your textbook, "Judges are appointed to administer the law" was from High Court Justice John Dyson Heydon

according to the majority views of the public.

Generally speaking that's how laws are made, but I'm stating what the purpose of the law is, and what it ought to be. It cannot be that any proposal garnering majority support is prima facie justified.

Still, one could argue that crimes that don't fit the 'harm principle' still in some way affect society. Eg. Drug possession can lead to more widespread use which leads to greater levels of crime.

That does fit the harm principle, if you can show that it not only harms the individual consuming the drugs, but also other people who didn't consume the drug.

[costargh]

LOL.
Yes but I think its just the choice of word which is creating the problem. How would you describe the executive arm then if you don't agree with vcaa?

[brendan]

LOL.
Yes but I think its just the choice of word which is creating the problem. How would you describe the executive arm then if you don't agree with vcaa?

Simple, the Executive arm of government is there to execute the will of the Parliament.

[costargh]

Thats a circular definition. You would only receive half marks for that in legal