Some regulations ok under capitalism?

[DavidOdden]

Odden's argument was basically that our current legal system is fatally flawed in all three areas.

I would appreciate it if you would not misrepresent my position. There are numerous problems in the law, all of which can and should be remedied. Tell me where I said these problems are fatal flaws.

[Musashi]

The fact that legal work is largely a matter of individual judgment doesn't mean it is a matter of arbitrary opinion. For instance, the fact that different jurists will give different weights to the same factors doesn't mean their decisions were arbitrary. It simply means that people have different minds.

I completely agree. And pointing back to the original post, I would say this is a good reason to have regulations. The regulation serves as a framework. Hopefully this framework brings the jurist’s opinions closer together. The best possible outcome would be for all judgments to be identical.

The field of statistics has worked extensively on this issue. Prior to performing a test, we decide upon the degree of error we are willing to accept, call it an alpha value. If all parties agree to use the same alpha value and perform the identical methods and calculations then all parties reach the same conclusions. In effect the standards and process are regulated.

It works nicely with numbers, alas the affairs of men are far more complex. Regulations do not fit all circumstances. However this does not dismiss the value of regulation, just the imperfections of specific regulations.

[KendallJ]

I completely agree. And pointing back to the original post, I would say this is a good reason to have regulations. The regulation serves as a framework. Hopefully this framework brings the jurist’s opinions closer together. The best possible outcome would be for all judgments to be identical.

The field of statistics has worked extensively on this issue. Prior to performing a test, we decide upon the degree of error we are willing to accept, call it an alpha value. If all parties agree to use the same alpha value and perform the identical methods and calculations then all parties reach the same conclusions. In effect the standards and process are regulated.

It works nicely with numbers, alas the affairs of men are far more complex. Regulations do not fit all circumstances. However this does not dismiss the value of regulation, just the imperfections of specific regulations.

I am curious as to which regulations you think are good, and which are "imperfect". I think the debate here is that some feel reguations are imperfect, as such. Others seem to think it is a "nice in theory, and sometimes it works, and sometimes it goes terribly wrong."

Legally, regulation is about more than "running tests uniformly". It is the specfic criminalization of "inappropriate" methods and calculations, as such, regardless of their actual outcomes. Who is the "we" that gets that power exactly?

[KendallJ]

Until we reform our culture, there is absolutely nothing in the world that is going to stop juries from being persuaded by appeals to junk science and emotion. There is absolutely nothing in the world other than reforming the culture that will stop prominent businessmen from going out of their way to appease and win favor with those who very openly wish to destroy them. There is nothing in this world other than reforming the culture that will prevent the very people who DO value our country and DO wish us to be victorious in the war and ARE well-intentioned from engaging in the sort of suicidal and appeasing sort of pragmatism that is so sickerly visible in the Bush Administration's approach towards the thugs and terrorists and their domestic New Left fifth column allies. The only hope we have in the short term is to hold down the fort long enough to be able to make our case in the long run.

In the long run, if we fail to reverse the direction of the culture - well, we will be screwed in so many areas that a corrupt legal system will be just one of many problems.

Well, in concept I agree with you that no social system can stop a bad philosophy. But I wonder. While campaigning for "cultural reform", what exactly will you be campaigning for? Regulation / no regulation? income tax / no income tax? objective legal principles / non-objective legal principles?

In order to win this fight, you have to be for some things and not for others. So... where you do stand on regulation (the topic of this debate)?

[Musashi]

I am curious as to which regulations you think are good, and which are "imperfect". I think the debate here is that some feel regulations are imperfect, as such. Others seem to think it is a "nice in theory, and sometimes it works, and sometimes it goes terribly wrong."

I am in the "nice in theory, and sometimes it works, and sometimes it goes terribly wrong." group. I think the regulation that cars travel forward on the right side of the yellow line in the US is a darn good one. I would stretch that “sometimes” in this instance. I am glad that this regulation is adhered to an extremely large percentage of the time.

Of course if a hurricane is coming, and roads are vacant in one direction and grid locked in the other this regulation doesn’t make much sense.

I can’t deny abuse and flawed design as possible outcomes of regulation. But that does not mean that the concept of regulation is incurably flawed.

Legally, regulation is about more than "running tests uniformly". It is the specific criminalization of "inappropriate" methods and calculations, as such, regardless of their actual outcomes. Who is the "we" that gets that power exactly?

For one thing Government delegates the authority and power to enforce regulations.

Edited August 10, 2006 by Musashi

[Vladimir Berkov]

Legally, regulation is about more than "running tests uniformly". It is the specfic criminalization of "inappropriate" methods and calculations, as such, regardless of their actual outcomes. Who is the "we" that gets that power exactly?

One thing you have to remember is that much of criminal law (which Objectivists would support) is based on the criminalization of conduct regardless of its actual outcome. For instance, this includes all inchoate offenses plus any the fact that criminal law does not base criminal liability on only "bad" net outcomes.

Edited August 10, 2006 by Vladimir Berkov

[KendallJ]

One thing you have to remember is that much of criminal law (which Objectivists would support) is based on the criminalization of conduct regardless of its actual outcome. For instance, this includes all inchoate offenses plus any the fact that criminal law does not base criminal liability on only "bad" net outcomes.

Yes, but isn't that part of the issue under discussion? Does the fact that it exists in certain cases mean that it necessarily should exist in the types of cases under discussion? Your knowledge of law seems pretty good, but you seem to waffle between subjectivism (e.g. your discussion with Odden) and pragmatism (it works, therefore it should be). It's unclear to me as to where you stand on the subject. I know you don't seem to like the Objectivist position...

What I find odd is when disparate concepts that normally are used in various parts of the law are brought toghether to undermine the laws basic premises. For example, if I criminalize a "pre-condition" or "standard" in a particular industry as a part of regulation (let's say failure to inspect my fire extinguishers), and then prosecute it as strict liability issue, have I not essentially set up a situation where I am guilty until proven innocent? You enable this sort of thinking (wether you are guilty of it or not) by saying, "Well, strict liability exists, and regulation exists....", but blank out which cases, and why they would be valid in that case an not others, as if all legal concepts are simply pragmatic "tools in the toolbox" and because they exists as such, I can pull them out and combine them no matter what the consequences. That is why we (Odden, myself and other "strict" Objectivists) will gravitate to an proper philosophy of law discussion and you will continue at the level of "yeah, but this is how it works today..."

I found this excerpt from Wiki on criminal strict liability interesting. This happens to be a discussion of strict liability in English law, but it is illustative of the philosophical point.

It is used either used in regulatory offences enforcing social behaviour where minimal stigma attaches to a person upon conviction, or where society is concerned with the prevention of harm, and wishes to maximise the deterrent value of the offence. The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 AER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords accepted that the pharmacist was blameless. The justification is that the misuse of drugs is a grave social evil and pharmacists should be encouraged to take even unreasonable care to verify prescriptions before supplying drugs.

Emphasis is mine. This is my and David's point. If it [the legal concept] in practice operates unfairly, could it be something in the basic philosophy of its usage in this context that makes it so? If this is true, then it is not a "good in theory, but sometimes flawed in practice" but rather a "bad in theory, and inherently bad in practice" argument. It is a philosophy of law debate. Certainly your examples are helpful in integrating back but you need to start articulating your philosophy of law to justify your position.

For instance, I always prick up my ears whenever something like "encourage to take unreasonable care" is used. This is a philosophical error of the greatest proportions. "Unreasonable care" is an arbitrary term. What is the standard of "unreasonableness"? Reasonable means objective. Unreasonable, in practice, will mean arbitrary. What this phrase means in practice is that "we will hold the threat of arbitrary force over the head of a pharmacist to scare the living bejeesus out of him so that he won't hurt anyone." He cannot know if he will be punished for a certain action or not as, in practice, it will (not just "can") operate very unfairly. It is the unfairness that deters the pharmacist. You might argue pragmatically that this will keep the pharmacist honest, I will argue strongly that this is a monstrous way to do this, as it fundamentally corrupts the law and the very concept of justice. The arbitrary use of force in one aspect of the law will, if not checked, ultimately lead to the arbitrary use of force in other areas of the law. And it will do so, through the argument which you leave unchecked (the "we do it here, so why can't we do it there" argument) In fact, deterence can be acheived and in fact is especially well acheived through Objective means - which will be inherently "non-regulative".

Edited August 10, 2006 by KendallJ

[DavidOdden]

Unfortunately, the conclusion is not necessarily implicit in the law precisely because there do exist the specific details.

If you were thinking that I meant, one can reach a conclusion with no reference to the facts, that you be such a huge mistake that I can't even imagine you making it (since "conclusion derived from principle with no reference to fact" is rationalism). Not every conclusion is implicit in a law, for example conclusions about gravity are not implicit in homicide statutes. A conclusion regarding wire fraud is implicit in the usual homicide statute and the fact of someone committing homicide -- "these facts do not constitute homicide". Every (well-formed) statute is an adentification -- these facts are identified as murder, fraud, possession of a controlled substance: or, they are not so identified, depending on the particular facts and the definition of the concept that the person is charged with.

So when a homicide statute says that it is homicide if you unlawfully and knowingly cause the death of a human, then supposing that Smith knowingly causes the death of Jones and does so without legal sanction, Smith has committed homicide, and that conclusion is implicit in the homicide statute. Whereas, if that particular conclusion were actually stated in the statute, it would be explicit.

In other words, it is necessary for one toapply the principles to a very specific, unique set of concretes where the evidence is often limited and sometimes contradictory.

Right, but that is what it means to be implicit.

The law is not going to tell you how much weight you should give to one piece of evidence over another or whether some of the evidence ought to be disregarded. In the end, the proper application of the appropriate principles is a judgment call.

Ah, well I see the possible problem. By "the conclusion", I mean "the correct conclusion", not "the actual conclusion", since juries have the power to ignore the law and simply conclude "He's rich, he can afford to pay, I vote against him". The law has to presume findings of fact. Ideally, that is a matter outside of the scope of law (for example, the law should have nothing to say about the science of DNA identifications other than establishing an epistemological framework, and I suggest that the first 5 chapters of OPAR would make a good mandatory reading for jurors).

No combination of statutes can state all of the facts that describe "knowingly and unlawfully causing death of another human", but once you have concluded that there was a causation of death, that it was a human who died, it was knowing, unlawful, and that the accused is the agent, then you must reach the conclusion that the specific accused committed that particular murder. Bad juror epistemology is the main problem with judging evidence, which can be addressed in many ways.

[Musashi]

So when a homicide statute says that it is homicide if you unlawfully and knowingly cause the death of a human, then supposing that Smith knowingly causes the death of Jones and does so without legal sanction, Smith has committed homicide, and that conclusion is implicit in the homicide statute.

It is a huge challenge to construct a set of laws, that would address all the possible means and conditions where one person unlawfully and knowingly causes the death of another. If we could define an all inclusive law, it would be too vast to be commonly understood by all. (Heck I can’t even understand the tax codes).

There is a huge degree of subjectivity (by lawyers, judges and juries) in the evaluation of evidence presented in a criminal trail and there is also subjectivity in the interpretation of the law. It is no secret that you get what you pay for. A rich man receives the benefits of justice, a poor man is punished by it. Ironically doesn’t this seem like a Randian outcome? The dollar is what matters.

But does this lack of specificity, nullify the need to have a rule that says “don’t kill people”? No

Clearly issues can be raised for any regulation, but the true question centers on the rights of the individual. Would the world with this regulation (and its inherent faults) bring the rights of the individual to a higher place?

[DavidOdden]

For instance, I always prick up my ears whenever something like "encourage to take unreasonable care" is used. This is a philosophical error of the greatest proportions. "Unreasonable care" is an arbitrary term. What is the standard of "unreasonableness"?

Our friend epistemology is the root of this problem, and this one is filed under "ill-defined concepts and the misuse of well-defined ones". There are various standards proposed regarding proof, including "preponderance of evidence", "clear and convincing evidence" and "beyond a reasonable doubt". The latter is the prevailing one for criminal matters, and it is correct if understood to mean "proven", i.e. "certain" a la Peikoff ch. 5. There are various reasons why the "beyond a reasonable doubt" standard does not have the degree of certainty attached to it that it should (which is caused by psychotic instructions that leave jurors firmly convinced that "reasonable doubt" is a magical and incomprehensible legal concept). Here we have Richard Posner murking up the waters (854 F.2d at 1044). He starts out okay:

• Undefined and unelaborated, the expression "proof beyond a reasonable doubt" requires, and is (I believe) understood to require, that the jury be certain of the defendants' guilt
  

but then he confuses the issue by continuing:

• with this proviso: complete certainty - the certainty of such propositions as that cats do not grow on trees and that I have never set foot on Mars - is never attainable with respect to the question whether a criminal defendant is guilty of the crime for which he is being tried, and the jury should set aside doubts that it would be unreasonable to entertain given the practical limitations on attaining certainty in the trial setting
  

So in order to convict, we just need to be a little bit certain but not completely certain. Yeah, that's clear.

Now the only thing that could be (could have been) worse was the proposed Massachussetts death penalty standard (I don't think it's being considered now but a couple of years they were working on language to reintroduce the death penalty in Mass.) What they required, to impose death, is a new standard of proof, even stronger than "reasonable doubt", namely "beyond all possible doubt". This would then have been the legal enshrinement of the arbitrary whim: if you can say "I have no knowledge whatsoever that that would remotely suggest an alternative possibility, that the defendant is in fact innocent. Nevertheless, I can feel a doubt in my bones". Doubt could therefore come from reason, but it could just be there arbitrarily.

What we see here is serious corruption of concepts: the idea that there is something beyond reasonable care or reasonable doubt. What is beyond reason? Danged if I know, or care to find out.

[Vladimir Berkov]

Yes, but isn't that part of the issue under discussion? Does the fact that it exists in certain cases mean that it necessarily should exist in the types of cases under discussion? Your knowledge of law seems pretty good, but you seem to waffle between subjectivism (e.g. your discussion with Odden) and pragmatism (it works, therefore it should be). It's unclear to me as to where you stand on the subject. I know you don't seem to like the Objectivist position...

My point is not that that the fact that such an issue exists in another area of law means the issue is settled. I only mean to point out that the sweeping generalities often used on this thread ignore many real legal issues which would likely cause trouble for Objectivists. IE, situations where if the broad generality were adhered too it would require the abandonment of specific areas of law which I think Objectivists would want to exist.

As to strict liability, I agree with you that the entire concept makes me uneasy. In some areas (strict employer liability) the concept makes sense, as it is really an outgrowth of the idea of agency. But in other areas such as strict products liability I think the concept is flawed, although the alternatives to strict liability aren't great either.

[dark_unicorn]

I think there is a lot of confusion of issues going on in this thread, darkunicorn, so I'll try to sort them out in a coherent way so that we may focus in on a useful discussion.

There are three main issues here regarding the law.

1.) Substantive - this concerns what the statutes actually say on the books, plus the relevant case-law interpreting them.

2.) Procedural - these are the rules of legal procedure which the parties and courts must follow.

3.) Human Element - this concerns the personal decisions people make concerning the law in places where the law gives them discretion.

Odden's argument was basically that our current legal system is fatally flawed in all three areas. Your argument from what I can tell is that the procedural and human elements are what are leading to the problems.

I would say that you are misplacing blame on the rules of legal procedure which should instead be laid solely at the feet of the people involved in the legal system (aka the human element.)

The law doesn't state what outcome a jury should reach. If you don't like the OJ Simpson verdict the blame rests with one group, the jurors, who apparently you think were irrational in their deliberations. But this is not really an argument against our legal system. It is simply a claim that the general public (and hence jurors) are irrational. The proper solution is thus not to upend the legal system but to get the general public to think and act in a more rational matter. This is from what I can tell, the essence of what the Ayn Rand Institute tries to do.

Your proposal for "objectivity in the law" really has nothing to do with your claim that the system is biased in favor of plaintiffs. Whether the system is pro-plaintiff, pro-defendant, or neutral has nothing to do with whether the law is objective or not. You can have objective law which leads to any one of the aforementioned results.

Whether the system should be "tweaked" to realign the balance between plaintiff and defendant is a complicated question for legal scholars. There is no objectively mandated balance which must exist, outside the requirements of justice which in general terms, require that legitimate plaintiffs should recover and innocent defendants should not be forced to pay.

My posts tended to focus more on the Procedural and Human Element because my experiences and those of my family with the system usually are observed there, however I also have some serious problems with the Substantive element also. I am not quite an Objectivist, but I subscribe to pretty much the same view regarding issues of court precedent. Essentially you don't have court precedent without the human element, ergo you have set up a dichotomy between human beings and a substantive system created by human beings, and I am having a hard time figuring out why this is.

In regards to the OJ trial, the issue is that the system doesn't do this in just one instance (hense it was an example, and by no means the only one), but does this way too often to be a mere human element anomally. Furthermore, what good is identifying the irrationalism of those being selected from the jury pool if the set of laws that determine those selections give us no proof against it. The OJ trial brings this fact into it's full, ridiculously obvious result, but there are plenty of other cases where less obvious miscarages of justice go under the media radar.

As to your comments on "objectivity in law", I can not make a single bit of sense out of what you just said. On one hand you are saying that I could be correct that the system sets up a bias, and then you argue that this has nothing to do with objective law. How in the heck can you have an absolutely clear law and yet have such a garbled implementation system. We have a system that is supposed to protect defendents, yet seemingly by your own admission we have a protection racket going on in our civil courts. On the other hand we have a system that is also supposed to reward just plaintiffs, and yet I see lower judges being overruled by political demagogues on higher courts on legal arguements that only a transcendental idealist could claim to understand.

In conclusion, where is this complexity worship coming from? I'm not neccesarily saying that this is going to be easy, but I think you are multiplying things well beyond neccesity here, particularly in setting up this tricotomy that you have above. The Procedural Element and the Human Element are tied to the law, if one goes, it often reflects a weakness in another. Furthermore, human beings are imperfect, but when you have court after court upholding the same insanity, all the way to the supreme court, this is hardly an issue of mere human error or one-party bias. When injustice is upheld by all courts, we need to scrutinize this whole concept of "Blind Justice" and make certain that we aren't doing what I think we have done, and that is kidnap justice and hide it somewhere inside the law.

Edited August 11, 2006 by dark_unicorn