4 ms·

Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not using nerd as an insult, just as a general description of a too strictly logical frame

by roel_v 15y ago

Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not using nerd as an insult, just as a general description of a too strictly logical frame of mind) The point is not that everybody is always in some form of violation, the point is in uncertainty. There are always cases where to facts don't clearly map to the rules as they are written down, or where the facts are unclear or open for interpretation. In those cases, even specialists can't say if something is 'illegal', for a broad definition of the word 'illegal'. Despite the huge amount of legislation and case law we have nowadays, still not everything is covered; in the past, there was much more uncertainty than there is today, because much less was codified. And to answer your question, yes, uncertainty at the margins is an unavoidable aspect of reality. This is also what bugs me about the commentary on the Megaupload case: people claiming that Dropbox might be next, because they too allow for sending data and don't have a way to search what's available. The fact of the matter is that it's about intent - the Megaupload people encouraged copyright infringement while hiding behind a thin layer of compliance veneer, whereas Dropbox doesn't, their main use truely is 'personal document storage'. Everybody who visited the Dropbox and Megaupload websites a few weeks ago could see so. Now the nerd reaction to the legal aspect is 'oh but there is no law that indicates the exact boundary between the two, so the Megaupload bust is illegal'. Back on planet reality however, softer interpretations of 'intent' and 'reasonable' etc. decide what crosses the line and what doesn't. Could Megaupload know in advance exactly how far they could go? No. Is that proof that our legal system doesn't work? No. If anything, it shows that people can get away with much, and that only egregious abuses wrt copyright infringement are prosecuted.

SilasX 15y ago
Yes, there was a false dichotomy, but it was on your side; I was just objecting to it. Me: People should be able to tell with confidence (not perfect 100% confidence) whether they're breaking the law, yet today, nobody can have anything close to this. You: That's an impossible ideal, the law performs about as well as it can be expected to. Me: It's unreasonable to expect better? So everywhere people have been that uncertain of having violated the law? You: False dichotomy! You prove I was right all along! Me: Um ...?
- roel_v 15y ago
  To quote from your post: "Every society has always had every non-specialist in violation of some law" (emp mine) The false dichotomy is in the absolutist phrasing of the question. Because obviously, the answer is 'no, not every society, always and every non-specialist'. The more nuanced answer is 'yes, at the margins in every legal system there is some sort of uncertainty'. You claim "yet today, nobody can have anything close to this." which is nonsense. When I shoot somebody in the face because they took my parking spot yesterday, I can be as close to 100% sure as possible that I am guilty of 1st degree murder. But for cases where either the law or the facts can be explained in several ways, or where there is simply so much factors to consider or things to know about to have a reasonable idea of what a 'just' outcome is, there is some uncertainty, which cannot be avoided. Your original claim was "One of the most basic expectations of the legal system is that a citizen should be able to know, with confidence, whether they're breaking the law based on a reasonable search of available resources on the matter, without having to contact a specialist (lawyer)." Which of course depends on your definition of 'reasonable search', but which for an 'average' definition of 'reasonable' (i.e., of you ask 100 people, the average of those), is not true. For example there are many tax related matter that are highly specialized, and for which it is completely reasonable to expect people to use professional services to make sure they get it right. Or, as another example, legal procedure - there are so many rules and customs that it's perfectly reasonable to not expect an average citizen to be able to figure it out, and require a licensed lawyer be used to perform certain tasks in legal proceedings. Etc.
  - SilasX 15y ago
    You're showing the same kind of insubstantive pattern-matching I've come to see and expect from supposed legal experts. Here, you see an "extreme" argument and assume, purely on that basis, that there must be something wrong with it, and the truth is in some kind of "middle". But let's trace back what the actual exchange was. 1) I said (trying to start from a more general, uncontroversial figure of merit) that one sign of a bad legal system is that it fails to let people know, with (imperfect) confidence, and without "experts", whether they're breaking the law. This means breaking any law: remember, it's not praiseworthy that people can be certain about one particular law. What matters is whether they're certain they're not breaking any law, because you only need to break some law to be punished, not a particular one. It's little consolation that my interpretation of the murder laws was correct if they string me up on bizarre endangered species ones! (Already you should see the irrelevance of your invocation of "but you can tell that killing over a parking spot is illegal", but perhaps I go that far given your legal expert self-identification and your contempt for the "geek" view!) 2) I then pointed out that currently, you can have no such confidence. This would be confidence that, "for all people, it is not the case that there exists one law that they are currently breaking (or breaking on a regular basis)". I substantiate this by pointing to the standard recommendation from experts. 3) You claim that it would be unreasonable to expect this of a legal system. (You further ignore the citing of the principle of "ignorance of the law is no excuse".) This would suggest that no society has pulled it off. But obviously, you can't defend such a position, so you substitute it (per the pattern-matching I mention at the beginning of the post) with the weaker standard that there is some uncertainty at some margins. But that was never in dispute! 4) So, it is clear that a) the standard I cited is reasonable, and b) many current legal systems violate it, making them no better at "the law" than the geeks whose legal expertise you ridicule, At this point I should add that geeks already have set up existing systems for "how to do it right". Rather than, say, expect that everyone should closely follow libraries of laws and cases, they have the RFC system, which provides a public, since point of reference that is constantly, pro-actively reconciled with conflicting notions, rather than waiting years for the supreme court to have someone go through the dance to get a case before them and give them an excuse to talk about it. No, it's not perfect, but it satisfies the basic requirements one ought to expect, in that it allows people to actually learn how to stay clear of conflict with a reasonable amount of effort and time.

by roel_v 15y ago

SilasX 15y ago

Yes, there was a false dichotomy, but it was on your side; I was just objecting to it. Me: People should be able to tell with confidence (not perfect 100% confidence) whether they're breaking the law, yet today, nobody can have anything close to this. You: That's an impossible ideal, the law performs about as well as it can be expected to. Me: It's unreasonable to expect better? So everywhere people have been that uncertain of having violated the law? You: False dichotomy! You prove I was right all along! Me: Um ...?

roel_v 15y ago
To quote from your post: "Every society has always had every non-specialist in violation of some law" (emp mine) The false dichotomy is in the absolutist phrasing of the question. Because obviously, the answer is 'no, not every society, always and every non-specialist'. The more nuanced answer is 'yes, at the margins in every legal system there is some sort of uncertainty'. You claim "yet today, nobody can have anything close to this." which is nonsense. When I shoot somebody in the face because they took my parking spot yesterday, I can be as close to 100% sure as possible that I am guilty of 1st degree murder. But for cases where either the law or the facts can be explained in several ways, or where there is simply so much factors to consider or things to know about to have a reasonable idea of what a 'just' outcome is, there is some uncertainty, which cannot be avoided. Your original claim was "One of the most basic expectations of the legal system is that a citizen should be able to know, with confidence, whether they're breaking the law based on a reasonable search of available resources on the matter, without having to contact a specialist (lawyer)." Which of course depends on your definition of 'reasonable search', but which for an 'average' definition of 'reasonable' (i.e., of you ask 100 people, the average of those), is not true. For example there are many tax related matter that are highly specialized, and for which it is completely reasonable to expect people to use professional services to make sure they get it right. Or, as another example, legal procedure - there are so many rules and customs that it's perfectly reasonable to not expect an average citizen to be able to figure it out, and require a licensed lawyer be used to perform certain tasks in legal proceedings. Etc.
- SilasX 15y ago
  You're showing the same kind of insubstantive pattern-matching I've come to see and expect from supposed legal experts. Here, you see an "extreme" argument and assume, purely on that basis, that there must be something wrong with it, and the truth is in some kind of "middle". But let's trace back what the actual exchange was. 1) I said (trying to start from a more general, uncontroversial figure of merit) that one sign of a bad legal system is that it fails to let people know, with (imperfect) confidence, and without "experts", whether they're breaking the law. This means breaking any law: remember, it's not praiseworthy that people can be certain about one particular law. What matters is whether they're certain they're not breaking any law, because you only need to break some law to be punished, not a particular one. It's little consolation that my interpretation of the murder laws was correct if they string me up on bizarre endangered species ones! (Already you should see the irrelevance of your invocation of "but you can tell that killing over a parking spot is illegal", but perhaps I go that far given your legal expert self-identification and your contempt for the "geek" view!) 2) I then pointed out that currently, you can have no such confidence. This would be confidence that, "for all people, it is not the case that there exists one law that they are currently breaking (or breaking on a regular basis)". I substantiate this by pointing to the standard recommendation from experts. 3) You claim that it would be unreasonable to expect this of a legal system. (You further ignore the citing of the principle of "ignorance of the law is no excuse".) This would suggest that no society has pulled it off. But obviously, you can't defend such a position, so you substitute it (per the pattern-matching I mention at the beginning of the post) with the weaker standard that there is some uncertainty at some margins. But that was never in dispute! 4) So, it is clear that a) the standard I cited is reasonable, and b) many current legal systems violate it, making them no better at "the law" than the geeks whose legal expertise you ridicule, At this point I should add that geeks already have set up existing systems for "how to do it right". Rather than, say, expect that everyone should closely follow libraries of laws and cases, they have the RFC system, which provides a public, since point of reference that is constantly, pro-actively reconciled with conflicting notions, rather than waiting years for the supreme court to have someone go through the dance to get a case before them and give them an excuse to talk about it. No, it's not perfect, but it satisfies the basic requirements one ought to expect, in that it allows people to actually learn how to stay clear of conflict with a reasonable amount of effort and time.