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‘Once we suffered from crimes; now we suffer from laws’

By skepticlawyer

… Tacitus, shortly after the Praetorian Edict, hitherto subject to an annual sunset clause, was enacted in perpetuum, thereby ending most substantive Roman legal innovation and, arguably, Roman societal and scientific innovation as well.

Hold that thought.

Law has limits I

Russell Blackford, toiling alone, has attempted to draw our attention away from the Melinda Tankard Reist v Jennifer Wilson defamation stoush. In this post, for example, he asks us to consider Jennifer Wilson’s substantive views, and (by necessary implication) Melinda Tankard Reist’s substantive views. Like Russell, I think the issues both raise are interesting in themselves. My reason for thinking so is simple: Melinda Tankard Reist seeks the imposition of new laws; Jennifer Wilson opposes the imposition of new laws. Part of the reason they disagree with each other so vehemently is a difference over law, and what should animate its enactment. Let me explain.

Law has two sorts of limits. The first concerns what one ought to do (with law). The second concerns what it is possible to do (with law). If it is true that Melinda Tankard Reist is a conservative Christian and seeks to impose new laws on that basis, then she is engaging in the first sort of (would be) lawmaking. This is known in the trade as a principled limit to law. Jennifer Wilson, by contrast, thinks that any proposed law should be subjected to empirical scrutiny, and that regardless of what one ought to do with law, what one is able to do with law is of greater importance. This is known in the trade as a means-end limit to law.

The core of the dispute between them turns on the means-end thinker suggesting that the principled thinker is using means-end research to achieve a principled aim. Hence the allegation of deception and duplicitousness when it comes to Melinda Tankard Reist’s religious beliefs. The (allegedly) principled thinker has responded by saying no, my principles are separable from the means-end arguments I make. My means-end arguments stand or fall on their own merits.

Now I find the tort of defamation endlessly fascinating, for the reasons Legal Eagle outlines in her splendid post The Streisand Effect. However, what I find even more interesting is a limits of law stoush, because, almost inevitably, limits of law stoushes reveal something fascinating about how we make and enforce our laws.

In law, if one is going to engage in principled reasoning, it is generally unwise to recruit means-end reasoning, and vice-versa. Thinkers who blur the two almost inevitably come unstuck. This is because the means-end thinker (typically an empiricist) is looking at outcomes, while the principled thinker is looking at what is right, which is of necessity logically prior, and focusses on intent. As should be obvious, they are approaching the problem from opposite ends of the snake. Perhaps I should add at this point that only one end of the snake actually bites.

A final bit of background: the best known argument that there is a principled limit to law is that given by John Stuart Mill, in his famous ‘harm principle‘. Many modern laws are enacted with the harm principle providing considerable ‘background radiation’. Unfortunately, the harm principle is so popular because it tends to produce good outcomes, and where it fails, the failures are controllable: the bad law can be excised with a sort of legislative surgical strike (although this doesn’t happen as often as it should, these days: as Tacitus complained, many bad and unworkable laws litter the books, sporadically enforced and expensive to maintain, until, eventually, they fall into desuetude). Other influential proposals for principled limits to the law do exist: for example, the suggestion that law must eschew certain kinds of otherwise valid moral reasons and that the law must be in some sense neutral.

Finding principled limits to the law, I maintain, is an elusive task. I could bore you all with why it is elusive, but since that was the subject of a 40,000 word Oxford M.Phil (Jurisprudence) thesis, I won’t go there. Instead, I want to consider some of the means-end arguments raised by both Melinda Tankard Reist and Jennifer Wilson. This is because the originating basis of this debate: to wit, the causal influence of media portrayals on public and private attitudes and behaviour — constitutes one of the thorniest problems in social science. It is a statistical and evidentiary nightmare. Building campaigns — especially for bans — when the evidence is not in is unwise: it’s just about the surest way to finish up with badly-drafted and ill-thought out legislation.

Right, that’s got all the bloody jurisprudence out of the way, on to the substance!

Jennifer Wilson (via Russell Blackford) raises the following issues:

I am also suspicious of her conflation of girls and women, when the two situations are entirely different and should be treated as such. Exploiting the sexuality of children (and children are sexual beings) is a whole other matter from the so-called epidemic of “sexualisation” and “pornification” of adults. I would like to see a journalist question Tankard Reist on her persistent conflation of the two. I believe it is deliberate.

We are sexual beings. Many of us, male and female, like to express our sexuality. It’s a big part of our identity. The ways in which we’ve chosen to do this have varied according to the style of the time. The ways some of us choose to do it in 2012 are, I would argue, no more or less scandalous than at other periods of human history. Yet a new sexual dysfunction called “sexualization” has entered the social discourse, driven initially in this country by Tankard Reist. She then gathered around her a motley crew of radical feminists and middle class moralists who tacitly ignore their considerable differences in the interests of the greater goal of fighting the twin evils they claim are destroying our society: sexualization and pornification.

[...]

Are Tankard Reist and her supporters in reality pathologizing all expressions of female sexuality? Genuine sexualization we may well get upset about, as a particular form of dehumanization, but are they using that word to obliterate the perfectly normal concept of female sexiness?

Does Tankard Reist believe that being sexy and feeling sexy is pathological behaviour outside of the marital bedchamber? And why does nobody ask her this question?

“Sexualization” and “pornification” are done to women, according to Reist. Women don’t choose to dress, work and play in ways that fit these pathological categories. They’ve been forced into them by men for male gratification. If you think you choose to wear high heels and a short skirt and learn pole dancing, you’re wrong. The patriarchy made you do it. If you think you like to show off your legs and breasts because it feels like sexy fun to do that, you didn’t make that choice, you know. You are actually so brainwashed that the whole concept of choice passed you by long ago. You are a victim.

If you want to look sexy because you’d like to have sex, if you earn your living as a sex worker or perform in porn, in short, if you express your sexuality in any way at all outside of marriage, you are dysfunctional, immoral or both.

Somebody needs to ask Tankard Reist just what she considers an acceptable public expression of female sexuality. I suspect the reality is, she doesn’t have one. For religious fundamentalists, there is no such thing. A woman must be modest and pure, but definitely not sexy and enjoying it.

What kind of a lesson is this to teach our girls about their sexuality?

Having thus far failed to take control of the sexy and eradicate its expression through the invocation of morality, defining it as a pathological disorder is the next step in the reactionary battle for control of female sexuality.

I’m hoping that the distinction between principled limits (‘a woman must be modest and pure’) and means-end limits (‘defining it as a pathological disorder’) on the (legal) expression or depiction of female sexuality is clear. Wilson’s implication is that if the first (moral) claim fails on the merits, then a second, empirical claim (still buttressing the failed moral claim) is being smuggled into the argument.

Law has limits II

That is obvious. Legal officials at various times and in various places have objectives and they need to find the best way of achieving them. Some might seek to end casual street violence, so impose stiff legal penalties on anyone caught engaging in such conduct. Some might seek to end demonstrable harms caused by alcohol or drugs through prohibiting their sale and consumption. Others might seek to meet housing needs by imposing minimum standards for accommodation on those who rent out their properties. Though they seek the best means of reaching their goals, they might fail and the failure could be dramatic.

In all the examples mentioned above the aims sought may not materialize. The stiff legal penalties imposed by those seeking to curtail street violence may lead only to an increase in violence as perpetrators reason they may as well be hung for a sheep as a lamb. The prohibition of alcohol consumption may merely drive consumption underground, failing in its purpose and succeeding only in adding to the stock of societal harms as further criminality incident on the prohibition grows. Property owners, rather than forking out for legally mandated improvements to their rental property, may simply take their properties off the market, resulting in fewer affordable properties available for rental and fewer needs met. In each case the law has overreached itself. Having observed the results of their efforts, the legal officials may conclude that it would have been better to have used other means or maybe even to have done nothing, to have tolerated the former level of harm, since their means of putting it to an end did not solve the problem aimed at, but exacerbated it. In pursuing the best result as they see it, they have achieved only the third-best and now the problem might be the embarrassing one of getting back to second-best.

These are familiar stories in skeletal form and illustrate the commonplace that the methods the law might use can simply misfire. There are limits to what the law can achieve because some of its tools are blunt. Some tools do not work, others are counter-productive; some exacerbate the problem they were supposed to solve. Knowing what works and what does not and what will be counterproductive is important knowledge indeed.

There ought to be a law against it!

Because principled limits to law are elusive, then means-end limits must be found. And when they are found, they had better be bloody good means-end limits, because the price of failure is high: the section above references Prohibition, some spectacular examples of failed policing, and the effect of various rent-restriction acts in both Britain and the US. Of the three means-end failures, only one has been largely abandoned: Prohibition, although no doubt Ron Paul and other opponents of the War on Drugs would argue (probably rightly) otherwise. The others are still around, cluttering up the books, gumming up the legal system, costing us a motza.

When laws are enacted on the basis of empirical arguments (what is sometimes called ‘evidence-based policy’), great care should go into researching the issue in question. This latter is particularly the case when the proposed law conflicts with another important legal doctrine. As should be reasonably obvious, Melinda Tankard Reist’s claims about objectifying advertising, child sexualisation and pornography (I am being careful to take Jennifer Wilson’s counsel and keep the categories separate) conflict with freedom of expression, a cherished value in Anglophone (common law) democracies, and self-expression, a cherished value in civilian (Roman law) democracies. Traditionally, putting freedom of expression or the right to self-expression to one side in favour of another claim, however strong, is subjected to ‘anxious scrutiny‘ by the courts. And with good reason.

A selection of claims

Melinda Tankard Reist makes various claims and engages in various campaigns. Here is a selection (culled both from the oganisation Collective Shout and her personal website):

  • campaign against Typo, a office supplies company, for the sale of porn themed novelty mugs and stationary.
  • A campaign against Kmart (the Australian version of Asda) for selling ‘sexualised’ knickers to girls. The press release boasts:
    “In one of the fastest responses to consumer complaints that we’ve seen, Kmart has withdrawn a range of underwear with sexualised slogans and issued an apology assuring customers they will not repeat the same mistake.The hashtag campaign #kmartsexploitation began when these photographs were shared on twitter. The Girls Xpress branded underwear featured slogans such as ‘Call me’ ‘I Love Rich Boys’ and ‘I love boys in uniform.’”

There are many others; I recommend further exploration. I have tried to showcase a reasonable variety, if only to illustrate that she does conflate Wilson’s categories as part of her broader campaign ‘against the objectification of women and sexualisation of girls in media, advertising and popular culture’ (Collective Shout’s strapline). That said, it is difficult to see how the ban on A Serbian Film contributes to her wider goals. There is a difference between a piece of arthouse cinema and a popular line in branded girls’ underwear.

The reason maintaining the distinction between Wilson’s categories is important is because the evidence supporting/undermining means-end legal limits for each is different. The research Collective Shout has itself compiled discloses this clearly, although I did my own literature review (Goddess bless LexisNexis and Westlaw and all who sail in them) to confirm my initial impression. Reist’s strongest claims for actual harm concern, unsurprisingly, children, particularly when it comes to child beauty pageants. These, it seems (based on the available research) introduce children to competition too early for them to grasp its meaning, with deleterious effects. The participants are typically younger than the youngest ages permitted in competitive sport, even in a controlled environment like, say, Little Athletics. Other claims are far more tenuous, and may even be contra-indicated. The claim that porn has a deleterious effect on its users and society more generally, for example, is particularly weak.

Why is showing harm so important? Because when one is making means-ends arguments, one has to do four things:

1. Show that the activity is harmful.

2. Show that the enactment of laws against it would reduce the harm.

3. Show that the enactment of laws against the activity would not damage other, valued activities.

4. Accept that even if the first three requirements are satisfied, impossibility/difficulty of enforcement may still mean ‘do nothing’ or ‘legalise, regulate and tax’.

The second requirement, it should be noted, is onerous. ‘About the same’ is not good enough. The reduction in harm needs to be material and quantifiable. If the law exacerbates the harm, or does nothing while costing a fortune, or achieves a little bit while damaging another, valued activity, then it has failed. See Law has Limits II, above.

When campaigners think there oughtta be a law, how do they go about it?

Very often, by not thinking very hard. This sounds cruel to Melinda Tankard Reist, but is not meant to be, for the thoughtlessness afflicts activists across the political spectrum. As someone with wonkish interests and experience, the process of campaigning seems to go like this:

1. An intuitive sense that a given activity is bad, for a variety of inchoate and unclear reasons. It is at this point — although much philosophy depends on intuitions — that the stupidity usually kicks in, becoming like a mistake made in the first two lines of a complex algebra equation: magnified, typically, at every step. When the hypothesis is poorly formed, then observations enlisted in its support can be seriously awry.

The intuition problem stems in part from a failure to appreciate that other people may not react to the activity in question in the same way, with the campaigner having great difficulty imagining him or herself into someone else’s head. When it comes to the objectification of adult women, for example (one of Wilson’s ‘categories’), we may be dealing with normal statistical differences both between men and women, and also statistical variation within the set, ‘women’. Many women dislike male attention, being ogled, say, or chatted up. They dislike porn and find it degrading of women. By contrast, many women like and want male attention. They have no problem with porn. There are also intermediate positions between the two.

The campaigner’s response, of course, is the one Wilson has already flagged: to argue that women who like porn or pole-dancing or whatever are victims of a form of false consciousness: that is, they are unable to see things, especially exploitation, oppression, and social relations, as they really are. It should be very obvious that this is an enormous claim, for embedded within it is one express argument: the pole-dancing and porn-loving woman’s mind is (a) unable to produce a sophisticated awareness of how it is developed and shaped by circumstances; and one implied argument (b) that the campaigner knows better than the pole-dancing, porn loving woman, and should decide for her. That’s where the law comes in, of course.

2. Realising that ‘I don’t like being objectified, so there ought to be a law against it’ won’t cut the mustard with policymakers, advertisers, politicians, business and legal drafters, the campaigner goes looking for a link between objectification and other harms.

This is the stage where the great bulk of the research cited by participants on all sides of this debate is at right now. The evidence points in fifty different directions. Much of it is very bad. Some of it has clearly been written by people who need desperately to read a statistics textbook. Tankard Reist’s book on grief after abortion, for example, is based on only 18 case studies. N=18, ladies and gentlemen or, the plural of ‘anecdote’ is not ‘data’. Others have no causality tests, or lack controls, or no regression analysis.

You are regressing…

Regression works by artificially holding constant every variable except the two the researcher wants to focus on, and then showing how those two co-vary.

Imagine you have 10,000 girls, 5,000 of whom have participated in child beauty pageants and 5,000 who haven’t. You want to see if there’s any meaningful difference between the two groups — in say, school test scores, or ability to delay gratification (the famous ‘marshmellow test‘), and whether any difference (there may not be one)  is attributable to participation in child beauty pageants for the first 5,000. Regression analysis converts each of those 10,000 children into a circuit board with an identical number of switches. Each switch represents a single category of the child’s data: her year one maths score, her year-three reading score, her mother’s education level, her father’s income, whether she comes from an intact family, the relevant affluence of her suburb, and so on. The statistician lines up all the children who share many characteristics–all the circuit boards that have their switches flipped in the same direction–and then pinpoints the single characteristic they don’t share. This is how the effect of that switch and, eventually, of every switch, becomes clear.

Be careful with that Leviathan, Citizens!

This, as you may appreciate, is a long, slow process. Many activists don’t have the patience. So they revert to item 1, and spend a great deal of time arguing that their choices are better than other people’s while getting entangled in complex debates over freedom of expression. If they catch the ear of lawmakers, of course, they may even get their much desired law.

And if the law is bad enough, we, the people, all suffer — likely from both crimes and laws.

33 Comments

  1. paul walter
    Posted January 23, 2012 at 1:07 pm | Permalink

    Must chew this over, it helps explain a few nebulous things at the back of my mind … Are “sexualised knickers” a bit like “nude photographs’? My goodness, what are these consumer goods going to get up to next?

  2. Jacques Chester
    Posted January 23, 2012 at 1:18 pm | Permalink

    Perhaps I should add at this point that only one end of the snake actually bites.

    Upcoming book title:

    Poo or Poison — A Treatise On Two Theories of Ethics.

  3. Posted January 23, 2012 at 2:27 pm | Permalink

    I know I’m involved in this but this post is damn, damn good.

    Thank you.

  4. Dave
    Posted January 23, 2012 at 3:17 pm | Permalink

    This was a cracking good read and should be required reading for political or moral activists from all parts of the political spectrum. Particularly those those who ‘sense’ a problem, ‘intuit’ a solution and ‘feel’ the righteousness of their activism. It is a shame that so much actual public policy is made on the basis of the most arbitrary of foundations. In this sense law/public policy is a lot like sausage making in that you simply don’t want to see it being done. Particularly if you value rigour and evidence.

  5. kvd
    Posted January 23, 2012 at 3:40 pm | Permalink

    I agree with Jennifer Wilson’s comment that this is a super post, and it is one I will bookmark for my continuing education. SL, et al, you are paid pennies and provide jewels.

    Russell Blackford’s post is on the merit of Jennifer Wilson’s substantive views; skepticlawyer’s post is on the differing approaches one might expect to have been taken by both Tankard-Reist and Wilson in forming their views. As RB says in comments “Who knows?” He also says in comments “I think the real issue in all this should be the chilling use of defamation law”

    I have no doubt the opinions are expressed honestly, and based upon the issues which interest you, and are expressed in good faith. But I find myself wondering just what that has to do with the particular point at issue (relying upon Ms Tankard- Reist’s own reported words here) that she objects to being described as “deceptive and duplicitous” regarding her views.

    Having never heard of either of the parties before this ‘hit the airwaves’ I must say I’ve held to the simple fact that if I were so described in my own tiny part of the universe then I would react most probably just as Tankard Reist has done, only more so. That is to say I value my reputation quite highly, and would seek to protect it by all means at my disposal.

    I have said elsewhere that Dr Wilson’s comment added nothing to her otherwise quite well put arguments, and for the life of me cannot see why at the very least she would not recognise that she has gone past logical argument, to suggest her ‘target’ is acting deceptively, duplicitously, in pursuit of her agenda.

    I’m just imagining should this ever get to court (and I sincerely hope not), that the judge gratiously hears both RB’s and SL’s eloquent words – and then asks “yes, but what has this to do with the case at hand? Has Ms Tankard Reist suffered significant reputational damage by the suggestion that she has acted deceptively, duplicitously?”

    Now I don’t pretend to know the answer to that question, but I’m politely suggesting posts on ‘the wider issues’, while most interesting and educational, do not assist in deciding that issue, and in fact might actually delay private settlement – at potentially (already?) great cost to one or both parties.

    And speaking of great cost, that my 2c worth. Thanks to SL for a really informative read.

  6. kvd
    Posted January 23, 2012 at 3:51 pm | Permalink

    Running out of 2c coins, but LE’s very telling comment on her earlier post

    whenever I think about poor Liskula Cohen, the words “NYC Skank” also come into my head

    might now come to be replaced by “Tankard Reist – duplicitous”.

    And I am quite certain that is not what was intended or wished for by Dr Wilson.

  7. Mel
    Posted January 23, 2012 at 4:43 pm | Permalink

    An old Yobbo post:

    “Similarly, psychologists have found that male subjects, immediately after watching pornography, are more likely to express misogynistic attitudes. But as professor Kendall points out, we need to be clear on what those experiments are testing: They are testing the effects of watching pornography in a controlled laboratory setting under the eyes of a researcher. The experience of viewing porn on the Internet, in the privacy of one’s own room, typically culminates in a slightly messier but far more satisfying experience—an experience that could plausibly tamp down some of the same aggressions that the pornus interruptus of the laboratory tends to stir up.”

    I think most chaps who’ve had to bring the freight train to a halt on the back of a dime (perhaps because of an untimely knock at the door or inopportune phone call) have felt some degree of generalised hatred towards womenfolk until such time until such time as the train recommences its journey. I wouldn’t make too much of it.

  8. Adrien
    Posted January 23, 2012 at 5:40 pm | Permalink

    If you think you choose to wear high heels and a short skirt and learn pole dancing, you’re wrong. The patriarchy made you do it. If you think you like to show off your legs and breasts because it feels like sexy fun to do that, you didn’t make that choice, you know. You are actually so brainwashed that the whole concept of choice passed you by long ago. You are a victim.

    This attitude is quite ubiquitous amongst orthodox feminists who lean to the ‘anti-sex’ end of that particular shitfight. The irony is lost on those who’d most gain from it. Likewise the alliance between ‘anti-sex’ feminists and the religious Right which Reist (kind of) embodies.

    Altho’ I reckon concern for the ‘sexualisation’ of children (how I hate that word) and possible warping effects of pornography and advertising bombardment have a certain legitimacy the objection to these things predates the current situation (eg Rene Denfield’s The New Victorians).

    I tend to have a certain sympathy with Camille Paglia’s vitriol against such as Andrea Dworkin which maintains that certain women have used feminism and the niche it has obtained in the Academy as a pulpit with which to express their antipathy to human sexuality. It is, she asserts, a continuation of Puritanism by other means. Perhaps Reist saw this and recognized a niche in the political marketplace. Feminism as a way of spreading the message of the religious right; an ideological insurgency.

  9. Adrien
    Posted January 23, 2012 at 5:43 pm | Permalink

    Slightly off-topic, but related, I was informed this afternoon that the UN has added Internet access to its ever bulging catalogue of human rights.

    I’m certain reps from Iran and China endorsed these with enthusiasm. :)

  10. Posted January 23, 2012 at 6:55 pm | Permalink

    Mel, your linky is borked and I have to deal with a delightful tax matter (gah) so won’t be around until later today. I’d be interested to see what Yobbo has to say, if you’ve got the link to hand.

    Thanks for your kind words and links everyone, I will respond in due course :)

  11. Mel
    Posted January 23, 2012 at 7:53 pm | Permalink

    SL, here’s the Yobbo link

  12. Posted January 23, 2012 at 11:40 pm | Permalink

    might now come to be replaced by “Tankard Reist – duplicitous”.

    And I am quite certain that is not what was intended or wished for by Dr Wilson.

    To any other UQ alumn of my and SL’s generation, she will forever be enshrined as “Tankard-Reist, Satanic Priest” after a hysterical cartoon series in the student mag where Father Damian Weist (Satanic Priest) joined the chaplaincy unit in the interest of a full faith diversity.

    Or would MTR find that offensive?

  13. Ripples
    Posted January 24, 2012 at 12:44 pm | Permalink

    What a cracking read, I now have to take this piece and apply it as I have a suspicion this is applicable to my thinking in regards to so many laws that are often championed by passionate pleas to prevent harm where the mechanism of harm is not clearly defined.

  14. March Hare
    Posted January 24, 2012 at 10:11 pm | Permalink

    A good article, but it leaves one with the impression that an activity that one ‘feels’ is wrong AND has evidence to show it produces harm (and that a law would reduce this harm) should be outlawed.

    I cannot help but think that as long as the activity is between consensual adults and the only people harmed are informed participants, then there is no justification for outlawing such a thing. No matter how most people feel about it.

    I’m not saying that is your position, simply that it’s the impression this otherwise outstanding post left me with.

  15. Posted January 25, 2012 at 6:35 am | Permalink

    Excellent post. Your division of principled and means-ends arguments about the limits to law brings to mind Jeffrey Friedman’s critique of libertarianism (pdf) and the “libertarian straddle”.

  16. Posted January 25, 2012 at 8:20 am | Permalink

    Must say my feeling is that “principled” and “means-end” approaches can actually work together (Hitch Hiker’s Guide to the Galaxy definition of intelligence roughly “can hold two conflicting ideas in the head simultaneously” being pertinent. Besides, I feel (real classics types can beat me over the head if I’m wrong) that much of the point of our way of thinking is reconciling opposites with dialectic, using the bits that are most appropriate at the time – be it in physics (wave v particle nature of photons) or indeed economics (using Adam Smith to critique modern “capitalist” economic systems). It’s why the “thesis, antithesis, synthesis” series exists.

    The particular issue discussed here is that the two positions are from people unwilling to become protagonists, will always be antagonists, people who, unlike most people on this forum, never say “much as I hate to admit it … ”

    To a certain extent the general problem of bad laws is that the general population, even the typical member of the intellectual elite, is /not/ actively involved in the political process, (which includes law making), so the politicians are generally facing an either/or choice with the loudest intransigent group winning, and the politicians only putting into the population their favored thesis or antithesis, never (or only extremely rarely) educating the population to the extent that the synthesis can be understood.

  17. Ripples
    Posted January 25, 2012 at 9:39 am | Permalink

    Mr Bath makes an excellent point above in regards to the politicians presenting favored and often limited materials to the populous in respect to laws.

    Thinking of that point the more cynical part of my thinking suggests this is where politicians don’t necessarily make good law but sometimes make popular law. The regular “tough on crime” stance comes to mind in politicians seeming to be doing something even if the real effects are not fully considered.

    My particular favorite example is the Australian Civil Liability Acts circa 2003 where they sought to address a personal injury/insurance crisis that technically didn’t exist. There was a problem with insurance given the collapse of HIH insurance and this led to many issues with insurance that had nothing to do with people actually bringing claims or the courts offering massive payouts.

    I may have to look up and include a reference a little later on the above claim.

  18. su
    Posted January 25, 2012 at 10:00 am | Permalink

    Is there a link to show which legal changes MTR proposes on pron and other images? I had a scout around on the blog and I can see they have made representations to the Senate Classifications scheme review and the recommendations of that review definitely took account of Collective Shout’s submissions. The one outcome that I can see that approaches a ban is that the review recommended upholding the states’ ban on sales of X rated movies by restricting their mail order distribution from the NT and ACT where they are legal. So in effect that is merely closing a loophole.

    I know she has been advocating the Swedish abolitionist approach to sex work. The evidence that this model actually makes women in the industry less safe is very substantial AIU. Decriminalization is not the panacea for all ills but it is a necessary precondition both for ensuring some degree of safety for workers and tackling the issue of genuine criminality in the industry.

    Wilson’s post does its own conflation: it conflates women’s sexuality (we can all agree that that should not be regulated) and the production of advertising images and a particular product, pornography, which is overwhelmingly produced in a male dominated industry. There is feminist porn and there is porn produced by women for women including lesbian porn, but this is only a small part of the market. Now there is a huge logical leap from considering advertising images and commercial media to equating that with women’s sexuality.

    I don’t think anyone would argue that advertising is representative of women’s sexuality and it is arguable for pron, depending on who made it and under what circumstances. If you read Jenna Jameson’s memoir, you would not conclude that the pron industry in which she participated was much concerned with reflecting women’s sexuality. I know this is a separate issue to what if any particular legal framework should be adopted but I thought this was a huge problem with the argument.

  19. Posted January 25, 2012 at 1:24 pm | Permalink

    You don’t have to convince me, Ripples!

  20. Posted January 25, 2012 at 7:01 pm | Permalink

    Is that what happened? I didn’t even know Su’s comment was there, bugger. I always look in the moderation filter (people do quite often get caught in that, and I have to let them out), but I must admit to not even checking the spammer… I usually just empty it out directly.

    Apologies to Su and anyone else if my carelessness (and akismet’s hunger) has meant that your comment got eaten completely!

    Back later. Birthday yesterday, mainlining caffeine today…

  21. kvd
    Posted January 26, 2012 at 5:32 am | Permalink

    people who, unlike most people on this forum, never say “much as I hate to admit it … ”

    DB@19 your very considered comment put me in mind of this. And page 119 also seems appropriate. Happy AusDay to all, and HB to SL for yesterday ;)

  22. Posted January 26, 2012 at 8:42 am | Permalink

    Thinkers who blur the two almost inevitably come unstuck.

    Building campaigns — especially for bans — when the evidence is not in is unwise: it’s just about the surest way to finish up with badly-drafted and ill-thought out legislation.

    When laws are enacted on the basis of empirical arguments (what is sometimes called ‘evidence-based policy’), great care should go into researching the issue in question.

    The second requirement, it should be noted, is onerous. ‘About the same’ is not good enough. The reduction in harm needs to be material and quantifiable. If the law exacerbates the harm, or does nothing while costing a fortune, or achieves a little bit while damaging another, valued activity, then it has failed.

    When campaigners think there oughtta be a law, how do they go about it?

    Very often, by not thinking very hard … the thoughtlessness afflicts activists across the political spectrum. As someone with wonkish interests and experience, the process of campaigning seems to go like this:

    1. An intuitive sense that a given activity is bad, for a variety of inchoate and unclear reasons. It is at this point — although much philosophy depends on intuitions — that the stupidity usually kicks in, becoming like a mistake made in the first two lines of a complex algebra equation: magnified, typically, at every step. When the hypothesis is poorly formed, then observations enlisted in its support can be seriously awry.

    The evidence points in fifty different directions. Much of it is very bad. Some of it has clearly been written by people who need desperately to read a statistics textbook.

    This, as you may appreciate, is a long, slow process. Many activists don’t have the patience. So they revert to item 1, and spend a great deal of time arguing that their choices are better than other people’s while getting entangled in complex debates over freedom of expression. If they catch the ear of lawmakers, of course, they may even get their much desired law.

    And if the law is bad enough, we, the people, all suffer — likely from both [circumstances] and laws.

    Congratulations SL!! I couldnt have said it better … and after you guys made the decision not to put up any more Gentle Macchia posts :)

  23. Mel
    Posted January 26, 2012 at 11:19 am | Permalink

    Don’t force me to take the, Mickey, LE ;)

  24. su
    Posted January 26, 2012 at 2:16 pm | Permalink

    @ LE and SL: That’s ok, the same thing was happening at LP and now I can’t even run rootkit hunter, so it might be a problem with my computer *gulp*. If I don’t respond again it is because I’m sorting it out,

  25. Posted January 26, 2012 at 8:08 pm | Permalink

    ROFL.

  26. J.B.Willoughby
    Posted January 31, 2012 at 5:39 pm | Permalink

    First of all, I would like to add my voice to the chorus: a very good piece Skepticlawyer. I am new to the topic. But I found the post clear, informative and readable. This is a fine achievement.

    Though, I do have a question. If the answer is obvious, betraying my lack of experience with the topic, I apologise in advance.

    The question is simple. What do you mean by “harmful?” Particularly when you use it here:

    “[W]hen one is making means-ends arguments, one has to do four things:

    1. Show that the activity is harmful.” (My emphasis)

    The reason I ask is a little more complex. Under the heading “Law has limits 1” you claim, “In law, if one is going to engage in principled reasoning, it is generally unwise to recruit means-end reasoning, and vice-versa.” Now as I understand it, the key difference between these methods of reasoning is that the principled variety is concerned with what one ought to do and the means-end variety is concerned with what one can do. So to bring these two points together, when we’re talking about what we ought to do, we shouldn’t employ arguments about what we can do. If my interpretation of this is wrong, I have made a mistake about the passage I quoted above and probably need your help to explain it.

    Now what I suspect is, it will be very difficult to give a definition of ‘harmful’ that does not involve a normative element. This is to say, I suspect, at some level, to determine what is harmful, we must make a decision about what we ought or ought not to do. So rather then both types of reasoning being at different ends of the snake, so to speak, they are actually at the same end. The means-end reasoning being a type of principle reasoning. Another way to put this: I suspect means-end reasoning is more or less harm-principle reasoning.

    But I don’t really know. As I said, I am new to the topic and am happy to be wrong.

    I look forward to your reply, (but do not feel compelled to respond quickly if it is inconvenient)

    J.B.Willoughby.

  27. Posted January 31, 2012 at 7:19 pm | Permalink

    Mill’s ‘harm principle’ is the elevation of a certain sort of means-end reasoning to the status of a principle, so well-spotted there, JBW!

    I say ‘certain sort’ because Mill excluded ‘self-inflicted harm’ from both the harm principle and his conception of ‘general utility’. Modern means-end arguments seldom do that; they make arguments (with varying degrees of strength) against allowing people to harm themselves. That is part of the reason why booze and cigarettes are expensive, and why drugs are still illegal. It tends to be only libertarians who partly (Ron Paul) or wholly (Gary Johnson) endorse Mill’s original harm principle, arguing for it to form the underlying rationale for all legislation.

    The problem — as you’ve alluded to — is that once Mill is elevated to principle status, there’s an immense conflict over what is actually harmful in order to flesh out the principle. That’s one of the reasons why discovering principled limits to law is elusive. Instead, means-end reasoning accepts that the definition of harms will inevitably shift, and that one of the most important parts of public debate is to scrap over the ‘what harm is’ and then ‘measure’. This involves accepting that you will never be able to nail down what constitutes harm completely. Your understanding is always provisional. Mill is often ‘background radiation’, but is not central.

    An interesting aside from my research: Mill’s exclusion of ‘harm to self’ was weakened over time thanks to the development of publicly funded healthcare throughout the Western world. People are reluctant to allow individuals to harm themselves in any way they like once it is clear that the taxpayer will be forced to foot some or all of the bill consequent on that harm. This is the basis for the moral panics over obesity for example – it is clear that it’s going to cost the NHS, and by extension the taxpayer, a small fortune, with no upside. The constraints on smokers, by contrast, while still expensive for health reasons, garner the state far more tax revenue than is expended on health care for smoking related ailments. In the figures I looked at last year, the government spends about £3 billion annually on NHS care for smokers, but earns about £9 billion in revenue from the heavy taxation. Obesity, at present, has no financial upside, but don’t be surprised if — very soon — we start seeing heavy taxes on ready meals and other foodstuffs with a high sugar and fat content.

    Why is it dangerous to mix the two forms of reasoning? Ye Olde Is-Ought Problem. Just because something is a certain way doesn’t mean we ought to do x or y or whatever about it. There’s this giant roadblock with the words ‘David Hume’ written on it in the way.

  28. J.B.Willoughby
    Posted February 1, 2012 at 1:32 pm | Permalink

    That was very prompt reply. Thank you. I do have a follow up question, but feel no obligate to educate the curious layperson. I just happen to have some free time on my hands.

    So, if I understood your reply properly, you are saying that firstly, the different from Mill’s definition of harm is that it is elevated to a principle whereas the means-end definition defines harm as a concept that will never be wholly settled, that is, it leaves it open to public debate. And secondly, that this difference allows means-end reasoning to avoid the is-ought problem raised by Hume.

    My confusion is that I do not see how the difference in the definitions of ‘harm’ or ‘harmful’ allow means-end reasoning to avoid the is-ought problem. If we look at your four steps of means-end reasoning:

    1. Show that the activity is harmful.
    2. Show that the enactment of laws against it would reduce the harm.
    3. Show that the enactment of laws against the activity would not damage other, valued activities.
    4. Accept that even if the first three requirements are satisfied, impossibility/difficulty of enforcement may still mean ‘do nothing’ or ‘legalise, regulate and tax’.

    we can see that this line of thinking is designed to generate an ought. In this case the ought is that we ought, or ought not, to change the law. Now keeping in mind that it generates an ought, and also keeping in mind the is-ought problem, the question becomes, how does this line of reasoning generate the ought without making the is-ought fallacy?

    To give a hypothetical example of the type of reasoning that I believe goes on in the generation of ‘harmful’: imagine that I had very good statistics on the effects of murder. These effects include psychological distress, lower economic productivity and lower overall satisfaction from the lives of victims’ children. All these facts lead me to conclude that murder should be discouraged.

    The generation of this should sentence is a typical example of the is-ought fallacy. So again, I am confused about how leaving ‘harm’ or ‘harmful’ open avoids the is-ought fallacy even if it does leave the problem until later.

    Another way to say this is that harm is a normative term. It indicates something, to be blunt, bad. So no fact (or facts) alone indicate/s harm. You need a normative claim as well. Therefore leaving the notion of harm open does not avoid the is/ought problem, it just puts it off until later.

    Or another side of the same problem is that you claim the elevation of harm to a principle produces “an immense conflict over what is actually harmful.” And then say, means-end reasoning just accepts “that one of the most important parts of public debate is to scrap over the ‘what harm is’…” But the ‘immense conflict’ and the ‘public debate’ seem to be to be the same thing. And so, again, leaving harm more open does not seem to resolve anything. It just pushes the problem down the road, so to speak.

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