Apologia from a Phone-Jammer

Let me suggest that where he erred (0.00 / 0)

was in failing to exercise self-control.  The rule of law applies primarily to the behavior of the agents of government.  That is, power of the state is to be exercised within strictly defined limits.  Individual behavior is supposed to be guided by moral principles that the individual has internalized. We do not need the state to tell us how to behave.

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by: hannah @ Tue Jan 15, 2008 at 05:44:51 AM CST

Weasel words - see in it what you might like to see. (0.00 / 0)

I think that "behave" is too general here to stand scrutiny. Take something horrible - slavery. Laws can't make you think good thoughts about slaves, if you have them, but it can certainly force, and ought to (moral term) force changes in behavior, namely that you can't have slaves or face legal sanction. Self control as a goal is fine but speed limits are also appropriate, and not only for teenagers (those in the process of developing self-control). I don't think that any of us would like to live in a society in which all the moral constraints were generally shared. The purpose of a society is to be able to function when there is considerable difference in those things we refer to as self control. Using the legal structure to constrain behavior is as old as government. I am glad that the state tells many people how to behave - Jeffrey Daumer, for instance.

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by: xteeth @ Tue Jan 15, 2008 at 07:40:47 AM CST

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Prohibitive vs. permissive (0.00 / 0)

I think the distinction lies in the fact that the law, as it applies to the state and its agents is permissive.  That is, it describes what the state may and must do.  When it comes to the individual, the law is prohibitive and defines what the individual may not and must not do.  That is, once it has been certified that a person is qualified to drive, for example, the law prohibits excessive speed and other unsafe behaviors.  There are some people who would like to limit the individual to only those behaviors that are specifically guaranteed as "rights" and that's where we have a brewing conflict.  

Individual liberty is not something that some people are keen to recognize.  They actually prefer to posit that there is no self-control because that justifies the imposition of social control.

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by: hannah @ Tue Jan 15, 2008 at 09:16:28 AM CST

[ Parent ]

Interesting (0.00 / 0)

But doesn't the constitution (Bill of Rights) say negative things like there shall be no law abridging freedon of whatever speech, religion. It could have said, according to your formulation the state shall encourage freedom or something but that lacks specificity. I think it is also the case that someone without a driver's license can be charged with breaking driving laws as well as not having a license but I could be wrong about that. Certainly after a revocation of your license, all the laws still apply. Drunk driving with a suspended license comes to mind. I wish that you were correct though. One of the common delemmas of our times is what to do with people who do something that society hasn't codified yet but that everyone agrees is wrong - like hedge funds perhaps. Destroying a company that had the bad luck to sock away money for a down turn is taken apart, that cushion sold off and the pieces sent back with huge debt.  

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by: xteeth @ Tue Jan 15, 2008 at 16:21:18 PM CST

[ Parent ]

OK-- (0.00 / 0)

First off, there was concern among the framers that by including these absolute prohibitions of what the agents of government could NOT do, they would be providing a rationale for the argument that the enumerated "right" are a maximum, rather than an absolute minimum that could not be breached, as has indeed happened, and that all of the other "rights" or entitlement that people have by virtue of being human (human rights) would be disregarded as less important.

Prohibiting someone to operate a dangerous machine without that person having first demonstrated the capacity to do so safely is merely an example where the state and the person come together.  The state is empowered as part of its obligation to ensure public safety to "permit" certain dangerous activities when certain conditions have been satisfied.  As Justice Kennedy makes clear in his lecture on the rule of law, the agents of government cannot be arbitrary in exercising this power.  If the person has met the conditions of the permit, the agents of government MUST issue the permit or license.  (This is the difficulty that the people who want to deny drivers' permits to people who are not citizens are running into.  There is no evidence that citizenship is in any way related to driving competence.  People have a right to move around the country.  It's not related to nationality or even age or any other characteristic.  Moving around while encased in a machine is different, but only to the extent that the machine's characteristics have to be taken into account).
You may wonder how come the air lines can require a picture I.D. before they let someone on a plane.  The answer is simple.  Although they are a "common carrier" and are prohibited from discriminating on the basis of "protected" characteristics (gender, age, national origin, religion, etc), as a private entity they can enforce their own conditions, even refusing to sell someone a ticket.

Privatization has been a convenient strategy for evading the "equality" standards that government entities (public corporations) are required to meet.

Governments are permitted and required to perform certain functions (that's the reason for "may" and "must" in the law) and individuals are prohibited from performing certain actions (crimes) that injure or threaten to injure someone else.

The conundrum that Bush/Cheney have brought forward is how to deal with government agents that don't perform.  You can't punish someone for something they haven't done.  All, it seems, you can do is remove them from office.  But that requires impeachment.

Though, I've been wondering if these particular clowns could be charged with misappropriating public funds in paying themselves for a job not done. LOL

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by: hannah @ Wed Jan 16, 2008 at 08:24:38 AM CST

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