NationStates Jolt Archive


nulla poena sine lege praevia

Llewdor
23-01-2008, 01:48
nulla poena sine lege praevia

This Latin phrase I came across in another thread, and it apparently means "no punishment without a pre-existent law banishing the crime".

I would think this should apply to all law all of the time. Since the whole of the law is the set of guidelines we all necessarily have governing our behaviour and our decisions regarding our behaviour, it strikes me that any failure to adhere to this principle would be grossly unfair. If you can be legally punished for doing things the law didn't tell you you weren't allowed to do until after you'd already done them, how does that serve the purpose of law?

Isn't the point of law to deter unacceptable behaviour?

Furthermore, wouldn't the application of punishment for acts that weren't forbidden when you did them be unconstitutional in most western countries? It certainly sounds like ex post facto law, even using the narrower definition used by SCOTUS.

Or am I wrong?
Neu Leonstein
23-01-2008, 01:54
So you're basically saying that governments shouldn't be able to make laws retroactive?

In principle I sympathise with the logic of the idea, but there are also cases in which a law only makes sense if it's enacted retroactively. And then there are cases where people might escape punishment - Indonesia for example had no anti-terror laws prior to the Bali Bombings. So many people involved in the attack would have got off if they hadn't used the laws passed afterwards to get them.
Whatsnotreserved
23-01-2008, 03:53
And then there are cases where people might escape punishment - Indonesia for example had no anti-terror laws prior to the Bali Bombings. So many people involved in the attack would have got off if they hadn't used the laws passed afterwards to get them.

Would murder not have worked to get them? Or accessory to murder or whatever laws were already in place that cover not blowing things up? Not trying to say your wrong, just wondering why they couldn't have arrested them for that?
SoWiBi
23-01-2008, 11:44
I'm not quite sure what you're on about, because as far as I know, this principle is fundamental to all "Western"/"modern"/blah justice systems. At least in the German law system, the mere idea that one could be punished for an offense that has not been an offense against the law at the time one did it is laughable.
Fall of Empire
23-01-2008, 11:55
So you're basically saying that governments shouldn't be able to make laws retroactive?

In principle I sympathise with the logic of the idea, but there are also cases in which a law only makes sense if it's enacted retroactively. And then there are cases where people might escape punishment - Indonesia for example had no anti-terror laws prior to the Bali Bombings. So many people involved in the attack would have got off if they hadn't used the laws passed afterwards to get them.

Arson and murder would do them in quite nicely I think.
Laerod
23-01-2008, 12:05
nulla poena sine lege praevia

This Latin phrase I came across in another thread, and it apparently means "no punishment without a pre-existent law banishing the crime".

I would think this should apply to all law all of the time. Since the whole of the law is the set of guidelines we all necessarily have governing our behaviour and our decisions regarding our behaviour, it strikes me that any failure to adhere to this principle would be grossly unfair. If you can be legally punished for doing things the law didn't tell you you weren't allowed to do until after you'd already done them, how does that serve the purpose of law?

Isn't the point of law to deter unacceptable behaviour?

Furthermore, wouldn't the application of punishment for acts that weren't forbidden when you did them be unconstitutional in most western countries? It certainly sounds like ex post facto law, even using the narrower definition used by SCOTUS.

Or am I wrong?Yes and no. Crimes against humanity are illegal regardless of whether national legislation allows it or not. On the other hand, if the age at which one may buy a gun is lowered, it would be ludicrous to to punish people that were old enough at the time when they bought their guns on grounds of the new law.
Nodinia
23-01-2008, 12:18
nulla poena sine lege praevia

This Latin phrase I came across in another thread, and it apparently means "no punishment without a pre-existent law banishing the crime".

I would think this should apply to all law all of the time. Since the whole of the law is the set of guidelines we all necessarily have governing our behaviour and our decisions regarding our behaviour, it strikes me that any failure to adhere to this principle would be grossly unfair. If you can be legally punished for doing things the law didn't tell you you weren't allowed to do until after you'd already done them, how does that serve the purpose of law?

Isn't the point of law to deter unacceptable behaviour?

Furthermore, wouldn't the application of punishment for acts that weren't forbidden when you did them be unconstitutional in most western countries? It certainly sounds like ex post facto law, even using the narrower definition used by SCOTUS.

Or am I wrong?

As far as I know, the Australian fellah - Hicks - was convicted of offences by use of a law acting retroactively.
Damor
23-01-2008, 12:53
If you can be legally punished for doing things the law didn't tell you you weren't allowed to do until after you'd already done them, how does that serve the purpose of law?

Isn't the point of law to deter unacceptable behaviour?I would say that for some things it is clear that it is unacceptable, even if it is not (yet) forbidden. The problem is that the possibilities of what you can do grow in unexpected ways. There are no laws against mind-controlling people, afaik, nor against abuses against of self-aware robots, nor against exploiting extra-terrestrial slaves. Or any of a million scenarios that sci-fi writers have explored; let alone all the things we have yet to imagine.
Laws are generally made for things that are already happening; computer crimes only became illegal after they occurred. Typically, things have to go wrong before people consider to legislate it; in rare cases like human cloning the law is ahead of the curve (we can't do it yet, but it's already forbidden), but those are the exception.
Muravyets
23-01-2008, 16:03
nulla poena sine lege praevia

This Latin phrase I came across in another thread, and it apparently means "no punishment without a pre-existent law banishing the crime".

I would think this should apply to all law all of the time. Since the whole of the law is the set of guidelines we all necessarily have governing our behaviour and our decisions regarding our behaviour, it strikes me that any failure to adhere to this principle would be grossly unfair. If you can be legally punished for doing things the law didn't tell you you weren't allowed to do until after you'd already done them, how does that serve the purpose of law?

Isn't the point of law to deter unacceptable behaviour?

Furthermore, wouldn't the application of punishment for acts that weren't forbidden when you did them be unconstitutional in most western countries? It certainly sounds like ex post facto law, even using the narrower definition used by SCOTUS.

Or am I wrong?
You're wrong Llewdor.

First of all, you are being unclear, so you cannot help at least seeming wrong about something. Precisely what are you talking about?

Are you suggesting that new laws are applied retroactively to punish actions that used to be legal? If so, and if you have a particular case in mind, you should lay it out for us to discuss, because I do believe that it is extremely unusual for laws to be applied retroactively. On the rare occasions it has happened, I believe it has been controversial. The fact is, retroactive application of laws is so rare that you cannot build an argument about the nature of law in general on it, as if it were the norm.

An example of a legal act being rendered illegal by a new law: In the US, when Prohibition was enacted, the government did not go around arresting any American who had ever had a drink or owned, made or sold alcohol before the law was enacted. Before Prohibition, drinking was legal, and nobody was punished for doing something legal. Under Prohibition, drinking was illegal, and if you drank, bought, made or sold liquor, you could be prosecuted. You could not claim, "But it used to be legal and nobody told me, waaah!" Ignorance of the law is not a defense. As a citizen, it is your responsibility to know the laws of the country you live in, and that means keeping up with the changes. Believe you me, everybody in America knew when Prohibition was enacted, and they knew the very instant it was repealed, too. But the point is, nobody was punished for doing something that wasn't wrong at the time they did it.

Alternatively, are you suggesting that new laws cannot be enacted to address the specific nature of specific crimes, and that, if a new law is made about a thing, it automatically means that that thing was not considered bad before the new law was created? If so, I'm sorry, but that argument fails because it is easy to tell if an act/behavior is unacceptable, even if there is no law specifically saying so.

For instance, Prohibition was not an obvious thing, because before it, who would ever have thought that having a drink in a bar was an unacceptable behavior? So, no one was arrested for owning alcohol on the very day that Prohibition was enacted. The law newly made a previously OK act not-OK, and people had to be given fair warning and time to get into compliance and get rid of their now-illicit booze.

On the other hand, there has never been a time or place in which there was no such thing as murder, as a concept of wrongful killing. There has never been a time or place in which murder was OK. Murder, by definition, is a not-OK act. Many new laws are enacted at various times/places, and for various reasons, to define specific crimes that fall under the heading of murder, but that does not mean that they are making previously OK acts suddenly not-OK.

For instance, the US crime of vehicular homicide. This is invoked when drunk drivers hit and kill someone with their cars. Vehicular homicide laws were created for two reasons: (1) To respond to public pressure to highlight and address drunk driving issues specifically because of a perceived social problem, and (2) to counter legal arguments along the lines of "but my client didn't kill the man, his car did, and he couldn't have meant it because he was drunk." One of the key elements of murder is that the killer must have known that his actions would or could result in the death of a person. A person who is sober knows or should know that he could kill someone if he drives drunk because that is a common enough occurrence to be obvious. He has it within his power to prevent himself from doing that (by taking a cab instead of his own car to the bar or party), yet he chooses not to take that precaution, and sure enough he ends up killing a person. In the eyes of the law, his negligence is deliberate enough to qualify as intent, and so he is charged with vehicular homicide, a law which names his murder weapon (the car).

Now we can argue whether we like that law or not, whether such a law is even necessary, and we can also point out that once upon a time, there were no rules against driving while drunk.

But what you cannot argue is that it was ever OK to kill a person who was not threatening you, nor was it ever OK to kill a person because you are drunk. Regardless of what specific nuance of the situation the law/government uses to punish you for your action, you cannot claim that you should not be punished for killing a person because the circumstances of the killing did not used to be specifically covered by a specific law. The fact that it did not used to be illegal to drive drunk does not mean that it was ever OK to kill a person by reckless driving. In vehicular homicide, you are not being punished for being drunk; you are being punished for killing someone, and there is no way you can claim you thought that would be OK.
Risottia
23-01-2008, 17:55
nulla poena sine lege praevia

Isn't the point of law to deter unacceptable behaviour?


No. The point of law isn't deterrence, because no punishment, not even the capital punishment, deters enough (see Cesare Beccaria, "Dei delitti e delle pene").

The point of law is fixing rules of behaviour to the benefit of society, and of the individuals that compose society. These rules, basically, impose a reasonable limitation on personal freedom - to allow everyone to get a reasonable amount of personal freedom AND a reasonable amount of personal security and safety.

Anyway, in all places using a code of laws descended from Roman codes (civil law, that is), an act isn't a crime if there wasn't a law stating that it is a crime BEFORE the act itself.
Neu Leonstein
23-01-2008, 23:55
Would murder not have worked to get them? Or accessory to murder or whatever laws were already in place that cover not blowing things up? Not trying to say your wrong, just wondering why they couldn't have arrested them for that?
Arson and murder would do them in quite nicely I think.
http://en.wikipedia.org/wiki/2002_Bali_bombing#Legal_proceedings

Well, it looks like they just wanted to make 100% sure that they'd get everyone for an appropriate amount of time. Getting someone for accessory to arson might not actually send them to jail for very long.
New Manhattan
24-01-2008, 00:41
As a citizen, it is your responsibility to know the laws of the country you live in, and that means keeping up with the changes.
I find this statement quite confusing. Is what you are saying, then, that simply because I happen to have been born in central North America, and that there is a group of people with a large army that claims to own that land, I am obligated to immediately start reading the countless pages of difficult text that constitute the United States Code and Code of Federal Regulations, not to mention any more local laws that various people have claimed, and then to immediately purchase a new copy of these texts to re-read them to find all of the changes? Am I irresponsible because I have not dedicated my life to this pursuit? If this is not what you are saying, could you please clarify?
Venndee
24-01-2008, 00:52
As one who does not believe in legislative law, i.e. law that is subsequent to one's authority, but in customary law, i.e. law that is antecedent to one's authority (in which law is discovered by vast numbers of decentralized game theory exchanges and to which people will alter their behavior in accordance with), I do not think that such a concept is applicable to my concept of law. If an entirely pacifistic community was intruded upon by a murderer, and some of the members banded together and punished him, this would be permissible as most people would realize that being murdered is (obviously) very costly.

I suppose that it would not necessarily be punishing someone for which there was no law against originally, since it would be most in accordance with the law of reason to punish the murderer in such a way.
Llewdor
24-01-2008, 01:38
http://en.wikipedia.org/wiki/2002_Bali_bombing#Legal_proceedings

Well, it looks like they just wanted to make 100% sure that they'd get everyone for an appropriate amount of time. Getting someone for accessory to arson might not actually send them to jail for very long.
But what's an appropriate amount of time? Isn't what's appropriate determined by statutory content?

Or is there some other standard of which all people are necessarily aware?
Llewdor
24-01-2008, 01:41
Yes and no. Crimes against humanity are illegal regardless of whether national legislation allows it or not.
Based on what? Since ignorance of the law can't be used as an excuse, shouldn't there be some repository that describes all the things that are illegal? If these "crimes against humanity" are not so described, isn't it possible that the actor was unaware that they were crimes?
Llewdor
24-01-2008, 01:52
As a citizen, it is your responsibility to know the laws of the country you live in, and that means keeping up with the changes.
I would agree wholeheartedly. However...
I'm sorry, but that argument fails because it is easy to tell if an act/behavior is unacceptable, even if there is no law specifically saying so.
How? Without a law applicable to that given act, how can one know it is unacceptable? The law is silent. By what standard is something unacceptable if not the law?
On the other hand, there has never been a time or place in which there was no such thing as murder, as a concept of wrongful killing. There has never been a time or place in which murder was OK. Murder, by definition, is a not-OK act. Many new laws are enacted at various times/places, and for various reasons, to define specific crimes that fall under the heading of murder, but that does not mean that they are making previously OK acts suddenly not-OK.
But they are making previously legal acts suddenly illegal. The definition of a wrongful killing changes significantly through history or when moving from culture to culture. If you sailed up to Lindisfarne now and started killing people, no one would think that was okay, but in 793 the Vikings seemed to think it was a really good idea.
Callisdrun
24-01-2008, 02:16
I would agree wholeheartedly. However...

How? Without a law applicable to that given act, how can one know it is unacceptable? The law is silent. By what standard is something unacceptable if not the law?

But they are making previously legal acts suddenly illegal. The definition of a wrongful killing changes significantly through history or when moving from culture to culture. If you sailed up to Lindisfarne now and started killing people, no one would think that was okay, but in 793 the Vikings seemed to think it was a really good idea.

However, among their own society they did not go around killing people at random. Sure, there were duels and feuds in which people got killed, but this was much different from you basically implying that they had no laws against murder.

No society has ever let one just go around killing people.
The Black Forrest
24-01-2008, 05:24
:rolleyes:

Still trying to justify your stance of being innocent for doing nothing to help a drowning kid?....
Muravyets
24-01-2008, 05:25
I find this statement quite confusing. Is what you are saying, then, that simply because I happen to have been born in central North America, and that there is a group of people with a large army that claims to own that land, I am obligated to immediately start reading the countless pages of difficult text that constitute the United States Code and Code of Federal Regulations, not to mention any more local laws that various people have claimed, and then to immediately purchase a new copy of these texts to re-read them to find all of the changes? Am I irresponsible because I have not dedicated my life to this pursuit? If this is not what you are saying, could you please clarify?

Oh, do try not to be silly.

Obviously you don’t have to BE lawyer yourself. That is why there are people who become lawyers -- so you don’t have to. It’s also why there are different kinds of lawyers, because the laws are so complex.

But even though you don’t have to be an expert on every single detail of every single law that is on the books, you DO have to know the general gist of what is legal and what isn’t. And whether you learn it yourself, or rely on the advice of an expert, it is still YOUR responsibility to make sure you do not break the law. And that means you have to have at least some idea of what the laws are.

So if you run a business, you are responsible for finding out what licenses/permits you need, what tax forms you have to file and when, how you have to handle payroll, etc.

If you own a property, you are responsible for making sure it meets building codes and zoning restrictions and complies with other laws.

If you are an investor, you are responsible for knowing what kinds of trades are OK or not-OK.

If you own an animal, you are responsible for complying with laws about the care of the animal, for making sure you are allowed to own that animal in the place you live, and for taking care that the animal not cause harm to anyone else.

Not knowing that you are doing something that is against the law is what the government files under “Tough Shit.” Whether it is hard or easy, it is your responsibility to know, and if you don’t that won’t help you if you get into trouble.

And if the laws change, and you didn’t know it, you are still just as out of luck, and the state is within its rights to say you have no one to blame but yourself. The law is not a secret. You can find out what you need to know, if you want to, even if you are not a legal expert.

It may interest you to know, by the way, that many attorneys offer consultations in which they answer questions from people who want to do something and want to know what laws will affect their project and what to do about it. Those people are being responsible by assuming that they might have to deal with laws they don’t yet know about, and seeking professional advice in advance.

That is a kind of layman's/private client's version of what most non-criminal lawyers do to make a big chunk of their money -- writing opinion letters. Opinion letterss are written by attorneys hired by other attorneys to review the paperwork of a proposed major business transaction, do some legal research, and declare that, in their opinion, the transaction, as planned, is in compliance with applicable law. None of the biggest transactions in the USA can happen until the legal opinions are well in hand, as part of “due diligence,” part of which is making sure your project is legal.
Muravyets
24-01-2008, 05:32
I would agree wholeheartedly. However...

How? Without a law applicable to that given act, how can one know it is unacceptable? The law is silent. By what standard is something unacceptable if not the law?


But they are making previously legal acts suddenly illegal. The definition of a wrongful killing changes significantly through history or when moving from culture to culture. If you sailed up to Lindisfarne now and started killing people, no one would think that was okay, but in 793 the Vikings seemed to think it was a really good idea.
You really are a... disingenuous debator.

All the parts of my post that you deleted and did not respond to were the answer to your question of how you can know what is unacceptable. Your refusal to accept that argument will not make it go away. You indirectly asking me to tell it to you again will not make me write a different argument. Read my earlier post. I explained it in there.

I am not going to get sucked into one of your circular arguments again. I have already answered your questions, and I will not type all those words again.
Muravyets
24-01-2008, 05:35
:rolleyes:

Still trying to justify your stance of being innocent for doing nothing to help a drowning kid?....
Or maybe he's still trying to justify his stance that the Nuremburg tribunal had no business punishing the Nazis because the Nazis had no reason to think they would be punished for their war crimes because the specific laws they were charged under were written in response to those crimes, not before them.
Thumbless Pete Crabbe
24-01-2008, 07:58
Furthermore, wouldn't the application of punishment for acts that weren't forbidden when you did them be unconstitutional in most western countries? It certainly sounds like ex post facto law, even using the narrower definition used by SCOTUS.

Or am I wrong?

It sounds exactly like that. You can't be prosecuted for something that wasn't illegal when you did it.
Llewdor
24-01-2008, 19:20
Or maybe he's still trying to justify his stance that the Nuremburg tribunal had no business punishing the Nazis because the Nazis had no reason to think they would be punished for their war crimes because the specific laws they were charged under were written in response to those crimes, not before them.
You're closer to being right. Black Forrest is referring to a previous moral argument. This is a legal argument.

I see no necessary connection between the law and morality.
Muravyets
24-01-2008, 19:29
You're closer to being right. Black Forrest is referring to a previous moral argument. This is a legal argument.

I see no necessary connection between the law and morality.
Neither do I, and neither did the Nuremburg tribunal, which did not rely on morality to prosecute the Nazis. This was explained to you ad nauseum in that other thread, where you first floated your disgusting and unethical argument. The crimes of the Nazis were crimes before Nuremburg, and the Nazis knew it; therefore Nuremburg was not criminalizing acts that had not been illegal before. Morality be damned, you fail on the facts. Changing threads will not change that.

Once again, you start wrong and continue wrong, and I would bet you will end wrong again, too.
Llewdor
24-01-2008, 19:31
You really are a... disingenuous debator.

All the parts of my post that you deleted and did not respond to were the answer to your question of how you can know what is unacceptable. Your refusal to accept that argument will not make it go away. You indirectly asking me to tell it to you again will not make me write a different argument. Read my earlier post. I explained it in there.

I am not going to get sucked into one of your circular arguments again. I have already answered your questions, and I will not type all those words again.
The bits I left out were examples, which I didn't need to address the broader point. Examples aren't useful in astract discussions.

But, let's look at those. In your vehicular homicide example, there's no need to violate nulla poena sine lege praevia to create that law as long as you're willing to let the first guy get tried under the pre-existing laws. All future drunk drivers can be subject to the new law written in response to the first event, but the first drunken killer can't be held to that new law without violating nulla poena sine lege praevia because it didn't exist before he got drunk and got in his car.

Your prohibition example didn't address the issue, since people weren't punished for actions they took prior to prohibition.

If the law never looks backward, then people always have the opportunity to make informed decisions about whether they want to violate the law. The punishment and procedures are all described in statute, and you can weigh those consequences against the illegal action you wish to take.

If, after you've taken that action, the legal consequences change, the law is robbing that actor of the informed choice he previously made.

And my previous question still stands. You claim "it is easy to tell if an act/behavior is unacceptable, even if there is no law specifically saying so." How? Where would I go to learn that?

There is no such repository of this knowledge. This is why the law must never look backward.
Llewdor
24-01-2008, 19:35
Neither do I, and neither did the Nuremburg tribunal, which did not rely on morality to prosecute the Nazis. This was explained to you ad nauseum in that other thread, where you first floated your disgusting and unethical argument. The crimes of the Nazis were crimes before Nuremburg, and the Nazis knew it; therefore Nuremburg was not criminalizing acts that had not been illegal before. Morality be damned, you fail on the facts. Changing threads will not change that.

Once again, you start wrong and continue wrong, and I would bet you will end wrong again, too.
I only changed threads because the last one was closed. And I'm trying to discuss a broader point, here.

But, since you asked, if those crimes were already illegal, why weren't the Nazis tried under those pre-existing laws? Why create these international war crimes?

This is what I was trying to find out. What was gained by creating these new rules to deal with past events?
Muravyets
24-01-2008, 19:56
The bits I left out were examples, which I didn't need to address the broader point. Examples aren't useful in astract discussions.

But, let's look at those. In your vehicular homicide example, there's no need to violate nulla poena sine lege praevia to create that law as long as you're willing to let the first guy get tried under the pre-existing laws. All future drunk drivers can be subject to the new law written in response to the first event, but the first drunken killer can't be held to that new law without violating nulla poena sine lege praevia because it didn't exist before he got drunk and got in his car.

Your prohibition example didn't address the issue, since people weren't punished for actions they took prior to prohibition.

If the law never looks backward, then people always have the opportunity to make informed decisions about whether they want to violate the law. The punishment and procedures are all described in statute, and you can weigh those consequences against the illegal action you wish to take.

If, after you've taken that action, the legal consequences change, the law is robbing that actor of the informed choice he previously made.

And my previous question still stands. You claim "it is easy to tell if an act/behavior is unacceptable, even if there is no law specifically saying so." How? Where would I go to learn that?

There is no such repository of this knowledge. This is why the law must never look backward.
This is absolutely hilarious!! Are you seriously trying to argue that examples that illustrate that the law does not work the way you posit are not relevant to the topic? Are you actually going to try, yet again, to deny the existence of reality so that you can argue your fantasies? Then please do start an "alternative reality" thread and stop wasting the time of people who are interested in what actually exists and how things actually work.

The law does not work the way you say it does. Therefore, everything you say about how the law works is false and cannot be used as a foundation to justify your argument about how you think it should work. If you want to have a purely theoretical discussion, stop muddying it up with false references.
Muravyets
24-01-2008, 19:58
I only changed threads because the last one was closed. And I'm trying to discuss a broader point, here.
In other words, you really are just incapable of letting a subject drop when nobody but you is interested in it?

But, since you asked, if those crimes were already illegal, why weren't the Nazis tried under those pre-existing laws? Why create these international war crimes?

This is what I was trying to find out. What was gained by creating these new rules to deal with past events?
Both of these questions were answered -- by actual attorneys!! -- in that other thread. Go read it if you are that interested in the answers.
Llewdor
24-01-2008, 20:04
This is absolutely hilarious!! Are you seriously trying to argue that examples that illustrate that the law does not work the way you posit are not relevant to the topic? Are you actually going to try, yet again, to deny the existence of reality so that you can argue your fantasies? Then please do start an "alternative reality" thread and stop wasting the time of people who are interested in what actually exists and how things actually work.

The law does not work the way you say it does. Therefore, everything you say about how the law works is false and cannot be used as a foundation to justify your argument about how you think it should work. If you want to have a purely theoretical discussion, stop muddying it up with false references.
I'm not claiming the law works any way in particular. I'm asking why it works as it does, given that the only consequence I can see is rampant unfairness.

Laerod's and Neu Leonstein's points hit much closer to the questions I'm trying to ask.

If the point of the new law is to ensure that the drunk driver gets the punishment he deserves, what is the source of that desert? Clearly it's not the pre-existing statutes (else they'd be used rather than the new laws), so on what is this punishment based.

And regarding crimes against humanity, the assertion was that they are illegal regardless of whether there is a law so describing them. If that's the case, on what basis are they illegal? And how can a citizen know they are illegal if their illegality isn't written down anywhere?
Muravyets
24-01-2008, 20:11
I'm not claiming the law works any way in particular. I'm asking why it works as it does, given that the only consequence I can see is rampant unfairness.
So in other words, you do think it works in a particular way, one which you see as unfair. Self-contradiction ftw. Do you see now why I have so much trouble taking your arguments seriously?

Laerod's and Neu Leonstein's points hit much closer to the questions I'm trying to ask.
You mean the ones in which they told you that you are wrong about how you think the law works?

If the point of the new law is to ensure that the drunk driver gets the punishment he deserves, what is the source of that desert? Clearly it's not the pre-existing statutes (else they'd be used rather than the new laws), so on what is this punishment based.
I already told you that in this thread, and refuse to tell it to you again. Read the posts and respond to them. Please do not just keep repeating the same questions over and over as if no one has ever answered you.

And regarding crimes against humanity, the assertion was that they are illegal regardless of whether there is a law so describing them. If that's the case, on what basis are they illegal? And how can a citizen know they are illegal if their illegality isn't written down anywhere?
I already told you this in this thread AND it was addressed in detail and at length in that other thread. This is not a game of "telephone" -- repetition of the same answers will not magically get you a different answer.
TBCisoncemore
24-01-2008, 20:18
I would suggest retro-spective law requires rather more subtlety than a simple "yes" and "no". My general inclination is towards no, given that it would allow for the most appalling abuses of power by any government inclined to do as much. However, I would accept that, for offence of great severity but omitted by law by an oversight, or for severe offences committed using new technologies, retro-active law should be employed.
Llewdor
24-01-2008, 21:16
So in other words, you do think it works in a particular way, one which you see as unfair. Self-contradiction ftw. Do you see now why I have so much trouble taking your arguments seriously?
How is that self-contradiction? That's only contradictory if fairness is defined by law (something you haven't established).
You mean the ones in which they told you that you are wrong about how you think the law works?
They did no such thing, because I haven't in this thread made assertions about how the law works.
I already told you that in this thread, and refuse to tell it to you again. Read the posts and respond to them. Please do not just keep repeating the same questions over and over as if no one has ever answered you.

I already told you this in this thread AND it was addressed in detail and at length in that other thread. This is not a game of "telephone" -- repetition of the same answers will not magically get you a different answer.
You claim you've addressed both of these points in this thread. Lucky for me, this thread isn't very long, so I think I've found the section you think addresses at least the second question:
If so, I'm sorry, but that argument fails because it is easy to tell if an act/behavior is unacceptable, even if there is no law specifically saying so.
Here, you assert that it is easy to tell if "an act/behavior is unacceptable, even if there is no law specifically saying so." However, you do not explain how that might be done. This raises the question I'm asking, but it does not answer it.
For instance, Prohibition was not an obvious thing, because before it, who would ever have thought that having a drink in a bar was an unacceptable behavior? So, no one was arrested for owning alcohol on the very day that Prohibition was enacted. The law newly made a previously OK act not-OK, and people had to be given fair warning and time to get into compliance and get rid of their now-illicit booze.
This reads like it's going to set-up an answer to my question, but...
On the other hand, there has never been a time or place in which there was no such thing as murder, as a concept of wrongful killing. There has never been a time or place in which murder was OK. Murder, by definition, is a not-OK act. Many new laws are enacted at various times/places, and for various reasons, to define specific crimes that fall under the heading of murder, but that does not mean that they are making previously OK acts suddenly not-OK.
...here you describe an act that you assert is unacceptable even if there were no law specifically saying so, but you don't explain how one might know that. If I come across an act or behaviour I've not previously imagined, by what standard can I determine whether it is an acceptable act or behaviour if that acceptability is not addressed in the law. You seem to be using a universally applicable maxim, but you won't tell me what it is.
For instance, the US crime of vehicular homicide. This is invoked when drunk drivers hit and kill someone with their cars. Vehicular homicide laws were created for two reasons: (1) To respond to public pressure to highlight and address drunk driving issues specifically because of a perceived social problem, and (2) to counter legal arguments along the lines of "but my client didn't kill the man, his car did, and he couldn't have meant it because he was drunk." One of the key elements of murder is that the killer must have known that his actions would or could result in the death of a person. A person who is sober knows or should know that he could kill someone if he drives drunk because that is a common enough occurrence to be obvious. He has it within his power to prevent himself from doing that (by taking a cab instead of his own car to the bar or party), yet he chooses not to take that precaution, and sure enough he ends up killing a person. In the eyes of the law, his negligence is deliberate enough to qualify as intent, and so he is charged with vehicular homicide, a law which names his murder weapon (the car).
Here you're discussing a specific crime that might have fallen in a loophole between other laws, and thus the law was amended. This also doesn't answer my question about acceptibility. If the loophole is there, how can I tell the loophole isn't supposed to be there? Certainly after the new law is passed I can tell, but beforehand all I have to guide me is the body of law, and it contains a loophole. So you still haven't addressed the question.
Now we can argue whether we like that law or not, whether such a law is even necessary, and we can also point out that once upon a time, there were no rules against driving while drunk.

But what you cannot argue is that it was ever OK to kill a person who was not threatening you, nor was it ever OK to kill a person because you are drunk. Regardless of what specific nuance of the situation the law/government uses to punish you for your action, you cannot claim that you should not be punished for killing a person because the circumstances of the killing did not used to be specifically covered by a specific law. The fact that it did not used to be illegal to drive drunk does not mean that it was ever OK to kill a person by reckless driving. In vehicular homicide, you are not being punished for being drunk; you are being punished for killing someone, and there is no way you can claim you thought that would be OK.
This is the closest you come to answering the question you claim to have answered. Assuming there's a loophole in the law that prevents drunken vehicular homicide from being murder, absolutely there is an argument to be made that doing so isn't illegal. You keep asserting that it was never OK to kill people, but you don't explain how any random person might know that. That's the question I'm asking.

You keep asserting that something is true as if that truth is obvious to everyone, but never do you explain how someone might come to know that thing you insist is true.

With regard to Neu Leonstein's point, I literally can't find anything in this thread where you came close to addressing the concept of desert or appropriate punishment in terms of justifying them.
Muravyets
25-01-2008, 20:44
How is that self-contradiction? That's only contradictory if fairness is defined by law (something you haven't established).
<snip>
I was saved by Jolt's tech issues from posting something in response to this last night that I shouldn't have, and I'm grateful because there is no point getting into a conflict with you over this, much less letting myself get angry because of you.

The bottom line is this: You say my answers did not address your points/questions. I say they did, and I refer you back to them again. I stand by everything I've written here. I say my illustrative examples are on point. I further say that I most certainly did touch on all the points you say I did not touch on, INCLUDING the part about how we know an act/behavior is unacceptable even if it was not previously specifically mentioned in a specific law.

Now, you either have not actually read my posts, or you did read them but did not like what I told you and are now pretending I didn't say anything in the hopes that if you make me answer you again, I'll say something different next time. But I won't. You have my answers. Take them or leave them, but do not ask me to give them to you again.

I will not respond further to this thread unless and until I see some information or comment that is additional or new and is substantive, so don't bother hashing over the same ground with me.
Llewdor
25-01-2008, 21:18
You've drawn a line in the sand, here, and you won't let me cross it. When you say things like "You cannot argue that it was ever OK" I should be allowed to ask "Why not?"

Arguments like yours are what's wrong with the legal system today.
Muravyets
25-01-2008, 21:40
You've drawn a line in the sand, here, and you won't let me cross it. When you say things like "You cannot argue that it was ever OK" I should be allowed to ask "Why not?"

Arguments like yours are what's wrong with the legal system today.
For the 1000th time!!! The "why not" is answered in the post you were responding to!!! Read it, accept, reject it, do whatever you like with it, but stop asking me to give it to you again!!!!!

*smashes Llewdor over the head with a large hammer even though I know it's wrong and even though it doesn't make a difference anyway because he just. won't. stop. repeating. himself.*

Good bye.
Llewdor
26-01-2008, 00:25
For the 1000th time!!! The "why not" is answered in the post you were responding to!!! Read it, accept, reject it, do whatever you like with it, but stop asking me to give it to you again!!!!!

*smashes Llewdor over the head with a large hammer even though I know it's wrong and even though it doesn't make a difference anyway because he just. won't. stop. repeating. himself.*

Good bye.
You yourself even offered an example of an argument that killing someone used the be OK, so clearly it is possible to do so (despite your assertion that it is not. You said:
"but my client didn't kill the man, his car did, and he couldn't have meant it because he was drunk."
That's an argument that the killing, while perhaps unfortunate, was OK.
Muravyets
26-01-2008, 17:21
You yourself even offered an example of an argument that killing someone used the be OK, so clearly it is possible to do so (despite your assertion that it is not. You said:

That's an argument that the killing, while perhaps unfortunate, was OK.
And this is proof that you do not read people's posts. WHEN DID I EVER WRITE THOSE WORDS? If you say I made that argument, I demand that you quote the exact post in which I did it. Find the post, click the quote button, copy the text, and paste it here so I can see where I said those words.

I know for a fact that there are only two contexts in which I would ever say anything even close to such a thing, and they are when discussing self defense or abortion (in the context of self-ownership and self-defense).

THIS THREAD IS NOT ABOUT SELF-DEFENSE OR ABORTION, NOW IS IT? So there is no way that I could have said those words in this thread, now is there? If you are going to go gravedigging among old threads. you had damn well better show the context of the remarks you pull or else you, sir, are being damned dishonest. As well as hypocritical, after accusing me of drawing a line and then not allowing you to cross it.

FURTHERMORE, IN THIS VERY THREAD, I already stated that "murder" is a concept of "wrongful killing." If you had bothered to read the posts in your own thread you would know that. Self-defense and abortion are NOT wrongful killing. But how do we know that they are OK? By comparing them to "wrongful killing" and seeing that they are not "wrongful." Since it is the "wrongful" part that makes the killing not-OK, killings that are not "wrongful" are not not-OK. They are not good things, but they are not legally unacceptable either.

The reason I used so many solid caps in this post is to bring these very obvious points to your apparently unwilling attention. There is a definition of "internet troll" along the lines of "one who makes outrageous, repetitive, annoying, etc. posts or who jerks other posters around by willfully obnoxious responses in order to make himself the center of attention, regardless of what the topic is." Llewdor, in all honesty, I have to say that, although you are a very advanced example of it, style-wise, I do believe you to be little more than such a troll. It is true that you cannot hijack your own thread, as you do to other threads, but that only makes this a troll thread.

Claiming that I said something without actually quoting the source where I said it, is a low, cheap tactic even for you. I have tried to maintain at least the appearance of respect for you, on the off chance that you do not know you are being troll-ish, but after this, I am ready to write you off.

Come up with the proof, apply it to you argument, and address the various points presented in counter argument, or go to hell.
Llewdor
27-01-2008, 00:35
but my client didn't kill the man, his car did, and he couldn't have meant it because he was drunk.
Happy?
Jello Biafra
27-01-2008, 00:46
If the law never looks backward, then people always have the opportunity to make informed decisions about whether they want to violate the law. Why should people have the opportunity to make informed decisions such as these (in all cases)?

If that's the case, on what basis are they illegal? And how can a citizen know they are illegal if their illegality isn't written down anywhere?A couple ways:

http://en.wikipedia.org/wiki/Tradition
http://en.wikipedia.org/wiki/Custom_%28law%29
http://en.wikipedia.org/wiki/Precedent
Llewdor
29-01-2008, 02:02
Why should people have the opportunity to make informed decisions such as these (in all cases)?
Because otherwise you're punishing people for doing things they can't have expected would produce punishment. From their point of view the punishment is random. That violates fairness.
A couple ways:

http://en.wikipedia.org/wiki/Tradition
http://en.wikipedia.org/wiki/Custom_%28law%29
http://en.wikipedia.org/wiki/Precedent
In a common law system, precedent would be included in the body of law, so I've already accounted for that. The others only satisfy the requirement if they're enumerated and freely available to the people.