Post No.: 0853
Furrywisepuppy says:
In general, a crime consists of the physical conduct of a guilty act (actus reus), and one’s mental awareness when one conducted said guilty act (mens rea). Therefore accidents are sometimes treated differently to intentional acts. However, acting recklessly is, and acting negligently is sometimes, no defence. And strict liability offences are punished the same regardless of the mental element.
According to our own viewpoints at least, we see that, across the world, the severity of a crime does not always appear to correlate tightly with the severity of its punishment. The same crime committed in different countries may bring very different penalties for a start. Morality and legality do not always accord, at least in our own views, because what’s considered moral and what’s considered legal are not objective or fixed constructs. This is why it can be unsophisticated to suggest, “Well it’s legal so it’s fine” or, “Well it’s illegal so it’s not fine” when talking about a particular act. Ideally, our laws should adapt to what society considers moral and immoral rather than our morals contort to what the current laws say – otherwise parliaments could just pass any kind of draconian legislation and make us obey it despite how unfair it could be. Outdated laws would also continue to affect us without chance of amendment or re-amendment.
Morality should therefore, in a perfect world, take primacy over legality, and we should democratically contest unfair laws and petition for fair laws. We should actively aim to change the law rather than passively obey immoral laws; albeit we can understand why most citizens would first choose to behave according to the law because of the risk of real punishment if they don’t, and it does presume that enough other people in our communities share our particular opinions concerning what’s moral or immoral. Wherever there is a discrepancy, we should try to continually update our legislation to align with our present conceptions of morality rather than lazily or subordinately think ‘it’s the law so that’s that’.
Then again, how should we treat what some in society consider as immoral acts yet that disputably have no victims i.e. victimless crimes – for instance sexual practices that don’t involve force, adult corruption of minors or public offence? Should we just leave these be? This again stems from the fact that different people hold very different conceptions of what is morally acceptable in society, even in private.
Some majoritarian or democratically-determined laws can be deemed immoral – like a majority voting for a law that is against the freedoms of minority immigrants. Thus democracy is not a sufficient, or possibly even necessary, basis for determining what should morally be considered legal or illegal. We’ve probably all been in group situations where we’ve at least thought about voting for a person in our group to ‘take the short straw’ (such as to run a fuzzy errand on behalf of the group or be left out of some activity because there’s no space for everyone), and it seemed unfair on that person – it’s essentially a majority mob bullying or coercing a minority or individual through democratic processes.
Also, to win an overall majority in a democracy, you can still technically screw over up to nearly 50% of the electorate! (This is what happened after the 2016 United Kingdom European Union membership referendum, for instance, where the result was 52% leave and 48% remain.) This is for a binary option too, so it could be higher if there are more options, depending on how deadlocks are broken. Regarding the population of a nation in total, this percentage could potentially be higher still if only a small percentage of the public were eligible to vote.
Although there might not be a better solution to reach certain decisions than to take a vote – if the majority always wins then you could argue that democratic voting is essentially about discriminating against the wishes of those with minority opinions, which could be well-defined minority groups (like homosexual or transgender people). Or if an arbitrary supermajority is required to trigger a change in law (like needing a two-thirds majority vote in Congress in order to propose an amendment to the US Constitution) then even the majority could possibly lose out.
Can democracies get it wrong if they vote for something like regressing the freedom of movement? Should we accept the result if an electorate voted for their country to be run more like a communist state?!
Anyway, the overall purpose of criminal law is arguably to preserve public order and decency, to protect people from what is injurious or offensive, and to protect people from exploitation and corruption by others, especially to protect the vulnerable (e.g. the young, inexperienced, poor, mentally and/or physically compromised). But this would be an assertion that crime should be linked to social harm (a consequentialist approach) rather than pure matters of immorality (a deontological approach). Therefore if something causes no harm then we ought to let freedom prevail.
This harm approach can be further broken down into whether it’s only about harming others or about harming oneself too – for which harming oneself can still have indirect effects on others, such as on loved ones, the community and its influence on shaping culture (like influencing young children, who might copy such acts). So there’s still enormous disagreement about what constitutes ‘social harm’ even if we agree that harm rather than pure immorality is the key to defining criminality. And that would mean not all ‘victimless crimes’ are actually victimless – some have many victims but the victims aren’t personally identifiable, like when it comes to financial fraud, environmental waste or stealing copyrighted works from a corporation.
Information crimes rarely get detected, they don’t usually leave a clear physical trace compared to, say, a physical possession or loss after a physical theft, and they often seem victimless compared to, say, when someone’s house is physically vandalised.
It’s not that there’s not much white-collar crime – it’s just that most white-collar crime appears ‘victimless’, like stealing from a company compared to robbing from a frightened individual on the street, and so they don’t always get reported or seem that salient even if they do get reported in the news. ‘Victimless crimes’ appear to lack an identifiable victim’s face and name to trigger our emotions and thus sympathies. For more about comparing white versus blue collar crimes – see Post No.: 0731.
We can believe that our acts are victimless in order to rationalise to ourselves that we’re not acting immorally. When someone falsifies a job reference or some other detail on their CV/résumé, it potentially takes a job away from someone else who honestly deserved it more. When someone avoids their taxes, it takes money away from the treasury, which – far from being victimless – affects everybody in a country (hence one arguably cannot simultaneously be patriotic and either a tax avoider or evader).
At any rate, ideas that society must adhere to certain codes of shared morality, otherwise society will crumble and cease to exist, are challenged by the argument that, rather than crumbling – society will just simply be different. The extinction of one type of society with one set of morals will just create a new type of society with a different set of morals – a society with one set of shared morals will just be replaced by a society with a different set of shared morals, rather than cease to exist. That’s how we can have different countries in this world with different kinds of stable governments and laws.
A change may even be in a progressive and subjectively positive direction hence change is not necessarily bad. And evidently we can and do see societies and their attitudes to morality (e.g. towards homosexuality) change over time without societal or civilisational collapse. As long as enough people share, or at least accept, the same moral stances then society will probably be okay, whatever those morals are. And even when everyone doesn’t agree with things, this won’t itself cause a societal apocalypse. For example, many people who live together in a society disagree on their standpoint regarding reproductive choice, and without being relativists either i.e. we need not think that all opinions are equally valid. We need not all hold the same opinions to live together. We don’t always enforce our moral views on others, particularly where there is no direct harm caused to others. Although there will be political polarisation, and moments of stand-offs and clashes, most of us in society have a decent degree of tolerance and will not destroy society just for the sake of unifying our moral values. And this allows democracies – imperfect as they are – to function.
Woof!
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