Funmurphys: the Blog

The Triumph of Hope over Experience

Posts Tagged law

Law Reform

Nov 1

Posted by Kevin Murphy in Culture, National Politics | No Comments

My biggest complaint with the civil justice system isn’t the system itself, but us. You know, Americans. We’re the ones who have adopted the idea that anything, and I mean anything can be litigated. Everything is open for review by fifteen strangers: twelve people off the street, two paid advocates, and a judge. There is no aspect of human interaction – business, personal, intimate, property – that can’t be hauled into a court at a later date for a do over. You may be thinking great, we need more oversight. But there is a penalty for all this, both in terms of direct costs paid to the practitioners and the opportunity costs in changed behavior. And our civil system doesn’t even protend to be speedly like our criminal system. Cases can drag on for years, which means that not only is everything subject to review, but it can be years before anything is final. That surely has to be a big drag on invention, risk taking, and business in general.

Another facet of the problem is that when you have breakthroughs in technology or science, everyone benefits. When you have breakthroughs in finance, everyone benefits as improved financial helps new ventures get financed. These breakthroughs are driven by the quality and number of people involved in these fields. But when it comes to law, it seems that breakthroughs there only benefit lawyers, which only increases the attraction to a field that is way over represented and talented in America. The explosion in class action lawsuits hasn’t done a thing for the average person — if anything it’s hurt them overall, but it sure has made a bunch of lawyers wealthy beyond the dreams of avarice.

It used to be that farsighted rulers would periodically reform the legal code (Hammurabi was the first recorded). I know the legislatures across the land are too busy with far more sexy and immediate stuff, but I think we’re getting to the point that we really need to consider the kind of top to bottom overhaul to rein in the reach of lawsuits and combine it with a wholesale pruning of government regulation. But that won’t happen until we demand it. Just having a “business friendly” Supreme Court Justice doesn’t cut it.

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Christian Law Making

Apr 6

Posted by Kevin Murphy in Faith | No Comments

Joe Carter at the Evangelical Outpost has announced a a new blog symposium — Judeo-Christian Morality in an Ethically Pluralistic Society. I wrote something vaguely near that topic last summer, so I’m slightly tweaking it and presenting it here for my entry in the symposium. I’m specifically addressing how Christians should approach law making, in any human society. 

Christian Libertarian – that’s how Josh Claybourn describes himself. I don’t know if I’d go that far, but I think that Christianity with its emphasis on faith is more libertarian than works (following the law) based religions.

What are the beliefs of Christianity (at least from my point of view) on law? Well, God does have laws. There are laws you have no choice about — the physical laws that govern the universe. They are the same everywhere and universally obeyed by all of creation without any possible choice. 

But there are also other laws, where we do have choice. Let’s call them moral laws, and we can keep them, or we can break them. Up to this point, some other faiths would be agreeing with me. But here’s where Christianity comes in — nobody follows moral laws perfectly. We are all sinners is a basic Christian teaching. And what is the penalty for sin? Death. Now I happen to think that there are immediate consequences for vice and virtue, and there are defered consequences. But what’s clear is, under God’s law, every person on the planet has transgressed against God’s moral laws, and the penalty for doing so is death. I see dead people, and they don’t even realize they are dead. 

So if we were to institute God’s law as our own civic laws, we’d have to execute everybody on the planet. So really, what would be the point? And quite frankly, it seems awfully presumptious to pre-empt God. Since no man is saved by the law, why then should we try? And what would our plan of salvation be?

What then should our laws be based upon? Life, Liberty, and the pursuit of happiness is a good start. Human laws should be for our own use, not our own goodness. If God does not compel good, how and why should we, especially since our means are so much less. And as our means are so much less, so too should our laws be. 

To be sure, there is overlap between God’s moral law and what should be human laws – thou shalt not murder comes to mind. But who’s going to enforce thou shalt not covet your neighbor’s spouse or stuff? Or love God with all your heart, or love your neighbor as yourself? Jesus called out the last two as the wellsprings of all the commandments, and is there any real way to humanly enforce these laws?

Now don’t take this to mean that I don’t think following God’s laws isn’t important — I just think that is between ourselves and God, with the help of our fellow children in Christ, not the local constable and magistrate. The law doesn’t save. Repeat that after me: the law doesn’t save — Jesus saves. It’s okay if humans don’t outlaw everything that God does. By all means we should never shirk declaring what’s right and what’s wrong nor should we lose sight of the power of our example. 

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She’s Worth It

Apr 5

Posted by Kevin Murphy in Current Events | No Comments

Jane Galt has a fabulous post that you should read that is ostensibly about gay marriage but is really about any form of society reform. When I first came across a link I didn’t really want to read another post about gay marriage, especially a long one. But after the third or fourth “go read!” I girded my loins and boy was I ever happy:

Is this post going to convince anyone? I doubt it; everyone but me seems to already know all the answers, so why listen to such a hedging, doubting bore? I myself am trying to draw a very fine line between being humble about making big changes to big social institutions, and telling people (which I am not trying to do) that they can’t make those changes because other people have been wrong in the past. In the end, our judgement is all we have; everyone will have to rely on their judgement of whether gay marriage is, on net, a good or a bad idea. All I’m asking for is for people to think more deeply than a quick consultation of their imaginations to make that decision. I realise that this probably falls on the side of supporting the anti-gay-marriage forces, and I’m sorry, but I can’t help that. This humility is what I want from liberals when approaching market changes; now I’m asking it from my side too, in approaching social ones. I think the approach is consistent, if not exactly popular.

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What Njal Said

Apr 1

Posted by Kevin Murphy in National Politics | No Comments

Donald Sensing takes up Tom Bevan’s Op Ed that asks, among other things:

If one is convinced of the moral strength of the argument for saving Terri Schiavo (which millions upon millions of Americans are), and if one further adheres to the proposition that every innocent life is worth protecting and that we as a society must not countenance a system that results in the death of a single innocent soul, are we not then obligated to reconsider support of the death penalty under all circumstances except those in which confessions have been given voluntarily?

I’m a death penalty agnostic, but I don’t buy this argument as a reason not to have a death penalty. Here’s where it falls apart:  “a society must not countenance a system that results in the death of a single innocent soul”. Very few systems any human society sets up can make this claim, and certainly none that involves dealing death itself. It simply is an impossible standard, and to set it up foolishness. Set up a system that takes the fewest innocent lives is workable, but any is impossible. 

And when I say any system, I pretty much mean any system. Our transportation system kills the innocents at an absolutely ferocious rate – 40,000 in cars and trucks a year in the US alone. Airplanes and trains are killers too. Horsedrawn vehicles, heck horses themselves were killers before mechanical transportation means came into effect. Energy – between coal miners killed, gas explosions, deaths at refineries etc. it too is a killer. Or how about something as mundane as keeping clean – people are killed in showers and tubs every year. And don’t get me started on how many buckets kill kids every year. You might argue that since the purpose of these systems isn’t to kill people, we should be more forgiving of such outcomes, but isn’t that exactly backward? 

Now go back to criminal justice, and you’ll find that there are far more innocents locked up than executed. Why nobody worries about that is beyond me; why a life time wrongfully in prison being raped is nothing to care about yet wrongful execution, whoa, can’t have that is beyond me.

The real standard is to minimize the undesirable effects, and death of the innocent is hugely undesirable. It’s something that should and can always be worked on, but there is no absolute possible. We often say that our justice system is designed to let 10 criminals go free rather than wrongly convict 1 innocent person; yet we don’t say we let every criminal go free rather than wrongly convict any innocent person — because it not only sounds absurd, it is absurd. And yet that’s the standard that is raised here.

After winding his way through other knotty problems (it should be remembered that the original knotty problem was solved by one of the original applications of thinking outside the box: the application of a sword to cut instead of fingers to untie) he formulates his larger question:

At its core, the dilemma is this: At what point are we forced to live within the law even if we disagree morally with some of the outcomes resulting from its application?

Now we have a good question. I don’t know that I’d call it a dilemma as that implies a single decision whereas I think this kind of issue is neither a single decision nor a decision alone. As I said before, any system implemented by man is going to have problems, so I take it as a given that I will morally disagree with some of the outcomes of our legal system. And here my options aren’t to only live within or without the law, but to try and change the outcomes and the very law itself. I would argue that it is my moral obligation to try and change outcomes and the law itself in those cases where I think the outcomes are wrong. 

Frankly, I think a better question would be phrased: 

At what point am I forced to live outside the law because I disagree morally with some of the outcomes resulting from its application.

In other words, at what point does my working within the law, because that should be my default position, become itself wrong? I think the answer my friend varies from person to person.  The Declaration of Independence is one attempt to answer that question; I have to be thankful to our forefathers to bequeath a system of government where I don’t have to rebel to effect changes in our laws.

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My Own Response

Feb 15

Posted by Kevin Murphy in Culture | No Comments

Over at TalkLeft this post caught my attention: Should Reckless Sex Be A Crime? I guess if you’re a lawyer you find the debate interesting about a proposal to criminalize first time intercourse without a condom. My response is the uninteresting “Are you out of your freaking mind?” I guess that wouldn’t cut it with the barristers in a court of law (i.e it isn’t an acceptable legal phrase).

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