Hrm. I'm talking more about situations where 'the law' is clear and unambiguous, but it isn't treated seriously in terms of enforcement, than about what the Hart/Dworkin controversy (which on a quick google looks more like 'are there determinate answers to contested legal questions?') is about.
And thank goodness for google. My initial reaction to 'Hart vs. Dworkin' was 'Huh'?
Ummmmm. Can't you just taste the douchebaggery?
"...Construction Wraps are the only way to share your message where other large format Out-of-Home media are zoned out. These oversized spectaculars often dominate a full city block displaying your bold, colorful ad, while achieving unparalleled impact."
My question is: If the banner is illegal, then would defacing it constitute vandalism?
There's all sorts of behavior -- that is formally against the law, but that we as a society clearly aren't genuinely working to eliminate.
Warrantless wiretapping? Torture?
w00t! Beyerstein's pretty good, and I hope she catches on big-time.
Perhaps it's not precisely on point. But my fuzzy recollections from a jurisprudence class several years ago tells me that, in addition to the judges-as-Hercules debate, there was also this one: while Hart defined laws as orders backed by force, Dworkin argues that laws are principles or policies and that they have significance regardless of whether they are ever enforced. Or something like that. Thus, its good to have crosswalks and jaywalking laws, even if they are never enforced.
Beyerstein's article was good, but she needed a heavier-handed editor.
2: The Hart/Dworkin debate is about more than that, including what "a law" and "a legal system" are. In this context I still don't see the relevance though, because neither of them think that something isn't a law just because its under-enforced.
There is an interesting and sort of relevant Cass Sunstein article on how Lawrence could have been decided on grounds of desuetude. I forget how he deals with the problem of American law not having recognized the concept.
Dworkin argues that laws are principles or policies and that they have significance regardless of whether they are ever enforced. Or something like that. Thus, its good to have crosswalks and jaywalking laws, even if they are never enforced.
If he says that, ick. I am strongly, viscerally opposed to unenforced laws -- it invites arbitrary and unjust enforcement, and destroys respect for the law.
I'm not a lawyer so I may be using these terms completely incorrectly, but I think the de facto divide is between "illegal" and "criminalized".
In 8, reversing the usual error, "its" s/b "it's."
6: I'm pretty sure that in terms of raw page count most of Hart's Concept of Law is about why orders backed by force is an inadequate and incorrect account of what a law is. Austin is the one who argued that it was.
I haven't read that much Dworkin yet (pieces of three different books, but small pieces), but while he certainly talks about principles and policies (and how while legislatues can consider both, judges can consider only policy), I'm not sure he draws the conclusion from that discussion that's being attributed to him here.
I think it still makes a lot of sense to think of it as illegal, because you can indeed still get in trouble for violating these laws. But the only way you'll realistically get in trouble for these types of things is if you irritate someone in law enforcement or otherwise influential. Perhaps it's best to think of them as not so much a means of controlling undesired behavior as establishing control over undesired people.
9: I caught crap from some of my friends for arguing that the National Speed Limit was both an affront to federalism and directly contributory to a broader culture of lawlessness. They accused me of wanting to be able to drive 90 mph all the time and not getting it.
Perhaps it's best to think of them as not so much a means of controlling undesired behavior as establishing control over undesired people.
Exactly, which makes them evil. Not to be hyperbolic or anything.
Isn't it just corruption and old boy networks? This is age-old stuff -- is there an actual legal problem? There are also laws which effectively give discretionary powers to enforcers, and these fit hand in glove with corruption.
There's a better argument to be made in favor both of corruption and of discretionary enforcement than most people realize. Strict "by the book" enforcement can be brutal.
16: But should the discretionary enforcement be through the legal system, or should there be other means?
I guess this may be the opposite side of the progressive contracting laws where all decisions have to be made by the lowest bidder meeting all requirements rather than the personal opinion of the contracting party (even when that opinion is "this guy is going to end up cheating us six ways from sunday") that I so hate.
But not getting a job is much less bad than winding up in jail. Or shot.
I could see that a charge like "drunk and disorderly," or whatever it's called, would be up to the discretion of the cop.
"... but that we as a society clearly aren't genuinely working to eliminate. ..."
It is rarely cost-effective to try to eliminate bad behavior entirely instead society tries to reduce it to tolerable levels. So I think "working to eliminate" is the wrong test. An enforcement effort which substantially reduces the targeted behavior should be sufficient. I think enforcement does substantially reduce speeding particularly when you account for the fact that the "real" limits are above the posted limits. This is in contrast to examples like adultery where no effort is made to enforce the law at all.
There are also laws that are unenforcable due to court rulings (miscegenation is the most obvious case, but they're all gone now.) When those remain on the books in certain states but are banned from being enforced, is the proscribed behavior still "illegal"?
The law might also be a dead letter which will be removed from the books. A strategic lawsuit could speed the decision process along, though I don't know who would sue.
18 & Others -- On an ObWi thread not long ago, I linked to the Montana Supreme Court striking down the 'basic rule' speed limit as unconstitutionally vague. I'd think 'drunk and disorderly' would fail on that analysis. I'd link it again if I had time . . .
(I think the MSC decision was a crime against civilization, and an encouragement of infantilization -- but that's because I just want to drive 90 mph all the time).
21 -- Not all gone -- wasn't there a thing in Alabama not long ago? And of course there are plenty of statutes barred by Roe sitting on books in one place or another.
Alabama was the last to repeal, in 2000, by 60-40 vote. The abortion laws do serve a purpose- most of them are "trigger" laws that go into effect iimmediately if Roe is overturned. I don't think anyone was planning for Loving v. Virginia to be overturned, it was one of those stupid "heritage" arguments that kept them on the books for so long. My "quotation" marks are out of "control".
21: I'd think that if the statute has been overruled / declared unconstitutional / otherwise superseded, that it's not illegal any more. To the lawyers out there, isn't this what "common law" means?
PS - if you want to drive fast, just get an old man's vehicle, and drive fast but not erratically. And live in a reasonable state like California.
Back when we had a Chevy Chevette with no suspension (or radio or heater, for that matter), we would drive it at 30 mph on earthquake-rippled streets and feel HARDCORE. At 50 mph it just felt scary, so we stayed off the freeways as much as possible.
Loving vs. Virginia is just a series of puns waiting to happen.
"Violation of the basic rule" sounds like the perfect Kafkaesque catchall charge, especially if extended past traffic law.
"Your honor, I aught him behaving in a way which was neither reasonable nor proper".
"That's a violation of the Basic Rule, the very foundation of our civilization. No crime could be greater. I sentence you to life in prison."
10 (and others) there are some pretty interesting (used advisedly) effects of the 'illegal' vs. 'criminal' dichotomy. Medicinal marijuana is an example. In my home state (AK) small amounts of marijuana are either (a)legal or (b)illegal but not-prosecutable in many circumstances depending on how you read certain court decisions (suffice it to say that it is plausibly arguable either way). That is aside from medical prescriptions, which are in the same legal gray zone as all medical marijuana.
This leads to difficult questions about how to treat 'paraphernalia,' whose illegality is triggered by the use in consuming controlled substances, and other goodness.
Basically, it's the last feather we Alaskan's have in our "libertarian paradise" cap...
Support for anti-miscegenation laws is the best indicator for true, hard-core, old-fashioned racism. Alabama 40%, U.S. 20%. You suspect that the ALabama opposition was mostly white, so white racism in Alabama must be close to 50% or even above.
30: I wouldn't endorse that. I think there are portions of many if not most ethnicities who frown on inter-racial/inter-ethnic relationships...my GM is still hoping that I'll meet some nice Jewish girl, for example. (Though she doesn't think it would be illegal for me to marry a WASP, but she's pretty mild on the subject)
Making it ilegal for everyone is pure racism. More than preference or wish for a family member.
It would definitely be interesting to get the exit polling for the 2000 miscegenation vote, broken down by race. Here it estimates that the Alabama electorate in November 2000 was 78% white and 22% black (and 0% other races). But it doesn't mention the miscegenation thing as one of the things on the ballot.
Yeah, and wanting your family to marry within an in-group is different from not wanting them to marry a specific out-group. An Italian-American who really wants their kids to find nice Italian spouses, I may think is misguided but I don't have anything against. An Italian-American who's fine with their kids marrying Swedes, but wants to make it impossible for them to marry blacks? Is being racist.
Sorry for the confusion, I was more taking issue with Emerson's contention that based on the polling numbers, 50% of the whites in Alabama were racist to that level. I'm suggesting that some portion of other races perhaps thought that anti-miscegenation laws were good things.
34: It can get pretty extreme, too. I once knew a young lesbian doukabor who was really, really messed up because she realized she was going to drop her girlfriend to go home, marry and have doukabor kids. She figured she'd be slightly less miserable that way.
I did work it out. If 20% of blacks were racist, 47% of whites would be. If 0% of blacks were racist, 55% if whites would be. Only 2.5% are "other".
YMMV but I think my numbers are right.
I didn't consider the possibility that more blacks than whites were racist.
34: Someone who wants it to be impossible for their kids to marry someone black? Racist. Black men complaining that black women date white guys? Racist, but probably less socially problematic in that they have less ability to make other people's lives miserable.
But "You suspect that the Alabama opposition was mostly white?" - I disagree.
38: don't confuse "racist" with "wants to keep the black man down in his place." In my albeit limited experience, there is almost no correlation between being a member of an oppressed minority and having more positive attitudes toward other oppressed minorities.
39: Man, given the history of anti-miscegenation laws, I'd be stunned if there were any significant non-white support for them. I'm not saying that there isn't some oppostion toward interracial marriage among blacks, I'm sure there is. But those laws are explicitly a relic of Jim Crow, and I have to think that the history makes it very unlikely there's much black support for them at all.
I think that support for anti-miscegenation laws is sufficient to establish racism. The term is thrown around loosely these days, and as a counterattack some people don't want the word used at all. I think that anti-miscegenation is the bottom line. Not wanting to go into black neighborhoods, hating rap music, hating Al Sharpton, -- not necessarily. There's a lot of grey area and not too many people who are not racist at all, but I think that that's the baseline.
Could be. I lead a sheltered life. But all the complaining I read about Asian female / White male miscegnation comes from Asian men, and I've read a fair bit of stuff on how black women do much better economically than black men for a variety of reasons which has all these pernicious influences on social interaction, marriage, etc; and it makes sense that each interracial couple is a much higher percentage of the population of the minority race, and especially if there is some perceived skimming going on.
I'm not sure that there is much black support, but I'd not be surprised at all to see a lot of it.
Hrm. Doesn't the distinction between how you feel about interracial marriage (one thing) and how you feel about preserving anti-miscegenation laws that have no actual effect in preventing interracial marriage but are a historical link to Jim Crow and legal white supremacy suggest to you that the support for the laws is going to be mostly (overwhelmingly) white?
Someone with JSTOR access could read this and get a less speculative answer.
I don't know about where miscegenation falls relative to segregation, but there are some blacks in the south in favor of some level of segregation. I recall a recent story (can't find a link) where a school in the south had separate student councils, separate proms; When forced to integrate, there was opposition from both sides. However, I agree that symbolic things like overturned miscegenation laws are likely to have little minority support because they are symbolic of white supremacy and have no other practical effect. How many blacks were in favor of keeping the stars and bars on Georgia's flag? After all, their ancestors lived in the Confederacy too, right?
And yeah, getting rid of laws that are still on the books but no longer enforced and have a connection to a horrifically unjust period in the not too distant past even if you agree with the essential content of them is important, but I think that's an upper-middle-class-ish thing, and generalizing from one's upper middle class experience can lead one astray.
Like people forget that the California anti-gay-marriage amendment passed less than ten years ago with greater than 60% support.
I hate JSTOR. I have no idea what they think they're accomplishing.
For anyone else who was about to ask, re: 36, what a doukabor was, I provide the relevant wikipedia entry. Note that it will not be found by a search for "doukabor," which besides not being in Wikiepdia (holy crow, good evidence for a non-existence claim!) only has 154 google hits.
45: Done. Basically, the conclusion is that black people are very opposed to miscegenation laws (or at least the SC one), but that the percentage of black people in a given county was not necessarily the main factor in how that county voted.
Another article, this time not behind the a paywall, did regression analysis on the referendums in Alabama (2000) and South Carolina (1998) to amend the constitutions to no longer symbolically forbid interracial marriages.
In Alabama, 49% of whites and 8% of non-whites made the racist vote to keep the amendment, while in South Carolina 40% of whites and 23% of non-whites did. In both states, at the time, whites and blacks together composed more than 96% of the population.
50: Thanks. A briefer summary of the article in 51 is that blacks are also very opposed to anti-miscegenation laws, but less so in South Carolina than Alabama, although the South Carolina ballot measure was apparently somewhat confusingly worded.
So clearly the opposition to these amendments was more white than black, and I'd say also clearly rises to the level of "mostly white", as Emerson suggested in 30. Curses.
Doukhobor. They really should crossreference it.
FWIW, I wasn't doubting Emerson's "mostly white" hypothesis, I just wasn't wholly buying the "all white" hypo, if that makes sense.
54: And to be fair, I'm stunned that the 23% figure in SC is as high as it is.
55: I'm not that shocked actually. With the caveat that my knowledge on this topic comes mostly through anecdotes in the sports context (for example), it's an open question as to the extent which younger generations really internalize the lessons and accomplishments of the Civil Rights movement. We (the Mineshaft) probably overestimate this due to our own tendency to be well-educated progressives.
56 s/b overestimate the degree to which younger generations have internalized this...
The paper linked in 45 found that education was the main factor in voting behavior on the SC law.
Not to derail the miscegenation thing, but: is advertising really so horrible? I'm far more annoyed by the scaffolding itself--and often, the advertising lessens the ugliness, as scaffolding is hardly god's gift to architecture.
Unenforced laws are bad, for all the reasons given above. But a corollary to this is that if the penalties required to actually generate enforceability are disproportionate to the actual offense, we probably shouldn't be banning the thing to begin with.
Don't forget abortion laws! They're never seriously enforced against anybody with any social power! [/hobbyhorse]
I couldn't quite tell from the article -- is Lindsay saying that the advertising revenue provides an added incentive for construction companies to leave the scaffolding up longer than they otherwise would? Cause that would blow my mind.
There is an ugly, ugly temporary poster on a scaffolding on the west side of Madison Ave. around 32nd St., facing south, a huge picture of a man eating a hamburger -- it is so unappealing that I actually avert my gaze from it when I'm walking there.
62: I don't think she's explicitly saying that, but you can't help but wonder.
60: But a corollary to this is that if the penalties required to actually generate enforceability are disproportionate to the actual offense, we probably shouldn't be banning the thing to begin with.
Sure -- whenever you've got an unenforced law, your reasonable choices are to step up enforcement or take the law off the books. But I think enforceability is more a matter of regular enforcement than high penalties -- if police policy were to pull over literally every car they saw going over the limit (even with the limitation imposed by the fact that they probably couldn't pull over more than four cars an hour or so), it'd take a couple of weeks, but people would react by driving under the limit.
If we had a couple of teams going around the city removing (or rendering illegible, if removing were impractical) these signs, and issuing summonses to the shed owners, they'd go away pretty quickly at any reasonable level of penalty.
Also isn't there (or wasn't there last summer) an enormous temporary banner on the scaffolding which covered the entire (narrow) north face of the Flatiron building, which was visible all the way up 5th Ave. to the high 30's? I find it incredible that such a thing would not have been subject to regulation.
is advertising really so horrible?
I think there's a fair amount of research in the urban-blight field that says billboards drive down housing prices and reduce quality of life in a neighborhood. I see no reason to think those flyers are different.
Even more practically, look at the prevalence of billboards etc. in poor neighborhoods vs. middle-class ones. If it were about reaching people with disposable income, I'd imagine that we'd see plenty in areas where people can afford to spend more. Instead, we see very carefully written laws that prohibit public advertising.
(I think it's pretty common zoning practice to prohibit temporary advertisements -- I know it is done in Modesto where my dad was a city planner.)
LB: people do the speeding thing, and it works.
And on a similar likelihood vs. severity of penalty thing, you might be interested to read about one of the new things in meth treatment programs, where you show up 3 days a week to pee in a cup, and if you're clean they give you a $20 on the spot and if you aren't, they don't. That's it.
Illegal immigration penalties are not, in fact, ineffectively light. They are quite severe, just erratically enforced. The immigration system in this country isn't harsh or lax so much as it's arbitrary: some people can stay here for years and years and years illegally; others get utterly and completely screwed.
Like LB suggests above, one problem about any underenforced law is that it opens the way to selective enforcement and profiling--like racial minorities being pulled over way more often for traffic violations, or the selective deportation of immigrants from Muslim countries after 9/11.