The Primacy of Bad Arguments

I usually don't take it to be in my purview to attack political humor or satire  I generally take it for what it is - entertainment. But given how many people, apparently, turn to entertainment to be politically informed, it's occasionally worth pointing out the silliness of some of the arguments you can find therein.

That brings us to the following jab:

It almost sounds like a reasonable argument. And "almost" is just enough for a whole lot of people out there by the looks of the social frenzy that is FaceBook. So let's break down why this bit of criticism doesn't really hold up too long after put under the faintest of lights.

It seems that most criminal law (at least of the sort that is concerned with actual victims) could be roughly divided into two types of legislation; laws against violating the rights of other people, or laws against things that might aid you in violating the rights of other people. It's worth noting that things in this second group often have no intentional context. That is to say, their aim may not be solely at people who intend to commit crimes. For instance, the reason you're not allowed to own countless sticks of dynamite and horde them on your front lawn is not because people necessarily think that you plan on hurting someone. They think you might do it regardless of your intention (accidentally).

Arguably, that is (or should be) the primary reason for this second set of laws. We don't need a specific law, for instance, against murdering someone with explosives - because murder is already against the law. And if you had planned on killing people with explosives, barring their sale or incriminating their possession isn't going to be a an effective deterrent. As long as you are able to make it yourself, or purchase it illegally, then these types of laws won't sway your action at all. And if you're willing to suffer the consequences of taking another person's life, why would we believe you'd moved by the threats of punishment brought to bear for pettier crimes? At best such legislation is merely increasing the number of hoops you have to jump through.

So, given these subgroups of law, we can see that some laws are primary in that they directly concern violating the rights of people, while other laws hinge on the primacy of the first group, and are enacted to decrease the chance of such violations happening to begin with. Understanding that, we can see how someone could argue that the ineffectiveness of laws in the second group (solely as a deterrent to those who intend to commit crimes) disproves their need, while still holding onto the primacy of laws in the first group (regardless of their deterrent quality).

Laws in the first group (against murder, theft, etc.) are, at least nominally, simply reflections of my natural rights. Their efficacy, in what they effectively deter, is immaterial. They aren't simply means to the ends of preventing personal violations of rights. They are primarily the embodiment of the ends themselves (my actual rights).

No one is challenging this set of laws.

However, the efficacy of this auxiliary (or second) set of laws is their only object. Simply possessing explosives is not a direct violation of anyone else's rights. The laws against their possession are justified (if at all) only to the extent that they function in a preventative manner with respect to the primary laws. Any laws in this group that can't or won't function as such are not simply bad - they are incoherent and subsequently useless.

Let's look at a different example:

Let's say that legislators are proposing to make it illegal to drive to someone's house with an axe in your trunk. Having an axe in your trunk, by itself, is not a direct violation of anyone's rights. The attempt here, obviously, is solely to prevent you from using an axe to violate someone's rights. Now, if human beings had the uncanny habit of accidentally opening their trunk and hurling objects from it at people, maybe there would be a good argument for it as a preventative measure. But how will this function as a way to prevent people intent on murder from carrying it out?

The short answer is that it won't. If you are willing to drive to someone's house to kill them with an axe, the pettier crime of bringing the axe with you isn't going to prevent you from doing it. Just like making it illegal to wear a ski-mask in a bank isn't going to prevent people from robbing banks (or wearing ski-masks while they're doing it).

And pointing out the incoherence of laws like that doesn't push you into the fringes of calling all laws incoherent or useless. Some laws make no justificationary appeals to deterrence or prevention. They simply define the contours of our rights as human beings. And others, well, those appeals are all they have to begin with. Without asking ourselves about the purpose and function of things, we won't reasonably to able to discern the grapes from the vines; the constitutive from the instrumental. The law is no exception.