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Archive for December 5th, 2012

Squeeze human nature into the straitjacket of criminal justice and crime will appear.  –  Karl Kraus

Criticism is distinguished from insult by its intent; the former is an analysis and can even be constructive, while the latter is simply an attack.  So while the two may be indistinguishable to the irrational person (who nowadays is as likely as not to refer to either one as “bullying”), the rational person understands that the two are not interchangeable.  Ad hominem arguments provide a useful demonstration of the difference:  valid criticisms are specific, coherent and similar to one another even when negative, while the terms used in ad hominem attacks by different people may be all over the map; as I wrote in “Ad Scortum”,

I’ve been expressing my opinion online for eight years now and I’ve been called a “liberal” and a “conservative”, a “feminist” and a “misogynist”, a “jingoist” and a “cultural relativist”, a “slut” and a “prude”, and any number of other totally-contradictory terms…whatever the accuser felt would invalidate my argument with the particular crowd I was addressing.

Similarly, those who make attacks unsupported by facts or logic are wont to conflate pejorative terms, pretending that they can be used interchangeably when in fact they refer to different ideas and concepts.  This is nowhere more true than in attacks on private, consensual behaviors such as sexual activities (including sex work) or drug use; prohibitionists regularly (and willfully) confuse five different concepts, so a straightforward definition and delineation of each one may prove useful to those who wish to challenge such vacuous arguments.

Sad is the weakest of these conflated pejoratives; in this context, a useful definition might be “violating an individual’s own personal feelings about what would make him happy.”  A typical example of this would be something like, “I think it’s sad that some women have to have sex with strange men for money.”  Those who express such sentiments seem to believe their statements carry some sort of rhetorical weight, but in fact they express no objective information whatsoever; they are declarations of an individual’s own highly personal, highly idiosyncratic preferences and value systems, and nothing else.  Semantically, they are interchangeable with phrases like, “I think it’s sad some people prefer watching football games to reading books,” “I think it’s sad that some people can’t appreciate Rachmaninoff” or “I think it’s sad that some people subscribe to irrational belief systems.”  When the pejorative “sad” is applied to people who prefer computer games to drinking it is usually understood to be wholly subjective and irrational, but when applied to sex work it somehow becomes a valid argument for criminalization.

Rude is the weakest of the five which nonetheless makes a statement about external reality; in this context it means “violating the generally accepted manners and mores of a group.”  Rude behavior is that which offends the feelings of the majority (or at least a substantial minority) of people within a culture or subculture, but causes no physical harm or property damage.  Sexual comments directed toward strangers may be rude, but that’s all they are; no matter what many feminists and nanny-staters may proclaim, they are not criminal, nor should they be.  Mere insult which does not result in physical harm, measurable damage to reputation or economic loss cannot be grouped together with actual assault, theft or character assassination no matter what the tissue-paper feelings crowd may claim, and laws which criminalize rudeness provide almost as wide an avenue for tyranny as those which criminalize imagined offenses against rulers, dead people or insubstantial personae.

Immoral is probably the most widely-misused of these five words; it is regularly employed to mean something barely stronger than “rude”, when in reality it means “violating the rules which nearly every sane, decent person accepts as governing interpersonal relations.”  Theft is immoral; there is no culture in the world where it is regarded as acceptable to take that which doesn’t belong to one.  Similar statements could be made about rape, murder and many other things.  Now, this isn’t to say that privileged groups don’t come up with rationalizations for whatever immoral behavior they find convenient, but such justifications are easily recognized as specious by simply considering how the behavior would be viewed if one of the members of that group inflicted it on one of his peers rather than an outsider.  On the other hand, no matter how loudly the Bible-beaters condemn homosexuality as “immoral” or neofeminists apply their own synonyms for the term to porn and prostitution, these things are not and cannot be “immoral” by any valid definition of the word because they are voluntary interactions which are acceptable to those who choose to participate in them, and are only “wrong” according to some arbitrary, externally-imposed dictum to which the “sinners” clearly do not subscribe.

Illegal is such a straightforward concept that it’s actually quite astonishing that people fail to understand it, yet it’s routinely conflated with “immoral” and “criminal” by those who are easily confused.  The actual definition is “violating some law or regulation established by a government.”  That’s all.  If there is a law against an activity, that activity is illegal whether or not it’s immoral, rude or anything else; conversely, just because an activity is rude or immoral does not automatically make it illegal, nor should it.  There are a number of philosophically-offensive yet practical reasons why some few things which are not immoral should be illegal, and there are a plethora of excellent reasons why most things which are immoral should not be illegal; I discussed this at length in “A Necessary Evil” earlier this year, so there’s no need to rehash it here.  For now it suffices to point out that illegal does not equal immoral, whether anyone thinks it should or not.

Criminal is probably the least-understood of all these pejoratives, which is all the more troubling because it is also the strongest of the five.  Furthermore, it’s also the only one which forms a subset of one of the others; the other four concepts overlap and intersect, but there are some members of each set which do not fall into any of the others.  “Criminal”, by contrast, falls entirely inside of “illegal” just as “dog” falls inside of “animal”:  all criminal activities are also illegal, but not all illegal activities are criminal, which we will define here as “violating a law which is so serious that state actors are justified in breaking moral precepts (or even laws) in order to stop it.”  Few people would disagree that police have the right to arrest (i.e. assault, restrain and cage) a man caught in the middle of committing a rape or robbery, or that the state has the right to fine (i.e. rob) or incarcerate (i.e. cage) that man if he is found guilty of the crimes of which he is accused.  But what about a “crime” like “improper left turn”?  Should police be allowed to brutalize and detain a person for failing to see a sign?  How about for violating a seat belt law?  Engaging in sex with another consenting person in private?  Having leaves and buds of a common weed in one’s house? Building a shed in one’s yard?  Removing insects from some rubbish while cleaning it up?

These are not merely academic questions; all of these things are illegal in the United States under certain circumstances, and because even the Supreme Court has fallen prey to the widespread conflation of “illegal” and “criminal”, police are authorized to inflict brutality, up to and including potentially lethal force, for the violation of any one of them.  It is possible that many of those who favor making laws against rude or individually-upsetting behaviors do not recognize that the ignorant and wrongheaded conflation of “illegal” with “criminal” is now the law of the land; it may be that they do not comprehend that they are opening the door for men being tased and beaten for clumsy flirting or women being abducted, caged and impoverished for allowing their children to play outside.  I think it’s more likely, however, that most of them absolutely do understand, but are so delusional that they believe the demons they unleash will never return to haunt them.  “Sad”, “rude”, “immoral”, “illegal” and “criminal” are separate concepts and must remain so for a society to remain free; conflating them releases the brakes on a juggernaut of injustice which will inevitably crush everything in its path.

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