I’m sorry if I was unclear in my post above. Law and morality are indeed separate entities. When I say that law and morality cannot be separated, what I mean to say is that morality will somehow impact the APPLICATION of the law.

Law much like economics is really a reasoning tool. It is naive to think that a person who knows his law well, ‘cos he gets lots of As in law school and ends up with 1st Class Honours, will necessarily be a good judge.

Of course, a person who doesn’t know his law is unlikely to be a good judge. Nevertheless, while good law is a pre-requisite, a good dose of common sense (commonly called wisdom) is also required.

An interesting example is the recent McCrea case. Since McCrea was charged with only culpable homicide (maximum sentence of 10 years), there was a possibility that the outcome of the case would have completely messed up the criminal justice system, since his accomplish got 12(!) years. The judge however applied his law and managed to resolve a somewhat messy situation (arising from Singapore’s undertaking NOT to hang the fella).

Basically, how do you ensure that justice is done when the fella has “committed murder” and yet you cannot charge him for murder ‘cos you cannot hang him? The judgement is not out, but I’m personally happy with the verdict. This is my reasoning: for murder, you get death (only one death sentence ‘cos you cannot die twice). Life is twenty years. There’s no reason why we should commute McCrea’s death sentence to a life sentence for nothing, so we levy a 20% tax. 20 x 1.2 = 24 years. Seems like a reasonably “just” result given the constraints to me. After you figure out that 24 years is good, you then use your law to justify your answer.

It’s interesting you draw the link between morality and the law.

Whilst i agree with everything you say about the ’spirit of the law’. Could i once again provide pts to ponder.

Hart in commenting on the issue “what is law”, observed and remarked that law and morality are separate, and when it coincided (ie. a lawful choice would be the moral choice), it was purely accidental. The reason he said so, was that by observing ‘rules’ and deciding which ‘rules’ were ‘laws’, it would be too stringent a test, and many laws we have today would not be ‘laws’ by that definition.

Also, another pt of discussion might be the issue of justice. If i posited that law and justice were separate - in the sense that justice could be determined by natural intuition (and hence perhaps by natural law). However many laws we have these days are not natural law derived, and thus laws do not necessarily mean justice is done. Furthermore, couldn’t justice be spilt into 2 stages, ie. formulation and arbitration. Just because a law is not just does not mean the application of the law is not just.

Sorry if i seem to be picking at fine hairs, ignoring the forest for the trees. But often when looking at the forest, we fail to see the difficulties of navigating the trees. It’s all in the interest of providing a balance evaluation.

Talking about democracy, the KTM recently spouted some nonsense about democracy. Wanna take a look, return favour and leave me a comment or two?

You are not talking nonsense. I am just trying to find out where you are coming from. And anyway, I was never engaging in this discussion as a “lawyer”. Our discussion is about the purpose of the law, and such a discussion should never be confined to just lawyers. I believe that since everyone in society is affected by the law, then it should be open to anyone to debate and discuss the purpose and effect of laws. Isn’t that what democracy is about?

You are absolutely right — given any scenario, you can come up with a logical framework using your model of harm and consent. That is what the KTM means by the letter of the law.
However, in my opinion, true justice requires one to transcend the letter (or word) of the law to embrace the spirit of the law.

Perhaps the KTM is talking nonsense. You will have to indulge him, since the KTM is NOT a lawyer by a long shot.

Very simple. When you steal from someone, you do 2 things: firstly you deprive them of their property without their consent, and secondly you impose a cost upon them by depriving them of their property without compensation.

As you can see, there is no need to consider morality at all. If you take something from someone because they GAVE it to you, or if they consent, or if you PAID them for it AND they consented, then can it be considered stealing? The reason why we punish people for stealing is precisely because they violate other people’s consent, and impose a cost upon them. Criminalising theft has nothing to do with morality, but more with preventing people from imposing costs upon each other.

And as for your scenario with jean valjean vs M$, I can’t see how is there a connection. Jean Valjean would have been guilty of theft under the law, but then there is a defence of necessity available to him (rarely used and rarely successful, but then again, who can use necessity as a defence for stealing bread when bread is so cheap?) as he was trying to get food for a sick baby. Microsoft, if anything, is guilty of breaches of antitrust issues, which is really a matter of economic policy rather than anything moral.

I disagree with you that justice is instinctive. People do lots of nasty shit by instinct. I’m sure homophobes and religious fundamentalists bomb and kill people because they truly subjectively believe that they are doing justice. Maybe you might want to ask them for their views?

I can tell you now you can give me any scenario and I can give you logical framework using my model of harm and consent as the basis of lawmaking. There is no need to involve morality, which varies and differs according to cultures, traditions and religion. To use morality as a basis of lawmaking is to invite disaster and to impose the values of those who are most conservative upon the rest who are not.

Cannot lah. How can morality be left out of the law? How then do you justify that it’s a crime to steal from others? What is the difference between Jean Valjean steal bread (Les Misérables) and a monopolist (think Microsoft)?

This is what I believe. I believe that there is a law above all laws (sorry I sound like Aslan :-)), and that is: the law exists to protect the society and to uphold justice. I’ve never been impressed by those who quibble over the word of the law and yet fail to see forest from the trees.

What is justice? I believe that if we will just look within ourselves, it’s something that we know by instinct — and our instincts about justice are intricately linked to our values and sense of morality.

It must be clear that the issue of harm, and consent to harm, are subjective beliefs. Not that i’m disagreeing about it, but even still judges and indeed legislators are creative in justifying criminalising ‘consensual’ behaviour. ie. factors vitiating consent.

Further more one might consider that among libertarians, there exists a great spectrum as to the opinion of how important self and self rights are.

To complicate matters, one might want to consider how rights to self are derived (ie. often viewed as natural rights), and thus impacting on how absolute such rights are. ie. Locke v Nozick etc etc etc.

Hey no worries, I know its all in the spirit of a good discussion.
The only thing is, you might think that whatever happens behind close doors, as long as there is no one being forced to do what they don’t want to do, should be left out of the law. But the thing is, not everyone thinks like you. There are many people who like to use the same arguments used to justify drug consumption laws to tell other people that they also cannot do other things to their own bodies.

The reason why I have my position is because I believe that morality should be left out of the law altogether. The law should exist only to protect people from harms which they did not consent to. The problem is, I believe that a significant factor in our lawmaking process has little to do with harm prevention or minimisation, but more with morality