Law and Politics
A FIRST AMENDMENT TO THE CONSTITUTION ACT
SENATE REFORM: A NATIONAL JURY
There should be a specific age when young people take on much of the rights and responsibilities of adults. At the age of responsibility children would be criminally responsible for their acts, able to decide which parent they want to live with in case of separation, or to actively participate in making alternative arrangements, able to give consent to medical and other treatment, able to refuse to take corporal punishment from parents and schools, able to enter contracts regarding personal property, and able to give consent to sexual activity. Above the age of responsibility parents would not be responsible the criminal acts of their children and could force them to leave home although they would still be responsible for their support until 18. The age of responsibility could be marked by a civil ceremony perhaps something like a naturalization ceremony. It should be completely separate from school or any other institution that kids belong to. It could be held at a courthouse with no parents or guardians allowed to be present. It could include instruction but not any examination on the young persons rights, civic duties and responsibilities.
There have been two prominent adolescent/man relationships connected to murders in the last year; (November 03) the King brothers in Florida and Lee Boyd Malvo. In the King brothers case there may have been an intense romance involving the man going on around the time of the crime. And perhaps a fantasy of freedom and freedom from, of adventure undefined, of playing adult, of good times. It must have been very powerful fantasy to lead them to murder. They knew what they were doing and got off lightly.
Malvo comes across magnificently as a bright, naïve and boastful teen. No remorse which could suggest it was all a game for him. He has a low sympathy starting point from which he could improve dramatically before hes finally sentenced. Rehabilitation, and maybe mercy, for one so young and naïve manipulates, tugs the heart. He is also a good looking boy, he didnt seem disturbed when I saw him on the news. In other situations you might see him as having promise, or you might want to befriend him. He murdered ten and wounded three people. He knew what he was doing but it was also connected with a fantasy, maybe a ten million dollar one. Maybe he saw the world at his feet. He is as responsible as any adult could be. Many adults admittedly are not very responsible but they lack the freedom, know how and desire to become random snipers.
Although I dont like their capital punishment law I believe Malvo should be sentenced as an adult. Teenagers should be treated as responsible people. They have no less a right to their lives than adults. Their cultures and scenes need to be respected. Discriminatory laws and regulations need to be moderated and giving young people a voice should not concern adults and bureaucrats beyond removing impediments. But young people need to be seen as responsible in other ways. I would think you should be old enough to legally fuck well before youre old enough to fry. Murder is a very responsible act, much more so than fucking.
Coercing "offenders" to renounce their beliefs, loyalties or their understanding of reality or truth seems to be regaining fashion in these postmodern days. They used to call it recanting. This is moral punishment, an assault on peoples conscience and honour. It includes forcing people to say things they do not believe in and betray their friends, and loyalties as well as beliefs. The forcible conversion of Jews and Pagans to Christianity is a prime historical example. Parents who inflict shame and humiliation on their children to make them behave are a contemporary one. Moral punishment, such as telling children that their "bad" behaviour hurts God, has long been a favourite way for Christian churches to inculcate guilt and obedience. Moral punishment is a particularly invidious punishment for those individuals with a sense of honour and respect for truth.
A common but minor example is where defendants have to feign remorse where they feel none in negotiating lenient sentences. Another, legally mandated form of moral punishment is the "shame the johns" campaigns. The police departments in several major Canadian cities, appropriating the role of corrections, have set up "john schools" to deal with men charged with soliciting prostitutes. These "schools" are widely heralded by prominent media commentators, and liberals and social conservatives alike see them as a progressive measure. The men who patronize prostitutes do so for a variety of reasons some of which are constructive and ethically appropriate to their situations. Not that they should be but these considerations are legally irrelevant. Prostitutes are an alternative to adultery for many men, just as homosexual liaisons are for others. Other men know of no other way to find physical intimacy.
The john schools are designed to convince clients of the evil of their behaviour, and to believe that they are to blame for the problems sex trade workers face, and that they should change their ways. Reformed prostitutes, prodigal daughters, lecture them on their victimhood and in effect accuse them of the addictions lost of self esteem and whatever else they suffered. The men are shown images of diseased genitalia perhaps to discourage them in the way that diseased lungs are shown on cigarette packages. Residents of the latest neighbourhood to which the police have chased the ladies of night express their concerned about the impact of street scenes, discarded condoms and drug paraphernalia have on their innocent children. What is a child to make of a discarded condom? That sex is a market commodity, like pork bellies and political favours, must be hidden from children. The common knowledge of yesteryears urban youth must become an adult secret. We just dont trust kids like we used to. The john schools are attempt to coerce men into publicly acknowledging things they probably disagree with. They are in the tradition of the Moscow show trials of the 1930s, the McCarthy hearings of the Un-American Activities Committee in the 1950s and the Inquisitions of the Holy Roman Church of the early modern era. John schools are a manifestation of the same totalitarian mentality, to make people betray themselves by targeting their sense of self respect.
While assaulting a persons moral integrity may be more effective than assaulting their flesh it has no place in a free society. A good thrashing, perhaps with a little blood for show, leaves the offenders self worth more intact than coercive manipulation of their freedom of conscience. The authority gets its moral satisfaction and the offender retains his/her moral integrity. Flogging would be an ethically superior solution but it fails to meet the requirements of victimological theory. It might also mean that good parents should beat their children, not to punish them, but to prepare them to endure the violence of the state.
Recently in Winnipeg, December 2002, there was the case of a seventeen year old Kelvin High School student who was arrested as a result of an underground drug sweep and convicted of distributing the popular rave drug ecstasy. The judge, Cathy Everett not wanting to jail him ordered him to write a twenty page anti-ecstasy essay and go on a speaking tour of at least eight Manitoba schools using his essay as a guide. He came back with an intelligent, well researched twenty four page essay describing the risk factors of ecstasy and how to avoid them. He recommended moderation, not abstinence, and advocated on-site pill testing. Her Honour was horrified and gave him an "F". She told him to produce a simplistic dont do drugs tract by consulting with the police vice squad and anti-drug groups. He was in effect ordered to recant as if he were some recalcitrant heretic.
The boy, who of course cannot be named, is among the true heroes of free expression in this age of dogmatic correctness. If anything is to be deemed "a cruel and unusual punishment" his fits the bill. I doubt if our politicians, courts or state funded therapists would see it that way. They have redefined the old virtues of truth, honour, loyalty and daring, for youth at least, as pathological. And their psychobabble about "self esteem" is the acme of hypocrisy.
The Santo Nino ( Holy Male Child) is worshipped by many in the Philippines. His image is everywhere. His statue, often with a globe in one hand and a wand in the other, is common in household alters, and decorates taxis and jeepneys. His adoration rivals that of the Virgin Mary. He is the patron of the Ati-atihan, the great mardi gras of the Philippines held in Kalibo which I mention in Manilamanic. The popularity of the Santo Nino goes beyond his religious significance and he has become a secular icon. I have purchased statuettes in souvenir stores for tourists. I once saw an exhibition of Santo Nino images and statues in a museum in Iloilo, a large provincial town. There were hundreds of them some centuries old. They ranged from small carved anatomically correct ivory dolls to richly garbed, life sized statues of ten year olds.
Originally I assumed that the Santo Nino was the Christ child but then I read the actual story by a well known Filipino writer, Nick Joachim. It is the story of the Holy Child of La Guardia which occurred in southern Spain in 1491 when the Moors and the Jews were being expelled from the peninsula. A beautiful blond Christian boy was supposedly missing and two Jews and six Conversos, Christian converts from Judaism, were charged by the Inquisition with killing the boy, and using his heart in secret Jewish rituals. The defence lawyer argued that his clients were innocent and pointed to the lack of a corpse. Apparently however, this fact was not in the accused's favour for the inquisitor ruled that the child was so perfect and pure that his body ascended straight to Heaven. The lack of a corpse was proof of the boy's holiness and the iniquity of the accused who were promptly burnt at the stake. The case was publicized by the Inquisition throughout southern Spain and helped convince Queen Isabela and the public that drastic action against the Jews was required. The publicity, essentially anti-Semitic hate propaganda, led to the growth of a cult surrounding the holy boy, or the Santo Nino as he was known. Thirty years later the Spanish arrived in what became the Philippines and started burning their literature and felling their sacred trees. The original Magellan expedition left behind a statue of the Santo Nino which miraculously survived decades of Spanish absence. The islanders easily adopted the formalities of Roman Catholicism. and in particular the worship of the Santo Nino.
In contemporary Canada while we may convict murderers without a corpse we don't use the lack of a corpse as proof of guilt. We do however use lack of harm as an aggravating factor in certain crimes such child sex abuse. Modern day inquisitors who may well be Jews in the garb of psychotherapists argue in a vein similar to that of the persecutors of their forebears that the apparent lack of harm and willingness of many child victims is due to the diabolical cleverness of the pedophile thus making his crime all that much worse. It is argued that if a child is willing and has a positive experience they are likely to feel at least partly responsible for their abuse and suffer from guilt. Of course if the child was coerced then that is also an aggravating factor in the Catch 22 world of Canadian sex laws.
Politics is a jealously guarded adult preserve. Generally young people have more important things to concentrate on than trying to figure out what is going on in the provincial capital or Ottawa. Political parties dont have much to offer those too young to vote. Our parties have no tradition of organizing youth and providing them with propaganda, meaning, power and possible reward. And the party youth branches are university oriented and usually controled by members pushing thirty. There may be an enormous number of young people educating themselves on the Net about politics and how it works. This may be a very good way to learn about a variety of political questions as well as sex. There is so much, maybe too much to handle, out there with a far wider range of expression available than ever before. Teens exploring politics on the Net are likely to be more sophisticated and hopefully less ideological.
If we are to retain elections as the sole way to select our law makers and leaders (something I disagee with) young people should have more hands on roles. Local politics affects young people most. The local government is involved in policing, by-laws regulating their entertainment, behaviour, and their recreation such as skateboarding. It provides the parks, community centres and swimming pools they disproportionately use. Some municipalities even demand curfews for young nonvoters. I think their respect for politics, perhaps even for the law, would improve if young people could vote in local elections which affect them. They would become an interest group that politicians would have to cater to, just like a bunch of others. They would receive more respect in turn. Too often they serve as a free fire zone by uprighteous politicians and media sensationalists as we have seen in the often vindictive debates over young offender legislation and punishments. Voting at the local level where there there are issues relevant to teens could lead to higher turnouts in provincial and federal elections when theyre adults. Sixteen might be a suitable age to introduce kids to real voting. At what age would kids become interested in political affairs if they included things that affected them and they knew they had a little bit of influence?
Civic politics would impinge on school student politics, maybe drawing interest away. It could also mean that student politics would have new issues to consider and maybe some penetration by the parties. I think I was thirteen when I marched in my first protest parade. In 1947 the chocolate bar companies were raising the price from five to seven cents. The Communist Party Club at Central Junior High organized a protest parade from the school down Yates Street to downtown and Victorias city hall. It seemed be huge. I made up big posters depicting the chocolate bar capitalists as Hitler, Mussolini and Tojo. The price went up and soon was a dime. Politics might ease the transition from the real politics of school to that of the state. I would not be overly concerned about protecting the children in the (formerly) smoky back rooms. Politicians would have to go after kids just like do the seniors.
A FIRST AMENDMENT TO THE CONSTITUTION ACT
- Note: The Constitution Act, 1982, and The British North America Act, 1867 (an act of the British Parliament) are Canada's constitution. They're readily available on the internet for those interested.
Frivolity, posturing, panic, ignorance and cynicism are all reasons why laws come into being. And then we are stuck with them. Unlike most things laws can be created with much less time, money, effort and thinking than it takes to destroy, or in this case, repeal them. Laws become albatrosses around the shoulders of the body politic. It is nearly impossible to rid ourselves of our repressive drug, prostitution, pornography and sex laws which began as little more than righteous whims and good intentions.
Many years ago there used a novelty feature in the printed media called It's the Law which contained quaint and exotic laws and by-laws in existence around the world. It would include such things as merchants being required to install hitching posts in front of their premises so horses would not be wandering in the street. Periodically some of these archaic pieces of legislation are repealed but unless their absurdity has become patent to all they can still impact on citizens. We have a number in our Criminal Code such as a prohibition on crime comics which resulted from a hyped panic some years ago that our parliamentarians found irresistible.
New crimes are often created frivolously without any debate such as a few years ago when the possession of khat, a mildly stimulating leaf from East Africa, was made illegal merely as just good legislative housekeeping. Canada was doing some peacekeeping there at the time, and Somalians commonly use it. I don't know if the Somalians were a factor but historically opium was made illegal as it was associated with the Chinese and later marijuana was prohibited largely because it was associated with blacks and their culture. I'm not sure if khat, like marijuana some sixty years earlier was even mentioned by name in Parliament at the time. It is a sad fact that laws which eventually affect many people and become controversial are enacted without any debate of substance on their need.
Politicians are more at home figuring out how to do something than they are at deciding if they should do anything in the first place. Appearances are important. They are less likely to be blamed for doing the wrong thing than for doing nothing, even if that was the right thing to do. The problem arises that after ill considered measures have been on the books for many years they become entrenched and attain Solomonic wisdom. With vested interests growing up around them they become difficult if not impossible to change or repeal. Drug law is a classic example. Repeal is seldom a realistic option. Many bad or no longer appropriate laws created entrenched vested interests with a real or imagined interest in maintaining the law. A debate about repeal would re-ignite controversies and passions. It would be better for Canadians if many laws, or their penalty clauses, were to simply lapse quietly. We need to be realistic about how laws come about, and acknowledge that facts and their interpretation change.
All laws need to be reconsidered every generation but this won't happen unless there is a mechanism requiring it to happen. I am suggesting a constitutional amendment that would require all criminal laws to be remade every twenty years. However, rather than entire laws being automatically lapsing after a period there should be a sunset provision on their penalty clauses. The law would still be on the books, and people could be charged, tried and convicted, but there would be no sentence other than possible ignominy. The chances are that for any matter of serious concern there would be a new law in place well before the old one's penalties are to expire. But there are situations, possibly with some drug and helmet laws, where doing nothing could be a smart policy.
New or replacement laws under this proposal laws would have be introduced, debated, studied in committee, exposed to the representations of citizens, activists, lobby groups and vested interests. Making laws should not be easy. Parliament would have to go through each section of the Criminal Code every twenty years. The provinces would have to rework their laws restricting civil liberties and enforcing human rights. Cities would review curfews, smoking bylaws and many other ordinances. It would keep Parliament and other legislatures busy leaving them less time to wander off into legislative byways that temporarily catch their fancy, but which may plague the populace down the line. The amendment might read:
- The penalty provisions of all criminal laws (a schedule could be provided) shall cease to be effective twenty years after their proclamation, and cannot be restored by any act of a legislature. Notwithstanding the absence of any proscribed penalty the Crown may continue to prosecute and courts may render verdicts if it is deemed in the public interest to do so.
Basically the proposal recognizes that laws may be enacted without adequate debate, on the basis of erroneous or insufficient information, the connivance of elites, or under conditions of moral panic. The intended effect of the proposal is to ensure that the constitutional, social and cultural issues these laws impinge upon are subject to full public debate once every generation.
To the extent that laws carry moral weight there is no need for penalties. Generally people do things or don't do things for reasons that have nothing to do with legal penalties. Yet law assumes that penalties, fear of consequences restrain people's, or at least potential law breakers', behaviour. Mind you there are many who have blind respect for laws and would not do things merely because they are illegal. This is civic irresponsibility, but common in this freedom fearing nation. Breaking bad laws is a step in changing them. Obviously penalties have some effect but my experience in jail suggests they are grossly overrated, especially by law and order types.
What about laws with no penalties for their violation? They could still be enforced, charges could be laid and people brought to trial and convicted. This in itself penalizes the alleged offender's time and money but at some prosecutorial cost. The concept that prosecution is punishment regardless of the verdict is not new and is used to harass unpopular people and groups. Penaltyless laws or what might be termed citationary laws might even be enacted as such and could be appropriate in a number of situations. Helmet and seat belt laws, laws which rely on community acceptance rather than enforcement come to mind. Any area where people feel a need to establish propriety; laws against such things as profanity, nudity, wearing strong perfume, farting, slovenliness all of which may be offensive to many but are hardly worth fining and jailing people for doing could be candidates.
Sunset provisions for penalty clauses would cover all laws that regulate the thoughts and acts of the public and proscribe penalties for their violation. It would not generally apply to laws that regulate things, safety regulations and devices, product labelling, building standards and administrative law generally. It would apply to laws prohibiting skateboarding, begging, smoking in public places, wearing helmets and safety belts, registering guns, spanking children, drinking, sexual behaviour, obscenity, pornography, assault, murder, theft and fraud.
It could be argued that some basic laws should be exempted such as those pertaining to murder, aggravated assault, rape and armed robbery, all of which are crimes committed by one person against another under common law, and have traditionally been condemned in all developed societies. Aside from these there have been other things deemed as crimes only at certain times and in certain cultures. This would include drug laws, alcohol prohibition, laws targeting gambling, obscenity, hate, heresy, blasphemy and most sex and moral crimes such as adultery and bigamy, all of which are essentially legislative electives. Laws against drugs, Jews, coffee, heretics, smoking, polygamy and pornography (and they really should be lumped together) are merely expression of elite morality. Even the most basic laws should, I believe, be covered by the proposed amendment. It might be especially useful in dealing with plethora of new hastily enacted laws dealing with terrorism.
SENATE REFORM: A NATIONAL JURY
There are periodic calls for Senate reform in Canada. The existing system where the members are appointed by the Prime Minister give it little status in the public mind. It is useful as a place to park unwanted politicians and reward loyal party members. Occasionally it provides some constructive second thoughts on parliamentary bills. Having its members selected by the provinces offer little improvement. The idea of a "Triple E Senate", elected, equal and effective, similar to the American Senate that was championed by Preston Manning among others, would essentially duplicate the House of Commons and suffer similar limitations in that they would both be elected bodies.
Election does not exhaust the possibilities for democratic government. Obviously we cannot create a situation of direct democracy like the New England town hall meetings where everyone could vote or the great councils of old Polynesia where all could speak and consensus was achieved. In modern jurisdictions with large populations direct democracy is impractical and various forms of representative democracy have evolved with elected members. But how representative are they? Currently there is some debate about this and alternatives to what has been called the "first past the post system" have been employed. In some countries there are run off elections and in others a system of proportional representation has been adopted. Ireland has an interesting and unique system which is similar to the preferential ballot system that was used briefly in British Columbia during the 1950s. I do not intend to debate the pros and cons of these electoral systems but point out that all electoral systems do a poor job of reflecting the diverse interests and opinions of populations. I would offer as an example that while for many years about a third of the Canadian population has favoured legalization of marijuana but not one parliamentarian until very recently has, or has dared propose it. Under any system where candidates have to try to appeal to a plurality of the voters many minority opinions are necessarily neglected. It is very dangerous for any politician to support a policy that a majority of the people strongly disagree with. This means that many ideas, opinions and proposals are simply not voiced.
There are several serious flaws in terms of democracy that result from the electoral process. Candidates for office if they are to have a chance of success must get the nomination of a major political party. Only they have the resources to get a candidate elected. Both parties and voters must compromise and while this may often be a good thing it means that democratic electoral choices are fairly limited. Except where this an overriding desire to throw the rascals out voters cannot be very articulate. While minor parties or independents may offer specific policies that may appeal to many, as does the Marijuana Party, voting for them is likely to be seen as a futile gesture. There is some truth to Dan Piraros 1995 Bizarro cartoon showing two old timers in their rocking chairs where one says: "Any person who is willing to go through what it takes to get elected is clearly UNFIT to hold office." The process of winning an election may involve promises and political compromises not in the best interests of the jurisdiction and once in power they may have to compromise longer term benefits out of concern about re-election. The low expectations of public does give governments considerable room to maneuver.
Selecting parliamentarians by lot would overcome the failures of electoral democracy. The results in terms of accurately reflecting the interests and views of the general public would be more democratic. While I believe that we should retain the present elected House of Commons I believe that the Senate should be replaced with what I call a National Jury which like a regular jury would be selected by lot. The National Jury would operate in some ways like a parliamentary committee and in other ways like a jury. It would hear evidence and in effect try proposed legislation. It would have to approve all bills before they became law. This would I believe eliminate most of the legislative foolishness resulting from the present system.
Members of the National Jury would be selected by lot. The principles of lotteries are widely understood and there are numerous examples of lotteries in Canada to provide a practical understanding. Everyone over the age of criminal responsibility and subject to criminal laws would be in the National Jury pool. This would include inmates of asylums and prisons who probably need political representation more than most people. This would mean that in some cases provisions would have to made for caretakers and even guards to accompany the members. Whether to exempt the totally incapacitated needs to be discussed. A National Jury would bring a vastly greater range of perspectives, interests and ideas into the political decision making process. There would be ordinary people from all walks of life; sales clerks, petty bureaucrats, factory workers, the unemployed and single mothers on welfare. Lawyers and corporate executives would be as rare as they are in real life. There would also likely be drug traffickers, perverts, scofflaws, spouse beaters, unabashed johns, punkers, etc. all of whom have no voice at present. It would be a cross section of the population in a way an elected body never could be. Like the Senate each province would have a fixed number of members to provide a rudimentary geographical representation. Beyond that there should be no attempt to fix or favour any other type of representation such as religion, language, race or gender. It would be likely that the composition of the National Jury would have more females, young people and poor people than the House of Commons. How many members the National Jury should have is an open question. I believe that it should be larger than the existing Senate but not more than the House of Commons. Three hundred would mean that almost one in a hundred thousand citizens would be a member. Those selected for the National Jury would sit for a fixed period of say five or six years with a fraction replaced each year. They might have a year or six months to prepare themselves before actually taking part in the National Jury. This could include making personal arrangements and educating themselves for their duties, including sitting in on sessions as they see fit. None of the members would face the pressures of party discipline or re-election. The chances of a person serving twice would be extremely remote. A Canadians chance of being a member during their lifetime could be about one in ten to fifteen thousand.
All legislation affecting the general population would have to be submitted to the National Jury. They could require that orders in council be submitted for their approval. They could hear any witnesses, presentations or intervenors and question them. Each member of the National Jury would have the right to invite witnesses. Every citizen would have the right to make written or electronic submissions which the National Jury would be obligated to receive. This would all be public. Like a jury its deliberations would be in camera. Voting on measures would be secret with a simple majority required for approval. Total votes but not individual votes would be made public which would provide an indication of the measures approval for the public. Only after a vote was held would National Jury members, as in American juries, be permitted to make their reasons public.
The National Jury would not be able to initiate legislation or to propose any amendments to bills coming before them. In voting on bills coming before it from the House of Commons it could however break them down section by section rejecting all or any they chose. For example if Parliament passed a bill prohibiting possession of petunias the National Jury might pass the rest of the bill but reject the penalty section. A law without teeth would be a way for the public to have the moral satisfaction of having the law without the problems penalizing law breakers would create. Partial rejection of a bill could force the House to reconsider the legislation and come back with a revised proposal.
Knowing that their legislative proposals would have to before, in fact be tried by the National Jury would make the government and the House of Commons more cautious and open in their proceedings. They would want to make sure that criticisms were heard and potential problems were anticipated. Members of the National Jury after voting on a bill could afford to be a lot more candid than elected politicians could ever be. Re-election would never be a factor and they would not have face pressure from lobbyists or the wrath of outraged activists and interest groups. The situation where major pieces of legislation affecting Canadians are enacted without any substantial debate in the House and passed unanimously would end. This is what has occurred with our drug, sex and pornography laws. Roughly half of criminal convictions are the result of such laws. Third readings would no longer be mere formalities and an opportunity for smug self congratulations. Certainly it would be messy at times but it would be a lot more healthy for Canadians. It could be democracy with a vengeance.
I was acquitted in 1999 of charges of possession of child pornography after a constitutional voir dire where I represented myself. The judge, the Honourable Duncan Shaw ruled that the laws were unconstitutional because they violated the privacy provisions of the Canadian Charter of Rights and Freedoms, sections 7. and 8. Which state:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
Despite my success I was both naive and ignorant, and decided I needed a good lawyer to handle the Crown appeal of my acquittal. After shopping around I chose Richard Peck and McKinnon, prominent defence lawyers who seemed to have good civil libertarian credentials. Peck of course knew that the basis of my acquittal was the privacy provisions of the Charter although there was also a freedom of expression angle. Working with the British Columbia Civil Liberties Association Peck and McKinnon began developing freedom of expression arguments. Despite my concerns and suggestions the privacy aspects of my case were downplayed. They were barely raised and ultimately my acquittal was overturned by the Supreme Court of Canada. I discussed this and how I felt betrayed in my book, R. v. SHARPE: A PERSONAL ACCOUNT found elsewhere on this website. While privacy now tends to be defined in terms of identity theft and commercial data, for which people turn to the state for protection. This is a perverse twist as originally privacy was defined as protection from state interference: A man's home is his castle.
Privacy is not capable of being categorized or a question of degree like freedom of expression, because by being private the content is not known outside the person. privately and voluntarily shared. The contents of privacy are things which cannot be analyzed externally because then they would no longer be private. Anyone defending the right to privacy of another, defends whatever it contains. He does not know or need to know the contents of the particular privacy he is defending. He does not know what exactly he is defending, and though he may be curious it is not relevant to the defence. He cannot know or it wouldn't be private. He is not defending a moral position along some continuum. He is defending an abstract right to be free from interference in his inner life. Respecting privacy is a good thing: it makes things work better. Basically we learnt stone ages ago that things go better if you don't know too much about other people. At some point you have stop judging them and just accept them, and each other, and do your own things. Society works better without spies or gossips who ostensibly care for truth or righteousness.
The inner person thinks about a lot of things. With all the people and things we see everyday in our lives, on TV, the internet or in periodicals and books there's much to think about and many ways to look at, experience and interpret things. You think about other people, what they say and do and probably speculate. You think about yourself and what you do, want to do, and perhaps should do. We may daydream or fantasize. We are there all the time. Thoughts often need to be shared to grow. We may have thoughts that others would regard as obscene, criminal, blasphemous, dangerous, or even evil if they believe such a thing exists. We and others might believe that our thoughts are interesting, enlightened, constructive or normal, even good. Or we may not like them for a variety of reasons, and wish to condemn them. The inner person should not be answerable to society unless there's a very good and very personal reason by some person he has wronged or harmed. One's privacy and integrity of person and personal papers should only be open to state search and seizure where there is a specific victim making claims of specific wrongs. Perhaps there should be legal procedures to establish that a wrong has occurred. It shouldn't be made too easy. The person or those close to them would have to show that they were wronged. But redress should be there for the wronging. Redress is often, if not usually better than punishment.
Many people seem to think that the core concern of privacy is that no one uninvited gets to see their genitals, especially if there are children involved. The physical body is a minor aspect of privacy. For others privacy is the actions of the mind and the things that record, remind . It would not surprise me if those most concerned about physical privacy are least concerned about the privacy of one's papers, library, albums, hard drive, mementos and collections that give pleasure. The kiddieporn possession laws, as I emphasized in R. v. SHARPE: A PERSONAL ACCOUNT were the first laws in Canada to criminalize works of possibly art and products of the imagination.
Law and Politics
Architecture, Socialism and de Sade
Content of this website is released with copyleft license, that is you are free to copy, redistribute or use it for your own purposes provided you retain the present copyleft notice including my name and contact information, allowing others to subsequently reuse the material. Robin Sharpe, firstname.lastname@example.org.