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Law as delegation of self-responsibility

In how far should the law decide instead of ourselves? What makes the law a delegation of self-responsibility, and what is the structure of that delegation?

Since mankind began to congregate in social systems, tribes or states, we invented certain laws, to regulate our interactions. Most of these laws follow pragmatic concerns, like the commandment or even principle not to kill anybody: living in a community, where killing each other is widely accepted is dangerous for all individuals the community consists of. These common sense laws are the subject of research here.

The term "delegation" is not that easy explained in this context. Usually the term is used in a business context, and means, that one assigns parts of his own work to other individuals, in order to enable the emerging team to finish some process under certain circumstances, which may likely be a deadline or similar.

Here delegation works the other way around: the community delegates the individuals matters. But how can delegation be understood with respect to self-responsibility? Let me use an example to clarify my means: a chain smoker wishes to stop smoking, since his doctor told him, that he might die very soon otherwise. He will do good, in not buying cigarettes, or better: not possessing cigarettes, since they pose a permanent seduction, to betray his own means. Game theorists often use this example when talking about the repeated prisoners dilemma: It may be the concurrent interest of the chain smoker, to light a cigarette now, but it is against his will to do it on an overall timescale.

In the above example: should we (the community) override the smokers' will, and take the possibility to smoke cigarettes from him, and so assure, that he may achieve his long-term goal to stop smoking?
The concurrent law (in Germany) seems to say: "Yes, we should!" Let me explain, why it does: let illegal drugs be an example. The law prohibits these drugs, because they harm the consumer, and so indirectly harm the community. The (potential) consumers responsibility was delegated: the state takes it instead of himself.
Another example is compulsory treatment: the patient maybe does not want to be treated, but, for example, does want to kill himself, which might, on a larger timescale, not be his wish.

So, maybe it became clear, what I mean with delegation of self-responsibility here. Left is the question, how far this delegation should reach:
In Germany we do not prosecute the consumption of illegal substances, like drugs, but their possession or sale. The responsibility of not doing these drugs seems to be not delegated. But we do prosecute murder. On the other hand, the sale and possession of cigarettes is legal.

There seems to be an almost arbitrary distribution of delegation in this system. Cigarettes kill, so they harm the consumer, they're also a huge financial factor in the medical care system, so they do harm the society as a whole (even if lobbyists often argue, that taxes on cigarettes put costs and income of smoking to an equilibrium state, which is surely wrong).
On the other hand, many neuroscientists argued1 , that some drugs might be some kind of a spiritual gain for consumers, and should accordingly be legalized.

Let me go back to the beginnings here: laws follow pragmatic rules. Who, or which pragmatism or pragmatic mechanism, is capable of deciding the above dilemma? Alcohol is not even mentioned above, but poses other big problems here: its' consumption may be healthy if it is regulated to a certain degree (like two glasses of wine a day or so), but certainly deadly if one becomes addicted.

The question, which emerges here, slowly solidifies: Where, when and depending on what criteria should the law be delegating self-responsibility? And furthermore: is there a black and white answer to that question, or can regulation only be case dependent?



Re-Sources:
1) Gehirn & Geist 01/06, "Smart drug-politics in the future" by Thomas Metzinger (title translated by the author)


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patrick wrote on 2007-11-20 21:55:54

For example, nobody would, I think, delegate that a mother should not only delegate her child´s behaviour, ...

But they do: cue is custody.

That leads to the assumption of taking mental maturation as one necessary criterion

Okay, here we get to the real deal: the question I posed is, besides the on "what should be delegated?" this one: "when are we capable of taking self-responsibility?" For myself I can easily find the answers, that there were certain moments in my life, when somebody else would have made better decisions for me. So, when are we capable? You name it:

In case of one not having that mental ability (which may be defined or tested in various ways), you could state that he can´t even decide of what is valuable to reach or not for him.
So far we share the same point of view.

How do you know what is beneficial for that individual, hence, how do you justify that assumption?

This one's highly problematic: Assume that, based upon some empiric criteria, we are able to determine the right moment and situation to take over one's self-determination. How can we assure, that he will - maybe later on - share our opinion? An attempt of suicide might be an example: Somebody tries to kill himself, because he is sad, a second person attempts suicide, because he worked out the theory of everything and this theory suggests, that killing yourself is productive. The first person might later one be thankful, the second one won't. It's always a problem in ethical discourse, that you can not define any authoritative regulations, Kant already shipwrecked on that cliffs. I think, that this discussion about principles will always lead into opinions sooner or later, for that I drop the point here.

Seems to work out easier in groups: Here you could ask out all members about their opinions, apply some statistical formulas to the results and get at least a tendency (also not a principle). This is exactly what pragmatism does, and in my opinion, this is the only way perform ethical research on a macro-level. On the other hand, there is some loss on the micro-level, automatically, especially when it comes to the opinions that are located on the outer limits of our gaussian opinion distribution. Maybe this were your thoughts here:

This problem is quite more complicated because it´s simply more extensive, because of many people being involved here, thus, seems to be more important than an ethical question about one human-being.

What I don't understand is this statement:

The second point is that self-responsibility, as a mental ability, can easily be stated as natural, when dealing with individuals of a group.

Why can it be stated as natural? Maybe in a Thomas Hobbes system, were we have a survival of the fittest scenario, but how can this self-responsibility be justified against, let's say, the idea of schizophrenia being a disease, which seems quiet a lot more humanitarian than the idea, that it is caused by devils in the patients' head?

From the startup, as you take the individuals as the ones constituting the society for their own individual benefit, where you secondly assingn them the possibility of being self-responsible, on the criterion I proposed, there shall be, therefore, that most possibly reached benefit be achieved.

The problem I stated is a) that self-responsibility is NOT always given, and b) that the criteria upon which it is delegated seems arbitrary.

Anyways I do like the idea of a benefit catalogue, maybe we should call it The Ten Commandments? ;)

Lambizzel wrote on 2007-11-20 20:51:12

These questions you emerged, can´t, from my point of view, be answered one-sided. At least there are different levels and social suroundings in which you have to treat one similar - looking problem in different ways.

For example, nobody would, I think, delegate that a mother should not only delegate her child´s behaviour, but, furthermore, really make some decision for it.

Relatively simple example and probably not in virtue of the question emerged, because my premiss here is that a self - responsibility can´t even be developed.

That leads to the assumption of taking mental maturation as one necessary criterion: a level needed to be reached to be even capable of having the self-responsibility.

So, one dubious (in a moralic view) way of the first step for solving the problem of apologing these laws is a quite simple one: In case of one not having that mental ability (which may be defined or tested in various ways), you could state that he can´t even decide of what is valuable to reach or not for him.

It would be another one who had to decide this, which obviously could lead to abuse in various ways first, and is secondly, from the very beginning, an ethical problem of justification: How do you know what is beneficial for that individual, hence, how do you justify that assumption?

Furthermore, that gets quite more complicated if we treat this problem in another way of justifying laws for groups, even if the group itself can agree on at least having a law which regulates the best reachable benefit for everyone in the group. At least, that´s the reason for human beings to join groups, even not to get killed because of not being in a groups seems obviously to be a benefit.

This problem is quite more complicated because it´s simply more extensive, because of many people being involved here, thus, seems to be more important than an ehtical question about one human-being.

The second point is that self-responsibility, as a mental ability, can easily be stated as natural, when dealing with individuals of a group. So the possibility of solving the problem, how I first thought of, can´t anyhow be reached here.

From the startup, as you take the individuals as the ones constituting the society for their own individual benefit, where you secondly assingn them the possibility of being self-responsible, on the criterion I proposed, there shall be, therefore, that most possibly reached benefit be achieved.

Take this as one theoretical premiss on which you could compile a catalogue of benefits, which seems quite hard, probably impossible.

A consensus for, lets say, 10 benefits everybody wants to reach or have, seems the only way to generally justify the basic issue: laws delegates self responsibility for reaching benefit.

hence, these benefits need to be mentioned to justify even the ways they can be reached, and to show, that not 2 benefits are difficult to reach, when you make those steps to reach only one.

This idea is surely related to that idea of the "volonté général", Rousseau already had.

Stupidly, that "volonté général" had 2 problems: First of all, it hadn´t been contently defined in any way, so that every hegemonial mighty could have referred to it.

This is the problem needed to be solved, one should perhaps define benefits and, like in a deductive way, look what´s need to be done and how much I am as individual about to give for that.

Furthermore, that "volonté général" really had a metaphysician charakter, because it was founded on the foundation of what the society, regarded as a big individual, was about to reach.

Probably it would have been better to add all the individual willings and put them in discourse.

Surely there will be much more to say about it, hence, a black and white answer seems not reachable, because of many given aspects, and, as I mentioned in the very beginning, levels.

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