About this blog

Aspects of law and jurisprudence are analyzed and critiqued, generally in terms of the POOP. Occasionally, non sequiturs!

Transcendental method vs. the internet blacklist bill(s)

Background
Okay, so there was this guy a while back named Immanuel Kant. He was pretty sharp. He said a lot of things, and a lot of them were wrong, and we don't really know which ones just yet. Anyway, one of the things he came up with is called "the transcendental method." The transcendental method is a way of learning new stuff based on the stuff we already know. The way we usually do this is through deduction, wherein we draw conclusions by synthesizing statements we know to be true. You can think of the transcendental method as a sort of reverse deduction, wherein we derive true statements from the conclusions we're able to observe (or otherwise accept as true).

The textbook example of deductive reasoning is "All men are mortal and Socrates is a man. Therefore, Socrates is mortal." An application of the transcendental method here, on the other hand, would look more like this: "Seeing that Socrates has died, I must infer that Socrates was mortal." Another way of saying this is that "Socrates being mortal is a condition of the possibility of Socrates having died." It seems a bit trivial on this level, but is actually a really useful reasoning tool.

Now, let's look at law. Laws essentially come in two forms – prescriptive and proscriptive. Prescriptive laws mandate certain acts/behaviors, while proscriptive laws prohibit them (legal scholars also like to claim that there are "permissive" laws that explicitly permit you to do things – a quick run through the POOP, however, reveals that a permissive law is simply a prohibition on prohibiting a given act/behavior). Similarly, acts/behaviors come in three flavors: impossible, possible, and necessary (this is cheating somewhat, since it is necessary for me to breathe only insofar as it is impossible for me to not breathe; but for rhetorical purposes here, the spectrum suits).

Prescriptive laws take acts/behaviors that are in the "possible" category and try to make you act as if they were "necessary." Proscriptive laws take acts/behaviors that are in the "possible" category and try to make you act as if they were "impossible." Neither type of law can target any act or behavior other than those which are, all other things being equal, possible. For example, no law could prohibit breathing or mandate flying under our own power. This isn't to say that such a law would be unconstitutional or otherwise "illegal" – just that logic will not permit such a law to exist, and if one were forced into existence, it would immediately become a parody or a caricature of a law. Anyway, the point is that "being possible" is a condition of the possibility of "being legislable," with the caveat that laws need to be updated occasionally to keep pace with changes in the realm of human possibility. Which brings me to...

My beef
There've been several attempts over the last couple of years to pass laws in the US that would impose a pretty draconian pseudo-censorship regime on the internet by allowing the government (and perhaps private parties, acting through the government) to take down or prevent access to websites that contribute to copyright infringement. While I find the proposed "solution" objectionable, my objection here isn't to their content, but their logical structure.

So let's accept arguendo that filesharing is undesirable and against public policy. We can enact all sorts of laws to impose penalties on those who engage in it. Indeed, we've done so. The bills proposed, however, would not do this; they would effectively make it impossible to engage in filesharing by making me (and you, and the rest of us) literally unable to access the relevant sites in the first place.

Why's this a problem? Well, imagine that we found a way to make murder impossible – not just illegal, but literally impossible. The laws we currently have criminalizing murder would be reduced to utter nonsense, and we'd be compelled to either repeal them or admit to ourselves that we're being irrational. A law that makes impossible the behavior it's trying to regulate is internally contradictory, since it abnegates the condition of its possibility.

2 comments:

  1. What if we didn't make murder impossible, but only made half of murders impossible. The existing laws then might serve to help in the other half of cases, right?

    ReplyDelete
  2. Right, though the laws would only be internally consistent with regard to possible murders. The tension is between creating sanctions and creating barriers -- if the sanctions are sufficient then creating barriers is irrational, and if the barriers are sufficient then creating sanctions is irrational.

    ReplyDelete