• Nick

Minima, Maxima and Approximation


Consider the diagram to the right. No this isn’t Mondrian, but my best attempt in arts and craft hour to show visually what I am about to explain. This diagram shows a curve (the black line) which is bisected by a blue line. The section between the blue and black line (within the curve) is coloured red, and the section beneath the blue line (within the curve) coloured green. This is essentially the poor

man’s version of calculus. Now consider William Blackstone’s ratio, which is “it is better that ten guilty men walk free than one innocent man be deprived of his liberty” or words to that effect. Can you see what I am getting at yet?


Approximation


Look at any legal system and you will almost certainly find a minimum age requirement. Whether it is to vote, to engage in sexual congress, to drink, to gamble etc. The same basis even applies to national territorial sea boundaries, blood alcohol limits and abortion. The similarity between all these legal concepts is that their basis requires law-makers to approximate a reasonable limit. By it’s nature, this will mean (depending on where the legislators place the limit) that the law captures some of it’s intended medium and also loses some. It is easiest to understand this by looking at the concept of consent with respect to sexual crimes. Consider Queensland’s requirements for consent in this regard, which is that is must be given:


freely and voluntarily given by a person with the cognitive capacity to give the consent.


For the point of simplicity, let’s say the minimum age of consent in Queensland is sixteen (noting that this varies depending on the specific offence in question). It is also important to note that this age of consent varies significantly between Australia’s respective states and even more throughout the world. What the Queensland government has done in this case, by requiring that a person is sixteen years of age in order to suffice this minimum cognitive capacity is to make an approximation. I am not going to go into criticism of this specific age requirement, however, please consider the following:

  • Are there some people under this age who have sufficient maturity and understanding to be able to give consent?

  • Are there some people above this age who lack sufficient maturity and understanding to be able to give consent?

  • Is there a better way to enact laws than making an approximation?

Of course there are some people subject to disease who would not meet this criteria, and (at least in the Queensland laws) specific provisions are made in this respect. Bearing in mind the above considerations, it is likely that when an approximation is made that some people will incur unjust punishment as a result and that others who should have justly been punished will go without the same. Where then should the approximation be made? Some ideas are the absolute protection of one concept or others are seeking to do utility to achieve the greatest good (which raises other issues of definition).


Absolutes


When it comes to the topic termination of pregnancy, I recently heard Ben Shapiro talk about the necessity of making a distinction as to when a fetus becomes a human life. I’m not going to go into a criticism of Shapiro, or even posit my own beliefs in this respect, but his point really did make me question at what point I consider that something constitutes a human life. I had to sit down and actually think about each stage of gestation and consider if it caused me to feel apprehensive of the thought of aborting that fetus.


Some may consider that a fetus becomes a human life at conception, and that any termination after this point is tantamount to homicide. Conversely, some may consider that a fetus is not a human life until it is born alive. These are both absolute views, and depending on how you look at it, using my arts and craft diagram, this would look like one of the following:


In criminal cases under English laws and its derivatives, the standard of proof is guilty beyond reasonable doubt. To rephrase this including the presumption of innocence: a person is innocent until they have been proven guilty beyond reasonable doubt. This isn’t an absolute approximation but it is damn close. The slight mitigation from an absolute approximation in this comes from the inclusion of the word ‘reasonable’, and if you have to plot it in a picture it probably resembles the first one (above). If the word reasonable were removed from this, any degree of doubt would be sufficient to discharge an accused person from a crime no matter how ridiculous the doubt may be. However, with its inclusion it means that any doubt must be cast in the minds of the judge and/or jury in the light of reasonableness. Each element of this maxim is so important in English criminal law that without one of them, there would have to be a monumental reevaluation of criminal codes all over the world. In 1935 Viscount Sankey gave his famous golden thread judgement which included:


throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt ….. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.


Reconciliation


What is an even more difficult task than creating an approximation of law, or making ones own moral approximations, is reconciling several approximations against one’s underlying morality or philosophy. Forgive me for picking the low hanging fruit here, but think of the following:

The Duke and Duchess of Sussex's use of private jets as transport whilst lecturing the public on their obligations to reduce their carbon emissions;

  • Preaching that ‘Islam is the most feminist religion’ whilst being silent as to the resurgence of the Taliban in Afghanistan;

  • Increasing Australia’s gross debt by around 60%, allowing States to impose severe restrictions on citizens’ liberties and mandate health treatments, all in the name of health while the overall mortality rate (ignoring the morbidity of Coronavirus) rises significantly.

Essentially, this boils down to hypocrisy. It isn’t a new concept, and especially in the political atmosphere. It is, however, becoming less talked about and picked up by what appears to be a media stupefied by its own ideologies. Comment below your most flagrant examples of this form of hypocrisy. Thank goodness the chocolate ration has been increased to 20 grams!

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