Posts by Stephen Glaister
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I can tell I'm right in this, because people can be, and ever so occasionally have been, convicted for smacking their children. If it was legal in New Zealand to do so, you could never be convicted for it.
But that's just not so Kyle. What you've seen is cases in which there's a prima facie case that a parent used unreasonable force (a conclusion that would never be close to being drawn in cases of what I or most other people would class as smacking). It then went to trial and the parent contested the charges and tried to maintain that the force was in fact reasonable. The jury didn't agree.
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Kyle: The narrow understanding of the criminal law you're opportunistically embracing in this one case doesn't make any sense. s 59 legalizes use of reasonable force for correction of one's own child. The mechanism of that is about charging people and people potentially getting off, but to focus exclusively on that is to miss the forest for the trees (just as it in the case of Abortion with s 183 etc.). In both cases there is a zone of authority and permission established.
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One more try (I'm getting the text in preview moder just fine!):
Note that my point is completely general.
Here's the Burrows-amendment-like clause from NSW's crimes act and here's an anti-smacking persopn there complaining about it. Money quote:
<quote>"The legislation may actually have the reverse effect than it intended, it in effect reinforced parents' right to hit children," Ms Saunders said yesterday. -
Cut off again!
Note that my point is completely general.
Here's the Burrows-amendment-like clause from NSW's crimes act and here's an anti-smacking persopn there complaining about it. Money quote:
<quote>"The legislation may actually have the reverse effect than it intended, it in effect reinforced parents' right to hit children," Ms Saunders said yesterday. -
Whoops my post got cut off for some reason... restarting in the obvious place:
Note that my point is completely general.
Here's the Burrows-amendment-like clause from NSW's crimes act and here's an anti-smacking persopn there complaining about it. Money quote:
<quote>"The legislation may actually have the reverse effect than it intended, it in effect reinforced parents' right to hit children," Ms Saunders said yesterday. -
Russ B: Pay attention. That doesn't happen precisely because Crimes Act clauses legalize stuff they don't just create defences. But, yeah, technically that's how things can work if people wanted to be dicks about it. And, sure, if I drug my girlfriend causing her to miscarry then I can be charged with killing her unborn child/future human being, and then we just have to march down the exceptions among which are that if I was doing it to save her life etc. then I might get off. And so on.
As I mentioned in a previous note, things are a bit more complicated in the Abortion cases because abort. does have a non-criminal law identity too (the Contracept. Act 1977 - we don't have a parallel "Parental Procedures Act".... )
Still, that non-criminal law notwithstanding, people would be very nervous if the abort-enabling bits of the crimes act were zapped out by kerazy Christians. Sue Bradford would be up on the floor of the House weeping and wailing about how the proposal savagely infringes on women's sovereignty and that it takes away a woman's right to have an abortion/makes abotion illegal/takes us back to the dark ages. Others would rise and say how proud they are to have had abortions, and so on. And rightly so!
Note that my point is completely general.
Here's the Burrows-amendment-like clause from NSW's crimes act and here's an anti-smacking persopn there complaining about it. Money quote:
<quote>"The legislation may actually have the reverse effect than it intended, it in effect reinforced parents' right to hit children," Ms Saunders said yesterday. -
Riddley W: Your account of the current legal situation and of any post-s59 situation is absurd.
Smacking your own child to correct them etc. is legalized now by s 59 of the Crimes Act just the way getting an abortion before the 20th week is legalized now by s 187(a)(1) of the Crimes Act.
Delete either one and something that was formerly legal becomes illegal. It's temporizing of the worst sort to deny this.
You'd be outraged if someone tried to remove the abortion sections of the crimes act (i.e., while leaving the general harm to unborn children provisions on the books) under cover of the darkness of saying that they were merely removing a defense of some sort. And rightly so in my view. [That is you wouldn't and shouldn't require an official law specificallly banning abortion to get outraged that something very important was being destroyed.]
And if, like me, you think that NZ's current abortion law is too paternalistic (two doctors? puh-lease) and also deceitful (it can't officially just be because you choose to terminate? it has to be because of, e.g., mental health? spare us!) and would act to liberalize it if you had the power, then the whole project is to regiment what's currently legal, and to legalize a bit more of what's going on anyway, and to make this aspect of what's curerntly legal more transparent and more clearly an expression of a woman's authority over her own life and reproductive destiny.
The view you insist on, however, can't even begin to make sense of any of that attractive line of thought.
The view you avow is also deeply Orwellian because just a few weeks ago Bradford and co. were proudly saying that their proposal banned smacking for correction etc. and that it didn't ban it for other purposes. The point was just that the police would never bother with looking for trivial/technical infractions (or might just hand out a warning if they did or some such thing). "Just going a few miles over the speed limit" analogies were commonplace....
The select committee's report is full of phrases such as:
"we have recommended amendments to the bill to clarify that parents may use reasonable force in some circumstances, but not for the purpose of correction".
According to the new approach being taken, however, laws like the abortion laws and s 59, which are carved out as exceptions within some more encompassing law, never say anything about one may and may not do, rather you always in fact may not (the more encompassing law is always strictly in force) and the exceptions/reservations are then understood strictly as defences etc.
On the absurd view you urge, then, abortion is currently illegal in NZ, we just don't press "killing an unborn child" charges much and there's a solid defence if anyone is charged.
The anti-s59 crowd has been riddled from the beginning with question-begging, irritating genetic fallacies, abusive characetrizations of anyone who disagrees with them in unrepresentative/extremist terms, flat out lies about particular cases, about UN conventions, about the Animal Welfare Act, and so on... the works really.But the current craziness takes things to a new level. It appears for all the world to be designed purely to create the following cover-story:
"We didn't pass a bill most people disagreed with, we didn't mean all that stuff about 'majoritarianism not being everything'. No, we passed a bill a majority really agreed with. They only disagreed with the thing we didn't pass, which was what the thing the swinish MSM said we were passing. We did the real will of the people. Huzzah!"
Brilliant.
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Don C.: If you say
"there are relig. nuts, and of course there are some parents who...."_
then I claim you're saying there are just those two cases. Yes, in some sense you can always continue:
"....oh and there are many other interesting cases too including those that cover fully 70% of the population and 7/8 of the group I'm supposed to be arguing with"
But that would be silly. The "some" you lean on doesn't change that.Simon G.: You say
That doesn't invalidate non-religious opposition, of course. But if scary fundamentalists are leading the fight - well, excuse us for pointing it out, and being a damn sight more worried about that than a relatively minor law change.
I guess everyone has to decide for themselves what's dirty pool in this sort of situation. My view is that the emphasis on PA is pretty bad, and is entirely compable to sliming all Americans who hate Bush etc. with the vocal activities of those who recommend assassination, believe crazy conspiracies etc..
Please do not suggest, however, this we're discussing a minor law change. It's slightly less__minor than the stripping out of the abortion related sections of the Crimes Act (s 182, 183, etc) would be (it's __less so because abortion has some non-criminal law identity).
If someone tried to remove those sections saying, "Don't worry, we're not making abortion illegal, we're just removing a possible defence against the charge of killing an unborn child" we'd instantly see that as temporizing. It would be rightly seen as a very sinister attack on the authority of NZ women over their own bodies. For me, at least, the fact that PA and other lefty sites are prepared to temporize in the s 59 case shows the amazing reality-bending effects of extreme partisanship.
Slarty: I've replied at undoutedly distressing length before (e.g., here and here) to the sort of dodge you mention, i.e., that if one thinks s.59 or even some watered down successor is OK then one should really think that s. 59 should apply between adults, or perhaps to adults in positions of authority ( e.g., at work) over other adults, or to arbitrary adults over arbitrary children (i.e., not just their own).
My (obvious) reply amounts to just detailing the differences between parental authority over and responsibility for their own children and all those other cases.... If you don't allow any of that then you end up with an absurd position, I believe: that every parental action w.r.t their children is technically assault/kidnapping etc., only one society doesn't charge/prosecute. Can't go through all that again here tho'.
The objectivizing/flattening impulse behind your remarks – which argue, after all, that anything like s 59 is not just possibly mistaken in some respects, but is actually incoherent – is very contrary to the best aspects of Hart- and Dworkins-style jursiprudence as I understand them.
Rob. S.: You say
Stephen, see if you can parse the modality of:
There's an assumption common to all the fundamentalists here: that there's only one broadly legitimate way to raise a child
and somehow get to: "There's an assumption common to all those in favour of the Bradford Bill: that there's one broadly illegitimate way to discipline a child and that's by hitting them." Good luck.Hang on: the common assumption I identified is an interesting common assumption because it's shared by the the bill supporters and a noisy loony fringe of bill opponents. Doing so helps dramatize all that's left out in the middle and that PA likes to ignore.
Your common assumption is a trick in that it's not in common across the sides of the debate, rather it's just a redescription of the bill-supporters side of the debate. (You can do the same with the true loonies at the other end: they share the assumption that sparing the rod is an illegitimate form of parenting or whatever it is.) What were you trying to achieve again?Others: Thanks for your feedback.
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Hang on.... Both David Haywood's article and Paul C.'s comment above (and possibly simon g.'s remark too) are quite misleading: there are fundamentalist anti-smackers getting ready to pass a bill, there's no loony fundamentalist bill presuming to tell everyone that they have to smack (or whatever it is).
There's an assumption common to all the fundamentalists here: that there's only one broadly legitimate way to raise a child. Paul C's "I don't see why others can't be like me" is an absolute classic of the genre!
PA consistently gets the basic dialectic wrong (I cautioned Haywood about this specific error here.) The motivation for that's obvious. It's just so much easier to argue against people who believe Haywood's headline today. And even if you do kind of acknowledge somewhere way down the page that you really need to argue against much more plausible views (but I'm no libertarian!), it's where you chose to spent all of your time and headline etc. that tells the story (as the subsequent comments amply show). It's called misdirection. (Only, in his patented way, Haywood has given himself just enough wiggle room so that he can say "Misdirection, moi? I have no thesis, no direction!" It's so exasperating!)
Of course the mischaracterizations and subtle and not so subtle prejudicings of the relevant issues are different every time (it's a moving target of distortion). Recall Russell B's:
One argument I will not countenance in any way at all is the one that seems to motivate the bill's most vocal opponents - Biblical justification. No, no and no again. No more than I would indulge a man who believes his religion allows him to keep his wife in line with a loving smack.
Not everyone who opposes the bill believes this, of course. There are parents who regard smacking as bad practice who still don't wish to see the risk of it being classed as assault. Again, we come back to the boundaries that aren't as clear or universal as they might seem.
Here Russell almost gets the modality right for the religious but then presumes to characterize all non-religious opponents of the bill as people who think smacking is "bad practice", i.e., as conceding that there is in fact only one broadly legitimate way to raise kids and smacking is no part of it. So, you're either a religious nut or you really agree with Russell B. (and all he has left to do is ease paranoia about practical consequences of criminalization! Sweet!) How easy it is to win arguments, if you play so unfairly.
Finally, Michael Grimshaw repeatedly raises the specter of religious groups being recognized and reflected in legislation. That may be some sort of worry in Bush's America but, seriously, that's hardly a problem in NZ. Nowhere less so than in this case, where surely the only recognition and reflection urged by the hard core religious is just for the law to leave them alone and also to allow a status quo to stand (or at least be less radically modified) that's supported by at least 80% of the population, almost all of which is relatively non-religious! Hardly theocracy. (Rich's "Muslim" riposte commits 3 or 4 fallacies at once . Can't be bothered working through 'em, but, generally, good grief.)
Grimshaw's right about the scripture tho': leave your family and no divorces. Jesus is a card.
Oh, one very last point... the shabby (and always just in one direction) standards of argument at PA are truly a little frightening.
Let's say the next thing that the left wants to get a bee in its bonnet about is pets. If you tried to take away people's pets (perhaps grandfathering in existing pets so as not to be harsh) insisting that in a civilized society no one keeps animals as slaves yadda yadda yadda... well, you're going to get some serious resistance from at least 80% of the population. Of course in that group will be Biblical folks pointing to relevant bits of scripture about dominion over animals etc.. PA has shown that they would gleefully accept that target of opportunity... Rather than address any serious replies of the 80% (e.g., "We see your point, but that's best accommodated by your not having a pet... we take ourselves to love our pets, they live with us, they're not our slaves, and we believe you musn't define cruelty and abuse down in that way, evidently you don't agree that's possible, vive la difference we guess..."), the Haywoods, Browns etc. will just try to tar and feather the 80% with the range of justified and unjustified warinesses that the small number pious or ultra-pious among them provoke. (And trot out conclusory analogies a la Riddley W.'s "it's like when it became illegal to rape your wife" to ice the case.)
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David, just a cautionary note about your use of "phys. punish. is necessary". It's the doubly modally-indexed "phys. punish may be necessary" - or whether phys. pun. is ever necessary - that's closer to being the nub of the matter. The former could be refuted by a few (let alone a wide range of) cases of perfectly-well-raised-without-any-smacking children, the latter can't be. [Note that the singly indexed version can rightly sound insulting and presumptuous, since anyone who avoids phys. punish. would then be failing to do what's necesssary and hence making a kind of mistake! (I seem to remember Bradford bristling along these lines at some point.) The doubly indexed version doesn't imply this - e.g., in your context (of which you are the best judge) phys pun. wasn't necessary - and so avoids gratuitously insulting anyone.]
I mention this in part because this is one of David Lange's errors in his Oxford Union Address (which PA has covered a fair bit). Lange argues (among other things) that nukes can't be a necessary evil because it's possible not to have them, e.g. in the South Pacific. Unfortunately for Lange, it's necessity in specific contexts (e.g., Western Europe in 1985) that's at issue not a notion of necessity that holds across all contexts. That nukes aren't necessary in the South Pacific doesn't show they can't be necessary somewhere else.... It's whether nukes are ever necessary evils (or whether they may be necessary) that Lange needs to find some way to reject. But he never does....
Anyhow, I think your remarks are fine as they are... but tempting error looms unless you are careful! Cheers.