an easy example is marijuana. many believe its no big deal. others believe its a serious problem. yet, no matter what anyone believes their state has laws that must be obeyed. the federal government also has laws that must be obeyed regardless of a given opinion of said law. however, if a solid majority have a given opinion than there is a distinct possibility that their wishes become "the law".
This is very much not the case and should not be. What happens when a majority voice is the rule of law is a codified mob rule. There is the very real likelihood that the wishes of the majority are not parallel to the best interests of everyone.
"the law" is nothing more or less than an attempt to legislate morality. those involved in the banking crisis didnt think they were doing anything wrong. yet everyone paid a price for their actions. neh? the average person out there doesnt comprehend exactly what happened or why much less being capable of explaining it. yet, we now have laws in place to prevent such from occuring again (in theory).
Laws are not morality in the sense that they define personal measures of right and wrong - they are rules for governing society. They are only right and wrong in the sense of consequences.
Not everyone paid the price for that incident at all. In fact very, very few people responsible for causing those issues appear to have suffered much if at all and there's not much in place to prevent a similar crisis from happening again. Some people got slapped on the wrist, some companies were dissolved, but people who got rich from it are still rich.
you believe that punishment for crimes as a deterrent is questionable at best. again, every single code in the us criminal law outlines crimes, punishments, etc that are designed to be deterrents. drive drunk and lose your license. kill someone and go to jail. etc, etc. those are deterrents. they dont work perfectly BUT they definitely work better than a "mad max" type of world (with no laws, no deterrents, etc) where anarchy rules with predictable results.
This is a false dichotomy. it isn't either/or. It isn't Shitty, Fucked-Up, Ineffective And Useless Laws or No Laws At All.
Originally the legal system was designed with the aim of protecting citizens as the priority over punishing criminals. The whole argument against debtors prisons was a well defined example of what happens when a legal system is designed to punish.
The same argument for not working perfectly but better than nothing can be applied to any system in relation to an inferior system. Fascism is better than Cannibalitic Theocracy in certain respects but that doesn't make an argument for the state establishment of genocide an acceptable one. Flaws in a system are flaws, period.
Let me make it clear again: I am not arguing that infidelity should be ignored by the legal system. I am arguing against the idea of slapping fines and jail time on it. Someone back there got an STD. How would a fine of 500 bucks and a year of jail time for the OP or WS help that? Rather than setting a goal of retaliation and punishment, enforcement of reparation and rehabilitation - enforcing the medical bills be paid by the offender, even if wages must be garnished to do so - that nets a benefit. It can be seen as punishment but what it ends up being in reality is enforcing responsibility.
People think about their actions when they have no choice to be responsible for them. They think about gaming the system when they see an array of consequences and how they can min/max the benefits and risks.
since adultry wouldnt be punished by jail terms there is no need to increase our cottage industry of jails.
Wouldn't it? How do you know it wouldn't? Look at how many people are in or have been in jail for possession of less than an ounce of pot. This is a pandoras box. You have no idea what route that will take. Yes, it would be nice if things worked at an idealistic level but if they did, we would be better off aiming for the idealistic framework. Otherwise we end up with the Augustine reforms, sewing cheaters together, tying them in sacks and dumping them in the Rubicon. Which sounds all well and good to some folks until you get into the legal details of what infidelity consisted of and that it wasn't cheating if you were fucking a non-citizen, or this, or that. The legal system is even more complex now.
there is is no need to codify who is and who isnt legally included. leave that up to the people getting married. if they check box A then adultry is legally a crime adn they both agree to that. check box B and it isnt. that solves the problems for "open marriages" and other non traditional marriages.
That's not how it works at all. People can't get married legally in certain states unless they meet certain criteria. Every non-heterosexual relationship in the United States on this site is excluded from any laws you make, for example, unless they happen to get involved with a legally married couple in an infidelity situation - and the BS in the legally married couple may be able to sue, but not the BS in the other relationship.
If it were as simple as checking boxes it wouldn't be a massive issue already in regards to other issues like insurance, inheritance, etc.
i dont believe that we should punish the affair partner. what they did is wrong. yes. however ... they are NOT the one that entered into marriage and then betrayed their vows. the one that did is the one that should be punished.
So in my situation where the AP was unmarried and I chose to R with my wife, the only person legally punishable according to your concept would be my wife, rendering me helpless to take action against the OM legally anyway.
Further, I completely and totally disagree with your position on who is culpable. The OM is equally culpable to the invasion of my life. If I wandered in and fucked your wife, knowing she was married, that responsibility isn't suddenly abrogated because I didn't explicitly say "I won't fuck your wife." The social contracts you are talking about are public. That means anyone involving themselves in a relationship with a married individual is well aware of what they are doing (unless they've been lied to and extricate themselves on discovery of truth, which does happen) - in legalistic terms just because one owner of a lot invites me to come and chop down all the trees there doesn't give me the legal right to do so, if there are other owners who are unaware of the deal with no legal contracts signed, etc.
adultry SHOULD be a major factor in determining alimony, custody, fault, etc in a divorce. its not because the courts dont want to be involved in who is right and wrong, they just want to get it done and over with. but if they viewed marriage as a contract with adultry being breach of contract then it would be relatively simple to ask "do you have proof of adultry and if so please submit it..." to the proceedings.
I agree, though I think I already said this.
the "you cant legislate morality" is a refrain thats become popular because people think judging others is wrong. its not. judging is nothing more than judgement. judgement is "the ability to make considered decisions or to come to sensible conclusions". i use judgement in every facet of my life. i buy a car after reviewing information on it and other cars. i buy food based upon its taste, how healthy it is, how much it costs, etc. all of those are judgements. i judge.
No, it is not. It is a phrase used to put a stop to enforcing morality. It is precisely because defining marriage in a specific way means others are forced to be excluded.
Judgements are decisions made based upon available information, and often only done so in the self-interest of selected parties. You may judge a food choice reasonable on its health benefits, someone else may judge a food choice on its connections to the color Red and the implications of that on their internal logic, whether it has to do with faith or the study of vegetables.
There are plenty of people in history that thought it was a reasonable decision to use other humans as cheap labor. Those judgements were not in the best interests of all involved.
the fact that society is scared to make these judgements is partly why our society has these problems.
I disagree. Our society is happy to make these judgements. They just never end up the way people want them to.