No Liability for Linking

Wednesday, October 19th, 2011

Michael Geist - Supreme Court of Canada Stands Up for the Internet: No Liability for Linking. Well, duh! In one sense it's amazing how this could ever have been an issue, but on the other hand publishing a link/reference to something could legitimately be seen as promoting whatever the target contained at the time the link was created, and so if "promoting" a point of view were illegal, then perhaps links would sometimes be liable.

What is most interesting to me about this is on the converse side. Justice Abella's  comment that she "would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers" appears to provide protection against those who would presume to declare that others should not link to their material. Such declarations are clearly nonsense as it is the responsibility of the publisher to control access if that is what they want and if they choose to make their material freely accessible via a public address then anyone else is free to refer to that address.


Is Religion Above the Law?

Wednesday, October 19th, 2011

What intrigues me about this is what appears to be the choice by various Supreme Court justices to use quite naive language to express questions which cannot fail to have occurred to anyone who has really considered this issue at any time over the past several centuries.

Are we really just now noticing for the first time that language assigning legal protection to the idea of freedom of religion is inherently problematical?

Surely that has always been obvious  - both because of the lack of any definition of what, namely religion, is being protected, and because of the difficulty of defining a protected freedom to engage in activities which may include the restriction of other protected freedoms of other people.

Does Philosophy Matter?

Wednesday, August 3rd, 2011

Stanley Fish suggests that philosophical questions such as that of Moral Relativism vs Moral Absolutism are essentially irrelevant in practical terms. Though I might agree with Fish's take on philosophy about many other examples, this in particular is one where I do not.  In fact I think that one's position on that issue colours the attitude with which we approach the law - especially criminal law - and that a position of moral absolutism leads to an approach that I find offensive and which I suspect is counterproductive.

Another philosophical issue which impacts the law and how we apply it  is that of Free Will.  Primitive notions of responsibility can lead to application of punishment where it will do no good, and when doubts about the extent of our freedom arise, having founded the rationale for punishment on them can lead to a dangerous leniency which results from finding just about anything excusable. It would be helpful perhaps to identify "responsibility" just with what its etymology implies - namely the level of appropriate response to an offense - and to choose the response on the basis of what future effects it may have - in terms of restraining the offender, discouraging others from acting similarly, and mollifying the victims (all to be balanced against whatever pain or other harm that response causes to the offender).

This really does matter because bogus "philosophical" arguments do seem to be capable of persuading people to adopt legal positions that they would not otherwise have accepted.

Religions, cults and wacos

Monday, July 11th, 2011

John S Wilkins' piece on Religions, cults and wacos reproduces a couple of cartoons from Wiley Miller's Non Sequitur which make an amusing and important point about the various levels of respect accorded to different words for superstitious belief systems.

There is some attempt in the comments following Wilkins' post to explore more seriously what these terms actually mean, but it is largely immaterial to the main point of the piece.

For the most part, when re-inventing common words as technical terms, be it in mathematics or sociology, we are free to do as we will. There is no problem with differences so long as each party makes clear what their terms mean, and  none can claim to be more "right" than another unless both agree to work within the conventions of some academic body or discipline.  Absent that context, I would opt for traditional usages rather than give in to the ignorant abuses of the 20th century (which would for example have activists rather than cops "flaunting" their authority at a demonstration/riot). In that spirit I would suggest that a "cult" often refers to a practice or belief which is not necessarily exclusive (eg cult of the virgin mary is compatible with cult of john the baptist, cult of the little princess, or cult of the nazarene). A "sect" on the other hand, as suggested by the etymology, should refer to a subset or section of a larger group - and it is far more likely to be exclusive. Typically (at least until the language got butchered - and even then the distinction was more subtle than absolute) we follow, practice, or participate in a cult, but belong to a sect.

Of course the word that really matters is "religion" since that is the one which is most likely to scandalously command special treatment in the law. And actually, for legal purposes, I would be less scandalized by the special treatment of "religions" if they were objectively defined - perhaps even exactly as described in the cartoons.