Guest Post by Professor David Rosen: Communications, Morals, Ethics, and the Law. A Jurisprudential consideration, PART I
Tuesday, September 18, 2012 by Charon QC
This is a developing paper to explore how Jurisprudentially, legally and morally we must be more socially responsible and more forward thinking to curb our enthusiasm for creation. This article relates to #Communications in Social Media Platforms. Part II relates to autonomous droids, and what the Law ought to be.
we are consumed: Western European Society appears to be consumed with materialism, and our superficial needs, driven by consumerism and aggressive advertising, are perceptively heightened for the speed in which services and goods are demanded and provided.
Profiteering, and competition are dictated by consumer sovereignty. we, as a Society, a Nation, humankind, are responsible, a fortiori, irresponsible for the state we are in.
What was the urgency? What was the rush? Are we better people for it?
Technology develops faster than social considerations of it:
The thrust of this paper is that technology is developing faster than our moral and legal considerations towards it, resulting in an element of instability, and disharmony in society.
Investigative Discourse Analysis is concerned, inter alia, with the structure, text, grammar, and overall construction of a sentence, to determine the validity, faith, and truth of a sentence.
Through lack of time, and auto-text, we become lazy. Constructions of sentences when using text messaging, has transformed into a chaos of abbreviations and Internet standards such as ‘b4’, instead of, ‘before’, and so on, and so forth.
Once upon a time when people lived for shorter periods, paradoxically, people took more time, and gave more consideration to what they were doing, and how they were doing it.
The writing of a letter could supposedly be rushed, and unhappily drafted, but the sending and receipt of such communication took days, even weeks.
I am reminded of a quotation attributed to a number of people in originality including, Pascal, Twain, T.S. Elliot, Cicero, and Voltaire, as follows:
‘I made this letter very long, because I did not have the leisure to make it shorter’, or, ‘This letter would have been shorter, had I had more time to write it’.
In other words, it is simple to write with streams of consciousness about a subject, but it takes longer perhaps, to quantify and qualify such ideas into a more compact and concise communication.
I accept that letters sent in haste and in the thick of an argument, could always have been sent, but the technology did not exist for such communications to be pinged so quickly as they can now be through social media and email communications. Equally, a response in haste and in anger, could have been avoided, and averted, and a situation calmed.
There is of course talk in English Literature of the fateful and untimely letter received, or missed, the receipt of which may have altered the course of someone’s life, as in Thomas Hardy’s, ‘The Mayor of Casterbridge’.
Supposedly, lessons to be learnt and a code commenced are:
1. Never respond to any communications in anger. Pause for thought;
2. Avoid the accessibility and ease within which to be able to respond. Get up from your desk, and go for a walk. Stop and think about what you may wish to say, and to think of the consequences of saying it.
Communicating without anger:
It is put perfectly in a letter by Sir Arthur Conan Doyle when he writes to someone with the words:
‘…There was much heat when last we spoke. Let me put it more temperately, but no less firmly’.
What makes dressing an argument constructively and with respect, either written or spoken, more or less offensive to the recipient, or other readers?
I do not know, but I continue to ponder this question.
With apparent respect and politeness, the argument becomes less aggressive, less offensive to the ear. An argument becomes more persuasive, more irresistible, when put in disarmingly honest, yet respectful terms.
I wrote recently about blasphemy and its current role in the Law of England and Wales. See http://www.darlingtons.com/blog
I state the dictum in the case of R v Boulter (1908), 72 JP 198:
‘…if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy’.
What decencies? What makes a subject less offensive if stated constructively and with delicacy? What makes the placing of an argument either in writing or orally, more or less offensive?
Offensiveness in communications has been tested recently, in the case of Paul Chambers v DPP  EWHC 2157.
Lord Chief Justice Judge, stated, obiter, and probably this was the stare decisis:
‘Before concluding that a message is criminal on the basis that it represents a menace, it’s precise terms and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent’.
What is the Law on such matters? What should be the objectives of Society? of the Law? These are big questions, but difficult to respond to, without setting the questions within a context by which to analyse them:
Jurisprudence: Normative Positivism:
Let me take this problem slightly deeper, by applying theories of Jurisprudence: That is, the philosophical approach to Law and Legal Theory.
There are many theories but I suppose that in the spectrum of all things jurisprudential, I veer towards normative positivism.
Normative positivism is broken down as follows:
Legal Positivism: A presumption that Laws are validly made in accordance with socially accepted views.
That means that a Law must be properly formed in accordance with those socially accepted views, and that such Law exists to protect such morals and views.
Positivism does not necessarily dictate that the Law must be followed. Instead, it questions and continually re-evaluates why a Law ‘ought to be’, comparative to social values.
Thus, Edgar in Shakespeare’s King Lear says:
‘We must obey. Speak how we feels, not what we ought to say’.
Normative Jurisprudence: What is the goal or purpose of Law? What is the Law relating to communications?
Tweeting and Trolls:
If one accepts that tweeting, and in a new development, mass potential troll attacks which are sustained over a period of time, against an individual, are morally repugnant, then something has to be done about it.
What do we do as Western Society, hold dear to us?
I do not claim in this paper to have or to know the answer, but rather, I pose a possible answer to the current dilemma using arguments of positivism and the normative approach.
H.L.A Hart argues that the Law should be understood as a system of social rules.
Immanuel Kant refers to the deontological theory which is the theory of duty or moral obligation. The presumption is that any rule followed must be universally applied. In other words, altruisms.
Above religion, social, political, and economical factors, there are values that apply to everyone: Virtues.
I postulate some matters for consideration, within the context of social media:
. Be polite. If everyone were ‘nice’ to one another, with the intent and manner that they do or say things, the ‘heat’ of an argument would be tempered, and a rational dialogue may ensue;
. There is nothing wrong in being controversial, or funny by way of a parody, but there is no need to be offensive;
. Comments made in jest, however offensive, but nevertheless short-lived, need to be tested with the intent by which they are said, and to whom, and in what context. This must be differentiated against a prolonged attack
against someone, and inciting others to cause such offence, must necessarily fall within a class of misdemeanour;
. HOMO HOMINI LUPUS EST: Man is a wolf unto man. When in a pack, man is capable of being cruel to his fellow man and Laws ought to be in place to protect man from man. (i.e. the weak and vulnerable). Collective Trolling is
morally wrong. It is not funny. It is beyond distasteful. Responding to offensive trolls in such a way, is taking the Law into one’s own hands. It can not be acceptable.
. Twitter is not the Wild West. Twitter is unhelpful in suggested guidelines as to what is and what is not ‘abusive’. Surely it is time for Twitter to create a comprehensive list of what is and what is not abusive, with better self-regulating
and Policing. However, the onus should be on them alone;
. We have seen how the great and the good responded to morally repugnant comments about various Olympians, and quite rightly so. Again, one must be mindful not to respond to an offensive Tweet creating further offence;
Isn’t it time that social media platforms, especially Twitter, took some social responsibility, and provided better guidance, and handed over ISP addresses upon request from the Police? Isn’t it time that the Police were given the wherewithal, and resources to monitor such activity, and to elevate such crime into statistically accepted crimes worthy of investigation and prosecution?
Professor David Rosen is a Solicitor-Advocate, Partner, and head of Litigation at Darlingtons Solicitors. He is an Associate Professor of Law at Brunel University and a member of the Society of Legal Scholars.