What fallacy or fallacies are being used here?

Philosophy Forums Philosophy
1

A recent legal issue that made the headlines in my country got me scratching my head. I’m sure that one or more fallacies are involved, but can’t quite put my finger on it/them. I’m not particularly interested in the merits of the prosecution’s or defence’s cases. I’m purely interested in how the argument works.

Let’s say the age of consent in my country is 21. Let’s also say that some people think that is too high and that it should be 18 and argue a case for lowering it to 18. Because sexual activity with individuals aged 18-20 would, by current standards, be regarded as abuse, arguing a case for lowering the age of consent to 18 could be regardable as promotion of abuse, and so law enforcement and the prosecutor’s office try to shoehorn it into the category of incitement to commit criminal acts. Whether that will subsequently stand up to scrutiny in court is another question, but the attempt to shoehorn it into the category of incitement touches on a moot point: if the age of consent were indeed lowered to 18, then sexual activity with individuals aged 18-20 would no longer be a criminal act. What is being argued for is a change in the law, not the breaking of the law.

If it helps to remove the emotive element, one could also consider a similar scenario: The speed limit in residential areas is currently 25 mph, say. A group of people think that this is too slow and that it should be raised to 30 mph. Law enforcement and the prosecutor’s office go after them on the grounds that they are inciting a criminal act (the breaking of the speed limit), even though driving at 26-30 mph in residential areas would no longer be a criminal act were the law to be changed.

Is there a fallacy here, and if so, what is it? My initial thought was that it was some variant of the appeal to tradition, albeit an unusual one, because rather than judging the present by a past standard, this is judging a possible future state of affairs by the present standard (which at that future point in time would then be a past standard). I’m not convinced that hits the nail on the head, but it’s surely in the right territory (anachronism). Any ideas? As I suggested above, I’m not interested in the merits of what is admittedly a contentious issue, purely the mechanics of the presumed argument for the ‘shoehorning’.

2

I think a few assumptions have to be made in order to discuss this kind of case -

  • Assuming you are in a Western country
  • Assuming the region in that country actually cares about written laws
  • Assuming that there is a law on the books forbidding “incitement to commit criminal acts”
  • Assuming there is no law against someone of the accused’s standing discussing what laws should be

Then the prosecution’s duty is to -
1) Present the precise wording of the current law allegedly broken
2) Present the narrative concerning precisely how the law was broken by the accused
3) Present convincing evidence to the Magistrate/Judge/Jury that the presented narrative factually occurred.
4) Present a recommended resolution
Until that happens there really can’t be discussion about fallacies.

If the law of concern is one of incitement, evidence must be presented that the accused directly incited someone to committed a currently documented crime. That can be pretty hard to do and there must at least be someone who has already committed a currently forbidden infraction. Supposition of what someone might do in the future is irrelevant.

It is irrelevant what laws might be in the future or were in the past. Only current laws can be enforced. It is the enforcement that makes them an actual law.

For the prosecutor to have a case, he will have to present exactly who was incited by the accused, exactly what crime was committed, and by what means the accused (and the accused alone) led the criminal to commit the crime.

Without extortive payoffs, that kind of case would be very difficult to win - depending on the politics involved.

It sounds like a case of someone wanting to control speech and become a communist country.

3

The fallacy is called “false equivalence”.
Where a call to change the law, is made out to be the same as a call to disregard/break the law.