In the following assertion:

We should cancel the crime of murder so that the number of homicides will drop to zero

The speaker is confusing the legal status of something (murder) with the bare fact that it happens: even if the crime of murder is canceled there will still be homicides, only they will not be reported anymore (because they will not be crimes).

Is there a name for this and similar fallacies where the legal status of something is confused with its bare happening?

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    To clarify, the speaker is suggesting that if people are no longer prosecuted for murder, homicide rates would go down, when in fact homicide is the act of killing, not the legally defined crime that is realized in such an act, and the "homicide rate" is the actual incidence rate of people killing other people rather than the rate of people committing the crime as such. The error is not moral, or something like that, but simply semantic, and the fallacy up for debate is what happens when you go "Murder is Crime. Not Crime. Therefore, Not Murder". Does that sound right? – Paul Ross Oct 14 '13 at 18:32
  • @PaulRoss yes, exactly. – Sarko Oct 14 '13 at 19:09
  • What she meant to say is this: "We should cancel the crime of murder so that 'the number of homicides' will drop to zero". There is no fallacy involved there. The number of homicides won't change by that action, but 'the number of homicides' will. I could be wrong, but that's what I think is going on. – Hunan Rostomyan Oct 14 '13 at 21:17

I'm going to say this might be what in Syllogistic logic would be called a very subtle fallacy of necessity, and if so, it's actually a very neat example!

Let's try to phrase the argument formally like this:

  1. All murders are crimes.
  2. No Crimes occur when they are legalized.
  3. Therefore, no murders will occur when they are legalized.

The problem with this is that the second premise seems tautological - it's just a simple matter of semantic fact that anything that's legal isn't a crime. But this doesn't extend to murders being crimes. It's not simply semantically tautological that a murder is a criminal act - it has to be a matter of legal fact that says that it is indeed illegal to commit murder. But the conclusion doesn't take this specifically contextual aspect of the first premise into account. What will happen when murder is legalized is that it will cease to be a crime, and that the second premise, while still true, will cease to be contextually relevant.

As discussed in the Wikipedia article, what seems to be going on is that there is an equivocation between the De Dicto necessity of premise 2 (something that is simply logically necessary) and the De Re necessity attributed in the conclusion 3 (something that is a proposed necessary property of acts of murder). If we were to interpret the necessity of premise 2 in a De Re manner (asking about necessary properties of acts that are criminal), we would simply say it was false - it's just not necessarily true of anything that in fact is a crime that it wouldn't happen any more if we legalized it.

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  • Is this really a fallacy of necessity, or is it more a case of equivocation, using the term "murder" both to describe unjustifiable deliberate killing which is criminally prosecutable, versus describing all killing which is deliberate and unjustifiable, without regard for whether it can be prosecuted? – supercat May 16 '14 at 6:23

Daniel Patrick Moynehan popularized the phrase "Defining Deviancy Down" for subtler versions of such cases.

By simply never counting domestic violence, for instance, unless someone prosecuted, we can imagine we used to live in a much more peaceful world. By setting a higher bar on the degree of social cost, we used to have fewer Autistic people.

In his usage, it was about the decision not to consider juvenile punishments to be criminal prosecutions, so it did not look like the incarceration rate was rising as fast as it really was.

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