Sunday, January 24, 2010

The philosophy of law

Daniel J. Becker writes a philosophical analysis of Citizens United. It's complicated and a little on the tl;dr side, but the thrust of his argument seems to be that the Constitution and its implementation and interpretation exists to serve We the People; any decision or action that does not or is not intended to serve The People is therefore wrong. (Becker uses the term "error", but I think this term is not precisely correct. "Error" more strongly indicates contravention of objective truth; hence I prefer the more explicitly ethical term "wrong".)

Becker is responding to Glenn Greenwald's defense of Citizens United. Greenwald asserts that "illegal or unconstitutional actions... can't be justified because of the allegedly good results they produce,"
and concludes that "the 'rule of law' means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like." Greenwald makes some interesting and persuasive points directly in defense of the Supreme Court's decision, but I think his philosophical definition of the rule of law is too narrow and superficial. On the other hand, I think Becker's interpretation is far too broad.

Becker correctly asserts that the philosophical foundation of our government (at least on paper) rests on the interests and will of The People. But what are those interests? The People are, after all, actual people, who individually do nothing but act in their own interests every second of every day. Why do we need a Constitution at all? Why do we need a government? Why do we need law to effect that which individual people naturally and continuously effect, indeed that which they cannot help but effect? The obvious answer is that the interests of The People can in some sense be different from the interests of individual people. The existence of Constitutions, governments and laws presupposes a collective interest somehow distinguishable from individuals' interests. It's a fairly straightforward that the collective interest does not exist independently of individuals' interests: a collective is not a real entity existing independently of individuals; to assign a collective an independently real status is to commit a patent fallacy of reification.

On the other hand, protecting the interests of minorities is one of the primary purposes and effects of constitutions, governments and statutes, a purpose and effect that people seem to find enormously valuable. We must therefore be very suspicious of constructions of collective interest as simplistic statistical property of individuals' interests, such as a majority.

There are three more-or-less separate reasons to have a rule of law, distinct from individuals acting their own individual interest. The first is simply that we consolidate and delegate the use of violent coercion to a class of professionals (e.g. the police and the government). We want to make it more difficult for these people to use their special position to privilege their own immediate interests over the interests of the rest of us. We therefore impose the principle on these experts that they must act according to general, universally applicable principles rather than purely on a case-by-case basis. This mechanism is of course imperfect, but it does by itself prevent the most egregious "abuses" of power.

More importantly, and more philosophically, individuals have desires about abstractions, desires that can conflict with concrete instances of those abstractions. We can, for example, desire freedom of speech in the abstract while also desiring that certain people in particular (e.g. Nazis, pedophiles, Creationists) should not speak. In these cases, the question is not whether or not to use a simple statistical construction of the collective interest, but rather to weigh simple statistical constructions about different things. We can say that even though a majority of people would like Nazis to shut up, the majority would also like freedom of speech, and the majority's desire for the abstract principle is stronger than the their dislike of some concrete instance.

But there's an even deeper reason. Astute readers of my blog will know that the concept of collective interest will sooner or later be followed by a discussion of the Prisoner's Dilemma and its importance in ethical, legal and political philosophy. The Prisoner's Dilemma concisely captures the apparent paradox that there are states of affairs that are in everyone's interest that are at the same time in no one individual's interest. In other words, there are circumstances where, unlike the abstraction/concrete distinction above, there is no level at all where a simple statistical evaluation of individuals interests can give us the answer we "want" to achieve. It is not that the majority of people would prefer cooperation: If we assume that every person is rational, and that a rational person will always make the decision that maximizes his or her interests, then everyone ought to prefer to defect. Since everyone "rationally" prefers to defect, we always end up with mutual defection. But mutual cooperation is better for everyone than mutual defection.

The paradox is only apparent, because we're dealing with two different senses of "interest". In one sense, interest is captured in game theory as simple parameters: numbers in a decision matrix. In another sense, interest is the decision that obtains the largest of those numbers. These two senses are not independent — we can't talk about the best decision independently of the numbers in the matrix — but likewise they are different... and, in the case of the Prisoner's Dilemma, qualitatively different.

So Greenwald is too narrow. Yes, it's an effect of the rule of law that there will sometimes be bad outcomes, and that some law can produce a bad outcome is not a sufficient argument to contravene or invalidate a law. But Greenwald goes farther than that, "whether [illegal or unconstitutional] actions produce good results is really not germane," and that "the Court's decision will produce "bad results" is not really an argument." He doesn't say the argument is not sufficient, he says it's not relevant, not even an argument.

But it's never been the exclusive or even primary job of the Supreme Court to simply make sure that legislation is consistent with the Constitution. Even if we wanted that them to hew strictly to that task, the US Constitution is not sufficiently specific to allow them to do that, in the same sense that it's the job of the federal courts to ensure that the actions of individuals both inside and outside the government are consistent with the very specific and detailed federal statutes.

Rather, it's one of the most important jobs of the Supreme Court to interpret the Constitution in — as best as they can determine, which is often deficient, but that's another story — the best interest of The People. An analysis of what the likely good and bad effects of one plausible interpretation over another is precisely to the point, germane, relevant and the not only is an argument, it's the only kind of relevant argument. This is not only both the power and duty of the Supreme Court but also the power and duty of every court, and the reason why we need human judges, not just robots.

Just as Greenwald's argument is too narrow, Becker's argument is too broad. Yes, the Supreme Court can and should operate not just as a narrow interpreter of law, but also as guardians of the public interest, especially in recondite circumstances where the public interest cannot be determined by simple and direct measures. But it is not at all obvious that the Supreme Court has failed to act in the public interest. How should they determine it? One way is precisely what Greenwald recommends: By taking the literal meaning of the Constitution as what The People themselves have declared to be in our interests.

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