Wednesday, February 10, 2010

On law, part 1

Commenter Mr Aversion argues against the benefits of law:
Irrespective of the existence of laws or governments, they do them. My contention is that people who intend to rape, murder, steal and so on, are undeterred by the existence of laws or governments. Laws and governments simply add a wholly redundant yet costly and complicated overlay without providing any value in this instance. My belief is that the vast majority of people will not ever commit these crimes, whether government exists or not; and those who will commit these crimes, will do so, whether government exists or not.
There's a definite, material claim here: Laws and governments are "wholly redundant": laws themselves do not effect beneficial changes in people's behavior. The apparent causal relationship between laws and beneficial changes in behavior is, presumably, that both laws and beneficial changes are the effects of a common cause. (Indeed Mr Aversion notes that in a substantive sense, "[W]e already have an anarchist society and that no other society can, in fact, exist." The common "anarchist" cause of both laws and beneficial behavior is presumably operative).

My initial rebuttal does not directly contradict this view:
Since laws against rape specifically are newer than other laws, we can make scientific comparisons. And the data are unequivocal: making and strengthening laws against rape reduce the incidence of rape, and not just by incarcerating the rapists. Societies where rape is legally condemned have less rape than societies where rape is legally permitted.

There are, of course, a lot of other factors. But the scientific truth is unambiguous that without specifically coercive prohibition, those other factors are substantially weakened.
Correlation does not prove direct causation*, but it does suggest direct causation as a plausible hypothesis. Furthermore, indirect or common causation is more complex that direct causation, so positive evidence is necessary to substantiate these alternative hypotheses.

*"Correlation does not prove causation" is one of the most misunderstood and misused aphorisms in the philosophical examination of scientific epistemology.

We of course want to see a mechanism linking cause and effect; in the case of laws, however, the mechanism is immediately apparent: the police and prisons coerce people, and (with a lot of objectionable exceptions) seem to more-or-less use actual laws as a guide to their behavior.

Let us take a slight detour, though, and ask: what precisely is a "law"? In this context a law has the following essential characteristics:
  1. A law is a social construct. It is an idea in people's heads, directly or indirectly, and the idea has a causal effect* on people's behavior by virtue of it being in their heads.
  2. A law's primary effect is on coercive behavior, either to permit or prohibit specific kinds of coercion under specific circumstances. Typically (but not necessarily) some determinably specific and bounded body of law exclusively affects specific kinds of coercive behavior, usually overtly violent coercion.
  3. A law exists and is propagated literally (typically by being written down, but in some archaic cases memorized literally). A law has precise, objectively determinable, content that is preserved across space and time.
  4. A law is applied neutrally and objectively: in theory completely neutrally; in practice substantially and determinably as neutrally and objectively as we can practically manage.
*It's not essential or necessarily the case that the law has some particular effect or kind of effect, just that it has some effect, perhaps only the negative effects Mr Aversion alludes to.

These criteria are definitional, not normative. Something that meets these criteria is a law; just meeting these criteria does not establish if something is a good law, or that laws, by virtue of meeting these criteria, are themselves good. These criteria also differentiate a specific kind of social construction from colloquial or idiomatic uses of "law", such as, "The King's word is law," or the common discussion board standard, "Don't be a jerk." It's also clear that what we formally call "law" in most Western countries does indeed fulfill these criteria: We do have socially efficacious ideas, ideas that regulate the coercive behavior of the police, ideas that are written down and propagated literally, and we make an substantial and determinable effort (quite a lot of effort, actually) to apply these ideas neutrally and objectively.

Mr Aversion seems to propose or imply additional criteria, saying, "[I]f you have ever valued your own judgement over that of a lawmaker, you are an anarchist." Laws are apparently the arbitrary judgment of a specific person or group ("lawmakers"), and apparently must establish some sense or meaning of right or good.

(The alternative implication is that all societies are anarchistic, being composed entirely of anarchists ("every single person on Earth is an anarchist"); one supposes that as Mr Aversion self-identifies as an anarchist, he therefore not only recognizes that existing societies and nothing else are what actually exist and are therefore in some sense inevitable, but also meet with his positive approval. This interpretation does not seem consistent with the overall tone and content of his remarks.)

There are two problems with these additional criteria. First of all, they're unnecessary. Laws that are established by more-or-less common consent, rather than the arbitrary judgment of some "privileged group" would seem to be perfectly good laws. Furthermore, Mr Aversion (in email, reproduced in comments) seems to object specifically to the "written down" criteria, saying:
I think it is disingenuous to suggest that because something is written down on a piece of paper, it affects societal behaviour; disingenuous to suggest that the existence of rape laws reduces rape. Rape laws come into existence in societies tending towards better rights for women. The laws have no effect on rape statistics whatsoever; the laws are a consequence of the tendency not to rape in broader society. This is precisely my point. The laws contribute nothing other than a burdensome (and lucrative for some) overlay.
He is not objecting here to laws against rape because they were imposed by the arbitrary judgment of a lawmaker or because we value our judgment over these supposed lawmakers. He rather seems to imply that that the fact that they are "written down on a piece of paper... contribute[s] nothing other than a burdensome (and lucrative for some) overlay."

The specific benefits of writing down laws seems easily apparent: writing down a law and restricting at least certain kinds of coercion (overt violence) to only what has been written down provides consistency and especially predictability. I can know, by examining the statute, precisely what does or does not constitute rape; more precisely I know what behavior will and will not subject me to violent coercion. It seems that just this benefit alone is sufficient to justify the formality of actually writing down laws and enforcing them as written.

(That's all for now; I'll consider other elements of Mr Aversion's argument in further posts.)

3 comments:

  1. [For reference, I've posted the body of Mr Aversion's email in comments with his permission, omitting only prefatory and closing remarks and identifying information. Passages in italics indicate where he is quoting me. The thread of this conversation begins with the post Anarchism and authority and its comments.]

    -----

    This contention is incorrect. Since laws against rape specifically are newer than other laws, we can make scientific comparisons. And the data are unequivocal: making and strengthening laws against rape reduce the incidence of rape, and not just by incarcerating the rapists. Societies where rape is legally condemned have less rape than societies where rape is legally permitted.There are, of course, a lot of other factors. But the scientific truth is unambiguous that without specifically coercive prohibition, those other factors are substantially weakened.

    I think you need to make a distinction between a societal change and the existence of a law formalizing that societal change. I think it is disingenuous to suggest that because something is written down on a piece of paper, it affects societal behaviour; disingenuous to suggest that the existence of rape laws reduces rape. Rape laws come into existence in societies tending towards better rights for women. The laws have no effect on rape statistics whatsoever; the laws are a consequence of the tendency not to rape in broader society. This is precisely my point. The laws contribute nothing other than a burdensome (and lucrative for some) overlay.

    It is definitely the case that at least some people are undeterred by laws and government. Even so, it is still desirable to make rape specifically illegal. It's desirable to use formal, objective criteria for determining when we do indeed impose actual coercion on people, and those formal objective criteria need a formal structure to be even a little better than, "kill or imprison everyone we don't like on a particular day."

    I don't really get this. It's not as if the undesirable things are mysterious, difficult to define, or constantly changing. There is a small handful of socially unacceptable behaviours that are common amongst all people - so common in fact that in most modern legal systems, statutes about them derive from what is called 'common law'. Murder, theft, assault, etc. Most people know these things are undesirable and most people don't do them. As I said, I am not convinced that sufficiently many people are deterred by laws, to justify the existence of the cumbersome legal framework. Your argument would make sense if there was a risk of many people forgetting socially normative behaviour, or for socially normative behaviour to be constantly and radically shifting, but in respect of these basic interactions among humans, the rules are well-established and require no elaboration.

    ReplyDelete
  2. First of all, we do have agriculture, divisions of labor, and sedentary culture. One obvious at least hypothetical reason is that conditions have substantially changed.

    Agreed. I may have miscommunicated, giving you the idea that I somehow yearn for a 'prelapsarian' past. I don't. I was specifically trying to illustrate that the alleged yearning for this prelapsarian past is a straw man commonly raised in arguments against anarchists. I don't think we need to revert to any sort of 'simpler' state.

    Also, as you note, we are all "anarchists" in a sense: Our "hierarchical" legal systems are what we already have worked out collaboratively.

    I have to object to this. We did not work out our existing systems collaboratively, and we did not do so in 2 senses:

    1. The people who actually were contemporaneous with the implementation of these systems did not collaborate. Some forced others, using violence or the threat of violence, to comply with their self-aggrandizing megalomania.

    2. People now living merely inherited the customary behaviours of long-dead predecessors, without themselves contributing in any way to the design of the systems, and without any of them being afforded any realistic opportunity to object. The customary behaviours continue to be implemented using violence or the threat of violence, by the few hereditary beneficiaries of the original violence, at the expense of the many descendants of the victims of that violence, themselves now victims.

    (Note that based on my reading, it looks like one big element of bullshit in anarchism is the deprecation of "hierarchy", which seems to mean either "socially constructed coercion" at best or at worst "coercion I personally don't like".)

    I think you are being unfair to some interesting thinkers. Bear in mind there is a gulf between theoretical design and practical implementation. Refer to my earlier comment that 95% of people are bovine. The problem you're referring to is a consequence of morons hijacking perfectly cogent social theory and abusing it, in precisely the same way as whatever morons they are overthrowing did. The same criticism can be levelled at socialism and communism. In practice, greedy, self-important buffoons become tyrants, whether their starting point is capitalism, socialism, communism, anarchism, theism, or anything else. I don't deny that what you describe is descriptively correct most of the time; I question whether it is a consequence of the design or a consequence of abandoning the design in favour of self-gratification.

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  3. "This is a common straw man. My opinion is that we already have an anarchist society and that no other society can, in fact, exist."Perhaps. But this view would seem to render "anarchism" somewhat vacuous, n'est pas?

    No, I disagree. If you lived inside a bucket but you thought you lived inside a palace, it would be important for you to be disabused of your faulty appreciation of your situation, even if, functionally, there was nothing immediate you could do about it.

    Borders between countries, generally, do not exist. They are fiction. It is important to realize that they are fiction and that you can, physically, go wherever you like.

    Natural rights do not exist. They are convention. It is important to realize that they are convention, and that other people need not care about your pursuance of them.

    Laws are words written on pieces of paper, usually by people long dead, and you have never been consulted about whether you agree with them or not. Most of them are stupid and many of them are designed to preserve the wealth of some at the expense of others. They have no moral authority. Their authority is the muzzle of a gun.

    Realizing these, and thousands of other, basic, incontrovertible facts about reality is, I think, very healthy and necessary. You may not be able to do anything about it right now, but you will never be able to do anything about it unless you acknowledge it.

    Knowing that we already live in an anarchist society throws into sharp relief the implicit 'divine right' of the state. The state, as represented by government, consists of a group of people, individual men and women, who are approximately equivalent to the gang members of a mafia. Government is simply the most effective organized crime syndicate in town.

    ReplyDelete

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