One of the reasons I’m a bit concerned about artists ‘feeding the trolls’, as Art Monthly have done with their latest pot-stirring exercise is that we’re becoming increasingly ban-happy as a nation. This is a global problem, as the Reason.tv video I’ve included below indicates.
Drew Carey’s main point in the video is worth emphasizing: bans are backed by law, which - in the wrong hands - is a blunt instrument of the worst sort. People often forget that law is about authority, not coercion. As Joseph Raz points out, any state that depended solely on its coercive powers to enforce the laws would be buggered in weeks - you’d need a policeman for every citizen. Authority, by contrast, is a much more diffuse and powerful concept. When it comes to the law, authority involves accepting a set of reasons for action independent of whether one agrees with that set of reasons or not. A law-abiding citizen abides by the law not because he (necessarily) agrees with it, but because it is the law. One of law’s great efficiencies - as Raz also points out - is that we don’t need to have recourse to the very foundations of morality every time we want to make a decision of middling import. The framework is already there. The problem - when the state starts ‘minding your business’ for you - is that over time its capacity to exercise content-independent authority is slowly whittled away, to be replaced with coercion, and lots of it.
In my view, part of this ‘ban everything!’ desire stems from the fact that Western societies have lost the informal social controls that once meant young people dressed neatly (no ’saggy pants’), say, or animal owners controlled their pets. Social rules that fall short of being laws proper are immensely powerful, as H.L.A. Hart illustrated years ago (in The Concept of Law), and vital within a given community. Sometimes - over time - social rules become laws. Usually, however, it’s better for society if they don’t. Replacing our lost ’social glue’ with law means our capacity to regulate ourselves lacks the diffuse and informal quality of social obligations and is instead characterized by coercion and force. This doesn’t work. There aren’t enough police for it, apart from anything else.
Much ink has been spilt on the idea of ‘rebuilding civil society’, and too much of it - in my view - involves recruiting the law to labour in a field for which it is ill-suited. It may be that we have to trust citizen authority more than we do, rather than assuming that state authority is always best. This sad little vignette (which comes via Currency Lad) is emblematic of the problem:
For more than two years, Sydney Davis’s house has been under siege from youths throwing stones.
After two hours of bombardment in the latest attack and no sign of the police, the 65-year-old retired builder decided enough was enough.
As a particularly large missile landed in his kitchen, he grabbed a plank of wood from the garden and ran towards the gang to scare them away.
The police arrived just in time - to arrest Mr Davis for possession of an offensive weapon.
He now faces up to six months in prison. Yesterday Mr Davis said he was bewildered by the decision to prosecute him.
He claims objects have been thrown at his house on 700 separate occasions.
His windows have been smashed five times in eight months.
I’ve been in Britain long enough to know what will happen in this case. Mr Davis will go to court and get - at most - a fine, but the court’s time will be wasted. The boys will finish up subject to an ASBO - an ‘anti-social behaviour order’, a civil order that (if breached) will almost certainly see them gaoled. ASBOs provide no support mechanism for offenders - not even young offenders - so breach (and custody) is almost certain. ASBOs also require court time. A great deal of court time.
It would have been much simpler to let Mr Davis clout a couple of them - if it came to that - in order to reassert his authority. Instead, the coercive powers of the state have entered the fray, punished the citizen, gaoled the youths and made a meal out of the whole business.
UPDATE: Simon Elvery has written a thoughtful follow-up post to this one, focussing on London’s recent spate of knife crimes.
13 Comments
I’d be interested to know to what extent social (vs. legal) rules are being broken more. Is there really any truth to this or is it that people are simply noticing it more due to the media? I might point out that there are many social norms people obey more now, but these are never mentioned (e.g., people now drive more safely in Melbourne vs. 2 decades ago, people litter less, etc.).
I do think the content of at least some social rules has changed over time (although I’m not sure about littering - Australians have been competing for that ‘tidy town’ caper since forever). What I do know is that there are fewer social rules than used to be the case - because pollies keep turning them into laws!
Awesome post, SL. People have to believe in the law to want to follow it - it has to seem justifiable.
And the belief in the law has to be qua law, not the content of any particular law. This is what Tyler Cowen means when he talks about ‘loyalty to abstract concepts’, I suspect.
Yes, definitely - law as law itself.
My conference paper is on justifying certain types of private law liability in particular - Ernest Weinrib says we have to be able to justify to a defendant why he is liable to that particular plaintiff in that particular way.
There’s an interesting take on this in the IPA Review about how the Left has substituted nannying - via its obssession with regulation - for Socialism. I wonder which is worse? Either way, the Left is always first and foremost concerned with how to transfer as many tax dollars to themselves and their nannying mates.
I made this point on the David Davis thread, and I think it’s pertinent to what you’ve raised, John:
SL
Spot on. But the ex-Marxist in me cannot help but reduce it to economics, class-interests, and wealth-seeking. See, these multiculti types think they are altruistic, “helping the little people” - wogs, sheilahs, poofs, etc. I have a different take. “Helping” always involves passing laws, setting up taskforces, commissions, research units, policy advisers, law-enforcers, diversity officers and so on.
Then of course hordes of new “professionals” must be paid to “implement” all this altruism.
Now where does this money come? Firstly the taxpayer. And what types will need to be employed? Brickies? Well no. Middle-class people who have stuydied Social Studies at university. That is, the Nanny-staters own CLASS.
To summarise your honour. The multiculti Left (I shall you honour you by omitting the “L” word ;)) is a CLASS movement, whose class interests are advanced by being able to transfer as much of the tax take and federal/state budgets to employ their fellow class members to pimp ideologies that demand first and foremostly increasing amounts of tax dollars channelled into their own pockets.
In other words, bourgeois class warfare.
John,
Is that like lawyers attempting to ensure that they get elected to the various Parliaments?
If I can summarise your argument:
Law leads to lawyers.
Jacques, that’s Richard Epstein’s argument, but it’s one with which I wholly agree - too much law, too many lawyers. Turning all our social rules into law is part of the process.
Yeah. And Mises pointed out that one intervention often causes problems which lead to another, and then another …
As is sometimes said in programming: the fastest, most secure code is the code you don’t write in the first place.
Absolutely - that’s why I think you have to be really careful intervening in things - sometimes even the best-intentioned actions can have unintended unanticipated adverse effects.
I’m always wary of people who think that they know what’s best for the rest of us…
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