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What Do You Owe The Law?
In some ways, I’m one of the nuttier libertarians on Ricochet, always willing to put in a good word for David Friedman and his anarcho-capitalist theories. But I’m also a law-and-order gal: when people come together, it’s easy for me to see that they benefit from agreeing to some rules to guide their conduct (one of the reasons I sympathize with anarcho-capitalists: they, too, believe that rulemaking is such a ubiquitous feature of human behavior that there is a market for law). Moreover, I’m a lawyer’s kid, which means I grew up thinking of due process as a moral good.
For many reasons, I attempt to cooperate with the law. When our home was burgled, though nothing expensive was stolen, I took extensive notes, with accurate hand-drawn pictures of stolen items, and spent several days’ worth of time trying to expedite police action on my case. Not because I thought I’d ever get my stuff back, but in hopes that, if I cooperated with the police quickly, the burglar might actually be caught, and other residents spared the pain we had just been through. Despite my efforts, it took half a year for the police to follow up. The police refused to accept my notes and drawings at the time the case was fresh, and, months later, when a police detective finally took interest, my family had bigger problems to deal with, and we no longer could spare time to help. The material I prepared for the police still sits, collecting dust, on a shelf, a casualty of bad timing.
Even the bohemian crowd I ran with in college made efforts to help the police when we could. We were, for the most part, science and engineering students – the squarest kind of bohemian. When a pervert was roaming the village, half-climbing through women’s windows at night in order to cop a feel, we offered our ground-floor apartment in a rickety, easy-to-break-into house to the police for a stake-out. In retrospect, perhaps this wasn’t a practical offer, but who am I to judge? All I know is we tried to assist them, but were told nonetheless that the police would take no action: it seemed that this fellow (and he was a fellow – I remember his knuckly, hairy hands hovering over me) would have to completely enter someone’s abode and do something even worse before the police would care. Or whatever “We can’t act until he escalates” means.
Even so, when we found a piping plover trapped in a water intake, we called the police again (animal control). The signage posted around the intake had warned of the dire consequences of entering without permission, after all. The police response – a piping plover is too small to shoot, “so it’s not our problem” – is one I almost sympathize with. Or would have, if the poor plover hadn’t gotten himself sucked into the water intake of a generally sleepy town. Moreover, when “Officer Friendly” visited our elementary school when we were kids, he assured us that policemen were friendly, the kind of guys who rescue kittens from trees, not cruelly mock citizens’ attempts to rescue injured birds. Well, the plover was rescued in the end, spirited away in the middle of the night by some college kids willing to break the law, climb into that intake, then transport an endangered species across state lines (undoubtedly a violation of the migratory bird act, too) to a shelter willing to care for the remainder of its natural life. In retrospect, a fine time was had by all (even the bird acquiesced to the long car trip with aplomb). Even so, it left our trust in the law just that much weaker.
I’ve reached the point where interacting with police – for any reason – unnerves me. As Theodore Dalrymple notes, the minor infractions of a basically law-abiding type like me offer bureaucratically-minded enforcers easy pickings. Nonetheless, my respect for the due process of law remains largely intact. Perhaps because I’m a lawyer’s kid. Or perhaps only because I’ve had the good fortune to avoid testifying in court.
When I read then, an account of someone blatantly lying to the court – and not to protect others’ reputations, either, but to defame them – it’s hard for me to sympathize. What reason could possibly be good enough to justify such behavior? According to many on this site, though – and people I assumed were even bigger sticklers for for the rules than I am – “keeping the baby I promised to someone else” may be one such reason. I realize I’m not a mother yet, but this surprised me. It leaves me wondering in what other ways the people who chide me for my “anarchic” libertarian ways might also believe that their own moral principles leave them above the law.
So I ask you, fellow Ricochetoise, what do you believe you owe the law? And what, specifically, do you believe that you don’t owe the law?
When you know you’re breaking the law, how do you justify it to yourself? How do you justify others’ contempt for the law, like that of the woman who allegedly lied to the court to keep her baby?
Do you draw a distinction between ignoring the law for expedience (“I can’t get this permit, but I need to keep working anyhow”) and high moral principle? If you do, how, and if you don’t, why?
Published in General
Well, but we’re not just talking fine, we’re talking
fine + liability laws + insurance premiums + social disapprobation
All of these things contribute to covering the true cost of externalities. At some point, you can even overdo it, so that the multiple forms of punishment greatly exceed the cost of externalities (this is common in enviromental and business law, for example, when liability rules and regulatory law are both in force).
Ideally, whatever combination of punishments used hits the optimum, where the cost of punishment exactly covers the cost of the externalities you impose. In practice, of course, just getting close-ish to the optimum is Pretty Darn Good. (Not that you don’t already know this, Third-Favorite Actuary, but others listening in may not.)
The section Coase Plus Pigou Is Too Much of a Good Thing succinctly addresses what happens when punishment imposed exceeds cost of externalities.
It would seem that that section provides support for the idea that fines are the wrong way to deter bad driving, because the fines accrue to the State whereas the costs of bad driving are borne by other people.
It advocates torts as a better way to manage externalities. I’d like to read the full article — I’m pressed for time right now — but this section caught my eye:
In the case of physical injury, torts can incur extremely high transaction costs. In general, the article talks of property damage, not personal damage. The discussion of bright-line rules seemed relevant to this question, because of the high transaction costs and the difficulty in putting a monetary value on personal injury.
Finally, the externalities here are borne prospectively and probabilistically. The behavior in question may, or may not, lead to damage or loss. The injured party or parties are impossible to identify a priori, too. The probabilistic damage is diffuse, but the actual damage is concentrated. So even if all people held rational expectations of the future (a dubious premise), I’m not sure Coase’s analysis applies in this case. Torts may remedy some damage after the fact, but the threat of tort cannot be an effective form of deterrence, especially to a person with little money to lose.
I meant the citation to apply more to environmental and business law, not driving. Sorry ’bout not making that clearer.
Got it. I should also add that by “this case” I meant more than just driving — I meant things like the leash laws. Laws designed to protect others from injury.
While individuals tend to be bad at estimating the risk of individual acts, I believe that when aggregated over time the evaluation of risk tends to be pretty good, especially when measuring groups.
Analogy: A person deciding whether or not to jump off a cliff/bridge into a lake is ill-equipped to judge the risk, but over time groups are pretty good at judging which cliffs/bridges are safe to jump from, which is why it would be overkill to ban all cliff-jumping, and why lots of kids jump from bridges without harm even though there’s a big “do not jump from bridge” sign.
I have no citation to back up this belief, though I’m pretty sure I’ve read articles which back it up.
Yeah. I’ve never jumped off a cliff without first seeing a lot of crazy 20-something guys attempt it and not get hurt.
Furthermore, the human tendency to misjudge risk is almost as likely (if not more likely) to over-estimate risk rather than under-estimate it.
I bet few people would run a red light at 4 in the morning on a country road when they’re the only car for miles around, despite the very low risk of doing so. The human tendency to follow posted rules tends to overrule risk assessments even when those assessments are perfectly rational and/or correct.
This sounds like the justification used for every intrusion by the nanny state.
What the research shows is that the human tendency is to overestimate risks with high severity and low frequency (e.g. nuclear accidents), and underestimate risks with low severity and high frequency (e.g. driving accidents). They overestimate risks of the unfamiliar (e.g., GMOs), and underestimate risks of the familiar (e.g., driving). They overestimate risks of things they have no control over (e.g., flying), and underestimate risks of things they control (e.g. driving).
That hypothetical, which you presented earlier, is not realistic. In my sleepy town, the traffic lights switch to blinkers at night. Some switch over at 10pm, others at midnight or later, depending on how busy the intersection is. The technology is very standard. Do they not apply it where you live?
So it’s acceptable to penalize those humans who do calculate the risk correctly?
If it’s true that nobody else it around, and if it’s true that the dog is well-mannered and obedient, then there is genuinely little downside to the dog owner letting the dog off the leash.
Now, that is not an argument for getting rid of the rule, but rather an argument for refraining from posting police officers and/or surveillance cameras on every single street corner to ensure that no person can ever even have an opportunity to break the rule.
Are traffic laws an intrusion by the nanny state? Or does the state have a legitimate interest in regulating traffic for the sake of public safety?
Those two questions are not mutually exclusive. A state can have a legitimate interest in regulating traffic while at the same time individual traffic laws (and/or the indiscriminate enforcement of those laws) can be intrusions by the nanny state.
One does not have to disagree with every law in order to oppose a particular law and/or the indiscriminate enforcement of particular laws.
Since it is impossible to write every possible circumstance into a statute, prosecutorial discretion becomes necessary to avoid indiscriminate regulation of human behaviour.
Yes. Until there is a way to distinguish such rationality objectively, the law must apply to everyone equally. Or get rid of the law, and let the tort system work it out ex post. You may think it’s other people who are misestimating the risks. But those other people think that way too.
Actually, it is an argument for getting rid of the rule. If you’re not going to enforce it generally and impartially, it’s better not to have it. Otherwise you give officials a tool for capricious application against people they don’t like. The law is a blunt tool, to be used sparingly but consistently.
Then the justification the state uses for any law is irrelevant, because you are going to consider each law individually based on your own evaluation of its merits.
Agree to disagree. I like that cops have the discretion to give offenders a warning rather than a ticket, or can drive a kid home to their parents when they’re caught being stupid in public rather than having to throw them in a jail cell, or can yell at the dog owner “hey, get that dog on a leash!” rather than having to issue a ticket.
The justification the state uses to create a law is very often vastly different then my justification for following it. I follow all sorts of laws I personally disagree with, because I don’t want to be punished, but I feel zero guilt for breaking a stupid law (or even a good law which I think is inapplicable at that particular moment) if I think I’ll get away with it.
For example, I feel no moral guilt if I stop my car in front of a fire hydrant for a very short period of time. The (right and proper) justification for the law is to ensure that firefighters can access the hydrant, but if there’s no fire during the two friggin’ minutes I’m stopped there then I’ve caused no harm.
A police officer who happens upon me at that particular moment would be entirely justified in issuing a ticket, and I wouldn’t fight it because I recognize that I was legally guilty, but I still wouldn’t feel bad about doing it.
It works for a time if you, or only a few people, do this, but it never works out that way for long. When everyone does this then the fire hydrant is inaccessible all the time, because no drop of rain is responsible for the flood. It’s not about you blocking the hydrant one time. It’s about everyone blocking the hydrant eventually when more people adopt that attitude, and they will if they see people do it enough.
So yes, in fact, you have caused harm because you contribute to the general problem, and encourage others to do the same by example.
I’m the worst.
As I understand it the presumption of innocence only applies at criminal law, and then only when the question is “did you behave in the way you are accused of behaving” not “is the regulation you are accused of breaking really good law?”