Ming the Mechanic:
Black and White and the Law

The NewsLog of Flemming Funch
 Black and White and the Law2005-03-31 23:59
picture by Flemming Funch

There are some logical problems involved in some of the things that people would consider making into law. Some of the hot political issues that lawmakers are arguing about, which seem to have clear for or against sides, really don't.

Take abortion. Are you for or against the right for a woman to choose to have an abortion? Those two views are usually presented as being sort of equal. Like it is a cross road and one needs to choose if it is left or right.

But the right to choose is not the opposite of abortion being illegal. The opposite of abortion being forbidden would be abortion being enforced. I.e. you have to have it. And there are places where that might indeed be a law. I don't know if China still has such laws. But, actually, logically, that fits better as the alternative.

If one is free to choose, one is free to choose. Meaning the result might be an abortion or it might not be. Depends on the situation and what the people involved think is right and meaningful and safe. Taking away that choice and making the answer always be the same is not comparable. The structure of that option is totally different from the option of choice.

Whether guns are illegal or not would be a similar set of opposites that aren't really opposite. The opposites of guns being forbidden would be that you have to have a gun. There's no real opposite of free choice, as free choice is not a particular choice, but rather the freedom to choose it when the situation comes up.

So, we could at least better say that no-choice is the opposite of choice. It would be worthwhile to be extremely aware of that whenever one chooses a no-choice option.

The particular option that is being enforced is merely clouding the issue. The real situation is that choice in a certain arena is being forbidden.

That's always a dangerous thing. However smart you are, you will not be able to predict all possible situations that any possible individual might find themselves in. Trying to pretend that you know the answer in advance to all such possible situations is rather arrogant and presumptuous. And wrong. You don't. So if you make an absolute law and you somehow, regrettably, have the power to make it be enforced, you most certainly will make things be wrong for a whole bunch of people, in situations you didn't take into consideration, or that you didn't want to consider.

Politicians in many places will take laws as some kind of statement of intent. Making a point. Setting a standard. So they will actively be part of establishing an absolute law, without needing to take much responsibility for all the situations where it doesn't fit, and without taking the responsibility for the fact that other people, wielding a large amount of force, will enforce that law rather blindly.

So, a politician might think: "We need to protect the children" and will vote for some law that forbids nude pictures on the internet, or that forbids people under 18 from having sex or something. He's trying to make some kind of moral point, and he's trying to influence the world into being like a certain picture he has in his mind, of what is good and proper, and how things "should" be. It is just that it isn't how it is, for most people. And a law might not change that much. It might simply authorize a fairly unlimited amount of violence in trying to make the world fit the "should". And it came from somebody trying to solve some problem, trying to avoid some "wrong" in their mind, and frequently picking a solution that doesn't at all fit the problem. Because the sense of logic necessary for even understanding this is not one of the requirements for being a politician or a policeman.

Many politicians who stand for a certain issue, and who would vote for making it law, will, if cornered, admit that they would choose differently in their own lives. What would you do if it were your own 16 year old daughter who got pregnant and she wanted an abortion? George Bush Senior had the honesty to answer that he of course would support her in her choice. But what if he already had made it illegal, without thinking of the consequences?

Once something is a law, a big state apparatus is in place to enforce it. How absolutely they do that will depend on the area, on the traditions of that country or region. For example, in the U.S. the law is not typically something you can reason with. Oh, there are great loopholes in the system, so one might get away with all sorts of things, because nobody's watching, or nobody currently has an interest in enforcing the law. And there are all sorts of legal small print and procedures that might help you get away with things. But if you really are in the search light of the law, and the law has decided you're wrong, there's no particular limit to the amount of force that will be applied to make you comply.

The fictional example I'd usually give would be if you decided to park somewhere you're not supposed to, like in an intersection. There would be a gradient of increasingly severe interventions that would be applied to make you not do that. First somebody might ask you to move. They might give you a ticket. If you're still there, they'll send a tow truck. If somehow you've bolted the car to the street, and you insist on defending your right to be there, it will quickly escalate. Armed cops will arrive, and if you somehow manage to prevail, it will eventually be teargas, then snipers and tanks. And they will eventually kill you, if they fail to remove you. And somebody will be able to say that they felt threatened and you lifted your arm suspiciously or something. So the public wouldn't think much about the insanity of being killed for a parking violation. You'd be some crazy, dangerous person. Even if all you had done was to park and stay parked.

Now, that would be in the U.S. And probably in China or in Russia. In most EU countries it would never go that far. In France they'd start a dialogue with you about why you're doing it, and what point you're trying to make, as they have an innate respect for the right to publicly make a point, even if it is inconvenient. In Denmark they might just leave you alone, if no good non-violent solution could be found, and hope you'd get tired of being there. OK, I'm making it a little more stereotypical than it is.

The point is simply that to make a law that is of the kind that is absolute and that will be enforced with physical and economic force, and threat of violence or incarceration - you need to be very, very careful to actually think through the consequences of that.

Very few things are suited for being legislated that way. Actually, maybe there's nothing that's suited for being legislated in absolute terms. Where there's a need to some absoluteness is mainly in the regulation of the requirements for participating in certain activities. If you want to drive a train on this railroad, the wheels of your train need to be 1435mm apart. If you're sending in your tax return, it must be on A4 paper. But that's more like regulations than laws. You can go and make trains of any width you want in your back yard, and write letters on any paper size you want, without going to jail.

Big wide-reaching laws would have to have a lot of qualifiers to them to work. Doesn't work to say that if you kill somebody you go to jail for 20 years. Because it depends. Sometimes, very, very rarely the right choice might be to kill somebody. You know, self defense, when all other options have been exhausted. Of course the laws in most places have some leeway built in in that regard. But hot political issues often end up with the least leeway in the law. In California there's a three strikes law. You will go to jail for life, without any room for choice, even if your third strike was stealing a loaf of break because you were hungry.

Taking away choice is generally a bad idea. The existence of a choice doesn't mean all choices are equal. A society might need to have negative consequences for making bad choices. Simply having a law with an enforced fixed outcome is a bad way of doing it. Laws that provide guidelines for what one is trying to accomplish is a better idea. And some guidelines are more important than others. Health, safety and happiness might be more important than any specific rules for how one might get there or not. A lot of choices might need to be made, on things that aren't known in advance.

Legal systems typically always have some kind of room for maneuvering. The cop will have to make the choice on whether he arrests you or not. There are lawyers and court cases and juries who will make choices. There are loop holes. The system might not work great, but there is room for reason and luck.

Now, however, technology might make it possible to enforce policies or laws without any room for choice or for maneuvering around them. You know, the automatic radar and camera that catches you speeding and sends you a ticket in the mail. No room for explanation or for reasoning about whether it was safe or there was a good reason for what you were doing. Same principle with an assortment of Digital Rights Management schemes that various media publishers are trying to push through. Like a DVD that will self-destruct in 24 hours, or a song you can only play on one piece of equipment, or a TV show where you can't skip the commercials. Your choice of how you will use things is suddenly gone. And the frightful thing is that the media publishers legally might be considered to have the right to control how you use what you buy from them. Which makes life a lot more boring and complicated, as you no longer are free to make your own choice of what you do when and how. It is a trend that this kind of thinking spreads to other kinds of technologies. A printer that will refuse toner cartridges bought in another country. Or that will refuse to copy certain images. If you've bought a printer fairly recently, you might be surprised to know that it is programmed to not be able to copy US dollar bills. Now, you're legally not supposed to, so you would be the looser in any argument against it. But your choice of whether you do so or not is gone.

Our societies are traditionally designed to have lots of loopholes, or maybe they accidentally ended up that way. There are all sorts of laws and rules and control mechanisms in place, but there are so many holes in them that even if those laws and rules are unfair or crazy or oppressive, you can still live your life somewhat sensibly around them. But if suddenly those laws can be monitored and enforced consistently and maybe automatically, we'd be in a whole lot of trouble. Imagine if you would get a speeding ticket in the mail whenever you passed the speed limit, because a sensor in your car wirelessly informed the police department. Imagine you couldn't make a photocopy of anything that is copyrighted, because the photocopier just wouldn't work. Imagine the tax department automatically calculated your taxes based on having watched everything you'd done, every penny you've gained or spent. Imagine you'd instantly be charged when you do or say something that could be construed as sexist or racist or subversive. Imagine automatically being hauled off to jail for practicing sexual activities in your bedroom that you didn't know were illegal in the state you live in. Oral sex is punishable with prison terms of one to twenty years in several U.S. states.

The law in most places is an incomprehensible self-contradictory mess. As the world gets more complex, and as more pervasive monitoring and enforcement methods become available, that becomes all the more clear. So you might either see a more and more surreal police state, or somebody will have to go back and rethink law altogether. Based on the diversity of choice. Choices with consequences. And one size never fits all.

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1 Apr 2005 @ 12:00 by Andrius Kulikauskas @ : Law gives rise to law
Hi Flemming. That's one question I keep returning to: How does law give rise to law? I noticed that in working with databases: every solution brings up new problems. So if you have a key (or password) to a door, then you have to worry about what to do if you lose the key, and what if somebody finds the key, and where do you keep a second copy, and how do you make a copy, and how do you know which copy is primary, and it goes on and on. So the answer I think is that there is no perfect solution, but instead for each set of problems there is an optimal solution. The optimal solution is where you spend, say, roughly half of your energy on the general case, and roughly half of your energy on special cases.

I started to study this while doing part-time work summarizing regulations. I decided to study the core of the law of Moses, it is actually quite short. Exodus 20-23, about the length of the Serman on the Mount. http://www.ebible.org/web/Exodus.htm#C20V1 I noticed that the punishments (sometimes harsh, sometimes lenient, sometimes absent) seemed to be chosen to maximally dissuade. If they are too harsh or too lenient, then they aren't taken seriously. So for adultery you put somebody's life at stake, but for gossip you just say don't do it and punishment apparently won't have any effect. That's what seems to be the logic.

Having lived in both the US and Lithuania, and from what I've gathered of Europe, I think that there are a few ways in which US civil culture is freer and kinder. So, for example, as an export driven business, after two years of being due a rebate on my VAT, I applied for it to be returned to me. (Note that the whole concept of Value Added Tax bookkeeping is foreign to the US.) They took my application and then called me in for a total audit of all my taxes, starting with my income taxes. Now, I'm a dual citizen and a sole proprietor in both countries. One difference being that in the US I don't have to register my business - and where I do, then it's with a local municipality. But, of course, in Lithuania I'm forced to register it and declare exactly what sorts of business I will be doing. In the US, I can keep my receipts in a shoebox and that is good enough. But in Lithuania I am supposed to do full fledged accounting - basically I'm supposed to hire as an employee a part-time accountant. Basically, the US is fact driven (can you prove that you had this expense, forget about the paperwork) and Europe is document driven (do you have the paperwork, forget about the facts). So I go into the office and I say, here are my VAT expenses and here is proof that I have genuine income, am a real business - the information needed to calcluate my rebate. But they said, this is not enough, we need to audit your entire business. I explained that that's irrelevant for the matter of hand, and so I would take back my request for a refund, which they recommended. They agreed but then said we have to audit you anyways. That's their policy. They said, look how long do you need to prepare? We'll give you two months. I said, these are my priorities: 1) I make sure the money is in your hands, 2) I collect my receipts and documentation, 3) I submit my paperwork, 4) I manage my books. As any business person, I am naturally overwhelmed in all directions and I keep dedicating time to this, and morally that is sufficient. I am running losses and living on the edge, even as I'm supporting a community center and developing a high impact high tech export business. For me to put my books in order - for the last seven years - which I should do myself to get it done right - would take about 200 hours. At that point I have to decide whether we'd all be better off for me to spend that time and energy publicly campaigning against this. Because, frankly, my income comes from the US and it makes sense for me to start first with how it is done there. So it came up, well how are things done in America, is it any different? And I said, in America millions of people ask for income tax rebates every year and the government sends them exactly what those people declare they are due. And they found that mind boggling. And people in America are quite conscientious about paying their taxes and those who cheat don't brag about it, whereas in Europe it's considered normal, expected to cheat. When I'm running a profit, then yes, I should find time to take care of this. And besides, the laws here continuously change, so I may just be able to wait this out. So then the officer asked, but what can I do, I am bound by my station. And so I said, here is the principle: just do whatever you can within the slack allowed you. Please, go ask your supervisor to look into this. So they went two levels up and finally they released me. I went outside and walked around to unwind - my business had almost been destroyed. And I stumbled into a new statue of the Japanese consul who had written his signature on some 30,000 visas for Jews to safely exit the country during World War II, staying up night after night. I cried. You can build statues to celebrate good behavior and people have no clue what it means to apply that. They should have an exam for bureaucrats regarding these moral issues.

Now, it's pretty remarkable that a bureaucrat would relent, and perhaps that happens more often here than in the US, although I don't have these problems in the US. Unfortunately, except for me, you are treated better if you are a US citizen. I think there is a key difference in culture between the US and Europe (with the UK and Lithuania somewhere in between). I think that difference is driven by class. In the US everybody wants to think they belong to the same middle-class, from Bill Gates to the ghetto dwellers. And when they see an official or a bureaucrat they feel - you work for me. And the laws are meant to serve me and be fair to me. Or you may have power over me, but that is only here and now, and vice versa. So let's be good to each other. Institutions support that, including the decentralized police system (Lithuania has a national police system) and trial by jury. I'm realizing that trial by jury is important because it lets the bureaucrats, the police and the system know that they don't have the last word. In Europe we seem to box ourselves into class concepts that seem to leave us impotent in the face of our system. There is a working class and it is appeased and thereby kept as a class and kept out of the picture. People can organize as they like but they don't actually get anything done as individuals. These European Union projects are unholy, the way they are designed around the assumption that we are crooked and must be monitored in the most wasteful and incapacitating ways. In America, there is at least some kind of political discourse regarding Iraq. In Europe, people march in the streets often with no real impact on their politicians. In America, there is quite a lot of self-critique, or at least some inkling. I don't find any self-critique in Europe, but certainly not any moral introspection or any assumption of leadership, or understanding of leadership as a duty and calling for those who can be leaders. I hope I'm not ranting too much, but I want to balance the picture, and as a European I want Europe to shape up.

Flemming, I wrote about our Daisy project: http://www.openleader.com/index.php/OpenLeaderBiz/DaisyTeam Please write there or to me if you might be interested, which would be fantastic. We might also be able to organize stipendees to help with your projects if that might free you up, too.  

2 Apr 2005 @ 00:57 by Pat Beatty @ : You have such a wonderful way of putting
things. I love reading your pearls of wisdom.  

2 Apr 2005 @ 12:45 by celestial : On the abotion issue,
It is a sad commentary that abortion has become a FORM OF BIRTH CONTROL!
If women want to have sex but not children, they should seek out sterile males.

On the tax issue,
Better if everyone paid a small percentage of their income, everyone benefits from good government. So much VALUABLE TIME is wasted in bookkeeping and enforcing regulations. Let the businesses who want to refine their productivity keep records for that purpose.

On enacting laws,
Hammurabi had it right on a number of his laws but throwing one in the river didn't take into account ones body fat.
Inevitability, some people end up getting crushed in the system from the misapplication of a law. The first time this is proven, the law should be suspended or modified.  

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