Every so often, I get the irresistible urge to try and figure out why we do what we do and think what we think. What about you? Sometimes this happens on long drives during legislative sessions—I just returned from a 2 day advocacy meeting. Between listening to the radio and practicing my yodeling, I had some ideas about laws—the purpose of laws, what makes them fail and what makes them work well. I’m writing about it so I can remember my ideas and get some feedback from you.
My other purpose is to find some general principles, separate from partisanship and ideologies,which could be used as a starting point for conversations with those on an entirely different end of the political spectrum. Even though, in the midst of a session, it feels like there isn’t time to step back and get a big picture look, we really don’t have time NOT to. Under pressure, we get driven into our respective corners. Nothing will change about that unless we can change our own thinking.
Let’s play think-tank and reinvent the wheel. I’m quite sure all this has been much better thought out by people who actually study the law, but most voters are NOT legal experts! I’ve done this exercise before, and my ideas have definitely changed over time. Warning: this is a LONG post. Before you read on, maybe take a few minutes to jot down your own ideas about lawmaking or pull out your own blog posts about the same thing. What do you see as the core myths about laws, their valid purposes, and why they succeed or fail? What are your personal tests when you read a law? Please draw a line through any thought with a political party or label in it, just for today, and see what comes up instead.
First, I tried to think of some core myths about laws—ideas that are counter to the best evidence but which seem very sticky anyway. Most of these have examples in policy championed by either of the main parties. I gave up use of writing or speaking ideological political labels for Lent, just to see if that challenged me to think differently, and it has. Here is my list—please help me add to it.
Myth #1: Carrots and Sticks work. Don’t get me wrong—rewards and punishments DO have an effect. They just don’t have quite the effect we expect them too, because humans are much more complicated than lab rats. You don’t have to take my word for it—the evidence is abundant. Read Daniel Pink’s excellent summary, Drive, for a primer. In a nutshell, extrinsic motivators disrupt the system and misdirect our motives. If punished, we often respond by getting sneakier, more fearful or angry, and less trusting—we learn to be driven by avoiding bad outcomes instead of aiming for a meaningful goal. If a carrot is dangled in front of us, we might run towards it, but we consistently lose interest in the real goal the carrot was supposed to point us toward. If I tell you “hey, eat all this pie and I’ll give you some candy”, your mind will automatically downgrade the pie—something is wrong with it if you must be rewarded for eating it.
I don’t know why we are like that. Maybe because if we were lab rat-like, we would be far too easy to manipulate. Our oppositional tendencies are not always a bad thing—we’ve evolved them for a reason. All I know is, every time I read about some new “incentive” devised for doctors to practice good medicine, it makes me want to bite somebody.
Pink proposes (and gives evidence for) three motivating factors that are more likely to get us towards a meaningful goal, which I’ll paraphrase: a sense of mastery/ accomplishment, a sense of making a social contribution, and a sense of some degree of autonomy/ personalization of the work done. These come about intrinsically in the process of working. Furthermore, when the worker has a subjective sense of being paid/ treated fairly, he/she tends to forget about the money part—unless carrots and sticks get thrown into the mix. Then we start getting misdirected and the quality of work suffers. A well known example is the No Child Left Behind disaster.
Myth #2: The individual can be a free agent. In truth, there is really no such thing as an independent individual or the kind of ideal freedom some people dream of. We are all affected, like it or not, by what other people do. Even something as basic as the air we breathe is changed by the combined actions of those around us. In a world with more than one person, some person or group is always going to get a degree of upper hand, a larger share of the power, and our freedom will be thus further restricted. The choice isn’t exactly between government and the market—in the US, those two are getting merged more and more anyway. The choices are more about how the power is distributed and what the counting system for that power is. Do we count power only in money? Do we count it in votes? In muscle? In number of guns? In brain-power? In family lineage? Some combination? What sort of rights/ freedoms are we going to mutually agree to protect, and how far will we go to protect those? At what level of proximity (individual, family, neighborhood, city, county, state, nation, world) should a given decision be made? To make such decisions, we have to get over the belief that there is some ideal state in which no one would be able to control us.
This myth tends to rise up more, from what I can tell, when individuals feel un-counted in the power games—disenfranchised, if you will. The converse is that the more buy-in a decision has, the more the sense of having contributed to it, and the less a need to protect one’s self by oppositional behavior. Even with kids, this works—figure out how to get them to put in two cents to an agreement, and they will stand by it more often. So when we hear groups getting panicked over threatened freedom, even when we don’t agree with the particular freedom they want, we need to listen—there is probably a real trigger to that panic which could affect the rest of us.
Myth #3: We can be wholly rational. Sorry, just doesn’t happen. We are in the animal kingdom. Our rational thought is only one element of decision making. Some of the decisions we think we are making were made by our brains before we consciously took notice of them, and we confabulate our reasons after the fact. It is not a reasonable goal to believe your rational cortex can learn constantly to overcome the other parts of your brain or body. Without our emotions, intuitive thinking (based likely on input happening so quickly we don’t identify the source), and evolved thinking patterns, we would not be human. Be a human and don’t get so hung up when you see other humans thinking emotionally or bodily. You do it too.
Myth #4: Money can represent the true cost of goods, services and all tangible/ intangible things of value. If that were correct, a pure free market system would probably work just fine. This can never happen though, and it has partly to do with Myth #1—money is a carrot and stick tool, not just a medium of exchange. It is also because some things of value are not quantitative by nature, but qualitative. Mind you, I am not saying people can’t sell out their non-monetary valuables for money—their integrity, self-respect, creativity or compassion. We’ve probably all done it. But we’ll be left with a nagging sense of a bad trade, no matter how many dollars we got. Some social valuables we have evolved to require—although there are some with various degrees of sociopathy and lack of conscience who don’t, most of us have an intrinsic need for friendship, love, community, mutual respect, and representation in social decision-making. No amount of money will substitute.
Some of you may have fallen into the same rut I did awhile back—worry that money is the only thing that talks. I got out of the rut when I heard about certain political decisions being motivated not by money but by sex. I don’t have to specify, because those rumors are constantly in the news—I just hadn’t realized what it meant. Even though illicit affairs are not really how I want decisions affecting me to be made, I found it weirdly reassuring that something so deeply human could wriggle in to the halls of power. And it’s not just sex either. Even though some legislators have been corrupted by long exposure to the carrot/stick world, many can still be influenced by an appeal to goodness. Because we are human, money will never totally rule the world.
Myth #5: Science is static. This could be partly overcome by better science education in schools, focusing more on the process of science and not testing “fact” knowledge without reminding students there is not quite such thing as an unmodifiable fact. Misunderstanding this principle leads to producing laws that try to legislate science. It can’t be done—science can’t be micromanaged. It will defy us every time. Science changes so much more quickly than law or even public opinion. I’d love to have a science advisory board for every legislative body, to help catch goofs related to misuse of science.
What I’d really like to know about all these myths—what is their purpose? Why are they so sticky? Is it possible to revise them? If so, how can that be done?
Ok. Now on to the purposes of law as I understand them. Again, please fill in what I’ve missed or correct my errors.
Purpose #1: Permit identification and stopping of “cheaters” in areas of mutually accepted conduct. In this case, the mutual social standards precede the big laws to some degree if the laws are going to work—these are what we think of as “rights” of life and property, as well as various social behaviors. I’m not talking about traffic rules here—I mean the heavy duty stuff—murder, theft, etc. Things most of us “just know” we are not supposed to do. Not believing in a supernaturally designed system, I don’t think there is any such thing as a “natural right” in the usual way. But it does seem we have evolved to have certain broad types of “rights expectations”, in that we will have rebellions/ wars/ civil disobedience when our social systems tread on those deeply held expectations.
Because those types of law such as “no murdering people except in an approved war or to defend yourself” or “don’t take things that don’t belong to you” mostly come from commonly held beliefs instead of the law creating the beliefs, the law doesn’t serve so much to discourage the behavior as to allow for an approved way to stop those who break the rules. It identifies those who have not bought in to the social contract and who put those who do in danger. If we are going to accuse someone of breaking the law, we must have something codified to point to as proof. Otherwise the accused person could just say “show me where it is written that I can’t do this.” Those laws also serve as part of our cultural education for newcomers to society, both adults and children—“this is the type of way we expect you to act around here.”
The consequences don’t often change the likelihood a person will break this category of law. I did not have to stop and think, “hey I shouldn’t go sneak into my neighbor’s yard and snag his rose-bush, because the law says not to.” Remember, punishment is not the best directional behavior modification tool in humans—it misses the mark. Having consequences allows us to protect the willing participants in a social contract and to satisfy an evolved need for subjective justice. It’s more civilized and stability-promoting to put someone who has stolen from us in jail or require community service than to have to go and steal something back from them. If someone is not happy with my medical work, I’d far rather them sue me than shoot me. Sometimes the consequences can include rehabilitative efforts as well, re-motivating someone to legitimize the social contract by helping them find their place in it.
Purpose #2: To correct or prevent power imbalances which threaten the stability of a social contract system. Unchecked, power can gravitate towards those with the most resources for a given issue. Stability is threatened by loss of legitimacy and extremes of disparity. Shifting decision making in a certain area towards a vote-based one instead of resource-based is one way to correct imbalances. Shifting it from individual to local to national or vice-versa is another. Many safety regulations are in this category, when an unsafe practice by one person could result in disproportionate power over others.
Some resource access laws fall into this category, such as attempting to restrict antibiotic access to prescription by a trained healthcare provider instead of putting them over the counter as in some countries—because excessive antibiotic use drives up resistance and affects us all, giving them out without any controls puts excessive power over public health in the hands of individuals (of course, the current driver of antibiotic resistance is overuse in the animal food production industry).
Sometimes there is the opposite problem—individuals are micromanaged inappropriately and feel the power system is unbalanced against them. Attempts to make the system “fair” or “safe” that go subjectively too far can have this effect. These can be the trickiest laws to make work—they aren’t nearly so intuitive as the first group. Significant public education and buy-in at all levels is needed for them to be effective—more participatory democracy. Gun laws, driver’s license laws, corporate regulations, public safety nets, environmental protections, and union rights fall into this category. There is great temptation to apply carrot and stick principles in enforcement, with predictably undesirable results.
Purpose #3: To legitimize a social contract. Laws don’t have to be written to do this, if the social system is small, but in groups over a family level, formal rules seem to be needed. This isn’t just for purpose #1, to catch cheaters. It is to make the agreed-on system itself legitimate and more stable. I’d say this is another evolved characteristic of humans– we have a deep expectation that whatever governance we submit to must demonstrate itself to be legitimate, or the game is off. The more laws that get broken, whether the lawbreakers are punished or not, the less legitimate the system is perceived to be. I try to explain this to parents—don’t make rules you can’t enforce. Punishing is evidence of weakness. Having your rule broken undermines your authority, and your child has a developmental need for a trusted authority. You can’t stop the tantrum screams from coming out of the kid’s mouth, so don’t make that rule. All you can do is decide where he can be while screaming, and I hope it is not in the restaurant where I am eating.
When you hear someone say a person shouldn’t do something just because “it’s the law”, I’d say this is what they mean. I follow some laws I think are silly for this very reason, because I want to continue and improve upon our representative democracy and feel a duty to safeguard it by following rules the majority of my fellow citizens wanted. I wouldn’t follow them if they were hurtful, but if they are just silly and annoying, I see a civic duty to toe the line.
On to the ways in which we change laws or make them fail. First is by formal advocacy, using the processes set out in the social contract itself—legislation, policy-making, elections and so forth. Second is by intentional civil disobedience, a respected use of power re-balancing. Third, we often see casual disregard of a law which never got our joint buy-in or which we have outgrown. This includes all manner of black markets and underground economies. Marijuana use seems to be in this category. A fourth, sometimes a response to disregard, is lack of enforcement. Sometimes even a good-sounding law is just unenforceable from the get-go, and sometimes there is the lack of will to enforce it. To regain legitimacy, the law must then be changed to reflect current social agreements and ability to enforce them. Preferably, we could avoid writing laws we know will not be enforced. Leaving such failed laws on the books, if they accumulate (as in Alabama’s out-dated Constitution), undermines our social contract by threatening the legitimacy of the rest.
How can we identify those laws which have inherent flaws and will be likely to fail? If we can figure that out, we will know which pieces of legislation to support and which to oppose, without having to resort to ideologies.
Test #1: Does the law rely heavily on one of the myths—carrot/stick, free agent, pure rational behavior, money rules all, or fact-based science? If so, it is likely a bad law and will fail. The current healthcare law is FULL of these errors. In our current Alabama legislative session, take your pick. The well intended bill, SB 22, about breast cancer gives an actual script women are supposed to be given if they have “dense” breasts on mammography. What’s the problem? Nobody really knows how to define dense breasts, and even if they did, the understanding could change tomorrow. Another bill, HB 236, would say that two episodes of treatment for addiction plus one incident of substance use in a five year period is proof a parent can never become able to care for a child and should have parental rights terminated. There’s no science behind that, and I bet it is designed for some specific case. Further, it misplaces motivation in a carrot/stick manner, so that seeking treatment becomes something one can be punished for. It is easy to catch errors when the bill contains a known misstatement of fact, but harder when it tries to codify currently accepted “fact.”
Test #2: Does the law have broad enough buy-in? Would people be willing to follow it under most reasonably occurring circumstances, even if they thought it was silly? If not, it will fail. A good example is Alabama’s latest TRAP bill, HB 57/ SB 130, designed to close abortion clinics. Because the women denied access to safe/ legal abortion would seek it anyway, the result would be a net increase in deaths—embryos/ fetuses, plus women. Any meaningful healthcare reform will also have to have a strong buy-in from the great majority of us, or it will fail. Imposing something from the outside is a guaranteed flop. The same is likely true of some (not all) elements of gun control.
Test #3: Is the law enforceable? That one is obvious. “Personhood”, as in SB 205, would be unenforceable, because it would require bizarre monitoring of women’s bodily secretions to make sure we weren’t killing off zygotes. Attempting to turn health insurance corporations into moral creatures through regulation is unenforceable, because they will always find a path around the law.
Test #4: Does the law correct a power imbalance (without invoking one of the myths) or does it worsen one? The proposed drug-testing of foodstamp and Medicaid recipients narrows enforcement of a broad law to a single category of individuals based on income. Drug laws are already applied in a highly uneven way. Aside from the money-wasting and person-hurting aspects, this one is likely unconstitutional and would just be struck down in court. Remember, even if you do not want to give power to a certain group that lacks it—increased power imbalance destabilizes governments. We are not talking here about making everything “equal”, which is just as delusional and generally involves a power imbalance against individuals anyway.
Test #5: Does the law coincide with our deeply held values? I have a hard time thinking of a law currently on the table which meets the first four tests and would not meet test #5. Some of my friends (who have slogged to the end of this) will say this should be test #1. The reason I put it near the end is we make this test automatically—I don’t have to tell you to do it. But sometimes we misattribute the effect of a law on our values and need to think more deeply. Those of you who are against abortion at a visceral level should not be expected to want to increase it. However, you may be able to look at data that a particular law would not work for some other reason or would possibly work counter to your objectives.
Test #6: Is the law needed, or is there a better way to meet the goal? Public education would be a better way to get working knowledge about breast health out, rather than giving scripts to doctors. The fewer laws we have, the less work we will have to do enforcing them and keeping our overall system legitimate.
If you’ve stuck with me to the end of this, thanks! Now, what do you think?