Legislating for idiots

Legislating for idiots- a dangerous modern-day cultural norm

In my opening piece on the fundamentals of freedom and responsibility, I argued that we need rules to strike a balance, to discourage irresponsible behaviour, but to not be so strict that they also discourage some responsible behaviours, resulting in freedoms being under-utilised as per the tragedy of the anticommons.

In the UK a cultural norm has evolved where, when a minority abuse a freedom that many people perceive as non-essential (i.e. not work or family-related) we deem is necessary to legislate for the minority through "collective punishment/punishment by association" policies, curbing the freedoms of everybody.  It has always been an especially common policy in schools, e.g. banning snowball fights because a few idiots might throw snowballs with stones in, and banning physical contact (exempting physical contact with family members because "family is different") because rapists might pretend to be friendly with the ulterior motive of "grooming" victims with the long-term aim of molesting them.

It is favoured because it is perceived as a hard-line way of "doing something" about a safety threat- by punishing innocent people by association with offenders, we show that we are prepared to make sacrifices for the sake of improving safety.  Unfortunately, this is only "hard" against innocent people- it does not necessarily translate to being "hard" against the actual offenders.

The almost imperceptible erosion of freedom AND responsibility

There is quite a famous quote out there, which is attributed to Adolf Hitler in his infamous book Mein Kampf, though due to translation issues, it is unclear whether he ever actually said it.  Regardless, there is a lot of truth in it.

The best way to take control over a people and control them utterly is to take a little of their freedom at a time, to erode rights by a thousand tiny and almost imperceptible reductions. In this way, the people will not see those rights and freedoms being removed until past the point at which these changes cannot be reversed.

We are in danger of following that route, because a typical process goes:  

A minority abuse freedom A, so we restrict or ban A.  Then, the minority go underground, so we impose more restrictions in relation to A, to try and tackle the underground outlaw cultures that result, and drive their abuse even further underground, and the process repeats.  Then, we find that some of the minority have started abusing B so we ban B, and then they abuse C so we ban C, and so on.

By this process we can end up phasing in unpopular measures that nobody actually wanted, via a series of tiny, almost imperceptible, reductions to responsible people's freedoms.

Another problem with this process is that it erodes the need for people to learn how to be responsible.  If we get used to authorities wrapping us up in cotton wool as part of legislating for individuals' stupidity, and we know that if we take calculated risks in a responsible manner we are likely to be punished by association with those who irresponsibly take unreasonably high risks, why bother being responsible?  We end up moving towards a society where most of us either join forces with the offenders in taking irresponsible risks, or don't bother taking risks at all, and we have too little of that healthy middle ground where society progresses forward through people being prepared to take calculated risks, where it is a case of relatively low risk for relatively high reward.

Objective considerations- the (rare) occasions when it is desirable to legislate for the minority

But there are certain circumstances where it is desirable to legislate for the minority, where it is a case of high risk for low reward, e.g. we don't allow the public to own grenades and the primary reason is that if a minority abuse them, the consequences will most likely be catastrophic, while the beneficial uses of grenades outside of war zones are small.

To accept such policies as a necessary evil in a particular situation, I would need to see evidence that:

(a) they will be significantly more effective at improving safety than a regulation-based policy (i.e. allowing responsible use, but prohibiting misuse and clamping down against misuse),

(b) this will be likely to offset the downside of punishing innocent people by association with offenders and the prohibition of responsible calculated risk-taking,

(c) the reasons for employing the measure are case-specific and are thus unlikely to be extended to argue for a series of prohibitions on related things.

Unfortunately, as a society we tend not to be very objective- we tend to dismiss regulation-based policies because they are not flawless (e.g. you can't always tell if people are breaking the regulations) and because they "compromise on safety" by trying to protect innocent people from being unfairly punished (even if they are actually far more effective at improving safety than blanket prohibition).  The injustice of punishing innocent people is routinely dismissed on the basis that "the minority have to spoil it for everybody else" because "that's life".

I can understand why we get knee-jerk reactions when our safety, or our loved ones' safety, is put under threat.  There is an automatic desire to "do something" which shows a hard-line approach, to bring the perpetrators of the threat to justice, and if it means punishing thousands of innocent people in the process, so be it.  When people suffer traumatic experiences, often they cannot reasonably be expected to think objectively.  But that doesn't mean that we should carry out policies that reflect these knee-jerk reactions.  By all means let people react that way, but let's ensure that our policies are based on logical thought and weighing up the pros and cons of different options.

When we pander to the "hang 'em and flog 'em" knee-jerk responses, we quite often carry out measures in response to an incident which do little or nothing to reduce the chances of such an incident recurring in the future, but are effective at punishing innocent people by association with offenders.  For example, I am yet to see compelling evidence that banning physical contact between non-family members is particularly effective at protecting children against being molested, or that it is any more effective than increasing the enforcement of previously-existing regulations against touching of a sexual nature.  But it is effective at punishing innocent people by association with offenders, and that's why we accept such measures as a necessary evil (yes, it's because they are effective at punishing innocent people).  This really needs to change.