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.

Fundamentals of freedom and responsibility

(Post updated on 19 June 2014)

Freedom is bounded by responsibility

Freedom isn't just about being allowed to do what we want, when we want, because in order to maximise the collective freedom that we enjoy as a society, we have a responsibility to not act in a way that impinges upon the freedom of others, to an extent that more than offsets our own personal gain. One well-established example of this problem is the tragedy of the commons.  And sometimes, we misbehave in ways that are actually detrimental to freedoms in the long run.  These behaviours can thus be termed irresponsible, and we do need rules and regulations in place to help filter out irresponsible behaviour, and to enforce them using the appropriate combination of punishment (to act as a deterrent) and rehabilitation (to reduce the risk of people re-offending).

Rules and regulations require balance

If rules and regulations are too lenient then we may risk allowing irresponsible behaviours, which may erode the collective freedom that society enjoys.  But if we make them too strict, then we end up prohibiting responsible behaviour, and thus eroding our collective freedom as a society.  One classic case is the tragedy of the anticommons- freedoms exist, which could be utilised at no cost to anybody, but because we set up rules prohibiting them and tell the masses that they must obey the rules or face punishment, the freedoms are somewhat under-utilised, at a cost to society as a whole.

It is particularly important that we set up rules that reflect wider moral considerations, and follow them out of respect for those moral considerations.  Many over-restrictive rules survive for decades and even centuries because far too many of us are taught to accept and obey rules without question because "rules are rules" (because the authority who set the rules said so, or because that's just the way we've always done things, for example)- this gives authorities too much power to set up whatever rules they like and argue, "I'm right, you're wrong, because I said so."

The two traps that we often fall into re. over-restrictive rules

• Setting up rules that say, "You must follow a certain way of doing and thinking or be marginalised", which prohibit alternative ways of doing and thinking that are harmless, but are seen as different to the expected norm.  This suppresses innovation and independent thinking, and can be associated with discrimination against vulnerable, disadvantaged and/or minority groups.
• Collective punishment/punishment by association- prohibiting and punishing responsible ways of doing and thinking by association with the actions of an irresponsible minority.

One common danger of setting up rules that are too restrictive, and arguing that they should be obeyed purely because "rules are rules", is that some people may rebel against rules in general as a result (including the good ones, as well as the bad) rather than just rebelling against the bad ones, and that can lead to anarchic underground cultures, for example.