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.

Freedom of speech and expression

Freedom of speech and expression is under threat due to our tendency to legislate for the minority who abuse it

No, I don't believe in unlimited freedom of speech and expression- it should be bounded by the responsibility to be considerate towards others and not actively encourage actions that impinge on others' freedoms.  I have no problem with society frowning upon expression of views like, "X is inferior because he's black", for example.

The problem is a variation on the "legislating for idiots" problem that I have also blogged about.  When clamping down against unreasonable speech and expression, we tend to feel obliged to show a hard-line approach, which means being willing to tarnish innocent speech and expression by association.  Such an approach can be "justified" on the basis that "the minority have to spoil it for everybody else" because "that's life", and/or by setting up rules that mandate it and then insisting that "rules are rules".

Example 1:  Clamping down against those who support illegal activities, and in doing so, stifling the ability of others to question the correctness of the law without being jumped on by association.

B.  As a community we do not tolerate views that condone/support copyright infringement.  Anyone who expresses such views will be banned.
A.  Download copyrighted file P from file-sharing site Q.  Here's a link.
B.  Instant ban for A.  That's the sort of thing that we don't allow.
C.  I believe that copyright law X is too restrictive because it prohibits activity Y, and Y probably doesn't erode content creators' sales and benefits the consumer.
B.  Therefore you condone Y, which is a form of copyright infringement, so you will be banned too.

Such "no condoning copyright infringement" policies are common on internet sites to guard against people like A, who could potentially get a site sued by copyright holders for posting links to illegal downloads.  But they are also used against people like C when they try to speak out against what, in their opinion, are unreasonably stringent copyright laws.

Example 2:  We clamp down against dangerous activities and the expression of views that support them.  As a result, those who speak out against the punishment of innocent people by association with offenders end up having their views stigmatised by association with those of offenders.

B.  We do not support reckless driving because of the way that it results in tragic loss of life.
A.  I want to be allowed to drive as fast as I like, because I find it fun.
B.  If you want to drive as fast as you like, go to a race track.
C.  I don't agree with the progressive tightening up of traffic restrictions.  While a minority do drive recklessly for pleasure, and I support clamping down against those people, a lot of people currently get enjoyment out of driving in a safe and legal manner too.  If the restrictions are tightened too much, this will be lost, and I don't support phasing out the recreational side of driving as part of clamping down against the minority who abuse it.
B.  Pleasure should never come before safety.  If you want to enjoy driving, go to a race track.

In effect, C's views are tarnished by association with those of A, since C is not arguing that "boy racer" type behaviour should be allowed, but is rather arguing that the freedoms of responsible law-abiding motorists should not be sacrificed as part of clamping down against it.  I am very used to arguing positions like C and being dismissed simply with the one-liner, "Go to a race track."

Political correctness and avoiding offence

The term "political correctness" is often over-used.  Here, I am thinking mainly of the philosophy where we outlaw language that can cause offence and/or encourage negative stereotyping of vulnerable groups, in the hope that it will make people question widely-accepted stereotypes and lead to a breakdown in values that encourage discrimination.

However, this policy encourages the punishment of innocent people by association with offenders.  In the past, when bigots used words offensively, the general public would often start using them as more general terms of abuse and water them down, forcing the bigots to find other words to use abusively, such as when we cycled through "idiot", "moron" and "imbecile" as terms for the mentally handicapped.  But today, when bigots use words offensively, we tend to outlaw them altogether, which results in the bigots getting a much larger say in what words are and aren't acceptable.

Also, we often have too much emphasis on the "avoiding offence" aspect of political correctness, as opposed to the "avoiding inciting negative stereotypes of vulnerable groups".  In some cases it is taboo to express opinions that are perfectly reasonable but might offend certain people, by association with related views that are unreasonable, such as the two examples that I provided above relating to road safety and copyright laws.

Of course, sometimes groups of people develop a hatred of a particular word because it is widely used offensively against them, and so it is only natural that if it is used inoffensively, they may misinterpret it and be highly offended.  People do need to be considerate of this, and take some care with their use of language, especially slang, on the internet and around people that they don't know.  However, when people use a word inconsiderately and without thinking, they should only get punished accordingly (in many cases, a mere warning would be the most appropriate) rather than being punished highly disproportionately by association with those who use the word as part of their oppression of certain vulnerable groups. 

And yes, I am seeing a worrying trend towards organisations setting up rules saying that all usage of a particular word should be punished by association with its most offensive usage, and justifying them on the basis, "The rules are right because the rules say so, and the rules say so, because the rules are right."

Instead, I refer readers back to my article on normative bullying and suggest that tackling this problem is the best way of combating discrimination.

"Normative" bullying - Part 1 - Basics

Definition of "bullying"

There is no formally-agreed definition for the term "bullying", and it is important not to define "bullying" too widely, for if the problem is over-diagnosed, it trivializes the problem and makes it appear that bullying is "normal", where the traditional line of thinking goes, "It's normal, therefore it's OK".  Thus, I am opting for one of the narrower definitions of bullying:

Taking advantage of a perceived imbalance of power to repeatedly hurt/intimidate others, using force, threat or coercion.

"Normative" bullying

In many cases of bullying, the bullies are violating social norms.  But in "normative" bullying, the bullies actually see themselves as enforcing social norms.  A group within society sets up norms (unwritten, socially-enforced rules) that mandate compliance with conventional/traditional ways of doing, being and thinking, and rejects those who fail to comply.  When these norms are typically based on, "Because we said so", rather than wider moral considerations, it results in suppression of individuality and creative, independent thinking, and, worse still, marginalisation of vulnerable/minority individuals or groups purely because they are considered to be different.  But when, say, a group of native whites ostracise a black person because of his or her skin colour, often, they don't see it as discrimination, they see it as punishing the black person for failing to comply with their rules, by analogy with how the police punish criminals for failing to comply with the laws of the land.

In those cases, the bullying does become "normal" as far as the given social groups are concerned, and so they argue, "It's normal, therefore it's OK".  What is then needed is for society as a whole to turn around on them and argue either, "Just because something is normal, it doesn't make it right", or, "It's not normal as far as we're concerned".  But in practice we often get a problem where it becomes "normal" because too many bystanders stand there saying "That's life" instead of being pro-active in trying to address the problem, particularly if the social group has a lot of power.

In my experience this argument can be remarkably persuasive.  For example, I, as a very moderate drinker, had experiences at university of being rejected by social groups because their rules were, you got drunk regularly and partied until 3-4am in your halls of residence, or you faced rejection for being different.  Many bystanders, and even some authorities, took the line, "Well, it's your fault for being different.  You know what the rules are, so if you don't keep to their rules, that's your problem.  Keep to the rules and you won't be rejected by the group.  The rules are the rules, and there isn't a problem with the rules, because if everybody obeyed them, there wouldn't be a problem."  It is the same sort of response as motorists get when they complain about being fined for speeding.  

In this case, using a simplistic "social norms"-based approach to tackling such bullying is unlikely to prove effective, because the bullies are actually the ones who are claiming to be enforcing social norms.  Moral considerations have to take precedence over the need to have rules and enforce them, otherwise we leave the door wide open for people with comparative power to perpetuate this kind of bullying.

Why all of this is important

The above form of bullying is a major factor behind most issues relating to discrimination (racism, ageism, sexism, homophobia etc- it crops up in every case of it).  For instance, a group of white people may consider it acceptable to ostracize a black person because the black person's skin colour and/or ethnic background makes him or her stand out somewhat from the rest of the group, arguing, "Well, it's his/her fault for not fitting in."  Groups may develop prejudices against those that they consider to be different in some way, and then accept those prejudices/stereotypes without question, with the idea being, once such behaviour becomes "normal", it must therefore be OK.

As a society, instead of targeting this type of bullying, we generally try to legislate for it, and focus anti-bullying/discrimination efforts primarily against activities that, in terms of harm caused to the recipient(s), are actually relatively minor.  We try to clamp down against use of language that can reinforce stereotypes, and make a big thing of high-profile "one person's words against another" cases, like in the infamous English Premier League row between John Terry and Rio Ferdinand where, as part of a foul-mouthed exchange of abuse between the two players, John Terry made an inappropriate one-off reference to Ferdinand's skin colour.  While Terry's behaviour was unacceptable, it was hardly likely to be as damaging as cases where black people are routinely marginalized by social groups because of their skin colour, and yet it got far more attention.  As a result, the general public become in danger of being branded racists for making one-off misjudgements when they lose self-control in an argument, while groups that continue to marginalize ethnic groups for being different continue to get away with it because they argue that their behaviour is enforcing social norms (whereas in the above case John Terry was clearly violating social norms) and take in bystanders by arguing that "that's life" and "rules are rules".

All of this creates a public dislike of "political correctness" and related policies, which in turn damages public support for efforts to make headway against this type of bullying.

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.