Rob asked in the comments:
"What is exactly your goal with here? and the goal after that?"
The simple answer is:
I read an unfair description of a position, and felt that I needed to correct it. Note, the position is not one I agree with, but wrong positions on my "side" deserve as much (more?) criticism than wrong positions in the opposition.
I can't find it, but one of my regular reads (blog-bar to the side) posted in the last month or two about somebody or other's "law": There will always be people on your side of the argument, who you wish were not (on your side).
If the argument is bad enough, it does damage to the position, more than it helps.
I am of the opinion that if you are talking in a libertarian echo-chamber, then positions like Kling's original one may help to motivate the base. If that's not what you're doing (and since libertarians don't have enough of a base to worry about doing that) then putting Kling's discussion in the wider world is a net loss for the libertarian position. It simply shows that the libertarians have an unrealistic, uncharitable, unfair characterization of the opposition...and thus should be dismissed/ignored by serious progressives.
Furthermore, I am (personally) moderately offended by any position that is sufficiently confused as to think it's unconditionally right.
"He who picks the questions wins the debate," is a relatively safe statement, subject to only about 82 caveats. I find it useful at times to attempt (unsuccessfully thus far) to point out that the libertarian position, while IMO stronger than any competing visions, isn't winning any real fights by choosing the question. If anyone wants to be convincing (rather than just trying to feel self-righteous), it requires addressing the opposition's questions, concerns, and thought processes.
Furthermore, if someone else has different moral intuitions than you do, your insistence that they have the wrong moral intuitions, and that the should care about yours instead should do NOTHING to make you convincing, only annoying. Instead...the only way to be convincing is to figure out what the opposition thinks, and address those concerns. Well, or play status games and successfully (mostly non-verbally) assert your higher status, which will result in your opinions having higher weight, and thus being more convincing.
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29 comments:
I understand that, as a libertarian, trying to engage a progresssive on a debate about natural rights or negative liberties is likely to be very unfruitful. I even accept that invoking such concepts in arguments about specific policies will be unlikely to prove persuasive. If instead we confine our discussion to things that I believe progressives care about, but they become indignant when I point out that from where I stand it seems that some of their proposals are working at cross-purposes, why is their reaction somehow my fault? So long as I have not engaged in personal villification, why is it not incumbent upon those that wish to engage in civil debate to correct my mischaracterization of their position and explain to me why I am wrong. Do they really imagine that it is impossible to establish agreed upon definitions and acceptable logical rules and standards for empirical evidence? "He's mischaracterized my position, I'm not going to talk to him!" seems like an attitude unbecoming an adult.
"So long as I have not engaged in personal villification, why is it not incumbent upon those that wish to engage in civil debate to correct my mischaracterization of their position and explain to me why I am wrong."
Todd, this is a fantastic statement and neatly states the failure of dialog in our society. Too many find it far too easy to either 1> descend into villification or 2> don't want to engage in an honest debate but would rather mischaracterize their opponents position, which allows them to rely on memorized sound bites rather than intellectual heft.
Mind if I steal that quote?
"Well, or play status games and successfully (mostly non-verbally) assert your higher status, which will result in your opinions having higher weight, and thus being more convincing."
I see this kind of thing a lot with a few people I regularly converse with. "So-in-so holds the whosits chair at podunk university so he knows what he's talking about". This argument has been used so often with me in the last couple of years that I've given up trying to discuss anything rationally with these individuals. It's a kind of "absolute moral authority" within a limited subject purely based on some artificial title held by the person being quoted. And by quoting this "higher status" individual, the person in the discussion no longer has to either understand or defend the viewpoint. They've quoted the gospel, nothing more need be said.
"Furthermore, I am (personally) moderately offended by any position that is sufficiently confused as to think it's unconditionally right."
Oh the irony! :)
Dave, Aretae, and the Masonimists are absolutely right that STATUS positioning and posturing is KEY.
From that vantage, Dave's rhetorical question,
why is it not incumbent upon those that wish to engage in civil debate to correct my mischaracterization of their position and explain to me why I am wrong?,
suggests a great answer:
Because THEY have THE HIGHER STATUS! Progressives rule. Literally. And cathedralically! This lets them commit ex cathedra (argument straight from authority) ALL THE TIME, and most everyone who's anyone happily encourages them.
Why would they debate when they have so little to gain, and huge risk AND opportunity cost to lose?? Progressives have a million distinctive moves for avoiding -EV (for them) debate...and those moves rely on having higher status quo status.
They even OPENLY talk about not wanting to 'sanction'* illiberal opponents by engaging with them. Holocaust deniers, climate change skeptics, "troofers," reporters on South Africa or Rhodesia getting more horrific every year, et alii are shut out of respectable forums.
*not their word. Rather, my own quirky reference to a 1990ish status move/bid by the Ayn Rand Institute of all places.
Start noticing how quickly we libertarians EXPLAIN ourselves when misconstrued. Our polite clarity, vocal enthusiasm (for explaining ourselves) and charitable reaching-out to other (basically always more dominant) viewpoints are our learned strategy for having any prayer of being HEARD while LOW STATUS.
It is not coincidental that Libertarians are both Aspergian AND..."the (eternal) 3rd biggest political party" in a TWO-PARTY STATE. It is exactly Aspertarians who are MOST motivated to communicate intellectually FROM a LOW STATUS position. Aspies are less constantly bothered by intellectual status (we usu dismiss it as 'fashion'!)...so we feel the least constant pressure to...shift...our own personal positions (...just coincidentally, organically, you know...) to something, ANYthing HIGHER STATUS.
And don't even get me started on the REAL autistics. They're TROOPERS!
heh:
"Furthermore, I am (personally) moderately offended by any position that is sufficiently confused as to think it's unconditionally right."
Oh the irony! :)
Something I keep learning about Aretae (because I keep on underestimating it)...is that he ~ALWAYS sounds WAY more certain than he (thinks he) means to. His STYLE is abrasively THIS IS HOW IT IS.
Even as he keeps striving to become a purer and purer Radical For Moderation...as far as I can tell.
Stylistic brutality with a soft nougat center?
I LONG ago stopped letting myself respond to his LITERAL words...because they're usually absurd since they're stated so starkly. (I slip up sometimes, obv. Because he is unclear a lot, or I'm not that great a reader, or I can't resist some easy shots!) So, I strain for charitable interpretation...incidentally signaling that I'm not a habitually jackbooting PROGRESSIVE ;)
Dave, the quote's all yours.
Speaking in a similar vein and taking up in part your frustration with the appeal to authority, I am often puzzled when I encounter someone who is untroubled by the prospect of bills being created that are so large that they cannot be read or comprehended by any of the legislators voting on them. I would think that anyone wishing to distance themselves from association with the idea of technocracy would have a hard time reconciling themselves to support of hundred page amendments being introduced hours before a vote.
the prospect of bills being created that are so large that they cannot be read or comprehended by any of the legislators voting on them.
Actual democracy is dead on the vine. Even in its expected "representative" qualified form.
(...which is actually good, because wide-enfranchisement democracy is tumultuous and unstable.)
For my money, the completely normal http://en.wikipedia.org/wiki/Christmas_tree_bill shows any reasonable person that Congress has strayed beyond parody on more dimensions than I feel like counting! (You shouldn't have to look under the midnight-session-passed "anti-terrorist" Port Enforcement Act to find new laws about...idk, online gaming transactions, LOL)
Andrew,
Thanks for the (entirely fair/kind) defense. Rob is, I believe, referring to various positions I've held over 25 years of arguing with him.
Andrew, Rob,
Well...and I've been playing the status games in conversation (on accident, because I'm such a cocky SOB) for so long that my natural conversational style (not content) is to act as if it is assumed that I'm right, and let my tone/body language instill doubt in the other person's positions.
Even having adopted radical Bayesian updating...I haven't managed to quell that approach.
"I am often puzzled when I encounter someone who is untroubled by the prospect of bills being created that are so large that they cannot be read or comprehended by any of the legislators voting on them."
I am untroubled by this.
I think its true of any large endeavor, and not limited to legislation. En engineer in charge of say safety on a large airplane project is simply not going to have detailed knowledge off all the safety details. They will not have personally examined all the evidence, read all the reports etc. There will be much delegation. They will have to rely in good measure that they have instituted a good process and that the process have been followed and that the people below them are acting with honor. and that they have set up a structure of accountability and a climate that allows problems to be openly acknowledged. etc etc
This is going to be true for any high level executive position.
Now this does not mean that most Senators are good in their capacity as executives, the selection process for Senator certainly does not have anything built into it to promote such people.
Robert, why do you think that the government should be tackling issues as complex as aircraft design? Is it really so hard to imagine a government restricted in scope such that the laws and regulations necessary to carry out its duties could be read and understood by all?
Todd:
I like to think of myself as being on the small government side of the libertarian party and on the speculative side of the extropian movement. I can imagine a lot.
However I think it unlikely that a complex civilization such as ours would yield to laws or contracts that could be understood by all weather by government or private arrangement. Nor do I think that this should be a goal, specialization is a good thing.
Would you want to make understood by all a principle of computer or car design? Sure we want the interface to be simple, a peddle here, a click there...but the law itself is more like the inside of engine.
Rob,
I think I'm going to stick up for Todd here.
Law is the field that defines when the agents of the state may legitimately use force against (mostly) its citizens.
If this is true, then any system of law wherein the average citizen cannot tell when force may be used against him is inherently unjust, and will necessarily be abused as the powerful use discretion and arcane law to arrest whomever they want to.
One would be far better served by a Klingian approach to regulation. "Here is the goal", which expressly grants broad rights to judge to the police than the American version: "if you have enough rules, surely we can prove that Martha Stewart broke one of them somewhere...." which amounts to (a) broad authority for the police to chase whomsoever they like chasing, and (b) a cover story that they were just following the law.
Volokh asked a question years and years ago: 1 amendment to the US constitution that you could wave a wand for in this world today...but note that some (income tax repeal) would be immediately changed.
I've been pretty stable on the 3-page limit for bills, with no addendums, for 6 months now.
I don't figure commerce clause, 9th/10th amendment issues, income tax could stand. But the 3-page limit (or 2 or 1) would fundamental alter the structure and the incentives in politics.
Aretae,
I think I'm going to stick up for Todd here.
Me too! (First agreement EVER between us here?? Especially with Rob on the other side!!)
I agree with everything Aretae just wrote, PLUS...
We already have a civil service. Let's keep it OBVIOUS that they decide all the operational details, and stop pretending that Congresscritters do. Continuing to fig-leaf the fiction of representational democracy (to the way over 99% that it IS in fact fictional) does NOT serve us.
The Congressionals are soundbite sculptors at best -- and special interest exception-crafters at worst -- so they should stick to soundbites.
Yes, yes, yes and more YES:
any system of law wherein the average citizen cannot tell when force may be used against him is inherently unjust
"Here is the goal", which expressly grants broad rights to judge to the police than the American version: "if you have enough rules, surely we can prove that Martha Stewart broke one of them somewhere...." which amounts to (a) broad authority for the police to chase whomsoever they like chasing, and (b) a cover story that they were just following the law.
So it would be your expectation that in a an-cap world where you went to sign up with the protection agency, and they have a list of rule/law which include a list of agreements/treaties with other protection agencies and so on and so forth... the what average 100 IQ (what about the half of the polarization that is below a 100?) person with no specialized training is going to read and parse all this? And how many pages do you expect this contract to be?
Andrew you used to support "Judge" made law, does this mean that all judicial decisions need to be written at this level as well? (do they all need to be limited to 3 pages?)
You are going to have a massive trade off between easy to read and every other constraint that you want you law to have.
I think we agree you would never agree to this for say math proofs. Why should the rules governing human behavior be so simple?
Hey I am all for getting rid of lawyers, they do a lot less damage when they zero sum games, but even I am not that optimistic!
polarization == population (dan smell ceckers)
why is there no edit feature?
Rob, Re: an cap, this is a much different system than the vision of a single-limited government enshrined in the Constitution. As I understand it, an cap is characterized by competition in which case it would probably be acceptable to most to trust to the market to identify and reward the institutions that most people desire and are comfortable with. There is a great deal of difference between offloading institutional analysis to a competitive market and entrusting institutional design to a single monolithic government. In the latter case, when no one is afforded a meaningful right of exit, I think it is entirely reasonable to expect the enterprise to be constrained to a size and scope that is readily comprehended by every able-bodied adult subject to its jurisdiction. I agree with Aretae, an amendment limiting the length of bills (though I would prefer a word limit rather than a page limit given the font sizes currently used in the federal register) would greatly improve the functioning of our government. If you can't say what you want us to do in 1,000 words or less, you are almost certainly asking way too much.
Todd,
Well said. Good point on words.
Rob,
I think you're lobbing softballs.
"You are going to have a massive trade off between easy to read and every other constraint that you want you law to have."
The primary characteristic I want law to have is LESS. The secondary constraint I want law to have is just-ness(yes, ambiguous). The third characteristic is: no place to hide public-choice-predicted crap. There is no conflict between short and any of those.
Again, while reading Vernon Smith, he made a claim:
Law was initially unwritten. Codes like Hammurabi's were drawn in the first place not to Give law, but to enshrine the existing law. Frequently, in the past when adding law (even incrementally), the person adding the law went significantly out of their way to point out that it was really just how things really were.
Further, there's a whole category of libertarians who are (relatively) opposed to "making" law at all. Common law ok, declarative law bad.
I'm going to go back to my first point.
There are no circumstances under which a legal system can be considered "Just" if an untrained individual cannot tell if they are violating the law. Also, a legal system (that public choice predicts, and which we observe) where the primary function of given law is to make monied narrow interests better off at the expense of the rest of us...well, that sucks too.
Given this...there are a bunch of truly radical solutions (abolish given law, limit total length of federal law, etc.), but you're worrying about constraints that are 5th, 7th, and 43rd on the importance list.
I think that this result would massively shrink the power of civil service as well, as the notion of democracy was exposed as a myth...the popular support for and therefore quantity of law would drop massively. Is that Moldbug meets Marx, or does he admit it himself?
My basic claim is that the richness of modern interaction of a society of 300+ million people is going to require a complex legal system...you can move that complexity around but it will show up somewhere.
Options:
A)You can have private parties make contracts
B)You can have the legislators write things down in law
C)You can have judges use written precident.
or when this leaves holes (and it will)
D)You can have judges make things up as they see fit.
I cant see how any of these options or combination of these options will lead you to.
"There are no circumstances under which a legal system can be considered "Just" if an untrained individual cannot tell if they are violating the law."
Really? There are no circumstances when it would be appropriate for a person to get a lawyer because they were uncertain of the legal implications of an action?
If the law is written in a very simple to fashion such that at uneducated IQ 70 person can fully understand it then I claim that law would have to leave out all the richness and detail needed to capture future decisions that must be made by the judiciary.
Which means that the Judiciary is going to be given wide latitude to make decisions. This may be good, but not so much if you are looking to restrict arbitrary power. Unless you think the Judiciary is uniquely removed from politics (which will be less and less the more latitude they have)
What I am missing here? is there an obvious E,F and G option?
So the law should be a simple as possible but no simpler~
Rob,
The confusion is around context.
First, you seem to be talking about a very narrow portion of the law, unused by 99.8% of the people in their daily life ... contract-type law.
I am interested in law as something that constrains or informs daily life.
Thus, I am very specifically talking about laws. And both Todds, my and Andrew's answers were specifically targetted at your option B and were not referencing A or C.
You seem to be saying that interactions with people are complex and person-person interactions need complex rules for good interaction.
Our responses were orthogonal.
First, our initial statement and followup were primarily targetted at people-government interactions (crime).
Rules that (a) can't be followed, and/or (b) can't be parsed and/or (c) have huge transaction costs to read/find are unfair and/or (d) contain provisions that massively privilege one group over another group are bad.
So the railing was all directed very narrowly at your point B.
Indeed, while I strongly prefer A, I talked for a bit in my last comment about how B sucks compared to C.
Getting a lawyer is fine, if you want to do something tricky.
Getting a lawyer to cross the damn street isn't ok.
Mean Length of Time to Open a Business is among the better predictors of economic freedom and thus economic growth. This should not require a lawyer either, in most circumstances.
We are not arguing that the system is complex, or that (D) is true regardless what legal fictions you put in front of it.
We are arguing that (1) long rules are primarily long in order to hide special interest crap that mostly disadvantages small business, and (2) putting the complexity specifically in written law B is tremendously unfair to the poor/unintelligent.
How about:
LAW should be simple, and relatively unambiguous. If I were in wishful thinking-land, I'd have cases like Ricci, where there are massive legal risks regardless what you do, automatically invalidate both laws that are in question.
Reasonable assessments of the law (Vernon Smith again) suggest that disputes as practiced by normal people tend to be resolved informally and non-legally. Legal rules simply give you an exit from the informal system...if there's highly non-cooperative folks.
If I were to get radical, I'd go hang out with Mark Horning in the declarative law is bad, common law is good ergo NO declarative law camp.
Btu I'm not. I'm in the very moderate camp that given the realities of the special-interest/public-choice behavior of congress, we are all better off moving the complexity OUT of written law (AND written regulation -- Civil Service) and into somewhere else, be that contract, or informalisms (as per Kling) or precedent.
In most cases, Coase handles the problems.
Very quickly:
I am not focusing on any particular law, my categories were meant it to broadly cover all law from murder, to commercial, to land use.
If you would like as a test case, take manslaughter-murder-degrees-self defense-accidental death-negligence as a set.
The conversation started with me defending the idea that a senator could reasonably vote on a large bill. That I thought this was not unlike other executive management tasks.
I expected it to go without saying that I am not in support the content or purpose of today's large bills or that I think they should be large and complex to hide benefits and favors to political supports.
"Further, there's a whole category of libertarians who are (relatively) opposed to "making" law at all. Common law ok, declarative law bad."
Again if you go common law like this where its not written down, then you are going to push things to precedent and judicial decision. A target 70IQ person is not likely going to be in a better place for anticipating how all this is going to work out while he makes his marginal drunken decision to get close to breaking a law than he would be if he had to stop before a bar fight and go look things up on the a law.org.
"We are arguing that (1) long rules are primarily long in order to hide special interest crap that mostly disadvantages small business, and (2) putting the complexity specifically in written law B is tremendously unfair to the poor/unintelligent."
1 we have no disagreement
3 we disagree, whatever the complexity of the situation is its determined by the reality of the situation, and it doesn't go away by not writing it down. I see no reason to think the poor/unintelligent would fair better with looser laws that are not written down. The era when common law was more common was not exactly a time where the poor had a lot of power.
As a rhetorical test case, look up the administrative rules for Wikipedia...there are pages and pages of them! Now give them to a 70IQ person and see if they can figure them out. Now try and re-write them so that the 70IQ person can understand them, while not loosing any of the important content. Does it help this person anticipate if his actions are going to lead to a violation if you remove the written rules and let people make judgments ad hoc afterwords?
Admin rules for wikipedia are great. If you can't figure them out, don't post at all, and you're in good shape.
If admin rules (law) for life are more complex...you don't have the option to "not live".
You are arguing (perhaps intentionally) that letter of the law regulation is the only choice. It's where the letter lives. And you see little difference between your categories A,B,C.
I am arguing that extensive letter of the law approach to law SUCKS. It is horribly inefficient, and favors big players MASSIVELY over small players, and leads to (as Kling says) game theory around the law where corporate lawyers are much more agile than the lawmakers.
I say that Spirit of the Law approaches are better. Witness any role playing game attended by Andrew or myself, and see that storytelling games with simple (flex-y) rules result in a better outcome for all than complex rules that we can twist to our advantage.
Ditto law.
The current rules on murder/manslaughter/etc. are largely absurd.
1 page:
Killing someone is normally a felony. Intent, fault, and circumstances matter.
Defense of self, others, property is not a crime unless clearly unwarranted. Burden of proof is not on the defender.
Meta: similar crimes deserve similar punishments.
The rest is crap and unnecessarily letter-legal-centric, rather than problem-solving centric.
Spirit of the law re: financial regulation discussed here.
If you want to role play life with the law, then you better get a good GM. What if your GM sucks?
What I am saying is that you either have the rule of letter law, or you have people making things up as they go along. And its not clear to me that the latter favors the little guy. Its not clear to me why you think leaving decisions up to Judges/GM's would systematically help the little guy?
I am open to evidence. How you see judges getting selected to promote impartiality, how you would have recourse for appeal etc. Maybe you have a place that practices law more like you envision?
But my read of history was that it was in general a great boon for the normal folks to move from a unwritten law where the lords lived ad hoc, to where the lords were compelled to write things down first and be restricted by those laws themselves.
I am open to having an engineering process to experimentally try different combinations to see which work better :)
You are saying that if you have letter of the law, then you don't have people making it up.
What I am saying is that you have (as per sotomayer's admission) people making up most of the law anyway...with the primary advantage of letter-of-the-law being that there can be corner answers for some people that are different than for others.
If your GM sucks, you're basically SOL regardless. If you have a good GM, you're basically good regardless.
You seem to think that letter-of-the-law protects you from bad GMs. I think that letter of the law rules massively incent bad outcomes (More stuff legal, and more $ dependent on lawyer skill, less $ dependent on productivity), while pretending to be more even-handed (here is where Andrew cites Menicus to confirm my point).
As to history of law...I seem not to have said what you are saying I said.
My initial statement was very small -- 3 page / 1000 word limit on a text of a law. Far better law-making incentive structure than the one we have now.
And while you do keep responding, you don't seem to have responded to any of my actual points...
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