A Philosopher's Blog

Balance of Law

Posted in Business, Law, Philosophy, Politics by Michael LaBossiere on May 29, 2010
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One of the great problems in political and moral philosophy is that of the balance of law. Plato, in his ring of Gyges tale, was one of the first to present this problem. It was later developed by thinkers such as Hobbes, Locke and Mill.

The problem can be presented in the following way. If there is not enough law, then people will tend to behave badly. While thinkers varied in just how bad the bad behavior would be, the general consensus is that people will not be very nice. But, if there is too much law, then people will be too restricted and this leads to a wide variety of problems. As with porridge, the ideal is to get the laws just right: enough so that bad behavior is checked, but not so many that people are strangled in rules and limits.

Not surprising, people disagree a great deal about how many laws (and what sort of laws) are just right. For example, liberals in the United States tend to think we need lots of laws to control corporations, to protect minorities, to protect the environment and to provide social goods. As another example, while American conservatives claim they are for “small government”, they tend to want more laws limiting things such as sex, drugs and various personal liberties they disagree with. this nicely matches the view that the guiding “principle” of most people is “people should do what I want and not do what I do not want them to do.” So, people tend to favor many laws against what they dislike and for what they like. They tend to be against laws that are for what they are against and against what they are for.

Also not surprisingly, thinkers also disagree. For example, Mill argues for fairly limited restrictions on liberty, while Aristotle held that individuals must be greatly restricted (for their own good, of course). Interestingly, these thinkers all agree that the laws should be such that they produce the best results. What they disagree about is the extent (and content) needed to produce these results.

While discussing the abstract matter is easy enough, the most significant challenges come about when specific matters are being discussed. For example, consider the oil that is contaminating the ocean off the coast of America. This specific situation raises questions about the extent to which the oil industry should be regulated. Naturally, the big abstract problem arises on this level as well. If there is too much regulation, then companies will not be inclined to drill for the oil that almost all of us use. If there is too little regulation (or it is not enforced or it is not good), then oil companies will do what people tend to do in such situations-what they think is “best” for them, even though it generally is not really the best.

Interestingly enough, the balance of law tends to see saw in a very predictable pattern: first, there are few (or no) laws. Then something bad happens. Then there are more laws. Then people get lax about the laws. Then something bad happens. Then people create more laws. Then people get lax about the laws. Then…Well, you get the picture.

In the case of the example at hand, there will probably be “tough new laws” passed by Congress to regulate the oil industry. These laws will be added to the piles of previous laws that were created following past badness. Then, people will grow lax and there will be another disaster. Then more laws will be created. Repeat until doomsday.

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23 Responses

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  1. magus71 said, on May 29, 2010 at 6:56 am

    “They tend to be against laws that are for what they are against and against what they are for.”

    Should we be ashamed for this? How else would you propose things be?

    The most powerful laws reside within us, not outside us.

    “It is a world not of angels, but angles, where men speak of moral principles but act on power principles; a world where we are always moral and our enemies always immoral”~Saul Alinsky; Rules for Radicals.

    • Michael LaBossiere said, on May 29, 2010 at 3:03 pm

      Depends. If a person is unthinkingly for or against something, then yes. If the positions are carefully and rationally considered, then no.

  2. freddiek said, on May 29, 2010 at 9:37 am

    “Thou shalt not kill” would seem to be a very straightforward regulation. It’s not.

    Once you kick the regulation hornet’s nest, you will get hornets. Once you open the regulation can o’ worms, there will be worms.

    How maturely can a society deal with the hornets and worms? Do they run away from them in fear? Do they stand around and let them bite and slither as they will? Do they work together (is the word “united”?) to contain the little buggers–kill the hornets and capture the worms for fishing and composting?

    If we depend on opposing sides-let’s label some of them liberals some conservatives and some libertarians and some merely “other”-to deal with the “problem” we must have a reasonable expectation that the sides will work together for the common good, else the hornets and the worms will get the upper hand.

    Thou shalt not kill in self-defense? Thou shalt not regulate in self-defense? Thou shalt not kill marine life? Thou shalt not destroy marsh land? Thou shalt not strike five blows after the first death-dealing strike? Thou shalt not sell toys that kill kids? Any toy could kill a kid, right? So all toys are outlawed. Or no toy is outlawed. Or the law takes an intelligent approach and applies sense to each decision. Label packages for age appropriateness. Supply rules for safe use. Take products off the shelves that are obviously ill-designed.

    Laws may reside within us (internal), but we live in a society (external) where the laws that really count are those that can most effectively control both the external and the internal. That requires insight, hindsight, and foresight.

    • magus71 said, on May 29, 2010 at 1:15 pm

      I don’t get the outlawing toys thing. Why outlaw a lawn dart but not a knife? Why a toy oven but not a real one? Is it illegal for children to buy ovens? Why can I sell knives at my yard sale but not lawn darts? What if I made my own lawn darts (my father probably did this once–he was a welder and artist. He used to make home made cannons)? Where’s this intelliegent approach you speak of? Sounds like bored law makers who want to impress the woman who wraps her kid up in Nerf before allowing him to play tag…

      Again, what is your argument? More laws? Less laws? Just better laws?

      Who doesn’t want better laws?

      Hey, I’m a law and order type guy, really I am. I hate chaos. But many, many laws and regs seem arbitary and not well thought out.

      I live in the most regulated portion of American society–the military. In this wondrous killing machine we call the US Army, I’m not allowed to walk on grass, walk with my hands in my pockets, go outside without a hat on. I could go on and on and on. The Army manual for wear and apprearance of uniforms is 362 pages long.

      http://www.army.mil/usapa/epubs/pdf/r670_1.pdf

      I can’t say that any of it makes me a happier person.

      On the other hand, I like the Army because it tells me exactly what I need to do to succeed. So far it’s been true to its word; I’ve done what they told me and I’ve been rewarded. I have many problems with the Army system–most having to do with far too many rules. Not all are bad, but many could be gotten rid of and you’d probably see the suicide rate go down.

      Law making is more art than science.

      And I don’t believe in any law that protects someone from themselves.

      I think that we ought to be more concerned with promoting civic ideas of civic duty and ideas of right and wrong. Even parents now don’t teach their children right and wrong because they’re afraid they’re kids may get mad at them. Can’t have that.

      The ancient Greeks promoted civic duty. So does the military.

      • T. J. Babson said, on May 29, 2010 at 1:50 pm

        During inspection I was given a hard time once because the soles of my shoes were wearing unevenly.

        • Michael LaBossiere said, on May 29, 2010 at 3:35 pm

          That can lead to you becoming left leaning.

          • T. J. Babson said, on May 29, 2010 at 3:44 pm

            For years I was left-leaning. Then I realized we are not going to change human nature, so our institutions have to be effective for people as they are rather that how we wish they would be.

            • T. J. Babson said, on May 29, 2010 at 3:44 pm

              And yes, I got the joke :-)

      • freddiek said, on May 29, 2010 at 3:12 pm

        Question:”Who doesn’t want better laws?”
        Answer and argument:Evidently, those who want fewer laws. . . Those types make the possibly(!) incorrect assumption that if we eliminated all bad laws and kept all good laws and from that point on wrote only good, necessary laws we would ‘automatically’ have “fewer laws”. It ain’t necessarily so. “Fewer laws”= Generalization.
        Also, don’t make generalizations about parents.

        Law-making and enforcement in the army and law-making and enforcement in our constitutional republic are not analogous. Comparisons and contrasts based on the two don’t add much to the discussion. But note: I’ve always been under the impression that the willingness to unquestioningly adhere to those strict rules you mention is necessary to the survival of a soldier in combat. Thus, the rules and regs, though restrictive, are, like the laws about children’s toys, protective of the individual. Only in the toy case the child is being protected from unscrupulous entrepreneurs –like regs against dumping toxic waste into streams protect, wildlife and humans who live downstream from flagrant abuse by companies focused on the bottom- line.

        “And I don’t believe in any law that protects someone from themselves.”
        The law of natural selection. Instead of having gov’t. cull out the weakest in the herd, handcuff the gov’t so it can’t prevent the natural process. Should a local food bank provide food to someone who, left to his own devices would die on the sidewalk? Should gov’t legislate to support local food banks? Is an individual who depends on a food bank as important as an unborn fetus?

        • magus71 said, on May 29, 2010 at 7:38 pm

          “Law-making and enforcement in the army and law-making and enforcement in our constitutional republic are not analogous.”

          True. Therefore, Don’t Ask Don’t Tell.

      • Michael LaBossiere said, on May 29, 2010 at 3:18 pm

        When it comes to dangerous stuff, my general principles include (but are not limited to) the following:
        1. If something is dangerous due to a defect or flaw, then it should be recalled and not be sold until it is fixed. For example, if a model of car has brakes that fail, that model should be recalled.
        2. If something is dangerous but has a legitimate use, can be used safely and people are aware that it is dangerous, then generally it would be okay to sell it. Examples would be things like sling shots, lacrosse sticks, pocket knifes, BB guns, axes, and so on.

        So, I’d say that my general view is that if people knowingly expose themselves to danger, then that is their call. But, if they have no reason to suspect that there will be danger (or increased danger), then this is a different matter. For example, if I buy a car I know that I can be hurt. But, if the car is prone to exploding due to a defective gas tank, then that is another matter.

        • freddiek said, on May 29, 2010 at 5:19 pm

          Magus was surprised that I was aware of the “sidewalk sale” law though it was published and in the news last year. He was concerned that some would break the law without even knowing it exists.

          Regarding your #2: If Jarts were involved in the deaths of 4 people in the ’80’s, who was responsible for informing the public as to their possible danger? The company, by establishing reasonable age ranges for usage and printing that range in large clear letters on the package? The company by printing, in large, bold lettering on its packaging that “This product has been involved in the deaths of 2-3-4 people” (numbers varying depending on the progress of the death spree)? The company by being a responsible corporate entity (there are such things) and removing the product from the shelves? The government, which, when the company did none of the above, foresaw 5-6-7. . . Jart related death? should the government have intervened sooner, when, let’s say 2 had died, or three?

  3. T. J. Babson said, on May 29, 2010 at 9:50 am

    It is rather shocking, really, that we have the technology to drill an oil well 1 mile beneath the ocean but we don’t seem to know how to control the well once it has been created.

    • freddiek said, on May 29, 2010 at 10:31 am

      Not so shocking. Prior to the catastrophe, when the contracts were being handed out, didn’t BP and other producers in the Gulf assure us that they knew all the dangers and knew how to handle them? When they did so,didn’t they, in fact, have their hands on a stack of Bibles and in the pockets of Congress? Oh. And they had the blessings of the oil-hungry American public. . .

      • Michael LaBossiere said, on May 29, 2010 at 3:09 pm

        BP actually got an exemption to the existing regulations. Given how cozy the industry was with the minerals folks, this is hardly a shocker.

        • freddiek said, on May 29, 2010 at 5:32 pm

          Add this to my list of questions at 5:19.
          Should the government have preempted the problem completely by penning clear regulations concerning toy and game safety and following through by diligently enforcing those regulations?

    • Michael LaBossiere said, on May 29, 2010 at 3:09 pm

      History shows that we are better at getting into trouble than getting out of it. To use an almost relevant analogy, we had airplanes before people developed practical parachutes for them.

      • freddiek said, on May 29, 2010 at 5:07 pm

        Something else that history shows: This nation chose to initiate a preemptive war sending its fighting men into battle with armor incapable of protecting them from IED’s etc. ( though IED’s had been around for at least 30 years and the intelligent fellas in our military should’ve figured that, perhaps–just perhaps–the devices would be new and improved in the 30 year interim).

        • magus71 said, on May 29, 2010 at 7:31 pm

          Fredeik,

          The reason we can’t win these wars is moral, not technological. We could end those wars very quickly if we wanted to. If we do what it takes to beat small,weak Armies, we look brutal. If we ignore them, we’re stupid. Read Van Creveld.

          But yes, if we’re not willing to pay the moral andpoliticalprice for war, we should start them.

          It also proves the overvaluation of technology in war and the undervaluation of will and plenty of boots on the ground; our Army’s too small for what we’re doing in Afganistan.

          Better make some new laws….

          • magus71 said, on May 29, 2010 at 7:32 pm

            we should start them.

            *we should not start them.*

          • freddiek said, on May 29, 2010 at 9:39 pm

            I wasn’t referencing our ability or inability to win wars. I was commenting on our failure to adequately equip the troops (numbers too small or numbers too small, no matter) and the resultant unnecessary carnage. Let’s not forget the multitudes of soldiers whose bodies and lives were shredded not primarily because of a failure of technology but because of a failure of intelligence (in just about any sense of that word you may wish to consider it).

            New law: Preemptive wars must require a new standard of leadership, from the very top down.

          • Michael LaBossiere said, on June 1, 2010 at 2:21 pm

            It depends on what you count as victory. We could “win” by exterminating everyone who opposes us and all those who happen to be in the kill zone. But, perhaps that would not be a win.

            On a less extreme note, while morality does place some restrictions on what a military should do such limits do not seem to be inconsistent with victory. In fact, acting properly would seem to be an effective way to win people over. Not everyone, of course.

  4. magus71 said, on May 29, 2010 at 7:39 pm

    None of us should forget that 11 people died in the BP disaster.


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