Fumbling Toward a Theory
Fumbling toward a theory about the origins of law and the connection of these origins to modern political viewpoints
Last week at work I had an illuminating post-election conversation with one of our VPs regarding a number of ballot measures that had been voted upon this past election cycle. While he was OK with voting yes on all local tax measures to benefit the local emergency services, road crew, schools, etc, he was enraged about our state income tax. He mentioned how the founding fathers had rebelled against income tax. I had to point out to him that without certain services & benefits paid for out of the state income tax, things here would get “interesting” indeed; that the founding fathers rebelled against the imbalance on taxes sent to England vs benefits received from England (and not against the mere fact of taxation itself); and that the rate they rebelled against was a whopping one half percent per year. We are taxed oh so much more now. Another few percent and it will be just like living under socialism, but without many of the benefits of socialism such as universal health care and free higher education.
What was so interesting to me, though, was the way he was OK with local tax money going to paying for essentials (even if it was tax money he’d rather not have to pay) but was /not/ OK with state income tax money going who-knows-where. The exact tax-money destination he most complained about was the stereotypical nonworking welfare recipient living in Boston-area housing projects. In terms of percentage scale of waste, I don’t see that as being horribly far off from the guys who get paid $50/hour to stand around drinking coffee and lean on their shovels while the asphalt-laying machine chugs along at a few cm per second. After all, is not the whole state sort of like the locality, just on a larger scale and with a few totally-necessary organizational layers added in order to handle the additional complexity?
This exchange got me onto a whole tangent about the nature and origins of law. (Those of you in the know will please excuse this exercise in ignorance.) For as long as I can remember (hell, probably for as long as people have had words with which to kvetch about things) folks have always been bitching about how the march of “growth” (classically expressed as the increase in population) leads to “things falling apart” or “things getting worse”. Among the symptoms & social ills tossed onto the heaping pile of evidence have been such things as divorce rates, violence rates, teen pregnancy rates, crime rates, increased public rudeness, stress levels, and so on.
It must be remembered that for most of human history (with the last 10K years being something of an aberration) nearly all people lived in small communities their whole lives and were surrounded by people who had known them all their lives and who they had known all their own lives. That sort of nonstop, fully-immersive peer pressure is pretty intense to anyone who’s never experienced it, and I daresay that few people alive today have ever experienced it in the prehistorical sense of the word. It would have been all-enveloping and inescapable. In an environment like that, the line between right and wrong would have been almost entirely unspoken but extremely clear to the people involved. To this day people retain a vestigal instinctive sense of right and wrong. Children are born with it. It is what originally passed as law.
Although they do not name it as such, it is that inborn sense of right/wrong that conservatives & libertarians are referring to when they suggest the laissez-faire approach to gun ownership. This is expressed rather clearly in the sentiment that we should just let everyone arm themselves as they please, with almost no restrictions, and “the problem will take care of itself”. That inborn right/wrong sense ensures that no matter what group of random people you lump together (unless they are all escapees from jail, perhaps) the ratio of good to bad seeds will nearly always weigh heavily on the side of the former. The matter of the problem taking care of itself would come out in the form of criminals getting summarily offed by the rest. This is expressed in the sentiment that “there’s hardly any better way to improve the breed”. This is the default behavior people revert to when small groups are cut off from the larger world. Their harshest punishment, however, is usually exile rather than death.
That inclusive family/tribe/clan setting was indubitably better at “enforcing the law” than what we have today. Unfortunately in our last 10K-year old history of forming social organizations larger than simple tribes, we have needed to build (and enforce) systems of codifying behaviors for people who do not know each other intimately enough (or who don’t have enough affection for each other) to perform the task of correcting each other’s behaviors, as would normally happen in the immersive tribal setting.
What seems to be happening with these codified-behavior systems is that they’re becoming worse and worse from both the administrative and enforcement angles. These systems have already turned into tortuously long lists of what-not-to-do items. The larger and more densely-populated the societies in question, the longer are these behavioral lists. All you paralegals out there have already noted how many volumes there are in Mass or Cali general law vs the same in, say, Ohio.
Conservatives and libertarians probably /do/ have a leg to stand on when they suggest adopting a sort of Swiss system and/or removing most restrictions on common citizens arming themselves as they wish. This would presumably work better in smaller social environments than in larger ones. If this policy change was not adequately and equitably rolled out in a place like NYC, for example, it is not too hard to imagine armed gangs rolling in from the Bronx and forcibly “liberating” a whole lot of jewelry, electronics, clothing, and furniture from the nice stores in Manhattan.
The trend in law enforcement, the whole world over, is for nation-states to get more and more like modern police states as the social environments get more complex and as strangers are brought into greater contact with each other. In that sense of the word, I do not see how it is realistically possible to allow folks to act as if one is living in the tribal setting (basically, do what you please if it hurts no one) while living in a much larger society and enjoying the full benefits thereof ~ even if doing so is more in line with our built-in behaviors and innate right/wrong sense than anything else.
As some kind of partial [paleo]conservative/libertarian I welcome the thought of being able to arm oneself as one pleases. For sure it’s going to cut down on rapes if most women are packing .380 autos. Causing trouble with total strangers could be a distinctly unhealthy behavior, quickly weeded out too. It’s not clear if the collateral costs of this policy would outweigh the waste, fraud, and outright stupidity in our current “rehabilitative” penal system and the costs of keeping such a high percentage of our society behind bars. Would not we as a society be better off without the types that simply cannot behave? (some of them are very bad indeed)
The operative reality in highly developed nation-states is for further encroachment of what can only be called “ubiquitous law enforcement” – with thanks to Vernor Vinge for expressing it so well in his book ‘A Deepness in the Sky’. In much of England’s urban environment, for example, overhead video cameras watch the public spaces where strangers would encounter each other. Here in the US we have a long history of Carnivore-like TIA (total information awareness) intelligence-info aggregators being used by the government ~ although it should be noted that the ones kept by corporations are a whole ‘nother breed. Rest assured that the databases containing the records of information traffic to/from your unique IP plus MAC address can provide an extremely comprehensive picture of your online activity. The picture is sufficiently comprehensive that anyone with good EQ or social experience (or police experience) can infer quite a lot from it, including predictives.
The basic premise of ubiquitous law enforcement is that if everything can be spied upon and recorded, the search for evidence, after a crime, is as simple as finding the right records. In the pre-computer age, one of the most extreme examples of this was found in the practices of the Stasi, the state police of Erich Honeker’s DDR (aka East Germany), in which practically everyone was hired to spy upon practically everyone else. They are still digging through the records even today. (for an excellent take on that, please see the movie “The Secret Lives of Others”)
If you’ve read the Vernor Vinge book mentioned above, you’ll know that what we have now in terms of TIA is minor, inconsequential, and ineffectual compared to what could be done by making use of the computing/networking resources of the future.
What we have left of our original society, or rather the remaining intentions of the founding fathers as expressed through the Constitution, in a modern technological era in which it is apparently necessary to opt for some form of ubiquitous law enforcement, is a very good question. Has anyone got answers?
(apologies to any educated people here who will no doubt be gritting their teeth after reading a post like this which so mishandles many deep topics)