America was founded on liberty and independence and not government coercion, domination, and control. — President Donald Trump, 2/5/2019
The above quote from the state of the union address is a falsehood. The liberty and independence of the first clause applies to the colonies or states at the time being free from monarchical rule from Britain. The second clause clearly refers to the relationship of a government over the citizens. Except for the chaos during the revolutionary war itself, and even then only in proximity to battlegrounds, our country’s history never had a period where people were free from government coercion, domination, and control. From the beginning, we embraced the concept of the rule of law, law that applied to all men equally, that no man would be above the law, a concept of law inherited from English history with roots traced back to Roman times.
Our cherished innovation in human history is the establishment of standardized laws and to have procedures to assure that the law would be executed and adjudicated fairly and evenly at least as an ideal to strive for. This tradition never questions the need for laws. Certainly, the Revolutionary War did not entertain the idea of replacing the established concept of laws. The goal of the revolution was to change who would set and enforce the laws. They preferred self-government rather than being a subject to a remote monarchy.
It seems to me that the primary purpose of laws is to coerce, dominate, and control a population. I think those are appropriate terms to use, but one may say that the purpose is to influence or persuade a population. With laws, the government is wanting the population to refrain from doing what is outlawed.
If that is the purpose of laws, clearly it is an imperfect mechanism because we are confronted with a constant stream of new offenders to apprehend, try, and sentence — even for very old laws.
An alternative purpose of laws is to have some mechanism to weed out undesirables from the population. In this definition, it doesn’t really matter what the laws are. What matters is that the laws provide the justification for separating certain people from the general population. The government creates laws with the intention of criminalizing the undesired population and excusing the remainder. This is a process analogous to artificial selection in breeding animals. The elaborate legal apparatus provides legitimacy to this process of breeding humans.
The rule of law is an alternative to systems where some authoritarian figure explicitly performed the selection. The basic goal is the same, the difference is only in the justification that the population accepts.
In either case, whether laws is a tactic to persuade a population to conform to some desired behavior, or a selection technique to remove undesirables, there is the question of whether there can be an alternative to laws. We know from ancient history and from contemporary dysfunctional states that there are alternatives to the rule of law. We could have an authoritarian ruler choosing to imprison, banish, or execute whoever he feels is not a good fit with society. Such a tyrant could be kind and wise, or cruel and foolish. The same options are available for the rule of law.
Given the options available to modern times, there may be alternatives to the rule of law that does not involve arbitrary rulings by a central authority. I touched upon this topic on the recent posts.
For this post, I want to consider the reason why we have laws. Given our current legal system’s emphasis on sentencing by prison terms, I’m inclined to think that the primary reason for laws is to separate undesirables from the remainder by labeling undesirables as criminal convicts. However, for this discussion, I’ll consider the rational option that laws influence people’s behavior.
In my earlier post, I brought up the recent discussions about decriminalizing late term abortions. The abortion laws exist in the first place because for whatever reason we find the practice to be something that we want to discourage. The problem is that this persuasion is not perfectly effective because abortions continue to happen. How ineffective must a law be before we decide the law is not working? One answer may be when the frequency of disobedience to the law exceeds our willingness to prosecute and sentence every offender.
The defenders of abortion often describe a pro-choice stance where the woman has autonomy to make her own choice about what she would allow happen within her body. Abortion laws could accept and defend the woman’s choice. Instead of preventing her from making the choice, the laws challenge whether the choice is truly hers. Abortion laws could protect a woman from coercive influence of external actors such as prospective fathers who want to avoid the paternal obligations, or abortion practitioners whose motives are personal profit resulting from his practice. Such laws will come to the women’s defense by requiring that the choice is the woman’s alone, that she has all the relevant information about what is occurring within her body, and about her future one way or the other.
I’m no woman, but I imagine that the very state of being pregnant involves a lot of anxiety. Besides the physical changes within the body, there is the certain knowledge of the future timing of advanced stages of pregnancy, eventual delivery, then the extended period of never being able to be apart from the child for very long. The anxiety or emotional state related to being pregnant raises at least some vulnerability to be influenced by others, so that the choice is not truly hers although she may come to accept the choice as hers.
Abortion laws may benefit a woman’s right to choose by limiting the influence of others to change her mind. This is certainly true if her deeply held desire is to have a child and face the challenges of raising it. It may also be helpful if she deeply believes the right decision is to abort, such as when a law encourages an abortion at the earliest time, before it has a large affect on her. The limited time would make it more convincing that the choice truly was hers due to the limited time of influence by others and the lower anxiety levels due to minimal changes within her well-being.
These considerations could apply to any other law especially those disfavored by libertarians such as those who reject to any law the meets a principle of non-aggression: there being no need for a law on anyone’s behavior so long as it does not affect the life of a non-consenting person. For example, another contemporary issue involves legalization of marijuana.
The central questions are the same. If intent of the law is to influence behavior, what do we do to the people who fail to be influenced? If the intent of the law to protect individual autonomy or liberty, does that mean that the repeal of the law would condone a certain behavior, ultimately influencing someone into a behavior he would have preferred to avoid?
I am just asking the question. I don’t know the answer. I suspect the true intent of the law is for artificial selection: separating undesired from the rest of the population. We just don’t dare to be honest about that.
Contrary to President Trump’s declaration, we have an inescapable need to have laws that coerce, dominate, and control our lives. There may be some people who think they can live without those laws, but I suspect that will only work when they are on some territory isolated from any dissenting peers. Such a possibility requires some method to separate the undesirables from his company.
There seem to be something deep within us that recognizes that the rule of law is essential to our being humans. Perhaps, our cherished rule of law is myth we have to legitimize a practice of artificial selection that is a vestige of long-lost era where artificial selection civilized our ancestors.
To better understand how to improve a future beyond modern society, we should look at the rationale for law itself. Each of the possible rationales poses the question of whether we can come up with a better approach: to persuade people to behave a certain way, to protect people’s liberty of free choice, or to separate the undesirable from the rest.