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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, January 24, 2012

Skepticlawyer on the limits and purposes of the law

This post by Skepticlawyer should be compulsory reading! Note that it is not about the issue of defamation law and its abuse, which I still consider the most urgent issue raised by the particular dispute.

Nor is it about the question of how much we are under some kind of obligation to reveal our comprehensive views of the world when we engage in debate on matters of public policy - which, in my opinion, breaks up into further issues about how much we are obliged to do this in an ideal world, and how far we are obliged to do it in various situations that arise in the messy real world where influence on public policy so often depends on emotion, public image, appeals to lobbies, etc.

Rather, the post is a valuable contribution to underlying issues about the purposes and limits of the law, and how these relate to the substantive questions in dispute between Melinda Tankard Reist and her opponents.

There's a lot to think about, and I'm not sure whether I agree with it all. That's not because there's anything that I especially disagree with, but only because I need to digest some of the distinctions made, the way Skepticlawyer makes them. But in any event, there is some great stuff in her post. She hammers the point that if you want to enact a law in order to produce some utilitarian benefit, such as reducing some widely experienced harm, you need to do a lot better than arguing that you dislike whatever the practice is that you want banned or regulated, or even that you find it harmful in some sense, or that some other people do.

Assuming the conduct you are targeting is not directly harmful conduct that has a clear victim - someone who is not consenting to it and may be resisting it if they have the opportunity and ability - you'd better do some actual research. You need to show not only what harm the practice does, but also that the best way to obviate the harm will be through enacting a legal ban - and that the net effect of a legal ban will not be even worse than leaving things alone!

For example, Skepticlawyer suggests that the actual research to date tends to show that beauty pageants for small children, at least the way they are currently run, do harm to the children involved. And we might add more explicitly that state paternalism towards actual children is a lot more appropriate than state paternalism towards adults or even more mature children and teenagers. So, an empirically-based case can be developed to support banning these pageants, or at least regulating them to an extent where they would have to take some very different form (and may lose whatever characteristics made them attractive to parents in the first place ... don't ask me what those characteristics are, as it's mysterious to me). Perhaps there's a good case for legal intervention here.

At the other end of the scale, consider someone who wants to ban abortion on the ground that it ends up harming (causing grief, psychological trauma, etc., to) the women who choose to have abortions. This is going to be much more difficult. Sure, you can find women who regret having abortions, just as you can find people of both sexes who regret doing all sorts of things. But you're going to have to do a helluva lot better than that if you want to make out this sort of paternalistic argument for banning or heavily regulating abortions. Among other things, you need to be confident (which means you need to do some research) that banning abortion won't produce harms of its own and perhaps make things worse.

As it happens, anti-abortion advocates often claim that abortion leads to "post-abortion syndrome" - a state of mind involving depression and feelings of loss - but there has already been a fair bit of research on how women actually feel after having abortions. Some do feel guilt (but surely this is a self-serving argument, given the source of some of that guilt in social condemnation!), but the most common feelings involve such things as relief. The "post-abortion syndrome" meme is best seen as a form of scaremongering and bullying.

More generally, these words from Skepticlawyer are worth taking to heart - I'll quote her at length:
When campaigners think there oughtta be a law, how do they go about it?

Very often, by not thinking very hard. This sounds cruel to Melinda Tankard Reist, but is not meant to be, for the thoughtlessness afflicts activists across the political spectrum. As someone with wonkish interests and experience, the process of campaigning seems to go like this:

1. An intuitive sense that a given activity is bad, for a variety of inchoate and unclear reasons. It is at this point — although much philosophy depends on intuitions — that the stupidity usually kicks in, becoming like a mistake made in the first two lines of a complex algebra equation: magnified, typically, at every step. When the hypothesis is poorly formed, then observations enlisted in its support can be seriously awry.

The intuition problem stems in part from a failure to appreciate that other people may not react to the activity in question in the same way, with the campaigner having great difficulty imagining him or herself into someone else’s head. When it comes to the objectification of adult women, for example (one of Wilson’s ‘categories’), we may be dealing with normal statistical differences both between men and women, and also statistical variation within the set, ‘women’. Many women dislike male attention, being ogled, say, or chatted up. They dislike porn and find it degrading of women. By contrast, many women like and want male attention. They have no problem with porn. There are also intermediate positions between the two.

The campaigner’s response, of course, is the one Wilson has already flagged: to argue that women who like porn or pole-dancing or whatever are victims of a form of false consciousness: that is, they are unable to see things, especially exploitation, oppression, and social relations, as they really are. It should be very obvious that this is an enormous claim, for embedded within it is one express argument: the pole-dancing and porn-loving woman’s mind is (a) unable to produce a sophisticated awareness of how it is developed and shaped by circumstances; and one implied argument (b) that the campaigner knows better than the pole-dancing, porn loving woman, and should decide for her. That’s where the law comes in, of course.

2. Realising that ‘I don’t like being objectified, so there ought to be a law against it’ won’t cut the mustard with policymakers, advertisers, politicians, business and legal drafters, the campaigner goes looking for a link between objectification and other harms.

This is the stage where the great bulk of the research cited by participants on all sides of this debate is at right now. The evidence points in fifty different directions. Much of it is very bad. Some of it has clearly been written by people who need desperately to read a statistics textbook. Tankard Reist’s book on grief after abortion, for example, is based on only 18 case studies. N=18, ladies and gentlemen or, the plural of ‘anecdote’ is not ‘data’. Others have no causality tests, or lack controls, or no regression analysis.

You are regressing…

Regression works by artificially holding constant every variable except the two the researcher wants to focus on, and then showing how those two co-vary.

Imagine you have 10,000 girls, 5,000 of whom have participated in child beauty pageants and 5,000 who haven’t. You want to see if there’s any meaningful difference between the two groups — in say, school test scores, or ability to delay gratification (the famous ‘marshmellow test‘), and whether any difference (there may not be one) is attributable to participation in child beauty pageants for the first 5,000. Regression analysis converts each of those 10,000 children into a circuit board with an identical number of switches. Each switch represents a single category of the child’s data: her year one maths score, her year-three reading score, her mother’s education level, her father’s income, whether she comes from an intact family, the relevant affluence of her suburb, and so on. The statistician lines up all the children who share many characteristics–all the circuit boards that have their switches flipped in the same direction–and then pinpoints the single characteristic they don’t share. This is how the effect of that switch and, eventually, of every switch, becomes clear.

Be careful with that Leviathan, Citizens!

This, as you may appreciate, is a long, slow process. Many activists don’t have the patience. So they revert to item 1, and spend a great deal of time arguing that their choices are better than other people’s while getting entangled in complex debates over freedom of expression. If they catch the ear of lawmakers, of course, they may even get their much desired law.

And if the law is bad enough, we, the people, all suffer — likely from both crimes and laws.
Indeed! And we need to talk more about these issues. What justifies our attempts to control people's behaviour through the coercive power of the law and the state? The test will be much harder to meet than many lobbyists are prepared to concede.


Eamon Knight said...

Sure, you can find women who regret having abortions, just as you can find people of both sexes who regret doing all sorts of things.

The logic goes: Some women regret their abortions. Therefore no woman can be trusted to make this decision for herself, so we'll just take the choice away from all of them. For their own good, the poor dears...

1. An intuitive sense that a given activity is bad, for a variety of inchoate and unclear reasons.

...such as many (though not all) justifications for burka-banning I have heard.

Russell Blackford said...

Sure, the burqa is a good example. If we are going to ban it, or regulate it, we need to have some kind of clear argument about the harms it does, the likely positive and negative consequences of banning it, etc.

March Hare said...

Even if something causes a harm (to the person engaging in such activity) that is not, in and of itself, reason enough to ban it (for adults).

I am not my brother's keeper (I do wish Christians would look up the origin of that phrase, it's not what they think it is!) and if you choose to engage in activities that likely harm yourself it is not my place to put legal impediments in your way.

Russell Blackford said...

MH, I tend to agree - but I must admit that I am not necessarily opposed in all cases to paternalistic legislation. In some cases, I might fail to take precautions out of weakness of will, and I don't mind the state imposing some kind of nominal penalty that kind of reminds me, puts me under a slight pressure, etc. I feel that way about compulsory seat belt legislation - I can't get worked up to think it's offensive, etc., to have that kind of legislation.

But when the state starts preventing people from making important decisions about their own future lives, such as whether to go ahead with a pregancy and become a mother, my aversion to state paternalism gets up to a pretty high point.

March Hare said...

Russell, that's the whole problem - it seems fairly minor to introduce a small fine to encourage people to do something for their own good (e.g. punitive taxes on unhealthy things like alcohol and cigarettes) but then you have to enforce it. That is simple enough for taxes on goods, but when it comes to seatbelts you are suddenly giving the police powers to stop, search and question you for doing something minor, that harms no-one else and that is supposed to be in your own self interest.

Then you have the whole slippery slope argument which, in this case, is entirely valid. Can the police check your seatbelt wearing habits on private land? Can they come onto your property to check what you do when you drive there? Can they monitor your car to ensure you do it? Do we make all new cars unable to move without engaging a seatbelt? Do people then jury-rig their car to get round this and then stop wearing seatbelts anyway?

I know it's not one to get your knickers in a twist about, but when we allow our betters to make laws for activities that harm no-one else we should be aware of not only what we are giving up in that instance but the precedent we are setting which will allow more and more powers to be grabbed by the police and political classes.

NB. There are always other ways to incentivise 'better' behaviour that are less harmful to freedom than making laws (for situations where you are not harming others).

Anonymous said...

Just on the last comment, I don't think it's strictly accurate to argue that your failure to wear a seatbelt is a situation which does not harm others, particularly where your body continuing to travel at the speed the car was doing, cannons into other people in the car. But that's a minor point.