Actions, Consequences, and the Law

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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21 Responses

  1. Avatar Elias Isquith
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    says:

    It’s a really good question, the one you end with; and it’s a good framework, the one you start with. Don’t think I can post a worthy answer without thinking some more and reading some of our smarter commenters’ takes.Report

  2. Avatar E.C. Gach
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    says:

    It’s hard to see how paternalism, to some degree isn’t inevitable. People seem to naturally tend toward the kinds of relationships that first exist in the family. Any figure that exhibits power is going to be treated in ways similar to the child/parent relationship experienced earlier in life.

    Though when people invoke the term “paternalism” they usually do it in the sense that particular institutions promote it. And yet I have a hard time seeing how a bureaucracy without people could be percieved as paternalistic. And so if it’s really the people that are central to it, it seem paternalism is more an issue of PR and the rhetoric of powerful people than a quality built into any particular system.Report

  3. Avatar Stillwater
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    says:

    It seems obvious to me that laws will always do one of three things: They may shield people from certain of the the consequences of their actions, they may inflict additional consequences for an action, or they may allow all ordinary consequences to follow an action, exactly as might happen without a law.

    I think this is wrong: laws are intended primarily to shield people from other people’s actions. This is true just as much – more so, in fact – in the Nightwatchman’s state as any other. What that means wrt paternalism is another matter, I think, partly because I’m not sure the concept even applies here. But there is no ‘lesson learning’ in creating and enforcing laws protecting basic rights and contracts.Report

  4. Avatar Jason Kuznicki
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    says:

    laws are intended primarily to shield people from other people’s actions.

    While this is true concerning intent, the mechanism by which we get there is still inflicting an additional consequence on the perpetrator of an action. It would be great if all that mattered were intent, but that’s just not the case.

    there is no ‘lesson learning’ in creating and enforcing laws protecting basic rights and contracts.

    Elias and I are both inclined to disagree; he sees this as possibly paternalistic; I view it as one of the helpful knock-on effects of these protections.Report

    • Avatar Stillwater in reply to Jason Kuznicki
      Ignored
      says:

      While this is true concerning intent, the mechanism by which we get there is still inflicting an additional consequence on the perpetrator of an action. It would be great if all that mattered were intent, but that’s just not the case.

      Person A murders person B: there is no initial ‘consequence’ for person A, there is just the action, so there cannot be an ‘additional’ consequence. The purpose of the law is intended to provide that consequence, in a neutral, impartial and justified way. Same with contract violation (the person who violated the contract suffers no ‘consequence’ in that action, he gets what he wants, hence there is no ‘additional’ consequence), rights violations, dumping of toxins into the environment, etc etc.

      If you’re talking about a small class of laws and how they are perceived and implemented, then no argument from me. But it certainly isn’t general. Eg, even laws protecting corporations from class action litigation are intended to protect corporate interests against other people’s, and acting on that law provides no ‘additional’ consequences to class action pools, or to corporations for that matter.

      Maybe I’m confused.Report

      • Avatar Jason Kuznicki in reply to Stillwater
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        says:

        Person A murders person B: there is no initial ‘consequence’ for person A… Same with contract violation (the person who violated the contract suffers no ‘consequence’ in that action,

        Of course there are consequences for these individuals — consequences they presumably view in a positive light, or else they would not have murdered or broken the contract.

        But this strikes me as a rationalistic objection in any case, because your initial move was not to claim that some actions are consequence-free for their perpetrators. It was instead to talk about the intent of the law rather than its mechanism. When I brought you back to mechanism, you changed the subject. To one as it happens I’m quite ready to disagree with you about: There’s virtually no such thing as an action without consequence.Report

        • Avatar Stillwater in reply to Jason Kuznicki
          Ignored
          says:

          Jason,

          If you’re using the word ‘consequences’ in some unique way, then you should clearly say what it is and maybe we’d end up agreeing on this. But when person A kills person B, they may have a motive, but that motive isn’t a ‘consequence’ in any sense of the word. A consequence something that follows from the action. Hence, getting what you want isn’t a consequence.Report

          • Avatar E.C. Gach in reply to Stillwater
            Ignored
            says:

            As a consequence of killing her husband, she got what she wanted: his vast fortune.

            Is there something wrong with how I constructed that sentence?Report

            • Avatar Stillwater in reply to E.C. Gach
              Ignored
              says:

              Yes, there is: You’re saying that event A was followed by event B. For the situation to be described as an action (one of human agency), the events have to be linked up with intentions.Report

            • Avatar Jason Kuznicki in reply to E.C. Gach
              Ignored
              says:

              If it helps, you need not even accept the premise that all actions have consequences for their perpetrators.

              Setting “number of consequences” to zero, adding a consequence is still an “additional” consequence.

              Sheesh.Report

            • Avatar Stillwater in reply to E.C. Gach
              Ignored
              says:

              Maybe that was too quick. Compare the sentence
              as a result of her husbands death, she got what she wanted: his vast fortune

              with

              as consequence of killing her husband, she got what she wanted: his vast fortune.

              In the first case, one event is followed by another, and is considered a consequence of it: the passing of her husband’s vast fortune. In the second, two events are linked by an intention, which makes them constitutive of the action. The phrasing in the second sentence provides the link between events to make them an action.Report

  5. Avatar Patrick Cahalan
    Ignored
    says:

    I only have a quarter brain on this, which is too bad because I love these sorts of posts from Jason (tied into Elias, there’s gonna be some meat in here you bet).

    Things about positive vs negative rights are bouncing around in my noggin somewhere.

    > They may shield people from certain of the the
    > consequences of their actions

    This is “protective for action”. Person A does action Theta, we want to encourage Theta, so we create some sort of shield. Bankruptcy laws.

    > They may inflict additional consequences for an action

    This is “Negative Conditioning Laws”. Your standard crime law. You kill, we throw you in the clink.

    > They may allow all ordinary consequences to follow
    > an action, exactly as might happen without a law.

    I readily submit that there’s a bunch of laws like this, but I’m surprisingly unable to come up with a bunch of examples off my head.

    You’re missing some, though.

    Laws that encourage action. One can say that these are similar to the crime laws, except instead of “inflicting” they “reward” -> you put a new energy saver refrigerator in your house, we cut you a rebate check. Taking moral weight out of it, they’re largely built around the same frame as criminal laws, but I imagine Elias is talking about this distinction when he’s talking about paternalism. These are positive conditioning laws. Since we suspect positive conditioning works better than negative conditioning (and in the very least, everybody likes to tell everybody else what they ought to do), there’s a powerful urge to pass laws like this.

    Laws that penalize inaction. If you don’t vote, we fine you. Not terribly common in the U.S., but they exist elsewhere. I’m pretty sure that these raise all sorts of paternalism flags for Elias.

    Those last two are in some ways only semantically different from the categories Jason throws down, but I suspect the paternalism divide bit is right in there. In the marrow.Report

    • Avatar Jason Kuznicki in reply to Patrick Cahalan
      Ignored
      says:

      They may allow all ordinary consequences to follow an action, exactly as might happen without a law.

      “I readily submit that there’s a bunch of laws like this, but I’m surprisingly unable to come up with a bunch of examples off my head.”

      I’d include in here any law that, with respect to a given activity, says nothing in particular. A law about food additives may have no influence at all on the garment trade. Or at least none that we can discern.

      “You’re missing some, though. Laws that encourage action.”

      I’d say that these laws almost always append a positive consequence or else shield people from a negative one. One advantage of my typology is that it works without any consideration of legislators’ intent; it is I think purely descriptive of effects. To “encourage” is an intention, and how do we produce it? By shielding or by appending a consequence, good or bad, somewhere along the way.

      “Laws that penalize inaction.”

      I might have said this, but you know, I was severely beaten down when I claimed that Obamacare was penalizing inaction. Not possible, I was told, because even declining to act… is acting.

      But anyway.Report

      • Avatar Patrick Cahalan in reply to Jason Kuznicki
        Ignored
        says:

        > One advantage of my typology is that it works
        > without any consideration of legislators’ intent;
        > it is I think purely descriptive of effects.

        Yes, which has certain advantages.

        But when you have a typology that doesn’t take into account intent, it’s going to be hard pressed to present a useful framework for analysis of implementations and comparisons thereof.

        It reminds me of an old DailyWTF contest about polymorphism in programming: you can make a calculator so differentiated and modular that it no longer works as a calculator.

        I mean, obviously there’s a big difference between these cases:

        ABLE:
        The state doesn’t want its citizens to be murdering each other. To penalize this action (negative reinforcement) it passes laws that say “you go to jail for 20 years”. Time passes. Pretty much nothing changes.

        BAKER:
        The state wants its citizens to treat the commons in front of the lone hotel/general store in town nicely, so that when the stage stops on its way to Sacramento and the gold rush, the passengers get off ans spend some of their lucre in the locale. So they pass laws that say, “You spit on the sidewalk or cuss in front of ladies, and we throw you in the clink for 2 days”. Time passes. Nobody enforces this law any more.

        CHARLIE:
        The state wants to cut down on the amount of salt going into the local water treatment plant, because it’s more expensive to treat the water. So it offers a $200 rebate for people who own salt-based water softeners to buy a new one that doesn’t use salt. Time passes. I can buy a new water softener for less than $100 ’cause the price has come down that has no maintenance cost. The state now is giving me $100 to do something I’d do anyway.

        DOG:
        The state wants to cut down on the amount of salt going into the local water treatment plant, because it’s more expensive to treat the water. So it forbids the sale of 30 and 50 lb rock salt bags within the local environs. Now people who want to make ice cream in hand-cranked ice-cream makers need to go to Monrovia to buy salt.

        Intentions are kind of important, if you want your law to be written properly and implemented properly. Forgetting to put a sunset clause or a limiter on positive reinforcement laws creates Charlie. Being stupid about your negative reinforcement law implementation creates Dog. Being unclear about your proscribed behavior and why it is important leads you to the case where Able and Baker are both on the books, but only Able is enforced.Report

    • Avatar Kolohe in reply to Patrick Cahalan
      Ignored
      says:

      They may allow all ordinary consequences to follow
      > an action, exactly as might happen without a law.

      I readily submit that there’s a bunch of laws like this, but I’m surprisingly unable to come up with a bunch of examples off my head.

      I’d say the group of (civil) laws that limit torts. For instance, if I put all my money in Bank of America stock 6 months ago, the law explicitly says* I can’t sue either ScottTrade, NYSE, or Bank of America because I lost almost half my money.

      *iianm, but ianal so fwiwReport

  6. Avatar DensityDuck
    Ignored
    says:

    One man’s paternalism is another man’s empathy. One person sees police officers providing vital protection; another sees a bunch of useless tax-dollar wastes encouraging inattentiveness and sloth on the part of the populace, trying to do the job that a pistol could do faster and better.Report

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