Category: Law

Posts about law-making, the courts, and legal concepts in general

Two axes for the left-right political spectrum

Ubiquitously, people use the left-right spectrum to sort people, political parties, and governments according to their political views. Like any model, it has its simplifications. At the same time, it is useful enough to be worth retaining.

That being said, this categorization can conceal important axes of disagreement. Not everyone on ‘the left’ or ‘the right’ agrees. For example, this is demonstrated by the vast differences between libertarians (generally considered right wing) and social conservatives. The former want to legalize drugs, allow gay marriage, and let people have whatever kind of sex they want. The latter sometimes want to lie to children to prevent sex and drug use, use scripture as inspiration for law, and preserve existing power structures.

One more complex model that I think is useful takes two considerations into account:

  • How necessary do you think government is? Can it be beneficial?
  • How important are an individual’s own values, compared to those of their community?

On one axis, there is the range of views from ‘government is beneficial and absolutely essential’ to ‘government is harmful and not needed.’ On the other is an axis from ‘individuals should be free to live however they want’ to ‘people should live according to an external moral code’.

All combinations are possible. Anarchists agree that government is not needed and probably harmful, but disagree about whether we should all follow a particular ethical framework and, if so, what the framework should resemble. Some anarchists assume that – freed from government – people would probably arrange themselves into communistic little autonomous communities. Others prefer rather more militant notions of what anarchism might involve.

People of all political stripes disagree about the extent to which traditional or religious values should motivate how people behave, as well as the degree to which they are embedded in law. For instance, some people would like government to enforce morality by treating adultery as a criminal offence, or by criminalizing abortion, or by restricting the use of climate damaging fuels, or by forbidding companies from bribing public officials, etc, etc.

Of course, there is a big difference between enforcing ‘harm principle’ ethics, where only actions that damage unconsenting bystanders are restricted, and a more open-ended enforcement of morality by government. For people deeply concerned about how one person doing what they wish can prevent others from having the same freedom, government is often seen as an essential mechanism for preserving the overall liberty of everyone.

One element that is not well captured in this model is the range of different moral codes people want to see applied. These include everything from ‘traditional family values’ to various forms of religious fundamentalism to non-religious but dogmatic social philosophies like Ayn Rand’s Objectivism.

Still, I think this framework has some use, when it comes to understanding the range of political views that exist.

[Aside] To clarify my own view, I naturally recognize that governments can be extremely harmful: even oppressive to the point of murderousness. That being said, I think they are necessary because of how interconnected the world has become and, at their best, can do enormous good.

How much can one person steal?

Perhaps one of the reasons why intellectual property law is in such a strange state now is because of how much the sheer value a single person can steal has increased.

The most a human being has ever lifted (briefly) during Olympic weightlifting was 263.5 kg, lifted by Hossein Rezazadeh at the 2004 Summer Olympics. Right now, the price of gold is about US$1,300 an ounce for Canadian Gold Maple Leaf coins. That means the world weight lifting record (or just under 8500 Troy ounces) comprised about C$12 million worth of gold.

Compare that with the losses potentially associated with a book or DVD getting pirated early, or a pharmaceutical manufacturing process getting released to a generic drug manufacturer, and it seems clear that the value in goods that a person can now steal is substantially higher. I remember one memorable illustration of this in fiction, from Jurassic Park. In it, corporate spy Dennis Nedry tries to steal 15 dinosaur embryos, developed as the result of painstaking genetic reconstruction undertaken by his employers. He is offered something like $1.5 million for these (I don’t remember exactly how much), but they were surely worth more to both his employer and to whoever was trying to acquire them.

Lots of other pieces of fiction focus on the fate of valuable intangible commodities. For instance, in William Gibson’s Neuromancer, the principal thing being stolen (at considerable difficulty and loss of life) was three musical notes, which in turn served as a control on a computer system.

When people are stealing gold, or diamonds, or cattle, or DVD players there is a fairly set limit to how much they can actually make off with. Furthermore, after such thieves are caught, there is a good chance that much or all of their loot can be restored to its rightful owners. Compare that to some savvy teenager who comes across a valuable bit of information and publishes it online: the value is potentially enormous, and the scope for ‘setting things right’ pretty much non-existent. Of course, locking up grandmothers whose computers have been used to download a Lady Gaga song or two isn’t a sensible thing to do, regardless.

Rights: inherent or chartered?

Reading one of the lengthy historical discussions of anti-Semitism in Richard Rhodes’ The Making of the Atomic Bomb, I came across a section on how Jews made an agreement with Louis the Pious, the son of Charlemagne, to be granted legal protections in exchange for becoming the ruler’s property. Rhodes says that: “Their rights were thus no longer inherent but chartered.” (p.177 paperback)

This made me think about the distinction between how constitutional rights are described in Canada and in the United States.

The Canadian Charter of Rights and Freedoms “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It also describes such things as freedom of conscience and religion as “fundamental freedoms,” though it does not directly describe where ‘fundamental’ freedoms come from. Arguably, the preamble to the Charter, which says that Canada is “founded upon principles that recognize the supremacy of God and the rule of law” provides a clue about where the drafters think rights could come from, though it is ambiguous and unclear.

By contrast, the American Declaration of Independence states that it is a self-evident truth “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It seems clear what the drafters of this document thought about the origin of rights, though this raises the question of what their status and origin are taken to be within a secular state.

I have written before about how I don’t think there is anything inherent to human rights. They are not built into the structure of the universe, and they do not make themselves evident, whole and fully formed, when sensible people think about how human societies should be structured. Furthermore, they are often in conflict with one another, and a simple rights-based philosophy doesn’t provide much guidance on how to deal with situations where different rights-based claims are in competition.

Is it better, then, to have inherent rights or chartered ones? With chartered rights, there is a clear sense of what they are and where they came from. Potentially, there can also be explanation for why they are granted. We could, for instance, explain that freedom of speech exists in our society because we recognize the benefits it creates, and the harms associated with denying it. Inherent rights may, in a certain sense, be more robust. If we pretend that certain human rights really are part of the structure of the universe – or unambiguously derived from thought and logic – then we have a certain defence against the suppression of minority rights by the majority.

Of course, if we are worried about the masses being insufficiently cautious about the rights of minorities, we can express those concerns in a chartered framework. We can underline the value of protecting minority rights, and explain how only granting effective protections against majority bullying can those benefits be maintained.

Google and net neutrality

At Google headquarters recently about 100 people showed up to protest Google’s apparently eroding support for ‘net neutrality.’ Net neutrality is the idea that the internet should not restrict the modes of communication that can be used across it, nor the sorts of devices that can be connected to it.

Lots of companies oppose net neutrality because it means they should not discriminate between traffic from different sources. Data traversing the internet – broken up into pieces called packets – includes everything from pirated DVDs being passed around using peer-to-peer filesharing systems to corporate phone calls being routed though voice over internet protocol (VoIP) telephone systems to songs being downloaded for money from the iTunes store. Lots of companies would like to slow down or block file sharing, restrict services like VoIP, and allow people to pay more for faster paid downloads.

One big reason why this is worrisome is that it could prevent the emergence of new technologies. VoIP seems like a good example. Routing telephone calls through the internet challenges the monopoly of fixed-line telephone companies. Low cost VoIP calls have been a source of competition for them, and have probably produced improved services at lower prices for consumers. A future version of the web where companies can slow down or block traffic of undesirable types could be a version where new such technologies get strangled at birth.

That said, abandoning net neutrality could have some advantages, by improving network performance for those who use relatively low-bandwidth services like email and text websites. It could also facilitate the emergence of interesting new technologies, which are not viable on the internet as it exists now. For instance, the sometimes slow and clunky load times were one of the reasons why Google Wave proved to be a failure.

Given their enormous influence on the content and structure of the internet, the position of Google on net neutrality is of considerable public importance. The full details of their deal with Verizon – which is rumoured to allow special treatment of certain sorts of traffic – have not yet been publicly announced. When they are, there will surely be a lot of scrutiny and interest from the geekier components of the general public, as well as those with a particular interest on how technology policies affect societal change.

In Canada, Bell is probably the most vocal opponent of net neutrality, while Michael Geist may be the most prominent defender. I wrote a bit about net neutrality earlier, as well as about the related technology of deep packet inspection.

Democracy and minority rights

Judge Vaughn R. Walker’s ruling on California’s Proposition 8 is a good demonstration of how it is possible for the serious expert consideration of ethics and law to produce better policy-making than direct or representative democracy does:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Gay marriage is restricted around the world not for any rational reason whatsoever, but because large numbers of voters are prejudiced and uncomfortable with the idea.

While it is encouraging when gay marriage is legalized by legislation or popular referendum, I think it is ethically preferable when courts assert its necessity. That is because the power to determine the scope of minority rights should not rest with the will of the general public. Establishing minority rights on that basis is precarious and unjust. Rather, societies that aspire to be ethical have to acknowledge the fact that the majority cannot be allowed to strip minorities of fundamental rights, and that laws that do so ought to be struck down, regardless of how popular they are.

America’s upcoming midterms

In some ways, it is not surprising that American policy-makers are intensely focused on short-term popularity. Every two years, the entire House of Representatives and a third of the Senate are up for re-election. Anxiety about getting turfed about by annoyed voters naturally makes politicians hesitant to support anything where the pain is near-term and the benefits far off.

Looking forward to this November’s midterm elections, most people expect the Democrats to get a thumping. Just how big a thumping is, of course, a matter of discussion. During the past few months, many people have raised the possibility that the Democrats could lose control of the House of Representatives. Now, some are wondering if they might lose the Senate as well. That possibility is certainly less likely, since only a third of the Senate is elected at a time. For the Republicans to gain control, they would basically need to win every competitive seat while not losing any that are considered safe for them.

Turnouts are always lower for midterm elections than for those that also include presidential voting. Indeed, mechanisms for getting supporters to actually vote are a key part of electoral tactics. That can include things like incorporating referenda on issues that fire up your base, whether they are on banning gay marriage or trying to simplify unionization. Another is to instill fear in your supporters that their opponents are about to triumph. Indeed, one reason why members of the Obama administration have been hinting about the possibility of Republican victories in November is to try to frighten Democratic supporters to the polls.

How to shift the US Congress?

Writing for Grist, Randy Rieland has come up with a summary of arguments about why cap-and-trade is dead in the United States for now. He is right to say that the blame lies primarily with Congress, rather than with the Obama administration. Congress is the most powerful branch of government, and has been highly effective at blocking environmental legislation in the past. While the Democratic leadership in Congress is theoretically allied with the administration in the White House, even the two together clearly haven’t been able to overcome the wall of opposition to meaningful climate policies that has been constructed by Republicans, or the cowardice of moderate Democrats who are unwilling to fight to address this key problem.

The stragic question now becomes how to change Congressional behaviour, and do so before climate-related disasters become so frequent as to finally discredit climate change deniers completely. We cannot afford to wait that long, both because of the physical lags in the Earth’s climate system and the lags in our own infrastructure deployment. By the time the full danger of climate change is unambiguously on display, it will be too late to avoid some terrible effects. It will also be too late for the relatively unintrusive policies being proposed today to work. Sterner stuff will be required.

Costing legislation

In the United States, the Congressional Budget Office has a mandate to provide non-partisan advice on the economic and budgetary decisions on the wide array of programs covered by the federal budget. They have a staff of 235, and a budget of $44 million per year.

By contrast, Canada’s Parliamentary Budget Officer (PBO) has a staff of 11, and can only undertake analyses on a selected subset of bills. This is problematic for a few reasons. For one, it gives the impression of some level of partisanship, when the PBO can choose which bills to study and when to release results. For another, it leaves Members of Parliament ill informed about what the costs associated with legislation will be. They really ought to have an accurate non-partisan analysis before the second reading vote.

Perhaps it would make sense if Canada enlarged the role of the PBO, to include a mandatory analysis on any piece of legislation likely to cost over a certain amount, such as $500 million. By making the selection of projects for analysis largely automatic, the PBO would be made to seem non-partisan. The quality of the data that drives Parliamentary decisions would also likely be improved.

Legalize, regulate, provide treatment

Just as XUP is pointing out how it makes sense to legalize and regulate prostitution, The Economist is making that case for gambling. Of course, the argument works for drugs too – better to have their production and distribution legal and regulated by the state than criminalized, marginalized, and ultimately more harmful. All of these activities will inevitably cause some level of suffering, but their treatment as criminal offences simply serves to increase how much of that arises. This is unescapable, since those involved in criminal activities have no recourse to police protection and assistance, safety and quality control will always be poor, and criminalizing ‘vices’ puts an unsustainable and inappropriate burden on the justice system.

One further measure I would suggest is that producers of drugs – and purveyers of sex and gambling – should have to pay taxes on their revenues that are devoted specifically to helping people who are addicted to their wares. The treatment options provided should be based on the best available medical evidence, and be run by organizations at arms length from both the companies and the government (to avoid the kind of political bickering threatening Vancouver’s InSite harm reduction project). The taxes should be set at a level that ensures that anybody who wants to get treatment is able to do so for as long as they need it.

Humans have many weaknesses, with addictions among the most serious. By legalizing and regulating drugs, gambling, and prostitution, the harm associated with these activities can be minimized. At the same time, the reality that many people cannot overcome addictions on their own must be recognized through the provision of effective and accessible treatment.

Climate change and capitalism

A number of times, discussions on this site have questioned how the reality of climate change should affect our political philosophy, when it comes to supporting or opposing capitalism. For both practical and theoretical reasons, I have been of the view that replacing capitalism is not a sensible goal, for those deeply concerned about climate change. Capitalism has virtues that may not be present in alternative systems – and what serious alternatives really exist at this point? – and there is no reason to be confident that an alternative system will be able to address climate change, even after we have put in all the time and effort that such a major societal reorganization would require.

Capitalism also includes powerful tools that could be applied to problems like tackling climate change. By establishing a carbon price, emissions reductions can be made to occur in the places where doing so is cheapest. That has benefits in terms of how quickly and cheaply emissions can be cut. It also has benefits for liberty, since it changes the incentives that people face, without forcing them to make one choice or another.

The urgency of climate change is another major reason to focus on the changes that are absolutely necessary, while leaving grand experiments for a more relaxed period in history. Preventing temperature increase of over 2°C above pre-industrial levels requires very aggressive cuts in global emissions. They need to peak as soon as possible (the sooner, the lower total costs will be) and fall to a dramatically lower level by 2050. Given that this is the lifetime of assets being constructed right now, from highways to buildings to power plants, the need to start changing incentives is urgent. It is much more plausible that this could be achieved by incorporating carbon pricing into our existing economic and political framework than it is to think we could launch a whole alternative structure quickly and effectively enough to achieve that result.

Must capitalism be discarded in order to address climate change, or is reform sufficient? Thinking strategically, what should those who are intensely concerned about climate change work to achieve, in terms of political and economic reforms? What real alternatives to capitalism as now practiced are there, and what would the likely benefits and problems associated with them be?