Beyond the Laws (A Nation of Laws, pt. V)
There is another side to imposing the least possible burdens on citizens: namely, the citizens themselves have to behave in the most reasonable possible manner. That's vague, so let me pose it in the form of a mathematical thesis: any sufficiently unreasonable citizenry requires a despotic government.
In other words, the more willing people are to violate the law, the more despotic the government must be.
There can be no legal remedy for a people that will not obey laws in general. You can tighten the laws and increase the punishments, but that is precisely what you are trying to avoid. If people will not obey some laws, those laws could be adjusted; but if people will not obey laws in general, there is no solution beyond changing the culture of the society.
People are inclined to obey laws that they think are just (see "Why People Obey Law," which I have not read but it looks interesting). But it is not sufficient if people only obey laws that they agree with, because there is no hope of getting everyone to agree on the justice of every law. Neither is it a solution to pass only a very few laws that are very just and therefore enjoy wide support. Sometimes people view the absence of a law as an injustice; consider government-endorsed same-sex marriage, which half the population thinks is wrong, but the other half thinks is wrong to be without.
People, therefore, need to obey laws that they think are unjust. Obviously, there is a limit to the amount of injustice that a person can, and should, submit to. You may well believe that traffic cameras are an unlawful intrusion, but they hardly rise on their own to the level of tyranny. Other laws violate justice and human decency so fundamentally that they should be ignored, subject to civil disobedience, or even (in rare cases) openly thwarted. When I speak of obeying unjust laws, I mean those -- presumably the vast majority -- that a person considers wrong without being an affront to his humanity.
Why would you obey laws that you think are unjust? It isn't difficult to imagine that you think the system of creating laws is fundamentally just, and that you wish to maintain this system, even if it means tolerating laws that you personally disagree with. The world is imperfect, and the alternative to obeying some unjust laws may be subjection to vastly more unjust laws under a tyranny. Everyone in principle should agree that the governmental structure is morally sound, so that he may tolerate minor injustices in exchange for the chance to correct them through normal political processes.
One also needs to believe that other people in society are capable of governing in a basically fair manner. No party or political faction governs forever; eventually, one has to accept the fact that one's opponents are going to be in charge of making, executing, and interpreting laws, perhaps all at the same time. Laws are just words on paper, and even just laws may be undermined by partial and unfair administration. If you think that your opponents are fundamentally out for their own interests and will seek to use power to extend control and extract money rather than administer justice impartially, you have little incentive to obey the law and act within the system. At some point, a common political system becomes virtually impossible to maintain.
For this reason, people in public life are morally responsible to behave impartially and to emphasize that the government exists in the interests of all people. "Morally responsible" in this sense is deliberately vague because it acts on a sliding scale. There can be no rule against lawmakers who advocate interpreting laws to partisan advantage or who claim that government is illegitimate because it benefits some people rather than others; among other problems, who would interpret such a rule? It is a more a principle of good government, that politics will be more civil and government less burdensome to the extent that politicians emphasize the collective nature of government. Of course, it is also a principle of a democratic citizenship that it will elect leaders who fit this paradigm more than those who pose government as a zero-sum, conflictual game.
Just to restate, I am not saying that no politician should ever challenge the justice of the governmental system he serves. The principle is relative: politicians should not challenge the justice of the governmental system to the extent that it remains sound, and in any case should always remain aware that society will function better if people think of the governmental system as fair than if they think of it as conflictual and competitive. The penalty for not following this principle is nothing at all, except in the long run that society will have less and less confidence in the government and the government will become more and more despotic, the administration more and more partisan as a result.
I have a strongly libertarian bent; I believe that, in general, the fewer the governmental burden on the individual, the better off society is. But I cannot escape the general principle that government is a collective enterprise. In the West, it has traditionally been thought of as a res publica, a public good, or a "commonwealth." People living together share a common interest in making things better, and although I think that this generally means interfering with each other as little as possible through coercive means, in the final analysis we establish government as a collective effort. (See the excellent "Exit, Voice, and Loyalty" for a discussion of how people respond to failed organizations, including governments.) In business, the customer is king and can spend his money elsewhere if he is not happy; enterprises rise and fall on the basis of consumer choice. Politics is not so simple, because it is tied to where we live and who we live around. People do choose to leave one government and join another all the time, but usually only in small numbers, because few have the money to uproot readily, and fewer still want to give up the associations in their home country.
It wasn't always this way. Anthropologists believe that a common method of conflict resolution in pre-Paleolithic Europe was "fission" -- just leaving. If a band had a disagreement, part of them could split off and form a new band. (This is also my favourite technique for conflict resolution with difficult people; I just avoid them.) That ceased to be feasible when population increased and land use intensified; people had nowhere to go unless they would join another band, which might not want them. We continue in this situation today, where leaving one government inevitably means joining another one. Moreover, nearby governments tend to be similar, so there is rarely a dramatic reason to cross a border in the interest of improving one's position; a real improvement would require migrating halfway around the glob. Only in rare circumstances do we find a despotic government next to a free one, in which people choose en masse to abandon the one for the other. One such example was East and West Germany, and it shows why this is rarely the case: East Germany had to devote enormous resources to keep its own people from leaving.
So we are stuck in a co-operative enterprise whether we like it or not. We can modify the shape of our group by splitting into smaller groups (as several European nations did after the Cold War ended) or annexing one territory to another, but we cannot escape the fact that we must live together. Arguably the fundamental feature of politics is deciding what group we're going to live with -- who is going to be in and who is going to be out. This was the argument of Carl Schmitt in his work "The Concept of the Political" (Der Begriff des Politischen), and although he is a controversial theorist, I find his argument on this point compelling. A similar point was made in a very different way by the 14th-century Arabic historian Ibn Khaldun. Having lived in a period of rising and falling dyansties, he identified "social cohesion" as a crucial element of the state. People need to share something -- a common history, language, culture, set of beliefs or principles -- if they are to be able to govern themselves. More similarities perhaps makes government easier, but successful government does not require sharing similarities on the level of Japan or Sweden. The most important feature, I would argue, is a common belief in the values of the political system, together with some hope that those values can be implemented fairly by other people in society. Differences in all of the other features, such as race, language, and religion, can be overcome provided people accept a common "meta-culture of rule-making," i.e. a common political system.
I believe in a strongly libertarian government, one in which the government interferes as little as possible with individuals and groups in society; but if there is not some sense of belonging to a worthwhile common enterprise, to a government that functions for everyone, then that government is in trouble. This is a very serious problem in places like Iraq, which have different religious and ethnic groups that have little history of co-operation and a long history of quarreling. (Arguably, Iraq should not even try to form a government, but there are many other factors involved that are beyond the scope of this post.) It is not as much of a problem for the United States, where people often have different backgrounds but share a general faith in the principle of self-government and in our constitution in particular. But it could become a problem as people feel they are not served by the existing order and "opt out" (in a passive or active way) from society. For this reason, I am opposed to ideas like the "Declaration of Individual Independence," by which individuals withdraw their allegiance to the government (without, however, engaging in general lawlessness), as well as to any political idea or philosophy that argues that some parts of society are fundamentally inimical to others and that a free, democratic political order is only a cheap way to paper over oppression of one group by another. If this were true, it would deny the possibility of combining freedom and self-government; and if people believe it to be true, their belief makes everyone in society more vulnerable to tyranny.
In other words, the more willing people are to violate the law, the more despotic the government must be.
There can be no legal remedy for a people that will not obey laws in general. You can tighten the laws and increase the punishments, but that is precisely what you are trying to avoid. If people will not obey some laws, those laws could be adjusted; but if people will not obey laws in general, there is no solution beyond changing the culture of the society.
People are inclined to obey laws that they think are just (see "Why People Obey Law," which I have not read but it looks interesting). But it is not sufficient if people only obey laws that they agree with, because there is no hope of getting everyone to agree on the justice of every law. Neither is it a solution to pass only a very few laws that are very just and therefore enjoy wide support. Sometimes people view the absence of a law as an injustice; consider government-endorsed same-sex marriage, which half the population thinks is wrong, but the other half thinks is wrong to be without.
People, therefore, need to obey laws that they think are unjust. Obviously, there is a limit to the amount of injustice that a person can, and should, submit to. You may well believe that traffic cameras are an unlawful intrusion, but they hardly rise on their own to the level of tyranny. Other laws violate justice and human decency so fundamentally that they should be ignored, subject to civil disobedience, or even (in rare cases) openly thwarted. When I speak of obeying unjust laws, I mean those -- presumably the vast majority -- that a person considers wrong without being an affront to his humanity.
Why would you obey laws that you think are unjust? It isn't difficult to imagine that you think the system of creating laws is fundamentally just, and that you wish to maintain this system, even if it means tolerating laws that you personally disagree with. The world is imperfect, and the alternative to obeying some unjust laws may be subjection to vastly more unjust laws under a tyranny. Everyone in principle should agree that the governmental structure is morally sound, so that he may tolerate minor injustices in exchange for the chance to correct them through normal political processes.
One also needs to believe that other people in society are capable of governing in a basically fair manner. No party or political faction governs forever; eventually, one has to accept the fact that one's opponents are going to be in charge of making, executing, and interpreting laws, perhaps all at the same time. Laws are just words on paper, and even just laws may be undermined by partial and unfair administration. If you think that your opponents are fundamentally out for their own interests and will seek to use power to extend control and extract money rather than administer justice impartially, you have little incentive to obey the law and act within the system. At some point, a common political system becomes virtually impossible to maintain.
For this reason, people in public life are morally responsible to behave impartially and to emphasize that the government exists in the interests of all people. "Morally responsible" in this sense is deliberately vague because it acts on a sliding scale. There can be no rule against lawmakers who advocate interpreting laws to partisan advantage or who claim that government is illegitimate because it benefits some people rather than others; among other problems, who would interpret such a rule? It is a more a principle of good government, that politics will be more civil and government less burdensome to the extent that politicians emphasize the collective nature of government. Of course, it is also a principle of a democratic citizenship that it will elect leaders who fit this paradigm more than those who pose government as a zero-sum, conflictual game.
Just to restate, I am not saying that no politician should ever challenge the justice of the governmental system he serves. The principle is relative: politicians should not challenge the justice of the governmental system to the extent that it remains sound, and in any case should always remain aware that society will function better if people think of the governmental system as fair than if they think of it as conflictual and competitive. The penalty for not following this principle is nothing at all, except in the long run that society will have less and less confidence in the government and the government will become more and more despotic, the administration more and more partisan as a result.
I have a strongly libertarian bent; I believe that, in general, the fewer the governmental burden on the individual, the better off society is. But I cannot escape the general principle that government is a collective enterprise. In the West, it has traditionally been thought of as a res publica, a public good, or a "commonwealth." People living together share a common interest in making things better, and although I think that this generally means interfering with each other as little as possible through coercive means, in the final analysis we establish government as a collective effort. (See the excellent "Exit, Voice, and Loyalty" for a discussion of how people respond to failed organizations, including governments.) In business, the customer is king and can spend his money elsewhere if he is not happy; enterprises rise and fall on the basis of consumer choice. Politics is not so simple, because it is tied to where we live and who we live around. People do choose to leave one government and join another all the time, but usually only in small numbers, because few have the money to uproot readily, and fewer still want to give up the associations in their home country.
It wasn't always this way. Anthropologists believe that a common method of conflict resolution in pre-Paleolithic Europe was "fission" -- just leaving. If a band had a disagreement, part of them could split off and form a new band. (This is also my favourite technique for conflict resolution with difficult people; I just avoid them.) That ceased to be feasible when population increased and land use intensified; people had nowhere to go unless they would join another band, which might not want them. We continue in this situation today, where leaving one government inevitably means joining another one. Moreover, nearby governments tend to be similar, so there is rarely a dramatic reason to cross a border in the interest of improving one's position; a real improvement would require migrating halfway around the glob. Only in rare circumstances do we find a despotic government next to a free one, in which people choose en masse to abandon the one for the other. One such example was East and West Germany, and it shows why this is rarely the case: East Germany had to devote enormous resources to keep its own people from leaving.
So we are stuck in a co-operative enterprise whether we like it or not. We can modify the shape of our group by splitting into smaller groups (as several European nations did after the Cold War ended) or annexing one territory to another, but we cannot escape the fact that we must live together. Arguably the fundamental feature of politics is deciding what group we're going to live with -- who is going to be in and who is going to be out. This was the argument of Carl Schmitt in his work "The Concept of the Political" (Der Begriff des Politischen), and although he is a controversial theorist, I find his argument on this point compelling. A similar point was made in a very different way by the 14th-century Arabic historian Ibn Khaldun. Having lived in a period of rising and falling dyansties, he identified "social cohesion" as a crucial element of the state. People need to share something -- a common history, language, culture, set of beliefs or principles -- if they are to be able to govern themselves. More similarities perhaps makes government easier, but successful government does not require sharing similarities on the level of Japan or Sweden. The most important feature, I would argue, is a common belief in the values of the political system, together with some hope that those values can be implemented fairly by other people in society. Differences in all of the other features, such as race, language, and religion, can be overcome provided people accept a common "meta-culture of rule-making," i.e. a common political system.
I believe in a strongly libertarian government, one in which the government interferes as little as possible with individuals and groups in society; but if there is not some sense of belonging to a worthwhile common enterprise, to a government that functions for everyone, then that government is in trouble. This is a very serious problem in places like Iraq, which have different religious and ethnic groups that have little history of co-operation and a long history of quarreling. (Arguably, Iraq should not even try to form a government, but there are many other factors involved that are beyond the scope of this post.) It is not as much of a problem for the United States, where people often have different backgrounds but share a general faith in the principle of self-government and in our constitution in particular. But it could become a problem as people feel they are not served by the existing order and "opt out" (in a passive or active way) from society. For this reason, I am opposed to ideas like the "Declaration of Individual Independence," by which individuals withdraw their allegiance to the government (without, however, engaging in general lawlessness), as well as to any political idea or philosophy that argues that some parts of society are fundamentally inimical to others and that a free, democratic political order is only a cheap way to paper over oppression of one group by another. If this were true, it would deny the possibility of combining freedom and self-government; and if people believe it to be true, their belief makes everyone in society more vulnerable to tyranny.
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